State v. LaBounty

State v. LaBounty  (96-180); 168 Vt. 129; 716 A.2d 1

[Opinion Filed 17-Apr-1998]
[Motion for Reargument Denied 29-Jun-1998]


       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. 96-180


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 3, Caledonia Circuit

Aime LaBounty                                     September Term, 1997



Shireen Avis Fisher, J.

       William H. Sorrell, Attorney General, David Tartter, Assistant
  Attorney General, and Laurie LeClair, Special Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.

       Charles S. Martin and Reggie Oh, Law Clerk (On the Brief), of Martin &
  Associates, Barre, for Defendant-Appellant.



PRESENT:   Dooley, Morse, Johnson and Skoglund, JJ., and Allen, C.J.
           (Ret.), Specially Assigned


       MORSE, J.   Defendant Aime LaBounty appeals his conviction of
  aggravated sexual assault against two pre-school girls in violation of 13
  V.S.A. § 3253(a)(8).  He contends the trial court erred by (1) denying his
  motion for severance; (2) admitting the victims' hearsay statements under
  V.R.E. 804a; (3) permitting the introduction of taped-recorded interviews
  of the victims; (4) not granting a mistrial based upon the prosecutor's
  improper questioning of a witness; (5) excluding an expert witness's
  testimony concerning sexual offenders; (6) denying a motion for acquittal
  based upon insufficient evidence; and (7) relying upon evidence of a prior
  uncharged sexual offense at sentencing.  We affirm.

       Defendant's wife, Lucy LaBounty, operated a day-care facility out of
  the home she shared with defendant in St. Johnsbury.  One day in February
  1995, Mrs. LaBounty left the daycare from 12:30 to 3:00 p.m. to deliver a
  cake to a "Home Dem" meeting, leaving four-year-old B.M.

 

  and two other children in the care of defendant.  Later that day, when
  B.M.'s mother Allison Bean picked her up, B.M. immediately exclaimed,
  "Mommy, don't tell my daddy or I'll never see him again."  When Ms. Bean
  asked what she meant, B.M. explained, "I sucked [defendant's] peepee
  today."  On further questioning the child elaborated as follows: "[H]e put
  it in my throat and it choked me and it hurt me."  Ms. Bean asked B.M.
  where Lucy LaBounty was at the time. She responded that Mrs. LaBounty was
  taking a cake to a friend's house.  B.M. also disclosed that defendant had
  told her not to tell, or she would never see her father again.

       Ms. Bean immediately took B.M to the house of a friend, Diane Bashaw. 
  B.M. recounted the same story she had told her mother, adding that the
  incident had occurred on the couch in the living room of defendant's house. 
  Later that evening, Ms. Bean related B.M.'s disclosures to her friend,
  Tammy Jones, whose four-year-old daughter S.J. had attended the LaBounty's
  daycare between May and October of 1994.  Alarmed, Ms. Jones asked S.J.
  whether defendant had ever showed her his "peepee."  She replied "no," then
  immediately stated, "he made me suck it."  S.J. told her mother that the
  other children were outside at the time of the incident, and that defendant
  had kept her inside because he didn't want her to catch a cold.  She
  explained that she had not said anything earlier because defendant told her
  not to.  The following morning, S.J. came into her mother's bedroom and
  told her that "yucky stuff" from defendant's peepee had "come out in her
  mouth."  Her mother had not asked S.J. any questions before this
  disclosure.

       The following day, B.M. was interviewed by an investigator for the
  Department of Social and Rehabilitation Services, Fran Neville, and an
  investigator for the State Police, Robert Van Damm.  B.M. recounted the
  same events to the investigators that she had spontaneously told her mother
  the day before, explaining that defendant had "stuffed his whole peepee" in
  her mouth. She recounted where the incident had occurred and where Lucy and
  the other children were at the time.  She also described the color of
  defendant's clothes at the time of the incident.  She denied that he had
  removed any of his clothes, but volunteered that he had "unzipped his
  pants."

