State v. Gonzalez

• Decision Date: 30 September 2003
• Docket Number: No. 2002–474.,2002–474.
• Citation: 150 N.H. 74,834 A.2d 354
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Ruben GONZALEZ.

150 N.H. 74

834 A.2d 354

The STATE of New Hampshire

v.Ruben GONZALEZ.

No. 2002–474.

Supreme Court of New Hampshire.

Argued July 10, 2003.

Opinion Issued Sept. 30, 2003.

Peter W. Heed, attorney general (Karen E. Huntress, assistant attorney general, on the brief and orally), for the State.

Dawnangela Minton, assistant appellate defender, of Concord, by brief and orally, for the defendant.

DUGGAN, J.

The defendant, Ruben Gonzalez, was convicted after a jury trial in Superior Court (Hicks , J.) of three counts of aggravated felonious sexual assault, see RSA 632–A:2 (Supp.2002), two counts of felonious sexual assault, see RSA 632–A:3 (Supp.2002), and two counts of misdemeanor sexual assault, see RSA 632–A:4 (1996). The victim was the defendant's stepdaughter, who was eight years old when the assaults began. We affirm.

On appeal, the defendant argues that the trial court erred when it admitted testimony from two lay witnesses regarding the tendency of victims to fail to contemporaneously report abuse and the tendency of victims to recant or deny abuse.

At trial, the State's first witness was Kris Geno, a New Hampshire Division for Children, Youth and Families social worker. The State questioned Geno as to whether she had "received any training and education relative to specifically dealing with allegations of sexual abuse." Geno testified that she had received training on interviewing sexual abuse victims, victim recantations, and dealing with different types of sexual offenders. The State asked Geno about the frequency of victim recantations or denials. Geno testified that denials or recantations were not unusual.

Detective Brooke Lemoine also testified at trial. After eliciting testimony from him regarding his training and experience, the prosecutor asked, "In your experience with your caseload, are sexual assaults reported contemporaneous with the abuse?" Lemoine testified that contemporaneous disclosure of sexual abuse is unusual.

The defendant argues that this testimony was inadmissible. The State argues that the defendant failed to preserve the issue of the admissibility of Geno's testimony because he failed to make a timely objection. In the alternative, the State argues that Geno's and Lemoine's testimony was admissible lay witness testimony because it was based upon their perceptions and not specialized training. The State further argues that, even if the testimony was inadmissible, the error was harmless.

We first address the State's argument that the defendant failed to preserve the issue of Geno's testimony for our review. The defendant first objected when the State asked Geno whether she "received any training and education relative to specifically dealing with allegations of sexual abuse?" During the bench conference, the prosecutor offered that the reason she was "asking [Geno] for her education and her training background, and what she has done specifically in her caseload, is because I intend to ask her about recantations and denials." In response, defense counsel further objected stating that "the offer of proof's been made [that the prosecutor's] gonna [sic ] ask about recantations and denials. That is expert testimony. There was—you know, there was no expert testimony noticed up. That is absolutely inappropriate." The trial judge noted that defense counsel was objecting to the prosecution's anticipated question regarding Geno's experience with recantations and denials and permitted the anticipated question over the defendant's objection.

The State then asked Geno, "In your experience, are denials or recantations unusual?" Defense counsel did not object to this question. Geno answered, "No." Next, the State asked Geno: "In your experience, why or why not?" Defense counsel immediately objected. At the bench conference, the defendant again raised his objection that Geno's testimony constituted expert testimony, requiring that she be qualified as an expert. This time the trial court sustained the objection.

"The general rule in New Hampshire is that a contemporaneous and specific objection is required to preserve an issue for appellate review." State v. Searles, 141 N.H. 224, 230, 680 A.2d 612 (1996) (quotation omitted). In State v. Bouchard, 138 N.H. 581, 584, 643 A.2d 963 (1994), we held that the defendant's oral motion on the day of trial to exclude certain evidence was adequate to preserve the issue, thus making a contemporaneous objection at trial unnecessary. The oral motion served the purpose of the contemporaneous objection requirement by allowing the trial court the opportunity to correct any claimed errors. State v. Mello, 137 N.H. 597, 600, 631 A.2d 146 (1993).

