Wilkins v. Ferguson (Nos. 05-FM-1555 and 05-FM-1556, Decided July 19, 2007) Court: The District of Columbia Court of Appeals  this is in regards to a father who had visitation with child after a court found him guilty of abusing the child and the mother.

In State vs Pelletier is important evidence by Dr Lorriane Hazrd that a child often shows no physical signs of sexual trauma shortly after it happens.  Lack of physical evidence is not indicative that sexual abusehas not happens.  Even with penetration, the hymen cam heal in a young child and show no trauma. http://www.courts.state.nh.us/supreme THE SUPREME COURT OF NEW HAMPSHIRE   ___________________________   Hillsborough-southern judicial district No. 2001-665 THE STATE OF NEW HAMPSHIRE v. STEVEN PELLETIER Argued: November 6, 2002 Opinion Issued: March 14, 2003   Philip T. McLaughlin, attorney general (Laura E.B. Lombardi, attorney, on the brief and orally), for the State. Richard E. Samdperil, assistant appellate defender, of Concord, on the brief and orally, for the defendant. BRODERICK, J. The defendant, Steven Pelletier, appeals his convictions, following a jury trial in the Superior Court (Hampsey, J.), on one count of aggravated felonious sexual assault, see RSA 632-A:2 (1996) (amended 1997, 1998, 1999), and four counts of felonious sexual assault, see RSA 632-A:3 (1996) (amended 1997). We affirm. The record supports the following facts. The defendant and his former wife, Linda Pelletier, met in 1989 and were married three months later. The victim, Linda’s daughter from a previous marriage, lived with them as did their son. Between 1989 and 2000, the defendant sexually assaulted the victim on numerous occasions. In 2000, a high school classmate of the victim told her that he had been physically abused by a family member and that his mother had been sexually assaulted. Subsequently, over the course of a few days, the victim wrote two notes to the classmate. The first indicated that she was going to share a secret with him about her life; the second revealed that the defendant had sexually assaulted her. The victim also told her classmate that the defendant, after finding a copy of her first note, struck her, causing bruises to her arm and leg. The classmate subsequently convinced the victim to talk to a school guidance counselor about the abuse she had suffered. She then disclosed the sexual abuse to two guidance counselors, two principals, a police officer and a representative from the division for children, youth and families (DCYF). The defendant was arrested and indicted on thirty-two counts of sexual assault. By the time of the defendant’s trial in 2001, he was no longer married to Linda Pelletier. Prior to trial, the State filed a motion in limine to introduce testimony from Linda Pelletier that "the defendant would often have [her] massage his back as a prelude to sex" and that he "often asked [her] for oral sex and liked the standing position." The State contended that "such evidence [was] not prior bad act evidence but corroborative of the defendant’s sexual practices and relevant and admissible pursuant to [New Hampshire Rules of Evidence] 401, 402 and 403." The trial court granted the State’s motion despite the defendant’s objection that such evidence would violate the "Husband and Wife Privilege" under New Hampshire Rule of Evidence 504 (Rule 504). At trial, Linda Pelletier testified about the referenced sexual acts with the defendant while the victim testified that she had given the defendant back massages, at his request, prior to many of the charged assaults, and that three of the assaults involved oral sex with the defendant standing. The State also presented testimony from Dr. Lorraine L. Hazard, a board-certified physician in family medicine, who examined the victim following her disclosures of the sexual assaults. At the close of the evidence, the trial court dismissed twenty-seven indictments because they failed to track the language of the statute with regard to the victim’s age at the time of the offense. The jury returned guilty verdicts on the remaining five indictments. This appeal followed. On appeal, the defendant contends that the trial court erred by (1) allowing his former wife to testify about his sexual habits, (2) allowing Dr. Hazard to testify about the ability of the hymen to heal itself, and (3) allowing the victim’s classmate to testify about the victim’s disclosures of the various sexual assaults and the origin of the bruises on her arm and leg. I The defendant argues that intimate sexual acts between a husband and wife are communications intended to be held in confidence and, accordingly, are privileged under Rule 504. Consequently, he contends that it was error to admit his former wife’s testimony regarding his sexual practices absent a waiver of the marital privilege. While the State concedes that the defendant preserved his objection to the admission of Linda Pelletier’s testimony on the grounds of marital privilege, it argues that he never asserted that the sexual acts in question "were communicative." Consequently, the State, citing State v. Wilkinson, 136 N.H. 170, 177-78 (1992), contends that the defendant is precluded from arguing on appeal that the marital sexual acts were privileged communications. We disagree. In its order granting the State’s motion in limine concerning Linda Pelletier’s testimony, the trial court cited to Wilkinson and observed: In determining whether one spouse may testify against another, a court must find a violation of marital confidence before it can exclude a spouse’s testimony. To find a violation, the communication at issue must be something confided by one to the other, simply and specially as husband or wife, and not what would be communicated to any other person under the same circumstances. While not specifically limited to verbal or written communications, the privilege is aimed at protecting communications or confidences that pass between spouses. (Emphasis added; brackets, quotations and citations omitted.) It is clear that the trial court considered the intimate sexual acts at issue while mindful of their possible communicative nature. Accordingly, we find that the issue has been properly preserved for our review. The determination of whether the marital privilege under Rule 504 applies is intensely factual and rests within the sound discretion of the trial court. See Cook v. Bennett, 51 N.H. 85, 92 (1871); Key Bank of Maine v. Latshaw, 137 N.H. 665, 673 (1993); cf. State v. Gordon, 141 N.H. 703, 705 (1997) (attorney-client privilege). Rule 504 states: Husband and wife are competent witnesses for or against each other in all cases, civil and criminal, except that unless otherwise specifically provided, neither shall be allowed to testify against the other as to any statement, conversation, letter or other communication made to the other or to another person, nor shall either be allowed in any case to testify as to any matter which in the opinion of the Court would lead to a violation of marital confidence. Consequently, the trial court must find a violation of the marital confidence before it can exclude a spouse’s testimony. Key Bank, 137 N.H. at 672. To find such a violation, the communication at issue must be something confided by one spouse to the other, as husband and wife, and not what would be communicated to any other person under the same circumstances. See id. At issue here is whether the private, lawful, consensual sexual practices between the defendant and his wife were privileged communications, such that their revelation would violate the marital confidence. It is well recognized that "communications are not limited to written or spoken words"; acts may also qualify. Hazelwood v. State, 609 N.E.2d 10, 15 (Ind. Ct. App. 1993) (quotation omitted). [A]n act is a privileged communication where the act is as much a communication as would be the words describing the act. . . . [A]ny conversation or act performed by the husband which is attributable to the husband-wife relation, i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation, is privileged. White v. State, 440 S.E.2d 68, 70 (Ga. Ct. App. 1994) (citation, quotations, brackets and ellipsis omitted); see Griffith v. Griffith, 44 N.E. 820, 821-22 (Ill. 1896) (deposition of former wife regarding former husband’s sexual acts not admissible under public policy of marital privilege). , 440 S.E.2d 68, 70 (Ga. Ct. App. 1994) (citation, quotations, brackets and ellipsis omitted); see Griffith v. Griffith, 44 N.E. 820, 821-22 (Ill. 1896) (deposition of former wife regarding former husband’s sexual acts not admissible under public policy of marital privilege). In this case, Linda Pelletier’s knowledge of the defendant’s sexual practices "was acquired by virtue of her voluntary participation [in them], resulting from a reliance by the participants upon the confidential marital relationship." White, 440 S.E.2d at 70. The sexual practices identified by the defendant’s former wife "necessarily depended upon [her] presence and participation." See id. That the defendant may have acted in the same manner with a third person does not waive the