State v. Sims

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-436


State of Vermont                             Supreme Court

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

Lee Sims                                     March Term, 1991



Joseph J. Wolchik, J.

Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
  General, and Elizabeth Zirkle, Law Clerk (On the Brief), Montpelier, and
  Phillips B. Keller, III, Washington County Deputy State's Attorney, Barre,
  for plaintiff-appellee

E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
  Montpelier, for defendant-appellant


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



     ALLEN, C.J.   Defendant was charged with committing two lewd and
lascivious acts upon a child under the age of sixteen on or about the summer
or fall of 1988, in violation of 13 V.S.A. { 2602.  He was found guilty
after trial by jury and appeals.  We affirm.
     On the basis of a single affidavit of probable cause, the state issued
two informations accusing defendant of lewd and lascivious conduct with a
child.  The two incidents of abuse occurred at the victim's grandmother's
house.  The first took place in the bedroom, after which the victim wrote a
letter to her parents reporting being raped and asking for help.  The second
occurred in the living room while defendant and the victim sat on the couch
watching television.
     Defendant requested assignment of counsel at his arraignment in
January, 1989.  The trial court appointed counsel to represent defendant at
a bail review hearing, but shortly thereafter defendant advised the court he
wished to represent himself.  After being informed of the complexity and
gravity of the charges against him, defendant agreed to utilize court-
appointed counsel on a consulting basis and signed a waiver-of-counsel form.
     The court granted the state's motion to videotape the testimony of the
victim and ordered appointed counsel to appear to assist in the cross-
examination of the victim.  With the court's permission, defendant left the
videotaping prior to the victim's testimony, instructing his counsel to
forego cross-examination.  At the next hearing, defendant reiterated his
decision to represent himself and signed a second waiver-of-counsel form.
Appointed counsel appeared for defendant during trial in a standby
capacity, occasionally arguing motions and questioning witnesses.
     At trial, the state called the investigating officer, a Department of
Social and Rehabilitation Services (SRS) caseworker, and a counselor on
contract with SRS.  All three testified to having substantial training and
experience in the area of child sexual abuse.  The counselor offered
testimony, which implied that the alleged abuse had in fact occurred, to
explain the victim's difficulty in talking about the incidents.  The officer
and the caseworker offered their opinions of the complainant's character
for truthfulness.  Defendant took the stand and consistently maintained his
innocence.  The jury returned guilty verdicts on both counts.
     Both a presentence investigation report (PSI) and a psychosexual
evaluation of defendant endorsed the maximum sentence of ten years based on
defendant's extreme denial respecting his offenses. The judge sentenced
defendant to consecutive terms of eighteen months to five years.
                                    I.
     Defendant's first assignment of error is that Linda Cope, who was
offered and accepted as an expert on child sexual abuse, impermissibly
commented on complainant's credibility.  We agree.
     Ms. Cope is a certified mental health counselor who worked under
contract with SRS to provide treatment for victims of sexual abuse and
their families.  In this capacity she first met with complainant in April
1989.  She has provided individual and group counselling to complainant
since that time.  The following testimony was elicited on direct examin-
ation:
         Q:  Miss Cope, what kind of psychological effect has the
         alleged abuse had on [complainant]?

         A:  Well, [complainant] was about eleven at the time the
         abuse occurred.  Now she's twelve and she's coming into
         puberty.  One of the things that happens to children of
         that age when they're sexually abused is that it creates
         a great deal of shame and embarrassment because it indu-
         ces trauma on the level of your developing body . . . .

         Q:  Would it be fair to say that in your opinion, the
         abuse is interfering with [complainant's] development?

At this point defendant objected on the ground that the abuse was still only
alleged, not proven, and should be referred to as such.  The court agreed,
and the questioning continued as follows:
         Q:  Would it be fair to say that the alleged abuse is
         interfering with [complainant's] development?

         A:  Yes. . . .

         . . . .

         Q:  You mentioned [complainant] has some negative
         feelings about herself as a result of the alleged abuse.
         Could you describe those feelings to the jury?

