State v. Gordon Noyes, Jr., 2021 VT 50

Background

In 2013 ten‑year‑old A.O. disclosed sexual abuse by Gordon Noyes, Jr.; she gave two recorded forensic interviews and was examined by pediatrician Dr. Karyn Patno. Six years later Noyes was tried and convicted of aggravated repeated sexual assault of a child and lewd and lascivious conduct (second offense).
Pretrial, the court admitted A.O.’s out‑of‑court statements to her mother and the first recorded interview under V.R.E. 804a, but ruled A.O.’s statements to Dr. Patno were not admissible under 804a because the exam was law‑enforcement‑directed.
At a motion in limine defense counsel objected to Dr. Patno testifying about typical offender behavior; counsel did not object to testimony explaining how a child might perceive "penetration" despite a normal genital exam.
At trial Dr. Patno briefly repeated what A.O. told her (contrary to the court’s 804a ruling) and—on redirect—opined from the literature that perpetrators who repeatedly abuse tend to avoid injuring victims. Defense moved for a mistrial; the court denied it and instructed the jury to disregard the hearsay comment.
The jury heard A.O.’s recorded forensic interview (with a portion redacted) in addition to her live testimony. Noyes was convicted and appealed, arguing mistrial error, improper profile/expert testimony, erroneous admission of the video, and cumulative error.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Noyes)	Held
1. Denial of mistrial after expert repeated hearsay (A.O.’s statement to Patno)	Curative instruction cured any error; the remark was brief, cumulative, and not shown to be elicited in bad faith.	The expert’s repetition of excluded 804a hearsay through a credible witness was highly prejudicial and warranted a mistrial.	Denial of mistrial was within discretion; juries are presumed to follow curative instructions and the comment was cumulative and non‑devastating.
2. Admission of expert testimony about offender behavior (profile evidence)	Testimony explained how a normal exam can be consistent with abuse and aided the jury; it was not improper profile evidence and need not be backed by precise statistics.	Testimony constituted improper, prejudicial profile evidence and lacked empirical validation under V.R.E. 702/403.	Testimony was admissible: it explained forensic significance (a ‘‘how’’/modus operandi issue), not to prove defendant’s propensity; reliability concerns go to cross‑examination.
3. Playing recorded forensic interview in addition to live testimony	804a contemplates admission of both the child’s out‑of‑court statement and live testimony; admission was not unduly prejudicial.	Showing the ten‑year‑old video when the witness testified at sixteen was unfairly prejudicial and unnecessary.	No reversible error: defendant failed to present a concrete Rule 403 prejudice argument below; admission was not of the type that triggers unfair prejudice.
4. Cumulative‑error claim	Errors, if any, were harmless individually and therefore not cumulatively prejudicial.	Even if each error were slight, together they deprived Noyes of a fair trial.	No cumulative prejudice: appellate court found no prejudicial errors to aggregate.

Key Cases Cited

State v. Sarkisian‑Kennedy, 227 A.3d 1007 (Vt. 2020) (presumption that juries follow curative instructions)
State v. Desautels, 908 A.2d 463 (Vt. 2006) (mistrial standard; assessing whether remark was elicited in bad faith)
State v. LaBounty, 716 A.2d 1 (Vt. 1998) (disfavoring prosecution use of profile evidence to prove defendant’s guilt)
State v. Gallagher, 554 A.2d 221 (Vt. 1988) (admission of child’s out‑of‑court statements plus live testimony may be cumulative but not unduly prejudicial)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (trial court gatekeeper role for expert reliability)
United States v. Long, 328 F.3d 655 (D.C. Cir. 2003) (distinguishing admissible expert explanation of forensic significance from improper profiling)
State v. Gundlah, 702 A.2d 52 (Vt. 1997) (weighing probative value of contested testimony against prejudice)