       S.J. was also interviewed by an SRS caseworker, Katherine Bergeron,
  along with officer

 

  Van Damm.  Although hesitant and unresponsive to many of their initial
  questions, S.J. ultimately repeated the story she had earlier told her
  mother, adding that the incident had occurred in the LaBounty's bathroom,
  and that defendant had wiped the "yucky stuff" off with his shirt.

       Mrs. LaBounty testified that she regularly left the children in
  defendant's care when she went to meetings or appointments, and confirmed
  that she had left the house to deliver a cake at the time of the incident
  involving B.M.  Defendant also testified, acknowledging that he was with
  B.M. on the date in question, and that he had spent part of the time on the
  couch, with B.M.'s head on his lap while she slept.

       Defendant was charged with two counts of aggravated sexual assault
  against B.M and S.J., in violation of 13 V.S.A. § 3253(a)(8).  His first
  trial ended in a mistrial.  Upon retrial, he was found guilty by a jury of
  both counts and sentenced to two consecutive terms of five to twenty-five
  years, with all but 90 days of the sentence on the second count suspended. 
  This appeal followed.

                                     I.

       Before trial, defendant moved to sever the charged offenses, arguing:
  (1) that he was entitled to severance as a matter of right under V.R.Cr.P.
  14(b)(1)(A), and (2) that severance was necessary as a discretionary matter
  to achieve a "fair determination" of his guilt or innocence under V.R.Cr.P.
  14(b)(1)(B).  The trial court denied the motion.  Defendant thereafter
  reasserted the motion at the close of the evidence as required by V.R.Cr.P.
  14(b)(4)(C).  It was again denied.  He renews both claims on appeal.

       Two or more offenses may be joined for trial when the offenses "(1)
  are of the same or similar character, even if not part of a single scheme
  or plan; or (2) are based on the same conduct or on a series of acts
  connected together or constituting parts of a single scheme or plan." 
  V.R.Cr.P. 8(a).  When the offenses have been joined solely on the ground
  that they are of the same or similar character, the defendant is entitled
  to severance as a matter of right under

 

  V.R.Cr.P. 14(b)(1)(A).  State v. Carter, 156 Vt. 437, 440, 593 A.2d 88, 91
  (1991).  When the joined offenses represent a series of acts constituting
  parts of a single scheme or plan, the right to severance is not absolute,
  but turns upon a showing that severance is necessary to "achieve a fair
  determination" of guilt or innocence.  V.R.Cr.P. 14(b)(1)(B); See State v.
  Johnson, 158 Vt. 344, 351, 612 A.2d 1114, 1118 (1992).

       Defendant was not entitled to severance as a matter of right because
  the charged offenses were properly joined as "acts .  .  . constituting
  parts of a single scheme or plan."  V.R.Cr.P. 8(a)(2).  Although separated
  by a period of months, the assaults evinced a common objective, plan, and
  method.  Each of the assaults was upon a victim of tender years attending
  the same day-care center; each was made possible by defendant's exploiting
  his position of trust at the center; each occurred at the day-care center
  when defendant's wife was not on the premises and defendant was assured of
  privacy; each was followed by a warning to the child not to tell; and each
  appeared to follow a common pattern of defendant forcing his penis into the
  victim's mouth without prelude or warning, and with little or no
  discussion.

       As the trial court observed, the similarities between this case and
  Johnson "are striking." There, as here, the defendant was accused of taking
  advantage of a position of trust (camp counselor) to sexually exploit
  several minors.  There, as here, the "offenses were connected to each other
  in time and space, the profile of the victims, the relationship of the
  victims to defendant, and the opportunity presented to, and exploited by,
  defendant."  Johnson, 158 Vt. at 351, 612 A.2d  at 1118.  Thus, we affirmed
  the trial court's refusal to sever the offenses under V.R.Cr.P. 14(b)(1)(A)
  as a matter of right, holding that they were "not only the same or similar
  in character but also .  .  . constitut[ed] parts of a single `scheme or
  plan.'"  Id.

