State v. Tester
Annotate this Case
State v. Tester (2003-538); 179 Vt. 627; 895 A.2d 215
2006 VT 24
[Filed 08-Mar-2006]
ENTRY ORDER
2006 VT 24
SUPREME COURT DOCKET NO. 2003-538
OCTOBER TERM, 2004
State of Vermont } APPEALED FROM:
}
v. } District Court of Vermont,
} Unit No. 1, Windham Circuit
Dwight Tester, Sr. }
} DOCKET NO. 539-4-03 Wmcr
Trial Judge: Karen R. Carroll
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant Dwight Tester, Sr., appeals from his conviction for
aggravated sexual assault following a jury trial. He asserts that the
trial court erred in admitting hearsay statements of the putative victim
pursuant to Vermont Rule of Evidence 804a because the statements lacked
sufficient indicia of trustworthiness, and they were taken in preparation
of legal proceedings. Even assuming that the hearsay statements were
properly admitted, defendant argues, the evidence was insufficient to
support his conviction. Defendant also maintains that the trial court
committed reversible error by allowing an investigator from the Department
of Social and Rehabilitation Services (SRS) to testify that the victim's
actions were "typical" of an abused child, thereby bolstering the victim's
credibility. We reject these arguments, and affirm.
¶ 2. In April 2003, defendant was charged with aggravated sexual
assault after allegedly inserting his finger into the genital opening of
his daughter, D.T., born in May 1995. (FN1) The State later added a charge
of lewd and lascivious conduct with a child. By motion, the State
indicated its intent to introduce D.T.'s hearsay statements at trial, and
pursuant to V.R.E. 804a, the court held a pre-trial hearing to determine
the statements' admissibility.
¶ 3. The following evidence was presented at the hearing. Joanne
Gaffron-Hargrove testified that she had been D.T.'s therapeutic foster
mother for approximately four months. On the morning of April 17, 2003,
Ms. Gaffron-Hargrove informed D.T. that her visit with defendant had been
cancelled, to which D.T. replied "good." D.T. stated that she hated
defendant because he had asked her if Ms. Gaffron-Hargrove and her husband
had "touched" her. Ms. Gaffron-Hargrove asked D.T. if she meant a "bad
touch," and D.T. replied, "Yes, a bad touch." When Ms. Gaffron-Hargrove
asked D.T. if defendant had ever touched her, D.T. replied that he had, but
she was not supposed to talk about it. Ms. Gaffron-Hargrove testified that
when D.T. made this statement, her head went down, she did not maintain eye
contact, and her body slumped.
¶ 4. D.T. later explained to Ms. Gaffron-Hargrove that she had
been sleeping on a blow-up bed, and she heard defendant enter the room.
Defendant knelt by the bed, and touched her vagina. When Ms.
Gaffron-Hargrove asked D.T. if she had told anyone about the incident, D.T.
replied that she had not told defendant's girlfriend, Amanda, because she
"didn't want Amanda to leave." Ms. Gaffron-Hargrove explained to D.T. that
they needed to report the incident, and D.T. replied, "Let's go right
now." Ms. Gaffron-Hargrove testified that this reaction differed from past
instances when D.T. had been caught telling lies.
¶ 5. Ms. Gaffron-Hargrove contacted SRS, and Janet Melke, an SRS
investigator, subsequently contacted Detective William Hoyt of the Bellows
Falls Police Department. Later that afternoon, Ms. Melke and Detective
Hoyt interviewed D.T. at the SRS office. At the beginning of the
interview, D.T. indicated that she understood the difference between the
truth and a lie. After a series of questions, D.T. stated that she
wouldn't feel safe staying with defendant. When asked why, D.T. became
withdrawn, dropped her head, and replied that she didn't remember. D.T.
acknowledged telling Ms. Gaffron-Hargrove that someone had done something
to her that she did not like. When Detective Hoyt asked D.T. who she was
talking about, D.T. became withdrawn, and said that she did not remember.
D.T. later indicated that she was talking about defendant.
¶ 6. As a reprieve from direct questioning, Detective Hoyt asked
D.T. to draw a picture of herself and her family. He then directed the
conversation back to the alleged assault. Detective Hoyt asked D.T. to
tell him about the incident; D.T. wanted Ms. Gaffron-Hargrove to speak on
her behalf. Detective Hoyt testified that it was difficult to get beyond
this back and forth, so he asked D.T. to identify statements made by Ms.
