State v. Reynolds, 91-297

• Decision Date: 04 November 1992
• Docket Number: No. 91-297,91-297
• Citation: 136 N.H. 325,615 A.2d 637
• Parties: STATE of New Hampshire v. Jeffrey REYNOLDS.
• Court: New Hampshire Supreme Court

Page 637

615 A.2d 637

136 N.H. 325

STATE of New Hampshire v. Jeffrey REYNOLDS.

No. 91-297.

Supreme Court of New Hampshire.

Nov. 4, 1992.

John P. Arnold, Atty. Gen. (Tina L. Nadeau, Asst. Atty. Gen., on the brief and orally), for the State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, on the brief and orally, for defendant.

BATCHELDER, Justice.

The defendant, Jeffrey Reynolds, was convicted after a jury trial in Superior Court (Dunn, J.) of two counts of aggravated felonious sexual assault and one count of felonious sexual assault. On appeal he argues: (1) that one of the indictments charging aggravated felonious sexual assault should have been dismissed for alleging "knowingly" as the mental element rather than "purposely"; and (2) that the trial court erred in allowing a state trooper, during his testimony, to comment on the credibility of the victim. Because we hold that the testimony at issue was erroneously admitted and that the State has failed to prove beyond a reasonable doubt that this error was harmless, we reverse.

The facts, briefly, are as follows. The defendant met Paula L. in 1985 when Paula and her daughter, Amy, lived in a house on Barrett Street in Lisbon. He moved in with them in January 1986. In August 1987, the three moved to Madbury, where they lived with Paula's sister for several months. All three shared one room in the basement. According to Amy's trial testimony it was during this period, when Amy was eight years old, that the defendant first sexually assaulted her. Amy testified that the defendant touched her vagina, and forced her to perform fellatio, to masturbate him, and to lie on top of him and "go up and down." Although, from her testimony, sexual intercourse did not occur, she stated it was "close to it."

Amy told her cousin about the incident some time later and eventually discussed it with her mother. Amy, however, also told her mother that her report of abuse was a lie, explaining at the trial that the defendant had threatened her mother's life if Amy disclosed the abuse. Although Paula testified that she nevertheless believed her daughter's claim of abuse, she did not report the incident to the authorities at that time. Amy testified at trial that the defendant assaulted her in Madbury "[a]pproximately twenty" times.

The defendant, Paula, and Amy soon moved again, eventually returning to Lisbon, where they rented an apartment. According to Amy, the defendant sexually assaulted her again in Lisbon, in the same manner as before, approximately thirty times. As the relationship between Paula and the defendant deteriorated, the defendant moved out. After he left, Amy told her mother about the more recent sexual assaults, and Paula then reported the abuse to the police. Amy was interviewed by State Trooper Michael Marshall and told him that the defendant had touched her vagina and made her perform fellatio. A subsequent physical examination showed no evidence of penetration.

At trial the defendant denied all the allegations. He testified that Amy was occasionally present when he and other adults talked about sex, and that he and Paula sometimes had sex while Amy was in their group bedroom in Madbury.

The defense also called Trooper Marshall as a witness. In addition to interviewing Amy, Trooper Marshall had spoken with her mother, and he testified that the two had given inconsistent accounts with respect to the chronology of the Lisbon allegations. He also stated that Amy had told him that the defendant had assaulted her once in Madbury and four times in Lisbon, contradicting Amy's trial testimony of twenty and thirty times, respectively.

On cross-examination Trooper Marshall was asked whether he had any reason to disbelieve what Amy had told him regarding the allegations of fellatio. Over the defendant's objection he was permitted to answer: "No. I had no grounds to disbelieve anything she told me." Later, on recross-examination, the prosecutor asked: "Would you say that there's a big difference between twenty incidents of fellatio and one incident?" Arguing that the question called for an opinion, the defense again objected. The court permitted the question, and the trooper responded: "I would have to give that answer in the context of this whole case, and that definitely would call for an opinion. And what she told me that time, no, I don't find that surprising that that might happen, that there could be a difference of nineteen." Trooper Marshall testified that he had participated in other child sexual assault investigations.

The defendant first challenges the aggravated felonious sexual assault indictment that alleged that he acted "knowingly" rather than "purposely." We have recently decided this issue against him, holding in State v. Ayer, 136 N.H. 191, 612 A.2d 923 (1992), that for a conviction of aggravated felonious sexual assault the State need only prove that the defendant acted knowingly.

Next, the defendant contends that the court erred in admitting the trooper's testimony quoted above, arguing that it amounted to improper comment on the victim's credibility. The State concedes that the trooper's responses were inadmissible lay opinion evidence. See N.H.R.Ev. 701; State v. Anctil, 134 N.H. 623, 625, 598 A.2d 213, 214 (1991); cf. N.H.R.Ev. 702 (expert opinion testimony). The only question before us, therefore, is whether the admission of Trooper Marshall's opinion testimony was harmless...