State v. Kinney

Annotate this Case
State v. Kinney (99-122); 171 Vt. 239; 762 A.2d 833 

[Filed 13-Oct-2000]


       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. 99-122


State of Vermont	                         Supreme Court

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

Steven L. Kinney	                         December Term, 1999


Ben W. Joseph, J.

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

Lisa B. Shelkrot of Langrock Sperry & Wool, Burlington, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   Defendant Steven Kinney was convicted by a jury on
  charges of kidnapping,  aggravated sexual assault, and lewd and lascivious
  behavior.  He was sentenced to two concurrent  terms of forty-years-to-life
  imprisonment and one concurrent term of four-to-five-years  imprisonment. 
  On appeal he argues that (1) the trial court erred in refusing to instruct
  the jury on  diminished capacity as a result of intoxication, (2) there was
  insufficient evidence to support the  conclusion that defendant had the
  mental state required for conviction of each crime, and (3) the trial 
  court erred in admitting expert testimony about rape trauma syndrome. 
  Defendant also appeals the  length of the sentence imposed, claiming that
  it violates his constitutional right to due process and 

 

  that the judge imposed it without statutory authority.  We affirm both the
  jury verdicts and the  sentence.

       According to the testimony presented at trial, defendant committed the
  offenses during the   night of October 9, 1998.  He began drinking with
  friends around 6:00 p.m., and according to his  testimony, consumed at
  least twelve beers during the course of the evening.  He also used,
  together  with some friends, three grams of cocaine and two "bowls" of
  marijuana.  One of his friends testified  that defendant appeared
  intoxicated.  Defendant admitted during cross-examination that "[his] 
  faculties would have been fairly clouded given the amount of coke, alcohol
  and pot [he] had  consumed over the course of the evening."  

       At some time after 1:00 a.m, defendant and three friends drove to the
  home of Lucas  Sweetser, hoping to buy some more cocaine.  When they
  arrived, defendant went into the home and  emerged a short time later,
  carrying the victim over his shoulder.  He put her in the back seat of the 
  car, and they drove away.  The testimony as to what happened inside the
  house is conflicting.   Defendant claims he found Sweetser and the victim
  asleep in bed.  The victim happened to wake up,  and they began to talk. 
  The victim said she might be able to help him find some drugs to buy.  When 
  his friends pressed him to leave, defendant picked up the victim, put her
  over his shoulder, and  carried her to the car.  According to defendant,
  the victim was giggling, and went in the car willingly. 
 
       The victim testified that she did not go with defendant willingly. 
  She testified that when  defendant woke her, he asked her to come with him,
  but she refused.  Defendant then pulled her out  of bed and threw her over
  his shoulder.  She resisted, but defendant carried her out of the house and 
  put her in the backseat of the car.  According to the victim, she
  repeatedly said she did not want to go  with them and asked to be let out
  of the car.

       Once they were all back in the car, defendant and his friends gave up
  on finding more 

 

  cocaine.  Instead, they went back to the house where they had been earlier,
  and all five people,  including the victim, drank more beer and smoked
  marijuana.  Defendant and one of his friends  testified that the victim got
  out of the car and walked into the house ahead of them, of her own 
  volition.  The victim testified that defendant pulled her into the house by
  her arm, and another of  defendant's friends testified that defendant
  dragged her into the house "like a puppy dog."  The  victim also testified
  that she drank the beer and smoked the marijuana because she did not want 
  defendant and his friends to think she was scared.  

       Eventually, the party broke up, and the victim went with defendant to
  his house, where he  lived with his parents, because he offered to drive
  her home from there.  According to defendant's  testimony, he planned to
  ask his parents to drive her home, but when they got there, he decided it 
  was too late to wake his parents.  He and the victim got into bed, where
  "one thing led to another,"  and they had consensual sex.  The victim, on
  the other hand, testified that when they got to  defendant's house, he took
  her to his room and raped her.  Afterwards, she fell asleep.  In the 
  morning when she woke up, she asked to be taken home, and he arranged for a
  friend to give her a  ride.

       Defendant first argues that the trial court erred in refusing to
  instruct the jury on diminished  capacity as a result of intoxication.  The
  issue was raised first by the trial court at the charge  conference, but
  defense counsel indicated that he did not want such an instruction.  He
  reconsidered  and later told the court that he did want the instruction. 
  By this time, the charge had been drafted,  and the court said the new
  request was too late.  Defense counsel formally objected to the lack of an 
  intoxication instruction following the delivery of the charge to the jury. 
  He did not argue in the  closing argument that defendant did not have the
  requisite intent for any of the charges because of his  intoxication.