Gaffron-Hargrove as true or false. Detective Hoyt wrote "Tell me a lie
first" on a piece of paper, which he showed only to Ms. Gaffron-Hargrove.
Ms. Gaffron-Hargrove then told a lie, which D.T. immediately identified as
false. Ms. Gaffron-Hargrove then stated that D.T. had revealed to her that
she did not want to visit defendant because he had touched her in a bad
way. D.T. responded to this statement by saying, "That's the truth, that's
what I had told Joanne this morning."
¶ 7. D.T. indicated that she had been touched with a "bad touch."
When Detective Hoyt asked her what part of her body had been touched, D.T.
stated that she did not want to say the word. Instead, she wrote down
"V-G-I-N-U." When Detective Hoyt asked D.T. what word she was spelling,
D.T. quietly said "vagina." Detective Hoyt asked D.T. who had touched her
vagina, and she wrote down "dad." Detective Hoyt sought to confirm D.T.'s
understanding of the word vagina, and he asked D.T. to identify the
location of a vagina on a Barbie doll. D.T. asked if she could instead
identify it on the picture that she had previously drawn, and she circled
her sister's groin area. Detective Hoyt testified that D.T. made it very
clear that she was talking about her own vagina.
¶ 8. Detective Hoyt asked D.T. if she could tell him what
happened, and she indicated that she wanted to write it down. D.T. wrote
"He came into my 'R'," and then drew an arrow to the picture of herself
lying in a bed. Detective Hoyt asked D.T. what happened when defendant had
come into her room, and she wrote "He touched my vagina," although she
spelled vagina as "V-G-I-A," and spelled touch as "T-U-S-H." Detective
Hoyt confirmed that D.T. meant to say "he touched my vagina." D.T.
indicated that defendant had touched her under her underpants. Detective
Hoyt asked D.T. if she remembered whether the touch was inside or outside
of her vagina. D.T. wrote down the word "in." D.T. then told Detective
Hoyt that defendant had told her to go to bed and close her eyes. A few
minutes later, he came into the room and knelt down beside her bed. She
was on an air mattress, and he touched her vagina with his hand. D.T.
explained that she knew it was defendant, although her eyes were closed,
because his work boots made a lot of noise while he walked.
¶ 9. Detective Hoyt asked D.T. if she had told anyone else about
this incident, and she said that she had not. He then asked her if she had
discussed it with Amanda, and D.T. stated that she had not because she was
afraid that Amanda would leave. Detective Hoyt testified that D.T. told
him she was relieved to have talked about the incident, and she appeared
relieved as well. At the end of the interview, Detective Hoyt asked D.T.
if she remembered their conversation about truth and lying, and he
confirmed with D.T. that she had told him the truth. Ms. Melke did not
testify to the substance of D.T.'s interview, without objection, after the
court indicated that her testimony would be repetitive.
¶ 10. At the close of the hearing, the court concluded that D.T.'s
hearsay statements were admissible under Rule 804a(a), and it made findings
on the record. The court found that D.T. was under the age of ten and that
her statements were offered in a sexual abuse case where she was the
putative victim. The court explained that the "time, content and
circumstances of the statements" provided substantial indicia of
trustworthiness. It rejected the argument that the interviews had been
leading. As the court explained, D.T.'s initial disclosure had been made
in a secure setting to someone she trusted. Her statements after the
initial disclosure were internally consistent as to where the incident
occurred, how it occurred, where defendant had touched her, and why she had
not told defendant's girlfriend about the incident. The court found that
D.T.'s body language was consistent with how she was feeling-her head was
down and her body was slumped. The court recognized that D.T. had had a
problem with lying in the past, but it found that D.T.'s behavior in this
case was completely different from instances in which she had been caught
lying. Additionally, the court explained, D.T.'s lies in the past had not
implicated others.
¶ 11. The court found that the interview at SRS had been conducted
properly. As the court explained, D.T. had a difficult time expressing
what had happened to her, but once she began talking about the incident,
her statements were consistent. D.T. indicated her ability to distinguish
between the truth and a lie, and the court found nothing to indicate that
her statements were untrustworthy merely because they had been written
down. Indeed, the court found that this made them even more trustworthy in
light of D.T.'s age. The court therefore concluded that D.T.'s statements
possessed sufficient indicia of reliability. Turning to the requirement
that statements not be "taken in preparation for a legal proceeding," the
court explained that the fact that an SRS investigator or police officer
interviewed a child did not necessarily mean that the resulting statements
were gathered in preparation for a legal proceeding. The court also
rejected defendant's assertion that D.T.'s statements must be excluded
because there were ongoing family court proceedings at the time that the
statements were taken. Thus, having found that the requirements of Rule
804a(a) were satisfied, the court found D.T.'s hearsay statements
admissible at trial.
