State v. Forbes

STATE_V_FORBES.91-450; 161 Vt. 327; 640 A.2d 13

[Opinion Filed 19-Nov-1993]

[Motion for Reargument Denied 01-Feb-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                    No. 91-450



 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Donald T. Forbes                             September Term, 1993



 Robert Grussing III, J.

 Dan M. Davis, Windham County State's Attorney, and Karen R. Carroll, Deputy
    State's Attorney, Brattleboro, for plaintiff-appellee

 Thomas A. Zonay of Carroll, George & Pratt, Rutland, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J.   A jury convicted defendant of lewd and lascivious conduct
 with a child and sexual assault.  See 13 V.S.A. {{ 2602, 3252(3). The victim
 was his 11-year-old daughter.  He claims the trial court abused its dis-
 cretion by admitting testimony about uncharged sexual misconduct with his
 daughter, his history of violent outbursts in her presence and expert
 opinion about her physical condition, all of which  impermissibly boosted
 her credibility.  We affirm.
      On November 15, 1989, defendant's daughter reported to a teacher that
 her father had been sexually abusing her.  The child's report prompted an

 

 investigation that uncovered allegations that defendant had sexually abused
 her and her older sister for years.  According to the daughter, defendant
 first initiated sexual contact with her in 1987.  After the first incident,
 the daughter told her mother what had happened, but her mother did not
 believe her.  Thereafter, the sexual abuse periodically recurred in the home
 at various times during the day and night.  The daughter said that at one
 point she was on the verge of telling a school counselor about the abuse but
 her older sister persuaded her to stay silent.  The older sister testified,
 without objection, that the victim had told her on more than one occasion
 that their father was sexually molesting the victim.
      Defendant was charged and convicted for an incident of sexual abuse
 occurring on November 14, 1989.  The daughter testified that while her
 mother was downstairs on the evening of November 14, 1989, her father came
 into her room and touched her vaginal area with his fingers.  The child
 further testified that her father also tried to "stick his penis in my
 mouth."  The mother and older sister testified that they had been at home on
 the night in question, but were unaware of what had occurred.  The mother
 said defendant had slept on the couch and she did not see him go upstairs
 that night.
      Defendant took the stand and denied that any assault ever occurred.  He
 stated that he did not go to his daughter's room on the night in question.
 Rather, he fell asleep on the living room couch in front of the television
 and did not get up until the next morning.  The defense attempted to account
 for the daughter's allegations by suggesting that she had fabricated the
 story because her father had threatened two weeks earlier to send her away
 to "reform school."

 

      The State sought to refute the inference of recent fabrication by
 showing that fear of her father's temper had kept her from coming forward
 sooner.  The daughter recounted that she was afraid of her father because he
 had shot a gun in the direction of her mother and "broke things, put holes
 in the walls, . . . stuck my dog's head in the wall . . . [and] almost put
 me through a wall . . . because I didn't finish cleaning the dining room and
 the living room before he got home."
                                     I.
      Defendant objected without success to the evidence about the prior
 sexual and violent misconduct.  The oft-litigated issue whether uncharged
 misconduct is admissible is governed by V.R.E. 404(b), which states:
 Evidence of other crimes, wrongs, or acts is not
 admissible to prove the character of a person in order
 to show that he acted in conformity therewith.  It may,
 however, be admissible for other purposes, such as
 proof of motive, opportunity, intent, preparation, plan,
 knowledge, identity, or absence of mistake or accident.

 See 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence {5239
 (1977) (most frequently litigated criminal issue).
      We must be vigilant in reviewing the admission of evidence of uncharged
 misconduct, because once jurors learn of uncharged misconduct, they tend to
 use an entirely "different . . . calculus of probabilities" in deciding
 whether to convict.  See Imwinkelried, Uncharged Misconduct, 1986 A.B.A.
 Sec. Crim. J. 6, 8 (Summer) (quoting H. Kalven & H. Ziesel, The American
 Jury 179 (1966)).  In fact, several empirical studies tend to confirm
 prosecutors' beliefs that the introduction of a defendant's uncharged
 misconduct can "easily tip the balance against the defendant."  Imwinkelried
 at 8 (referring to studies conducted by the Chicago Jury Project, the London
 School of Economics, and the National Science Foundation Law and Social

 