       Intoxication may affect a person's ability to form the mental state
  requisite for conviction of 

 

  certain crimes.  "When specific intent is an element of a crime, evidence
  of either voluntary or  involuntary intoxication may be introduced to show
  that the defendant could not have formed the  necessary intent." State v.
  Joyce, 139 Vt. 638, 639-40, 433 A.2d 271, 272 (1981); see also State v. 
  Barrett, 128 Vt. 458, 461, 266 A.2d 441, 444 (1970).  Where there is
  evidence of intoxication such  as to negate the requisite criminal intent,
  the court should normally instruct the jury that it may  consider the
  intoxication evidence as bearing on intent.  See  State v. Smith, 136 Vt.
  520, 528, 396 A.2d 126, 130 (1978) (instruction on diminished capacity
  should be given where the evidence  supports it and where appropriate);
  State v. D'Amico, 136 Vt. 153, 156, 385 A.2d 1082, 1084-85  (1978) (because
  there was evidence of intoxication, it was for jury to determine if mental
  capacity  was diminished).  Of course, if the evidentiary support is
  absent, the court need not give the  instruction.  See State v. Duford, 163
  Vt. 630, 631, 660 A.2d 736, 737 (1995) (mem.) (no instruction  required
  where evidence insufficient to establish defendant's diminished capacity);
  see also State v.  Day, 149 Vt. 165, 167, 540 A.2d 1042, 1043 (1987) (only
  such instructions should be given as arise  from and can be based upon the
  evidence).  

       The parties agree that at least some of the charges against defendant
  have specific intent  elements such that intent can be negated by
  intoxication.  We emphasize, however, two points  relevant to defendant's
  claim of error here.  First, this was not a case where the jury was told
  that  voluntary intoxication was irrelevant to whether defendant committed
  the crimes.  Cf. State v.  Dennis, 151 Vt. 223, 224, 559 A.2d 670, 671
  (1989).  The court gave the jury a full and fair  explanation of the intent
  elements of the crimes, and defendant did not object to those aspects of
  the  charge.  Defense counsel was free to argue to the jury that the State
  failed to prove that defendant had  the requisite intent in light of the
  intoxication evidence.

       Second, evidence of alcohol or drug consumption, even in large
  quantities, will not by itself  require the court to charge the jury that
  it can consider defendant's intoxication as bearing on

 

  whether he had the requisite intent to commit the crimes charged.  See 
  Jacobs v. State, 396 So. 2d 1113, 1115 (Fla. 1981) (evidence of alcohol
  consumption does not, by itself, mandate the giving of  jury instructions);
  State v. Brown, 904 P.2d 985, 994 (Kan. 1995) (mere consumption of
  intoxicants,  without evidence of impairment is insufficient to require
  instruction); State v. Cameron, 514 A.2d 1302, 1308 (N.J. 1986) (same). 
  Indeed, intoxication is not a defense unless it reaches the point  where
  defendant fails "to achieve the state of mental responsibility" required by
  the charge.  State v.  Pease, 129 Vt. 70, 76, 271 A.2d 835, 839 (1970); see
  also McIntyre v. State, 717 N.E.2d 114, 124  (Ind. 1999) (where record
  contains no evidence that defendant claimed the inability to form the 
  requisite mens rea because of intoxication, court may properly refuse
  instruction); People v. Glenn,  599 N.E.2d 1220, 1232 (Ill. Ct. App. 1992)
  (before court must instruct on intoxication, evidence  must support that
  intoxication was so great defendant lacked the requisite mental state for
  the crime).

       Although the question is relatively close, we conclude that the
  evidence warranted an  intoxication charge, informing the jury that it
  could consider defendant's intoxication as bearing on  his intent to commit
  the charged crimes.  The evidence of alcohol and drug consumption alone was 
  insufficient to require the charge, but the evidence of the amount
  consumed, together with the  assessment of a witness that defendant
  appeared intoxicated on the night in question, and defendant's  statement
  that his faculties were "fairly clouded," were sufficient to warrant the
  charge.

       The State argues, however, that even if the court erred in failing to
  charge on intoxication, the  error was harmless in this case.  We agree. 
  An error is not grounds for reversal of a criminal  conviction if we can
  say beyond a reasonable doubt that the result would have been the same in
  the  absence of the error.  See State v. Carter, 164 Vt. 545, 553-55, 674 A.2d 1258, 1264-65 (1996).  An  error in the charge to the jury can be
  harmless.  See State v. Wright, 154 Vt. 512, 517, 581 A.2d 720,  724
  (1989).  For example, in Wright, we held that an error in the charge on the
  elements of a lesser-included offense to felony murder was harmless
  because the evidence in support of any lesser-

 

  included offense was "virtually nil."  Id. at 520, 581 A.2d  at 725.  

       Defendant testified in this case and described in detail the events of
  the night of the offense in  support of his position that the victim
  voluntarily accompanied him and voluntarily engaged in  sexual relations
  with him.  He never suggested in argument or in testimony that he was so
  impaired  that he could not have the requisite criminal intent.  His
  position was that he knew his intent and it  was exactly the opposite of
  that charged by the State.  

