defendant, Joseph Campagna, appeals his convictions,
following a jury trial, of aggravated felonious sexual
assault, see RSA 632-A:2, I(j) (2016); RSA 632-A:2,
III (2016), and sexual assault, see RSA 632-A:4,
I(a) (2016). He argues that the Superior Court
(MacLeod, J.) erred in: (1) denying his motion to
exclude the victim's testimony; and (2) limiting the
scope of his expert's testimony. We affirm.
defendant first argues that the trial court erred in denying
his motion to exclude the victim's testimony pursuant to
State v. Hungerford, 142 N.H. 110 (1997). The
admissibility of evidence is a matter left to the sound
discretion of the trial court. State v. Gibson, 153
N.H. 454, 457 (2006). "In Hungerford, concerned
about the influence of therapy on the recovery of memory, we
concluded that testimony on the recovery of memories which
previously have been partially or fully repressed must
satisfy a pretrial reliability determination." State
v. Madore, 150 N.H. 221, 223 (2003) (quotation omitted).
"The existence of repressed memory, however, is a
necessary precursor to that hearing; only when repressed
memory exists is a hearing held to determine its
reliability." Id. at 224.
"Hungerford requires the trial court to make a
pretrial determination of whether the memory is repressed or
continuous." Gibson, 153 N.H. at 458.
defendant filed his motion to exclude the victim's
testimony on or about May 29, 2018. The parties agreed that
the trial court could make its pretrial determination as to
whether the victim's memory was repressed or continuous
based upon the pleadings, the exhibits attached to the
pleadings, and the offers of proof submitted at the August
29, 2018 hearing on the motion. The pleadings included the
State's June 19, 2018 objection, which set forth the
chronology of the victim's disclosures. The defendant did
not directly challenge the State's chronology.
defendant was charged with sexually assaulting the victim
between June 1, 2003, and December 10, 2007, when she was
between the ages of 13 and 17. According to the State, the
victim first disclosed that the defendant sexually abused her
during an argument with her mother and the defendant in high
school. However, when the mother started yelling at the
defendant, the victim became "scared and fearful of the
situation" and told them she was lying. During her
senior year, the victim's friends asked her if the
defendant had molested her. She initially denied it, but
later became intoxicated and "blurted out that the
defendant did in fact molest her." However, "[s]he
later told them she was lying."
2009, after graduating from high school, the victim disclosed
to a college friend and to her then-husband that she had been
repeatedly sexually assaulted by a family friend. In 2013,
when the victim was 23 years old, she told her boyfriend that
she had been sexually assaulted by a family friend. In 2014,
when the victim was 24 years old, shortly after she broke up
with the boyfriend, she told him that the defendant was the
assailant. That year, she also told her college friend that
the defendant was the assailant. In or about April 2014, the
victim disclosed to her biological father that the defendant
had molested her. At approximately the same time, the victim
telephoned her mother and told her that she was not lying
when she first disclosed that the defendant had abused her.
Following this telephone conversation, the victim disclosed
to her brother and, in or about July 2014, to her uncles,
that the defendant had sexually abused her.
hearing, the defendant noted that the victim's
disclosures were inconsistent and often did not identify him
as the assailant. The defendant also noted the lack of
corroborating statements from the victim's friends and
relatives. In support of his motion to exclude the
victim's testimony, the defendant primarily relied upon
the victim's February 2017 "blog post," or
online journal, in which she stated, among other things, that
"once [the abuse] stopped, I blocked it out. Literally.
For years I actually forgot that [the abuse] had
happened to me." She also stated in the blog post that
she "erased the entire ordeal from [her] memory."
The defendant argued that the blog post showed that the
victim, who was 27 years old when she posted the blog entry,
"forgot about the abuse for at least several years, and
possibly up to eight years, and recovered the memory of [the
assaults] during self-reflection to try to determine why she
had bad eating disorders."
defendant argued that this conclusion was supported by the
opinion from his expert, Harrison Pope, M.D., whose May 23,
2018 report was attached to the defendant's motion. Dr.
Pope, a psychiatrist specializing in eating disorders and
childhood sexual abuse, opined that the victim's
"claim that she completely forgot the abuse (i.e.
'repressed' the memory) . . . raises serious
questions about the validity of her allegations." Dr.
