2009-535, State of New Hampshire v. Joseph A. Munroe

After a jury trial in Superior Court (Brown

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amended one of the indictments. We affirm in part and vacate in part. dismiss; and (4) issuing jury instructions that constructively and erroneously (2) permitting hearsay testimony from a pediatrician; (3) denying his motion to Lisa L. Wolford the trial court erred by: (1) finding the child complainant competent to testify; RSA 645:1 (Supp. 2010); RSA 639:3 (2007). On appeal, the defendant argues endangerment. See RSA 632-A:2 (Supp. 2010); RSA 632-A:3 (Supp. 2010); one count of felony indecent exposure, and one count of misdemeanor child felonious sexual assault (AFSA), one count of felonious sexual assault (FSA), defendant, Joseph A. Munroe, was convicted of six counts of aggravated

and orally, for the defendant.

assistant attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as family. p. 2 happened “someone else . . . who is mean” would take her away from her these incidents the defendant told V.M. that if she told anyone what had pushed her head down when she tried to pull her head away. After both of against her vagina. The defendant then placed his penis in her mouth and his finger again. The defendant also lay on top of V.M., rubbing his penis licked his finger before moving it “up and down” in her vagina, and then licked The defendant pulled down V.M.’s purple pajama bottoms and her pull-up, bedroom and the defendant and V.M. were on the couch in the living room. and the defendant was watching the children. V.M.’s siblings were in the Several weeks after this incident, E.F. and C.F. were out of the house

head down to view it. Although V.M. tried to stop watching the video, the defendant kept pushing her The video showed the defendant and two women engaging in sexual activity. Station Personal gaming system (PSP) while they sat together on the couch. At some point, the defendant also showed V.M. a video on his Play

showing her bottom. hand. He also showed V.M. a picture on his cellular telephone of a girl defendant went into the bathroom and came out “wiggling” his penis in his knelt by her feet and performed cunnilingus on her. At some point, the “up and down” while touching her bottom with his hands. The defendant then the couch, and touched his penis to her vagina. The defendant moved his body bottoms and her pull-up, as well as his pants, got on top of her as she lay on she pulled them back up. The defendant then pulled down her pajama nighttime wetting. The defendant first pulled down V.M.’s pajama bottoms and defendant. V.M. was wearing pink pajamas and a “pull-up” to protect against in the bedroom, and V.M. was lying on the couch watching television with the defendant. C.F. was working, D.M., A.M., and K.M. were playing video games 2 On an evening in April 2008, E.F. left the children in the care of the

using the bedroom. living room because a family friend, C.F., had moved into their home and was together, but at the time of the events at issue they too were sleeping in the couch on the floor. V.M. and A.M. generally slept in the one usable bedroom room, K.M. slept in a crib next to the couch, and D.M. slept adjacent to the for sleeping. The defendant and E.F. slept on the futon couch in the living heat, only one of the three bedrooms in the trailer was used by family members crowded with belongings and the outermost bedrooms did not have adequate

daughter V.M., age seven years, the victim herein. Because the home was marriage to L.M.: son D.M., age nine years; daughter A.M., age three years; and their one-year-old daughter, K.M., and E.F.’s three children from her previous defendant was living in a trailer home in Milton with his pregnant wife, E.F., The jury could have found the following facts. In the spring of 2008, the examination of V.M. This appeal followed. p. 3 as to what V.M. and E.F. had stated to her during the course of her testified against the defendant. Further, Dr. Gladstone was permitted to testify and indecent exposure. At trial, V.M. was found to be a competent witness and The defendant was indicted on counts of AFSA, FSA, child endangerment

physical trauma to a child. occurred because oral and digital vaginal penetration would not usually cause of sexual trauma, she testified that this did not mean that the assaults had not conduct laboratory tests. Although Dr. Gladstone found no physical evidence a culpascope, to examine her genital and anal areas, and drew blood to bottom like a regular checkup.” Dr. Gladstone used a specialized instrument, looking for during her examination of V.M., and finally examined V.M. “top to separate interviews with both E.F. and V.M. to determine what she might be prior to any discussion of the sexual assault allegations. She then conducted something or had questions. Dr. Gladstone took a full medical history of V.M. and that she looked at children’s bodies when they were worried about V.M. and E.F. that she was a medical doctor who was there to examine V.M., examined V.M. in her office at Exeter Pediatrics. Dr. Gladstone explained to On May 22, 2008, eleven days after V.M.’s hospital visit, Dr. Gladstone