       Defendant notes that unlike Johnson the charged offenses here were
  separated in time by about four to nine months.  We have held that
  "temporal proximity is a prerequisite to admission in plan or scheme cases"
  in the context of admitting evidence of prior bad acts under V.R.E. 404(b). 
  State v. Winter, 162 Vt. 388, 396, 648 A.2d 624, 629 (1994).  We have also
  observed

 

  that there is no "hard-and-fast" rule regarding time limits, and that "the
  necessary proximity must vary with the circumstances."  Id. at 397, 648 A.2d  at 629.  Indeed, in Johnson we relied on People v. Epps, 176 Cal. Rptr. 332, 337-38 (Cal. Ct. App. 1981), which involved sexual assaults upon
  young victims that occurred seven months apart, and State v. Tecca, 714 P.2d 136, 138 (Mont. 1986), which concerned a series of sexual assaults
  against minors over a period of several years.  See Johnson, 158 Vt. at
  352-53, 612 A.2d  at 1119.  Moreover, we have recognized that a lapse of
  time between offenses may occur simply because "a defendant has lacked the
  opportunity to put a plan into effect."  Winter, 162 Vt. at 397, 648 A.2d 
  at 629.  That appears to have been the case here.  The first victim left
  the day-care center in October 1994 and thus became unavailable to
  defendant; several months later, he assaulted another child in the same
  place, in the same manner, followed by the same warning.  We thus conclude
  that the trial court correctly denied the motion for severance as a matter
  of right.

       We also reject defendant's claim that the trial court erred in
  refusing to sever the offenses as necessary to assure a "fair
  determination" of guilt or innocence under V.R.Cr.P. 14(b)(1)(B). It is the
  defendant's burden to demonstrate that severance is necessary under
  V.R.Cr.P. 14(b)(1)(B) "by `substantial evidence of prejudice.'"  State v.
  Venman, 151 Vt. 561, 567, 564 A.2d 574, 579 (1989) (quoting State v.
  Richards, 144 Vt. 16, 19, 470 A.2d 1187, 1189 (1983)). The decision is
  committed to the sound discretion of the trial court.  State v. Chenette,
  151 Vt. 237, 243, 560 A.2d 365, 370 (1989).

       We note at the outset that although defendant renewed the motion at
  the close of the evidence, which is required under V.R.Cr.P. 14(b)(4)(C) to
  avoid a waiver, he made no effort "`to show that the potential prejudice
  which his pre-trial motion claimed ha[d] actually occurred.'" Venman, 151
  Vt. at 566-67, 564 A.2d  at 578 (quoting Reporter's Notes to V.R.Cr.P. 14). 
  In renewing the motion, defense counsel indicated that her sole purpose was
  to preserve the issue; she cited no evidence and made no argument in
  support of the motion.  As we explained in Venman, the requirement that a
  motion for severance be renewed at the close of evidence was

 

  placed in the rule to give the defendant, and the trial court, the
  opportunity to reconsider the potential prejudice resulting from joinder
  "when the relevant facts are known."  Id. at 566, 564 A.2d  at 578.  "`By
  placing the burden upon the defendant to renew the motion, the standard
  permits the defendant to reevaluate the issue of prejudice and to elect to
  proceed with a consolidated trial despite the risk of prejudice. 
  Therefore, failure to renew the motion constitutes a waiver of any right to
  severance.'"  Id. at 567, 564 A.2d  at 578 (quoting  American Bar
  Association, Standards for Criminal Justice § 13-3.3(c), Commentary at
  13.41 (2d ed. 1988)).

