¶ 1. Defendant, Donald Wigg, appeals a jury conviction for lewd and lascivious conduct. He claims that: (1) his constitutionally-based presumption of innocence was violated when the trial court permitted a police detective to repeatedly refer to the complainant as the “victim” during testimony; (2) the trial court abused its discretion in excluding testimony from his expert witness on how the interviews of the complainant failed to satisfy the scientifically-suggested protocol for best ensuring accurate interview responses; and (3) he is entitled to acquittal because the jury’s verdict convicting him of lewd and lascivious conduct, while acquitting him of sexual assault, is inherently inconsistent. While we find the trial court erred in permitting the police detective to refer to the complainant as the “victim” and in categorically excluding defense expert’s case-specific testimony, we hold both errors to be harmless. Additionally, we find no inconsistency in the jury’s verdicts. We therefore affirm the trial court’s decision.
¶ 2. In late January 1999, complainant B.M.Y., an eleven-year-old female, accompanied defendant, a thirty-five-year-old male, on a weekend ski vacation from their home state of Connecticut to Mount Snow in West Dover, Vermont. At the time, defendant’s brother was dating complainant’s mother, and the two families had recently taken a ski vacation together. On this occasion, complainant’s mother permitted her to accompany defendant alone. Complainant testified that she took a shower after she and defendant arrived at Mount Snow late in the day. After her shower, she claims that defendant removed her towel, rubbed lotion on her back and legs, and opened her vagina with his fingers and stuck his tongue inside her vagina. Later that same night, after watching television and going to bed, she further alleges that defendant unzipped her pajamas and sucked on her breasts.
¶ 3. B.M.Y. did not tell anyone about the incidents at Mount Snow until September 2000, when her mother’s new boyfriend confronted her after becoming suspicious that something inappropriate had occurred between B.M.Y. and defendant. After B.M.Y. disclosed the details of the trip to her mother’s boyfriend, he reported the incident to the Connecticut State Police. Trooper Francis Budwitz responded to the complaint and conducted an initial interview of B.M.Y. After finding the alleged assault occurred in Vermont, he turned the investigation over to Detective Bich Werner of the Dover, Vermont police department. Detective Werner traveled to Connecticut and interviewed the complainant on two separate occasions in late 2000.
¶ 4. The State charged defendant with lewd and lascivious conduct with a minor in violation of 13 V.S.A. § 2602 for sucking on complainant’s breasts and with sexual assault on a minor in violation of 13 V.S A. § 3252(a)(3) for inserting his tongue in her vagina.
¶ 5. At trial, the State presented seven witnesses, including complainant, her mother’s boyfriend, Trooper Budwitz and Detective Werner. The complainant testified at length to the nature of her relationship with defendant, the events leading up to the ski trip she took alone with defendant, what occurred during the trip, and why she delayed reporting the incidents of
¶ 6. Defendant did not testify. He advanced his main defense — that the complainant’s accusations were untruthful — through cross-examination of each of the State’s witnesses and by calling Dr. Philip Kinsler, a psychologist qualified as an expert in interviewing children suspected of being victims of sexual abuse. In his proffer, defendant’s attorney explained that Dr. Kinsler would testify to the interview techniques that are most likely to produce accurate responses as well as those techniques most likely to produce inaccurate responses. Defendant also intended to have Dr. Kinsler testify about the investigatory interviews conducted by Trooper Budwitz and Detective Werner, in order to give an opinion on whether they were conducted in a manner that was consistent with these suggested techniques. After listening to the expert’s intended testimony in camera, the trial judge permitted him to testify about general interviewing techniques, but excluded testimony analyzing the specific interviews conducted by the police in this case.
¶ 7. In its verdict, the jury acquitted defendant of the more serious sexual assault charge, but convicted him of the charge of lewd and lascivious conduct with a minor. This appeal followed.
¶8. Defendant first contends that the trial court violated his constitutionally-based presumption of innocence when it permitted the lead police investigator, over objection, to repeatedly refer to the complainant as the ‘Victim” during his testimony. In overruling defendant’s objection, the trial court determined that the detective’s reference to the complainant as the “victim” was not “highly prejudicial” because “the jury knows [the state’s attorney] wouldn’t be here if the State didn’t believe this act occurred.” We agree with defendant’s contention that, where the commission of a crime is in dispute and the core issue is one of the complainant’s credibility, it is error for a trial court to permit a police detective to refer to the complainant as the “victim.” Based on the facts of this case, however, we do not find a violation of defendant’s rights, and hold that the error was harmless.
¶ 9. The trial court may exclude testimony if the probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” V.R.E. 403. The trial court has discretion to balance the factors in Rule 403, and “we will not disturb the trial court’s ruling absent a showing of an abuse of that discretion.”
State v. Webster,
¶ 10. The first step in balancing is to consider whether the evidence has any probative value.
