Appeal from Superior Court, Chittenden Unit, Criminal
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,
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
3. We consider each of defendant's challenges on appeal,
expanding on the factual and procedural background as
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
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
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
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
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
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
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
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,
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, 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
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
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 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
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.
21. On appeal, defendant challenges six specific rulings or
clusters of rulings that he argues denied him the opportunity
to fully present his defense.
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.
Testimony from Detective Young Regarding Mother's
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 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).
Testimony from Detective Young Regarding Mother's
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, 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
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
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
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 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 ...