       Although there was extensive evidence of defendant's alcohol and drug
  consumption, the  evidence that he was impaired at any point was isolated
  and general.  No one suggested that if the  victim did not voluntarily
  accompany him, he was nevertheless incapable of acting with criminal 
  responsibility.  Moreover, defense counsel was free to argue to the jury
  that they should not convict  because defendant was so impaired that the
  State failed to prove that he acted with the relevant  mental state.  He
  never presented this theory to the jury.

       In light of all these circumstances, we conclude beyond a reasonable
  doubt that the addition  of an intoxication instruction would not have
  affected the verdict.

       Defendant's next argument is related to the first.  He argues that
  there was insufficient  evidence to support the conclusion that he had the
  specific intent required for conviction of each of  the charged crimes.  He
  claims that the undisputed evidence of intoxication proves that he could
  not  have formed the requisite intent.  We stress again that evidence of
  intoxication is not necessarily  proof that defendant acted without the
  requisite criminal intent.  Here, to the contrary, there was  extensive
  evidence that despite his consumption of drugs and alcohol, he retained the
  capacity to  plan, reason, and remember throughout the night.

       Defendant is arguing, in essence, that the State's case could not
  withstand a motion for  acquittal.  Thus, the question is "whether, taking
  the evidence in the light most favorable to the State  and excluding
  modifying evidence, the State has introduced evidence fairly and reasonably
  tending 

 

  to show the defendant's guilt beyond a reasonable doubt."  State v.
  Kennison, 149 Vt. 643, 652, 546 A.2d 190, 195-96 (1987).  Kennison, a case
  in which defendant also argued that evidence of  intoxication and its
  effects meant that the State failed to prove its case, is directly on point
  and  contrary to defendant's position.  As we stated in D'Amico, and
  reinforced in Kennison, it is up to the  jury to assess the evidence of
  intoxication and determine whether a defendant's "mental capacity was  so
  diminished as to prevent him from forming the requisite felonious intent." 
  D'Amico, 136 Vt. at  156, 385 A.2d  at 1084-85.  The evidence on degree of
  impairment was controverted, and defendant  was not entitled to an
  acquittal as a matter of law.  See Kennison, 149 Vt. at 652, 546 A.2d  at
  196.

       Defendant's final argument stemming from the trial concerns the
  admission of certain expert  testimony.  The State called Dr. Jan Tyler to
  testify about rape trauma syndrome and the  characteristics and conduct of
  rape victims.  The admissibility of this testimony was first contested in 
  pretrial proceedings when the State made an offer of proof indicating Dr.
  Tyler would testify about  rape trauma syndrome and "the behavioral
  patterns of victims of sexual assault."  The State noted  that the expert
  witness would have no contact with the victim and would not offer an
  opinion on  whether the victim was raped by defendant.  Defendant
  challenged the evidence as inadmissible  under Daubert v. Merrell Dow
  Pharmaceuticals, Inc., 509 U.S. 579 (1993), and State v. Streich, 163  Vt.
  331, 658 A.2d 38 (1995).  The court orally rejected the challenge on the
  first day of trial, and  followed up with a written decision after the
  trial.

       Dr. Tyler testified that rape trauma syndrome is associated with
  post-traumatic stress disorder - that is, it is a set of behaviors and
  symptoms experienced by victims of trauma.  She explained that  victims of
  severe trauma commonly experience symptoms such as nightmares, anxiety, and
  fear as a  result of the trauma.  Victims of rape, in particular, may
  experience symptoms such as difficulty in  interpersonal relationships,
  guilt, shame, and sexual dysfunction.  

 

       Dr. Tyler also testified that studies have shown that victims of rape
  are more likely to resist  their attacker by making verbal protests than by
  struggling or screaming, and that victims are less  likely to resist if
  force is used or threatened.  Furthermore, she said that it is not unusual
  for victims  to delay in reporting a rape, especially if the attacker is an
  acquaintance, and that a rape victim may  be more likely to report to a
  friend first, rather than to someone with whom she is having an intimate 
  relationship.  This delay in reporting is related to the feelings of guilt
  and shame experienced due to  the trauma of the rape.  Dr. Tyler then
  testified to statistics regarding the rate of false reporting of  rape. 
  Finally, she testified that, although she had no statistics, she thought it
  would not be unusual  for a victim of rape to fall asleep immediately after
  the assault, due to the physical exertion and  psychological responses to
  the trauma such as denial and withdrawal.  

       Defendant objected at the outset of the trial to the reliability and
  relevancy of Dr. Tyler's  testimony and contended that it would
  impermissibly bolster the credibility of the complainant.   Defendant
  renewed his objection to its reliability during a break in Dr. Tyler's
  testimony.  Finally, the  day after Dr. Tyler's testimony concluded,
  defendant objected to her testimony regarding the rate of  false reports of
  rape.  In this Court, defendant makes three arguments: (1) the court failed
  to conduct  a proper Daubert inquiry; (2) the expert's evidence was not
  admissible under Daubert and Streich;  and (3) the expert's testimony on
  the rate of false reporting improperly bolstered the credibility of the 
  victim.

