State v. Mark Bergquist

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2019 VT 17
No. 2017-281
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division
Mark Bergquist October Term, 2018
Michael S. Kupersmith, J. (Ret..)
David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Richard R. Goldsborough, South Burlington, and David Carico, El Segundo, California, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. ROBINSON, J. Defendant appeals his jury conviction for sexually assaulting his
seven-year-old daughter, A.B. On appeal, defendant raises a host of arguments challenging the
trial court’s (1) admission of A.B.’s out-of-court statements pursuant to Vermont Rule of Evidence
804a, (2) exclusion of certain evidence concerning A.B.’s mother’s state of mind and conduct,
(3) ruling allowing A.B. to testify out of defendant’s presence pursuant to Vermont Rule of
Evidence 807(f), (4) denial of discovery of some of A.B.’s mental-health records, and
(5) admission of expert testimony that he argues improperly “vouched” for A.B.’s credibility. We
affirm.
¶ 2. This case began in December 2015 when mother reported to law enforcement that
her daughter, A.B. (born Nov. 11, 2008), said that defendant had sexually abused her. Defendant
and mother had been on-and-off romantic partners for a number of years, and defendant was A.B.’s
father. After an investigation, including an interview of A.B. by a detective from the Chittenden
Unit for Special Investigations, the State charged defendant with two counts of aggravated sexual
assault of a victim under thirteen years pursuant to 13 V.SA. § 3253(a)(8). The evidence at trial
included testimony by mother, defendant, expert witnesses for both sides, the detective who
initially interviewed A.B. and defendant, and the physician who examined A.B. following the
report, a video recording of the detective’s initial interview of A.B., and a video recording of A.B.’s
own trial testimony. The jury convicted on both counts, and the court sentenced defendant to thirty
to fifty years on each count, to be served concurrently.
¶ 3. We consider each of defendant’s challenges on appeal, expanding on the factual
and procedural background as relevant.
I. A.B.’s Out-of-Court Statements
¶ 4. Defendant challenges the trial court’s determination that A.B.’s videotaped out-of-
court statements to Detective Rene Young were admissible under Vermont Rule of Evidence 804a.
¶ 5. Rule 804a allows out-of-court statements by a child under twelve to be admitted
into evidence in a proceeding where the child is the alleged victim of a sexual assault, “the
statements were not taken in preparation for a legal proceeding,” the child is available to testify in
court or under Rule 807, and “the time, content and circumstances of the statements provide
substantial indicia of trustworthiness.” V.R.E. 804a(a). Defendant argues that the statements to
Detective Young did not meet Rule 804a’s requirement that “the time, content and circumstances
of the statements provide substantial indicia of trustworthiness.”
¶ 6. The trial court made the following findings in considering the State’s motion to
allow admission of A.B.’s out-of-court statements under Rule 804a. Defendant and A.B.’s mother
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had an unhealthy relationship throughout 2015, and on December 13, 2015, they had a long
argument while home with A.B. During the argument, defendant taunted mother with the
accusation that mother had molested A.B., and he said he should report her to the police. In fact,
mother did later tell the police that when A.B. was an infant, under coercion by defendant, mother
took photographs of herself “inappropriately touching” A.B. and sent them to defendant. Mother
testified that on the night of December 13, defendant would not leave her alone, and he kept
arguing with her and asking her to have sex with him. She eventually called an adult-crisis hotline.
After her call to the hotline, mother took A.B. to a grocery store to get snacks. At the grocery
store, A.B. was not listening to mother, so mother sat her down and asked if how she was acting
had anything to do with the fight. A.B. said no. Mother said A.B. seemed nervous—she was
fidgeting, kicking her legs, and playing with her belly button. Mother asked A.B. if defendant had
hurt her. A.B. said he had grabbed her arm, but did not say defendant had done anything else.
Mother had asked A.B. in the past if defendant had hurt her, but A.B. had always said he hadn’t.
¶ 7. Mother then asked if defendant had ever told A.B. not to tell about something
because she could be taken away. A.B. froze. Mother told A.B. a couple times that if anything
had happened, she needed to know so she could keep A.B. safe. A.B. then whispered into her ear
“we had sex.” Mother testified that she was shocked. She asked A.B. if she knew what sex was,
and what a penis was, and A.B. said yes to each. Mother was shocked to hear that too. She asked
A.B. where defendant had touched her, and A.B. spread her legs and pointed to her genitals.
Mother asked how many times it had happened, and A.B. said it happened once over the summer.
Mother asked twice if A.B. was sure, and A.B. finally said it might have happened a couple of
times. Mother then called the police.
¶ 8. A.B. was placed in the custody of the Department for Children and Families (DCF)
on an emergency basis. The next day, Detective Young conducted a forensic interview with A.B.
The interview was videotaped. At the beginning of the interview, Detective Young asked A.B.
3
questions to establish that A.B. could tell the difference between truth and lies, and had A.B.
promise to tell the truth. Eventually, A.B. told Detective Young that defendant put his “gina” in
her “gina,” and gave details as to how it happened. When Detective Young asked what “gina”
meant, A.B. pointed to her genitals, and said it was used for sex and “to go potty.” She also said
that defendant had put his “gina” in her “gina” on a second occasion, this one at night, but did not
provide further details.
¶ 9. The State moved to allow admission of both A.B.’s statements to mother and to
Detective Young; defendant opposed the admission of both. The court held that A.B.’s statements
to mother were not admissible because their circumstances—including that defendant had
threatened to report mother to the police for sexually assaulting A.B. shortly before A.B. made the
statements—did not provide substantial indicia of trustworthiness, as Rule 804a(a)(4) requires. It
noted, however, that this ruling reflected only that the State had not met its burden of establishing
that the circumstances provided sufficient indicia of trustworthiness, and was not a decision as to
the veracity of the statements. The court did allow admission of A.B.’s statements to Detective
Young, as it found their time, content, and circumstances bore substantial indicia of
trustworthiness.
¶ 10. In connection with the latter conclusion, the court credited the testimony of the
State’s expert, Dr. Halikias, concerning the protocols for such interviews. The court found that
A.B. “appeared consistent about the disclosures throughout the interview,” and appeared reluctant
and hesitant. The court found that she “looked uncomfortable and at times frightened,” and her
whispered disclosure to Detective Young was “convincing.” The court concluded that “despite
some flaws in the detective’s questioning style, the flaws did not affect the validity or reliability
of the interview” because A.B. “did not appear manipulated by the flawed questions and resisted
leading and repeated questioning.”
4
¶ 11. On appeal, defendant argues that the trial court erred in finding the circumstances
of A.B.’s statements to Detective Young trustworthy. He argues that mother coerced A.B. into
making the statements the night before, and that A.B.’s statements to the detective were
contaminated by that coercion. Defendant preserved this issue for appeal.
¶ 12. The trial court’s decision to admit A.B.’s statements under Rule 804a was a
discretionary one, which we review deferentially and would reverse only upon finding abuse of
discretion. State v. Felix, 2014 VT 68, ¶ 19, 197 Vt. 230, 103 A.3d 927. The determination of
trustworthiness under Rule 804a(a)(4) is a factual finding, which this Court will not overturn unless
clearly erroneous. State v. Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988).
¶ 13. In determining whether the circumstances of a child’s statement have the indicia of
trustworthiness required for admission under Rule 804a(a)(4), a court “may consider such factors
as: the circumstances of the initial disclosure, including the setting and person to whom the
disclosures were made; internal consistency and detail of disclosures; timing and conduct of
interviews, including whether nonleading questions were asked; freshness and spontaneity of
disclosures; appropriate body language; risk of fabrication” and “evidence of coercion or
manipulation” as well as “accuracy of peripheral detail; the child’s affect, intelligence, memory,
and concern for the truth; and corroboration by medical and other evidence.” State v. Pratt, 2015
VT 89, ¶ 7, 200 Vt. 64, 128 A.3d 883.
¶ 14. We conclude that the trial court’s finding that A.B.’s statements to Detective Young
bore sufficient indicia of trustworthiness was not clearly erroneous. Evidence supporting this
conclusion includes the State’s expert’s testimony that conduct of the interview was reasonably
sound, despite some violations of the accepted interview protocol; A.B.’s word choice and body
language, which the trial court could reasonably find supported her credibility; A.B.’s apparent
resistance to leading questions when asked; and the fact that A.B., then a seven-year-old child,
made reasonably consistent and at times graphic disclosures. See State v. LaBounty, 168 Vt. 129,
5
138, 716 A.2d 1, 7-8 (1998) (holding that young children’s graphic accounts of sexual abuse to
caseworkers and police officers, made the day after their initial disclosures to their mothers,
supported finding that statements were trustworthy). Accordingly, we find no abuse of discretion
in the trial court’s decision to admit A.B.’s statements to Detective Young under Rule 804a.
¶ 15. We understand defendant’s view that none of these indicia of trustworthiness is
sufficient to surmount the contamination arising from mother’s coercion of A.B. the night before,
but conclude that the trial court’s exclusion of A.B.’s out-of-court statements to mother does not
undermine its admission of the statements to Detective Young. The trial court emphasized that its
decision to exclude A.B.’s out-of-court statements to mother rested on the State’s failure to meet
its burden of showing that the time and circumstances of A.B.’s disclosure to mother provided
substantial indicia of trustworthiness. The court noted that the content of the actual disclosure to
mother, and the child’s behavior and reluctance to disclose, as reported by mother, were factors
that provided some support for the trustworthiness of the statements. However, in light of the
unhealthy relationship between mother and defendant and defendant’s threats to report mother for
sexual abuse shortly before A.B.’s disclosure to mother, the court concluded the State had not met
its burden. The trial court did not find that mother coerced A.B.’s initial reports the night before,
and the evidence, while it may support such an inference, does not compel such an inference.