State v. Ogden,
¶ 11. We also conclude, however, that the error was harmless under the particular circumstances of this case. “‘Harmless error analysis requires the reviewing court to inquire if, absent the alleged error, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.’ ”
State v. Wright,
154
Vt. 512, 519-20,
¶ 12. In reaching our harmless error conclusion, we are mindful of the trial court’s view that the jury would normally expect the investigating officer, who is testifying for the State, to believe the complainant. In this case, however, the context of the detective’s testimony indicates that he was using a term he viewed as synonymous with complainant. See
Jackson v. State,
¶ 13. The situation here is very different from that in
State v. Ayers,
¶ 14. We have a similar view of
State v. Gokey,
¶ 15. Defendant’s second claim is that the trial court erred in limiting the testimony of his expert witness, Dr. Kinsler. Defendant sought three types of testimony from Dr. Kinsler: (1) general testimony to describe the proper and improper methods of questioning children who may have been victims of sexual abuse and to explain why particular methods are proper or improper; (2) case-specific testimony as to whether the officers who interviewed B.M.Y. followed, or deviated from, the proper methods of questioning her; (3) case-specific testimony on the impact of any deviations from proper methodology on the credibility of B.MY.’s accusations against defendant. The trial court admitted the general testimony, that in (1) above, but refused to allow the case-specific testimony in categories (2) and (3), explaining that testimony in either category constituted an impermissible comment on witness credibility. On appeal, defendant claims that the exclusion of the testimony in the second category — whether the officers used proper methodology in questioning B.M.Y. — violated his constitutional rights under the Compulsory Process Clause and Due Process Clause. While we agree that the trial court erred in categorically excluding the expert’s case-specific testimony, we find the error harmless, and defendant’s constitutional claims to be without merit.
¶ 16. Although the State has not argued on appeal that the court erred in admitting the general expert testimony on proper methods of
questioning child sexual abuse victims, we address that issue to fully explain our decision on the case-specific testimony. Testimony from a qualified expert in the form of an opinion is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” V.R.E. 702. In our leading case of
State v. Catsam,
The unique psychological effects of sexual assault on children place the average juror at a disadvantage in understanding the behavior of the victim. The confusion, shame, guilt, and fear that often result from such abuse may cause a victim to react and behave in a different manner from many other crime victims, especially when the sexual abuse victim is forced to testify to the acts in opencourt. Jurors who themselves have never experienced such emotions may be better able to assess the credibility of the complaining witness with the benefit of a better understanding of the emotional ante: cedents of the victim’s conduct provided by the expert testimony.
Id.
at 369,
¶ 17. Under the general theory of
Catsam,
a large majority of courts have held that the type of general expert evidence introduced in this case, explaining the proper and improper methods of examining children who may be victims of sexual assault, is admissible. See
State
v. Speers,
¶ 18. Similarly, we distinguish the recent decision of the Washington Supreme Court in
State v. Willis,
¶ 19. We also agree with the trial court’s conclusion that evidence in the third category — how the improper questioning of B.M.Y. affected the reliability of her testimony — was inadmissible. Defendant sought admission of this testimony below, but has apparently abandoned his position here.
3
Again, the
Catsam
line of
¶ 20. As above, this part of the
Catsam
holding has been reiterated and explained in a number of subsequent cases. See
Weeks,
¶ 21. This leaves us with the testimony in the second category, the exclusion of which defendant challenges on appeal. Defendant argues that even under the
Catsam
cases, he should have been allowed to ask his expert whether the police officer interviews of B.M.Y. were tainted by improper questioning techniques. The court faced this exact issue in
United States v. Rouse,
A qualified expert may explain to the jury the dangers of implanted memory and suggestive practices when interviewing or questioning child witnesses, but may not opine as to a child witness’s credibility. That leaves a troublesome line for the trial judge to draw — as the expert applies his or her general opinions and experiences to the case at hand, at what point does this more specific opinion testimony become an undisguised, impermissible comment on a child victim’s veracity?
Id. at 571. The trial court in this case faced a similar dilemma. In response, it ruled:
It’s up to the jury to determine how the scientific literature applies to the questions that were asked of [B.M.Y.]____By having Dr. Kinsler testify to how his knowledge of the scientific bases applies to this particular case, he would be telling the jury how to apply the scientific information to the case, and that’s the jury’s province____
¶ 22. We conclude that the court’s rationale does not support exclusion of the testimony in the second category. Again, one of the cases in the
Catsam
line is helpful. In
State v. Gokey,
the expert witness testified to the profile of a sexually-abused child, including as well the child’s description of the sexual abuse, the abuser’s name, and a
detailed account of her interview with the child.
[T]he State introduced evidence of the profile of a sexually abused child to assist the jury in understanding three facts about the child’s behavior. First, according to her mother, the child did not tell her of the December 1986 incident of abuse until about two weekslater. Second, the child claimed that defendant had abused her on many other occasions prior to the December incident, but she had not told her mother until January 1987. Third, although the point was disputed, the child continued to visit the defendant’s house, where her playmate lived, often remaining there when defendant was the only adult present. We hold that these facts in evidence, which might be considered anomalous or unusual, justified the admission of expert testimony for the limited purpose of showing the jury that the child’s behavior in these respects was consistent with the behavior of child sexual abuse victims generally. Without such testimony, the jury would be disadvantaged and might base its deliberations upon misconceptions.
