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State v. Paulino

Supreme Court of New Hampshire

January 15, 2020

State of New Hampshire
v.
James Paulino,

         The defendant, James Paulino, appeals his convictions for aggravated felonious sexual assault (AFSA) and attempted AFSA. See RSA 632-A:2, I(l) (2017); RSA 629:1(2016). He argues that the Trial Court (Anderson, J.) erred in admitting testimony from a sexual assault nurse examiner (SANE nurse) that "more often than not, there are no obvious signs of trauma" when an adult male has sexual intercourse with a female child. We affirm.

         The pertinent facts follow. The defendant was charged with sexual assaults that took place between August 2017 and November 2017. When the ten-year-old victim disclosed the assaults in November, she was taken to a hospital where she was examined by the SANE nurse. The victim reported that the most recent assault had occurred the night before the examination.

         At trial, the SANE nurse described her education and training and was then qualified, without objection, as "an expert in nursing and as a sexual assault nurse examiner." She testified that, because it is possible for the hymen to remain intact after sexual intercourse, the appearance of the hymen is not a valid indicator of whether an individual has had sexual intercourse. She also testified that when she examined the victim's vaginal area, she observed "moderate redness" of the external genitalia. When asked whether she would "expect to see injury on a smaller vagina with an adult-size penis," she responded:

Again, our bodies are just made for adaptation. So they're made to constrict and contract. Our bodies are built to adapt to things that are inserted and not. And sometimes, more often than not, there are no obvious signs of trauma.

         Defense counsel objected, arguing that the expert's observation that "more often than not" there are no obvious signs of trauma was based upon "her anecdotal experience." The trial court overruled the objection, finding that the necessary foundation had been laid. The defendant was subsequently convicted and this appeal followed.

         The defendant argues that the State failed to establish that its expert's opinion "was based upon sufficient facts or data and was the product of reliable principles and methods." Because the expert offered no explanation as to how she determined the frequency of the presence or absence of trauma, the defendant argues that the State failed to meet its burden that she reached this conclusion through deductive reasoning. The defendant also contends that any "purported inductive reasoning" based upon the expert's anecdotal experience "was also invalid and unreliable because the State failed to establish that she "analyzed her anecdotal experience according to basic sampling principles."

         We review challenges to a trial court's ruling on the admissibility of evidence to determine whether its exercise of discretion was sustainable; we will reverse only if the rulings are clearly untenable or unreasonable to the prejudice of a party's case. State v. Breest, 169 N.H. 640, 651 (2017). To determine whether a ruling is a proper exercise of judicial discretion, we consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made. Id.

         We note that when the State asked its expert whether she would "expect to find signs of trauma inside [the victim's] vagina after a sexual intercourse," defense counsel objected, arguing that it was "improper expert opinion." When the trial court observed that the witness had already been qualified as an expert, defense counsel expounded:

Yes. But I think that the basis of her opinion would be her anecdotal experience. She hasn't done research in this area or anything like that to say would you expect to find injuries?

         The State responded that the basis of the expert's opinion was "her understanding of a human body and the tissue and how it works." The trial court suggested that the State ask a "foundational question" to establish whether "her experience would allow her to have an opinion on that or not." In response, the State asked several questions about whether the expert's training, studies and degree would give her "knowledge as to the vaginal tissue and how it works."

         We have previously emphasized that "'as long as an expert's scientific testimony rests upon good grounds, it should be tested by the adversary process - competing expert testimony and active cross-examination - rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.'" State v. Langill, 157 N.H. 77, 88 (2008) (quoting United States v. Vargas, 471 F.3d 255, 265 (1st Cir. 2006) (ellipsis omitted)). Although, as proponent, the State bore the burden of proving the admissibility of the expert's testimony, its burden was not onerous. See Stachulski v. Apple New England, LLC, 171 N.H. 158, 164 (2018). As the United States Supreme Court has observed:

Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on first-hand knowledge or observation. Presumably this relaxation of the usual requirement of first-hand knowledge-a rule which represents a most persuasive manifestation of the common law insistence upon the most reliable sources of information-is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of [her] discipline.

Daubert v. Merrell Down Pharms., Inc., 509 U.S. 579, 592 (1993) (citations and quotations omitted).

         At trial, defense counsel objected, surmising that the expert was testifying based upon her anecdotal experience ("But I think that the basis of her opinion would be her anecdotal experience"). In response, the State adduced additional evidence addressing the foundation for the expert's opinion, confirming that her opinion was based upon her knowledge and training. Given the ...


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