marital privilege. United States v. Bahe, 128 F.3d 1440, 1443 (10th Cir. 1997), cert. denied, 523 U.S. 1033 (1998). We ascribe to the compelling logic and public policy so well articulated in Bahe: We believe the accepted norm in this country is that intimate sex[ual] acts between [husband and wife] are communication and an important expression of love. . . . If we limit the marital communications privilege as narrowly as the [State] seeks in the instant case, a spouse could testify to every aspect of the marital sexual relationship. There is something inherently offensive in that idea. Id. at 1444-45. . at 1444-45. There are few, if any, relationships more respected and important than marriage and precious little more intimate, confidential and expressive than the private, consensual sexual conduct of a married couple. To parse sexual conduct between a husband and wife to discern where marital communications begin and end would be an intrusive, unseemly, and ultimately futile exercise. Accordingly, we decline to do so. We therefore hold that private, lawful, consensual sexual activity between a husband and wife constitutes privileged communications under Rule 504. We are mindful, however, as the Tenth Circuit was in Bahe, that the marital privilege may, for reasons of public policy, be appropriately limited. As the Bahe court observed: Child abuse is a horrendous crime. It generally occurs in the home, and is often covered up by the innocence of small children and by threats against disclosure. It would be unconscionable to permit a privilege grounded on promoting communications of trust and love between [husband and wife] to prevent a properly outraged spouse with knowledge from testifying against the perpetrator of such a crime. Id. at 1446 (citation omitted). We agree and will not cloak the sexual activity between a husband and wife with the marital privilege when, as here, disclosure would provide relevant information concerning the alleged sexual abuse of a child of one of the spouses who is living with them. Cf. RSA 161-F:48 (exception to marital privilege in proceedings involving abuse and neglect of the elderly); RSA 546:22 & RSA 546-A:9 (exception to marital privilege in support proceedings). In light of our recognition of this exception, the trial court did not err in finding that Linda Pelletier’s testimony would not violate the marital privilege. . at 1446 (citation omitted). We agree and will not cloak the sexual activity between a husband and wife with the marital privilege when, as here, disclosure would provide relevant information concerning the alleged sexual abuse of a child of one of the spouses who is living with them. Cf. RSA 161-F:48 (exception to marital privilege in proceedings involving abuse and neglect of the elderly); RSA 546:22 & RSA 546-A:9 (exception to marital privilege in support proceedings). In light of our recognition of this exception, the trial court did not err in finding that Linda Pelletier’s testimony would not violate the marital privilege. II The defendant next contends that the trial court erred by allowing Dr. Hazard to testify about the ability of the hymen to heal itself because her opinion (1) had not been properly disclosed by the State, (2) concerned a matter outside her acknowledged area of expertise, and (3) did not rise to a threshold level of reliability. At trial, the State called Dr. Hazard to detail her examination of the victim following her disclosures. Dr. Hazard testified that her examination revealed no evidence of trauma to the victim’s genitalia and that her hymen appeared "normal." Dr. Hazard also testified that the hymen has the ability to heal itself like other tissues. The defendant contends that this testimony was particularly prejudicial because it provided an explanation for how the genitalia of a sixteen-year-old female, who had been sexually assaulted in the manner alleged by the victim, could show no evidence of trauma. Generally, we accord considerable deference to a trial court’s evidentiary rulings and will only intervene when they demonstrate an unsustainable exercise of discretion. See State v. Dahood, 148 N.H. ___, ___, 814 A.2d 159, 161 (2002). Unless a party establishes that such a ruling was clearly untenable or unreasonable to the prejudice of his case, it will not be disturbed. See State v. Jordan, 148 N.H. 115, 117 (2002). The defendant first argues that Dr. Hazard’s specific opinion concerning the hymen’s ability to heal itself had not been disclosed by the State, as required by Superior Court Rule 98(A)(2)(i). This rule states, in pertinent part: [T]he state shall provide the defendant with . . . statements of witnesses; results or reports of physical or mental examinations, scientific tests or experiments, or any other reports or statements of experts, as well as a summary of each expert’s qualifications. Superior Court Rule 98(H) further provides that parties are under a "continuing obligation" to supplement discovery responses as additional materials are generated or if a party learns that previously provided discovery is "incomplete, inaccurate or misleading." The defendant concedes that he did have notice that Dr. Hazard had examined the victim and would testify regarding her findings, that the State had disclosed Dr. Hazard’s examination report, that she had been made available for a deposition, and that he had "pre-trial notice that [Dr.] Hazard would testify about female anatomy and that [the victim] had a normal hymen." The record also shows that the State provided the defendant with Dr. Hazard’s curriculum vitae to summarize her qualifications. During her deposition, Dr. Hazard testified that, in examining a female child some nine or ten years after the child was sexually assaulted in the manner described by the victim, she would "[m]ore than likely" not find any evidence of trauma, as she expected it "would have healed." She further testified that such healing would include "tears" and that the victim’s hymen was "intact" with no transections or cuts, disruptions, clefts or irregularities. Consequently, we find no merit in the defendant’s claim that "he could not have anticipated that [Dr.] Hazard would offer a medical opinion about the hymen’s ability to heal itself." We find no error in the trial court’s failure to find a violation of Superior Court Rule 98. The defendant next argues that Dr. Hazard’s opinion concerning the hymen’s ability to heal itself involved a matter outside her acknowledged area of expertise. Specifically, he asserts that the State did not show "what knowledge, training or other expertise" Dr. Hazard possessed that "qualified her to opine that the hymen can heal itself" without making "any reference to texts, studies or other authorities on this subject." We disagree. We will reverse a trial court’s determination of expert qualification only when it results from an unsustainable exercise of discretion. Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. ___, ___, 813 A.2d 409, 413 (2002). At trial, Dr. Hazard testified that she had been a board-certified physician in family medicine since 1987, that she was a member of the American Professional Society for Abused Children, that she belonged to a network of New Hampshire physicians who provide child abuse evaluations, and that she was specifically trained at the Child Protection Center (CPC) in Cedar Rapids, Iowa, to detect child sexual abuse. Further, she testified that she had worked at the CPC in Sioux City, Iowa, for three years, where she examined several hundred children to investigate alleged sexual abuse, and had received ongoing education about child sexual abuse. While the trial court may rule that a certain subject of inquiry requires that a member of a given profession, as a doctor, . . . be called, usually a specialist in a particular branch within a profession will not be required. Although a medical degree does not automatically qualify a witness to give an opinion on every conceivable medical question, neither does the lack of specialization in a particular medical field automatically disqualify a doctor from testifying as an expert in that field. An individual witness’s qualifications must be determined on a case-by-case basis, not by application of a per se rule of exclusion or inclusion. The trial judge cannot make a determination as to admissibility without investigating the competence the particular proffered expert would bring to bear on the issues. Only then will the judge be able to decide whether the test of [New Hampshire] Rule [of Evidence] 702—assistance to the trier of fact—has been satisfied. Mankoski v. Briley, 137 N.H. 308, 312-13 (1993) (quotations, brackets, ellipses and citations omitted). , 137 N.H. 308, 312-13 (1993) (quotations, brackets, ellipses and citations omitted). In this case, Dr. Hazard’s extensive background as a physician providing medical evaluations to detect and investigate child sexual abuse was sufficient to qualify her to offer an opinion on the hymen’s ability to heal itself, despite her lack of specialization in the field of gynecology. See Baker Valley, 148 N.H. at ___, 813 A.2d at 414. The defendant was afforded the opportunity to cross-examine Dr. Hazard regarding the validity of her opinion and the relevance of her experience. We find no unsustainable exercise of discretion in the trial court’s decision to allow Dr. Hazard’s challenged testimony. Finally, the defendant argues that Dr. Hazard’s opinion testimony "did not rise to the threshold level of reliability to be admissible" under New Hampshire Rule of Evidence 702 (Rule 702) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial judge found that Dr. Hazard was qualified to render a reliable opinion "by virtue of her credentials" and that the nature of her opinion testimony did not require a Daubert hearing. We agree. We review a trial court’s determination of expert reliability under Rule 702 for an unsustainable exercise of discretion. Baker Valley, 148 N.H. at ___, 813 A.2d at 413. Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. We have stated that expert testimony must rise to a threshold level of reliability to be admissible. Id. at ___, 813 A.2d at 414. In Baker Valley, we applied the Daubert standards concerning the reliability of expert testimony to Rule 702 and observed: The proper focus for the trial court [under Daubert] is the reliability of the expert’s methodology or technique. The trial court functions only as a gatekeeper, ensuring a methodology’s reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert’s testimony. Thus, the trial court must decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case. Id. at ___, 813 A.2d at 416 (citations and quotation omitted). We also stated, however: . at ___, 813 A.2d at 416 (citations and quotation omitted). We also stated, however: We emphasize that our adoption of Daubert does not require a trial court to conduct a pre-trial hearing in every case involving disputed expert testimony. The decision to hold such an evidentiary hearing rests within the trial court’s sound discretion. In cases where the testimony’s reliability is properly taken for granted, or where the information before the court is sufficient to reach a reliability determination, the trial court need not and should not conduct an evidentiary hearing. Pre-trial hearings, thus, should be limited to the less usual or more complex cases where cause for questioning the expert’s reliability arises. Id. at ___, 813 A.2d at 417 (citations and quotations omitted). . at ___, 813 A.2d at 417 (citations and quotations omitted). Based upon Dr. Hazard’s extensive background as a physician providing child abuse evaluations for detecting and investigating child sexual abuse in hundreds of cases, we find no unsustainable exercise of discretion in either the trial court’s determination of reliability or its decision not to conduct a Daubert hearing. III The defendant next argues that the trial court erred by allowing the victim’s classmate to testify about the victim’s disclosures of the alleged sexual assaults and the cause of the bruises to her arm and leg. He argues that the testimony about the content of the victim’s notes was hearsay and was offered "to prove that [the defendant] was the person who physically and sexually assaulted [her]." He further asserts that the testimony about the victim’s statements as to the cause of her bruises was hearsay "and [was] not solicited for any legitimate purpose." "‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial . . . , offered . . . to prove the truth of the matter asserted." N.H. R. Ev. 801(c). Such a statement is not inadmissible, however, when it is offered for purposes other than its truth. See State v. W.J.T. Enterprises, 136 N.H. 490, 493 (1992). That determination is an issue of fact for the trial court, see id., and we will not reverse its evidentiary ruling absent an unsustainable exercise of discretion, State v. Young, 144 N.H. 477, 482 (1999); see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining "unsustainable exercise of discretion" standard). It is clear from the record that the State offered the challenged testimony about the content of the victim’s notes to explain how she had disclosed the information to her classmate and why she felt comfortable doing so. It is also clear that the trial court overruled the defendant’s objections to the testimony specifically on that basis. As the testimony about the victim’s out-of-court statements was not admitted in evidence to prove that the defendant had physically and sexually assaulted her, it was not inadmissible hearsay. We note that the defendant made no request for a limiting instruction. See W.J.T. Enterprises, 136 N.H. at 494. The defendant also objected to the classmate’s testimony that the victim told him the defendant had struck her, causing the bruises on her arm and leg. The State countered that the testimony was offered as a "prior consistent statement" and the trial court admitted it as such. In his brief, the defendant contends that it was "unclear from the record why the trial judge admitted [the] out-of-court statements" as prior consistent statements. The State agrees that the trial court "did not clearly state the grounds on which it overruled the defendant’s hearsay objection." The defendant makes two alternative arguments as to why the trial judge erred in admitting the testimony. First, he concedes that a "prior consistent statement may be admissible for the non-substantive use of rehabilitating a witness’ credibility," but contends "it should be coupled with an unambiguous limiting instruction by the trial judge to explain to the jury the limited, rehabilitative purpose of the testimony." He argues that the trial court "did not meet its obligation of informing the jury of the hearsay’s limited, rehabilitative purpose." We agree that the trial court did not issue a limiting instruction, but the record is clear that the defendant neither asked for such an instruction, nor objected to the trial court’s failure to give one. As such, he cannot now complain of error. State v. Simonds, 135 N.H. 203, 207 (1991); see State v. Scovill, 144 N.H. 409, 413 (1999). Second, the defendant contends that "when a prior consistent statement is admitted to rebut a charge of recent fabrication as contemplated under Rule 801(d)(1)(B), it is admitted substantively" and the State is "required to make an affirmative showing, and the trial court must make findings, that the statement was made before a motive to fabricate came into being." He argues that the trial judge did not make the requisite findings for such admission. Although we agree that the trial court failed to make such findings, that failure neither precluded the admission of the testimony, nor does it require reversal. See Young, 144 N.H. at 482. We need not decide if the trial court intended to admit the testimony regarding the victim’s bruises substantively or not. The State contends that even if admission of the prior consistent statement was error, it was harmless. We agree. The State bears the burden of proving that an error is harmless, a burden satisfied by proof beyond a reasonable doubt that the erroneously admitted evidence did not affect the verdict. In deciding whether the State has met its burden, we consider the strength of the alternative evidence presented at trial. We also consider the character of the inadmissible evidence, including whether the evidence was cumulative or inconsequential in relation to the State's evidence. State v. Hodgdon, 143 N.H. 399, 401-02 (1999) (quotation omitted). The disputed testimony consisted of two statements that the victim had told her classmate that her stepfather had caused the bruises on her arm, and a single statement that her stepfather had kicked her, causing the bruise on her leg. The testimony was not "lengthy, comprehensive, or directly linked to a determination of the guilt or innocence of the defendant" on the charges of sexual assault. State v. Hennessey, 142 N.H. 149, 159 (1997) (quotations and brackets omitted). In addition, the testimony at issue was cumulative of the victim’s previous testimony concerning the cause of her bruising. See State v. Martin, 145 N.H. 313, 315 (2000). Further, the State did not refer to the classmate’s testimony concerning the victim’s bruises in closing argument. See Hennessey, 142 N.H. at 159. Accordingly, we are persuaded, beyond a reasonable doubt, that the admission of this testimony at trial did not affect the verdict. State v. Hodgdon, 143 N.H. 399, 401-02 (1999) (quotation omitted). The disputed testimony consisted of two statements that the victim had told her classmate that her stepfather had caused the bruises on her arm, and a single statement that her stepfather had kicked her, causing the bruise on her leg. The testimony was not "lengthy, comprehensive, or directly linked to a determination of the guilt or innocence of the defendant" on the charges of sexual assault. State v. Hennessey, 142 N.H. 149, 159 (1997) (quotations and brackets omitted). In addition, the testimony at issue was cumulative of the victim’s previous testimony concerning the cause of her bruising. See State v. Martin, 145 N.H. 313, 315 (2000). Further, the State did not refer to the classmate’s testimony concerning