       Even assuming that the issue was properly preserved, however, we do
  not find that the denial of a severance resulted in any prejudice to
  defendant at trial.  Evidence relating to both offenses would have been
  admissible in separate trials to show a common scheme or plan under V.R.E.
  404(b).  See State v. Beshaw, 136 Vt. 311, 313, 388 A.2d 381, 382 (1978)
  (severance denied where identical evidence would have been before jury in
  any event).  As previously discussed, the offenses revealed a common
  objective, plan, and method.  Therefore, as we explained in Johnson, "the
  common features of defendant's conduct, the settings, and the victims,
  would have permitted admission of the evidence under 404(b)."  158 Vt. at
  352, 612 A.2d  at 1119.  We note further that joinder did not inhibit
  defendant from testifying with regard to either of the charged offenses. 
  See id. at 353, 612 A.2d  at 1119 (no "undue prejudice" where defendant made
  no claim that "joinder infringed upon his right to testify with regard to
  one or more of the offenses").  We thus conclude that the trial court acted
  within its discretion in denying defendant's motion for severance under
  V.R.Cr.P. 14(b)(1)(b).

                                     II.

       Defendant next contends the trial court erred in admitting a variety
  of hearsay testimony under V.R.E. 804a.  That rule allows a witness to
  testify to hearsay statements made by a child ten years old or younger if
  the statements are offered in a sexual assault case where the child is an
  alleged victim, the statements were not taken in preparation for a legal
  proceeding, the child is available to testify, and the circumstances
  surrounding the statements show they are

       

       trustworthy.  V.R.E. 804a(a); State v. Fisher, ___ Vt. ___, ___, 702 A.2d 41, 43 (1997).  The trial court enjoys "great discretion in admitting
  or excluding evidence under the rule, and we will not reverse such
  decisions unless there has been an abuse of discretion resulting in
  prejudice." Id.

      Statements to Victims' Parents

       Defendant first challenges the court's finding that the victims'
  statements to their parents were trustworthy.  The sole basis of the claim
  is the trial court's observation that "the statements provide circumstances
  which are largely similar.  They interlock in some respects."  Defendant
  contends it was error to use the statements to "cross-corroborate each
  other."  See Idaho v. Wright, 497 U.S. 805, 822-24 (1990) (hearsay evidence
  used to convict must possess inherent indicia of reliability, not gain it
  by reference to other evidence).

       Although the court referred to the similarity of the statements, the
  bulk of its analysis focused on other factors including their freshness,
  spontaneity, internal consistency, and accuracy with respect to surrounding
  detail.  As the court explained, "the timing, the content and the
  circumstances of the statements provide strong indicia of trustworthiness. 
  .  .  . [T]here was much precision in the statements .  .  ., much detail
  and they were fresh."  As we observed in State v. Lawton, 164 Vt. 179, 190,
  667 A.2d 50, 59 (1995), "we do not deem mere mention of corroboration
  clearly erroneous."

      Statements to SRS and Police

       Defendant also contends that the court erred in admitting the victims'
  subsequent statements to the SRS investigators and the State Police
  officer.  He argues that the statements were inadmissible under 804a on the
  grounds that they: (1) were made in preparation for a legal proceeding, and
  (2) lacked sufficient indicia of trustworthiness.

       Statements to social workers and the police are not necessarily in
  preparation for a legal proceeding.  Indeed, as we observed in Fisher,
  statements taken by SRS investigators are generally "not to make a case
  against the accused, but to ascertain the reliability of the

 

  accusations so the child can, if necessary, be protected."  ___ Vt. at ___,
  702 A.2d  at 45. Similarly, statements taken by police officers "are often
  investigatory" in nature.  Id.   Thus, we have often determined that joint
  preliminary interviews by SRS and police investigators were taken primarily
  for purposes of investigation and protection rather than in preparation for
  legal proceedings.  See, e.g., Fisher, ___ Vt. at ___, 702 A.2d  at 45
  (interview by SRS investigator and Brattleboro police officer was
  investigatory in nature and thus childrens' statements were admissible
  under 804a); State v. Blackburn, 162 Vt. 21, 24-26, 643 A.2d 224, 225-26
  (hearsay statements to SRS caseworker and police officer were taken for
  purposes of investigation, not for preparation of legal action); State v.
  Duffy, 158 Vt. 170, 172-73, 605 A.2d 533, 535 (1992) (statement to SRS
  investigator with police detective present was primarily for investigation,
  not to make a case against the accused).

