Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                             SUPREME COURT DOCKET NO. 2011-171

                                          APRIL TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
 Paul Bryan Thibodeau-O'Connor                         }    DOCKET NO. 935-7-09 Wmcr

                                                            Trial Judge: David Suntag

                            In the above-entitled cause, the Clerk will enter:

        Defendant appeals from convictions, based on a jury verdict, of lewd and lascivious
conduct with a child and three counts of sexual assault. He contends the trial court erred in
admitting the testimony of an expert witness about the incidence of delayed disclosure by victims
of childhood sexual abuse and the nature of victims’ memories of abuse. We affirm.

         The material facts may be summarized as follows. In January 2009, the complainant,
then age fifteen, informed her mother that she had been sexually abused by defendant, her father,
for a number of years. She testified at trial that she recalled an incident when she was a little
girl, lying on a bed under the blankets and performing oral sex on defendant; when her brothers
entered and asked where she was, her father said she was outside. She also testified that
defendant had penetrated her digitally and engaged in oral sex with her on multiple occasions
when she was young, and that he would generally remove her trousers before the acts. With the
exception of some noteworthy instances, she could not recall the specific details of most
episodes, the number of incidents, or when the abuse ended. She testified that she did not tell
anyone at the time about the abuse because she “figured it would stop,” although it continued for
years.

        Prior to trial, defendant moved to exclude the testimony of Dr. Jan Tyler, a psychologist
identified by the State as an expert witness. Defendant asserted that the disclosure was untimely,
and that her testimony would be “purely vouching” for the complainant and therefore
inadmissible. The trial court denied the motion. Later, following Dr. Tyler’s deposition,
defendant renewed the motion to exclude her testimony on the subjects of memory and delayed
disclosure by sexually abused children. Defendant claimed that, to the extent Tyler’s testimony
implied that the complainant was telling the truth, it was inadmissible “vouching” testimony, and
to the extent the testimony was limited to the general “literature in the field,” it was irrelevant.
The renewed motion was apparently denied, and Dr. Tyler was the State’s second witness at trial,
following the complainant.∗

        Dr. Tyler testified, at the outset, that she had formed no opinions about the specific facts
of this case, and she intended to discuss only the general research in the field of child sexual
abuse. On the subject of memory, she testified that when events occur repeatedly, one is less

         ∗
             The trial court’s ruling on the renewed motion could not be found in the record.
likely to remember particular incidents, although unique circumstances may “cue” the memory
of certain specific incidents. In the context of child sexual abuse, a child victim’s difficulty
remembering may be compounded by the child’s tendency to “dissociate” from the experience.

        Dr. Tyler also described some of the factors associated with delayed disclosure of
childhood sexual abuse, including the age of the victim, the type of abuse, whether there was
violence involved, the duration of the abuse, and the relationship of the abuser to the victim.
According to Dr. Tyler, research showed that the closer the perpetrator is to the victim, the less
likely the child is to report, and the longer the period of abuse, the longer the delay. She also
noted that young children are less likely to disclose than older children, and that victims were
more likely to report sooner if the abuse was associated with more violence.

       Following the additional testimony of two investigating officers, the State rested.
Defendant called a number of family members, who uniformly testified to the closeness of the
family. Several recalled an angry confrontation between defendant and the complainant after he
found marijuana in her purse. The incident occurred several weeks before her disclosure of the
sexual abuse.

       The jury returned a verdict of guilty on all counts, and the court denied subsequent
motions for judgment of acquittal and a new trial. Defendant was sentenced to an aggregate term
of twenty-five years to life and timely appealed. Defendant contends the trial court erred in
permitting Dr. Tyler to testify on the subjects of memory and delayed reporting by childhood
victims of sexual abuse.

