State v. Noyes

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-200

State of Vermont                             Supreme Court

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

Frank W. Noyes                               February Term, 1991

John P. Connarn, J. (Ret.), Specially Assigned

Thomas M. Kelly, Deputy State's Attorney, Department of State's Attorneys,
  Montpelier, for plaintiff-appellee

Carlyle Shepperson, West Corinth, for defendant-appellant

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

     MORSE, J.   Defendant appeals his conviction by a jury for sexually
assaulting a fifteen-year-old girl, 13 V.S.A. { 3252(a)(3), raising numerous
claims, most of which merit little discussion.  We affirm.
     Defendant was accused of sexually abusing the victim by digitally
penetrating her.  The victim lived with her mother in defendant's house.
Evidence was introduced that in addition to the incident leading to the
charge, defendant had similarly assaulted the victim many times over the
course of years.
                                 I. Trial
     Defendant asked the court to exclude all expert testimony on post-
traumatic stress disorder (PTSD).  The court denied the motion, relying on
State v. Catsam, 148 Vt. 366, 369-70, 534 A.2d 184, 187-88 (1987), and
holding that the psychologist expert could testify about PTSD symptoms but
not that the victim was telling the truth about the assault.  In State v.
Gokey, 154 Vt. 129, 133-34, 574 A.2d 766, 768 (1990), we recognized that
profile evidence is properly admissible to explain the victim's delay in
reporting the abuse, recantation of the charges, and continued contact with
the alleged abuser.  In this case, the victim exhibited all these behaviors,
and defendant used them to impeach her credibility.  The court did not abuse
its discretion in allowing profile evidence for rehabilitation.  Defendant
asks that we overrule Catsam and Gokey and make all such profile evidence
per se inadmissible; we decline to do so.
     The expert on PTSD symptoms related the victim's account of the
alleged assault, including her identification of defendant as her abuser,
but he did not object.  He now asserts that the court committed plain error
by allowing this testimony.  We agree it was error but do not find plain
error.  State v. Ross, 152 Vt. 462, 468-70, 568 A.2d 335, 338-40 (1989).
The expert did not bolster the victim's credibility; she stated, "I can
only tell you what she told me," and "It's not up to me to decide if she was
abused or who abused her."  In addition, there was substantial evidence from
other witnesses of defendant's guilt.
     The trial court did not err in admitting evidence of prior instances of
sexual abuse.  On one occasion in 1981, while bathing the victim and her
cousin, defendant had put vaseline on his fingers and digitally penetrated
each of them telling them that he was doing it for "health reasons."  Also,
on numerous occasions between 1978 and 1987, he similarly assaulted the
victim.  All of the incidents of abuse, including the behavior that led to
the charge of sexual assault, stemmed from activity occurring when the
victim and her family lived in defendant's home.  The basis for the charge
was that defendant entered the victim's bedroom, removed her clothing,
applied vaseline to his fingers, and inserted them into her vaginal opening,
telling her that he was trying to determine if she was pregnant.
     The evidence of prior abusive behavior was offered to rebut defendant's
theory that the victim fabricated the charged incident after attempting sex
with her boyfriend, that is, to confirm the perpetrator's identity, and his
distinctive pattern of abusive conduct (child victims, digital penetration,
use of vaseline, purported "health reasons").  V.R.E. 404(b) (evidence of
wrongful activity may "be admissible . . . as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident").  The trial court properly weighed the evidence under V.R.E. 403
(probative value weighed against unfair prejudice).  State v. Derouchie, 153
Vt. 29, 34-35, 568 A.2d 416, 418 (1989) (abuse of discretion standard
presents a heavy burden and is "difficult to satisfy").
     Defendant has failed to show that the trial court abused its discretion
in: (1) denying a last-minute request for a continuance to investigate two
prior claims of sexual misconduct made by the victim, where defendant made
no offer of proof other than speculation that this pattern of claims showed
that the victim's accusations were false; (2) limiting defendant's cross-
examination of the victim regarding one of these allegations, as cumulative
evidence, V.R.E. 403 (probative value weighed against cumulative evidence),
after defendant had thoroughly pursued his theory that the victim had a
pattern of false abuse accusations, cross-examining her for more than eight
hours, including numerous questions about other prior sexual misconduct
allegations; (3) denying defendant's request, made with scant