       The fact that statements are recorded and may subsequently be used in
  legal proceedings does not change their initial character as investigatory. 
  Duffy, 158 Vt. at 172, 605 A.2d  at 535. The fundamental question is
  whether, viewed objectively in the light of the totality of the
  circumstances, the statements were gathered primarily to prepare a legal
  action against the accused, or primarily to investigate the allegations. 
  Fisher, ___ Vt. at ___, 702 A.2d  at 45.

       The trial court's finding that the statements were not taken in
  preparation for legal proceedings was amply supported by the record.  Both
  interviews were conducted the day after the children made their initial
  disclosures.  The State Police investigator testified that it was his
  practice to attend SRS interviews so that the children were not compelled
  to give the same statement twice.  Thus, the timing and circumstances of
  the interviews support the conclusion that their purpose was to investigate
  the allegations and determine the need for intervention, not to prepare a
  criminal prosecution against defendant.  See id. at ___, 702 A.2d  at 45
  (interview with SRS investigator and police "within a week" of initial
  disclosures deemed investigatory in nature); Blackburn, 162 Vt. at 25, 643 A.2d  at 226 (interview with police after four preliminary SRS interviews
  still within "the investigatory stage"); In re M.B., 158 Vt. 63, 68, 605 A.2d 515,

 

  518 (1992) (three SRS interviews, two with police officers present, were
  conducted for investigatory purposes).  The trial court did not abuse its
  discretion in finding that the interviews had not been taken in preparation
  for legal proceedings.

       Defendant also contends that the statements lacked sufficient indicia
  of trustworthiness. As noted, both SRS interviews with the children were
  tape recorded and transcribed.  Having reviewed both tapes, the trial court
  found that they demonstrated ample indicia of reliability.  We agree. 
  Neither of the SRS interviewers had been informed of the details of the
  alleged abuse prior to the interviews, so neither was seeking to confirm
  any preconceived ideas of what the children should be disclosing. The
  childrens' statements were fresh, having occurred the day after their
  initial disclosures.  Each child stated that defendant had put his "peepee"
  in her mouth, and S.J. provided additional details about the assault.  Each
  child provided accurate information concerning peripheral details, such as
  defendant's appearance and clothing on the date of the incident, the
  interior of the house, Lucy LaBounty's activities on the day in question,
  and the rooms where the abuse allegedly occurred.  The timing and conduct
  of the interviews, and the overall consistency and detail of the childrens'
  statements, thus support the trial court's finding of trustworthiness.  See
  State v. Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988), cert.
  denied, 488 U.S. 995 (1988) (enumerating various factors court may consider
  in evaluating veracity of child's statement).

       Although defendant cites several seemingly contradictory responses by
  B.M. during the interview, our independent review of the record supports
  the trial court's finding as to the overall consistency and reliability of
  her statement.  Defendant also challenges the reliability of S.J.'s
  statement, asserting that it contained no specific details, that the SRS
  interviewer pursued a "preconceived notion" that S.J. had been abused and
  employed improper leading questions, and that S.J.'s mother improperly
  influenced her daughter's answers.  Although S.J.'s interviewer
  acknowledged that she was relatively inexperienced at conducting such
  interviews, and S.J. was hesitant and frequently nonresponsive throughout
  the interview, we perceive no likelihood that

 

  S.J.'s allegations were the product of undue coercion or suggestion. 
  Through direct and occasionally whispered responses to the SRS interviewer,
  who then repeated her answers, S.J. recalled defendant's appearance, the
  location of the other children during the incident, and the room where the
  abuse occurred.  She expressly reaffirmed her earlier spontaneous
  disclosure to her mother that defendant had put his "peepee" in her mouth,
  that he had made her "suck on it," and that "yucky stuff [had] come out." 
  She further volunteered that the discharge went into her mouth, and that
  defendant had wiped it off with his shirt.  We are thus satisfied that the
  trial court's finding as to the overall trustworthiness of the statement
  was not "clearly erroneous."  Id. at 348, 554 A.2d  at 225.