       At the outset we point out that most of the evidence offered by the
  expert, not including that  about the rate of false reporting, is of the
  type we have found admissible in State v. Catsam, 148 Vt.  366, 534 A.2d 184 (1987), and its progeny, with respect to child sexual abuse.  See State
  v. Leggett,  164 Vt. 599, 599-600, 664 A.2d 271, 271-72 (1995) (mem.);
  State v. Gomes, 162 Vt. 319, 329-30,  648 A.2d 396, 403-04 (1994); State v.
  Weeks, 160 Vt. 393, 399-403, 628 A.2d 1262, 1265-67  (1993); State v.
  Denny, 159 Vt. 262, 265, 617 A.2d 425, 427 (1992); State v. Sims, 158 Vt.
  173,

 

  178-82, 608 A.2d 1149, 1152-55 (1992); State v. Wetherbee, 156 Vt. 425,
  430-37, 594 A.2d 390,  392-96 (1991); State v. Gokey, 154 Vt. 129, 133-37,
  574 A.2d 766, 768-70 (1990); State v. Hicks,  148 Vt. 459, 461-63, 535 A.2d 776, 777-78 (1987).  Catsam involved expert evidence describing 
  post-traumatic stress disorder suffered by child victims of sexual assault. 
  We held such evidence  was admissible to help the jury understand the
  evidence because "[t]he unique psychological effects  of sexual assault on
  children place the average juror at a disadvantage in understanding the
  behavior  of the victim."  Catsam, 148 Vt. at 369, 534 A.2d  at 187.  We
  amplified on the theory of  admissibility in Gokey:

    "Profile or syndrome evidence is evidence elicited from an expert
    that  a person is a member of a class of persons who share a
    common  physical, emotional, or mental condition.  [T]he condition
    must be  one that is generally recognized in the field."  Profile
    evidence is  typically admitted in evidence to assist the jury in
    understanding  "superficially bizarre behavior" of a putative
    victim, such as a child's  ambivalence about pursuing a sexual
    abuse complaint, or a child's  recantation of an earlier
    accusation.  In these situations, the expert's  testimony may be
    useful to dispel misconceptions about the behavior  of victims of
    certain crimes and to show that the conduct of the  complaining
    witness, however seemingly unusual, is consistent with  the
    profile.  The function of the testimony is primarily
    rehabilitative,  where behaviors such as delay in reporting,
    recantation, or continued  relationship with the alleged abuser
    may be mistaken as impeaching  the credibility of the child.

  Gokey, 154 Vt. at 133-34, 574 A.2d  at 768 (quoting State v. Percy, 146 Vt.
  475, 483, 507 A.2d 955,  960 (1986)) (citations omitted and alteration in
  original).

       Once we ruled such evidence is admissible in Catsam, and followed with
  decisions defining  the outside contours of admissibility, PTSD evidence
  involving child victims became admissible in  the trial courts.  Trial
  judges can take judicial notice of the admissibility of such evidence.  See 
  Johnson v. Commonwealth, 12 S.W.3d 258, 261 (Ky. 1999).

       The admissibility standard continues despite the intervening issuance
  of the Daubert 

 

  decision, and the adoption of its holding in State v. Brooks, 162 Vt. 26,
  30, 643 A.2d 226, 229  (1993), and State v. Streich, 163 Vt. at 342, 658 A.2d  at 46.  See Johnson, 12 S.W.3d  at 262-63 (hair  comparison evidence
  admissible under earlier Frye standard remains admissible under Daubert;
  court  can take judicial notice of admissibility and burden shifts to
  opponent to show "such evidence is no  longer deemed scientifically
  reliable").  The basic thrust of Daubert is that the widely-accepted 
  standard of novel scientific and technical evidence, announced first in
  Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), did not survive the
  adoption of Federal Rule of Evidence 702, which contains  a more flexible
  standard of reliability and relevancy.  Largely because we had adopted
  F.R.E. 702 as  V.R.E. 702, we adopted the Daubert standard as our own.  See
  Streich, 163 Vt. at 342, 658 A.2d  at  46.

       We affirmed the admission of PTSD evidence in Catsam under V.R.E. 702
  using a flexible  standard of admissibility that is fully consistent with
  Daubert.  See United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993)
  (pre-Daubert analysis of DNA admissibility persuasive partly because 
  "court employed a reliability approach to Rule 702 similar to that taken in
  Daubert"); State v. Coon,  974 P.2d 386, 398 (Alaska 1999) (methodologies
  admissible under earlier standard remain  admissible under Daubert "absent
  affirmative evidence of unreliability").  Our emphasis in Catsam  was on
  whether the expert evidence of PTSD, and related explanations of the
  typical behavior of  child sexual assault victims, would "assist the trier
  of fact to understand the evidence."  V.R.E. 702.   We also drew on
  decisions from other states to show the evidence was reliable.  See Catsam,
  148 Vt.  at 369, 534 A.2d  at 187.