At the bench conference that occurred before Geno's testimony was admitted, defense counsel anticipated that after asking Geno about her training and education, the prosecutor would then ask her about recantations and denials and that this would constitute inadmissible expert testimony. In addition, the trial judge acknowledged that defense counsel was objecting to the anticipated question and ruled accordingly. This objection, like the oral motion in Bouchard , adequately preserved the issue even though the objection was made before the pertinent question was asked. Bouchard , 138 N.H. at 584, 643 A.2d 963. Defense counsel stated the specific basis for the objection and gave the trial court the opportunity to correct any claimed errors. Mello , 137 N.H. at 600, 631 A.2d 146. We conclude this objection adequately preserved the issue of the admissibility of Geno's testimony.

We next consider whether the trial court erroneously admitted Geno's testimony regarding victim recantations. We review the ruling to determine whether it was an unsustainable exercise of discretion. See State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001). We will reverse the trial court "only if the appealing party can demonstrate that the ruling was untenable or unreasonable and that the error prejudiced the party's case." State v. Searles, 141 N.H. 224, 227, 680 A.2d 612 (1996) (quotation omitted).

The question of the admissibility turns on the characterization of Geno's testimony. Expert testimony involves "matters of scientific, mechanical, professional or other like nature, which requires special study, experience, or observation not within the common knowledge of the general public." State v. Martin, 142 N.H. 63, 65, 694 A.2d 999 (1997) (quotation omitted). Lay testimony must be confined to "personal observations which any lay person would be capable of making." Id. (brackets and quotation omitted). If Geno's testimony is expert testimony, then it was not properly admitted as lay testimony. See id. at 66, 694 A.2d 999; accord Sample v. State, 643 So.2d 524, 529–30 (Miss.1994) (plurality opinion) (stating that testimony must be considered expert testimony if in order to testify, "the witness must possess some experience or expertise beyond that of the average, randomly selected adult"). If Geno's testimony is not expert testimony, then it must be determined whether it is permissible lay testimony.

See N.H. R. Ev. 602, 701. Because Geno's testimony regarding victim recantations is expert testimony, it was erroneously admitted as lay testimony.

This case is similar to the testimony at issue in State v. Martin, 142 N.H. 63, 694 A.2d 999 (1997). In Martin , a sexual assault victim's treating physician testified to the physical condition of the victim based on the physician's personal observations during an internal gynecological examination. See Martin , 142 N.H. at 66, 694 A.2d 999. In determining whether this testimony should be treated as expert testimony, we stated that: "The focus is not solely on whether a professional speaks from personal observation, but also whether the personal observations require specialized skills not within the ken of the ordinary person." Id. We also explained that lay testimony must be confined to "personal observations which any lay person would be capable of making" and is improperly admitted when it goes "beyond mere observation and require[s] professional training not possessed by the public at large." Id. at 65–66, 694 A.2d 999 (brackets and quotation omitted). While in Martin the State argued that the physician's testimony was not expert testimony because it involved personal or first-hand knowledge based on her experience, we held that it was expert testimony because the observations and findings "required special skills and knowledge not possessed by the average layperson." Id. at 66–67, 694 A.2d 999; see Seal v. Miller, 605 So.2d 240, 244 (Miss.1992) (holding that police officer's testimony based on experience investigating accidents is not lay testimony).

The testimony at issue in the present case involved whether, in sexual abuse cases, victim denials and recantations were not unusual. The tendency or frequency of sexual abuse victims' denials and recantations are not observations that any layperson is capable of making, but rather require special experience and knowledge not possessed by the public at large. We have recognized that a layperson is not capable of making such observations because "a child's delayed disclosure of abuse, inconsistent statements about abuse, and recantation of statements about abuse, may be puzzling or appear counterintuitive to lay observers when they consider the suffering endured by a child who is continually being abused." State v. Cressey, 137 N.H. 402, 411, 628 A.2d 696 (1993). Because of its...