Accordingly, the court’s conclusion that the statements to Detective Young were trustworthy,
which implicitly rejected the claim that the statements were irretrievably contaminated by mother’s
questioning of A.B. the night before, was not clearly erroneous.1
1
Defendant also suggests that A.B.’s statements to Detective Young in the investigative
interview may also have been the result of prior suggestion or coercion by Detective Young,
pointing to an exchange at the beginning of the investigative interview when Detective Young said
“I met you last night; we talked a whole bunch” and A.B. replied, “Because you made me.” The
evidence supporting defendant’s suggestion that Detective Young contaminated A.B.’s testimony
through their conversations the night before is sparse at best. The only evidence is that Detective
Young made small talk with A.B. about matters other than the allegations at issue. The trial court’s
failure to infer on the basis of this evidence that Detective Young contaminated A.B.’s reports and
6
II. Evidence of Mother’s Mental Illness and Alleged Assault
¶ 16. Defendant argues that the exclusion of certain evidence of mother’s “mental illness
and her aggravated assault” on A.B. deprived him of his constitutional rights to confrontation and
to present a defense under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution
and Chapter I, Article 10 of the Vermont Constitution.
¶ 17. The background relevant to this claim is as follows. In broad terms, defendant’s
theory of the case, beyond his general denial, is that mother coached A.B. to make the allegations
because she thought defendant was going to report her for sexually abusing A.B. and she sought
to preempt and divert attention from that report. In particular, around 2009, when A.B. was an
infant, mother took photos of herself touching A.B.’s vagina with her fingers and mouth. (Mother
has subsequently alleged that defendant forced her to take these pictures and send them to him.)
This happened while mother was enrolled in a residential parenting program. When her counselor
at the program asked her about the photos mother had taken, mother lied to her counselor, claiming
that they were of her breastfeeding. On the day in December 2015 when A.B. later made her
disclosure, defendant called mother a child molester in the context of a fight. After the fight,
mother called a mental-health crisis line. She then took A.B. to the store, where mother said A.B.
made her disclosure to mother. Mother reported A.B.’s allegations against defendant shortly
thereafter. At that time, she also disclosed her own prior (2009) sexual assault of A.B. to the
police. Subsequently, while this case was pending, during a supervised visit with A.B. mother told
A.B. about the 2009 assault and said to A.B. that defendant had made her (mother) do it. Although
mother denied to the DCF caseworker that she made any such disclosure, the caseworker observed
that A.B. provided a high level of detail about the disclosure. Finally, mother has a history of
undermined the trustworthiness of A.B.’s recorded statements to Detective Young was not clearly
erroneous.
7
significant mental-health issues. Defendant argues that these events show mother’s motive to
coach A.B. to make a false report against him and also undermine mother’s credibility generally.
¶ 18. In connection with these matters, the parties made a series of motions pretrial,
which we discuss more fully as they are relevant to particular rulings.
¶ 19. At trial, the court admitted considerable evidence relating to mother’s mental
health, but stated that defendant could not introduce evidence of mother’s “mental health status as
such” because it was not relevant. The court allowed defendant to introduce evidence suggesting
that mother had mental-health concerns, including that mother had in the past seen a mental-health
professional, had attempted suicide, and had called a mental-health crisis line the night A.B.
disclosed defendant’s sexual abuse of her. It also allowed evidence that mother and defendant had
in the past argued about mother’s mental health and her refusal to seek therapy.
¶ 20. Likewise, the trial court ultimately allowed defendant to introduce evidence
relating to mother’s alleged assault of A.B. and some of her subsequent statements about it.2 On
the stand, mother admitted that she had taken pictures of herself inserting her finger into A.B.’s
vagina when A.B. was an infant. She conceded that was why defendant called her a child molester,
and that she told the police about it on the evening that she called to report defendant’s abuse of
A.B. because she “thought it would be best to get it out” herself “rather than have [defendant]
report it.” The court also admitted A.B.’s testimony that mother had told A.B. that when A.B.
“was a little baby or girl . . . my dad made my mom stick her finger in my private.” The court also
allowed defendant to ask mother on the stand if she had told A.B. this.
2
Mother initially asserted her Fifth Amendment right against self-incrimination, but the
court concluded that she waived that right through her answers to questions on cross-examination.
8
¶ 21. On appeal, defendant challenges six specific rulings or clusters of rulings that he
argues denied him the opportunity to fully present his defense.3
¶ 22. “We review the trial court’s evidentiary rulings deferentially and reverse only when
there has been an abuse of discretion that resulted in prejudice.” Felix, 2014 VT 68, ¶ 19 (quotation
omitted). We will find an abuse of discretion only upon a showing that “the court’s discretion was
either withheld or exercised on clearly unreasonable grounds.” State v. Cartee, 161 Vt. 73, 76,
632 A.2d 1108, 1110 (1993). Recognizing the constitutional issues at play when a criminal
defendant is prevented from introducing evidence to impeach an opposing witness or call into
question a witness’s motive, our “analysis of whether the trial court abused its discretion . . . is
further amplified by defendant’s constitutional right to confront witnesses against him.” Id. With
these standards in mind, we consider each of defendant’s respective challenges on appeal.
A. Testimony from Detective Young Regarding Mother’s Admission
¶ 23. Defendant argues that the trial court erroneously declined to allow him to call
Detective Young to testify that mother admitted to Detective Young on the night of A.B.’s initial
disclosure of abuse that she, mother, had previously sexually abused A.B.
¶ 24. The ruling at issue followed a discussion at the bench on the second day of trial.
Defendant was seeking to highlight mother’s statements to A.B. about the prior assault, and
mother’s denial to the DCF caseworker that she made those statements. Defense counsel asked
3
Because defendant’s briefs described various categories of evidence defendant claimed
were erroneously excluded, but did not identify with clarity or citations to the record the specific
rulings challenged on appeal, at oral argument the Court requested that defendant provide a list of
the specific rulings he challenges on appeal. In identifying the rulings at issue on appeal, we rely
on defendant’s response. Some other challenges raised in defendant’s briefs but not identified in
his post-argument list of specific rulings challenged relate to claimed rulings that apparently never
existed. For example, defendant argues in his brief that he wanted to introduce evidence that
mother was facing charges for aggravated assault when she testified against defendant, and that
she was not offered a plea deal until after testifying against him, which would have been evidence
of her motive to testify against him and would have impeached her credibility. Defendant never
sought to introduce such evidence before the trial court. He cannot now claim that he should have
been allowed to introduce evidence that he did not seek to introduce. V.R.E. 103(a)(2).
9
whether he could call Detective Young to say that at the interview, mother said that she had
touched A.B.’s vagina, and then call A.B.’s foster mother to testify that A.B. had reported that
mother had disclosed this prior abuse during a visit. The court noted that A.B. had already testified
to these events and concluded that defendant did not need to bring in Detective Young to repeat
that.
¶ 25. The trial court has considerable discretion to refuse to allow cumulative evidence.
Pcolar v. Casella Waste Sys., Inc., 2012 VT 58, ¶ 9, 192 Vt. 343, 59 A.3d 702, as amended on
denial of reh’g (Aug. 28, 2012).
¶ 26. Here, even if the court abused its considerable discretion in denying defendant the
opportunity to elicit from Detective Young testimony about matters that were already in the record,
defendant was not prejudiced by the ruling since mother herself subsequently testified that at the
time she reported A.B.’s disclosures, she told Detective Young that she, mother, had committed
the prior acts. This is essentially the same testimony defendant sought to elicit from Detective
Young. The fact that mother made this disclosure to Detective Young was clear to the jury and
undisputed. Accordingly, defendant suffered no prejudice from the court’s exclusion of the
additional testimony, and any error was harmless. See V.R.Cr.P. 52(a) (“Any error, defect,
irregularity or variance which does not affect substantial rights shall be disregarded.”); State v.
Haskins, 2016 VT 79, ¶¶ 17, 28, 202 Vt. 461, 150 A.3d 202 (holding error is harmless if it is
beyond reasonable doubt that jury would have convicted even had error not occurred, given
strength of case without excluded evidence, and strength of excluded evidence, taking into account
whether it was cumulative or duplicative).
B. Testimony from Detective Young Regarding Mother’s Inconsistent Statement
¶ 27. Defendant challenges the trial court’s exclusion of a prior inconsistent statement
mother made to Detective Young. The background is as follows. During mother’s testimony,
after mother described the photos she took of herself abusing A.B. when A.B. was an infant,
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defendant elicited mother’s confirmation that she had made a report about the incident when she
was at the residential program where it happened. In connection with that report, defense counsel
asked mother, “Isn’t it true that . . . you told [your counselor] that you had not taken the pictures
that you just described?” Mother responded, “I had told her that I thought I did, but wasn’t sure,
and she said that if—if I actually did it, she thinks I would have remembered.” Defendant also
elicited testimony from mother that DCF interviewed her following this report and did not
substantiate her for abuse. Mother admitted that DCF’s report indicated that mother said she only
took pictures of herself lying down without a top and A.B. sitting in a diaper on her stomach, but
said she did not remember saying that to DCF. On appeal, defendant argues that the trial court
improperly excluded evidence of mother’s statement to Detective Young that she had previously
told her counselor at the residential program that she sexually abused A.B.