 Science Project); see State v. McCarthy, 156 Vt. 148, 155-58, 589 A.2d 869,
 873-75 (1991) (misconduct evidence can have an "incendiary" impact on the
 jury).
      The State sought to justify admission of the sexual history and
 violent behavior to prove "opportunity," "intent," "motive," and "plan."
 Defendant, however, did not put any of these factors in issue.  He did not
 argue that opportunity to abuse his daughter was lacking, for example,
 because he did not reside with her.  Nor did defendant concede that some
 contact had occurred, but his intent was innocent, for example, to check and
 care for his daughter's hygiene.  Instead, defendant categorically denied
 that any sexual abuse had ever occurred.
      We need not reach the reasons cited by the State for justifying
 admission of the evidence of uncharged sexual abuse because, in our view,
 the evidence was admissible for a purpose other than those articulated by
 the State.  The history of defendant's incestuous relationship with his
 daughter was particularly relevant because it supplied the context within
 which the charged incidents of sexual contact occurred.  The point of
 establishing the existence of an incestuous relationship was not to make an
 issue of defendant's general character for sexually abusing females of minor
 age.  Rather, the point was to establish specifically defendant's propensity
 to engage in sexual contact with his daughter as an object of his desire.
 See Baldridge v. State, 798 S.W.2d 127, 128 (Ark. Ct. App. 1990) (in cases
 of incest, character evidence is admissible under Rule 404(b) to show
 defendant's proclivity toward a specific act with a person with whom he has
 an intimate relationship).

 

      Child sexual abuse is "the involvement of dependent, developmentally
 immature children in sexual activities that they do not fully comprehend,"
 and incest is one form of sexual abuse usually "carried out under actual or
 threatened violence, or it may be nonviolent, even tender, insidious,
 collusive, and secretive."  R. Kingman & D. Jones, Incest and Other Forms
 of Sexual Abuse, in  The Battered Child 286 (R. Helfer & R. Kempe, eds.,
 4th ed. 1987); see also D. Bersharov, Recognizing Child Abuse 93-95 (1990)
 (describing family incest as pattern of behavior taking place over long
 period of time and which characteristically involves secrecy, denial, power
 imbalances, and isolation).  Allegations of a single act of sexual contact
 between parent and child, taken out of its situational context of secrecy,
 oppression, and recurrence, are likely to seem incongruous and incredible.
      The daughter's allegations of sexual contact on one night would have
 seemed incredible absent the context of a continuous sexual relationship
 with her father.  For some, any occurrence of incest is a difficult truth to
 grasp.  See also Apel, Custodial Parents, Child Sexual Abuse, And The Legal
 System:  Beyond Contempt, 38 Am. U.L. Rev. 491, 499 (1989) ("Despite the
 fact that an estimated twenty-two percent of Americans have been sexually
 abused as children, many people, including juries and judges, find it
 difficult to believe that it happens . . . .  [I]t is even more difficult to
 convince them that a seemingly 'ordinary' parent is capable of, much less
 guilty of, sexually abusing a child.") Jurors may believe that fathers
 ordinarily do not molest their daughters only once and that the child must
 not be telling the truth without evidence of a pattern.  D. Finkelhor, Child
 Sexual Abuse 93-94 (1984) ("That adults will sexually exploit a child is a

 

 disturbing fact for many people, and they often admit to having difficulty
 understanding why someone would do such a thing.").
      Defendant takes the position that evidence of uncharged misconduct must
 be excluded unless it is offered for one of the purposes specified in V.R.E.
 404(b) but no other.  This "exclusionary" view is followed to some extent.
 See Imwinkelried, supra, at 9 (exclusionary approach formerly dominant in
 three-fifths of states and majority of federal circuits but is now increas-
 ingly disfavored).  In our opinion, the language of V.R.E. 404(b) supports
 admitting character evidence for purposes in addition to those delineated
 as "motive, opportunity, intent, preparation, plan, knowledge, identity, or
 absence of mistake or accident."  V.R.E. 404(b).  Rule 404(b) allows evi-
 dence of uncharged misconduct for any purpose other than proving the defend-
 ant's bad character.  The list of admissible purposes is not exclusive and
 the phrase "such as" in the rule denotes an intent that the list be
 considered illustrative rather than exhaustive.  See State v. Robinson, 158
 Vt. 286, 289, 611 A.2d 852, 854 (1992) (list of permissible uses under
 V.R.E. 404(b) is illustrative, not exclusive); State v. Bruyette, 158 Vt.
 21, 27, 604 A.2d 1270, 1272 (1992) (evidence is admissible for "some other
 legitimate issue in the case").
      Defendant also argues that a pattern of misconduct with his daughter is
 inadmissible because it is not relevant to proving any of the elements of
 lewd and lascivious conduct, which are the commission of any lewd or lasciv-
 ious act upon a child under the age of sixteen with the intent of arousing
 or gratifying the actor's or child's sexual desires.  13 V.S.A. { 2602.  We
 held in a statutory rape case, however, that evidence of force was
 admissible even though it did not relate to any element of the crime