        “The trial court enjoys broad, though not boundless, discretion in deciding whether to
admit expert testimony.” State v. Hazelton, 2009 VT 93, ¶ 16, 186 Vt. 342. We have long held
that “[e]xpert testimony in a criminal child sexual abuse case is admissible to help jurors
understand ‘the emotional antecedents of the victim’s conduct’ so that they ‘may be better able
to assess the credibility of the victim.’ ” State v. Sims, 158 Vt. 173, 178 (1992) (quoting State v.
Catsam, 148 Vt. 366, 369 (1987)); accord State v. Hazelton, 2009 VT 93, ¶ 16; State v. Wigg,
2005 VT 91, ¶ 16, 179 Vt. 65; State v. Denny, 159 Vt. 262, 265 (1992). An expert may not,
however, directly comment on whether a complainant is telling the truth or give testimony that is
“tantamount” to such an opinion, Catsam, 148 Vt. at 370, by describing, for example, the child’s
account of the abuse in a way that “implicitly vouche[s] for the believability of [the child’s]
story.” State v. Wetherbee, 156 Vt. 425, 432 (1991). Under this standard, we have consistently
recognized that general testimony about the behavioral “profile of young sexual assault victims,”
is unobjectionable. See, e.g., Hazelton, 2009 VT 93, ¶¶ 15-17 (holding that expert’s testimony
that high percentage of child sexual abuse victims delay disclosing abuse and that complainant’s
behavior was consistent with this profile was not tantamount to commenting on her credibility);
Denny, 159 Vt. at 265 (upholding admission of expert testimony describing “behavioral
characteristics that generally lead to a diagnosis of PTSD” and the statement that “children who
have been sexually abused often suffer from PTSD”); State v. Gokey, 154 Vt. 129, 133 (1990)
(noting usefulness and general admissibility of expert “profile” evidence, “such as a child’s
ambivalence about pursuing a sexual abuse complaint”).

       Dr. Tyler’s testimony here, describing the general research and literature with respect to
delayed reporting and blurred memory among child sexual abuse victims was precisely the sort
of general profile evidence that we have consistently upheld. Indeed, Dr. Tyler expressly
disclaimed any intent to comment on the facts of this case, and did not even assert that the
complainant’s conduct was consistent with the general behavioral characteristics of child sexual
abuse victims. Accordingly, defendant’s motion in limine to exclude Dr. Tyler’s testimony on

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the ground that it would impermissibly “vouch” for the complainant’s credibility was properly
denied.

        Defendant contends that by testifying on “only the two behaviors that fit the facts of this
case,” i.e., limited specific memories and delayed reporting, Dr. Tyler’s testimony somehow
went beyond the general and “implicitly vouched for [the complainant’s] credibility.” However,
the fact that the expert’s testimony was relevant to the evidence presented in this case does not
render the testimony inadmissible. As we explained in Denny: “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.” 159 Vt. at 265.

        Defendant also asserts that expert testimony on delayed reporting was unnecessary to
assist the jury in understanding the evidence here because the complainant here had already
explained that she never told anyone about the abuse because she “figured that it would stop.”
Defendant further asserts that expert evidence on the memory of child sexual abuse victims was
inadmissible because defendant never attacked the complainant’s credibility based on her
imperfect memory of the incidents.

        The admissibility of expert evidence on the behavioral characteristics of child sex abuse
victims is predicated on the recognition that “the unique psychological effects of sexual assault
on children place the average juror at a disadvantage in understanding the behavior of the
victim,” that they “may behave in a different manner” from other crime victims, and therefore
that jurors may be better able to assess the evidence with the benefit of expert testimony.
Catsam, 148 Vt. at 369. The record here certainly fits this pattern, given the complainant’s delay
in reporting and difficulty recalling specific incidents; its admissibility was not dependent on
defendant’s tactical decision on whether to challenge these aspects of her testimony. We note,
moreover, that the complainant’s statement that she delayed reporting the abuse because she
“figured it would stop” is precisely the sort of response that might seem implausible or
incomprehensible to an adult lay juror without the aid of such expert testimony. Accordingly,
we conclude that the trial court did not abuse its discretion in admitting the challenged testimony.

       Affirmed.

                                                 BY THE COURT:

                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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