as well as a PSP containing pornographic videos. screen saver from his cellular telephone, and seized two sets of V.M.’s pajamas, with V.M. Following these interviews, police photographed the defendant’s sexual assault. Within a few days, police conducted two forensic interviews Hospital personnel contacted the local police to report an alleged juvenile specialty in child sexual assault, who is employed at Exeter Pediatrics. assistant and then referred to Dr. Gwendolyn Gladstone, a pediatrician with a the Frisbie Memorial Hospital where she was examined by a physician’s her what he had heard from D.M. Upon L.M.’s suggestion, they took V.M. to As L.M. was leaving the trailer park, he saw E.F. He stopped and told 3

and “a little nervous” during their conversation. defendant alone. He described the defendant as intoxicated, “a little upset,” drove the children back to the defendant’s trailer, where he spoke with the and he told his father what he had heard that Sunday. That afternoon, L.M. friend had informed D.M. about the incidents between the defendant and V.M., weekend in Gonic with their father, L.M., and his fiancée. Earlier, a school Approximately two days later, V.M., A.M., and D.M. left to spend the

what she told H. V.M. to “stop lying.” V.M. responded that she had just been “kidding” about the defendant confronted V.M. The defendant was upset and angry, and told information was related to E.F. by neighborhood parents. Together E.F. and a school friend, H., that the defendant had “touched her in bad places.” This Although worried that she might be taken away from her home, V.M. told true as you did my tie question? p. 4 ask you and that this man, Mr. White, is going to ask you just as Q: Okay. Now, can you answer all of the questions that I’m going to

A: True.

lie? Q: Yeah. If I told you my tie was yellow, would that be true or a

A: Because it’s yellow.

Q: How come?

A: A lie.

my tie was red, would that be true or a lie? Q: Not really. Well, let me see if I can help you. If I told you that

A: Not really.

tell the truth,” N.H. R. Ev State’s counsel and V.M. on direct examination: capacity to observe, remember and narrate as well as understand the duty to competency. Specifically, the defendant cites the following exchange between presumption may be overcome by findings that the witness “lacks sufficient appreciate the importance of truthfulness, thereby establishing her lack of inability to understand the difference between truth and fantasy, and to The defendant argues that V.M.’s trial testimony demonstrates her

Witnesses are presumed competent to testify. Although this

entitled to great deference. Id. at 50. to V.M.’s competency after the trial court made its ruling following voir directly observe the witness as she testifies, its competency determination is this argument for appeal because defense counsel did not renew his objection support it. See Mills, 136 N.H. at 49-50. Because the trial court is able to to be a competent witness. The State contends the defendant failed to preserve court’s competency determination where the record contains evidence to The defendant first argues that the trial court erred when it found V.M. absent an unsustainable exercise of discretion, we will not overturn the trial

properly preserved, we find no error in the trial court’s ruling. examination of V.M. Assuming without deciding that this argument was

I. Competency of V.M. answer the questions from what you know? p. 5 Q: Okay. So you know that in this room you have to say and

A: Yes.

from your own knowledge? would - - what goes on if you don’t tell actually what you know Q: Okay. Do you know that - - do you know the difference or what

A: No.

something somebody else told you as fact? Q: And do you know that you’re not supposed to be repeating

. . . .

A: Yes.

question with actual facts? you have to tell them what actually - - or you have to answer the Q: Okay. Do you know that when somebody asks you a question

A: No.

and relaying real facts? Q: Do you - - do you know the difference between telling a story

. . . .

A: Yes.

