considered the briefs and oral arguments of the parties, the
court concludes that a formal written opinion is unnecessary
in this case. The defendant, Ronald L. Fuller, appeals his
convictions, following a jury trial in the Superior Court
(Ignatius, J.), on two counts of aggravated
felonious sexual assault and one count of felonious sexual
assault. See RSA 632-A:2, :3 (Supp. 2017). The
defendant argues that the trial court erred by improperly:
(1) admitting the testimony of a lay witness, either because
it was irrelevant or because it exceeded the scope of lay
testimony; and (2) allowing the State to question the
defendant about a "different investigation." We
reverse and remand because the trial court unsustainably
exercised its discretion by admitting irrelevant testimony of
a key witness. We also conclude that the trial court
erroneously permitted the State to question the defendant
about a different investigation.
following facts are drawn from the record. Between February
2000 and approximately June 2005, the complainant, the niece
of the defendant's long-time girlfriend, lived
intermittently at the defendant's house when she was
between 8 and 13 years of age. In November 2005, the
complainant accused the defendant of attempting to
inappropriately touch her at some point during 2003 and 2004.
Although the defendant was charged with attempted felonious
sexual assault, the State eventually nol prossed
that indictment in December 2008. In 2013, when the
complainant was 21 years old, she alleged that the defendant
had done more than attempt to touch her; she accused him of
sexually assaulting her between 2001 and 2004. The
complainant testified that she did not tell the police in
2005 about the sexual assaults because she "was scared
and not ready to admit what had happened." In 2014, the
defendant was indicted on two counts of aggravated felonious
sexual assault and one count of felonious sexual assault. In
2018, he was tried by a jury.
State's first witness, Police Officer Swift testified
that she was an "assisting officer" in the case,
tasked to "just . . . do follow ups" with various
witnesses. Swift also testified that she had previously
investigated about "two dozen" sexual assault
cases, worked with a sexual assault response team, and
attended multiple trainings about sexual assault. Following
this recitation of her training and experience, the State
asked Swift: "In any of the cases you've
investigated, were there late disclosures?" Swift
replied: "Yeah, majority of them are."
defendant objected, arguing, in part, that no late disclosure
was made in this case. The trial court overruled this
objection. The State and Swift then had the following
Q. So I asked you, have you investigated a case in which
there was a late disclosure?
Q. Have you investigated cases in which the disclosure comes
. . . .
. . . .
Q. Have you investigated a case in which the victim remained
in the home?
defendant moved to strike this testimony, questioning its
relevance. The trial court denied the motion, but told the
State not to restate the question and to move on. The
defendant was subsequently convicted on all three
indictments. This appeal followed.
defendant argues that Swift's testimony was irrelevant.
We agree. We review a trial court's decision to admit
testimony subject to the unsustainable exercise of discretion
standard. State v. Gonzalez, 150 N.H. 74, 77 (2003).
To demonstrate an unsustainable exercise of discretion, the
defendant must show that the trial ...