¶ 1. Following a jury trial, defendant Patrick Spooner was convicted of aggravated sexual assault of a child under eighteen years of age, in violation of 13 V.S.A. § 3252(d). On appeal, he argues that the trial court violated the Vermont Rules of Evidence and the Confrontation Clauses of Chapter I, Article 10 of the Vermont Constitution and the Sixth Amendment to the United States Constitution when the trial court admitted certain tape-recorded statements from the victim rаther than bringing the victim in to present live testimony. We affirm.
*358 ¶ 2. The record evidence may be briefly summarized as follows. The victim, T.S., lives with her biological father and stepmother. She had visitation time with her biological mother and stepfather before they got divorced. Defendant is T.S.’s stepfather. In December 2007, T.S. revealed to her stepmother that she and defendant had touched each other’s private areas; she pointed to her chest and vaginal area. Stepmother did not immediately question T.S. following this disclosure. Soon thereafter, T.S.’s biological father entered the home, and, after prompting by stepmother, T.S. told him she had a secret. T.S. and her father went up to T.S.’s bedroom, where she recounted the same events. Her father did not pursue further details at this time, but notified the police the same day.
¶3. T.S. was interviewed a total of three times. Three days after her father notified the police, she completed her first interview with an investigator from the Department for Children and Families (DCF) and a police officer. It lasted approximately forty-five minutes and was recorded. The interview took place at a neutral child advocacy center where children are interviewed in cases of suspected sexual abuse. The interview initially focused on veracity — whether or not T.S. knew the difference between lying аnd telling the truth. The interview’s focus then shifted to a number of incidents of abuse that occurred between T.S. and defendant. The DCF investigator described T.S. as shy and nervous but “quite frank” in her recounting of the events.
¶ 4. The second interview took place in January 2008 with the DCF investigator and a police officer present. The second interview was also recorded and took place at the same child advocacy center. The focus of this interview was to determine whether T.S. had ever seen defendant’s penis. T.S. indicated that she had, at least twice. The third interview occurred in April 2008 with only the police officer present. Between the second and third interviews, the DCF investigator and the police officer learned about a specific tattoo located on defendant’s penis. As a result, the focus of this third interview, which was not recorded, was on whether T.S. knew about defendant’s tattoos. T.S. was able to describe some of defendant’s tattoos, but did not recall the one on his penis.
¶ 5. Before trial, the State, citing Vermont Rule of Evidence 804a, moved to admit T.S.’s statements made to her stepmother, *359 her father, the police officer, and the DCF investigator. 1 In January 2009, the court held a pretrial hearing on the State’s motion to admit these statements. Defense counsel argued that having four witnesses describe the disclosures was unnecessarily cumulative, unfairly prejudicial, and would impropеrly bolster T.S.’s credibility. Defense counsel also argued that the statements were inadmissible under Rule 804a because they did not have substantial indicia of trustworthiness and were prepared for a legal proceeding. The court concluded that the statements made to T.S.’s stepmother and father contained substantial indicia of trustworthiness and were admissible under Rule 804a. As for the statements made to the DCF investigator and the police officer, thе court concluded that these statements were also trustworthy and did not appear to be “rehearsed or the subject of suggestion.” The court, however, held that T.S.’s statements to the DCF investigator and to the police officer were unnecessarily duplicative, and that, as a result, only one of these witnesses could testify at trial about T.S.’s statements regarding the alleged abuse.
¶ 6. All four proposed witnesses testified at the two-day trial. T.S.’s stepmother and father testified regarding her statements made to them, consistent with the court’s pretrial order. The State called the police officer to testify about the general investigation, rather than as an 804a witness. T.S.’s biological mother, who was previously married to defendant, testified about T.S.’s relationship with defendant and about the night of the incident that led to charges being filed. In addition, T.S. testified during the State’s case-in-chief. Defense cоunsel cross-examined T.S. and drew out various inconsistencies between T.S.’s live testimony and her past statements.
¶ 7. Following these witnesses, the State explained that it still intended to play T.S.’s recorded statements when the DCF investigator took the stand. The court asked what purpose would be served by playing the recorded statements now that T.S. had already presented live testimony. The State responded that before the commencement of triаl the parties reached a stipulation *360 whereby portions of the recorded statements would be played during the State’s direct examination of the DCF investigator. The State explained that “it would be better, potentially for both parties, that the jury could hear exactly what [T.S.] had said and exactly how the questions were posed.” Defense counsel acknowledged that he previously agreed to this approach but said that he stiрulated to the admission of these statements under the assumption that T.S. was not going to testify. Defense counsel argued that, after T.S.’s live testimony, the recorded statements were unnecessarily duplicative and prejudicial to the interests of defendant.
