The State of New Hampshire v. Ronald L. Fuller

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0423, The State of New Hampshire v.
Ronald L. Fuller, the court on December 20, 2019, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Ronald L. Fuller, appeals his convictions, following a jury trial in
the Superior Court (Ignatius, J.), on two counts of aggravated felonious sexual
assault and one count of felonious sexual assault. See RSA 632-A:2, :3 (Supp.
2017). The defendant argues that the trial court erred by improperly: (1)
admitting the testimony of a lay witness, either because it was irrelevant or
because it exceeded the scope of lay testimony; and (2) allowing the State to
question the defendant about a “different investigation.” We reverse and
remand because the trial court unsustainably exercised its discretion by
admitting irrelevant testimony of a key witness. We also conclude that the trial
court erroneously permitted the State to question the defendant about a
different investigation.

The following facts are drawn from the record. Between February 2000
and approximately June 2005, the complainant, the niece of the defendant’s
long-time girlfriend, lived intermittently at the defendant’s house when she was
between 8 and 13 years of age. In November 2005, the complainant accused
the defendant of attempting to inappropriately touch her at some point during
2003 and 2004. Although the defendant was charged with attempted felonious
sexual assault, the State eventually nol prossed that indictment in December
2008. In 2013, when the complainant was 21 years old, she alleged that the
defendant had done more than attempt to touch her; she accused him of
sexually assaulting her between 2001 and 2004. The complainant testified
that she did not tell the police in 2005 about the sexual assaults because she
“was scared and not ready to admit what had happened.” In 2014, the
defendant was indicted on two counts of aggravated felonious sexual assault
and one count of felonious sexual assault. In 2018, he was tried by a jury.

As the State’s first witness, Police Officer Swift testified that she was an
“assisting officer” in the case, tasked to “just . . . do follow ups” with various
witnesses. Swift also testified that she had previously investigated about “two
dozen” sexual assault cases, worked with a sexual assault response team, and
attended multiple trainings about sexual assault. Following this recitation of
her training and experience, the State asked Swift: “In any of the cases you’ve
investigated, were there late disclosures?” Swift replied: “Yeah, majority of
them are.”

The defendant objected, arguing, in part, that no late disclosure was
made in this case. The trial court overruled this objection. The State and Swift
then had the following exchange:

Q. So I asked you, have you investigated a case in which there was
a late disclosure?
A. Yes.
Q. Have you investigated cases in which the disclosure comes out
piecemeal?
....
A. Absolutely.
....
Q. Have you investigated a case in which the victim remained in
the home?
A. Yes.

The defendant moved to strike this testimony, questioning its relevance.
The trial court denied the motion, but told the State not to restate the question
and to move on. The defendant was subsequently convicted on all three
indictments. This appeal followed.

The defendant argues that Swift’s testimony was irrelevant. We agree.
We review a trial court’s decision to admit testimony subject to the
unsustainable exercise of discretion standard. State v. Gonzalez, 150 N.H. 74,
77 (2003). To demonstrate an unsustainable exercise of discretion, the
defendant must show that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of his case. See id.

New Hampshire Rule of Evidence 401 states that evidence is relevant if
“it has any tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence in determining the
action.” N.H. R. Ev. 401. It is undisputed that the State did not move to have
Swift qualified as an expert and, therefore, the trial court could not have
qualified her as such.

Swift testified that she had investigated “over two dozen” sexual assault
cases. She then testified that a “majority” of sexual assault cases she had
investigated involved late disclosures, that she had “[a]bsolutely” investigated
cases in which the disclosure was made “piecemeal,” and agreed that she had
investigated a case in which the victim remained in the perpetrator’s home.

The State posits that this testimony was relevant because it could help
the jury determine “whether the victim’s late disclosure was a result of

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fabricated allegations.” We have considered “the behavioral characteristics
commonly found in child abuse victims” an appropriate area of expert
testimony to preempt or rebut any inferences that a child complainant lacks
credibility in a child sexual abuse case. State v. Cressey, 137 N.H. 402, 411-12
(1993). Swift’s testimony at issue here, however, was admitted as lay
testimony and pertained only to observations she made while investigating
other cases. Nonetheless, in the absence of reliable expert testimony linking
Swift’s observations to the nature of the complainant’s disclosures and conduct
in this case, her testimony about victims’ conduct and disclosures made in
other cases had no bearing on whether the complainant made credible delayed
or piecemeal disclosures in this case. We note that, even if the State had
qualified Swift as an expert, any testimony about a complainant’s specific
behavior is inadmissible if its purpose is to prove that abuse occurred or if, as
an expert, she testified that the complainant’s specific behaviors are consistent
with or common to the behaviors of a person who has been sexually abused.
See State v. Marden, 172 N.H. 258, 263 (2019). The officer’s testimony was
thus irrelevant and it was unreasonable for the trial court to admit it.

We also conclude that admitting this testimony prejudiced the
defendant’s case. See Gonzalez, 150 N.H. at 77. The State’s case largely
hinged upon the jury’s assessment of the complainant’s credibility; she was the
only witness who testified to two of the three acts with which the defendant
was charged. The defendant’s defense, on the other hand, was primarily based
upon discrediting the complainant. The State improperly relied upon Swift’s
testimony to buttress the complainant’s credibility. Indeed, the prosecutor told
the jury in her opening statement that Swift would be one witness who would
“fill in the complete picture” and “corroborate” the complainant’s testimony.
Then, the State spoke at length about Swift’s testimony in its closing argument,
telling the jury that Swift’s “training and experience” allowed her to say that it
is “usual for people to delay their disclosure of abuse, to come out with it
piecemeal.” Given the disproportionate significance a jury could attach to this
testimony because of Swift’s training and experience, see Cressey, 137 N.H. at
405, we conclude that the testimony prejudiced the defendant’s case.