                                    III.

       Defendant next contends the trial court violated his confrontation
  rights by permitting the taped SRS interviews of B.M. and S.J. to be played
  to the jury shortly after defendant had commenced his case-in-chief. 
  Defendant claims that the timing of their admission somehow deprived him of
  the opportunity to confront and cross-examine the victims during the
  State's case.  The record reveals, however, that the State sought to
  introduce the tapes during its case-in-chief through its last witness,
  officer Van Damm.  Defense counsel thereupon objected on the grounds of
  relevance and authenticity, and the court deferred ruling, without
  objection, until after the State had rested and the defense case had
  commenced.  Thereafter, the court offered defense counsel the option of
  having the State's case reopened to have the tapes admitted, or to admit
  them during the State's rebuttal; the court also reminded counsel of her
  right to have the victims called to testify for the State under V.R.E.
  804a(b).  Defense counsel declined all of these options.  It is apparent,
  accordingly, that defendant waived any claim of error on appeal.

       Defendant also asserts that the introduction of the tapes
  impermissibly bolstered the State's case and deprived him of a fair trial. 
  The record shows, however, that defense counsel had attempted to impeach
  both the methods employed by the SRS investigators and their memories of
  the victims' statements.  The trial court was thus justified in ruling that
  the tapes

 

  were relevant and admissible to show the actual content, tone, and dynamic
  of the interviews. See id. at 348-49, 554 A.2d  at 225-26 (admission of
  hearsay testimony under 804a in addition to child declarant's own testimony
  was not unduly prejudicial or "prosecutorial overkill").

                                     IV.

       Defendant's remaining four claims are also without merit.  He contends
  that SRS investigator Bergeron impermissibly vouched for the credibility of
  S.J.  See State v. Gomes, 162 Vt. 319, 328, 648 A.2d 396, 403 (1994)
  (expert's comment on truthfulness of complaining witness may lend
  "`improper aura of special reliability'")(quoting State v. Catsam, 149 Vt.
  366, 371, 534 A.2d 184, 188 (1987)).  On cross-examination, defense counsel
  had assailed the investigator for failing to determine whether S.J. knew
  the difference between a truth and a lie. On redirect, the State asked the
  witness if she had done anything "to satisfy yourself that what you were
  getting was the truth."  She replied, "Yes."  Defense counsel immediately
  objected and moved for a mistrial.  The court denied the motion but gave
  the jury a curative instruction. Although defendant contends otherwise,
  this was adequate to preclude any possible prejudice; the objectionable
  comment was brief, the witness's limited experience had been thoroughly
  explored on cross-examination, and the court's response was immediate and
  unequivocal. Hence, we cannot conclude the court abused its discretion in
  ruling that defendant had not been prejudiced. See Johnson, 158 Vt. at 349,
  612 A.2d  at 1117.

       Defendant additionally contends that the court abused its discretion
  in excluding the testimony of an expert witness.  The defense had proposed
  to call Dr. Richard Hamill, a clinical psychologist, to testify about his
  work in treating sex offenders.  Dr. Hamill explained that he relied upon
  certain sex offender "profiles" to help "tailor treatment approaches" for
  convicted sex offenders and to assess the risks of recidivism; the profiles
  were not designed or used to determine whether the individual had committed
  the offense.  Dr. Hamill described a profile developed for offenders known
  as "acquaintance" abusers, i.e., offenders who knew their victims.
  According to this typology, child abuse typically progresses through five
  "stages;" first, the