 

 charged.  State v. Searles, ___ Vt. ___, ___, 621 A.2d 1281, 1284 (1993).
 We explained that "[a]bsent the evidence [of force], the sexual episodes
 would have appeared incomplete.  The resulting gaps in the narrative would
 detract from its 'ring of truth.'  Simply put, the way the sexual activity
 happened was relevant to the credibility of the happening."  Id.  In
 Searles, the victim's allegations of rape might have seemed incredible
 absent the context of force because jurors might have believed that a
 fifteen-year-old girl "asks for it" when she chooses to drink beer and party
 in an isolated spot with two men she did not know.  See id. at ___, 621 A.2d  at 1282.
       The reasoning in Searles applies here.  Searles involved statutory
 rape in a forceful context.  This case involves lewd and lascivious conduct
 and sexual assault in an incestuous context.  As in Searles, our holding
 preserves the trial court's discretion to allow the victim to tell enough of
 the story to preserve its integrity as a credible one.  Accord People v.
 Wright, 411 N.W.2d 826, 828 (Mich. Ct. App. 1987) (sexual abuse victim's
 credibility is potentially undermined in eyes of jury when victim's
 testimony is limited to description of charged offense without reference to
 related misconduct).  Where the crime involves incest, the history is so
 interwoven with the crime, it cannot be separated without skewing the event
 made the subject of the charge.  The case depended on the daughter's
 credibility in describing their incestuous relationship.  The credibility of
 the daughter's description of that relationship depended on the whole
 pattern of her father's conduct toward her, and not on the integrity of any
 particular event.

 

      In a case like this there is less danger of the jury convicting
 defendant simply because it thinks he acted in conformity with his past
 conduct.  The victim of the crime charged was also the victim of the past
 uncharged behavior.  The daughter was either a credible victim of incest or
 not a victim at all.  The credibility in a case like this depends on which
 person, victim or perpetrator, is believed -- not so much whether one
 particular incident or another is true.
      The trial court also properly exercised its discretion by admitting
 defendant's history of violent acts in front of his daughter.  The evidence
 of defendant's temper rebutted the inference defendant had raised on cross-
 examination that his daughter only recently fabricated the allegations of
 sexual abuse by establishing that she lived in an atmosphere where any dis-
 loyalty to her father might prompt violent retaliation.  See, e.g., State v.
 Cardinal, 155 Vt. 411, 415, 584 A.2d 1152, 1155 (1990) (evidence that
 defendant physically attacked his seventeen-year-old daughter properly
 admitted to show he had "proprietary sexual interest" in her).
                                    II.
      Defendant contends the trial court wrongfully denied his motion to
 preclude an expert witness from testifying for the prosecution because she
 vouched for the daughter's credibility.
      The expert, a pediatric gynecologist, gave the daughter a gynecological
 examination shortly after the allegations of sexual abuse.  The examination
 produced findings of abnormal nicks on the daughter's hymenal ring.  The
 expert testified that although the nicks could have been caused by a
 straddle injury or a congenital defect, they were "more commonly seen in

 

 children who are sexually abused."  When asked if the nicks could have been
 caused by fondling, the expert replied as follows:
           You know, nobody's there at the time.  And when we do
           studies, nobody's there to see what actually happens.  I
           don't really know what fondling is.  I don't know what
           exactly happens when that happens.  When we look at a
           group of children who have been sexually abused, and
           under the rubric fondling, we can see these kinds of
           findings.

 At no time did the expert give an opinion as to whether the daughter
 actually was sexually abused, nor did the expert discuss the history the
 child had given her as part of the examination.  In fact, the expert
 expressly disclaimed any intention of testifying to a conclusion about
 whether the daughter was sexually abused by her father:
         Q.  And what do you do when you examine children in this
             setting; I mean, what's the purpose of your exam?
         A.  The purpose of my exam is to establish what they
             look like physically, basically.

         Q.  And you're not an investigator?
         A.  No, child sexual abuse is not a medical diagnosis,
             in my estimation.

         Q.  And is your purpose to decide whether this child is
             telling the truth?
         A.  No.

 On cross-examination by defense counsel, the expert testified:
         Q.  So again, there's absolutely no way that you can
             tell, based on the physical evidence alone, what
             caused it or when it was caused?
         A.  What I would say is in this clinical setting, you
             know, when I see someone who has been exposed to
             chicken pox and they come up with chicken pox, then
             I make an assumption that they are connected.  And I
             have a history, and I have a physical exam, so I
             assume a causal connection, but I can't prove it.  I
             don't know that it's the truth.

 Defendant's assumption that the expert's testimony imparted an opinion that
 there was a causal connection between the state of the daughter's hymenal

 

 ring and the sexual abuse she claims to have experienced is not borne out in
 the record.  At best, the expert's testimony was inconclusive.  Our previous
 cases are replete with descriptions of the dangers of unfair prejudice which
 inhere in permitting expert testimony in child sexual abuse trials, see,
 e.g., State v. Wetherbee, 156 Vt. 425, 431-34, 594 A.2d 390, 393-95 (1991);
 State v. Gokey, 154 Vt. 129, 140, 574 A.2d 766, 771-72 (1990); State v.
 Catsam, 148 Vt. 366, 371, 534 A.2d 184, 188 (1987), but we are not inclined
 here to read into the expert's testimony that she impermissibly vouched for
 the daughter's credibility.  See State v. Bubar, 146 Vt. 398, 401-02, 505 A.2d 1197, 1199 (1985).
      Affirmed.

                                    FOR THE COURT:



                                    _______________________________
                                    Associate Justice