Accordingly, the trial court committed an unsustainable exercise of
discretion by allowing Swift to testify as a lay witness about her experience
investigating other sexual assault cases. Although we often address whether a
trial court’s erroneous evidentiary ruling constitutes harmless error, see
Gonzalez, 150 N.H. at 79, here, the State does not argue harmless error. We
therefore decline to conduct a harmless error analysis, and reverse the
defendant’s conviction. See State v. Forbes, 157 N.H. 570, 577 (2008).

We next address the defendant’s second argument, that the trial court
erred by permitting the State to question him about a “different investigation,”
in the interest of judicial economy because this issue may arise upon retrial.
See State v. Sweeney, 151 N.H. 666, 674 (2005). Prior to trial, the State moved

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to admit evidence pertaining to prior indictments and a trial involving
allegations of sexual assault that the complainant’s sister made against the
defendant in order to prove intent, among other things. The trial court ruled
this evidence inadmissible, and instructed counsel to “proceed with utmost
caution to avoid any direct or cross-examination questions that might elicit
information regarding prior indictments and/or trial proceedings.”

At trial, the complainant testified that on one occasion she found a video
camera hidden in the bathroom after she showered at the defendant’s house.
On cross-examination, the complainant testified that she did not tell the police
about the camera in 2005, but that she disclosed this allegation to the police
for the first time in 2013. The defendant testified that his camera was
confiscated by the police when he was first arrested in 2005 and returned to
him at some point thereafter.

Before its cross-examination of the defendant, the State argued that his
testimony opened the door to evidence about the allegations made by the
complainant’s sister. The State proffered that the camera was confiscated in
2005 based upon the sister’s allegations, and it was only returned after the
charges stemming from those allegations were annulled. Although the State
proffered no evidence that the police found anything incriminating on the
camera, it argued that the defendant’s testimony left the jury with the
misimpression that “no evidence was found [on the camera], and that’s
inaccurate.” The defendant proffered that the State’s investigators found no
incriminating evidence on the camera and objected to any questioning on the
subject.

The trial court stated that the defendant “didn’t open the door.” Yet, it
allowed the State to ask the defendant whether the camera was seized in
connection with a “different investigation,” to which the defendant replied, “No.
Same case, different charge”; and whether the camera was returned “years
later for reasons unrelated to this case,” to which the defendant replied in the
affirmative. The State then argued that the defendant’s answer to the first
question was misleading and opened the door to evidence regarding the sister’s
allegations because the camera was not seized in connection with “the same
case.” The trial court initially refused the State’s request to admit such
evidence, but it allowed the State to again ask whether the video camera was
seized in 2005 in connection with a “different investigation.” This time the
defendant replied in the affirmative.

We agree with the trial court’s initial determination that the defendant
did not open the door to evidence regarding the sister’s allegations.1 The
opening the door doctrine includes two distinct doctrines — the curative

1 The record does not reveal the basis on which the trial court allowed the State to ask the

defendant questions about a “different investigation.”

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admissibility and specific contradiction doctrines. DePaula, 170 N.H. at 146.
Both parties agree that the specific contradiction doctrine applies here. That
doctrine may be invoked when a party introduces admissible evidence that
creates a “misleading advantage” for that party. Id. Inferential conclusions
that may be drawn from a witness’s testimony can create such a misleading
advantage. Id. Once a misleading advantage is created, the opposing party is
allowed to introduce previously suppressed or otherwise inadmissible evidence
to counter that misleading advantage. Id. The rule thus prevents a party from
successfully excluding evidence favorable to the opposing party and then
selectively introducing that evidence for its own advantage, without allowing
the opponent to place the evidence in its proper context. State v. Morrill, 154
N.H. 547, 550 (2006).

The State claims the defendant’s testimony that the camera was taken by
the police in 2005 and returned thereafter could have created several
misimpressions, yet it fails to argue how the testimony created a misleading
advantage. Indeed, the defendant’s testimony created an unfavorable inference
about his own case — that he was being investigated by the police in 2005 for
reasons unrelated to the complainant’s allegations. He testified that the police
seized his camera in 2005, despite the fact that the complainant testified that
she did not tell the police about the camera until 2013. There was thus no
misleading advantage created by the defendant’s testimony that needed to be
countered through the admission of evidence previously ruled inadmissible.
Cf. State v. Wamala, 158 N.H. 583, 586, 590 (2009) (concluding that evidence
of prior uncharged assaults in sexual assault prosecution was admissible after
the defendant created a misleading advantage by testifying that he could
“never” sexually assault his child); State v. Lopez, 156 N.H. 416, 422-23 (2007)
(concluding that trial court sustainably exercised its discretion in excluding
evidence that the defendant cried in one interview with the police to rebut
testimony that he did not cry in another interview, and noting that “[t]he fact
that [evidence] could be said to lead the jury to a particular conclusion does
not mean that the evidence was misleading”). Accordingly, we conclude that it
was improper for the trial court to allow the State to question the defendant
about a “different investigation.”

Reversed and remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Eileen Fox,
Clerk

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