State v. Ross

• Decision Date: 08 September 1989
• Docket Number: No. 86-015,86-015
• Citation: 152 Vt. 462,568 A.2d 335
• Parties: STATE of Vermont v. Jamie L. ROSS.
• Court: Vermont Supreme Court

Page 335

568 A.2d 335

152 Vt. 462

STATE of Vermont v. Jamie L. ROSS.

No. 86-015.

Supreme Court of Vermont.

Sept. 8, 1989.

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Ilona Bessenyey, Law Clerk (on the brief), Montpelier, for plaintiff-appellee.

Martin and Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendant Jamie Ross appeals his conviction of sexual assault upon a minor in violation of 13 V.S.A. § 3252(3). He claims five errors: (1) a deficient information charging the time of offense, (2) denial of his request to have a defense expert examine the victim, (3) improper bolstering of the victim's credibility by the State, (4) infringement of his right to confront the victim on cross-examination, and (5) an unfair demand by the State at sentencing. We affirm.

I. The Information

In early 1984, while in foster care, the victim, age eight, told her foster mother that both her stepfather and her uncle, defendant-appellant here, had sexually abused her. At trial, the victim described acts of sexual intercourse with her by defendant in her bedroom. The sexual abuse was corroborated by her younger brother, who said he witnessed some of it. The charging document alleged that the sexual assault occurred during the "summer of 1983." The court denied defendant's motion to dismiss the information on the ground that the time of the offense was too indefinite to adequately prepare a defense.

Our law recognizes that sex-related crimes--especially those involving child victims--are often hard to identify as happening on a particular date. Consequently, time is not an essential element to be charged in the information. See State v. Williams, 137 Vt. 360, 362, 406 A.2d 375, 376 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980). So long as it is shown that the crime occurred at a time not barred by the statute of limitations and the defendant is given fair opportunity to prepare a defense in light of the circumstances of the case, the defendant is not entitled to a dismissal. See State v. Daniels, 129 Vt. 143, 144, 274 A.2d 480, 480 (1971).

The due process right to notice of the time of the offense varies according to the age and circumstances of the victim and how the sexual abuse was allegedly carried out. Here, the victim was seven, and she did not report the abuse for about eight months after it happened. It is not surprising or unreasonable that the State could not determine the time of the offense any more precisely than it did.

Defendant argues that the vagueness of the notice as to time of offense prevented him from establishing an alibi and could subject him to double jeopardy. The abuse alleged here was behavior repeated over a period of time. An alibi in a case like this requires a showing of lack of opportunity over the whole time the alleged abuse took place. Defendant claimed he was never alone with the victim because his wife was always there. His opportunity to establish an alibi was not unreasonably thwarted.

As to the double jeopardy claim, defendant's argument is premature. "The proper time and method to challenge a subsequent charge on the grounds of former jeopardy is at the time such a charge is instituted...." State v. Nash, 144 Vt. 427, 435, 479 A.2d 757, 761 (1984).

II. Reciprocal Discovery

Defendant asked that a defense expert be permitted to examine the victim to evaluate whether she was suffering from post-traumatic stress disorder (PTSD) syndrome as a result of sexual abuse or other causes. The court denied the request. The State's expert, who had examined the victim, testified over defendant's objection. We have previously approved the use of expert testimony on PTSD in a limited way to aid the jury in the understanding of sexual abuse. State v. Catsam, 148 Vt. 366, 369-70, 534 A.2d 184, 187 (1987).

Defendant maintains, however, that when the defense does not have the opportunity to counter the State's expert with its own, the State should not be permitted to present its expert to the jury. We foresee that there will be cases where it is appropriate either to allow examination of a victim by the defense expert or to prohibit the State from providing its expert testimony when the former procedure is inappropriate. But this is not such a case. Such decisions are left to the sound discretion of the trial court, which was not, on this record, abused. Cf. State v. Percy, 149 Vt. 623, 636-38, 548 A.2d 408, 415-17 (1988) (due process right to reciprocal discovery not violated where court permitted State expert to interview defendant but defendant's expert was not permitted to interview victim).

