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State v. Allen

Supreme Court of New Hampshire

August 4, 2011

State of New Hampshire
v.
Ethan Allen

UNPUBLISHED OPINION

The defendant, Ethan Allen, appeals his convictions for one count of aggravated felonious sexual assault and two counts of felonious sexual assault. RSA 632-A:2, I (2007); RSA 632-A:3, III (2007). He argues that the trial court: (1) may have erred in declining to provide him with additional portions of the victim's counseling records; and (2) erred in admitting the victim's mother's testimony regarding behavioral changes of the victim. We affirm.

We review a trial court's decisions on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. State v. Amirault, 149 N.H. 541, 543 (2003). To meet this standard, the defendant must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of his case. Id.

The defendant first argues that the trial court may have erred in denying his request for additional portions of the victim's counseling records. The defendant also argues that to the extent the undisclosed records contained information "essential and reasonably necessary" to his defense, State v. Sargent, 148 N.H. 571, 573 (2002), the failure of the court to give him access to these records violated his rights to due process, confrontation, and to present all proofs favorable under Part I, Article 15 of the New Hampshire Constitution and the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. The trial court conducted four in camera reviews of the records and ordered disclosure of portions of the counseling records it deemed were essential and reasonably necessary to the defense. See id.

After a full review of all counseling records, we find the trial court sustainably exercised its discretion in limiting disclosure of the privileged records. See id. at 574. Our review reveals that the counseling records disclosed to the defendant were sufficient. The trial court disclosed all records essential and reasonably necessary to his defense. Thus we find no error in the court's ruling. The defendant has premised his constitutional arguments upon our finding error in the trial court's ruling. Because we find no error, his constitutional arguments fail.

The defendant next argues that the trial court erred in admitting testimony from the victim's mother about changes in the victim's behavior around the time of her disclosure of the sexual assaults. He contends that the trial court erred because the testimony: (1) was not relevant and thus not admissible; (2) was, under the circumstances, impervious to cross-examination; and (3) impermissibly bolstered the victim's credibility. The defendant also argues that the admission of this evidence violated his rights to due process and confrontation under Part I, Article 15 of the New Hampshire Constitution and the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

The State contends that the defendant failed to preserve the argument that the victim's mother's testimony was not relevant. We agree. It is well settled that preservation of an issue for appeal requires a contemporaneous and specific objection. State v. Ryan, 135 N.H. 587, 588 (1992). This requirement, grounded in common sense and judicial economy, affords the trial court an opportunity to correct an error it may have made. Id. Any objection not raised at trial is deemed waived. Id. The defendant bears the burden of establishing that he raised a proper objection. See Reynolds v. Cunningham, Warden, 131 N.H. 312, 314 (1988). The record reflects no objection to the relevance of this testimony. Accordingly, the issue is not preserved.

The defendant also argues that because he was unable to view additional counseling records of the victim, he was unable to conduct effective cross-examination of the victim's mother. As previously discussed, the trial court sustainably exercised its discretion in determining what counseling records were essential and reasonably necessary to the defense. There is no indication in the record that the defendant was unable to effectively cross-examine the victim's mother. Thus, we find the trial court did not err and reject the defendant's constitutional claims.

The defendant argues in his brief that the testimony of the victim's mother was the functional equivalent of inadmissible expert testimony, which he contends, impermissibly bolstered the victim's credibility. The "expert" testimony issue does not appear in the defendant's notice of appeal and is therefore waived. See State v. Belyea, 160 N.H. 298, 309 (2010); Sup. Ct. R. 16(3)(b).

Even if we assume this issue is properly before us, we agree with the trial court that the mother's testimony was within the ken of the average person, and thus admissible. Lay testimony must be confined to "personal observations which any lay person would be capable of making." State v. Martin, 142 N.H. 63, 65 (1997)(quotation and brackets omitted). Lay testimony is improperly admitted when it goes beyond mere observation and requires professional training not possessed by the public at large. Id. at 65-66. The mother's testimony was properly admitted because she did not offer her opinion as to whether the assaults occurred, but testified to facts that were rationally based upon her personal observations of the victim and helpful to a clear determination of a fact in issue. See N. H. R. Ev. 701. We find the trial court did not unsustainably exercise its discretion in admitting the testimony.

Similarly, the "impermissible bolstering" issue is not raised in the defendant's notice of appeal. Regardless, as previously discussed, the mother's testimony was permissible lay testimony. We therefore reject the defendant's "impermissible bolstering" argument. We do not address any due process argument separate from the defendant's admissibility claims because it is not adequately briefed. See State v. Gubitosi, 157 N.H. 720, 728 (2008).

Affirmed.

DUGGAN, HICKS and LYNN, JJ., ...


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