¶ 12. Ms. Gaffron-Hargrove, Ms. Melke, and Detective Hoyt testified
to D.T.'s hearsay statements at trial. At the close of the State's case,
defendant moved for a judgment of acquittal, asserting that his presumption
of innocence could not be overcome by D.T.'s hearsay statements because she
had a problem with lying. The court denied defendant's motion, finding the
evidence sufficient to support a guilty verdict.
¶ 13. D.T. testified after being called by defendant. She stated
that defendant had hurt her. When asked how, she testified that she did
not remember. D.T. acknowledged that she had told Ms. Gaffron-Hargrove
that defendant had touched her vagina. She reiterated that defendant had
touched her, but testified that she did not know how he had touched her.
Defendant testified on his own behalf, denying that he had sexually
assaulted D.T. At the close of the evidence, defendant renewed his motion
for judgment of acquittal, which the court denied. The jury found
defendant guilty of both charges against him, although, at the State's
request, the court entered a finding of guilty only on the aggravated
sexual assault charge.
¶ 14. In a post-judgment motion for judgment of acquittal,
defendant asserted that the evidence did not support his conviction because
D.T. had testified only that defendant had touched her vagina, and touching
without intrusion was insufficient to sustain an aggravated sexual assault
conviction. The court denied the motion, explaining that although D.T. had
not discussed penetration while testifying, the jury had the Rule 804a
statements that she had made to other witnesses prior to trial. The court
found that these statements were properly considered by the jury as
substantive evidence and they provided a sufficient basis for a guilty
verdict on the aggravated sexual assault charge. This appeal followed.
¶ 15. We begin with defendant's assertion that the trial court erred
in admitting D.T.'s hearsay statements. (FN2) Rule 804a 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 abuse 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 "time, content and
circumstances of the statements provide substantial indicia of
trustworthiness." V.R.E. 804a(a)(1)-(4). The trial court "has 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." State v. Fisher, 167 Vt. 36, 39, 702 A.2d 41, 43
(1997).
¶ 16. Defendant first argues that D.T.'s statements should have
been excluded because they lacked sufficient indicia of reliability.
According to defendant, D.T.'s initial disclosure resulted from a series of
leading questions. Additionally, defendant argues, D.T.'s history of lying
rendered her statements suspect. As to the SRS interview, defendant
maintains that Ms. Gaffron-Hargrove, rather than D.T., disclosed what
occurred and D.T.'s remaining statements were made in response to leading
questions. Defendant also asserts that there was an inconsistency in the
written reports of Detective Hoyt and Ms. Melke, which further demonstrates
that D.T.'s statements were unreliable and should have been excluded.
¶ 17. The trial court concluded otherwise, and it made numerous
findings in support of its conclusion. We need not reiterate all of the
court's findings here. We note, however, that the court specifically found
that neither interview was leading, and it rejected defendant's assertion
that D.T.'s statements should be excluded because she had lied in the past.
In support of its conclusion, the court explained that D.T.'s initial
disclosure had been made to someone she trusted, in a place where she felt
safe. Her subsequent statements were consistent with her initial
disclosure. Her body language reflected how she was feeling, and her
behavior differed from past instances where she had been caught lying. The
court's findings are supported by the record, and they support the court's
conclusion that D.T.'s statements possessed sufficient indicia of
reliability so as to be admissible under Rule 804a. See State v.
Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988) (this Court will
uphold trial court's finding that hearsay statements are trustworthy under
Rule 804a(a)(4) if finding is supported by credible evidence in the
record); see also Kanaan v. Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131
(1995) (recognizing that trial court's findings are entitled to wide
deference on review because trial court is in unique position to assess the
credibility of witnesses and weigh the evidence presented).
¶ 18. We reject defendant's assertion that an alleged
inconsistency in the written reports of Ms. Melke and Detective Hoyt
regarding what D.T. was wearing during the alleged assault undermines the
trial court's conclusion that D.T.'s statements possessed sufficient
indicia of reliability. First, it is not apparent that the statements
identified by defendant are necessarily inconsistent. More importantly,
defendant did not raise this argument during the Rule 804a hearing, and,
indeed, Ms. Melke's report was not admitted into evidence at the hearing,
nor did she testify at the hearing regarding D.T.'s interview. Even
assuming that the reports contain an inconsistency, it would not undermine
the court's conclusion, based on numerous findings, that D.T.'s statements
exhibited sufficient indicia of trustworthiness so as to be admissible
under Rule 804a. We find no abuse of discretion.