         A:  Well, I would call them -- it's shame.  It's
         basically shame.  She calls it embarrassment.  It
         precludes her ability to really, really talk about it in
         a way that will kind of help her see the issues clearly.
         She has a real hesitancy to talk about it.  When she
         began -- when she made her statement originally, the
         social workers all had to leave the room so that she
         could talk into the tape-recorder to tell the incident
         because she was so humiliated and felt so bad about it.
         And even while she was in the room all by herself, with
         the tape-recorder she still needed to whisper into the
         tape-recorder.  It was that kind of shameful experience.

         Q:  So it's difficult for [complainant] to talk about
         the alleged abuse?

         A: Yes.

     Defendant also claims error in two additional colloquies between the
prosecutor and Ms. Cope.  Having stated that complainant was able to dis-
tinguish between a "good" touch and a touch of an overtly sexual nature, Ms.
Cope was asked, "Does her recognition of the distinction have an impact on
the degree of her traumatization?," to which Ms. Cope responded affirmative-
ly.  When asked to give her opinion as to why complainant continued to go to
her grandmother's home "after the first incident of abuse," even though
defendant was still there, she responded:
         I mean, she was caught between a rock and a hard place.
         She needed to get to grandmother's, but there was also
         something else that was very difficult for her going on
         at grandmother's.

         . . . .

