State v. Mark Bergquist, 211 A.3d 946

Background

In Dec. 2015 A.B., age 7, disclosed to her mother that her father (defendant Mark Bergquist) had sexually assaulted her; mother reported this and A.B. was interviewed by a detective the next day (videotaped forensic interview) and later examined by a physician. Defendant was charged with two counts of aggravated sexual assault of a victim under 13; a jury convicted and imposed concurrent 30–50 year sentences.
The trial evidence included mother’s testimony, A.B.’s videotaped forensic interview and videotaped trial testimony, medical testimony, detective testimony, and expert testimony from both sides. The court admitted A.B.’s forensic interview under V.R.E. 804a but excluded A.B.’s initial statements to mother as untrustworthy under 804a.
Defendant’s defense theory: mother coached A.B. to make allegations to preempt defendant reporting mother’s prior sexual abuse of A.B. (mother admitted having taken sexually explicit photos / touching A.B. years earlier and faced separate prosecution for that conduct).
The trial court admitted substantial evidence about mother’s conduct and some mental-health history but limited other impeachment and psychosexual-evaluation material after in-camera review and redactions; it also restricted some proffers as cumulative or remote.
The court allowed A.B. to testify outside the defendant’s sight/hearing under V.R.E. 807(f) based on her therapist’s testimony about A.B.’s PTSD and the court’s finding that it was highly likely A.B. would shut down or be traumatically impaired if forced to see or hear defendant.
On appeal defendant raised challenges to: (1) admission of A.B.’s statements to the detective under Rule 804a; (2) exclusion/limits on impeachment and other evidence regarding mother’s mental health, past assault, and DCF findings; (3) constitutionality and application of Rule 807(f) and implementation of the out-of-presence testimony; (4) discovery limits on psychosexual/therapy records; and (5) alleged improper vouching by State experts. The Supreme Court affirmed.

Issues

Issue	State's Argument	Bergquist's Argument	Held
Admissibility of A.B.’s videotaped forensic interview under V.R.E. 804a	Interview was spontaneous, consistent, detailed, conducted under generally sound protocols and bore substantial indicia of trustworthiness	Interview was contaminated by mother’s prior coercion and possibly by detective’s prior conversation	Court affirmed admission — trial court’s trustworthiness finding not clearly erroneous given consistency, body language, expert support, and resisting leading questions
Exclusion/limits on evidence about mother’s mental health and prior conduct (including counselor testimony and DCF materials)	Court allowed relevant conduct evidence and provided limited disclosure of psychosexual evaluation; excluded remote, cumulative, or collateral material	Court improperly blocked impeachment and proof of mother’s motive to fabricate/coach (e.g., counselor, DCF social worker, broader psych eval)	Affirmed — trial court acted within discretion to exclude cumulative/remote/collateral evidence; redactions and limits were permissible after in-camera review; no constitutional due-process violation shown
Calling Detective Young or DCF worker to elicit prior inconsistent statements or admissions by mother	Some proffered testimony was cumulative and mother later testified to same facts; some contested proffers lacked proper contemporaneous offer/ruling	Trial court improperly refused to let State witness repeat testimony and excluded proffered inconsistent statements	Affirmed — rulings were harmless or unreviewable because defendant failed to preserve proffers or the evidence was cumulative; no prejudice shown
Use of Dr. Gilligan’s psychosexual evaluation and disclosure of mother’s records	In-camera review produced relevant portions; redactions of extensive psychosocial testing were proper as remote/private/not critical for impeachment	Defendant entitled to broader disclosure and to call Dr. Gilligan to testify about mother’s mental health and motive	Affirmed — court properly balanced Ritchie/Barbera standards; disclosed material relevant to defendant’s theory and properly withheld remote/private portions
Order permitting A.B. to testify outside defendant’s presence under V.R.E. 807(f) (constitutional challenge)	Rule 807(f) intended to protect child witnesses; court made findings meeting Craig’s necessity standard in this case	Rule 807(f) facially unconstitutional (lower "substantial risk" standard than Craig); or court improperly relied on therapist, and estrangement caused by visitation restrictions prejudiced defendant	Affirmed — although Rule 807(f) language is less stringent than Craig, court’s factual findings established by a preponderance (indeed "highly likely") met Craig; therapist testimony admissible as treating expert; defendant failed to preserve or show prejudice re: visitation claims
Implementation of 807(f): contemporaneous communication with counsel and hearing A.B.	Court supervised set-up; defendant had counsel present with witness; occasional audio interruption was not prejudicial	Isolation and muted cell prevented contemporaneous counsel communication, impairing confrontation and assistance of counsel	Affirmed — defendant did not preserve objection; claimed prejudice speculative and insufficient under plain-error review
Expert testimony alleged to impermissibly vouch for A.B.	Experts described literature on susceptibility to suggestion and described complainant’s disclosures/ demeanor; testimony did not opine directly on credibility	Experts vouched for complainant (statements implying allegations were true), improperly influencing jury	Affirmed — reviewed for plain error; testimony characterized studies and susceptibility to suggestion and described patient demeanor, but did not directly vouch for credibility; any error not plain or prejudicial

Key Cases Cited

State v. Felix, 197 Vt. 230 (Vt. 2014) (abuse-of-discretion standard for evidentiary rulings in criminal cases)
State v. Pratt, 200 Vt. 64 (Vt. 2015) (factors for assessing trustworthiness of child statements under V.R.E. 804a)
State v. LaBounty, 168 Vt. 129 (Vt. 1998) (young children’s graphic, consistent accounts may support trustworthiness)
Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (Confrontation Clause requires case-specific showing that witness would be traumatized by defendant’s presence and inability to communicate)
Chambers v. Mississippi, 410 U.S. 284 (U.S. 1973) (exclusion of critical defense evidence may violate due process)
State v. Kinney, 171 Vt. 239 (Vt. 2000) (expert testimony that low false-reporting rates suggest complainant’s truthfulness can be improper vouching)
State v. Catsam, 148 Vt. 366 (Vt. 1987) (expert testimony that effectively comments on complainant’s credibility is inadmissible)
State v. Oscarson, 176 Vt. 176 (Vt. 2004) (plain-error review; standards for confrontation and expert testimony)
State v. Barbera, 178 Vt. 498 (Vt. 2005) (procedures for in-camera review and disclosure of mental-health records to defendant)