## Facts

- Allen Spaulding and the complainant were in a live-in romantic relationship.
- After drinking heavily on July 30, 2012, they returned to the complainant’s home, despite a prior no-trespass order barring Spaulding from the residence.
- The complainant called 911 reporting Spaulding assaulted her and caused injuries; she was heavily intoxicated and later remembered little of the evening.
- Police responded, and with an officer’s assistance the complainant produced a written statement describing the alleged assault.
- At trial, the complainant testified she did not remember the events or making the statement due to intoxication, but recognized her signature and said she would not have signed something untrue.
- The State charged Spaulding with domestic assault and trespass; the written statement was a central part of the State’s proof on the assault charge.

## Issues

1. Whether the complainant’s written statement was admissible as a past recollection recorded under V.R.E. 803(5) when she could not remember the events or making the statement and did not affirm its accuracy when made.
2. Whether, excluding the written statement, the remaining admissible evidence was sufficient to sustain the domestic-assault conviction.
3. Whether aspects of the prosecutor’s closing argument were improper and required relief.

## Decision

- The Vermont Supreme Court reversed the domestic-assault conviction.
- The trial court erred by admitting the complainant’s written statement under V.R.E. 803(5) without the required foundation that the statement accurately reflected her knowledge at the time it was made.
- The error was not harmless because the statement was central to the prosecution’s case and the remaining evidence was insufficient to sustain the conviction as tried.
- The court did not base its disposition on the closing-argument claims.

## Legal Principles

- Under V.R.E. 803(5), a record may be read into evidence only if: (1) the witness once had knowledge; (2) the witness now cannot recall well enough to testify fully and accurately; (3) the record was made or adopted when the matter was fresh; and (4) the witness testifies the record accurately reflected the witness’s knowledge when made.
- A witness’s recognition of a signature and general assertion that they would not sign something false does not satisfy the requirement that the witness confirm the statement’s accuracy when made.
- When an improperly admitted recorded recollection is central to the State’s proof, the error is prejudicial and warrants reversal.

## Conclusion

The court held that a recorded-recollection foundation requires witness testimony affirming the statement’s accuracy at the time of creation; because that assurance was missing and the statement drove the State’s case, the domestic-assault conviction could not stand.


State v. Spaulding, 103 A.3d 487 (Vt. 2014)