State v. Noyes
| Decision Date | 09 July 2021 |
| Docket Number | No. 20-048,20-048 |
| Citation | 260 A.3d 1132 |
| Parties | STATE of Vermont v. Gordon NOYES, Jr. |
| Court | Vermont Supreme Court |
David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Defendant Gordon Noyes, Jr., was convicted by jury verdict of aggravated, repeated sexual assault of a child and lewd and lascivious conduct with a child, second offense. On appeal, he requests vacatur of these convictions and remand to the trial court, which he argues erred in (1) denying his motion for a mistrial following an expert witness's hearsay testimony in violation of a pretrial order; (2) allowing the same expert to testify regarding sex-offender behavior; and (3) permitting the jury to see a video of the complaining witness's statement to law enforcement in addition to her live testimony. In the alternative, defendant contends that if none of these individual circumstances merits reversal, their cumulative impact does. We affirm.
¶ 2. Due to the nature of defendant's argument on appeal, we begin by recounting the relevant procedural history of this case in some detail. The complaining witness, A.O., was ten years old in September 2013 when she made the disclosure giving rise to the instant charges. In the month following her mother's subsequent report to law enforcement, A.O. provided two recorded forensic interviews to an investigating officer, Sgt. Andrew Jensen of the Special Investigations Unit. At Sgt. Jensen's behest, A.O. was also interviewed and physically examined by Dr. Karyn Patno, a pediatrician specializing in child abuse.
¶ 3. Six years elapsed before the case was ready for trial. In that time, the court resolved several evidentiary disputes among the parties. Defendant had moved to exclude testimony by Dr. Patno, Sgt. Jensen, mother, and mother's partner about A.O.’s statements to them under Vermont Rule of Evidence 804a. Rule 804a is a limited exception to the hearsay rule applicable to statements by children under the age of twelve, provided those statements carry certain enumerated indicia of reliability. Applying this standard, the trial court held that A.O.’s statements to her mother and mother's partner were admissible under Rule 804a, as was the video of A.O.’s first interview with Sgt. Jensen, subject to any other evidentiary objections. But because the court found that law enforcement sent A.O. to see Dr. Patno for the purpose of gathering evidence, it concluded that although "the State would no doubt like to put on a well credentialed doctor to say that A.O. told her substantially the same thing as she said in her forensic interview," A.O.’s statements to Dr. Patno did not satisfy Rule 804a ’s hearsay exception and would not be admitted.
¶ 4. However, several evidentiary disputes remained to be considered. In the days prior to trial, defendant filed a motion in limine seeking to exclude portions of Dr. Patno's noticed testimony, and the State filed a motion indicating its intent to admit the video recording of Sgt. Jensen's first interview with A.O. The court took both matters up at a hearing the day before the trial began.
¶ 5. At that hearing, defense counsel explained that he had no objection to Dr. Patno's broader proffered testimony, including her opinion that the lack of physical indicia of abuse found in her examination of A.O. could be reconciled with A.O.’s statement that defendant penetrated her. However, he argued that Dr. Patno should not be permitted to testify about how she understands perpetrators of child sexual assault to behave. He highlighted the following portion of her written disclosure, in which she proposed to opine:
The most common perpetrator in child sexual abuse is a neighbor or close family friend. These perpetrators often plan to reuse their victims for the purpose of on-going sexual pleasure. In order to reuse a victim, it is important not to hurt or injure the victim during the assault, for if the victim is injured, she/he will cry, bleed and alert a parent or care giver. At that point the child will be discovered as a "victim" and the likelihood that the perpetrator will be discovered is great. The perpetrator's main goal is sexual gratification without discovery. This can easily be accomplished by rubbing the penis between the labia majora of the female victim thus avoiding penetration past the hymen into the vagina. ... This results in sexual pleasure for the perpetrator with minimal pain or injury to the child victim.
Defense counsel objected to this opinion on two grounds: first, he argued that it could not be supported by scientific literature; second, he contended that it led to the impermissible inference that because perpetrators of child sexual assault try not to injure their victims, and there was no evidence of injury detected in A.O.’s exam, defendant must be a perpetrator of child sexual assault.