Q: Honey, you’re going to have to speak - -

A: (No verbal response.)

jury was excused and defense counsel was permitted to conduct voir After this exchange, defense counsel objected to V.M.’s competency. The

know between right and wrong? Q: You were asked if you know the difference between - - do you

A: Yes.

counsel and V.M.: examination of V.M. The following exchange took place between defense

p. 6 admissibility of evidence, and we will not disturb its decision absent an

II. Testimony of Dr. Gladstone

statements failed to satisfy the Roberts court to show the truth of the matter asserted in the statement.” State v. Soldi of medical treatment and diagnosis. The defendant further argues that the “Hearsay is generally defined as an extrajudicial statement offered in part of the State’s investigative effort and not an examination for the purposes Hampshire Rule of Evidence 803(4) because Dr. Gladstone’s examination was a

Diagnosis or Treatment,” applies to: We accord the trial court considerable deference in determining the 801(c), 802. One such exception, “Statements for Purposes of Medical inadmissible, subject to certain well-delineated exceptions. Id.; see N.H. R. Ev. 145 N.H. 571, 575 (2000) (quotation omitted). Hearsay evidence is generally

to the prejudice of his case. State v. Francoeur Counsel for the State then completed the voir, 146 N.H. 83, 86 (2001). the hearsay statements were not subject to the exception under New must show that the trial court’s ruling was clearly untenable or unreasonable of distinguishing between the truth and a lie. As noted above, V.M.’s voir stated to her during V.M.’s medical examination. The defendant contends that (2007). To demonstrate an unsustainable exercise of discretion, the defendant a lack of competency, her later answers indicated that she was, in fact, capable hearsay when it permitted Dr. Gladstone to testify as to what V.M. and E.F. difference between truth and a lie, standing alone, may have initially indicated, 155 N.H. 175, 179 The defendant next argues that the trial court erroneously admitted While V.M.’s answer to the State’s initial question of whether she knew the importance of truthfulness and the distinction between truth and fantasy. characterization of the witness as lacking the ability to comprehend the In light of this testimony, we are not persuaded by the defendant’s Rule 803(4). See State v. Roberts, 136 N.H. 731, 740 (1993). exercise its discretion in finding V.M. competent to testify. test, necessary for admissibility under Accordingly, we conclude that the trial court did not unsustainably

A: Yes.

testimony was accurately responsive to specific questions about truthfulness.

Q: And that it’s wrong not to answer from what you know[?]

and her grade level in school. V.M. correctly answered questions as to where objects in the room were located

A: Yes. to apply. Soldi p. 7 interpreted Rule 803(4) as requiring a three-part test for the hearsay exception The controlling issue, however, is the intent of the declarant. We have

diagnosis or treatment of V.M. perspective, at least one purpose of the examination was for the medical circumstances surrounding the statements support their trustworthiness. Id. Thus, the evidence supports the conclusion that, from Dr. Gladstone’s treatment.” Id. at 741 (quotation omitted). Third, the court must find that the N.H. R. Ev no direction by law enforcement officials concerning the collection of evidence. or their cause or source to an extent reasonably pertinent to diagnosis or examination conducted for the care and benefit of V.M., and that she was given “the statements must describe medical history, or symptoms, pain, sensations, hospital. Dr. Gladstone further testified that the examination was a medical obtain a medical diagnosis or treatment.” Roberts, 136 N.H. at 740. Second, examinations than the physician’s assistant who examined V.M. at the court must find . . . that the declarant intended to make the statements to examinations of child victims, and that she was more qualified to conduct such, 145 N.H. at 576 (referring to the “Roberts test”). First, “[a]

mutually exclusive. See hearsay exception did not apply. These two purposes, however, are not circumstances indicating their trustworthiness. rather, was in furtherance of a criminal investigation, and, therefore, the affirmatively finds that the proffered statements were made under Gladstone’s medical examination of V.M. was not for a medical purpose, but, when the statements are made, if the court, in its discretion, equipped with a culpascope, which she uses in conducting thorough The defendant’s sole objection to this evidence at trial was that Dr. or treatment, regardless of to whom the statements are made, or Gladstone testified that to her knowledge Frisbie Memorial Hospital was not external source thereof insofar as reasonably pertinent to diagnosis that the purpose of the visit was for a sexual assault examination. Dr. or sensations, or the inception or general character of the cause or hospital personnel contained no reference to evidence collecting and indicated and describing medical history, or past or present symptoms, pain, treatment and evidence gathering). Here, the referral to Dr. Gladstone from examination was a two-phase evaluation intended to encompass both medical admissibility of statements under Rule 803(4) where the sexual assault medical