       We recognize that Daubert, and the more recent decision in Kumho Tire
  Co. v. Carmichael,  526 U.S. 137 (1999), emphasized the gatekeeper function
  of the trial court to determine that novel 

 

  scientific or technical evidence is sufficiently reliable and relevant
  before it is admissible.  This is  simply an example of the traditional
  role of the court to determine that evidence presented to the  fact-finder
  is admissible, see V.R.E. 104, and the gatekeeper can perform this function
  in a number  of ways.  In many cases, like this one and Catsam, the issue
  is whether a certain category of evidence  is admissible, often in
  particular types of cases that are recurring.  In some cases, both the
  trial court  and this Court can fully evaluate the reliability and
  relevance of the evidence generally based on the  decisions of other
  appellate courts.  In this way, we can avoid conducting our own lengthy and 
  expensive evidentiary hearing aimed at establishing, or attacking, the
  foundation for the disputed  expert testimony.

       We are not suggesting that the new standard for admissibility has
  somehow become general  acceptance among appellate courts.  Irrespective of
  the decisions of other courts, the responsibility  for determining the
  admissibility of evidence in Vermont courts remains with our trial judges,
  and on  appeal with this Court.  However, scientific or technical evidence
  which is novel to us is frequently  not novel to many other state and
  federal courts.  See Moore v. State, 915 S.W.2d 284, 294 (Ark.  1996) (DNA
  evidence no longer novel in view of the many appellate decisions on
  admissibility).  To  the extent the evaluation of these courts is complete
  and persuasive, we can affirmatively rely upon it  in reaching our own
  decision.

       We have explained the application of Daubert in cases like Catsam
  because much of  defendant's argument is that the trial court in this case
  failed to comply with the procedural  requirements of Daubert - that is,
  that it failed to exercise its gatekeeping function by determining  the
  reliability and relevance of Dr. Tyler's testimony based on foundational
  evidence presented to the  court in this case.  We acknowledge that we have
  never explicitly ruled upon the admissibility 

 

  of evidence of rape trauma syndrome and the common behavior of adult rape
  victims, as we discuss  below. (FN1)  Thus, the trial court was required to
  evaluate the admissibility of Dr. Tyler's  testimony, beyond her
  qualifications to provide such testimony, and the result of this evaluation
  was  not clearly dictated by a decision of this Court.  This does not mean,
  however, that the State was  obligated in this case to present independent
  evidence that Dr. Tyler's methodology could be tested,  was subject to peer
  review and publication, had a known and measurable error rate, and was 
  generally accepted in the relevant scientific community, the factors
  suggested in Daubert. (FN2)  Nor  was the trial court required to make
  findings on each of these factors.  It could find the evidence  admissible
  because its reliability equals that of other technical evidence we have
  given trial courts  the discretion to admit and the evaluation of other
  courts allowing admission of the evidence is  complete and persuasive. 
  This is the analysis the trial court conducted, (FN3) and we affirm its 
  decision that Dr. Tyler's testimony 
 
 

  was admissible, except for the testimony on the rate of false reporting.

       We concur with the trial court that expert evidence of rape trauma
  syndrome and the  associated typical behavior of adult rape victims is
  admissible to assist the jury in evaluating the  evidence, and frequently
  to respond to defense claims that the victim's behavior after the alleged
  rape  was inconsistent with the claim that the rape occurred.  As with
  child sexual abuse victims, the jury  may be at a loss to understand the
  behavior of a rape victim.  See D. McCord, The Admissibility of  Expert
  Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C. L.
  Rev. 1143,  1177 (1985) (discussing the use of rape trauma syndrome to
  explain unusual behavior of the victim);  People v. Hampton, 746 P.2d 947,
  952 (Colo. 1987) (admitting expert testimony on rape trauma  syndrome to
  explain delay in reporting); Rivera v. State, 840 P.2d 933, 938-39 (Wyo.
  1992) (same);  Terrio v. McDonough, 450 N.E.2d 190, 198 (Mass. App. Ct.
  1983) (explaining that it would not be  remarkable for rape victim to
  return to scene with attacker or feel safe in his company after the 
  event).  For example, the defense made much of the fact that defendant's
  parents were close by when  the sexual contact took place but heard no
  signs of a struggle, that the victim appeared to be sleeping  peacefully in
  defendant's bed the next morning, and that she failed to immediately tell
  her boyfriend  she had been raped.  Dr. Tyler's testimony explained why a
  rape victim might exhibit these  behaviors.

       For the purpose the evidence was used here, it is sufficiently
  reliable to be admitted.  See,  e.g., People v. Taylor, 552 N.E.2d 131,
  134-35 (N.Y. 1990).  Rape trauma syndrome is  professionally recognized as
  a type of post-traumatic stress disorder, and the behavioral 

 

  characteristics of rape victims has been the subject of numerous
  professional studies.  See generally  Note, "Lies, Damned Lies, and
  Statistics"?  Psychological Syndrome Evidence in the Courtroom  after
  Daubert, 71 Ind. L.J. 753, 760-61 (1996).  As the trial court noted in this
  case, Dr. Tyler was  prepared to address some of the studies that formed
  the bases for her opinions if the defendant raised  them in
  cross-examination.

