State v. Bergquist, 17-281

Docket NºNo. 17-281
Citation211 A.3d 946
Case DateMarch 22, 2019
CourtUnited States State Supreme Court of Vermont

211 A.3d 946

STATE of Vermont

No. 17-281

Supreme Court of Vermont.

October Term, 2018
March 22, 2019
Reargument Denied May 1, 2019

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Richard R. Goldsborough, South Burlington, and David D. Carico, Redondo Beach, California, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


211 A.3d 951

¶ 1. 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 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

211 A.3d 952

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. 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,"

211 A.3d 953

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."

¶ 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...

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