Soldi, 145 N.H. at 575-76. are inherently reliable because there is normally no incentive to fabricate. motivation to obtain an accurate diagnosis or proper treatment and, thus, they [s]tatements made for purposes of medical diagnosis or treatment with the purpose of obtaining medical attention are usually made with the

. 803(4). The rationale for this exception is that statements made understood that any statements she made to Dr. Gladstone were for the

p. 8 Under all the circumstances, it may be reasonably inferred that V.M. was seven years old at the time and had nearly completed the first grade. young child would recognize as indicative of a doctor’s visit. Moreover, V.M. examination was conducted in a medical office, with all the equipment that a examination of V.M., including drawing her blood for laboratory tests. The discussed. Dr. Gladstone then conducted a thorough, “head-to-toe” a complete medical history of V.M. before the allegations of sexual assault were questions or concerns that she had with her body. In fact, Dr. Gladstone took 8 was a medical doctor who was there to examine V.M. and to help her with Dr. Gladstone testified that she explained to both V.M. and E.F. that she

introduced at trial.” Id treatment motive to allow her out-of-court statements to a physician to be establishing the proposition, that a young child possessed a sufficient circumstantial evidence, we “will not assume, absent a record affirmatively We are mindful that while a declarant’s intent may be established with Gladstone’s examination, our analysis focuses on the first prong of the Roberts

was examining her for a medical purpose. the subject statements to Dr. Gladstone with the understanding that the doctor circumstances of this case are sufficient to permit an inference that V.M. made

relies upon Wade In arguing that no such showing was made in this case, the defendant Because the defendant’s sole objection was to the purpose of Dr. the child’s intentions in making the statements. Id. at 756. speaking with and examining the child, nothing in the record shed any light on although the doctors testified about their states of mind and intentions in statements the child made to a gynecologist. Id. We reversed because, child . . . .” Id. at 753 (quotation omitted). The trial court also admitted similar his purposes were, and that he had concerns with respect to the safety of the within 803(4), as this is taking a medical history. The doctor has testified what court admitted the child’s statements under Rule 803(4), stating: “[T]his falls she had been sexually assaulted. Wade, 136 N.H. at 752. There, the trial

, in which a five-year-old child revealed to a pediatrician that

[her] condition.” State v. Lowe, 140 N.H. 271, 273 (1995). understanding that they would further the diagnosis and possible treatment of the requisite intent “by showing that the child made the statements 136 N.H. 750, 755 (1993). Thus, it is necessary to establish that the child had the purpose for which information is being obtained from her.” State v. Wade, difficult for a court to discover whether a young child completely understands 143 N.H. 294, 303-04 (1999) (quotations omitted). This is because “[i]t is determining the declarant’s intent” when the declarant is a child. State v. Graf, test. With respect to the intent requirement, “we require extra care in

at 743. challenge in the trial court. However, we agree with the State that sufficient p. 9 We assume without deciding that the defendant preserved his sufficiency

the evidence was sufficient. defendant failed to preserve this sufficiency challenge, but that, in any event, the State’s case, based upon insufficient evidence. The State contends that the motion to dismiss the AFSA charge alleging digital penetration at the close of The defendant further argues that the trial court erred in denying his

diagnosis and treatment under the Roberts trustworthiness, and that other statements were not reasonably pertinent to statements admitted through Dr. Gladstone’s testimony lacked the requisite

