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State v. Campagna

Supreme Court of New Hampshire

January 8, 2020

State of New Hampshire
v.
Joseph Campagna

         The 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.

         The 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.

         The 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.

         The 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."

         In 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.

         At the 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."

         The 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 in Hungerford.

         The 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."

         The 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.

         The 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 her allegations."

         The 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."

         New 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 407.

         Affirmed.

          HICKS, BASSETT, and ...


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