the victim’s bruises in closing argument. See Hennessey, 142 N.H. at 159. Accordingly, we are persuaded, beyond a reasonable doubt, that the admission of this testimony at trial did not affect the verdict. Affirmed. BROCK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred. http://www.courts.state.nh.us/supreme THE SUPREME COURT OF NEW HAMPSHIRE   ___________________________   Hillsborough-southern judicial district No. 2001-665 THE STATE OF NEW HAMPSHIRE v. STEVEN PELLETIER Argued: November 6, 2002 Opinion Issued: March 14, 2003   Philip T. McLaughlin, attorney general (Laura E.B. Lombardi, attorney, on the brief and orally), for the State. Richard E. Samdperil, assistant appellate defender, of Concord, on the brief and orally, for the defendant. BRODERICK, J. The defendant, Steven Pelletier, appeals his convictions, following a jury trial in the Superior Court (Hampsey, J.), on one count of aggravated felonious sexual assault, see RSA 632-A:2 (1996) (amended 1997, 1998, 1999), and four counts of felonious sexual assault, see RSA 632-A:3 (1996) (amended 1997). We affirm. The record supports the following facts. The defendant and his former wife, Linda Pelletier, met in 1989 and were married three months later. The victim, Linda’s daughter from a previous marriage, lived with them as did their son. Between 1989 and 2000, the defendant sexually assaulted the victim on numerous occasions. In 2000, a high school classmate of the victim told her that he had been physically abused by a family member and that his mother had been sexually assaulted. Subsequently, over the course of a few days, the victim wrote two notes to the classmate. The first indicated that she was going to share a secret with him about her life; the second revealed that the defendant had sexually assaulted her. The victim also told her classmate that the defendant, after finding a copy of her first note, struck her, causing bruises to her arm and leg. The classmate subsequently convinced the victim to talk to a school guidance counselor about the abuse she had suffered. She then disclosed the sexual abuse to two guidance counselors, two principals, a police officer and a representative from the division for children, youth and families (DCYF). The defendant was arrested and indicted on thirty-two counts of sexual assault. By the time of the defendant’s trial in 2001, he was no longer married to Linda Pelletier. Prior to trial, the State filed a motion in limine to introduce testimony from Linda Pelletier that "the defendant would often have [her] massage his back as a prelude to sex" and that he "often asked [her] for oral sex and liked the standing position." The State contended that "such evidence [was] not prior bad act evidence but corroborative of the defendant’s sexual practices and relevant and admissible pursuant to [New Hampshire Rules of Evidence] 401, 402 and 403." The trial court granted the State’s motion despite the defendant’s objection that such evidence would violate the "Husband and Wife Privilege" under New Hampshire Rule of Evidence 504 (Rule 504). At trial, Linda Pelletier testified about the referenced sexual acts with the defendant while the victim testified that she had given the defendant back massages, at his request, prior to many of the charged assaults, and that three of the assaults involved oral sex with the defendant standing. The State also presented testimony from Dr. Lorraine L. Hazard, a board-certified physician in family medicine, who examined the victim following her disclosures of the sexual assaults. At the close of the evidence, the trial court dismissed twenty-seven indictments because they failed to track the language of the statute with regard to the victim’s age at the time of the offense. The jury returned guilty verdicts on the remaining five indictments. This appeal followed. On appeal, the defendant contends that the trial court erred by (1) allowing his former wife to testify about his sexual habits, (2) allowing Dr. Hazard to testify about the ability of the hymen to heal itself, and (3) allowing the victim’s classmate to testify about the victim’s disclosures of the various sexual assaults and the origin of the bruises on her arm and leg. I The defendant argues that intimate sexual acts between a husband and wife are communications intended to be held in confidence and, accordingly, are privileged under Rule 504. Consequently, he contends that it was error to admit his former wife’s testimony regarding his sexual practices absent a waiver of the marital privilege. While the State concedes that the defendant preserved his objection to the admission of Linda Pelletier’s testimony on the grounds of marital privilege, it argues that he never asserted that the sexual acts in question "were communicative." Consequently, the State, citing State v. Wilkinson, 136 N.H. 170, 177-78 (1992), contends that the defendant is precluded from arguing on appeal that the marital sexual acts were privileged communications. We disagree. In its order granting the State’s motion in limine concerning Linda Pelletier’s testimony, the trial court cited to Wilkinson and observed: In determining whether one spouse may testify against another, a court must find a violation of marital confidence before it can exclude a spouse’s testimony. To find a violation, the communication at issue must be something confided by one to the other, simply and specially as husband or wife, and not what would be communicated to any other person under the same circumstances. While not specifically limited to verbal or written communications, the privilege is aimed at protecting communications or confidences that pass between spouses. (Emphasis added; brackets, quotations and citations omitted.) It is clear that the trial court considered the intimate sexual acts at issue while mindful of their possible communicative nature. Accordingly, we find that the issue has been properly preserved for our review. The determination of whether the marital privilege under Rule 504 applies is intensely factual and rests within the sound discretion of the trial court. See Cook v. Bennett, 51 N.H. 85, 92 (1871); Key Bank of Maine v. Latshaw, 137 N.H. 665, 673 (1993); cf. State v. Gordon, 141 N.H. 703, 705 (1997) (attorney-client privilege). Rule 504 states: Husband and wife are competent witnesses for or against each other in all cases, civil and criminal, except that unless otherwise specifically provided, neither shall be allowed to testify against the other as to any statement, conversation, letter or other communication made to the other or to another person, nor shall either be allowed in any case to testify as to any matter which in the opinion of the Court would lead to a violation of marital confidence. Consequently, the trial court must find a violation of the marital confidence before it can exclude a spouse’s testimony. Key Bank, 137 N.H. at 672. To find such a violation, the communication at issue must be something confided by one spouse to the other, as husband and wife, and not what would be communicated to any other person under the same circumstances. See id. At issue here is whether the private, lawful, consensual sexual practices between the defendant and his wife were privileged communications, such that their revelation would violate the marital confidence. It is well recognized that "communications are not limited to written or spoken words"; acts may also qualify. Hazelwood v. State, 609 N.E.2d 10, 15 (Ind. Ct. App. 1993) (quotation omitted). [A]n act is a privileged communication where the act is as much a communication as would be the words describing the act. . . . [A]ny conversation or act performed by the husband which is attributable to the husband-wife relation, i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation, is privileged. White v. State, 440 S.E.2d 68, 70 (Ga. Ct. App. 1994) (citation, quotations, brackets and ellipsis omitted); see Griffith v. Griffith, 44 N.E. 820, 821-22 (Ill. 1896) (deposition of former wife regarding former husband’s sexual acts not admissible under public policy of marital privilege). , 440 S.E.2d 68, 70 (Ga. Ct. App. 1994) (citation, quotations, brackets and ellipsis omitted); see Griffith v. Griffith, 44 N.E. 820, 821-22 (Ill. 1896) (deposition of former wife regarding former husband’s sexual acts not admissible under public policy of marital privilege). In this case, Linda Pelletier’s knowledge of the defendant’s sexual practices "was acquired by virtue of her voluntary participation [in them], resulting from a reliance by the participants upon the confidential marital relationship." White, 440 S.E.2d at 70. The sexual practices identified by the defendant’s former wife "necessarily depended upon [her] presence and participation." See id. That the defendant may have acted in the same manner with a third person does not waive the marital privilege. United States v. Bahe, 128 F.3d 1440, 1443 (10th Cir. 1997), cert. denied, 523 U.S. 1033 (1998). We ascribe to the compelling logic and public policy so well articulated in Bahe: We believe the accepted norm in this country is that intimate sex[ual] acts between [husband and wife] are communication and an important expression of love. . . . If we limit the marital communications privilege as narrowly as the [State] seeks in the instant case, a spouse could testify to every aspect of the marital sexual relationship. There is something inherently offensive in that idea. Id. at 1444-45. . at 1444-45. There are few, if any, relationships more respected and important than marriage and precious little more intimate, confidential and expressive than the private, consensual sexual conduct of a married couple. To parse sexual conduct between a husband and wife to discern where marital communications begin and end would be an intrusive, unseemly, and ultimately futile exercise. Accordingly, we decline to do so. We therefore hold that private, lawful, consensual sexual activity between a husband and wife constitutes privileged communications under Rule 504. We are mindful, however, as the Tenth Circuit was in Bahe, that the marital privilege may, for reasons of public policy, be appropriately limited. As the Bahe court observed: Child abuse is a horrendous crime. It generally occurs in the home, and is often covered up by the innocence of small children and by threats against disclosure. It would be unconscionable to permit a privilege grounded on promoting communications of trust and love between [husband and wife] to prevent a properly outraged spouse with knowledge from testifying against the perpetrator of such a crime. Id. at 1446 (citation omitted). We agree and will not cloak the sexual activity between a husband and wife with the marital privilege when, as here, disclosure would provide relevant information concerning the alleged sexual abuse of a child of one of the spouses who is living with them. Cf. RSA 161-F:48 (exception to marital privilege in proceedings involving abuse and neglect of the elderly); RSA 546:22 & RSA 546-A:9 (exception to marital privilege in support proceedings). In light of our recognition of this exception, the trial court did not err in finding that Linda Pelletier’s testimony would not violate the marital privilege. . at 1446 (citation omitted). We agree and will not cloak the sexual activity between a husband and wife with the marital privilege when, as here, disclosure would provide relevant information concerning the alleged sexual abuse of a child of one of the spouses who is living with them. Cf. RSA 161-F:48 (exception to marital privilege in proceedings involving abuse and neglect of the elderly); RSA 546:22 & RSA 546-A:9 (exception to marital privilege in support proceedings). In light of our recognition of this exception, the trial court did not err in finding that Linda Pelletier’s testimony would not violate the marital privilege. II The defendant next contends that the trial court erred by allowing Dr. Hazard to testify about the ability of the hymen to heal itself because her opinion (1) had not been properly disclosed by the State, (2) concerned a matter outside her acknowledged area of expertise, and (3) did not rise to a threshold level of reliability. At trial, the State called Dr. Hazard to detail her examination of the victim following her disclosures. Dr. Hazard testified that her examination revealed no evidence of trauma to the victim’s genitalia and that her hymen appeared "normal." Dr. Hazard also testified that the hymen has the ability to heal itself like other tissues. The defendant contends that this testimony was particularly prejudicial because it provided an explanation for how the genitalia of a sixteen-year-old female, who had been sexually assaulted in the manner alleged by the victim, could show no evidence of trauma. Generally, we accord considerable deference to a trial court’s evidentiary rulings and will only intervene when they demonstrate an unsustainable exercise of discretion. See State v. Dahood, 148 N.H. ___, ___, 814 A.2d 159, 161 (2002). Unless a party establishes that such a ruling was clearly untenable or unreasonable to the prejudice of his case, it will not be disturbed. See State v. Jordan, 148 N.H. 115, 117 (2002). The defendant first argues that Dr. Hazard’s specific opinion concerning the hymen’s ability to heal itself had not been disclosed by the State, as required by Superior Court Rule 98(A)(2)(i). This rule states, in pertinent part: [T]he state shall provide the defendant with . . . statements of witnesses; results or reports of physical or mental examinations, scientific tests or experiments, or any other reports or statements of experts, as well as a summary of each expert’s qualifications. Superior Court Rule 98(H) further provides that parties are under a "continuing obligation" to supplement discovery responses as additional materials are generated or if a party learns that previously provided discovery is "incomplete, inaccurate or misleading." The defendant concedes that he did have notice that Dr. Hazard had examined the victim and would testify regarding her findings, that the State had disclosed Dr. Hazard’s examination report, that she had been made available for a deposition, and that he had "pre-trial notice that [Dr.] Hazard would testify about female anatomy and that [the victim] had a normal hymen." The record also shows that the State provided the defendant with Dr. Hazard’s curriculum vitae to summarize her qualifications. During her deposition, Dr. Hazard testified that, in examining a female child some nine or ten years after the child was sexually assaulted in the manner described by the victim, she would "[m]ore than likely" not find any evidence of trauma, as she expected it "would have healed." She further testified that such healing would include "tears" and that the victim’s hymen was "intact" with no transections or cuts, disruptions, clefts or irregularities. Consequently, we find no merit in the defendant’s claim that "he could not have anticipated that [Dr.] Hazard would offer a medical opinion about the hymen’s ability to heal itself." We find no error in the trial court’s failure to find a violation of Superior Court Rule 98. The defendant next argues that Dr. Hazard’s opinion concerning the hymen’s ability to heal itself involved a matter outside her acknowledged area of expertise. Specifically, he asserts that the State did not show "what knowledge, training or other expertise" Dr. Hazard possessed that "qualified her to opine that the hymen can heal itself" without making "any reference to texts, studies or other authorities on this subject." We disagree. We will reverse a trial court’s determination of expert qualification only when it results from an unsustainable exercise of discretion. Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. ___, ___, 813 A.2d 409, 413 (2002). At trial, Dr. Hazard testified that she had been a board-certified physician in family medicine since 1987, that she was a member of the American Professional Society for Abused Children, that she belonged to a network of New Hampshire physicians who provide child abuse evaluations, and that she was specifically trained at the Child Protection Center (CPC) in Cedar Rapids, Iowa, to detect child sexual abuse. Further, she testified that she had worked at the CPC in Sioux City, Iowa, for three years, where she examined several hundred children to investigate alleged sexual abuse, and had received ongoing education about child sexual abuse. While the trial court may rule that a certain subject of inquiry requires that a member of a given profession, as a doctor, . . . be called, usually a specialist in a particular branch within a profession will not be required. Although a medical degree does not automatically qualify a witness to give an opinion on every conceivable medical question, neither does the lack of specialization in a particular medical field automatically disqualify a doctor from testifying as an expert in that field. An individual witness’s qualifications must be determined on a case-by-case basis, not by application of a per se rule of exclusion or inclusion. The trial judge cannot make a determination as to admissibility without investigating the competence the particular proffered expert would bring to bear on the issues. Only then will the judge be able to decide whether the test of [New Hampshire] Rule [of Evidence] 702—assistance to the trier of fact—has been satisfied. Mankoski v. Briley, 137 N.H. 308, 312-13 (1993) (quotations, brackets, ellipses and citations omitted). , 137 N.H. 308, 312-13 (1993) (quotations, brackets, ellipses and citations omitted). In this case, Dr. Hazard’s extensive background as a physician providing medical evaluations to detect and investigate child sexual abuse was sufficient to qualify her to offer an opinion on the hymen’s ability to heal itself, despite her lack of specialization in the field of gynecology. See Baker Valley, 148 N.H. at ___, 813 A.2d at 414. The defendant was afforded the opportunity to cross-examine Dr. Hazard regarding the validity of her opinion and the relevance of her experience. We find no unsustainable exercise of discretion in the trial court’s decision to allow Dr. Hazard’s challenged testimony. Finally, the defendant argues that Dr. Hazard’s opinion testimony "did not rise to the threshold level of reliability to be admissible" under New Hampshire Rule of Evidence 702 (Rule 702) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial judge found that Dr. Hazard was qualified to render a reliable opinion "by virtue of her credentials" and that the nature of her opinion testimony did not require a Daubert hearing. We agree. We review a trial court’s determination of expert reliability under Rule 702 for an unsustainable exercise of discretion. Baker Valley, 148 N.H. at ___, 813 A.2d at 413. Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. We have stated that expert testimony must rise to a threshold level of reliability to be admissible. Id. at ___, 813 A.2d at 414. In Baker Valley, we applied the Daubert standards concerning the reliability of expert testimony to Rule 702 and observed: The proper focus for the trial court [under Daubert] is the reliability of the expert’s methodology or technique. The trial court functions only as a gatekeeper, ensuring a methodology’s reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert’s testimony. Thus, the trial court must decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case. Id. at ___, 813 A.2d at 416 (citations and quotation omitted). We also stated, however: . at ___, 813 A.2d at 416 (citations and quotation omitted). We also stated, however: We emphasize that our adoption of Daubert does not require a trial court to conduct a pre-trial hearing in every case involving disputed expert testimony. The decision to hold such an evidentiary hearing rests within the trial court’s sound discretion. In cases where the testimony’s reliability is properly taken for granted, or where the information before the court is sufficient to reach a reliability determination, the trial court need not and should not conduct an evidentiary hearing. Pre-trial hearings, thus, should be limited to the less usual or more complex cases where cause for questioning the expert’s reliability arises. Id. at ___, 813 A.2d at 417 (citations and quotations omitted). . at ___, 813 A.2d at 417 (citations and quotations omitted). Based upon Dr. Hazard’s extensive background as a physician providing child abuse evaluations for detecting and investigating child sexual abuse in hundreds of cases, we find no unsustainable exercise of discretion in either the trial court’s determination of reliability or its decision not to conduct a Daubert hearing. III The defendant next argues that the trial court erred by allowing the victim’s classmate to testify about the victim’s disclosures of the alleged sexual assaults and the cause of the bruises to her arm and leg. He argues that the testimony about the content of the victim’s notes was hearsay and was offered "to prove that [the defendant] was the person who physically and sexually assaulted [her]." He further asserts that the testimony about the victim’s statements as to the cause of her bruises was hearsay "and [was] not solicited for any legitimate purpose." "‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial . . . , offered . . . to prove the truth of the matter asserted." N.H. R. Ev. 801(c). Such a statement is not inadmissible, however, when it is offered for purposes other than its truth. See State v. W.J.T. Enterprises, 136 N.H. 490, 493 (1992). That determination is an issue of fact for the trial court, see id., and we will not reverse its evidentiary ruling absent an unsustainable exercise of discretion, State v. Young, 144 N.H. 477, 482 (1999); see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining "unsustainable exercise of discretion" standard). It is clear from the record that the State offered the challenged testimony about the content of the victim’s notes to explain how she had disclosed the information to her classmate and why she felt comfortable doing so. It is also clear that the trial court overruled the defendant’s objections to the testimony specifically on that basis. As the testimony about the victim’s out-of-court statements was not admitted in evidence to prove that the defendant had physically and sexually assaulted her, it was not inadmissible hearsay. We note that the defendant made no request for a limiting instruction. See W.J.T. Enterprises, 136 N.H. at 494. The defendant also objected to the classmate’s testimony that the victim told him the defendant had struck her, causing the bruises on her arm and leg. The State countered that the testimony was offered as a "prior consistent statement" and the trial court admitted it as such. In his brief, the defendant contends that it was "unclear from the record why the trial judge admitted [the] out-of-court statements" as prior consistent statements. The State agrees that the trial court "did not clearly state the grounds on which it overruled the defendant’s hearsay objection." The defendant makes two alternative arguments as to why the trial judge erred in admitting the testimony. First, he concedes that a "prior consistent statement may be admissible for the non-substantive use of rehabilitating a witness’ credibility," but contends "it should be coupled with an unambiguous limiting instruction by the trial judge to explain to the jury the limited, rehabilitative purpose of the testimony." He argues that the trial court "did not meet its obligation of informing the jury of the hearsay’s limited, rehabilitative purpose." We agree that the trial court did not issue a limiting instruction, but the record is clear that the defendant neither asked for such an instruction, nor objected to the trial court’s failure to give one. As such, he cannot now complain of error. State v. Simonds, 135 N.H. 203, 207 (1991); see State v. Scovill, 144 N.H. 409, 413 (1999). Second, the defendant contends that "when a prior consistent statement is admitted to rebut a charge of recent fabrication as contemplated under Rule 801(d)(1)(B), it is admitted substantively" and the State is "required to make an affirmative showing, and the trial court must make findings, that the statement was made before a motive to fabricate came into being." He argues that the trial judge did not make the requisite findings for such admission. Although we agree that the trial court failed to make such findings, that failure neither precluded the admission of the testimony, nor does it require reversal. See Young, 144 N.H. at 482. We need not decide if the trial court intended to admit the testimony regarding the victim’s bruises substantively or not. The State contends that even if admission of the prior consistent statement was error, it was harmless. We agree. The State bears the burden of proving that an error is harmless, a burden satisfied by proof beyond a reasonable doubt that the erroneously admitted evidence did not affect the verdict. In deciding whether the State has met its burden, we consider the strength of the alternative evidence presented at trial. We also consider the character of the inadmissible evidence, including whether the evidence was cumulative or inconsequential in relation to the State's evidence. State v. Hodgdon, 143 N.H. 399, 401-02 (1999) (quotation omitted). The disputed testimony consisted of two statements that the victim had told her classmate that her stepfather had caused the bruises on her arm, and a single statement that her stepfather had kicked her, causing the bruise on her leg. The testimony was not "lengthy, comprehensive, or directly linked to a determination of the guilt or innocence of the defendant" on the charges of sexual assault. State v. Hennessey, 142 N.H. 149, 159 (1997) (quotations and brackets omitted). In addition, the testimony at issue was cumulative of the victim’s previous testimony concerning the cause of her bruising. See State v. Martin, 145 N.H. 313, 315 (2000). Further, the State did not refer to the classmate’s testimony concerning the victim’s bruises in closing argument. See Hennessey, 142 N.H. at 159. Accordingly, we are persuaded, beyond a reasonable doubt, that the admission of this testimony at trial did not affect the verdict. State v. Hodgdon, 143 N.H. 399, 401-02 (1999) (quotation omitted). The disputed testimony consisted of two statements that the victim had told her classmate that her stepfather had caused the bruises on her arm, and a single statement that her stepfather had kicked her, causing the bruise on her leg. The testimony was not "lengthy, comprehensive, or directly linked to a determination of the guilt or innocence of the defendant" on the charges of sexual assault. State v. Hennessey, 142 N.H. 149, 159 (1997) (quotations and brackets omitted). In addition, the testimony at issue was cumulative of the victim’s previous testimony concerning the cause of her bruising. See State v. Martin, 145 N.H. 313, 315 (2000). Further, the State did not refer to the classmate’s testimony concerning the victim’s bruises in closing argument. See Hennessey, 142 N.H. at 159. Accordingly, we are persuaded, beyond a reasonable doubt, that the admission of this testimony at trial did not affect the verdict. Affirmed. BROCK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.