The purpose of defendant's proposed expert presentation of the victim's mental state might have been either to persuade the jury that she did not suffer from PTSD or, if she did, to show that it was caused by someone other than the defendant. As to the first point, the defense argued to the jury that the victim had been sexually assaulted repeatedly over at least a two-year period by her stepfather, who had been convicted of the crime. The victim, according to the defendant, showed many of the symptoms associated with PTSD. The defense portrayed a little girl who had been so victimized sexually by her stepfather that "she may never be made whole." As to the latter point, the State's expert admitted that she could not tell from the PTSD symptoms alone who had abused the victim, only that she had been sexually abused. There was, therefore, no need in this case for defendant's expert to examine the victim, for there was no dispute over the sole legitimate conclusion reached by the State's expert--that the victim suffered from PTSD syndrome caused by sexual abuse.

III. Victim's Credibility

Defendant contends that the trial court erred in permitting the State to introduce expert testimony on the credibility of the child victim.

Dr. Pamela Langelier, a psychologist, was called by the State as an expert witness to explain to the jury the results of her evaluation of the victim. She related the psychological symptomatology of a sexually abused child of the victim's age. She was asked, "Is it your experience in dealing with children who are sexually abused that these symptoms ... can be easily faked?" Dr. Langelier stated that they could not, "not at a young age," and added, "Common sense tells you that little children don't make up stories or fake sexual knowledge. They have no interest in doing it. They gain themselves nothing."

Dr. Langelier told the jury that the victim was "referred to me to determine whether or not she had been sexually abused ... to what extent, by whom, and indeed if what she was saying is what happened." The witness then proceeded to detail the victim's sexual activity with defendant as told to her by the victim and corroborated by a foster parent. Dr. Langelier concluded that the victim had been sexually abused by defendant and others:

So, I think I saw enough to believe that I saw symptomatology indicating sexual abuse had gone on for anywhere from four to five years, but the frequency of which it's hard to gain [sic] because of the environment in which she was raised in the first place. But based on her own records, it seems that the frequency with Uncle Jamie was not as frequent as it was with other parties, but that it was defined with Uncle Jamie with specific memory because it was unusual form of stimulation for a child that age, oral sex. So, she remembered it clearly and it looks like it was twice if not more.

Defendant made no objection to the above testimony. Insofar as it amounted to an opinion that the victim had suffered sexual abuse, such an opinion would not be inadmissible. See Cadel v. Sherburne Corp., 139 Vt. 134, 137, 425 A.2d 546, 547-48 (1980) (opinion evidence otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact); State v. Norton, 134 Vt. 100, 104, 353 A.2d 324, 326 (1976) (same); V.R.E. 704 (same).

It is a closer call, however, as to whether the testimony, taken as a whole, amounted to a conclusion on the part of the witness about the guilt or innocence of defendant. In effect, the testimony was a summation of the witness's own observations and records, including what the victim herself had said about what had happened to her. To the extent that the testimony amounted to a comment on the credibility of the victim, it would ordinarily be inadmissible. State v. Catsam, 148 Vt. at 370-71, 534 A.2d at 187-88. Inasmuch as defendant did not object, however, he failed to preserve the issue for appeal, and we are bound to reverse only if we find that the trial court's failure to exclude the testimony sua sponte constituted plain error. ¹ State v. Recor, 150 Vt. 40, 46, 549 A.2d 1382, 1387 (1988); State v. DeJoinville, 145 Vt. 603, 605, 496 A.2d 173, 174-75 (1985). Plain error will be found "only in a rare and extraordinary case where the error is an obvious one," State v. Ramsay, 146 Vt. 70, 75, 499 A.2d 15, 18 (1985), and only if the error affects substantial rights of the defendant. Recor, 150 Vt. at 46, 549 A.2d at 1387; V.R.Cr.P. 52(b).

We have previously encountered allegations of plain error under similar circumstances in DeJoinville and Recor. In DeJoinville, the expert witness testified that children would not lie about being sexually abused, and the prosecutor twice repeated the substance of this testimony to the jury in closing argument. DeJoinville, 145 Vt. at 604, 496 A.2d at 174. The defendant made no objection at trial either to the testimony or to the prosecutor's remarks, but on appeal, argued that the court had committed plain error by not excluding the various statements sua sponte. We held there was no plain error, noting that plain error will be found " 'only in rare and extraordinary cases' " and that " 'the error must be obvious and strike...