Argued: June 27, 2013.
Michael A. Delaney, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.
[166 N.H. 156] Hicks, J.
The defendant, Dennis Sulloway, appeals his conviction, following a jury trial in Superior Court ( McNamara, J.), of pattern aggravated felonious sexual assault. See RSA 632-A:2, III (2007). We affirm.
The record supports the following facts. The defendant was charged with aggravated felonious sexual assault in an indictment alleging, in part, that on or between September 1, 2009, and January 2, 2011, he " engaged in a pattern [of] sexual assault" with a male juvenile under the age of thirteen by " intentionally touching the male juvenile's genitalia with his hand on more than one occasion." Prior to trial, the defendant filed motions in limine seeking to exclude, among other things: (1) the testimony of Dr. Kent Hymel, the victim's examining physician, because, among other [166 N.H. 157] things, it would not be helpful to the jury; and (2) testimony by the victim's stepfather regarding a disclosure by the victim, on the ground that such testimony would constitute inadmissible hearsay.
The trial court denied both motions. In its written order, the court found, with regard to the testimony of Hymel, that
[t]he State seeks only to admit evidence that a normal exam of a child who alleges sexual abuse as a result of touching " neither confirms nor refutes the possibility of sexual abuse." The testimony is admissible because it will avoid the jury speculating on whether medical evidence exists which was not produced to it.
The court also found that the victim's stepfather would " testify that the [victim] disclosed
to him the fact that the defendant assaulted him and he observed that the [victim] visibly was upset when he did so." The court ruled that the testimony was relevant and not hearsay.
On appeal, the defendant argues that the trial court erred in admitting the testimony of Hymel and the stepfather. " Generally, we accord considerable deference to a trial court's evidentiary rulings and will only intervene when they demonstrate an unsustainable exercise of discretion. Unless a party establishes that such a ruling was clearly untenable or unreasonable to the prejudice of the party's case, it will not be disturbed." State v. Belton, 150 N.H. 741, 743, 846 A.2d 526 (2004) (citation omitted). We will address each challenge in turn.
The defendant challenges the admission of Hymel's testimony on grounds that it was irrelevant, unhelpful to the jury, and prejudicial. He first characterizes the trial court's rationale as finding that Hymel's testimony was " necessary to prevent the jury from harboring a misimpression that the absence of physical evidence was significant." He then asserts that this rationale is erroneous because, " while otherwise inadmissible evidence may become admissible to rebut a misimpression under the doctrine of specific contradiction, that doctrine requires that the misimpression be created by the opposing party." Here, he asserts, it was the State, rather than the defendant, that introduced evidence that the victim had been examined by a doctor.
We disagree with the defendant's characterization of the trial court's ruling. The court did not admit the doctor's testimony to rebut a misimpression created by either party, but rather to " avoid the jury speculating on whether medical evidence exists which was not produced to it." We need not, therefore, address the defendant's arguments based upon the doctrine of specific contradiction.
[166 N.H. 158] The defendant next contests that any risk of jury speculation existed. He argues that " the misimpression that the State claimed it needed to rebut -- that touching would produce physical evidence -- defies common sense." At the hearing, the State argued:
I think that as much as we would like to think there would not be any speculation on the part of the jury as to what could potentially show that a child has been touched, we're talking about a pattern allegation over a long period of time, alleging touching of the genitalia.
And I think that the climate that we live in now, a lot of jurors see things on TV; a lot of jurors hear things in the community and have a higher expectation that there may be the possibility of obtaining some sort of physical evidence in [a] case ...