¶ 19. We turn next to defendant's assertion that the trial court
erred in finding that D.T.'s statements to Detective Hoyt and Ms. Melke
were not taken in preparation for a legal proceeding. According to
defendant, the primary purpose of the SRS interview was to bring criminal
charges against him, not to protect D.T. Defendant also notes that SRS
contacted police in the jurisdiction where the act allegedly occurred,
which he maintains is evidence that SRS had already determined that a crime
had been committed.
¶ 20. To determine if a child's statements were taken in
preparation for a legal proceeding, "we must look to the totality of the
circumstances to determine whether the interviews were primarily to
investigate the allegations or primarily to prepare legal action against
the accused." Fisher, 167 Vt. at 42, 702 A.2d at 45. On review, "the
factual circumstances as interpreted by the trial court must govern," and
we will not disturb them unless they are clearly erroneous. State v.
Blackburn, 162 Vt. 21, 24, 643 A.2d 224, 226 (1993). Here, the trial court
properly concluded, based on the totality of the circumstances, that D.T.'s
statements were not taken in preparation for a legal proceeding.
¶ 21. As defendant acknowledges, the commencement of an SRS
investigation "does not necessarily trigger the commencement of legal
proceedings, even though the investigation often results in criminal
charges against an accused." Id. at 24, 643 A.2d at 225. This is because
SRS investigations serve the primary purpose of protecting children, not
gathering evidence to incriminate or exonerate suspects. Id. at 24, 643
A.2d at 225-26; see also Fisher, 167 Vt. at 42, 702 A.2d at 45 ("The focus
of an SRS investigation is not to make a case against the accused, but to
ascertain the reliability of the accusations so the child can, if
necessary, be protected."). Similarly, the participation of police
officers during the interview process does not necessarily indicate that a
child's statements were gathered in preparation for a legal proceeding.
See Blackburn, 162 Vt. at 24, 643 A.2d at 225-26 (recognizing that
"statements taken by police officers are often investigatory"). As we
explained in Blackburn, it is "reasonable to have the police investigate
directly and not base criminal action on SRS's merely telling the police
about the child's statements." Id. at 25, 643 A.2d at 226.
¶ 22. Defendant maintains that the primary purpose behind the SRS
interview in this case could not have been D.T.'s protection because D.T.
was already in SRS custody and her visits with defendant were supervised.
We reject defendant's premise that, just because a child is in SRS custody,
the primary purpose of an interview cannot be investigatory. In this case,
at minimum, if D.T.'s claims were substantiated, supervised visitation with
defendant would cease. We also find no merit in defendant's assertion that
because SRS contacted the police in the appropriate jurisdiction, D.T.'s
statements were necessarily taken in preparation for a legal proceeding.
This argument is belied by our case law, and by the totality of the
circumstances present in this case. In Fisher, as in this case, SRS
investigators contacted police in the jurisdiction where the abuse had
allegedly occurred, and requested assistance with the investigation. 167
Vt. at 42, 702 A.2d at 45. We found this act to be additional evidence
that the subsequent interview conducted by police and SRS was
investigatory. Id. We see no reason to conclude otherwise here.
¶ 23. We have previously held that statements derived from a
child's fourth interview with SRS investigators and police, which was
conducted at the police station and videotaped, were not taken in
preparation for legal proceedings. Blackburn, 162 Vt. at 25, 643 A.2d at
226. We have also held that statements gathered during a child's initial
interview with SRS and police, which was held within a week of the initial
disclosure to SRS, were not taken in preparation for a legal proceeding.
Fisher, 167 Vt. at 42, 702 A.2d at 45. Even more compelling, in this case,
D.T.'s statements were derived from her first interview with police and SRS
investigators, and the interview occurred on the same day as D.T.'s initial
disclosure to Ms. Gaffron-Hargrove. The totality of the circumstances in
this case supports the conclusion that SRS and police were investigating
D.T.'s allegations at the time of her interview, not preserving her
statements for an anticipated legal proceeding. Cf. Blackburn, 162 Vt. at
25, 643 A.2d at 226 ("Where the child's testimony against a potential
defendant is clear and consistent and further interviews simply repeat or
preserve what has already been said, the only reasonable view may be that
preparing legal proceedings was the primary focus."). We therefore find no
abuse of discretion in the court's determination that D.T.'s statements to
Ms. Melke and Detective Hoyt were admissible under Rule 804a.
