Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Marden

Supreme Court of New Hampshire

June 14, 2019

THE STATE OF NEW HAMPSHIRE
v.
JONATHAN J. MARDEN

          Argued: January 17, 2019

          Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

          Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown on the brief and orally), for the defendant.

          BASSETT, J.

         The State appeals an order of the Superior Court (Mangones, J.) setting aside the jury's guilty verdict against the defendant, Jonathan J. Marden, on one charge of aggravated felonious sexual assault. See RSA 632-A:2, I(m) (2016). The trial court concluded that the defendant's trial counsel, who is not his appellate counsel, rendered ineffective assistance of counsel when he failed to object to the testimony of the State's expert witness, Dr. Gwendolyn Gladstone, a physician specializing in the care of abused or neglected children. The trial court found that, even though Gladstone did not explicitly opine that the complainant had been sexually assaulted, her testimony ran afoul of our general prohibition against offering expert testimony "to prove that a particular child has been sexually abused." State v. Cressey, 137 N.H. 402, 412 (1993). We affirm.

         The record establishes the following facts. The complainant and the defendant had been in a personal relationship from about February to May 2016. The complainant alleged that on October 26, 2016, the defendant sexually assaulted her in the defendant's vehicle in the parking garage outside of her workplace. After being contacted by mall security, the complainant's supervisor and a security official went to the parking garage and saw two people that "appeared to be having sex" in the passenger seat of one of the cars. The supervisor knocked on the car window; the defendant then moved away from the complainant to the driver's seat. At that point, the supervisor recognized the complainant. The defendant was ordered to leave the property. The complainant was visibly upset when she returned to the store. She told her supervisor that she had been raped and expressed concern that she would lose her job. The defendant contends that the sexual relations were consensual, whereas the complainant asserts that they were not. At the time of the incident, the complainant was 17 years old and the defendant was 20 years old.

         At trial, the State called Gladstone as a witness as part of its case-in-chief. Gladstone is a board-certified physician with a "sub specialty board certification in child abuse." At the time of trial, Gladstone was an administrator of the Child Advocacy and Protection Program at Dartmouth-Hitchcock. Her duties included reviewing policies related to the medical care of children "where there's a question of . . . maltreatment," and advising "various entities," including New Hampshire's child protection system. Before she was an administrator, Gladstone had a pediatric practice and specialized in caring for children suspected of being abused or neglected. Gladstone testified that she belongs to the American Professional Society on the Abuse of Children, the American Academy of Pediatrics Council on Child Abuse and Neglect, the Ray Helfer Society (an international society of physicians who deal with child abuse and neglect), the International Society on the Abuse of Children, and the New Hampshire Attorney General's Task Force on Child Abuse and Neglect. Gladstone informed the jury that she had testified "[s]everal dozen times" as an expert "[p]rincipally in the area of child abuse." The State moved to qualify Gladstone as an expert. The defendant did not object. The trial court granted the motion, informing the jury that, because Gladstone was qualified as an expert, "she may render an opinion in this matter."

         Gladstone proceeded to tell the jury that, following the October incident, the complainant's primary care provider had referred the complainant to the Child Advocacy and Protection Program at Dartmouth-Hitchcock, with which she was then clinically affiliated. Gladstone testified that she medically evaluated the complainant three weeks after the alleged assault. The purpose of the evaluation was to review the complainant's medical care, including, "what medication she had been given, how she was doing both physically and emotionally[, ] . . . [and to determine] whether she had been connected with a counselor." Gladstone testified that the complainant told her that "[s]he was having some vaginal irritation and she was concerned that that might indicate that she had acquired an infection." The State then asked: "What other symptoms of significance did she mention to you during your conversation with her?" Defense counsel did not object to the question. Gladstone responded:

She had some physical symptoms and she had some emotional symptoms. Physical symptoms included the genital irritation that I talked about. She also had difficulty with her appetite and had lost weight. She had difficulty sleeping. She felt sad and was crying. She described having less ability to go out of her house to play outside with her brother, to go to school, to socialize.
She'd had some preoccupation with thoughts that had made it hard for her to concentrate at school. She had some intrusive images of the assault. And as a consequence she couldn't concentrate on her school work and had gotten some bad grades, whereas previously she had been on the honor roll.
. . . .
She told me that her symptoms were getting better, but that they were still present and this was at more than three weeks after the assault.
. . . .
Based on the information . . . gathered from [the complainant], I recommended that she be tested for sexual infections. I recommended that she be tested for pregnancy because the first test had been done too soon after the assault to be sure that that hadn't happened. I recommended that she see a counselor, because ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.