¶ 8. In chambers, following the State’s expert’s testimony, the State asserted that the recorded statements were necessary to rebut defense counsel’s attack of the credibility of the cоmplaining witness and to corroborate T.S.’s testimony and therefore outweighed any prejudice to defendant. Defense counsel reiterated his concern that the recorded statements would be cumulative because T.S. testified in the State’s case-in-chief. The court concluded that, under
State v. Gallagher,
the child’s testimony in the State’s case-in-chief did not preclude admission of 804a statements.
¶ 9. The DCF investigator then took the stand, and the State played the stipulated portions of the recorded statements from the first interview. Defense counsel cross-examined the DCF investigator, challenged T.S.’s “word,” and raised inconsistencies in the testimony and statement of T.S. Following cross-examination, defense counsel moved for a directed verdict, which the court denied. Defendant then tоok the witness stand and began to present his version of the facts. At the close of the first day of trial, defense counsel stated that he had subpoenaed T.S. for the next day and that he would play recorded statements from a deposition of T.S.
¶ 10. At the start of the second day of trial, while in chambers, the court noted its concern about T.S. being brought in to testify a second time. Defense counsel responded that he wanted to recall T.S. to ask hеr about three things: (1) a discrepancy between her live testimony and recorded statements regarding the time of day an incident of alleged abuse by defendant occurred; (2) a discrepancy between her live testimony and a statement made in a *361 deposition regarding whether defendant left to use the bathroom during an incident of claimed abuse; and (3) a statement in her deposition regarding the death of a neighbor’s son, which defense counsel argued related to T.S.’s credibility because the veracity of the story was uncertain.
¶ 11. Defense counsel agreed with the court that, as to the first two requests, they could be served by playing portions of the recorded statements from the first interview and the deposition. 2 When the court asked about the third proffered need for T.S.’s testimony, defense counsel acknowledged its irrelevance. The court therefore allowed defense сounsel to play recorded statements from T.S.’s interview and deposition for the first two purposes, but did not allow defense counsel to offer evidence regarding the alleged death of the neighbor’s son. The court made no explicit ruling, nor were there any objections on the record in chambers or when courtroom testimony resumed. Rather, the parties voluntarily agreed that defense counsel would play excerpts from the two tapes in lieu of T.S.’s live testimony.
¶ 12. Defense counsel opened the second day of trial with excerpts from one of the statements taken in the recorded interviews and the deposition of T.S. The first excerpt, from the first interview with the DCF investigator and the police officer, revealed discrepancies in T.S.’s testimony regarding the time of day an incident of abuse allegedly occurred. The second excerpt, from a deposition, revealed that T.S. had previously stated the defendant did not leave during an episode of abuse, while her five testimony indicated that he left momentarily. Defense counsel cited both discrepancies in closing arguments. After the close of testimony, the jury asked to rehear T.S.’s recorded statements — those introduced by both the State and defendant — from the *362 interview with the DCF investigator and police officer. The jury-found defendant guilty of aggravated sеxual assault, and defendant appealed.
¶ 13. Defendant challenges his conviction on three grounds. First, defendant claims that the trial court committed reversible error by admitting the recorded statements under Rule 804a in the State’s case-in-chief because they were used to buttress T.S.’s live testimony. Defendant next contends that the recorded statements were inadmissible under the Vermont Rules of Evidence because T.S. was not available to be сross-examined after their admission, as required under Rules 804a and 806. Third, defendant claims that the admission of T.S.’s statements, without cross-examination after the statements were admitted, violated his Confrontation Clause rights under the Vermont and federal constitutions. Defendant concedes that he did not raise these constitutional arguments at trial and that, as a result, we review them only for plain error.
I.
¶ 14. Defendant first contends that the admitted statements were not Rule 804a statements because they were used to bolster T.S.’s testimony. Defendant hinges this claim of error on the State’s assertion that it was using the tape recordings as corroborative evidence. Because the statements were partly used for this purpose, and because Rule 801(d)(1)(B) 3 covers some of these types of statements, defendant claims that they were effectively inadmissible under Rule 804a.
¶ 15. We review trial courts’ evidentiary rulings deferеntially and reverse only when there is an abuse of discretion resulting in prejudice.
State v. Jackson,
¶ 16. As we made clear in Gallagher, in cases of sexual crimes that meet the criteria of Rule 804a, the Legislature intended that a child victim’s corroborative statements would be admissible, whether or not they met the requirements of Rule 801(d)(1)(B). 4 Here, the trial court’s ruling on the admission of the recorded statements under Rule 804a was, in fact, based entirely on Gallagher's holding that the State could use both the child declarant’s live testimony and past statements. We agree and hold that the trial court did not err in admitting recorded statements to buttress T.S.’s live testimony.