         . . . [Complainant] told what happened to her about the
         sexual abuse because she needed to stop it to make
         Gram's a safe place again for her.
                                    A.
     Expert testimony in a criminal child sexual abuse case is admissible to
help jurors understand "the emotional antecedents of the victim's conduct"
so that they "may be better able to assess the credibility" of the victim.
State v. Catsam, 148 Vt. 366, 369, 534 A.2d 184, 187 (1987).  It is improper
for the expert to give testimony that is "tantamount to a direct comment
that the complainant was telling the truth about the alleged sexual
assault."  Id. at 370, 534 A.2d  at 187.  Further, it is improper for the
expert to testify, on the basis of behavior exhibited by a complainant after
the alleged abuse, that the complainant is a victim of sexual abuse.  State
v. Gokey, 154 Vt. 129, 134, 574 A.2d 766, 768 (1990).  The overriding con-
cern with expert testimony in this type of case is that the jury will per-
ceive the expert as a "truth detector."  State v. Wetherbee, 2 Vt. L.W.
191, 193 (May 3, 1991).  This infringes on a defendant's constitutional
right to a jury trial, as it invades the exclusive province of the jury to
determine the credibility of witnesses.  Id. at 193; Gokey, 154 Vt. at 140,
574 A.2d  at 771; Catsam, 148 Vt. at 371, 534 A.2d  at 188.  It is also
suspect because of the substantial doubt that experts can make a reliable
determination of a sexual abuse complainant's credibility.  Wetherbee, 2 Vt.
L.W. at 193.  The fact that a complainant displays symptoms similar to those
displayed by children who have been sexually abused is not usually suffi-
cient to allow an expert to testify that that particular complainant has
been sexually abused.  Gokey, 154 Vt. at 134-35, 574 A.2d  at 772; accord
People v. Beckley, 434 Mich. 691, 722-23, 456 N.W.2d 391, 405 (1990)
(evidence of child sexual abuse syndrome "is not intended as a diagnostic
tool for detection of sexual abuse.  Thus, it has no probative value in
terms of being able to detect sexual abuse on the basis of the existence of
certain behavioral characteristics.").
     This proscription is not only on direct comments, but also on testimony
that is "tantamount to a direct comment." Catsam, 148 Vt. at 370, 534 A.2d 
at 187; accord State v. Batangan, 71 Haw. 522, ___, 799 P.2d 48, 52 (1990)
("[W]here the effect of the expert's opinion is 'the same as directly
opining on the truthfulness of the complaining witness,' such testimony
invades the province of the jury.") (quoting State v. Myers, 382 N.W.2d 91,
97 (Iowa 1986)).  Thus, in Catsam, the expert's negative response to the
prosecutor's question "Do children make up stories about sexual abuse as
part of the syndrome that you describe?" was held to be tantamount to a
direct comment that the complainant was telling the truth.  Catsam, 148 Vt.
at 368, 370, 534 A.2d  at 186, 187.  In Wetherbee, the expert related what
the child had told him about the abuse, including the name of the abuser.
2 Vt. L.W. at 193.  We stated that "[a]lthough the psychologist did not
explicitly voice his opinion that the victim was truthful, his testimony,
when viewed in context, gave the distinct impression that he believed her."
Id. at 194.  This impression of belief warranted reversal.  See Gokey, 154
Vt. at 137-38, 574 A.2d  at 770 ("[Expert's] graphic retelling of the child's
description of the events, her comments about the child's ability to dis-
tinguish truth from falsehood, and her conclusory remarks about 'this
victimization' were all beyond the pale . . . .").
     The questions posed by the prosecutor in this case could not be
answered without conveying the expert's belief that complainant was truthful
and sexual abuse had occurred.  For example, the prosecutor asked, "Miss
Cope, what kind of psychological effect has the alleged abuse had on
[complainant]?"  If Ms. Cope did not believe that sexual abuse had occurred,
she simply could not have answered this question.  Preceding "abuse" with
"alleged" does not save the question, because once the expert testifies as
to the psychological effect that has been caused, the abuse has been removed
from the realm of allegation to the realm of fact.  By answering the
question, Ms. Cope could not help but create the impression that she
believed complainant's account of the abuse.  As it was, Ms. Cope's answer
unmistakably stated that abuse had occurred:  "Well, [complainant] was about
eleven at the time the abuse occurred."  Ms. Cope responded affirmatively
when asked "Would it be fair to say that the alleged abuse is interfering
with [complainant's] development?"  Again, necessarily implicit in her
answer was that she believed complainant's account of the abuse.  This is
true of the other statements pointed to as erroneous by defendant.  This
testimony was improper.
     This case demonstrates the dangers, pointed to in Wetherbee, of
attempting to explain to the jury the emotional antecedents of a child
sexual abuse complainant's conduct through expert testimony concerning the
particular complainant.  Wetherbee, 2 Vt. L.W. at 194.  See also Gokey, 154
Vt. at 138 n.6, 574 A.2d  at 771 n.6 ("An obvious danger attending the use of
the expert's testimony is that throughout her interview with the child she
assumed the truth of the allegations underlying this trial.").  The conduct
of a child who has been sexually abused, and the emotional antecedents
underlying this conduct, can be effectively explained to the jury through
testimony relating to the class of victims in general.  See State v. Hicks,
148 Vt. 459, 462, 535 A.2d 776, 777 (1987) (explaining complainant's delay
in reporting abuse through expert testimony that delay is common); see also
State v. Moran, 151 Ariz. 378, ___, 728 P.2d 248, 252-55 (1986) (expert
testimony explaining the emotional antecedents of child sexual abuse
complainant's conduct should be generalized, not particularized); People v.
Roscoe, 168 Cal. App. 3d 1093, 1099, 215 Cal. Rptr. 45, 49 (1985) (expert
testimony permitted to rehabilitate complainant's credibility must be
limited to discussion of victims as a class); State v. Spigarolo, 210 Conn.
359, 380, 556 A.2d 112, 123 (1989) (expressing preference for "expert
testimony that seeks to demonstrate or explain in general terms the
behavioral characteristics of child abuse victims").  While we have not, as
yet, gone as far as these other jurisdictions in limiting particularized
testimony, see Gokey, 154 Vt. at 136-37, 574 A.2d 769-70, we have repeatedly
found use of particularized testimony to be error.  Expert testimony
concerning the particular complainant must be approached with caution, as it
too often slips into impermissible comment on the complainant's credibility.
                                    B.
     Defendant's objection at trial concerning omission of the word
"alleged" was not sufficient to preserve defendant's objection on appeal
that Ms. Cope impermissibly commented on complainant's credibility.  "'An
objection on one ground to the trial court does not preserve a claim of
error on appeal based on other grounds.'"  State v. Callahan, ___ Vt. ___,
___, 587 A.2d 970, 974 (1991) (quoting In re R.L., 148 Vt. 223, 227, 531 A.2d 909, 911-12 (1987)).  Accordingly, our review is limited to plain
error.  V.R.Cr.P. 52(b).  "Plain error will be found 'only in a rare and
extraordinary case where the error is an obvious one,' and only if the error
affects substantial rights of the defendant."  State v. Ross, 152 Vt. 462,
468, 568 A.2d 335, 339 (1989) (citations omitted).
     This Court has never found an expert's impermissible comment on a child
sexual abuse complainant's credibility to be plain error.  See, e.g., State
v. Calloway, No. 90-220, slip op. at 6 (Vt. July 19, 1991); Ross, 152 Vt.
at 467-70, 568 A.2d at 338-40; State v. Recor, 150 Vt. 40, 45-46, 549 A.2d 1382, 1386-87 (1988); State v. DeJoinville, 145 Vt. 603, 604-05, 496 A.2d 173, 174-75 (1985).  When the substance of the testimony in this case is
compared with that in the foregoing cases, it is difficult to conclude that
plain error was committed here.  In DeJoinville, no plain error was found
despite the fact that the expert expressly testified about the credibility
of child sexual abuse complainants.  145 Vt. at 604, 496 A.2d  at 174.  In
Recor, the expert stated that the consistency of a child's statements "gives
me a sense that what they are saying happened, happened."  150 Vt. at 45,
549 A.2d  at 1386.  In Ross, the expert not only detailed the complainant's
sexual activity with the defendant as told to her by the complainant, and
not only stated that young children do not fabricate stories of sexual
abuse, but also expressly concluded that the complainant had been sexually
abused by the defendant.  152 Vt. at 467-68, 568 A.2d  at 339.  In Calloway,
this Court denied defendant a new trial despite the fact that the expert
stated on cross-examination that "[c]hildren who make accusations of sexual
abuse are generally telling the truth."  Slip op. at 5.
     Here, the prosecution did not elicit expert testimony for the improper
purpose of commenting on complainant's credibility or stating that abuse had
occurred.  The error in Ms. Cope's testimony lay solely in the manner in
which it was adduced.  The prosecutor's questions and Ms. Cope's answers
