State v. Leggett

State v. Leggett  (93-202); 164 Vt 599; 664 A.2d 271

[Filed 28-Jun-1995]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 93-202

                              MAY TERM, 1995


State of Vermont                     }          APPEALED FROM:
                                     }
                                     }
     v.                              }          District Court of Vermont,
                                     }          Unit No. 2, Chittenden Circuit
                                     }
Darryl Leggett                       }          DOCKET NO. 4338-9-91CnCr


                    In the above-entitled cause, the Clerk will enter:

         Defendant Darryl Leggett appeals his jury conviction of sexual
assault of his fourteen-year- old stepniece in violation of 13 V.S.A. 
3252(a)(3).  On appeal, defendant claims that the trial court erred by
permitting expert testimony regarding the delayed reporting of sexual abuse
by child victims.  Defendant also claims that the trial court erred by
precluding him from introducing extrinsic evidence of the victim's alleged 
prior false accusations.  We affirm.

         It is well-settled in Vermont that experts in child sexual abuse
cases are not permitted to comment directly on their personal perceptions or
beliefs regarding the credibility of the child victim.  See, e.g., State v.
Weeks, 160 Vt. 393, 399-400, 628 A.2d 1262, 1265-66 (1993).  The role of an
expert in child sexual assault cases is 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 complaining witness.'"  State v. 
Wetherbee, 156 Vt. 425, 432, 594 A.2d 390, 394 (1991) (quoting State v.
Catsam, 148 Vt. 366, 369, 534 A.2d 184, 187 (1987)).  We do not permit the
expert to usurp from the jury its role as fact-finder, and we will reverse a
conviction if the expert's testimony is "tantamount to a direct comment that 
the complainant was telling the truth."  Catsam, 148 Vt. at 370, 534 A.2d  at 
187.

         In this case, the expert's testimony was well within this standard.  
The expert testified that children who are sexually abused by a family
member are more likely to delay reporting the incident than are children who
are abused by strangers.   The expert noted that children fear the
disruption to family relationships created by their revelation, and that
many experience feelings of shame and guilt.  The expert did not state that
the victim in this case was truthful, nor did he comment on her veracity in
any way.  Indeed, this expert never met or interviewed the victim.  See
Wetherbee, 156 Vt. at 433, 594 A.2d  at 394 (danger that expert testimony
will intrude upon province of jury heightened when expert has personally
examined victim).  Instead, he merely testified to his belief that delayed
reporting is common among children abused by abused by family members.  The
expert's testimony about delayed reporting was proper.

         Defendant also argues that the trial court impermissibly limited
his cross-examination of the victim by precluding him from introducing
extrinsic evidence to establish that the victim had made prior false
accusations of sexual assault.  Defendant sought to introduce a police
report in which the victim claimed that she was molested by another man in a
separate incident, but which was not prosecuted because the victim's mother 
did not believe that the incident had occurred.  Defendant argues that the
report was admissible under Vermont's rape shield statute, 13 V.S.A.  
3255(a)(3)(C) (evidence of specific instances of complaining witness's past 
false

 

allegations admissible), and under either V.R.E. 608(b) (specific instances
of conduct admissible to attack witness's credibility), or 404(b) (prior bad 
acts admissible to show motive, intent or plan).

         As a threshold matter, defendant failed to make a sufficient
showing that the victim's prior allegations were, in fact, false.  
Defendant's only offer of proof was the police report, but without more, the 
mere fact that the allegation was not prosecuted does not show that the
allegation was false.   See State v. Ross, 152 Vt. 462, 471-72, 568 A.2d 335, 341 (1989) (court justified in excluding evidence of victim's prior 
accusations against other alleged abusers where defense counsel conceded
that he did not know whether allegations were in fact false).  Because
defendant failed to make any demonstration that the prior allegation was
false, the rape shield statute barred admission. See id. at 471-72, 568 A.2d 
at 341.

         Defendant's contention that V.R.E. 608(b) permits the introduction 
of extrinsic evidence to attack the credibility of a witness, directly
contravenes the rule and cannot be supported. Rule 608(b) clearly states
that "[s]pecific instances of the conduct of a witness, for the purpose of 
attacking . . . his credibility . . . may not be proved by extrinsic
evidence."  (Emphasis added.)  There was no error under this rule.

         With respect to Rule 404(b), defendant's trial counsel vaguely 
suggested that the falsity of the victim's allegation might be shown as a 
prior bad act, but apparently withdrew the argument on learning that the
allegations against the other man came after the alleged sexual assault by
defendant.  We conclude that the rule 404(b) claim was not preserved.

         Affirmed.




                                   BY THE COURT:


                                   ________________________________________
                                   Frederic W. Allen, Chief Justice


                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice


                                   ________________________________________
                                   John A. Dooley, Associate Justice


                                   ________________________________________
                                   James L. Morse, Associate Justice


                                   ________________________________________
                                   Denise R. Johnson, Associate Justice
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