IN THE MATTER OF DOUGLAS HOYT NELSON AND SYLVIA HORSLEY PETITION OF KERRY D. In the Matter of R.A. and J.M. IN THE MATTER OF MOISES CHOY AND ELSA CHOY

Berg v. Berg A child's right to privacy of medical records from the parents

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 Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. 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.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2003-654 THE STATE OF NEW HAMPSHIRE v. DONALD MORRILL a/k/a Sam W. Morrill   Argued: July 14, 2004 Opinion Issued: August 27, 2004 Kelly A. Ayotte, attorney general (Laura E. B. Lombardi, assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant. DALIANIS, J. The defendant, Donald Morrill a/k/a Sam W. Morrill, appeals his conviction of aggravated felonious sexual assault, see RSA 632-A:2, III (1996), arguing that the Superior Court (Mohl, J.) erred by ruling that the defendant opened the door to otherwise inadmissible testimonial evidence and, thereby, violated his State and Federal Constitutional rights to a fair and impartial jury trial. We reverse and remand. The defendant was convicted of aggravated felonious sexual assault against his stepdaughter, N.N. During a visit with her biological father in 1998, N.N. alleged that the defendant had sexually abused her. N.N.’s biological father immediately informed N.N.’s mother, the defendant’s then wife, and the authorities. The division for children, youth and families (DCYF) began investigating the allegations. The defendant moved out of N.N.’s home while DCYF investigated. Approximately one week later, N.N.’s mother called DCYF to inform it that N.N. had recanted the allegations. N.N. then told DCYF personnel that she had "lied," and that her "daddy told her to say" that she had been sexually abused by the defendant. Subsequently, DCYF closed the investigation. In December 2000, N.N.’s mother again called DCYF and alleged that the defendant had sexually abused N.N. DCYF scheduled an interview, although it was never conducted because N.N. was unresponsive. DCYF had no further contact with N.N. or her mother until November 2001. At that time, DCYF personnel conducted an interview with N.N. at her school. She denied that any sexual abuse had occurred. Subsequently, DCYF closed the second investigation into the defendant’s alleged sexual abuse of N.N. In January 2002, the Strafford County Attorney’s Office conducted a videotaped interview of N.N, during which she reasserted her allegations against the defendant; this prosecution followed. The defendant argues that the trial court erred in ruling that the defendant "opened the door" to testimony that the DCYF assessment worker assigned to investigate the 1998 allegations had closed the case "uncomfortably" and "[felt] something happened to this child." During the trial, the defendant objected to the State eliciting this testimony. The trial judge did not rule upon the defendant’s specific objection, but ruled that the defendant "opened [the] door as wide as it can be" to allow the testimony elicited by the State. Therefore, the issue before us is whether the trial judge properly ruled that the defendant "opened the door." The "opening the door" doctrine applies when one party introduces evidence that provides a justification beyond mere relevance for an opponent’s introduction of otherwise inadmissible evidence. State v. Crosman, 125 N.H. 527, 530 (1984). The initial evidence must have reasonably created a misimpression or misled the fact-finder in some way. See State v. Goodman, 145 N.H. 526, 529 (2000); Crosman, 125 N.H. at 531. This rule allows the opposing party to place potentially misleading evidence in its proper context. State v. Carlson, 146 N.H. 52, 56 (2001). Because the trial court is in the best position to gauge the prejudicial impact of particular testimony, we will not upset the trial court’s ruling unless it is an unsustainable exercise of discretion. See id.; cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). The defendant bears the burden of establishing that the trial court’s ruling is clearly untenable or unreasonable to the prejudice of his case. Carlson, 146 N.H. at 57. The defendant questioned the DCYF worker about the outcome of the 1998 investigation. She testified that N.N. had recanted the allegations, and the 1998 investigation was closed because DCYF was "unable to substantiate any of the allegations stated and [the] determination was unfounded." The defendant asked her what "unfounded" meant in DCYF terms, and she responded that it meant DCYF could not "substantiate the allegations . . . and [was] not able to move forward and prove that it actually happened." The State did not object to this line of questioning. Prior to this testimony, witnesses had already testified that in 1998 N.N. had recanted her allegations against the defendant. The defendant argues that the testimony that the 1998 investigation was officially closed as "unfounded" and providing the definition of that term did not mislead the jury or give a misimpression that warranted the admission of otherwise inadmissible testimony. We agree. The State contends that the DCYF worker’s testimony gave the misleading impression that DCYF concluded that the assaults did not occur. The DCYF worker’s testimony was not that DCYF ceased its investigation because it concluded that the assaults did not occur; rather, the testimony indicated that the case was closed because N.N. had recanted the allegations, and DCYF was unable to substantiate the allegations independently. A reasonable juror would infer from this testimony that once N.N. recanted and DCYF was unable to substantiate the allegations, the 1998 investigation was closed because there were no longer any allegations to investigate. The State also argues that the testimony gave the impression that the witness believed N.N.’s recantation. The testimony does not reveal any subjective opinions about this case. The testimony was only that the alleged victim recanted her allegations and that they could not be independently substantiated, and, as a result of the recantation, DCYF closed the case. The witness did not comment on whether she believed the recantation, and her testimony could not have misled a rational juror into drawing a conclusion as to what may have been her personal belief. Additionally, during the State’s cross-examination of the DCYF worker, before it attempted to introduce the testimony at issue, it elicited testimony from the witness, based upon her experience as a social worker, that recantations are common in intra-familial sexual abuse cases and do not mean that the abuse did not occur. Cf. Madeja v. MPB Corp., 149 N.H. 371, 392 (2003) (defendant was able to rebut any misleading impression without a finding that the door was opened). Because the witness’s testimony did not create a misimpression that DCYF concluded the investigation based upon a finding that abuse did not occur, or that the witness personally believed the recantation, the defendant did not "open the door" for otherwise inadmissible testimony to be elicited by the State, i.e., commentary on the veracity of the victim’s statements, see State v. MacRae, 141 N.H. 106, 108-09 (1996); State v. Kulas, 145 N.H. 246, 247 (2000). The defendant has carried his burden of proving that the trial court’s ruling was unreasonable to the prejudice of his case. See State v. Trempe, 140 N.H. 95, 100 (1995). The trial court’s ruling that the "door was opened" was an unsustainable exercise of discretion; thus, because the State does not argue harmless error, we reverse and remand for a new trial. See id. In light of our holding, we need not reach the defendant’s remaining issue on appeal. Reversed and remanded. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ., concurred. 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 Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. 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.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2003-654 THE STATE OF NEW HAMPSHIRE v. DONALD MORRILL a/k/a Sam W. Morrill   Argued: July 14, 2004 Opinion Issued: August 27, 2004 Kelly A. Ayotte, attorney general (Laura E. B. Lombardi, assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant. DALIANIS, J. The defendant, Donald Morrill a/k/a Sam W. Morrill, appeals his conviction of aggravated felonious sexual assault, see RSA 632-A:2, III (1996), arguing that the Superior Court (Mohl, J.) erred by ruling that the defendant opened the door to otherwise inadmissible testimonial evidence and, thereby, violated his State and Federal Constitutional rights to a fair and impartial jury trial. We reverse and remand. The defendant was convicted of aggravated felonious sexual assault against his stepdaughter, N.N. During a visit with her biological father in 1998, N.N. alleged that the defendant had sexually abused her. N.N.’s biological father immediately informed N.N.’s mother, the defendant’s then wife, and the authorities. The division for children, youth and families (DCYF) began investigating the allegations. The defendant moved out of N.N.’s home while DCYF investigated. Approximately one week later, N.N.’s mother called DCYF to inform it that N.N. had recanted the allegations. N.N. then told DCYF personnel that she had "lied," and that her "daddy told her to say" that she had been sexually abused by the defendant. Subsequently, DCYF closed the investigation. In December 2000, N.N.’s mother again called DCYF and alleged that the defendant had sexually abused N.N. DCYF scheduled an interview, although it was never conducted because N.N. was unresponsive. DCYF had no further contact with N.N. or her mother until November 2001. At that time, DCYF personnel conducted an interview with N.N. at her school. She denied that any sexual abuse had occurred. Subsequently, DCYF closed the second investigation into the defendant’s alleged sexual abuse of N.N. In January 2002, the Strafford County Attorney’s Office conducted a videotaped interview of N.N, during which she reasserted her allegations against the defendant; this prosecution followed. The defendant argues that the trial court erred in ruling that the defendant "opened the door" to testimony that the DCYF assessment worker assigned to investigate the 1998 allegations had closed the case "uncomfortably" and "[felt] something happened to this child." During the trial, the defendant objected to the State eliciting this testimony. The trial judge did not rule upon the defendant’s specific objection, but ruled that the defendant "opened [the] door as wide as it can be" to allow the testimony elicited by the State. Therefore, the issue before us is whether the trial judge properly ruled that the defendant "opened the door." The "opening the door" doctrine applies when one party introduces evidence that provides a justification beyond mere relevance for an opponent’s introduction of otherwise inadmissible evidence. State v. Crosman, 125 N.H. 527, 530 (1984). The initial evidence must have reasonably created a misimpression or misled the fact-finder in some way. See State v. Goodman, 145 N.H. 526, 529 (2000); Crosman, 125 N.H. at 531. This rule allows the opposing party to place potentially misleading evidence in its proper context. State v. Carlson, 146 N.H. 52, 56 (2001). Because the trial court is in the best position to gauge the prejudicial impact of particular testimony, we will not upset the trial court’s ruling unless it is an unsustainable exercise of discretion. See id.; cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). The defendant bears the burden of establishing that the trial court’s ruling is clearly untenable or unreasonable to the prejudice of his case. Carlson, 146 N.H. at 57. The defendant questioned the DCYF worker about the outcome of the 1998 investigation. She testified that N.N. had recanted the allegations, and the 1998 investigation was closed because DCYF was "unable to substantiate any of the allegations stated and [the] determination was unfounded." The defendant asked her what "unfounded" meant in DCYF terms, and she responded that it meant DCYF could not "substantiate the allegations . . . and [was] not able to move forward and prove that it actually happened." The State did not object to this line of questioning. Prior to this testimony, witnesses had already testified that in 1998 N.N. had recanted her allegations against the defendant. The defendant argues that the testimony that the 1998 investigation was officially closed as "unfounded" and providing the definition of that term did not mislead the jury or give a misimpression that warranted the admission of otherwise inadmissible testimony. We agree. The State contends that the DCYF worker’s testimony gave the misleading impression that DCYF concluded that the assaults did not occur. The DCYF worker’s testimony was not that DCYF ceased its investigation because it concluded that the assaults did not occur; rather, the testimony indicated that the case was closed because N.N. had recanted the allegations, and DCYF was unable to substantiate the allegations independently. A reasonable juror would infer from this testimony that once N.N. recanted and DCYF was unable to substantiate the allegations, the 1998 investigation was closed because there were no longer any allegations to investigate. The State also argues that the testimony gave the impression that the witness believed N.N.’s recantation. The testimony does not reveal any subjective opinions about this case. The testimony was only that the alleged victim recanted her allegations and that they could not be independently substantiated, and, as a result of the recantation, DCYF closed the case. The witness did not comment on whether she believed the recantation, and her testimony could not have misled a rational juror into drawing a conclusion as to what may have been her personal belief. Additionally, during the State’s cross-examination of the DCYF worker, before it attempted to introduce the testimony at issue, it elicited testimony from the witness, based upon her experience as a social worker, that recantations are common in intra-familial sexual abuse cases and do not mean that the abuse did not occur. Cf. Madeja v. MPB Corp., 149 N.H. 371, 392 (2003) (defendant was able to rebut any misleading impression without a finding that the door was opened). Because the witness’s testimony did not create a misimpression that DCYF concluded the investigation based upon a finding that abuse did not occur, or that the witness personally believed the recantation, the defendant did not "open the door" for otherwise inadmissible testimony to be elicited by the State, i.e., commentary on the veracity of the victim’s statements, see State v. MacRae, 141 N.H. 106, 108-09 (1996); State v. Kulas, 145 N.H. 246, 247 (2000). The defendant has carried his burden of proving that the trial court’s ruling was unreasonable to the prejudice of his case. See State v. Trempe, 140 N.H. 95, 100 (1995). The trial court’s ruling that the "door was opened" was an unsustainable exercise of discretion; thus, because the State does not argue harmless error, we reverse and remand for a new trial. See id. In light of our holding, we need not reach the defendant’s remaining issue on appeal. Reversed and remanded. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ., concurred.