patient-declarants.” United States v. Yazzie note that “[t]he plain language of the Rule does not limit its application to warrant judicial review” (quotation omitted)). in the course of treating her daughter were inadmissible under Rule 803(4), we rulings by the trial court, without developed legal argument, [are] insufficient to Insofar as the defendant argues that E.F.’s statements to Dr. Gladstone State v. Blackmer, 149 N.H. 47, 49 (2003) (“complaints regarding adverse failed to adequately develop this issue in his brief, we decline to review it. See appropriate assurances” of trustworthiness). However, because the defendant [admitted] if the relationship [to the patient] or the circumstances give and that “statements by others, most often close family members, may be (noting that the rule does not require the statements be made by the patient, As to the defendant’s arguments on appeal that some of V.M.’s see also 2 G. Dix et al., McCormick on Evidence § 277, at 481-82 (6th ed. 2006)

Builders v. Brooks, 154 N.H. 252, 258 (2006) (quotation omitted). preserved at trial and we therefore decline to address them. LaMontagne

medical treatment, see can indicate a declarant’s statements were made for the purpose of seeking made for a treatment purpose. While we have stated that temporal proximity it permitted Dr. Gladstone’s testimony pursuant to Rule 803(4). assaults and the examination precludes a finding that the statements were conclude that the trial court did not unsustainably exercise its discretion when The defendant argues that the lack of temporal proximity between the the testimony, and the reasonable inferences that may be drawn therefrom, we circumstances indicating their trustworthiness.” (Emphasis added.) Given all affirmatively finds that the proffered statements were made under made, or when the statements are made, if the court, in its discretion, such statements are admissible “regardless of to whom the statements are not dispositive of the issue of intent. Indeed, Rule 803(4) expressly states that

purpose of obtaining medical help. p. 10 IV. FSA Instruction

State v. Young

inferences, provided they can be reasonably drawn therefrom. defendant’s finger penetrated V.M.’s vagina. conclude there was sufficient evidence for a rational jury to conclude that the Viewing all the evidence in the light most favorable to the State, we

proved and also inferences from facts found as a result of other

the jury instruction was erroneous and that the conviction and sentence on the between the FSA charge and one of the AFSA charges. The State concedes that “licked his finger and put it into [V.M.’s] private and moved it up and down.” word “genitalia” for “buttocks,” thereby effectively eliminating the distinction victim’s body.” At trial, Dr. Gladstone testified that V.M. told her the defendant felonious sexual assault charge, the trial court erroneously substituted the or any object manipulated by the actor into genital or anal openings of the The defendant finally argues that in its instructions to the jury on the intrusion, however slight, of any part of the actor’s body, including emissions, age. RSA 632-A:1, V(a)(5) (Supp. 2010) defines sexual penetration as “[a]ny penetration with another person when the victim is less than thirteen years of 10 crime of aggravated felonious sexual assault if such person engages in sexual Pursuant to RSA 632-A:2, I, (l) (Supp. 2010), a person is guilty of the Further, the trier may draw reasonable inferences from facts sufficient to support a finding of guilty beyond a reasonable doubt.

Gladstone’s testimony was properly admitted under Rule 803(4). insufficient evidence to prove digital penetration. As noted above, however, Dr. evidence, not in isolation. Circumstantial evidence may be inadmissible hearsay, and that absent Dr. Gladstone’s testimony there was evidence, we examine each evidentiary item in the context of all the Gladstone, which were admitted through Dr. Gladstone’s testimony, were have found guilt beyond a reasonable doubt. In reviewing the The basis for the defendant’s argument is that V.M.’s statements to Dr. viewing the evidence in the light most favorable to the State, could defendant bears the burden of proving that no rational trier of fact, To prevail in a challenge to the sufficiency of the evidence, the

, 159 N.H. 332, 338 (2009) (quotation omitted).

Our standard for review in this area is well established:

doubt that the defendant committed AFSA by digital penetration. evidence was presented for a rational jury to conclude beyond a reasonable p. 11 11

DALIANIS, C.J., and DUGGAN, HICKS and LYNN, JJ., concurred.

Affirmed in part and vacated

in part.

and sentence on that charge. FSA charge must be vacated. Accordingly we vacate the defendant’s conviction