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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page
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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court s home page is: http://www.state.nh.us/courts/supreme.htm THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Cheshire No. 94-841 THE STATE OF NEW HAMPSHIRE v. GORDON J. MACRAE June 6, 1996 Jeffrey R. Howard, attorney general (Ann M. Rice, assistant attorney general, on the brief and orally), for the State. David M. Rothstein, assistant appellate defender, of Concord, by brief and orally, for the defendant. JOHNSON, J. The defendant, Gordon J. MacRae, was convicted of one count of felonious sexual assault and four counts of aggravated felonious sexual assault. See RSA 632-A:3 (1986); RSA 632-A:2, X (1986) (amended 1992). On appeal, the defendant argues that the trial court erred in admitting expert testimony allegedly offered by the State to prove that the victim s allegations of sexual assault were true. He also asserts that the Superior Court (Brennan, J.) erred in refusing to allow him to cross-examine the victim about past juvenile convictions and in instructing the jury to disregard portions of the victim s testimony. We affirm. The defendant was convicted of acts that took place during pastoral counselling sessions he conducted with the victim while the defendant was serving as a priest at St. Bernard s Parish in Keene. While the acts occurred between June and November 1983, the offenses were not reported until March 1993, when the victim contacted the Keene police department after learning that his brother had reported similar incidents of sexual abuse by the defendant. The victim s trial testimony lasted approximately four days, during which he was extensively cross-examined. The defense repeatedly attacked the victim s credibility, and questioned him about the delay in reporting the assaults and his inability to recall specific details regarding those assaults. The defense also emphasized the victim s apparent failure to actively resist the assaults, his continued close relationship with the defendant after the assaults, and his testimony that during the assaults he felt dissociated from his body.Following the victim s testimony, the State called Dr. Leonard Fleischer, a Ph.D. in counseling psychology, to testify about characteristic behaviors of sexual abuse victims in order to rebut many of the negative inferences that could be drawn from the victim s cross-examination. The defendant argues that the trial court, over objection, allowed the State to admit testimony from the expert to prove that the victim s allegations were true, in violation of our ruling in State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993). As a preliminary matter, the State argues that this issue was not properly preserved for appeal. See N.H. R. Ev. 103. Defense counsel objected to Dr. Fleischer s testimony by stating that we note our exception and in particular for the record we would be relying upon the standards in Cressey which we discussed earlier this morning . . . regarding reliability, predictability and the ability to effectively challenge and cross-examine. The State contends that the defense challenged only the reliability of the underlying psychological theories, and therefore cannot now base its claim on allegedly improper comments on the victim s credibility by the State s expert. Assuming, arguendo, that the issue was properly preserved for appeal, see, e.g., State v. Roy, 138 N.H. 97, 98, 635 A.2d 486, 486 (1993), we address its substance. In Cressey and its progeny, see, e.g., State v. Chamberlain, 137 N.H. 414, 628 A.2d 704 (1993); State v. Luce, 137 N.H. 419, 628 A.2d 707 (1993), we set forth the circumstances under which expert testimony in sexual assault cases is sufficiently reliable to be admissible under New Hampshire Rule of Evidence 702. We held that the State may offer expert testimony explaining the behavioral characteristics commonly found in child abuse victims to preempt or rebut any inferences that a child victim witness is lying. This expert testimony may not be offered to prove that a particular child has been sexually abused. . . . Cressey, 137 N.H. at 412, 628 A.2d at 703. We allow such expert testimony to educate the jury about apparent inconsistent behavior by a victim following an assault that may be misinterpreted by the jury as evidence that the victim s testimony was fabricated. See Chamberlain, 137 N.H. at 417, 628 A.2d at 706. Expert testimony loses its educational value, however, and is inadmissible when it is directly linked to a determination of the guilt or innocence of the defendant, State v. Silk, 138 N.H. 290, 291, 639 A.2d 243, 244 (1994) (quotation omitted), as opposed to providing useful information that is beyond the common experience of an average juror. Cf. State v. Black, 537 A.2d 1154, 1156-57 (Me. 1988) (finding expert s testimony to be admissible in part and inadmissible in part); State v. Spigarolo, 556 A.2d 112, 123 (Conn.) (critical distinction between admissible and inadmissible testimony is whether testimony directly concerns that particular victim s credibility), cert. denied, 493 U.S. 933 (1989). The defendant argues that the State exceeded the permissible bounds of Cressey by examining Dr. Fleischer only about the specific behaviors that the victim had exhibited, which, the defendant contends, resulted in Dr. Fleischer giving the functional equivalent of a direct opinion about whether the victim s allegations were credible. We disagree. We have stated thatwhen a [victim s] actions after an alleged incident of sexual abuse have the potential to lead a jury to conclude that the [victim] is lying, the testimony of a qualified expert may be beneficial to offer an alternative explanation for the [victim s] specific behavior so that the jury may more accurately judge the credibility of the [witness]. Chamberlain, 137 N.H at 418, 628 A.2d at 706-07 (emphasis added). Testimony of specific behavior is inadmissible, however, if its purpose is to prove that abuse occurred, or if the expert testifies that the particular victim s behaviors were consistent with one who had been abused, Luce, 137 N.H. at 422, 628 A.2d at 709. Dr. Fleischer never interviewed or examined