 

  offender attempts to persuade the victim that sexual activity is
  acceptable; second, the offender engages the victim in progressively
  intrusive sexual "interactions," starting with inappropriate touching and 
  progressing to intercourse or oral sex; in the third, or "secrecy" phase,
  the offender attempts to persuade the victim to keep the sexual abuse
  secret; in the fourth, or "disclosure" phase, the sexual abuse is either
  purposefully or inadvertently disclosed; and in the final, or
  "suppression," stage the victim often attempts to recant the disclosure out
  of a sense of guilt. The trial court excluded the proferred testimony on
  the ground, among others, that its probative value was minimal and was
  substantially outweighed by its tendency to confuse the issues and mislead
  the jury.  See V.R.E. 403 ("Although relevant, evidence may be excluded if
  its probative value is substantially outweighed by the danger of unfair
  prejudice, confusion of the issues, or misleading the jury, or by
  considerations of undue delay, waste of time, or needless presentation of
  cumulative evidence.")

       The admissibility of expert evidence must be considered "in context
  with the general requirements of admissibility of relevant evidence
  contained in [V.]R.E. 402 and 403."  State v. Brooks, 162 Vt. 26, 30, 643 A.2d 226, 229 (1993).  The trial court is accorded broad discretion in
  balancing the factors in § 403, and its ruling will not be disturbed by
  this Court absent a showing of an abuse of that discretion.  See State v.
  Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996).  Applying this
  standard, we cannot say that the court abused its discretion in excluding
  the proferred testimony.  We have held, to be sure, that psychological
  "profile" evidence is admissible to "dispel misconceptions" about the
  behavior of victims of child sexual abuse.  State v. Gokey, 154 Vt. 129,
  133, 574 A.2d 766, 768 (1990).  We have also permitted the prosecution to
  introduce statistical evidence that the incidence of mental illness among
  child abusers is no no greater than the general population.  See State v.
  Valley, 153 Vt. 380, 384-89, 571 A.2d. 579, 581-83 (1989).  We stressed in
  Valley, however, that the evidence was offered to rebut a defense claim of
  insanity rather than to prove defendant's guilt by statistical probability
  or by association with other defendants.  See id. at 387, 571 A.2d  at 583;
  cf. State v. Percy, 146

 

  Vt. 475, 484, 507 A.2d 955, 960 (1986) (evidence that rapists typically
  claim either consent or amnesia inadmissible as irrelevant to what
  defendant claimed).

       We have not heretofore considered the admissibility of profile
  evidence concerning the the so-called "acquaintance" sexual abuser,
  although other states have addressed the issue.  Such evidence is generally
  offered by the prosecution to show that the defendant or the defendant's
  behavior matched a profile typical of such offenders.  See McCord,
  Syndromes, Profiles and Other Mental Exotica: A New Approach to the
  Admissibility of Nontraditional Psychological Evidence in Criminal Cases,
  66 Or. L. Rev. 19, 54-55 (1987).  In cases where the prosecution has
  succeeded in having such evidence admitted, appellate courts have
  overwhelmingly disapproved its use.  Id. at 55.  In State v. Braham, 841 P.2d 785, 787 (Wash. Ct. App. 1992), for example, the trial court admitted
  expert testimony to establish that the defendant had engaged in some
  conduct consistent with "grooming," a clinical term for the process of
  victimization described by Dr. Hamill in this case.  The court held that
  such evidence, "implying guilt based on the characteristics of known
  offenders is the sort of testimony deemed unduly prejudicial and therefore
  inadmissible."  Id. at 789-90.  Similarly, in Hall v. State, 692 S.W.2d 769, 770-71 (Ark. Ct. App. 1985) the trial court admitted expert evidence
  concerning the "psychological profile of a [child abuse] perpetrator"
  indicating that in a high percentage of cases the perpetrator is known to
  the victim, the offense occurs in the home of the child or perpetrator, the
  first offense is usually committed before the age of 40, and the child is
  told not to tell.  The court of appeals ruled that the evidence was unduly
  prejudicial and compelled reversal.  See id. at 773.  Other cases are to
  the same effect. See, e.g., State v. Clements, 770 P.2d 447, 453-54 (Kan.
  1989) (evidence that defendant "fit the profile of the typical child sexual
  offender" was unduly prejudicial and required reversal); State v. Petrich,
  683 P.2d 173, 180 (Wash. 1984) (potential for prejudice outweighed
  probitive value of evidence that high percentage of child-abuse crimes are
  committed by someone child knew).