       We note that the evidence here was of a type that the danger of
  improper usage or excessive  prejudice was at a minimum.  The expert never
  interviewed the victim and offered no opinion  whether the victim suffered
  from rape trauma syndrome or exhibited any of the behavior of a rape 
  victim. (FN4)  Thus, there was little risk that Dr. Tyler would be seen as
  a truth detector.  See  Gomes, 162 Vt. at 330, 648 A.2d  at 404.

       We do not, however, have the same view of the expert's testimony about
  the incidence of  false reporting by rape victims.  The prosecutor asked
  Dr. Tyler whether "there are any data on the  issue of false reporting that
  you are aware of?"  She answered:

 

    False reporting, the percentages are very low.  About two percent.  
    That's about the same as any other crime that's committed.  In
    other  words, the number of people who would report a burglary
    that didn't  happen is about the same as people who would report a
    rape, with one  difference.  The statistics for the rape include
    those reports that are  made and then either withdrawn by the
    victim for whatever reason,  either they were false or there's a
    fear of going through the legal  system, or they're being
    pressured by other persons.  Those also  include reports that the
    police will not arrest on because they don't  feel they have
    enough evidence.  And they also include those that  don't get to
    trial because the prosecutor feels it's not a winnable case.   So
    when you get down to literal false reporting of this really never 
    happened, it's very small.

  In short, Dr. Tyler testified that at least 98% of the rapes reported
  actually occurred.

       In State v. Percy, 146 Vt. 475, 484, 507 A.2d 955, 960 (1986), a rape
  case in which defendant  claimed amnesia caused by insanity and consent of
  the victim, three psychiatrists testified for the  State that rapists
  typically claim consent or amnesia.  We reversed defendant's conviction in
  part  because of the admission of this testimony.  We concluded that
  explanations or excuses offered by  other rapists were not relevant, and,
  in any event, the prejudicial effect of the testimony outweighed  the
  probative value because the jury could have convicted defendant because "he
  fit the mold" and  not because of the evidence in the case.  Id.

       Similarly, in Catsam, 148 Vt. at 371, 534 A.2d  at 188, we found
  inadmissible an expert's  opinion that child victims of sexual abuse do not
  make up stories of the abuse.  As in this case, the  evidence was offered
  as part of the expert's explanation of the typical behavior of victims.  We 
  concluded that the expert testimony was tantamount to an expert opinion
  that the victim was telling  the truth and that it invaded the proper role
  of the jury.  See also Weeks, 160 Vt. at 400, 628 A.2d  at  1266 (expert's
  role as truth detector, implicitly vouching for credibility of victim, is
  improper);  Wetherbee, 156 Vt. at 431, 594 A.2d  at 393 (same); Gokey, 154
  Vt. at 140, 574 A.2d  at 771-72 

 

  (same).

       Dr. Tyler's testimony on the rate of false reporting clearly went over
  the line as explained in  Percy and Catsam.  The jury could infer from her
  testimony that scientific studies have shown that  almost no woman falsely
  claims to have been raped and convict defendant on that basis.

       Although the evidence of the incidence of false reporting of rape
  accusations was  inadmissible and prejudicial, the state argues that its
  admission is not grounds for reversal because  defendant failed to object
  specifically to this evidence.  As set out above, defendant objected 
  generally to the testimony of Doctor Tyler on the ground that it did not
  meet the two-part test of  Daubert.  The court denied this objection, and
  defendant raised no objection to any specific part of  Dr. Tyler's
  testimony while it was being given.  At the start of trial on the next day,
  defense counsel  indicated that he had thought about the testimony
  overnight and moved to strike the testimony  dealing with false reporting. 
  The court denied the motion as too late.  The State argues that the  motion
  was untimely and, therefore, was properly denied.

       In order to preserve a claim of error in the introduction of evidence,
  the party opposing  introduction must make "a timely objection or motion to
  strike."  V.R.E. 103(a)(1).  This means that  "[t]he objection must have
  been made at the time the evidence was offered or the question was  asked." 
  State v. Fisher, 167 Vt. 36, 43, 702 A.2d 41, 45 (1997).  A motion to
  strike must also be  timely.  Ordinarily, it must be made when the grounds
  for it become apparent.  See State v.  Archbold, 350 N.W.2d 500, 505 (Neb.
  1984).  We conclude that the trial court here acted well within  its
  discretion in finding the motion to strike untimely.  Accordingly,
  defendant's challenge to the  admission of the false reporting evidence has
  not been properly preserved for appeal.  See State v.  Cranell, __ Vt. __,
  __, 750 A.2d 1002, 1012 (2000).