ABBOTT v. ABBOTT

certiorari to the united states court of appeals for the fifth circuit

No. 08-645. Argued January 12, 2010--Decided May 17, 2010

After the Abbotts, a married couple, moved to Chile and separated, the Chilean courts granted respondent wife daily care and control of their minor son, A. J. A., while awarding petitioner husband visitation rights. Mr. Abbott also had a ne exeat right to consent before Ms. Abbott could take A. J. A. out of the country under Chile Minors Law 16,618 (Minors Law 16,618), art. 49. When Ms. Abbott brought A. J. A. to Texas without permission from Mr. Abbott or the Chilean family court, Mr. Abbott filed this suit in the Federal District Court, seeking an order requiring his son's return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U. S. C. §11601 et seq. Among its provisions, the Convention seeks "to secure the prompt return of children wrongfully removed or retained in any Contracting State," Art. 1; provides that such "removal or retention ... is to be considered wrongful where" "it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was [theretofore] habitually resident," Art. 3(a), and where "those rights [had been] actually exercised ... or would have been so exercised but for the removal or retention," Art. 3(b); and defines "rights of custody" to "include ... the right to determine the child's place of residence," Art. 5(a). The District Court denied relief, holding that the father's ne exeat right did not constitute a "righ[t] of custody" under the Convention and, thus, that the return remedy was not authorized. The Fifth Circuit affirmed.

Held: A parent has a right of custody under the Convention by reason of that parent's ne exeat right. Pp. 4-17.

     (a) The Convention applies because A. J. A. is under 16; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The ICARA instructs the state or federal court in which a petition alleging international child abduction has been filed to "decide the case in accordance with the Convention." §§11603(b), (d). P. 5.

     (b) That A. J. A. was wrongfully removed from Chile in violation of a "righ[t] of custody" is shown by the Convention's text, by the U. S. State Department's views, by contracting states' court decisions, and by the Convention's purposes. Pp. 5-18.

          (1) Chilean law determines the content of Mr. Abbott's right, while the Convention's text and structure resolve whether that right is a "righ[t] of custody." Minors Law 16,618, art. 49, provides that "[o]nce the court has decreed" that one of the parents has visitation rights, that parent's "authorization" generally "shall also be required" before the child may be taken out of the country. Because Mr. Abbott has direct and regular visitation rights, it follows that he has a ne exeat right under article 49. The Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a), and Mr. Abbott's ne exeat right is best classified as a "joint right of custody," which the Convention defines to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence," Art. 5(a). Mr. Abbott's right to decide A. J. A.'s country of residence allows him to "determine the child's place of residence," especially given the Convention's purpose to prevent wrongful removal across international borders. It also gives him "rights relating to the care of the person of the child," in that choosing A. J. A.'s residence country can determine the shape of his early and adolescent years and his language, identity, and culture and traditions. That a ne exeat right does not fit within traditional physical-custody notions is beside the point because the Convention's definition of "rights of custody" controls. This uniform, text-based approach ensures international consistency in interpreting the Convention, foreclosing courts from relying on local usage to undermine recognition of custodial arrangements in other countries and under other legal traditions. In any case, this country has adopted modern conceptions of custody e.g., joint legal custody, that accord with the Convention's broad definition. Ms. Abbott mistakenly claims that a ne exeat right cannot qualify as a right of custody because the Convention requires that any such right be capable of "exercis[e]." When one parent removes a child without seeking the ne exeat holder's consent, it is an instance where the right would have been "exercised but for the removal or retention," Art. 3(b). The Fifth Circuit's conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. Any suggestion that a ne exeat right is a right of access is atexual, as a ne exeat right is not even arguably a "right to take a child for a limited period of time." Art. 5(b). Ms. Abbott's argument that the ne exeat order in this case cannot create a right of custody is not dispositive because Mr. Abbott asserts rights under Minors Law 16,618, which do not derive from the order. Pp. 6-11.

          (2) This Court's conclusion is strongly supported and informed by the longstanding view of the State Department's Office of Children's Issues, this country's Convention enforcement entity, that ne exeat rights are rights of custody. The Court owes deference to the Executive Branch's treaty interpretations. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 185. There is no reason to doubt this well-established canon here. The Executive, when dealing with delicate foreign relations matters like international child abductions, possesses a great store of information on practical realities such as the reactions from treaty partners to a particular treaty interpretation and the impact that interpretation may have on the State Department's ability to reclaim children abducted from this country. Pp. 11-12.

          (3) The Court's view is also substantially informed by the views of sister contracting states on the issue, see El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 176, particularly because the ICARA directs that "uniform international interpretation" of the Convention is part of its framework, see §11601(b)(3)(B). While the Supreme Court of Canada has reached an arguably contrary view, and French courts are divided, a review of the international law confirms that courts and other legal authorities in England, Israel, Austria, South Africa, Germany, Australia, and Scotland have accepted the rule that ne exeat rights are rights of custody within the Convention's meaning. Scholars agree that there is an emerging international consensus on the matter. And the Convention's history is fully consistent with the conclusion that ne exeat rights are just one of the many ways in which custody of children can be exercised. Pp. 12-16.

          (4) The Court's holding also accords with the Convention's objects and purposes. There is no reason to doubt the ability of other contracting states to carry out their duty to make decisions in the best interests of the children. To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, runs counter to the Convention's purpose of deterring child abductions to a country that provides a friendlier forum. Denying such a remedy would legitimize the very action, removal of the child, that the Convention was designed to prevent, while requiring return of the child in cases like this one helps deter abductions and respects the Convention's purpose to prevent harms to the child resulting from abductions. Pp. 16-18.

     (c) While a parent possessing a ne exeat right has a right of custody and may seek a return remedy, return will not automatically be ordered if the abducting parent can establish the applicability of a Convention exception, such as "a grave risk that ... return would expose the child to ... harm or [an] otherwise ... intolerable situation," or the objection to removal by a child who has reached a sufficient "age and degree of maturity" to state a preference, Art. 13(b). The proper interpretation and application of exceptions may be addressed on remand. P. 18.

542 F. 3d 1081, reversed and remanded.

     Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Ginsburg, Alito, and Sotomayor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Thomas and Breyer, JJ., joined.

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