implicitly assumed the truth of complainant's account of the abuse.  While
conveying the implicit assumption to the jury was error, this did not,
especially in light of the purpose for which the testimony was adduced,
amount to plain error.  Ms. Cope's testimony constituted only eleven of the
over two hundred transcript pages of trial testimony, five of which were
devoted to qualifying her as an expert.  Further, the parties did not repeat
or emphasize her testimony to the jury during closing arguments.  The lack
of emphasis is a proper consideration in finding no plain error.  See State
v. Bubar, 146 Vt. 398, 401, 505 A.2d 1197, 1199 (1985).
     We conclude that Ms. Cope's testimony was not plain error.
                                             C.
     Defendant also objects to testimony by Officer Whipple and SRS case-
worker Diane Dexter, who both testified to specialized training and
experience in the area of child sexual abuse.  Defendant made no objection
which limits our analysis to plain error.  Defendant takes issue with
Officer Whipple's testimony that when he first met with defendant, he told
him that he believed complainant and not defendant.  The trial court sua
sponte intervened at that point, expressed its concern with Officer Whipple
testifying as to believability, and instructed the jury to disregard the
testimony for that purpose.  We find no plain error requiring reversal.
See Calloway, slip op. at 6 (immediate curative instruction a factor in
finding no plain error).  Nor do we find plain error in Ms. Dexter's
explanation that complainant was placed in a foster home because her parents
failed to protect her by allowing her to go to the grandmother's house
"where the incidents had occurred."
     Defendant's more substantial contention is that the prosecutor com-
mitted plain error by eliciting opinions from these two witnesses, under
V.R.E. 608, that complainant's character was truthful after her character
for truthfulness had been attacked.  We agree that Rule 608 opinions by wit-
nesses such as these must be approached with caution.
     First, we recognize that where a witness knows a complainant only
through the case at trial, the witness's opinion that the complainant has a
truthful character is tantamount to an opinion that the complainant's
allegations in the case are true.  It is no longer an opinion as to the
complainant's character for truthfulness, but is an opinion as to the
complainant's truthfulness on this occasion.  If this is so, the witness's
opinion should be prohibited for failing to meet the foundational require-
ments of Rule 608.  See United States v. Dotson, 799 F.2d 189, 193-94 (5th
Cir. 1986) (excluding government agents' Fed. R. Evid. 608 opinions as to
defendant's character for untruthfulness where only basis for opinions was
their criminal investigation of defendant), discussed with approval in, 3 J.
Weinstein & M. Berger, Weinstein's Evidence ^ 608[04], at 608-26 (1988).
     Second, even if the foundational requirements are met, opinions as to a
complainant's character for truthfulness by witnesses such as these are
dangerous because such opinions are too easily taken for expert comment on
the credibility of the complainant's allegations.  Where the witnesses have
testified to specialized training and experience in the area of child sexual
abuse, and have applied this training to the case being heard, it is diffi-
cult to avoid the impression that their opinions as to a complainant's
character for truthfulness are expert opinions as to the truthfulness of the
complainant's allegations.  This impression can violate the spirit of Catsam
and its progeny, and should be avoided.
     Defendant did not, however, object to admission of these opinions, and
we cannot conclude that their admission was plain error.  The foundational
bases for the witnesses' opinions were left unexplored precisely because no
objection was made.  Defendant should not be able to capitalize on this
failure, and we will not consider the opinions erroneous because founda-
tional bases were not demonstrated.  Further, we do not consider the
infringement on Catsam and its progeny to be so obvious as to constitute
plain error.
                                    II.
                                    A.
     Defendant also argues that the two informations, supported by a single
affidavit, violated his state and federal constitutional rights to fair
notice of the charges against him.  Defendant did not object below to the
sufficiency of the informations.  "If the sufficiency of an indictment or
information is not questioned at the trial, the pleading must be held
sufficient unless it is so defective that it does not, by any reasonable
construction, charge an offense for which defendant is convicted . . . ." 1
C. Wright, Federal Practice and Procedure { 123, at 354-55 (2d ed. 1982)
(footnote omitted); see State v. Francis, 151 Vt. 296, 308-10, 561 A.2d 392,
399-400 (1989) (applying plain error analysis to sufficiency of information
where no objection was made below).  This inquiry is not answered, as the
State seems to contend, by the fact that defendant subjectively understood
the informations.  It is an objective inquiry.  State v. Phillips, 142 Vt.
283, 288-89, 455 A.2d 325, 328 (1982).  In determining the sufficiency of
the informations, we do not read them in isolation.  We consider the infor-
mations together with the accompanying affidavit of probable cause.  State
v. Stanislaw, 153 Vt. 517, 526, 573 A.2d 286, 291 (1990); State v.
Christman, 135 Vt. 59, 61, 370 A.2d 624, 626 (1977).  We cannot conclude,
under an objective inquiry, that the informations read together with the
affidavit were so defective that they did not, by any reasonable construc-
tion, give adequate notice of the charged offenses for which defendant was
convicted.
                                    B.
     Defendant argues that the court erred in failing to require the
presence of standby counsel at certain pretrial hearings.  Defendant was
represented by appointed counsel until he insisted on proceeding pro se
because, in his words, "I don't really feel that there's anybody really
qualified to represent me as well as I can myself."  Defendant did state, in
response to the court's warnings about the complicated nature of criminal
defense, that "as far as the ins and outs of the system is concerned, it may
be good for me to be able to counsel with someone as far as knowing which
moves to make and which moves not to make."  The court gave defendant the
option of having counsel sit in on hearings to assist him.  Defendant
responded:  "If we could take that kind of one step at a time.  I'm not
certain if that's something that I'd like to have done or not but it would
probably be good to have that option open."  The court then made the follow-
ing accommodation:  "If at anytime you wish to have [counsel] sit in for any
hearing, then I would suggest that you just simply give him a call and I'm
going to ask [counsel] in that instance to come to court."  Defendant never
availed himself of this option and did not have counsel present with him in
court until the videotaping of complainant's testimony and trial.
     "A criminal defendant does not have an absolute right to both self-
representation and the assistance of counsel.  Whether to allow hybrid
representation remains within the sound discretion of the trial judge."
United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981).  "[I]f the
district court ha[s] discretion to deny hybrid representation outright, it
ha[s] discretion, in granting defendant's request for hybrid representation,
to place reasonable limitations and conditions upon the arrangement."
United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989).  We will
reverse a trial court's discretionary decision only if its discretion was
totally withheld or exercised on grounds clearly untenable or unreasonable.
State v. Dorn, 145 Vt. 606, 616, 496 A.2d 451, 457 (1985).  We cannot con-
clude that the arrangement created by the court, allowing counsel to attend
the hearings should defendant request his presence, was an abuse of discre-
tion.  This was a reasonable accommodation of defendant's rights to self-
representation and assistance of counsel.  Further, the record indicates
that defendant was in communication with this counsel.  Defendant stated
that he consulted with counsel "from time to time," and that "he's been real
good."  The court did not err.
                                    C.
      Defendant argues that a core aspect of his right of self-represen-
tation -- the right "to question witnesses," McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) -- was abridged by the requirement that defendant ask his
questions of complainant through an attorney.  Defendant's argument fails
because he consistently disavowed any intent to question complainant.  When
the court asked defendant whether he was willing to have an attorney
question complainant, defendant responded:
           [The prosecutor] has implied that we had an interest
         in cross-examining [complainant], and it was pointed out
         very clearly in April that we had no such intention, and
         it's been mentioned most recently that we have no
         intention of questioning [complainant]. We have no
         questions to ask her whatsoever. . . .
         . . . .