¶ 28. Although defendant identifies this argument in his post-argument list of rulings at
issue on appeal, nowhere in his appeal briefs does he provide a record citation to the court’s
contested ruling on this point so we can review it.4 See V.R.A.P. 28(a)(4)(A) (appellant’s brief
must contain “the issues presented, how they were preserved, and appellant’s contentions and the
reasons for them—with citations to the authorities, statutes, and parts of the record on which the
appellant relies”).
¶ 29. Nor does he point us to his request to call Detective Young for this purpose and his
proffer as to what Detective Young was expected to say. See V.R.E. 103(a) (“Error may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right of the party
is affected, and . . . [where] the ruling is one excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent from the context within which questions
4
Defendant provides a transcript of an audiotaped interview of mother by Detective Young
in which mother claims to have accurately described the photos to the counselor many years prior,
but this citation does not tell us where, if anywhere, the trial record reflects an attempt by defendant
to elicit this evidence in the trial.
11
were asked.”). Defendant did not attempt to question Detective Young about the purported
inconsistent statement by mother when Detective Young testified during the State’s case in chief,
nor when she testified in the State’s rebuttal case. Defendant has not pointed us to an instance
when he sought to call Detective Young in his own case for the purpose of asking this question.
Because defendant has not identified a request, proffer, and ruling for us to review, we cannot
conclude that the trial court committed error.5
C. Testimony of Counselor
¶ 30. In connection with the same issue, defendant sought to call the counselor from the
program mother was enrolled in to testify that mother had told the counselor back in 2010 that the
pictures mother had taken and sent to defendant were essentially benign, and that mother did not
disclose the sexually abusive nature of the pictures to the counselor. In declining defendant’s
request, the court explained that mother had already admitted to committing the 2009 acts, and the
proffered testimony showing that mother lied about them to her counselor in 2010 would add little.
¶ 31. While constitutional concerns do limit the trial court’s discretion to exclude
evidence impeaching the credibility or exposing the bias of a witness such as mother, the court’s
ruling denying defendant’s request to call the counselor for this purpose was well within its
discretion. The Confrontation Clause limits trial courts’ discretion to restrict impeachment of a
key prosecution witness’s credibility. Cartee, 161 Vt. at 76, 632 A.2d at 1111. This is because
the purpose of confrontation is to give the opponent the chance “to test the truth and accuracy of a
witness’ testimony” and expose “a witness’ motivation in testifying.” Id. at 76, 632 A.2d at 1110
(quotation omitted)). Preventing criminal defendants from introducing impeachment evidence to
5
If the record contained a ruling precluding defendant from calling Detective Young to
testify that mother told Detective Young that mother had previously accurately described to her
counselor the photos she took of A.B. in 2009, the court’s ruling would not have been an abuse of
discretion for the same reasons the court’s ruling excluding testimony by the counselor herself was
not an abuse of discretion. See infra, ¶¶ 30-33.
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expose a witness’s bias would render cross-examination “largely an empty gesture.” Id. at 77,
632 A.2d at 1111. Moreover, jurors are “ ‘entitled to have the benefit of the defense theory before
them so that they [can] make an informed judgment as to the weight to place on the witness’
testimony.’ ” Id. at 76, 632 A.2d at 1110 (alterations omitted) (quoting Davis v. Alaska, 415 U.S.
308, 317 (1974)).
¶ 32. In this case, though, the jury heard the core evidence to support defendant’s theory
that mother sexually abused A.B. when A.B. was an infant; that defendant argued with mother and
called her a child molester shortly before mother reported A.B.’s disclosures; and that mother then
reported A.B.’s disclosures to the police, along with mother’s own actions six years prior, in an
effort to preempt any report defendant might make about mother’s conduct and shift the attention
to him.
¶ 33. Evidence that mother did not fully disclose the contents of the pictures when she
spoke to her counselor about them in 2010 would have, at most, impeached mother’s credibility
by exposing somewhat inconsistent statements on a collateral matter—that is, the scope of her
2010 disclosures to her counselor about the photos she took. A court has broad discretion to
exclude extrinsic evidence introduced to impeach a witness on a collateral matter. See V.R.E.
608(b) (providing that extrinsic evidence may not be used to prove instances of witness’s conduct
for purposes of attacking or supporting witness’s credibility, other than conviction of crime as
provided in Rule 609); State v. Congress, 2014 VT 129, ¶¶ 46-48, 198 Vt. 241, 114 A.3d 1128
(upholding trial court’s refusal to allow extrinsic evidence to impeach witness on collateral
matters: whether witness truly needed glasses to read document in court, and whether witness truly
lacked education to do so). Mother’s actions toward A.B. in 2009 may not be collateral to the
issues in this case given defendant’s theory that they explain mother’s bias and motives to coach
a false allegation against defendant. Mother’s candor to her counselor five years before the events
at issue in this case, on the other hand, lacks “even a tenuous connection to [her] testimony about
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what she observed in connection with the events at issue in this case.” Congress, 2014 VT 129,
¶ 48. The court acted within its discretion in excluding this evidence.
D. Testimony of DCF Social Worker
¶ 34. Defendant challenges the trial court’s ruling precluding him from calling the DCF
social worker to testify that (1) mother denied speaking with A.B. about her sexual abuse of A.B.
as an infant and (2) the social worker observed that A.B. provided a high level of detail regarding
the charges against mother.
¶ 35. As with his challenge concerning testimony from Detective Young that he contends
was improperly excluded, defendant does not provide a record citation to a specific proffer of
evidence and court ruling excluding the evidence he describes in this challenge on appeal, so our
ability to review the argument is limited. See V.R.A.P. 28(a)(4)(A). Instead, defendant’s brief
cites to a lengthy bench conference among counsel and the court regarding defendant’s desire to
call mother as a witness in order to elicit mother’s testimony that she did not disclose her past 2009
sexual abuse to A.B. The focus of the discussion was whether such questioning would implicate
mother’s Fifth Amendment rights, and whether mother had waived her right against self-
incrimination.
¶ 36. Defendant’s express purpose at trial for seeking to elicit the testimony from mother
was to impeach A.B. That is, defendant was not trying to undermine mother’s credibility by
showing that mother denied disclosing the 2009 abuse to A.B. when, in fact, she did. Instead, he
sought to show that mother did not disclose the 2009 abuse to A.B., thereby calling into question
A.B.’s credibility as a reporter of sexual abuse. In the context of this back-and-forth between the
parties and court concerning mother’s Fifth Amendment rights, defense counsel raised the
possibility of calling a social worker to testify that mother had denied disclosing the 2009 abuse
to A.B. The court first suggested that would be hearsay, but then after further discussion concluded
that it might not be hearsay if used to impeach mother by showing she had said different things to
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different people. The court did not make any ruling at all regarding the admissibility of potential
testimony by the social worker on this point. In fact, when defense counsel indicated that he might
need to lay more foundation from the social worker “who will say that A.B. said these things,” the
court replied, “Okay. Then fine.” Thereafter, the discussion turned back to mother’s Fifth
Amendment rights and went from there. Nowhere in the discussion cited by defendant in his brief
on appeal did the court rule that defendant could not call the DCF social worker to testify that (1)
mother denied speaking with A.B. about her sexual abuse of A.B. as an infant and (2) the social
worker observed that A.B. provided a high level of detail regarding the charges against mother.
¶ 37. Not only has defendant failed to cite to a specific trial-court ruling excluding the
evidence he now argues was wrongly excluded on appeal, but when defendant sought to call the
DCF social worker, his proffer as to her expected testimony did not include either of the two items
that he now relies upon as the basis for his appeal.6 Because defendant has not directed us to any
actual ruling excluding the testimony he now says was wrongly excluded, and has not pointed us
to any proffer in the trial court, we cannot review his claim of error on appeal. See V.R.E.
103(a)(2).7
E. Evidence Concerning DCF’s 2010 Assessment of Defendant
¶ 38. Twice defendant sought to present evidence that in 2010 DCF viewed defendant as
a stable and supportive factor in the family. First, defendant indicated an intent to offer into
evidence a DCF report reflecting that in 2010 DCF viewed defendant as the more stable parent in
6
The proffer instead related to DCF’s 2010 assessment of defendant, mother, and their
family. See infra, ¶¶ 38-39.
7
We note that if defendant did proffer that the social worker would testify that mother
denied telling A.B. about the 2009 sexual abuse, the trial court would have acted within its
discretion in excluding the testimony. Given that mother herself testified that she did not tell A.B.
about the 2009 abuse, the court could have concluded that testimony from a third party reporting
that mother made the same denial to the third party would be cumulative. Pcolar, 2012 VT 58,
¶ 9.
15
the family.8 The court questioned the relevance of the report, particularly given its remoteness.
Second, when defendant sought to call the DCF social worker referenced above, counsel proffered
that he expected the social worker to testify that back in 2010 DCF viewed defendant as a stable
and supportive factor in the family. The trial court concluded that the evidence was not relevant
to any of the issues in the case and was not proper character testimony.
¶ 39. The trial court did not abuse its discretion in excluding evidence regarding DCF’s
assessment of defendant’s role in the family five years prior to the charges in this case—when
A.B. was a very young child. The court could reasonably conclude that the proffered evidence did
not tend to make the existence of any fact of consequence to determining defendant’s guilt any
more or less probable. See V.R.E. 401 (defining “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable”); In re Letourneau, 168 Vt. 539, 554,
726 A.2d 31, 41 (1998) (“[T]he trial court has broad discretion to exclude marginally relevant
evidence that is remote, tends to confuse the issues or causes a waste of time.”).9
8
In his brief in chief, defendant asserts that the court did not allow defendant to call the
DCF caseworker who wrote this report. In his reply brief, defendant indicated that he did not seek
to call that caseworker as a witness but only sought to introduce her report. It is not clear how
defendant intended to introduce the caseworker’s report if he did not call her as a witness, and
defendant has not pointed to any place in the record reflecting that during the trial defendant
offered the report into evidence or sought to call its author as a witness. In any event, our analysis
does not turn on whether the excluded evidence would have come in through oral testimony or a
written report, and does not turn on which witness defendant relied on to introduce the report.