 

       Despite defendant's failure to preserve this issue for appeal, we can
  review defendant's claim  for plain error.  See V.R.Cr.P. 52(b).  Plain
  error exists only in exceptional circumstances where the  failure to
  recognize it would result in a miscarriage of justice or where the error is
  so grave and  serious that it strikes at the heart of defendant's
  constitutional rights.  See State v. Mears, __ Vt. __,  __, 749 A.2d 600,
  604 (2000).  We have occasionally found plain error because of improper 
  testimony by an expert on PTSD in a child sexual abuse prosecution, see
  Weeks, 160 Vt. at 403, 628 A.2d  at 1267, although more often we have not
  found plain error, see Sims, 158 Vt. at 182, 608 A.2d   at 1155; State v.
  Ross, 152 Vt. 462, 470, 568 A.2d 335, 340 (1989).

       The closest case to this one is State v. DeJoinville, 145 Vt. 603,
  604-05, 496 A.2d 173, 174-75 (1985), in which the minor victim's
  pediatrician testified without objection that children would  not lie about
  being sexually abused.  We did not find the testimony to be plain error. 
  See also State  v. Calloway, 157 Vt. 217, 221-22, 596 A.2d 368, 371-72
  (1991) (no plain error in refusing to declare  mistrial when State's expert
  witness testified that children who make accusations of sexual abuse 
  generally tell the truth).  In contrast is Weeks, the one case in which we
  did find plain error.  In that  case, the expert testified to the general
  behavior of sexual abuse victims and then went into the  behavior of the
  victim in the criminal case before the court.  We described his testimony
  as follows:

    [H]is testimony is a richly detailed roadmap of how he elicited
    and  came to believe the child's allegations of abuse.  From the
    outset, the  jury knew, not only that he had personally examined
    the victim, but  that he had tested her perceptions and
    credibility, and, that based on  his conclusions, he reported the
    abuse and defendant as the  perpetrator to SRS.  He not only
    vouched for the victim's credibility  but staked his professional
    reputation on it.  When Dr. Cunningham  was finished testifying,
    no one could reasonably doubt that he had  given his unqualified
    endorsement to the child's believability.


  Weeks, 160 Vt. at 401, 628 A.2d  at 1266.

 

       This case exhibits none of the hallmarks of Weeks.  Dr. Tyler never
  testified about the story  or credibility of the victim because she had
  never interviewed, or even met, the victim.  Her  testimony was entirely
  theoretical as in DeJoinville.  See Wetherbee, 156 Vt. at 433, 594 A.2d  at
  394  (comments of expert who has examined the victim are taken in an
  entirely different light by the jury).  Further, defense counsel was able
  to reduce the prejudicial effect of the testimony of the low  incidence of
  false reporting by cross-examination.  Finally, the prosecutor did not
  highlight this  testimony in closing argument.

       We cannot conclude that failure to exclude the inadmissible expert
  testimony caused a  miscarriage of justice in this case.  Accordingly, we
  find no plain error.

       Defendant's remaining arguments on appeal relate to the sentencing
  phase of the proceeding.   Defendant first argues that his concurrent
  sentences of forty-years-to-life on the kidnapping and  aggravated assault
  charges are grossly excessive and disproportionate to the crimes, violating
  his  right to due process of law.  This sentencing issue was not preserved
  for appeal because defendant  failed to object to the sentence in the trial
  court.  See State v. Francis, 152 Vt. 628, 632, 568 A.2d 389, 392 (1989);
  State v. Nash, 144 Vt. 427, 435, 479 A.2d 757, 762 (1984) (objection to
  sentencing  cannot be raised for first time on appeal).

       Defendant's second argument relating to his sentence is that it
  exceeds the statutory  maximum.  The kidnapping statute, 13 V.S.A. §
  2405(b), provides an "affirmative defense" to reduce  the maximum penalty
  for violation from life imprisonment to thirty years imprisonment if the 
  defendant voluntarily released the victim alive in a safe place without
  having caused serious bodily  injury to the victim.  See 13 V.S.A. §
  2405(b).  Shortly before trial, the parties in this case signed and  filed
  with the court a written stipulation, providing, among other things:

 

    For purposes of sentencing, pursuant to 13 V.S.A. § 2405(b), the 
    court may find that the defendant voluntarily released [the
    victim]  alive in a safe place before arraignment without having
    caused serious  bodily injury to [the victim].  This provision of
    the stipulation shall  not be read to the jury.

  Defendant argues that the stipulation bound the court to impose a sentence
  no greater than thirty  years because the parties had agreed that the
  "affirmative defense" had been established.  The State  responds that
  voluntary release is an affirmative defense that must be presented to the
  jury.  In the  absence of a jury determination, it argues, defendant has
  waived the issue.

       Defendant's argument is premised on his view that the State had
  conceded that he had  voluntarily released the victim without having caused
  her serious bodily injury.  We cannot read the  stipulation as having that
  meaning.  At best, the stipulation authorizes the trial judge to find that 
  defendant voluntarily released the victim without serious bodily injury,
  but does not require such a  finding.  It assumes, however, that the
  factual determination will be made by the judge and not the  jury, an
  assumption the State now argues is misguided.