While limited profile evidence was thus permissible, here the expert exceeded the limits. At most, she ought to have been permitted to describe to the jury evidence on the tendency of sexually abused children to delay reporting incidents of abuse and to continue relationships with their abusers, to give her opinion whether the child’s behavior was consistent with this evidence, and to explain the basis for that opinion. Her graphic retelling of the child’s description of the events, her comments about the child’s ability to distinguish truth from falsehood, and her conclusory remarks about “this victimization” were all beyond the pale — unduly prejudicial and unjustifiable under our rules of evidence and our cases.
Id.
at 137-38,
¶ 23. To the extent that they address the issue, the decisions from other jurisdictions allow expert testimony in the second category. See
Speers,
¶ 24. We stress that the trial court made a blanket decision to exclude the evidence in the second category and did not conduct a specific balancing decision under Rule of Evidence 403. Based on the
¶ 25. This brings us to the heart of our decision — whether the summary exclusion of the evidence in the second category was harmless in this case. As we said above, we can find harmless error only if it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.
Wright,
¶ 26. Typically, a harmless error analysis focuses on the evidence of guilt in the record.
Wright,
¶ 27. The jury had the testimony of defendant’s expert on proper and improper interviewing techniques to evaluate the quality of the officers’ interviews of B.M.Y. During cross-examination, defense counsel probed each of the interviewers regarding the interviewing techniques and revealed in what ways their methods were deficient. During Trooper Budwitz’s testimony, he admitted that he had no training in investigating sexual abuse cases, that B.MY.’s mother was present during her interview, that the interview was not recorded and that he followed no interview protocol. Detective Werner testified that he used leading questions during B.M.Y.’s interview, B.MY.’s mother was present during the beginning of her interview, and B.M.Y.’s mother answered questions for her. In addition, B.M.Y.’s statement to Trooper Budwitz and the transcript of Detective Werner’s interview were admitted into evidence. Thus, the content of the interviews were admitted as evidence for the jury to consider.
¶28. In addition, Dr. Kinsler testified about proper interviewing protocols. He explained to the jury that certain techniques
¶ 29. Finally, in closing argument, defense counsel linked the evidence from the expert testimony to the testimony about the interviews. He pointed out that the interviews were conducted by male police officers — authority figures that would demand respect. He stressed that the interviews contained leading questions and did not follow a reasonable protocol. Additionally, he argued that the interviewers employed suggestive questioning techniques and bribery.
¶ 30. Consequently, the loss caused by the exclusion was that the jury did not hear the defense criticism of the officers’ questioning of B.M.Y. from the mouth of the expert witness. Admittedly, expert testimony might have had a greater impact on the jury. The question we must answer, however, is whether we have a reasonable doubt that the jury verdict would have been different if the critical evaluation of the officers’ questioning methods came from the expert rather than from defense counsel’s cross-examination and argument based on the expert’s general testimony.
¶ 31. We are aided in our evaluation of the harmless error question by two decisions from other jurisdictions. The first is
Rouse,
which is generally indistinguishable from this case. As in this case, the trial court in that case allowed general expert testimony about proper methods of interviewing children alleged to be victims of sexual assault, but excluded case-specific evidence criticizing the methods and techniques of questioning actually used in investigating the case. Apparently, a majority of the three-judge panel agreed that the exclusion was erroneous, but a majority also agreed that the error was harmless.
¶32. Similarly, in
Commonwealth v. Allen,
¶33. We recognize that this case does not involve the more typical kind of harmless error where the weight of the prosecution evidence is so overwhelming that no single evidentiary error is likely to make a difference. See
State v. Oscarson,
¶ 34. Defendant’s final claim is that the jury’s verdict of guilt on the lewd and lascivious conduct charge is inconsistent with its acquittal on the charge of sexual assault of a minor. In support of this argument, defendant asserts that because each charge is based on conduct that occurred during the same night during a ski trip in Vermont, and the basis for each is the testimony of B.M.Y., the jury could not have acquitted on one charge and convicted on the other. Transparently, defendant asserts, the jury rendered a compromise verdict.
¶ 35. Essentially, defendant attacks the jury’s fact-finding. This Court applies a clearly erroneous standard in reviewing a jury’s findings of fact and will reverse only if the evidence is insufficient to support the finding.
State v. Martin,
¶ 36. In making his argument, defendant relies almost exclusively on
State v. Crepeault,
¶ 37. The situation in this case is very different. Although they allegedly occurred during the same night, and involved the same victim, the counts the jury considered here were separate and independent. See
State v. Carpenter,
Affirmed.
Notes
Ayers
is also distinguishable because it was decided on grounds of prosecutorial misconduct, a claim that is inapplicable here. Similarly defendant’s reliance on
Veteto v. State,
We also note that
Gokey
arose in a different context, where an expert witness testified directly or indirectly to the credibility of the complainant. See
Gokey,
The State’s argument on appeal addresses this evidence, as if defendant’s appeal claims that it was error in excluding it, and does not address the second category of evidence.