9
In his brief on appeal, defendant also contends that the trial court precluded him from
presenting evidence that mother was deemed a potential danger to A.B. because of her mental-
health issues. He does not provide a record citation to any such proffer or ruling, but the claimed
evidence appears to be linked to the same 2010 DCF report that described defendant as a positive
factor in the family. To the extent that defendant proffered evidence falling into this second
category—DCF deemed mother a danger to A.B. because of her mental-health issues—and the
court ruled on such proffers, we likewise conclude that the trial court did not abuse its discretion
in excluding evidence of DCF’s assessment of mother’s parenting skills in or around 2010.
16
F. Discovery and Testimony About Dr. Gilligan’s Evaluation of Mother
¶ 40. Defendant contests the limits the court put on the disclosure to defendant of a
psychosexual evaluation of mother conducted in connection with the criminal prosecution of
mother for the 2009 act of sexual abuse described above, and on the testimony of its author.
¶ 41. In connection with criminal charges against mother for her role in the 2009 sexual
abuse of A.B., Dr. Claire Gilligan conducted a forensic evaluation of mother, which was provided
to the State in connection with mother’s separate criminal case. Defendant requested an order
requiring the State to disclose the evaluation to him, and the State objected, filing a copy of the
evaluation with the court under seal. The court ruled that the forensic evaluation was not protected
by any patient privilege, but concluded that much of the evaluation contained private and personal
information not relevant to defendant’s case. The court disclosed limited portions of the evaluation
that it concluded might be relevant to defendant’s case. The court indicated that it would consider
further disclosures upon receiving defendant’s written motion outlining why further portions of
the evaluation might be relevant.
¶ 42. Before trial, the State filed a motion in limine requesting the exclusion of testimony
about mother’s mental health. The State argued that there was no evidence about the state of
mother’s mental health at the time of A.B.’s disclosure and mother’s report, there was no evidence
that mother was suffering from any mental-health condition that would affect her ability to
perceive and recall events, and mother’s mental health had no bearing on the existence of any fact
of consequence.
¶ 43. Defendant opposed the motion and said he wanted to introduce evidence from Dr.
Gilligan’s report. Defendant asked the court to revisit its previous ruling releasing only a redacted
copy of the report to him, and argued that mother’s mental state more broadly was relevant to the
dynamic of mother’s relationship with him and the allegations in this case. The trial court
expressed doubt, explaining that evidence of mother’s conduct may be relevant, but evidence about
17
her mental health and what inferences might be drawn from that is “really, really . . . far afield.”
The court said, “I’m not saying it could not be relevant. I’m just saying I think you’re out at the
outer fringes.” It added, “I am doubtful about whether we’re going to get into mother’s mental
health history in connection with that. But we’ll see.” The court indicated that it would review
the psychosexual evaluation and reserved judgment on the motion until trial.
¶ 44. Immediately prior to trial, defendant subpoenaed Dr. Gilligan to testify. Dr.
Gilligan responded with a request to quash the subpoena on the ground that she did not have ample
notice and was not able to reschedule previously scheduled interviews and evaluations without
considerable difficulty and consequences.
¶ 45. At the beginning of trial, the court expressed generally that the issue before it was
whether or not defendant committed the alleged acts. It indicated that evidence relating to mother’s
motives or arguments between the parents was fair game, but evidence about mother’s “mental
health status as such” was not relevant. The court reaffirmed its prior decision giving defendant
only partial access to the psychosexual evaluation10 and generally deferred specific rulings
regarding the admissibility of specific testimony until the court heard the testimony.
¶ 46. After the court had taken some testimony, it took up the question of Dr. Gilligan’s
subpoena. The court was inclined to tell Dr. Gilligan that she need not respond to the subpoena.
Defendant emphasized that Dr. Gilligan’s testimony was significant because mother told her
something that she did not tell anybody else: that she (mother) told the police about her 2009 sexual
abuse of A.B. on the night she disclosed A.B.’s report about defendant because mother thought
the report about her own sexual abuse of A.B. would sound better coming from her than from
defendant. The court did not question the relevance of this testimony, but directed defendant to
first cross-examine mother, on the theory that if mother testified to that effect, then testimony on
10
The judge who issued the pretrial discovery ruling was not the judge who presided over
the trial.
18
that point from Dr. Gilligan would be cumulative. Accordingly, at the end of the State’s case,
defendant indicated that Dr. Gilligan might not be needed, depending on mother’s testimony.
¶ 47. As mother testified, defendant repeatedly refreshed mother’s recollection with a
copy of Dr. Gilligan’s redacted report. As a consequence, mother ultimately testified herself that
she reported her own 2009 sexual abuse of A.B. to the police in connection with her report of
A.B.’s allegations concerning defendant because she thought it would be better coming from her
than defendant and she was worried about defendant making a report that night about her sexually
abusing A.B. At the end of mother’s testimony, defense counsel agreed that the court could tell
Dr. Gilligan that she did not have to testify, saying, “I think we covered any relevance out of Dr.
Gilligan.”
¶ 48. Reviewing defendant’s challenges, we conclude that the trial court acted within its
discretion in limiting defendant’s access to the report of Dr. Gilligan’s psychosexual evaluation of
mother to those portions not redacted by the court. To the extent that the court precluded Dr.
Gilligan from testifying about mother’s mental health, it acted within its discretion.
¶ 49. When a defendant seeks a witness’s mental-health records which are in the State’s
custody, and the State objects to their disclosure, the defendant is entitled to have the court review
the requested documents. The trial court has discretion to determine whether the records “contain
information critical to the defendant’s ability to impeach the witness” and would “therefore
warrant disclosure. If the court concludes that, in its judgment, the records contain no information
that should be disclosed, then the material may remain under seal and be made available for
inspection on appellate review [by the reviewing court].” State v. Barbera, 2005 VT 13, ¶ 12, 178
Vt. 498, 872 A.2d 309 (mem.) (citations and quotation omitted). The court has discretion to decide
which, if any, portions of the records should be disclosed, State v. Rehkop, 2006 VT 72, ¶ 26 n.2,
180 Vt. 228, 908 A.2d 488, but this “discretion is not unbounded.” Pennsylvania v. Ritchie, 480
19
U.S. 39, 60 (1987). The court is “obligated to release information material to the fairness of the
trial.” Id.
¶ 50. After reviewing the sealed psychosexual evaluation with these considerations in
mind, we conclude that the trial court’s discovery order was within its discretion. The disclosed
portion of the report includes all of the report’s discussion concerning the circumstances
surrounding A.B.’s disclosure, including a description of mother’s fight with defendant that
evening, mother’s fears that he would use the 2009 incident to take A.B. away from her, and the
manner in which A.B. made the disclosure. It includes a description of the 2009 incident and
mother’s 2010 reports to the program in which she was enrolled and to DCF in connection with
their questioning about the photos. It also includes discussion of mother’s alleged disclosure about
the 2009 incident to A.B. during a supervised visit following her report to the police about
defendant, and mother’s claim to A.B. that defendant made her do it; and reports from A.B.’s foster
mother regarding A.B.’s disclosures to the foster mother concerning abusive acts by defendant and
A.B.’s reflection that her mother had done a “bad thing” to her. These are the essential pieces
relating to defendant’s theory of the case. By contrast, the redacted content that was not produced
to defendant includes a detailed psychosocial history of mother, psychological testing, and the
evaluator’s summary of other documents that are directly available to defendant (such as Detective
Young’s affidavit concerning her initial interview with mother). Given the legal framework set
forth above, these redactions were well within the trial court’s discretion.
¶ 51. With respect to defendant’s challenge to the exclusion of evidence, we find no clear
ruling actually limiting Dr. Gilligan’s testimony except a broad discussion by the court of the
relevance of mother’s mental health in general, as contrasted with her conduct. The court’s ruling
on this subject was in response to a general motion in limine filed by the State, and did not purport
to address a specific proffer by defendant. The court deferred its actual rulings as to admissibility
of evidence until it had heard the relevant testimony. Defendant never proffered testimony from
20
Dr. Gilligan concerning some specific aspect of mother’s mental health, so it is difficult to review
defendant’s claim that the court precluded him from presenting testimony from Dr. Gilligan about
mother’s mental health.
¶ 52. To the extent that defendant construed the trial court’s general discussion of the
relevance of mother’s mental health as such as a ruling, and refrained from seeking Dr. Gilligan’s
testimony concerning mother’s mental health on that basis, the trial court acted within its
discretion. The court left open a wide range of evidence concerning mother’s conduct, including
conduct that reflected on or stemmed from mental-health issues. Defendant did not make a specific
proffer of evidence relating to mother’s mental health as such that was relevant to mother’s
capacity to tell the truth, predisposition to coaching A.B. to make false accusations, or other
matters at issue in this case. Based on defendant’s own proffer, Dr. Gilligan’s testimony
concerning mother’s mental health related to mother’s mental health in 2009, at the time mother
engaged in the sexually abusive conduct. The court could reasonably conclude that mother’s
mental state in 2009, six years before the disclosure by A.B. and report by mother that set this case
in motion, was too remote in time to be relevant to this case, and would unduly confuse the issues.
See Letourneau, 168 Vt. at 554, 726 A.2d at 41.