¶ 24. Defendant next asserts that the court erred in denying his
motion for judgment of acquittal because, even assuming that D.T.'s hearsay
statements were properly admitted, they were insufficient to establish his
guilt. Defendant argues that D.T.'s hearsay statements cannot support his
conviction because they were unreliable, there was no corroborating
evidence presented at trial, and, to the extent that he was able to
cross-examine D.T., her response was almost uniformly "I don't know," or "I
don't remember." In support of his assertion, defendant relies on State v.
Robar, where we held that the State could not meet its burden of proof in a
burglary case where the sole evidence on which it relied was past
recollection recorded or prior inconsistent statements, unless those
statements met "specific standards of reliability." 157 Vt. 387, 395, 601 A.2d 1376, 1380 (1991).
¶ 25. We review the trial court's denial of a motion for judgment
of acquittal to determine if "the evidence, when viewed in the light most
favorable to the State and excluding any modifying evidence, fairly and
reasonably tends to convince a reasonable trier of fact that the defendant
is guilty beyond a reasonable doubt." State v. Delisle, 162 Vt. 293, 307,
648 A.2d 632, 641 (1994) (internal quotations and alterations omitted). We
find the evidence sufficient to support defendant's conviction here.
¶ 26. To prove defendant's guilt of aggravated sexual assault under
13 V.S.A. § 3253, the State needed to show that defendant engaged in a
sexual act with D.T., which in this case required proof of an intrusion,
however slight, by any part of defendant's body into D.T.'s genital
opening. The State met its burden of proof. At trial, Detective Hoyt
testified that D.T. wrote down the word "in" when asked where defendant had
touched her vagina.
¶ 27. Defendant maintains that D.T.'s hearsay testimony was
nonetheless insufficient under Robar to support his conviction. We
rejected a similar argument in State v. Cameron, 168 Vt. 421, 424-26, 721 A.2d 493, 496-97 (1998). In that case, defendant was charged with three
counts of aggravated sexual assault, and one count of lewd and lascivious
conduct with a child. The State's evidence at trial consisted largely of
Rule 804a hearsay testimony, although the child-victims also testified. As
in this case, one of the children's trial testimony was insufficient to
support the aggravated sexual assault charges, but the child's hearsay
statements sufficed. Id. at 424-25, 721 A.2d at 496-97. We upheld
defendant's conviction.
¶ 28. In reaching our conclusion, we noted that the defendant did
not challenge the reliability of the hearsay statements, nor his ability to
cross-examine the child at trial. Id. at 424-25, 721 A.2d at 496. We
concluded, nonetheless, that the Rule 804a hearsay statements bore
sufficient indicia of reliability to support the defendant's conviction.
Id. at 425, 721 A.2d at 497. As we explained, the child's interview at SRS
occurred shortly after her initial disclosure of the incident; the trial
court found that the interview had been conducted in a highly professional
manner, without suggesting answers or content; the child's statements were
consistent with statements that she had made to others; and the child
responded in age-appropriate language, which suggested that she had not
been coached or coerced. Id. at 425, 721 A.2d at 496-97. Additionally, we
explained that the alleged improper contact that the child described during
the interview was corroborated at that time by her gestures and
demonstrations with anatomically correct dolls. Id. at 425, 721 A.2d at
497. Finally, we found that defense counsel had had an adequate
opportunity to cross-examine the child regarding her failure to recollect
the sexual contact that she had described to the SRS interviewer. Id. We
therefore found the evidence sufficient to fairly and reasonably support
defendant's guilt beyond a reasonable doubt. Id.