       Here, we are not confronted with the typical case in which the
  prosecution attempts to

 

  prove guilt by showing that the defendant's behavior matched a sex offender
  profile. Accordingly, we need not rule on the general admissibility of such
  evidence in those circumstances.  In this case, the evidence was offered by
  defendant, apparently to buttress his claim of innocence by demonstrating
  that his behavior deviated in some respects from the norm. There had been
  no claim by the prosecution that defendant's behavior was consistent with
  the typical "acquaintance" offender, which defendant was merely attempting
  to rebut.  Nor was there any claim by the defense that the evidence was
  necessary to assist the jury to "dispel misconceptions" about the behavior
  of perpetrators.  Gokey, 154 Vt. at 133, 574 A.2d  at 768. In these
  circumstances, we are satisfied that the court acted within its broad
  discretion in declining to open the issue.  Had the evidence been admitted,
  for example, the prosecution could reasonably have adduced expert rebuttal
  evidence, and a side-trial could have ensued on whether and to what extent
  defendant's actions did or did not conform to the general profile.  The
  distraction from the main issue of defendant's actions in this case, the
  limited probative value as to defendant's guilt or innocence, and the
  potential for jury confusion and undue delay, all amply supported the trial
  court's discretionary ruling to exclude the evidence.

       Defendant next contends the evidence was insufficient to support the
  conviction, asserting that there was no independent corroboration of the
  victims' hearsay statements, and that the statements were not made in
  circumstances that were reliable.  He relies primarily on State v. Robar,
  157 Vt. 387, 395, 601 A.2d 1376, 1380 (1991), in which we held that the
  State could not meet its burden of proof if the sole evidence on which it
  relied was past recollection recorded or prior inconsistent statements,
  unless the statements met specific standards of reliability. Although we
  have not extended Robar's requirements to 804a hearsay statements, we need
  not address this issue, for as previously discussed the childrens'
  statements were fully trustworthy and reliable.  Viewing the evidence in
  the light most favorable to the State, and excluding modifying evidence, we
  conclude that the evidence fairly and reasonably supports a finding of
  guilt beyond a reasonable doubt. See id. at 391, 601 A.2d  at 1378.

 

       Finally, defendant asserts that the trial court improperly relied at
  sentencing on the testimony of defendant's adult daughter.  The court
  sentenced defendant to two consecutive terms of five to twenty-five years,
  but suspended all of the sentence on the second count except for ninety
  days, which he served immediately.  In imposing sentence, the court relied
  in part on the daughter's testimony, who stated that defendant had forced
  her to engage in oral sex when she was five years old, and had abused her
  again when she was twelve.  She explained that she had not recalled the
  abuse until she was eighteen (she was thirty-one at the time of the
  hearing), at which time she wrote her father a letter urging him to seek
  treatment.

       The evidence was plainly relevant to sentencing as it shed light on
  "the nature and propensities of the offender."  State v. Thompson, 150 Vt.
  640, 645, 556 A.2d 95, 99 (1989). Such evidence may include the testimony
  of other alleged victims.  State v. Drake, 150 Vt. 235, 236, 552 A.2d 780,
  781 (1988).  Defendant was afforded the opportunity to cross-examine the
  witness, and could have testified in rebuttal with guaranteed immunity if
  he had so desired.  See id. at 237, 552 A.2d  at 781.  Although defendant
  raises the specter of "recovered memory" testimony, that issue was never
  raised at the hearing, and no evidence on the subject was presented.  We
  find no error.

       Affirmed.

                                 FOR THE COURT:



                                 _______________________________________
                                 Associate Justice