¶ 53. Although we have relied primarily on the Vermont Rules of Evidence in the above
analysis of defendant’s various evidentiary challenges on appeal, we emphasize that our reasoning
in each case applies to defendant’s constitutional due process claims as well. The U.S. Supreme
Court has recognized that the exclusion of critical evidence denies a defendant a fair trial in accord
with the mandates of due process. Chambers v. Mississippi, 410 U.S. 284 (1973). Chambers held
that prohibiting a defendant from cross-examining a witness who had previously confessed to the
murder the defendant was charged with, and prohibiting the defendant from offering the testimony
of three people who had heard the witness confess to the murder, prevented him from introducing
evidence “critical to [his] defense” and deprived him of due process. Id. at 302-303. Unlike in
21
Chambers, defendant was not precluded from introducing any critical evidence. Where a trial
court acts within its discretion to exclude evidence, there is no due process violation. See State v.
Lamb, 142 Vt. 87, 89, 453 A.2d 78, 79 (1982) (holding that where defendant did not explain how
evidence was admissible, argument that its exclusion violated his right to due process was
meritless). The trial court here acted within its discretion, and there is no due process violation.11
III. Ruling Allowing A.B. to Testify out of Defendant’s Presence Under Rule 807(f)
¶ 54. Defendant raises four distinct objections to the trial court’s order allowing A.B. to
testify outside of his presence and the implementation of that order. The generally relevant
background is as follows. Before trial, the State filed a motion pursuant to Vermont Rule of
Evidence 807 to permit A.B. to provide her trial testimony by two-way closed-circuit television or
videotape outside of the courtroom.
¶ 55. Following a hearing, the court granted the motion. Relying on the testimony of
A.B.’s therapist of many months, the court found that A.B. had been diagnosed with post-traumatic
stress disorder. The bases for the diagnosis included A.B.’s flashbacks and intrusive thoughts
about the alleged abuse, difficulty sleeping, irritability without provocation, frequent outbursts of
crying, and anger and frustration—symptoms that persisted at the time of the hearing. The court
found that A.B. has a strong reaction to discussion of the events underlying these criminal charges
and has difficulty talking about the allegations even with her own therapist.12 A.B.’s reaction to
discussing these events has included “curling up in a ball, shutting down and not talking.” The
court credited the therapist’s opinion that requiring A.B. to testify in a courtroom setting “creates
11
Likewise, defendant does not make out a claim under the Vermont Constitution. State
v. Brillon, 2010 VT 25, ¶ 6, 187 Vt. 444, 995 A.2d 557. “Merely citing the Vermont Constitution,
without providing any analysis of how the state constitutional provision compares with its federal
analog, does not adequately present the issue for our review, especially where the argument was
not presented in the trial court.” Id.
12
The court noted that there was a brief period during which A.B. spoke excessively freely
and openly about the events, but that that period had passed.
22
a substantial risk of trauma to A.B. which would substantially impair her ability to testify” and a
substantial risk that she would be unable to respond to questions.
¶ 56. In addition, in light of A.B.’s high degree of trauma caused by defendant’s alleged
actions, together with her fear and anger toward defendant and the significant period of time not
seeing him, the court also concluded that requiring A.B. to hear and see defendant “would present
a substantial risk of trauma to A.B. and would substantially impair her ability to testify.” The court
credited the therapist’s testimony and found that “it is highly likely that A.B. would completely
shut down and respond in a very strong emotional manner.” The court accordingly ordered that
defendant be situated in a manner that A.B. could not see or hear him during her testimony.
¶ 57. On appeal, defendant argues that Rule 807(f), the provision that allows for child
testimony outside of the sight and hearing of a defendant in limited circumstances, is facially
unconstitutional. He further argues that the trial court abused its discretion in granting the motion,
both because the court should not have allowed A.B.’s therapist to testify and because defendant
was wrongly precluded from visitation with A.B., which led to the estrangement that supported
the trial court’s assessment. Finally, he argues that the way the order was implemented prevented
him from having contemporaneous contact with his counsel during counsel’s questioning of A.B.
We will consider each of these challenges in turn.
A. Constitutionality of Rule 807(f)
¶ 58. Defendant argues that Rule 807(f) is facially unconstitutional because it allows
infringement upon the right to confrontation without the constitutionally required showing of
necessity. In particular, he emphasizes that Rule 807(f) allows a child witness in a sexual-assault
case to testify without hearing or seeing the defendant if hearing or seeing the defendant would
pose “a substantial risk of trauma to the child . . . which would substantially impair the ability of
the child . . . to testify.” Defendant argues that standard allows for an exception to a defendant’s
23
confrontation rights without a showing that seeing or hearing the defendant would cause the child
significant trauma, as required by Maryland v. Craig, 497 U.S. 836 (1990).
¶ 59. The State counters that the required finding that a child faces a “substantial risk of
trauma” is essentially the same as a finding that the child is likely to suffer trauma, and argues that
Craig does not require a finding of significant trauma—it simply requires that the trauma be more
than minimal.
¶ 60. Because defendant failed to raise this claim before the trial court, we review it for
plain error. V.R.Cr.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.”); State v. Oscarson, 2004 VT 4, ¶ 27,
176 Vt. 176, 845 A.2d 337 (explaining that plain error is limited to “exceptional circumstances
where a failure to recognize error would result in a miscarriage of justice, or where there is glaring
error so grave and serious that it strikes at the very heart of the defendant’s constitutional rights”
(quotation omitted)).
¶ 61. In evaluating Rule 807(f), “we employ tools similar to those we use in statutory
construction. That is to say that when construing a rule, we consider its plain language and the
purpose it was designed to serve.” State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126.
Because this court rule was adopted pursuant to an act of the Legislature, we must be mindful of
the Legislature’s intent. Vt. Const. ch. II, § 37 (providing that “[a]ny rule adopted by the Supreme
Court may be revised by the General Assembly”); 1985, No. 82, § 1 (revising Article VIII of the
Vermont Rules of Evidence by adopting Rule 807); Deutsche Bank v. Pinette, 2016 VT 71, ¶ 17,
202 Vt. 328, 149 A.3d 479 (“When interpreting a statute or rule, our overriding goal is to effectuate
the drafter’s intent . . . .”). We presume statutes passed by the Legislature are constitutional, and
when possible construe them to avoid constitutional infirmity; we will afford rules implemented
by the Legislature the same presumption of constitutionality. See In re M.C., 2018 VT 139, ¶ 9,
__ Vt. __, __ A.3d __ (noting that this Court will “construe statutes to avoid constitutional
24
difficulties, if possible” (quotation omitted)); State v. Noll, 2018 VT 106, ¶ 21, __ Vt. __, 199
A.3d 1054 (“We afford statutes a presumption of constitutionality.”).
¶ 62. Exceptions to the Sixth Amendment right to confrontation are few and narrow. The
exception for a child witness in a prosecution for sexual assault on that child applies only upon a
showing that testifying in the defendant’s presence would cause emotional trauma that is not mere
nervousness or excitement or reluctance to testify but, rather, would impair the child’s ability to
communicate. Rule 807 does purport to allow for an exception to the right of confrontation upon
a lesser showing, in violation of the Sixth Amendment. However, because the trial court in this
case made a finding satisfying the more rigorous constitutional standard, we conclude that
defendant has not shown plain error.
¶ 63. The Confrontation Clause, which applies to the states through the Fourteenth
Amendment, provides that in “criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. The Supreme Court has long
understood face-to-face confrontation with adverse witnesses to be central to the integrity of a
criminal trial, in part because of the long-standing belief that it is harder to lie about someone to
their face than behind their back. Coy v. Iowa, 487 U.S. 1012, 1019 (1988).
¶ 64. The Confrontation Clause does not, however, provide “defendants the absolute
right to a face-to-face meeting with witnesses against them at trial”; it rather “reflects a preference
for face-to-face confrontation at trial.” Craig, 497 U.S. at 844, 849. This is, however, a strong
preference, and a “defendant’s right to confront accusatory witnesses may be satisfied absent a
physical, face-to-face confrontation at trial only where denial of such confrontation is necessary
to further an important public policy and only where the reliability of the testimony is otherwise
assured.”13 Id. at 850 (emphasis added).
13
To the extent that defendant raised a claim for the first time at oral argument that A.B.’s
testimony was insufficiently reliable because A.B. did not know she was testifying in a legal
25
¶ 65. The Supreme Court has held that a state’s “interest in protecting child witnesses
from the trauma of testifying in a child abuse case” is a sufficiently important public policy to
justify an incursion on the right to face-to-face confrontation, “[g]iven the State’s traditional and
transcendent interest in protecting the welfare of children, and buttressed by the growing body of
academic literature documenting the psychological trauma suffered by child abuse victims who
must testify in court.” Id. at 850, 855 (quotation omitted). However, the State must make “an
adequate showing of necessity” in each individual case to justify allowing a child to testify outside
the defendant’s presence; otherwise such testimony would violate the Confrontation Clause. Id.
at 855.
¶ 66. To make this showing of necessity, the State must show that the “witness would be
traumatized, not by the courtroom generally, but by the presence of the defendant.” Id. at 856. It
must also show that the witness would suffer a level of emotional trauma that “is more
than . . . mere nervousness or excitement or some reluctance to testify” and “would impair the
child’s ability to communicate.” Id. at 856-57 (quotation omitted). The U.S. Supreme Court has
not decided the minimum level of trauma required, but did hold that a state statute requiring “that
the child witness will suffer ‘serious emotional distress such that the child cannot reasonably
communicate,’ clearly suffices to meet constitutional standards.” Id. at 856 (citing Md. Code Ann.,
Crim. Proc. § 11-303(b)(1)).14
¶ 67. Rule 807(f) on its face does not require a showing that meets this constitutional
standard. It purports to allow a child witness to testify outside of a defendant’s presence upon a
showing of “a substantial risk of trauma to the child” that would “substantially impair the ability
proceeding, we do not consider it. We will not consider issues, even those of a constitutional
nature, that are insufficiently raised and inadequately briefed. Brillon, 2010 VT 25, ¶ 6.