           What I'm saying is, I don't have any interest in
         questioning [complainant].  I never have had any
         interest in questioning [complainant].

The court had to order defendant to appear at the taking of complainant's
testimony, and he left prior to his opportunity for cross-examination.
Defendant's right "to question witnesses" was not violated.  Further,
insofar as the right of self-representation encompasses "the jury's
perception that the defendant is representing himself," id. at 178, this
perception was not infringed upon here.  Counsel did not intrude on this
perception because he declined to conduct any cross-examination of complain-
ant, stating that defendant was appearing pro se and he was "going to
respect [defendant's] directions."
     Because of this factual background we need not, and do not, reach the
issue of whether requiring a pro se defendant to ask questions of a minor
victim through the voice of standby counsel is constitutional error.  We do
note, however, that the one relevant decision to date rejects such an argu-
ment.  State v. Taylor, 562 A.2d 445, 454 (R.I. 1989); cf. V.R.E. 807(d)
("Only the court and the attorneys for the defendant and for the state may
question the child.  In pro se proceedings, the court may modify the pro-
visions of this subsection relating to the role of the attorney for the
defendant.").
                                    D.
     Defendant argues, in the alternative, that appointed counsel was
ineffective because he did not cross-examine complainant.  When offered the
opportunity to cross-examine, counsel stated:

            I've been instructed by my client not to cross-
          examine, and it's my understanding that he is still
          appearing pro se in this matter, that I am at this
          deposition to protect his rights.  But based upon the
          fact that he is pro se, consequently his own counsel of
          record, I am going to respect his directions to me and
          not cross-examine [complainant] at this time.

"The pro se defendant must be allowed to control the organization and
content of his own defense . . . ."  McKaskle, 465 U.S.  at 174.  Counsel
acceded to defendant's express choice not to cross-examine complainant.
Such accedence may have been constitutionally required, and certainly is not
a valid basis for objection.
                                    E.
     Defendant's final contention is that the court's consideration, at
sentencing, of defendant's continued denial of his crime impermissibly
penalized his constitutional privilege against self-incrimination.  Both
the presentence investigation report and a psychosexual evaluation found
that defendant was in "an extreme degree of denial with respect to his
offense."  Defendant objected to consideration of his denial, asserting that
"I haven't acknowledged doing anything wrong from the beginning and I'm not
about to acknowledge doing anything wrong today.  I'm concerned about the
. . . State using the sentencing process as a lever to extort a confession."
The sentencing court considered
         the degree to which the defendant is willing to
         acknowledge whatever particular antisocial habits or
         drives that he or she may have, such that there's some
         belief that the person is amenable to some treatment so
         that the same kind of events are not going to happen in
         the future.