Pope opined that "what [the victim] describes [in the
blog post] is not scientifically possible," and that
"[t]here is no methodologically sound scientific
evidence that human beings can 'erase' the memory of
a traumatic event such as protracted sexual abuse." The
defendant also argued that the victim's "informal
self-therapy that led to the recovery" was an example of
the suggestive therapeutic processes that concerned the court
trial court, in denying the defendant's motion, noted
that the victim "made a number of disclosures through
the years to different individuals sometimes or most often .
. . not identifying the perpetrators," and that
"she put these memories out of her mind; basically, put
them aside but not necessarily forgot them." The court
also noted in its statements from the bench that although the
victim engaged in informal self-therapy, the primary concern
in Hungerford was the suggestiveness of formal
therapeutic intervention or "some other formal technique
rather than mere self-reflection or contemplation." The
court continued by stating that the victim's memories
"resurfaced . . . not through any . . . formal
therapeutic process but simply through her own working things
out through her own mind."
threshold issue as to whether the victim's memory of the
assaults was continuous or repressed was a factual issue for
the trial court's determination. Madore, 150
N.H. at 224. On appeal, we uphold the trial court's
findings of fact unless they are unsupported by the record or
clearly erroneous. Gibson, 153 N.H. at 458. We
conclude that the record supports the trial court's
finding that the victim's memory of the assaults was
continuous and not repressed. The victim's statement in
her blog post that she "forgot" about the abuse
does not compel a finding that her memory was repressed and
subsequently recovered. On the contrary, as we noted in
Hungerford, "[t]rue repression or traumatic
amnesia rendering a person unable to remember any part of a
traumatic event [is] distinguished from . . . motivated
forgetting." Hungerford, 142 N.H. at 127. Given
the trial court's finding that the victim's memory
was not repressed, which we uphold, there was no need for a
Hungerford hearing regarding the reliability of
repressed memories. See Madore, 150 N.H. at 224.
Thus, we conclude that the trial court sustainably exercised
its discretion in denying the defendant's motion to
exclude the victim's testimony. See Gibson, 153
N.H. at 457.
defendant next argues that the trial court erred in limiting
the scope of Dr. Pope's testimony, and that the
State's motion to exclude the testimony, filed on the
second day of trial, was untimely. The State countered that
the motion was timely because the issue was not ripe until
the previous day, when the court denied the defendant's
renewed motion to dismiss at the close of the State's
case. The decision to admit or exclude expert testimony rests
within the sound discretion of the trial court. State v.
DeCosta, 146 N.H. 405, 407 (2001). "We will reverse
this decision only if the appealing party can demonstrate
that the ruling was untenable or unreasonable and that the
error prejudiced the party's case." Id.
(quotation omitted). Dr. Pope's May 23 report identified
five opinions upon which he was prepared to testify. The
court allowed Dr. Pope to testify regarding two of those
opinions: (1) that the victim's "history of anorexia
nervosa and bulimia nervosa . . . provides no evidence for or
against the validity of her allegations of sexual
abuse"; and (2) that the victim's "claim that
she completely forgot the abuse (i.e. 'repressed' the
memory) . . . raises serious questions about the validity of
trial court precluded Dr. Pope from testifying regarding his
remaining three opinions: (1) that the victim's
"delay in reporting her putative sexual abuse provides
no evidence either for or against the validity of her
allegations"; (2) that the defendant's
"response, upon first hearing the allegations against
him, provides little evidence for or against the validity of
the allegations"; and (3) that the victim's
"shifting version of the story provides little evidence
for or against the validity of the allegations."
Hampshire Rule of Evidence 702 governs the admissibility of
expert testimony. State v. Cort, 145 N.H. 606, 611
(2000). Under Rule 702, expert testimony is admissible
"[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue." N.H. R.
Ev. 702. The trial court ruled that Dr. Pope's
testimony regarding these three issues would not assist the
jury in assessing the victim's credibility. See State
v. Cote, 129 N.H. 358, 369 (1987) (duty to determine
witness credibility belongs to jury). Based upon this record,
we conclude that the trial court sustainably exercised its
discretion in concluding that Dr. Pope's testimony would
not assist the jury in determining the weight to be given to
the victim's delayed disclosure, the defendant's
reaction to her allegations, or the inconsistencies in the
victim's disclosures. See DeCosta, 146 N.H. at
BASSETT, and ...