       We agree that the statute requires a jury determination to invoke the
  voluntary release  defense.  Although the judge determines the sentence,
  State v. Goyet, 120 Vt. 12, 52, 132 A.2d 623,  649 (1957), it is the jury's
  responsibility to determine what crime, if any, has been committed.  A 
  defense is "any set of identifiable conditions or circumstances that may
  prevent conviction for an  offense."  1 P. Robinson, Criminal Law Defenses
  § 21, at 70 (1984).  Because the Legislature  designated voluntary release
  as an affirmative defense, defendant has the burden of proof to establish 
  it.  See State v. Davis, 165 Vt. 240, 247, 683 A.2d 1, 6 (1996).  In
  essence, the statute creates two  different crimes: the crime of kidnapping
  with a maximum punishment of life in prison, and the  crime of kidnapping
  with mitigating circumstances, with a maximum punishment of thirty years in 

 

  prison.  If defendant wanted to achieve the result he now says was
  intended, he had to induce the  State to lower the charge to the latter
  crime, cf. id. at 244, 683 A.2d  at 6 (State amended the charge to 
  "mitigated kidnapping" subject to maximum penalty of thirty years), or to
  obtain a judicial  determination that the affirmative defense had been
  established as a matter of law.  He did neither.

       This does not mean that the stipulation had no effect.  Obviously, the
  fact that defendant  released the victim voluntarily and unharmed could
  have bearing on the sentence the court chose to  impose, as shown by
  legislative recognition of this factor.  The stipulation allowed defendant
  to  argue that the State had conceded this factor and, by its terms, was
  made specifically to influence  sentencing.  Defendant failed, however, to
  make any use of the stipulation at sentencing.  As a result,  we find no
  error in the failure of the court to consider it.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  We decline the State's invitation to treat this as another child
  sexual abuse case because, at  age 16, the victim here was a minor and not
  much older than the child in State v. Noyes, 157 Vt. 114,  116, 596 A.2d 340, 341 (1991) and other child sexual assault cases.  At 16 years of age,
  she was  beyond the age of consent under the statutory rape statute, see 13
  V.S.A. § 3252(a)(3), and nothing  about the crime was specifically related
  to her minority. 

FN2.  We cite the Daubert factors as illustrative.  As the Court stated in
  Kumho Tire, "Daubert's  list of specific factors neither necessarily nor
  exclusively applies to all experts or in every case."  526 U.S.  at 141. 
  We recognize that the State has urged us to hold that Daubert does not
  apply at all to  psychological trauma syndrome evidence because it does not
  involve hard science capable of  reliability testing by the scientific
  method.  See United States v. Rouse, 100 F.3d 560, 567-68 (8th  Cir. 1996),
  vacated en banc, 107 F.3d 557 (1997), rehearing denied, 111 F.3d 561
  (1997), cert.  denied, 522 U.S. 905 (1997).  V.R.E. 702 applies, however,
  to "scientific, technical or other  specialized knowledge" and does not
  distinguish between those categories.  See Kumho Tire, 526 U.S.  at 147. 
  The nature of the expert testimony may affect the factors to be examined
  bearing on  reliability and relevancy; it does not change the need for such
  an inquiry where the scientific,  technical or specialized knowledge is
  novel.

FN3.  Defendant argues that the trial court looked only to whether Dr. Tyler
  was qualified to give  the opinion and not to the admissibility of the
  substance of the opinion.  The trial court actually  rendered three
  decisions, two oral and one written, on defendant's challenge and only with
  respect to  the second decision could one say that the court confused the
  reliability of the evidence with the  qualifications of the expert witness. 
  Thus, the trial court's analysis was not so limited as defendant  has
  argued.

FN4.  In a twist, defendant suggests that Dr. Tyler's testimony was
  inadmissible because she did  not address whether the victim suffered from
  the syndrome and did not tie the syndrome to the  testimony on the common
  behavior of rape victims, some of which related to how victims react 
  during the rape before any syndrome developed.  We reiterate the point of
  State v. Wetherbee, 156  Vt. at 433, 594 A.2d  at 394, that the opinions of
  experts who have examined the victim are much  more likely to be seen as
  vouching for the victim's story than the opinions of experts who have never 
  examined the victim.  See also Gomes, 162 Vt. at 330, 648 A.2d  at 404. 
  Moreover, the common  behaviors of rape victims are directly related to the
  rape trauma syndrome in the sense that the stress  reaction creates a
  profile.  This testimony has been the least controversial of the expert
  evidence  related to rape trauma syndrome.  Some courts and commentators
  have concluded that rape trauma  syndrome evidence should be admissible
  solely for this purpose.  See People v. Taylor, 552 N.E.2d   at 138; K.W.
  Gaines, Rape Trauma Syndrome: Toward Proper Use in the Criminal Trial
  Context, 20  Am. J. Trial Advoc. 227, 251 (1997).

       Finally, we do not find a line between behavior during the rape and
  behavior after the rape  has been drawn for purposes of the syndrome.  Dr.
  Tyler testified to behavior of rape victims during  the rape as part of the
  syndrome.