State v. Kinney (99-122); 171 Vt. 239; 762 A.2d 833
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
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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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
[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.
FOR THE COURT:
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
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
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