The court felt that probation would not be useful for defendant in his
present state of denial because "[t]here's absolutely no reason to believe
that [he would] function in any way on probation other than to continue
[his] manipulative denial."  The prosecutor testified that if defendant
discontinued his denial and admitted the nature of his offense, three years
would still be necessary to effectuate sex offender treatment.  Defendant
received consecutive sentences of eighteen months to five years on the two
counts.
     While we have not previously considered whether a defendant's denial of
guilt during the presentence phase may be considered at sentencing, in State
v. Noyes, 2 Vt. L.W. 289, 290-91 (1991), we held that the sentencing court
may consider the testimony and demeanor of the defendant during trial.  Once
a guilty verdict is reached, over a defendant's insistence of innocence, the
court may take "defendant's lying into account."  Id. at 291.  In the
present case, defendant actively maintained his innocence throughout the
trial and the presentence investigation.  Whether we label his statements
as "lying" or "denial," the sentencing court may properly consider a
defendant's refusal to acknowledge his crimes.  We discern no reason for
that court to distinguish between denial expressed at trial and denial
expressed during the presentence phase.
     A defendant's acceptance of responsibility for the offense, and a
sincere demonstration of remorse, are proper considerations in sentencing.
They constitute important steps toward rehabilitation.  Where they are
present, a reduction in sentence can be appropriate.  Likewise, denying this
reduction, where there are no acknowledgements, can be appropriate and does
not penalize a defendant's privilege against self-incrimination.  We "'are
unprepared to equate the possibility of leniency with impermissible punish-
ment.'"  United States v. Parker, 903 F.2d 91, 105 (2d Cir. 1990) (quoting
United States v. Henry, 883 F.2d 1010, 1011 (11th Cir. 1989) (per curiam));
accord United States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990).  If
we were to characterize the denial of a reduction as a penalty, it "would be
to say that defendants who express genuine remorse for their actions can
never be rewarded at sentencing.  This the Constitution does not require."
Henry, 883 F.2d  at 1012.  See also Brady v. United States, 397 U.S. 742, 753
(1970) (not unconstitutional to extend a benefit to defendant who demon-
strates a willingness to accept rehabilitation).  Defendant has not demon-
strated that the court did anything other than deny him a reduction, and,
accordingly, there was no violation of his privilege against self-incrimin-
ation.
     Affirmed.



                                        FOR THE COURT:




                                        Chief Justice



--------------------------------------------------------------------------------
                                     Dissenting



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, 111
State Street, Montpelier, Vermont 05602 of any errors in order that
corrections may be made before this opinion goes to press.

                                No. 90-436


State of Vermont                             Supreme Court

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

Lee Sims                                     March Term, 1991


Joseph J. Wolchik, J.

Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
  General, and Elizabeth Zirkle, Law Clerk (On the Brief), Montpelier, and
  Phillips B. Keller, III, Washington County Deputy State's Attorney, Barre,
  for plaintiff-appellee

E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
  Montpelier, for defendant-appellant


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


     MORSE, J., dissenting.   I respectfully dissent because several factors
prompt me to conclude that plain error was committed here.
     In my dissent in State v. Ross, 152 Vt. 462, 474, 568 A.2d 335, 342
(1989), I stated in describing the plain error doctrine:
         The first requirement recognizes that a trial judge
         cannot reasonably be expected sua sponte to correct an
         error unless the error is an obvious one.  The second
         requirement emphasizes only that an error will not be
         deemed plain unless it is very serious or very
         prejudicial.