the victim in this case for evidence of sexual abuse, and never stated that he thought the victim s behavior was consistent with one who had been abused. But see Silk, 138 N.H. at 291, 639 A.2d at 244; Chamberlain, 137 N.H. at 418, 628 A.2d at 706; Cressey, 137 N.H. at 406-07, 628 A.2d at 699- 700. Indeed, Dr. Fleischer testified that because he had never met the victim and had only a general knowledge of the facts of the case, he was in no position to judge the victim s credibility. His testimony was carefully limited to informing the jury about characteristics and behaviors exhibited by victims of child sexual abuse in order to rebut the inference that the victim s testimony was not credible. The defense argues further that Dr. Fleischer s testimony was not generalized because the questions posed by the State were closely tailored to the victim s earlier testimony. The questions posed by the State, while inquiring generally about alternative explanations for behaviors exhibited by the victim, were not so specific as to amount to a direct comment on the defendant s guilt. But see State v. Pansegrau, 524 N.W.2d 207, 210-11 (Iowa Ct. App. 1994) (finding error because hypothetical questions posed by State simply reiterated events that victim testified preceded rape); State v. Foret, 628 So. 2d 1116, 1130 (La. 1993) (finding error in expert testimony that included victim s own description and concluded that victim was telling the truth). Therefore, to the extent that the purpose of Dr. Fleischer s testimony was educational and was related to the testimony of this particular victim, but was not offered as proof that the victim in fact had been abused, it was proper. In doing so, we emphasize that [t]he fact that the jury, if it believes the expert s testimony, may draw inferences which would tend to bolster the victim s credibility does not make the evidence inadmissible. So long as the expert does not render an opinion on the accuracy of the victim s recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury. State v. Hicks, 535 A.2d 776, 778 (Vt. 1987) (quotation, brackets, and ellipsis omitted); see Foret, 628 So. 2d at 1130. One aspect of Dr. Fleischer s testimony, however, must be carefully considered. The victim, on direct examination, stated that he had been admitted to Beech Hill Hospital, a drug and alcohol rehabilitation facility, in 1985. Dr. Fleischer later testified that it was his experience that between seventy and eighty percent of the males who had been treated for substance abuse problems at Beech Hill between 1989 and 1990 had been sexually abused. The defendant alleges, and theState concedes, that this was inadmissible expert testimony because it improperly provided statistical evidence that the victim more probably than not had been abused. See State v. Wheat, 527 A.2d 269, 274-75 (Del. 1987). While the court erred by admitting this testimony, we find it harmless beyond a reasonable doubt. Similar statistical evidence regarding patients at the Derby Lodge facility, which the victim had also attended, was first presented to the jury by defense counsel during cross-examination of the victim in an effort to show that earlier disclosures by the victim were the result of peer pressure in group counseling sessions. But see Silk, 138 N.H. at 291-92, 639 A.2d at 245 (inadmissible expert testimony was not merely a single question and answer). Because the inadmissible testimony presented by Dr. Fleischer only reiterated similar statistics already presented to the jury by the defense, the error was harmless. The defendant next argues that the court erred by precluding him from cross-examining the victim about his juvenile convictions. New Hampshire Rule of Evidence 609(d) states that [e]vidence of juvenile adjudications is generally not admissible. The court may admit such evidence only if conviction of the offense would be admissible to attack the credibility of an adult and the court is convinced that the evidence is necessary for a fair determination of the issue of guilt or innocence. N.H. R. Ev. 609(d). The trial court has discretion in determining whether to allow cross-examination about prior criminal convictions, see State v. Chaisson, 123 N.H. 17, 30, 458 A.2d 95, 102 (1983), and we will not overturn the trial court's ruling absent an abuse of discretion. See State v. McGann, 128 N.H. 186, 190, 514 A.2d 1247, 1250 (1986). To warrant a reversal, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. State v. Gooden, 133 N.H. 674, 677, 582 A.2d 607, 609 (1990) (quotation omitted). The defendant alleges that the trial judge effectively declared that it was his policy not to allow impeachment by cross-examination with juvenile convictions. See Chaisson, 123 N.H. at 30, 458 A.2d at 102 (trial court's refusal to allow any witness to be impeached by a prior criminal conviction constituted reversible error). The defendant's claim is without merit. Unlike Chaisson, there was no blanket prohibition against introduction of the victim's prior juvenile convictions. The court allowed the defense to question a police officer about whether the victim's entry into a drug and alcohol rehabilitation center had something to do with a juvenile offense. In fact, despite the State's assertion during a pretrial hearing that there was a blanket prohibition against the admission of juvenile convictions, the court disagreed and stated that there's always room when justice is involved, and agreed to revisit the issue, if necessary, later in the trial. Nevertheless, the defendant faults the court for refusing to admit evidence of the victim's juvenile convictions without making specific reference to Rule 609(d). When the defense attempted to question the victim about his juvenile convictions, however, the stated purpose of the inquiry was not impeachment, see N.H. R. Ev. 609(d), but rather to establish why the victim was in counseling with the defendant and to help ascertain whether the incidents of sexual abuse occurred during the dates charged in the indictments. In response, the court properly ruled that questions about specific juvenile convictions were not relevant to this stated line of inquiry, but did allow questioning about whether the victim was having legal problems at that time.
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