¶ 6. Despite defense counsel's thorough explanation, the prosecutor repeatedly professed not to understand defendant's objection. Dr. Patno was called in the hopes that her testimony would elucidate the matter. She explained that there is literature in the field based on perpetrator admissions and interviews with children, and that although some might consider these findings "anecdotal," they are "part of the literature base that goes into understanding this field of medicine." Defense counsel asked her whether there was scientific research or literature "as to how often perpetrators do one type of sexual abuse as opposed to the other." She responded, "probably not that I'm aware of." Asked whether she could quantify or characterize "how often a perpetrator would do this less-intrusive type of sexual abuse as opposed to the more-intrusive type of sexual abuse," Dr. Patno indicated that she "can say it's common," but could not opine as to what percentage of the time it takes place. She clarified that from her understanding of the science and literature, "it is the opinion of people in this field," based on "experience and case review," that the less-intrusive form of abuse "happens commonly."
¶ 7. Defense counsel and Dr. Patno then discussed Dr. Patno's projected trial testimony about what a child's perception of penetration might be. Defense counsel indicated he did not object to testimony on this specific point. Dr. Patno said, "Well, that's what I'm going to testify to." The court asked, "if she testifies in a consistent fashion in what she just talked about, no objection?" Defense counsel responded, "Correct, Judge," confirming that the motion in limine had not "identified an objectionable statement from this witness," as he did not "see any problem with what [Dr. Patno] just said right there about what her role would be."
¶ 8. As to the video of Sgt. Jensen's first interview of A.O., defendant objected to the jury viewing it for two reasons. First, defense counsel indicated, without further elaboration, that he was concerned defendant would be prejudiced by the State playing "video evidence of a ten-year-old, when we're going to have a witness who's sixteen years old." The second basis for the objection was the affirming statements that Sgt. Jensen and a Vermont Department for Children and Families (DCF) worker who was present for the interview made to A.O. as she spoke with them. The court ruled that the final portion of the video, which contained the statements defendant identified, was not to be played for the jury. It did not issue any ruling on the prejudice question, and when the court inquired as to whether there were any other evidentiary issues to be addressed in advance of trial, defense counsel said no.
¶ 9. Defendant's trial began the next day. In the State's opening statement, the prosecutor explained that A.O. had not alleged "a violent rape." He indicated that he expected Dr. Patno to testify, on the basis of the scientific literature, that Defendant immediately objected to any discussion of "what probably happened," noting that this was precisely the area he thought Dr. Patno had indicated she would not enter in the motion hearing the day before. The court sustained the objection and asked whether defendant was requesting a curative instruction on this point. Defendant did not seek an instruction, instead asking that the State move on with its opening statement.
¶ 10. At trial, the State called A.O., her mother, her mother's partner, Sgt. Jensen, Dr. Patno, and a second expert, Dr. William Ballantyne. The evidence presented through these witnesses was as follows. During the five-year period between November 2007 and June 2013 when the offenses were alleged to have taken place, A.O.’s maternal aunt was married to defendant. A.O.’s aunt and her children lived with defendant and his mother; defendant's children sometimes stayed there too. A.O., an only child, enjoyed spending time with her cousins; when mother went on vacation, she would drop A.O. off for overnights at defendant's residence. A.O.’s aunt had to leave the home in the early hours of the morning for work, leaving the children in defendant's care.
¶ 11. A.O. stopped visiting defendant's home after June 2013 because defendant and her aunt had separated. Then, in September 2013, after watching a television show with her mother which included a joke about sexual assault, A.O. disclosed to her mother that defendant had touched her inappropriately. Mother asked A.O. to repeat her statement to mother's partner. He also testified to the same report. Mother then called the police. Mother indicated that up until the date of A.O.’s disclosure, she was on...
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...discussed above prejudiced defendant, "there can be no resulting cumulative prejudicial effect." State v. Noyes, 2021 VT 50, ¶ 46, Vt., 260 A.3d 1132. We affirm defendant's conviction. Affirmed. --------- [1] Testimony at trial established that the security video timestamp was ahead by one ......
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