justification, to have his own expert conduct a psychological examination of
the victim, see State v. Ross, 152 Vt. at 466-67, 568 A.2d  at 338 (proper
to deny "reciprocal discovery" unless need is apparent); and (4) refusing to
grant a mistrial after a witness stated, under the defense's own persistent
questioning about why she was concerned about defendant's presence in the
victim's household, that defendant "had been charged before."  See State v.
Chambers, 144 Vt. 377, 380-81, 477 A.2d 974, 977 (1984) (fact that defendant
"opened the door" may be considered in denying motion for a mistrial).
                              II. Sentencing
     Defendant sought to expunge from the presentence investigation report
all statements that he continued to deny guilt, arguing that this was an
appropriate exercise of his fifth-amendment right not to incriminate him-
self and that he should not in effect be punished for it.  Defendant
portrays himself on the horns of a dilemma: if he did not admit guilt, he
could be punished for lack of remorse; if he admitted guilt, he could urge
the court to give him a lighter sentence but his confession might be used
against him at retrial if he prevailed on appeal.
     Defendant's dilemma is illusory because he misses a critical point.
This is not a case where defendant remained silent at trial.  Defendant took
the stand on his own behalf and adamantly insisted under oath he was
innocent.  In response to questioning by his own attorney, "Do you deny this
accusation that you sexually assaulted [the victim]?," he responded, "I do."
At first he testified that he had put vaseline on the victim's vagina as
treatment for her skin condition; later on cross-examination he denied ever
putting vaseline on her vagina, though he admitted putting it on other parts
of her body.  He denied ever inserting his fingers into the victim's vagina.
In addition, he attempted to shift the blame to the victim's boyfriend, who,
defendant claimed, had raped her on three separate occasions.
     Defendant was found guilty because the jury did not believe him.  His
testimony and demeanor at trial are proper factors to consider in
sentencing.  United States v. Grayson, 438 U.S. 41, 50 (1978).  In
particular, "defendant's truthfulness or mendacity while testifying on his
own behalf, almost without exception, has been deemed probative of his
attitudes toward society and prospects for rehabilitation and hence
relevant to sentencing."  Id.  Consequently, if the sentencing judge
believes that a defendant lied on the stand, even if no formal charge of
perjury has been pursued, the sentencer may take defendant's lying into
account.  Id. at 53-54.
     The present case is distinguishable from those where defendant has pled
guilty or nolo or where he has gone to trial but not taken the stand.  See
State v. Gleason, 154 Vt. 205, 211-12, 576 A.2d 1246, 1249-50 (1990)
(defendant who pleads guilty or nolo may invoke fifth amendment privilege
against self-incrimination to prevent possible sentence enhancement); State
v. Cox, 147 Vt. 421, 423, 519 A.2d 1144, 1145-46 (1986) (same).  In those
cases, defendant had not placed his version of the crime on the record prior
to sentencing and sought to avoid giving incriminating details about it.
       In this case the damage defendant complains about was done at trial,
not during the presentence investigation.  As a practical matter, defendant
had no dilemma at all.  He had incentive not to change his story because by
admitting guilt he could only have confirmed what the sentencer may have
already suspected -- that he lied at trial.  A statement of awakening
repentance after trial would more likely have been perceived, given
defendant's testimony, as cynically self-serving.  Under these
circumstances, defendant's speculation that admitting guilt at the eleventh
hour would have resulted in more lenient sentencing is unrealistic.
     Defendant's other objections to information included in the presentence
investigation report are without merit.  He has failed to show that facts
underlying a 1952 conviction for lewdness were "materially inaccurate" or
that the court abused its discretion by relying on them.  State v. Chambers,
144 Vt. at 384, 477 A.2d  at 949 (burden on defendant to demonstrate that
information relied on at sentencing is inaccurate or inappropriate).
     Defendant also failed to show that the court abused its discretion in
refusing to strike a statement made by the state's psychologist expert that
if defendant were determined to be a "sadistic pedophile," he would be
difficult to treat.  Defendant objected on the grounds that the statement
was not a fact but an opinion, and that the opinion was unreliable because
the expert had never examined him, but the court adequately answered these
objections by indicating that it would not consider the statement to be a
diagnosis of defendant.
                                        FOR THE COURT:

                                        Associate Justice