¶ 17. Defendant argues, however, that the recorded statements were not admissible under Rule 804a, apparently believing that the rule requires that a witness to the statements testify to their content. In fаct, the rule makes the statements admissible and does not impose any restriction on how they will be introduced. Thus, we have previously held that recorded statements made by a victim are admissible under Rule 804a.
State v. LaBounty,
II.
¶ 18. Defendant further claims that it was reversible error for the trial court to admit the recorded statements because defense counsel did not cross-examine T.S. following their admission. Regarding this claim of error, defendant does not take issue with the State playing the rеcorded statements during its own ease-in-chief. Defendant does, however, take issue with the fact that he was “not permitted” to recall T.S. Defendant first alleges violations of the Vermont Rules of Evidence. Defendant maintains that Rule 804a(a)(3) requires the child declarant to be available to testify. Defendant also cites Rule 806 for the proposition that if a hearsay statement is admitted, and the party against whom the statement has been admittеd calls the declarant as a witness, he may examine the declarant “as if under cross-examination.” Finally, defendant claims a violation of his Confrontation Clause rights under Chapter I, Article 10 of the Vermont Constitution and the Sixth Amendment to the United States Constitution.
¶ 19. First we address defendant’s claim of error under the Rules of Evidence. As noted earlier, our review of a trial court’s evidentiary rulings is, in general, deferential, and reversal is warranted only upon an abuse of discretion. Jackson,
¶ 20. Here, the trial court expressed concern over a recall of T.S., but never ruled to that effect. Defense counsel also never objected to playing the tapes in lieu of T.S.’s live testimony. *365 Rather, in response to questions from the court regarding whether the recorded statements could perform the same function as T.S.’s live testimony, defense counsel stated numerous times that they could. Defense counsel agreed with the court that the need for T.S. to testify was eliminated as long as the State stipulated to the admission of the portions of the recorded statements and the deposition offered by defendant. When the second day of trial resumed in open court, the State cоncluded: “The State has reached a stipulation with the defense.” Thus, the record is clear that defendant had the opportunity to recall T.S., but chose to play the tapes instead. Defendant cannot now claim a violation of either Rule 804a or Rule 806 when he agreed that T.S. would not need to be recalled for cross-examination; defendant waived his right to claim this as error on appeal.
¶ 21. We next address defendant’s claim thаt admission of the recorded statements, in lieu of T.S.’s live testimony, violated his constitutional right to confront witnesses against him. Defendant contends that because defense counsel did not have an opportunity to cross-examine T.S. after the State played the recorded statements, their admission violated his Confrontation Clause rights, was prejudicial, and resulted in plain error.
¶ 22. Confrontation Clause rights are subject to the rule of preservatiоn, but this Court will review unpreserved constitutional claims, such as the claims presented here, for plain error. See V.R.Cr.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). ‘We will find plain error only in those rare and extraordinary cases where the error is both obvious and strikes at the very heart of the defendant’s constitutional rights or results in a miscarriage of justice if we do not recognize it.”
State v. Campbell,
¶ 23. We have previously held that a trial court does not commit plain error by admitting, upon the parties’ stipulation, a videotaped deposition in lieu of the declarant’s live testimony.
State v. Koveos,
Affirmed.
Notes
Rule 804a provides that statements made by children under twelve years of age are admissible if: (1) the statement is offered in a proceeding where the declarant is the putative victim of a sexual assault or sexual crime; (2) the statements were not taken in preparation for a legal proceeding; (3) the child is available to testify; and (4) “the time, content, and circumstances of the statements рrovide substantial indicia of trustworthiness.” V.R.E. 804a.
As to the first proffered need for T.S.’s live testimony, the court asked defense counsel whether he could get the needed information from the recorded statements. Defense counsel answered “yes.” When the court asked about the need for T.S. to testify about the alleged discrepancy in her stories regarding whether defendant went to the bathroom during the incident of abuse, defense counsel explicitly stated that “[t]he tape will cover this, too.” At one point in the chambers conference, the trial judge began a sentence by saying that “[s]o it sounds like the first two were going to be probably accomplished through” — and then defense counsel interrupted and finished the sentence by saying “[t]he tape.” Eventually, the trial judge said that the first two reasons for playing the tapes were legitimate and the tapes would eliminate the need for T.S. to testify а second time. Defense counsel responded: “Right.”
Rule 801(d)(1)(B) provides that a statement is not hearsay when the declarant testifies at trial, is subject to cross-examination concerning the statement, and the statement is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.”
For this reason, we need not address defendant’s argument that the recorded statements were inadmissible under Rule 801(d)(1)(B).
Defendant does not claim that defense counsel did not have the power to waive his right to confront witnesses against him. See generally
New York v. Hill,