State v. Denny

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
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                                 No. 91-219


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Orleans Circuit
 Robert A. Denny
                                              June Term, 1992


 Joseph J. Wolchik, J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

 E. M. Allen, Defender General, and Henry Hinton, Appellate Attorney,
   Montpelier, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      GIBSON, J.    Defendant was convicted of lewd and lascivious conduct
 with a child.  He argues that (1) the trial court erred in admitting testi-
 mony by relatives of the victim and by an expert in child sexual abuse, and
 (2) the State's closing argument was unfairly prejudicial.  We affirm.
      Defendant lived in an apartment downstairs from the victim and her
 mother.  The victim, who was six years old, frequently visited defendant.
 During a visit in May 1990, defendant allegedly inserted his finger into her
 vagina and caused her to rub his penis.  The victim promptly reported the
 incident, and defendant was charged with sexual assault, 13 V.S.A. {
 3252(a)(3), and lewd and lascivious conduct with a child, 13 V.S.A. { 2602.
      Before trial, the court denied defendant's motion to bar testimony
 from the victim's grandmother and great-grandmother regarding her behavior
 after the alleged abuse.  Defendant also challenged testimony by an expert
 witness describing common traits of children with post-traumatic stress
 disorder (PTSD).  Defendant conceded that the evidence was relevant, but
 argued that the testimony would violate V.R.E. 403 because it was
 cumulative and would be substantially more prejudicial than probative.  The
 court allowed the testimony, concluding that it was not cumulative and that
 effective cross-examination would protect defendant from unfair prejudice.
      At trial, defendant denied committing any offense.  In videotaped
 testimony, however, the victim specifically described the alleged conduct,
 although her testimony under cross-examination was unclear regarding whether
 defendant had inserted his finger into her vagina.
      The victim's mother testified that, after the alleged abuse, the victim
 talked like a baby, wet her pants and the bed, did not want to be left
 alone, and was "mouthy."  The mother also testified that, after moving
 residences, the victim frequently said that she did not want to be driven
 past their former apartment building because defendant still lived there.
 The victim's grandmother and great-grandmother testified that they too had
 observed changes in her behavior, including disobedience, bedwetting,
 nightmares, and refusing to approach her former home.
     Finally, the expert, a children's therapist, testified that children may
 suffer PTSD after experiencing a traumatic event such as sexual abuse.  She
 also testified that sexually abused children may have nightmares, regress
 developmentally, seek to avoid the situation or persons associated with the
 event, act out, and experience disassociation and amnesia.
      The jury found defendant not guilty of sexual assault, but guilty of
 lewd and lascivious conduct with a child.  In related arguments, defendant
 claims he was denied a fair trial because (1) the testimony of the victim's
 grandmother and great-grandmother was unfairly prejudicial, (2) the expert's
 testimony should have been excluded because it was elicited for the improper
 purpose of bolstering the victim's credibility, and (3) the State improperly
 enhanced the credibility of the victim in closing and rebuttal arguments.
      Defendant's first argument overlooks this Court's ruling in State v.
 Shaw, 149 Vt. 275, 279, 542 A.2d 1106, 1108 (1987).  In Shaw, the Court
 upheld the admission of testimony from friends of the victim who testified
 that the victim's behavior and personality had changed after she was
 sexually assaulted.  The testimony corroborated the victim's version of the
 events and rebutted the defendant's claim that the assault had not occurred.
 The Court reasoned that "[w]hether an assault occurred was the key question
 in this trial, and evidence of changes in the complainant's personality was
 material on this issue. . . .  The possible prejudice to defendant does not
 outweigh the substantial probative value of the testimony . . . ."  Id.
      In the present case, the State introduced the testimony of the
 grandmother and great-grandmother to corroborate the victim's version of the
 events and to rebut the defendant's assertion that it never occurred.  As in
 Shaw, evidence of changes in the victim's behavior and personality after the
 incident was material to whether the sexual abuse had occurred.  We find no
 abuse of discretion by the trial court in admitting the testimony.
      Next, Vermont law does not restrict the use of expert testimony in
 sexual abuse cases solely to rehabilitating the testimony of the com-
 plainant.  We have held that "[e]xpert testimony in a criminal child sexual
 abuse case is admissible to help jurors understand 'the emotional ante-
 cedents of the victim's conduct' so that they 'may be better able to assess
 the credibility' of the victim."  State v. Sims, __ Vt. __, __, 608 A.2d 1149, 1152 (1991) (quoting State v. Catsam, 148 Vt. 366, 369, 534 A.2d 184,
 187 (1987)).  The fact that the jury may draw inferences that would tend to
 bolster the victim's credibility does not make the evidence inadmissible.
 As long as the expert does not offer an opinion on the accuracy of the
 victim's recitation of facts, general testimony on the dynamics of sexual
 abuse does not prejudice the jury.  State v. Hicks, 148 Vt. 459, 462, 535 A.2d 776, 778 (1987).
      The expert in the present case did not testify about the psychological
 or medical condition of the victim and did not venture an opinion as to
 whether she suffered from PTSD.  Nor did the expert tell the jury that PTSD
 sufferers tend to tell the truth.  The testimony consisted of descriptions
 of the behavioral characteristics that generally lead to a diagnosis of
 PTSD and the statement that children who have been sexually abused often
 suffer from PTSD.  This evidence would help the jury understand the victim's
 behavior and determine whether the alleged conduct occurred.  See V.R.E. 702
 (opinion testimony based on specialized knowledge admissible if it will help
 the trier of fact determine a fact in issue); State v. Dunbar, 152 Vt. 399,
 407, 566 A.2d 970, 975 (1989) (general tendency of expert testimony to
 advance State's case involves no error); but cf. State v. Hudnall, 293 S.C.
 97, 100-01, 359 S.E.2d 59, 61-62 (1987) (evidence offered solely "to
 bolster the child's testimony that the crime had in fact occurred" held not
 admissible).  We find no abuse of discretion by the trial court in admitting
 the expert's testimony.
      Finally, defendant contends that the State's closing and rebuttal
 arguments impaired his right to a fair trial because they improperly
 enhanced the victim's credibility by emphasizing the expert's testimony.
 Defendant did not object at trial to the arguments, and thus can prevail
 only if plain error is shown.  State v. Bailey, 144 Vt. 86, 99-100, 475 A.2d 1045, 1053 (1984).  Regardless, we find no error.
      In closing argument, the State addressed the personality changes
 experienced by the victim and focused on the general characteristics of
 PTSD such as bedwetting, nightmares, amnesia, memory loss and avoiding the
 stimuli associated with the painful event.  The State did not directly link
 the expert and her generalized testimony about PTSD to the victim's credi-
 bility.  In response to defendant's closing argument, which stressed com-
 plainant's memory loss during testimony, the State drew upon the testimony
 of the expert to argue that memory loss is often a characteristic of PTSD.
 Again, there was no direct link between the expert testimony and victim's
 credibility.  The State confined its argument to the evidence of the case
 and inferences that could be properly drawn from it.  See State v. Emerson,
 149 Vt. 171, 177, 541 A.2d 466, 470 (1987).
      Affirmed.

                                    FOR THE COURT:



                                    ________________________________
                                    Associate Justice