Appeals court hears challenge to admission of uncharged sexual conduct in Vasquez case

Appellate counsel for defendant Vasquez told a three-judge panel that testimony about an uncharged sexual incident — the victim's statement that "he poked me" — was elicited midtrial and so prejudicial that it requires a new trial.

The argument centers on whether the trial court properly admitted the testimony under Tennessee Rule of Evidence 404(b) and the Rickman exception for child-victim testimony, and whether the court properly excluded a pastor's testimony about a purportedly inconsistent prior statement under Rule 613(b). Appellate counsel said the uncharged "poking" incident is "far more intrusive and egregious" than the charged conduct and that its late introduction "turns his whole trial on its head."

The charges in the indictment referenced at oral argument were: count 1, solicitation of a minor (dates not argued here); and counts 2 and 3, aggravated sexual battery alleged to have occurred between August 2015 and August 2017. Counsel described the charged conduct as a single shed incident in which the victim said Vasquez hugged her and touched her over outer clothing on the breast and buttocks. The uncharged incident referenced in testimony — the "poking" — was not in the indictment and, according to appellate counsel, was first revealed during the victim's direct examination at trial.

Appellate counsel argued the state used the uncharged testimony tactically and without pretrial notice, depriving the defense of an opportunity to file a Rule 404(b) notice or bill of particulars. Counsel pointed the panel to an unpublished precedent from this court, State v. Carter (Dec. 16, 2010), which he said reversed a trial court for admitting similar uncharged sexual-act testimony when the state used a broad time span in the indictment and then elicited an uncharged act at trial.

The prosecutor, Abigail Hornsby, responded that the trial court did not abuse its discretion. "The trial court properly exercised its discretion when it admitted 404(b) evidence," Hornsby told the panel, arguing the court held an out-of-jury hearing, made credibility findings and found the testimony relevant to intent given the defendant's theory at trial. Hornsby described text messages the defendant sent the victim — messages the prosecutor said attempted to solicit sexual conduct and to encourage the victim to come to his room — and argued that the additional testimony bore on whether the defendant's actions were a "test" or an actual solicitation.

On Rule 613(b) and the pastor's proposed testimony, counsel for both sides agreed that the trial court found defense counsel had the opportunity to lay the proper foundation and failed to do so. The state argued the excluded pastor testimony (a prior statement that the victim said nothing illegal had happened or that the defendant was "just playing around") was of limited probative value and that excluding it was within the court's discretion, particularly given the policy interest in protecting young victims from repeated testimony.

Appellate counsel asked the panel to conclude that, as a matter of law, the unfair prejudice of the uncharged "poking" testimony outweighed its probative value and that the trial court's balancing decision was unreasonable. He also argued the trial court should have allowed the defense to recall the victim to lay foundation for extrinsic impeachment or, alternatively, that the failure to do so might be pursued as ineffective assistance of counsel in post-conviction proceedings. The defense acknowledged one acquittal: counsel said the jury acquitted on count 2 (breast touching) but convicted on count 3.

The panel did not announce a decision at oral argument. Appellate counsel asked that the convictions be reversed or the case remanded for a new trial; the state asked the court to affirm. The court recessed for a short break after the arguments.