     The Court fails to address why DeJoinville, Catsam, Hicks, Recor, and
Ross -- all decided before trial of this defendant in October 1989 -- did
not cause the analysis of expert-comment-on-victim-credibility, by then
sufficiently evolved, to be  recognized as plain error.  The Court's
reliance on these cases as precedents for absence of plain error is tanta-
mount to indelibly labeling this type of error never plain.  Evolution of
our case law in this area should make errors plain that once were not, and
the Court's approach reverses that evolution.
     I think that plain-error analysis is so fact-based that prior cases
about plain error are relatively weak indicators.  Therefore the decision
about plain error must turn largely on the facts of each case.  Here, the
Court does not address the evidence other than the forbidden testimony, and
gives no indication how prejudicial to defendant the inadmissible evidence
was in light of other evidence and how it might have affected the outcome.
I also believe that by "using an expert to bolster the credibility of the
complaining witness, the State [may] intrude[ ] on the core function of the
jury."  Ross, 152 Vt. at 475, 568 A.2d  at 343.  Here, the Court's reliance
upon prior cases is inadequate to assess the prejudicial effect of the
testimony of Linda Cope, Officer Whipple, and Diane Dexter upon this jury.
Further, this inadequacy is magnified because the Court underestimates the
effect of testimony recognized as "dangerous because . . . [it is] too
easily taken for expert comment on the credibility of the complainant's
allegations."  To determine the harmful effect of the inadmissible
testimony, the relevant facts must be analyzed.
     The child testified by videotape, telling the jury that at her
grandmother's house she was once molested in a bedroom by defendant
ejaculating onto her pants and another time on a couch when defendant rubbed
her backside under her clothes and attempted to touch her "private place."
The child said she felt sad and angry about these incidents and feared
defendant would do something bad again.
     The defendant took the stand, denied any wrongdoing and refuted details
of the State's case by saying he was at the grandmother's home as a cleaning
person and babysitter for the child.  Part of his role, he explained, was
to require the child to clean up after herself, go to bed early, and fold
her bedclothes, something  not required of her in her own home.  Describing
the child as "cold and vindictive," defendant claimed that his discipline
caused the child to become so upset that she lied about her relationship
with him.  Defendant denied that anything occurred in the bedroom and said
that the "couch" incident was merely an innocent massage, which the child
requested.
      Corroborating testimony, introduced to substantiate either the child's
or defendant's version of their relationship, included observations of the
child's mother that defendant would buy "practically anything [her] daughter
wanted."  The child's caseworker, Diane Dexter, stated that after the abuse
the child feared defendant.  The child's grandmother testified by deposition
that the child and defendant liked each other and were friends, downplaying
any physical incidents between them, and saying that the child often lied
and that her parents were angry with defendant because he would not bring
them alcohol.
     The Court's opinion describes other evidence, finding it to have
impermissibly bolstered the child's credibility.  The credibility-bolstering
testimony of Linda Cope, who the trial court acknowledged as an expert on
child sexual abuse, was given immediately after the jury viewed the taped
testimony of the child.  In addition to the testimony which the Court
outlined, the expert volunteered testimony that the child, "like many
children, would never have told something like that," and "usually kids
don't tell."
     The impermissible expert testimony of Linda Cope might, in itself, rise
to the level of plain error, especially in a case where no corroborating
witness observed the abuse.  See Ross, 152 Vt. at 465, 568 A.2d  at 337
(brother of victim an eyewitness to the sexual abuse).  Where additional
impermissible testimony is considered, however, little doubt remains that
defendant's chances of prevailing were greatly disadvantaged.
     Officer Whipple, who investigated the allegations, directly commented
on credibility by saying to the jury that he believed her and thought defen-
dant was lying.   Officer Whipple stated to the jury that "I have had . . .
in excess of 400 hours in specialized training in the investigation of child
abuse."  He went on to say, "I would estimate that I investigate on the
average of thirty to forty [child abuse cases] a year, and that would be
over the past five years."  Whipple then testified that he told defendant,
after questioning him at the Barre Police Department, "I did not believe . .
. what he was saying and that I believed what the child had told me."  The
court admonished the jury not to consider the officer's opinion about the
credibility of the child.  Yet, in the State's rebuttal the officer
testified, "I find her to be truthful."
     The child's SRS caseworker, Diane Dexter, was also recalled to testify.
Dexter testified that she had specialized training and experience in the
field of child sexual abuse investigation and case management.  When asked
whether she had an opinion about the child's honesty, Dexter commented, "I
believe that she's a very honest child."  When the witness was asked about
the child's state of mind, the Court cautioned: "I think it's a conclusion
that a person with this woman's experience with children can draw, but let's
understand that this is not an expert opinion.  This is the opinion of an
experienced person.  There's a difference."  The trial court was wrong -- an
opinion of an experienced person is an expert opinion.  See V.R.E. 702.
Here, the witness has expertise because of both experience and specialized
training.  The opinion of a person with this expertise must have a major
impact on the jury.  In short, Dexter's testimony on the complainant's
credibility was another significant factor impermissibly bolstering the
child's credibility.
     Finally, defendant represented himself.  We have recognized in the past
that this is a significant factor in plain error analysis, State v. Ayers,
148 Vt. 421, 426, 535 A.2d 330, 334 (1987) (high unlikelihood pro se
defendant would interrupt argument of prosecutor to object requires that
trial judge take extra care and a failure to do so contributes to a finding
of plain error).  The court's response to defendant's status as a pro se
litigant was insufficient in that it failed to keep inadmissible, highly
prejudicial evidence from the jury.
     The cumulative effect of the multiple errors, in my opinion, adds up to
plain error requiring retrial.  See State v. McCarthy, 2 Vt. L.W. 67, 70
(Feb. 22, 1991) (multiplicity of errors contributing to the same improper
impression of defendant relevant to plain error analysis).
     I would reverse and remand.  Justice Dooley joins in this dissent.





                                        Associate Justice