14
At the time Craig was decided, the statute was at Md. Cts. & Jud. Proc. Code Ann. § 9–
102(a)(1)(ii).
26
of the child . . . to testify.” (Emphasis added.) Craig held that the “trial court must find that the
child witness would be traumatized” by the defendant’s presence and that “the trauma would
impair the child’s ability to communicate.” 497 U.S. at 856-57 (emphases added). We understand
the requirement that the court find that the child “would be” traumatized to require proof of not
only a “risk” of trauma, or a “substantial risk” of trauma, but that it is more likely than not—in
other words, that there is a preponderance of the evidence—that the child will be traumatized. See
In re Watford, 809 S.E.2d 651, 656 (Va. 2018) (holding “use of the word ‘would’ focuses the
inquiry . . . on the likely” outcome (quotation omitted)). Rule 807(f) does not appear to require a
preponderance of the evidence; it requires a finding that testifying face-to-face to the defendant
pose “a substantial risk of trauma to the child . . . which would substantially impair the ability of
the child . . . to testify.” (Emphasis added.) Requiring a finding of “substantial risk” suggests a
standard more analogous to probable cause or reasonable suspicion than a “preponderance.” 15 See
15
At least one court has concluded that the U.S. Constitution, as construed in Craig,
requires proof by a more onerous “clear and convincing” standard. See State ex rel. Montgomery
v. Padilla, 371 P.3d 642, 645-46 (Ariz. Ct. App. 2016) (“Given the constitutional significance of
limiting a defendant’s right to confront witnesses face-to-face and a . . . defendant’s right to
personally cross-examine those witnesses, . . . the heightened standard of clear and convincing
evidence must apply.”); see also Commonwealth v. Bergstrom, 524 N.E.2d 366, 376 (Mass. 1988)
(holding that under the Massachusetts Constitution, “in the absence of a waiver, the
Commonwealth must show, by more than a mere preponderance of evidence, a compelling need
for use of such a procedure. Such a compelling need could be shown where, by proof beyond a
reasonable doubt, the recording of the testimony of a child witness outside the courtroom (but in
the presence of the defendant) is shown to be necessary so as to avoid severe and long lasting
emotional trauma to the child.”).
Other courts have explicitly or implicitly endorsed a preponderance standard. See, e.g.,
Brady v. State, 575 N.E.2d 981, 984-86 (Ind. 1991) (holding Indiana statute that allowed child to
testify outside of court upon finding it was more likely than not that trauma would result from
testifying in defendant’s presence met requirements of Craig); Taylor v. Wall, 821 A.2d 685, 690
(R.I. 2003) (holding that court’s finding that child “would suffer unreasonable and unnecessary
mental and emotional harm if required to testify in defendant’s presence” satisfied Craig
requirements).
Some states expressly include a preponderance standard in their statutes. See Ga. Code
Ann. § 17-8-55(d); Mass. Gen. Laws Ann. ch. 278, § 16D(b)(1). Other states require that the
prosecution prove that testifying in the defendant’s presence would traumatize the child by clear
27
State v. Perley, 2015 VT 102, ¶ 19, 200 Vt. 84, 129 A.3d 93 (explaining that “probable cause” is
a lower standard than “preponderance” of the evidence); State v. Simoneau, 2003 VT 83, ¶ 14, 176
Vt. 15, 833 A.2d 1280 (explaining that reasonable suspicion to support a traffic stop must be “more
than an unparticularized suspicion or hunch of criminal activity, but needs considerably less than
proof of wrongdoing by a preponderance of the evidence”).
¶ 68. The requirements of Rule 807(f) are clearly less stringent than Craig’s requirement
of a finding that the child would be traumatized, and that the trauma would impair the child’s
ability to communicate. Craig, 497 U.S. at 856-57.16 For that reason, we agree with the
and convincing evidence. See Ark. Code Ann. § 16-43-1001(a)(1); Cal. Penal Code § 1347(b)(2);
Conn. Gen. Stat. § 54-86g(a); Idaho Code Ann. § 9-180(5)(1); Kan. Sess. Laws 22-3434(b); Mont.
Code Ann. § 46-16-229(1); Nev. Rev. Stat. Ann. § 50.580(1)(a); N.Y. Crim. Proc. Law
§§ 65.10(1), 65.20(2); Okla. Stat. Ann. tit. 12, § 2611.7(A); W. Va. Code Ann. § 62-6B-3(b).
We conclude that, although the Legislature is free to amend the rule to require proof by
clear and convincing evidence that testifying in a defendant’s presence will traumatize a child
witness, the U.S. Supreme Court’s decision in Craig does not require such a heightened standard.
We reach this conclusion for two reasons. First, had the Court intended to require a standard other
than a preponderance, it would have so specified. Cf. Jones v. Jones, 905 N.W.2d 475, 480 n.4
(Mich. Ct. App. 2017) (noting that when statute does not provide evidentiary burden, “default
preponderance of the evidence standard” applies). Second, the Maryland statute the Court upheld
in Craig did not require proof of trauma to the child by clear and convincing evidence. See Craig,
497 U.S. at 840 n.1 (quoting Maryland statute that allowed testimony by closed-circuit television
if “[t]he judge determines that testimony by the child victim in the courtroom will result in the
child suffering serious emotional distress such that the child cannot reasonably communicate”).
Accordingly, we conclude that the minimum standard required by the U.S. Constitution is proof
by a preponderance of the evidence. But see Knauff v. Hooks, No. 1:15-CV-338, 2016 WL
2587965, at *7 (S.D. Ohio May 4, 2016) (upholding statute allowing a child victim to testify
outside the defendant’s presence if there is a “substantial likelihood that the child victim will suffer
serious emotional trauma” from testifying in the defendant’s presence); State v. Foster, 957 P.2d
712, 727 (Wash. 1998) (en banc) (upholding statute allowing child witness to testify outside
defendant’s presence upon finding of “ ‘substantial evidence that requiring the child to testify in
the presence of the defendant will cause the child to suffer serious emotional or mental distress
that will prevent the child from reasonably communicating’ ” (quoting Wash. Rev. Code
§ 9A.44.150(1)(c)). We do not address the requirements of the Vermont Constitution on this point.
16
We note that the standard reflected in Rule 807(f) dates back to the Legislature’s 1985,
pre-Craig enactment. 1985, No. 82, § 1. Although the Legislature subsequently amended the rule
post-Craig, the primary purpose of that amendment was to expand the class of victim witnesses
subject to the rule. 1993, No. 100, § 12. We presume that the Legislature intends for this rule to
be applied in conformity with the U.S. Constitution, Vt. Educ. Bldgs. Fin. Agency v. Mann, 127
28
defendant’s argument that Rule 807(f) on its face could unconstitutionally allow for an exception
to a defendant’s confrontation rights without a sufficient showing. See United States v. Bordeaux,
400 F.3d 548, 553 (8th Cir. 2005) (noting that 18 U.S.C. § 3509, allowing child witness to testify
by two-way closed-circuit television upon finding child unable to testify in open court due to fear,
is “unconstitutional to the extent that it requires a different showing of fear from what Craig
requires”).
¶ 69. However, we do not reverse on that basis because notwithstanding the lower
standard reflected in Rule 807(f), the trial court made a constitutionally sufficient finding to
support its ruling under Rule 807(f). In particular, after making findings about the trauma A.B.
experienced in connection with the events giving rise to this prosecution, and her reaction to
attempts to discuss the topic, the court found that it was “highly likely that A.B. would completely
shut down and respond in a very strong emotional manner.”17 Although this finding doesn’t match
the approved language in Craig word for word, we conclude that the court found a high
likelihood—not just a substantial risk—that A.B. would be traumatized and that the trauma would
impair her ability to testify. Accordingly, we cannot conclude that the constitutional infirmity in
Rule 807(f) seriously affected defendant’s substantial rights. Oscarson, 2004 VT 4, ¶ 27 (“To
reverse on plain error, we must find not only that the error seriously affected substantial rights, but
also that it had an unfair prejudicial impact on the jury’s deliberations.”).
Vt. 262, 271, 247 A.2d 68, 74 (1968), and refer the matter to the Advisory Committee on the Rules
of Evidence to propose amendments to conform the rule to the requirements of the U.S.
Constitution.
17
We recognize that the court made other findings to the less rigorous “substantial risk”
standard called for in Rule 807(f), but conclude that in light of the court’s other specific factual
findings, the “highly likely” finding encompasses all the essential elements required by Craig.
29
B. Reliance on Testimony of Child’s Therapist
¶ 70. Defendant’s second challenge to the court’s ruling under Rule 807(f) is that the
court improperly relied on testimony from A.B.’s therapist in making the necessary findings. He
contends that the provider-patient relationship between the therapist and A.B. renders the therapist
biased given the therapeutic alliance between provider and patient. He points to the prohibition in
Rule 5 of the Vermont Rules of Family Procedure against appointing an expert who presently or
formerly provided treatment to the person being evaluated, and professional ethical requirements
prohibiting counselors from providing forensic evaluation services concerning current or past
clients. He concedes he did not object to the therapist’s testimony before the trial court.
¶ 71. Because defendant did not raise this argument before the trial court, we review the
court’s admission of this testimony for plain error. V.R.Cr.P. 52(b); Oscarson, 2004 VT 4, ¶ 27.