¶ 29. We are faced with an analogous situation here. Although
defendant argues that D.T.'s statements are unreliable, the trial court
found otherwise. As previously discussed, this finding is supported by
credible evidence in the record. Cf. State v. LaBounty, 168 Vt. 129,
142-43, 716 A.2d 1, 10 (1998) (declining to address defendant's argument
that Rule 804a hearsay evidence was insufficient to support conviction
under Robar based on trial court's finding, which was supported by the
evidence, that children's statements bore sufficient indicia of
trustworthiness under Rule 804a(a)(4)). We have not required that
corroborating evidence exist before Rule 804a hearsay statements may be
used as direct evidence of a defendant's guilt. See Cameron, 168 Vt. at
425-26, 721 A.2d at 497 ("[S]urely [Rule 804a] must be allowed to support a
conviction when the child's in-court testimony is insufficient to establish
the elements of the offense. Otherwise, the only time it would apply would
be when it was needed least-when the child was able to describe the abuse
in court."). In any event, as in Cameron, D.T.'s description of the
alleged assault was corroborated at the time by her drawings and her
written statements. Finally, as in Cameron, defendant here had an adequate
opportunity to cross-examine D.T. regarding her inability to remember the
details of the assault that she had described during the SRS interview.
Thus, viewing the evidence in the light most favorable to the State, and
excluding modifying evidence, we conclude that the evidence presented at
trial fairly and reasonably supports a finding of defendant's guilt beyond
a reasonable doubt. We therefore find no error in the trial court's denial
of defendant's motion for judgment of acquittal.
¶ 30. Finally, we turn to defendant's assertion that the court
committed reversible error by allowing Ms. Melke to testify that D.T.'s
actions were "typical" of children who had been abused by someone close to
them, thereby bolstering D.T.'s credibility and reliability. Defendant
maintains that this testimony undercut the jury's function as a factfinder.
¶ 31. We disagree. The record shows that defense counsel asked Ms.
Melke if D.T. had shown affection to defendant, if she was afraid of him,
or if D.T. had given any indication that she hated defendant. On redirect
examination, the State asked Ms. Melke to describe the type of emotions
that an abused child might exhibit. Defendant objected, arguing that
expert testimony was required. The State responded that defendant had
implied that if D.T. had been abused, she would not have behaved
affectionately toward defendant. The court overruled defendant's
objection, explaining that Ms. Melke had already testified to her
experience in investigating these kinds of cases and had already given
opinions about what was usual and unusual in such cases. The court found
the State's line of questioning appropriate as defense counsel had asked
how D.T. behaved around defendant. Ms. Melke then testified that children
who have been abused by a parent exhibit a range of emotions, and D.T.'s
actions were "typical." Ms. Melke explained that during supervised
visitation, D.T. would sometimes be affectionate with defendant and at
other times did not want to have anything to do with him.
¶ 32. The court's admission of this testimony does not constitute
reversible error. "What is prohibited is an expert going beyond merely
relating the victim's account under Rule 804a and vouching for the
declarant's credibility." Fisher, 167 Vt. at 44, 702 A.2d at 46. Ms.
Melke's statement that children who have been abused by a parent exhibit a
range of emotions, and that D.T.'s actions were "typical," is not a direct
comment on D.T.'s credibility. See State v. Catsam, 148 Vt. 366, 369-70,
534 A.2d 184, 187 (1987) (recognizing that expert testimony regarding
profile or syndrome evidence in child sexual assault cases can assist the
jury in understanding the evidence, and finding it within the trial court's
discretion to admit such evidence in appropriate circumstances); see also
State v. Hicks, 148 Vt. 459, 462, 535 A.2d 776, 777 (1987) ("The behavioral
patterns of child victims of sexual abuse are generally not known to the
average juror and are therefore a proper subject for expert testimony.").
This case is not like Catsam, where we found error in the court's admission
of expert testimony that children who suffer from post-traumatic stress
disorder generally do not lie about being abused. 148 Vt. at 370-71, 534 A.2d at 187-88. Ms. Melke did not vouch for D.T.'s veracity, nor did she
act as an "ultimate truth detector." See State v. Weeks, 160 Vt. 393, 400,
628 A.2d 1262, 1265-66 (1993) (finding plain error where expert went "far
beyond merely relating the victim's account of the abuse," and acted as
"ultimate truth detector" by both implicitly and explicitly vouching for
victim's story) (internal quotations omitted). We find no error.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. The State also initially charged defendant with a violation of
conditions of release under 13 V.S.A. § 7559(e), but dismissed this charge
before trial.
FN2. In a pro se brief, defendant asserts that D.T.'s hearsay statements
should have been excluded because their admission violated his
confrontation rights, citing Crawford v. Washington, 541 U.S. 36 (2004).
Crawford is inapposite because D.T. testified at trial. See id. at 59 n.9
("The [Confrontation] Clause does not bar admission of a statement so long
as the declarant is present at trial to defend or explain it.").
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