¶ 72. Defendant’s argument fails to recognize the distinction between a forensic
evaluator and a treating provider. The child’s therapist in this case was not retained by the court
to conduct an impartial assessment. She did not hold herself out to the court as a forensic evaluator.
She testified as A.B.’s treating clinician, and her testimony was expressly informed by that
therapeutic relationship.
¶ 73. A treating provider who satisfies the requirements of Vermont Rule of Evidence
702 may be a competent expert witness. That rule provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
V.R.E. 702. Although he questions the propriety of the therapist testifying given her therapeutic
relationship with A.B., defendant does not (and did not) contest her actual qualifications to testify
30
about the matters at issue, and does not contend that the testimony is not based upon sufficient
facts or methodology.
¶ 74. This is not to say that testimony in court from a treating provider is not potentially
fraught. Commentators have emphasized the distinction between the duties of a therapist versus a
forensic or neutral evaluator, and have highlighted the issues that may arise when an individual’s
treating therapist testifies as an expert in court. See, e.g., 1 Demothenes Lorandos & Terence
Campbell, Cross Examining Experts in the Behavioral Sciences § 2.3 (Nov. 2018 update)
(contrasting treating provider’s focus on therapeutic alliance with patient with expert witness’s
obligation to testify objectively and candidly); Kirk Heilbrun, Child Custody Evaluation: Critically
Assessing Mental Health Experts and Psychological Tests, 29 Fam. L. Q. 63, 69-71 (1995)
(identifying problems that arise when treating mental-health provider testifies in litigation).
¶ 75. But these issues are not disqualifying if a treating provider otherwise has sufficient
training and bases for opinions to meet the requirements of Rule 702. This Court has routinely
upheld trial courts’ reliance on expert testimony by a treating provider. See, e.g., State v. J.S., 174
Vt. 619, 621, 817 A.2d 53, 56 (2002) (mem.) (relying on testimony of appellant’s treating
psychiatrist to support trial court’s determination); In re K.M., 165 Vt. 569, 570, 678 A.2d 1263,
1264 (1996) (mem.) (relying in part on testimony of involuntarily hospitalized appellant’s treating
physician concerning appellant’s competence).
¶ 76. A proper response to the tensions between a treating provider’s roles as treater and
testifying expert is cross examination or impeaching evidence highlighting potential issues with
the treating provider’s testimony. See, e.g., 1 Lorandos & Campbell, supra, § 2:21 (laying out
model cross examination of treating provider); Mary Stumo, Holly M. Robbins & Julie M.
Giddings, Litigating the Sexual Harassment Case § 20.III (1st ed. 2010) (noting that treating
psychiatrists or psychologists may be vulnerable to attack by the defense).
31
¶ 77. While the therapist’s relationship with A.B. would have been a fair basis for cross
examination, defendant has identified no law suggesting that simply because she was A.B.’s
treating provider she could not provide expert testimony based on her training and her experience
treating A.B. Cf. State v. Dunbar, 152 Vt. 399, 410-11, 566 A.2d 970, 976-77 (1989) (holding
fact that clinician who testified only about general principles concerning child victims of sexual
assault was child victim’s treating provider did not, by itself, suggest bias).18 Given these
considerations, we conclude that the court’s admission of the therapist’s testimony was not plain
error.
C. Limits on Defendant’s Contact with A.B.
¶ 78. Defendant next argues that he was denied substantive due process because he did
not have pretrial visits with A.B., even though mother had supervised visitation with her, and that
fact led to the court’s decision to allow A.B. to testify by prerecorded video pursuant to Rule
807(f). Defendant did not raise these claims below, so we review them for plain error. V.R.Cr.P.
52(b); Oscarson, 2004 VT 4, ¶ 27.
¶ 79. In reviewing defendant’s argument, it is difficult to discern which ruling, of which
court, defendant asks us to review. Defendant does not directly challenge the trial court’s order
pursuant to Rule 807 that relies in part on the lengthy period of estrangement between defendant
and A.B. in authorizing A.B.’s testimony outside of defendant’s presence. Nor does he appear to
challenge any order of the trial court relating to defendant’s contact with A.B. In short, defendant
presents us no actual order in this case to review.19
18
Defendant’s reliance on Vermont Rule of Family Procedure 5 is misplaced. Not only is
that rule inapplicable to proceedings in the criminal division, but the rule, on its face, precludes a
current or former treating provider from conducting an evaluation for the court only when the
subject of the evaluation does not consent. V.R.F.P. 5(b).
19
Nor do we find an order in this docket prohibiting contact between defendant and A.B.
32
¶ 80. Instead, he asks us to take “judicial notice” of “discussions regarding visitation” in
a proceeding in the Family Division. Apparently, he is not actually challenging a court order in
the Family Division, but contends that “discussions” in that court support his claim. His reasoning
is that DCF generally opposed visitation unless defendant met a number of conditions, and that the
State is therefore accountable for the lack of contact between him and A.B., and for the subsequent
impact of that estrangement on his right to be visible to her while she testified in the criminal
proceeding.
¶ 81. Defendant has not raised a cognizable argument on appeal. To the extent that
defendant took issue with DCF recommendations to the court in the Family Division, he was free
to present contrary evidence in that setting. To the extent that he objected to a ruling of the Family
Division regarding contact or visitation, he was free to appeal that ruling. To the extent he objected
to the impact of a ruling of the Family Division on the proceedings in this criminal case, he could
have sought an order from the trial court mitigating that impact. He did none of these things.
Because defendant has not presented any legal challenges to any orders of the Superior Court,
Criminal Division, in this proceeding, he has not given us anything to review. See V.R.A.P.
28(a)(4) (explaining requirements for adequate briefing); King v. Gorczky, 2003 VT 34, ¶ 21 n.5,
175 Vt. 220, 825 A.2d 16 (declining to address constitutional challenges because briefing was
inadequate). We cannot, on that basis, find plain error.20
D. Communication with Attorney During 807(f) Testimony
¶ 82. Defendant contends that because he was unable to communicate with his attorney
during A.B.’s videotaped testimony, the proceeding violated his Sixth Amendment rights to
20
After oral argument, defendant moved for this Court to take judicial notice of “the
discussions regarding visitation” in a transcript of a disposition hearing in A.B.’s Family Division
proceeding. Because the proper forum for appealing a court order in the Family Division is an
appeal of that order from the Family Division, not an appeal of a criminal conviction of one of the
parties to the Family Division proceeding, we deny defendant’s motion.
33
counsel and to confrontation. Defendant represents that he sat in a separate room and heard the
audio of A.B.’s Rule 807 testimony by cell phone. He further represents that his cell phone was
placed on mute so that he could not be heard. He contends that the arrangement deprived him of
contemporaneous communication with his attorney, who was present in the room with A.B.
¶ 83. Defendant did not make any claim at the trial-court level about his inability to
contemporaneously communicate with his attorney during A.B.’s testimony, let alone that it
deprived him of constitutional rights. In fact, the video of the testimony shows that defendant’s
counsel was actively involved in the set-up for the testimony, in the presence of a judge.
¶ 84. We need not decide whether defendant has waived his objection,21 because even
assuming plain-error review applies, defendant has not shown plain error. V.R.Cr.P. 52(b);
Oscarson, 2004 VT 4, ¶ 27. The only evidence defendant offers of prejudice is that at one point,
the cell phone stopped working. At that moment, the State’s attorney asked A.B. about an
“incident with high heels.” Defendant claims on appeal that he did not hear A.B.’s reply that “I
do not want to remember the high heel thing,” and that had he heard it, “he could have asked his
counsel to followup.” He offers no indication that he had particular information about this
testimony to inform counsel’s follow-up or that counsel would have in fact followed up on his
suggestion, and he does not explain what kind of follow-up to this question would have been
helpful. His argument is too speculative to support plain error.
21
See State v. Tribble, 2012 VT 105, ¶ 35, 193 Vt. 194, 67 A.3d 210 (“Fundamental
constitutional rights, including the right to confrontation, can undoubtedly be waived.”); State v.
Koveos, 169 Vt. 62, 67-68, 732 A.2d 722, 726 (1999) (defendant could not argue he was denied
right to confront witness when he agreed to procedure that allowed admission of pretrial deposition
without live testimony of witness). But see State v. Grace, 2016 VT 113, ¶¶ 15-19, 204 Vt. 68,
165 A.3d 122 (holding, where “there [wa]s nothing to indicate that counsel consulted with
defendant on this point and explained his rights and what he would be sacrificing by not appearing,
or that defendant in response knowingly and voluntarily waived the right,” defendant had not
knowingly waived right to confrontation, and applying plain-error review).
34
IV. A.B.’s Counseling Records
¶ 85. Defendant argues that A.B.’s counseling records should have been discoverable
because, when the State requested that A.B. be allowed to testify pursuant to Rule 807, her mental
health became an element of a claim or defense under Vermont Rule of Evidence 503(d)(3), and
thus the records were no longer privileged. However, he has not identified any order by the trial
court which he claims was erroneous.
¶ 86. At the hearing on the State’s motion to allow A.B. to testify pursuant to Rule 807,
the State subpoenaed A.B.’s therapist to testify as to the trauma that testifying in defendant’s
presence would cause A.B. Counsel for the Howard Center, where the therapist was employed,
informed the court that the Howard Center had “obtained a very narrow release from DCF,” which
it represented was A.B.’s legal custodian at the time, to discuss only those portions of her mental-
health records that “related to the substance” of the inquiry under Rule 807. The Howard Center
said it intended to object to any questioning about A.B.’s mental-health records that went outside
the scope of the release and that could be understood to waive A.B.’s patient privilege more
broadly. Defendant objected, arguing that A.B.’s entire counseling record should “be open”
because all of the therapist’s contacts with A.B. informed the determination of the likelihood of
trauma to A.B. The court responded, “I think we can navigate it. If not—if I’m at a point where
I don’t feel comfortable issuing certain rulings to objections or offers, then I will recess, and we’ll
take a look at some law. But let’s attempt to proceed.” Defendant does not point to any indication
in the record that he subsequently made an objection or sought release of additional records in light
of testimony elicited, and he does not cite any subsequent court rulings on the matter.
¶ 87. In the absence of an actual ruling by the trial court, we have nothing to review. This
case is akin to State v. Hooper, 151 Vt. 42, 557 A.2d 880 (1988). In that case, the defendant argued
he should have been allowed to introduce evidence of a Federal Bureau of Investigation analysis
35
of the hair found on the victim. We concluded that the claim was not properly before us. We
explained:
Defendant’s evidence about the analysis of the hair samples was not
covered by the motion in limine and, therefore, was not excluded by
the grant of that motion. Defendant made no attempt to raise his
theory about the hair samples during his trial. Even though, at the
motion hearing, the trial court expressed its doubt that the evidence
regarding the hair samples would be admissible, it did not rule that
it was inadmissible. . . . Since defendant never availed himself of
the opportunity to present evidence to prove his argument during
trial, this Court has nothing before it to review.
Id. at 45-46, 557 A.2d at 882. Because defendant did not make specific requests for appropriate
discovery based on the testimony as it came out in the proceeding, the court never got the chance
to actually rule on the matter in the context of specific evidence, and defendant has nothing to
appeal.22
V. Expert Testimony and Vouching
¶ 88. Finally, defendant argues that the trial court abused its discretion in allowing
testimony by the State’s experts, Dr. William Halikias and Dr. Joseph Hagan, that impermissibly
vouched for A.B.’s credibility. Defendant did not raise these claims at the trial level, so we
review for plain error.
¶ 89. At trial, the State offered expert testimony by Dr. Halikias concerning current
research on children’s resistance to coercive questioning. The State offered Dr. Halikias’s
testimony in rebuttal to expert testimony put on by the defense concerning research showing that
repeated questioning, leading questions, and nonverbal cues can reduce the reliability of children’s
testimony and even alter their memories of events. When asked about research about children’s
ability to resist coercive questioning, Dr. Halikias noted that some studies have found that
22
Defendant explains his failure to follow up on this issue by stating that any request for
the records after the hearing would not have been helpful. He fails to acknowledge that he had the
opportunity during the hearing to point to specific testimony and argue that it opened the door to
further discovery before the conclusion of the hearing.
36
“remarkably few [children] affirm” a false, leading question. He testified about a study of
preschoolers subjected to repeated interviews in which adults asked “coercive questions, such as
he took your clothes off, didn’t he? We know that happened. We spoke to your mother. Your
mother told us about it. The older children told us about it. Now you tell us about it.” He noted
that “in that particular research study, ninety-one percent of the children resisted even that coercive
line of questioning.” Summing up the research in this field, he said “it’s never all” children who
resist coercive questioning. He concluded that “it’s certainly possible” to induce a child to falsely
say an adult took off their clothes, “but it’s difficult, and it becomes more difficult” to induce a
child to falsely recount “genital touch because young children don’t know what sex is.” He said
it is particularly hard to lead a child to falsely acknowledge or develop a false memory of genital
touch by someone the child is close to. He then went on to describe a study wherein researchers
induced college students to falsely believe they had committed a felony when they were fifteen by
repeatedly interviewing them and giving them false information. He concluded, “it’s possible” to
induce a false memory “even with adults. But it takes a lot of work, and it takes effort.”
¶ 90. The State also introduced expert testimony by Dr. Hagan as to the results of the
sexual-assault examination he performed on A.B. after her forensic interview. Dr. Hagan testified
that the examination findings were normal. He also testified that while he sometimes takes a
patient history, he did not take one for A.B. because sexual abuse is traumatic, and A.B. had just
been through a forensic interview in which she “made significant disclosures” that were “very
clear and graphic.” After reviewing those disclosures, Dr. Hagan and the nurse with whom he
was working decided that eliciting further history from A.B. was unnecessary, particularly because
of the concern that it would further traumatize her.
¶ 91. On appeal, defendant argues that Dr. Halikias vouched for A.B.’s credibility when
he testified that fewer than nine percent of children in a study were induced to falsely identify
genital touch. He also contends Dr. Hagan implied that A.B. had been sexually abused, thereby
37
vouching for her allegations against defendant, when he described her disclosures as significant,
clear, and graphic.
¶ 92. Because defendant did not timely raise either of these claims at the trial level, we
review for plain error. V.R.Cr.P. 52(b). To preserve a claim that evidence was improperly
admitted, a party must make “a timely objection or motion to strike.” V.R.E. 103(a)(1). “This
means that the objection must have been made at the time the evidence was offered or the question
was asked.” State v. Kinney, 171 Vt. 239, 253, 762 A.2d 833, 844 (2000) (alteration and quotation
omitted). Defendant did not make such a timely objection as to either expert’s testimony.
¶ 93. We conclude that neither Dr. Halikias’s nor Dr. Hagan’s testimony improperly
vouched for A.B.’s credibility, as neither directly commented on A.B.’s credibility.
¶ 94. Experts may not offer testimony that vouches, even implicitly, for another witness’s
credibility. See State v. Catsam, 148 Vt. 366, 370, 534 A.2d 184, 187-88 (1987). In Catsam, we
held that expert testimony that a child complainant in a sexual-abuse case had post-traumatic stress
disorder, or PTSD, and that people diagnosed with PTSD generally do not fabricate claims of
sexual abuse, was “the equivalent of a direct comment on the credibility of the testifying
complainant” and was thus inadmissible. Id. Similarly, in State v. Kinney, a case in which the
defendant was charged with aggravated sexual assault, an expert for the State testified that the
incidence of false reporting in rape cases was less than two percent. We held this to be
inadmissible because the jury could infer from the testimony that allegations of rape are almost
always true, and thus that the complainant’s allegation was almost certainly true. 171 Vt. at 253,
762 A.2d at 844. We affirmed the conviction, though, because admission of the improper
testimony did not rise to the level of plain error. Id. at 253, 762 A.2d at 845.
¶ 95. We likewise conclude that Dr. Halikias’s testimony does not rise to the level of
plain error. This is a close case: the jury could infer from the testimony that because only a small
percentage of children were induced to make false allegations, it was unlikely A.B. had been
38
coerced into falsely accusing defendant, and therefore she was likely telling the truth. We need
not decide whether, upon a proper objection, the testimony should have been stricken; we conclude
that any error does not rise to the level of plain error. See id. (finding no plain error because we
“cannot conclude that failure to exclude the inadmissible expert testimony caused a miscarriage of
justice in this case”). Several aspects of Dr. Halikias’s testimony in combination support our
conclusion that any error does not rise to the level of plain error. First, Dr. Halikias did not purport
to give a global statistic; he emphasized that the statistic he related arose from a particular study.
Second, his testimony as a whole emphasized how difficult it is to coerce children to falsely report,
but also acknowledged that it can be done. Third, the testimony was a logical response to the
testimony of defendant’s expert who described research suggesting that children can be coerced to
make false allegations. And finally, the focus of Dr. Halikias’s testimony was not on the general
truthfulness of children’s reports of sexual abuse but, rather, was on the susceptibility (or not) of
children to coercion or suggestion inducing false allegations.23
¶ 96. We conclude that admission of Dr. Hagan’s testimony was not error at all, let alone
plain error. We have held in the past that a physician’s testimony that a child sexual-abuse
23
Defendant additionally argues that Dr. Halikias gave false testimony, violating
defendant’s Fourteenth Amendment right to due process. In responding to defendant’s expert
witness’s statement that there is a “divide in the field about research on children’s disclosure of
sexual abuse,” Dr. Halikias said that is “not true” and that the “field is remarkably unified now
compared to twenty-five years ago, or twenty years ago, in terms of understanding how children
disclose.” On appeal, defendant submits numerous studies that he contends contradict this
testimony. Defendant did not object to the admission of this testimony in the trial court, and does
not actually argue on appeal that it is inadmissible—he just argues that it was false. The credibility
of a witness, including an expert witness, is a matter for the factfinder to decide. State v. Sullivan,
2018 VT 112, ¶¶ 17-18, __ Vt. __, 200 A.3d 670. Even if we understood defendant to implicitly
argue that the testimony was inadmissible, in the absence of an objection, we would review the
trial court’s admission of the evidence for plain error. V.R.Cr.P. 52(b). We find no plain error
here. Defendant was free to cross examine the State’s expert with the studies he presents on appeal,
to present contrary expert testimony, and to argue to the jury that the State’s expert’s assertions
were false. Where reasonable minds can differ in interpreting the evidence, we will not substitute
our own assessment of the state of research concerning children’s disclosure of sexual abuse for
the jury’s.
39
complainant’s “tone was remarkably declaratory, remarkably specific” was simply a description
of the complainant’s demeanor, “not tantamount to vouching for [the complainant’s] credibility.”
Oscarson, 2004 VT 4, ¶¶ 65-66. Likewise here, Dr. Hagan was not vouching for A.B.’s credibility
when he testified that her description of her sexual abuse was “significant,” “clear,” and “graphic.”
Rather, he was describing his reasons for refraining from questioning A.B. about her history when
she had just given a clear and graphic history to another.
Affirmed.
FOR THE COURT:
Associate Justice
40