Defendant received concurrent sentences on convictions of one count of kidnaping and two counts of second degree criminal sexual penetration (CSP II). His challenge to the CSP convictions rests on the alleged impropriety of testimony regarding rape-trauma syndrome (RTS) by Micki Curtis, the Sexual Assault Program Coordinator for Southwest Mental Health Associates. He does not challenge the kidnaping conviction. We granted oral argument, primarily to consider whether any error had been preserved. We affirm.
INTRODUCTION
RTS is a term appearing in psychiatric literature of the past fifteen years describing emotional reactions that victims of rape commonly experience. See A. Burgess & L. Holmstrom, Rape Trauma Syndrome, 131:9 Am. J. Psychiatry 981 (Sept.1974). Defendant’s brief raises interesting questions regarding testimony about RTS. Given the apparently widespread use of such testimony in CSP prosecutions, guidance from this court on the implicated evidentiary questions would be helpful to prosecutors, defense counsel, and trial judges.
Unfortunately, this case does not present a suitable vehicle for us to accomplish more than providing a few limited observations. Proper analysis of the subtleties arising in RTS testimony requires that the issue be focused in the trial court. When a specific objection is raised to such testimony, counsel for both parties can produce an appropriate record arid the trial judge can exercise an informed discretion. We can then review whether that discretion was abused. See, e.g., State v. Bowman,
We understand defendant’s contentions on appeal to be: (1) the trial court erred in allowing testimony that the victim suffered from RTS; (2) RTS testimony cannot be used to establish the personal injury necessary to prove CSP II; (3) defendant should have received notice that the state intended to use RTS testimony, because he would then have moved for an independent psychiatric evaluation of the victim; (4) Ms. Curtis did not possess the medical qualifications to testify about the victim’s physical manifestations of RTS, such as nausea, increased consumption of alcohol, and recurrence of asthma; (5) Ms. Curtis was not qualified to give expert testimony on RTS; (6) RTS testimony is inadmissible to prove the victim’s lack of consent; and (7) use of the term “RTS” improperly encouraged the jury to believe that experts can determine whether a rape in fact occurred.
The first contention has no basis in fact. No one testified that the victim suffered from RTS. Ms. Curtis, the state’s expert witness on RTS, carefully avoided making such an assertion. She referred to the “alleged rape” and testified only that the victim’s alleged symptoms were consistent with those of victims of RTS. Therefore, the first contention need not be addressed. Of the remaining six contentions, only (2), (3), and (4) were properly preserved below, at least in part. The last three contentions were not raised at trial; consequently, they cannot assist defendant in the absence of plain or fundamental error.
We discuss contentions (2) and (3) together; treat (4) briefly; establish that (5), (6), and (7) were not preserved below; and then touch on plain error and fundamental error. CONTENTIONS (2) & (3): USE OF TESTIMONY REGARDING EMOTIONAL DAMAGE TO PROVE PERSONAL INJURY
To sustain a conviction of CSP II, the state must prove that the CSP was perpetrated “by the use of force or coercion which results in personal injury to the victim[.]” NMSA 1978, § 30-9-11(B)(2) (Cum. Supp.1989). Defendant’s trial counsel raised two objections concerning testimony regarding the victim’s emotional condition as proof of “personal injury.” First, he suggested that psychological trauma cannot be used to establish such injury. Second, he contended that if it can be used, he was entitled to notice of the state’s intent to proceed on that theory, so that he could have obtained a psychological examination of the victim. Although neither objection focused on RTS per se, we will address RTS testimony in this context, thus responding to defendant’s appellate contentions (2) and (3).
Defendant’s first concern is answered by the language of the CSP statute and by precedent from this court. The statute defines “personal injury” as “bodily injury to a lesser degree than great bodily harm and includes * * * mental anguish[.]” NMSA 1978, § 30-9-10(0 (Repl.Pamp. 1984). We have held that the “mental anguish” necessary to establish CSP II is “distress of the mind.” State v. Jiminez,
Related to this first concern is whether the evidence at trial of mental anguish was properly admitted and sufficient to establish that element of the offense. See State v. Linam,
In addition, Ms. Curtis described typical emotional reactions to rape that are considered part of RTS. In her testimony to the jury she did not, however, diagnose the victim as suffering from RTS. Rather, she stated that the symptoms described by the victim were consistent with the syndrome. That testimony is somewhat troublesome. On the one hand, it appears relevant. Scientific studies showing that victims of rape typically suffer certain symptoms may make it more likely that a particular rape victim suffered in a similar fashion. On the other hand, it might be improper for the jury to infer from such studies that one suffering those symptoms is actually a victim of rape. See State v. Newman,
Having concluded that Ms. Curtis’ testimony was relevant, we next address its sufficiency. Defendant suggests that the emotional distress proved in this case is insufficient to establish “mental anguish,” because similar distress would be suffered by almost every victim of CSP and therefore the offense of CSP III—which is identical to CSP II as defined in Section 30-9-11(B)(2), except for the absence of the requirement of personal injury—would be a nullity. Although there may be some truth to defendant’s factual premise, the legal conclusion is unsound. A statutory requirement is not rendered a nullity simply because ordinarily the requirement will be established by the evidence. Moreover, as we implicitly recognized in Jiminez, the evidence at trial may not convince the jury that the victim suffered personal injury. Defendant apparently would have us define mental anguish as something like “psychological or emotional damage that requires psychiatric or psychological treatment or care, either on an in-patient or out-patient basis, and is characterized by extreme behavioral change or severe physical symptoms^]” But the quoted language is the definition in Section 30-9-10(B) of “great mental anguish,” which would elevate CSP II to CSP I. See § 30-9-11(A)(2). The less-than-extreme behavioral change about which Ms. Curtis testified suffices to support a jury verdict of CSP II.
As for defendant’s claim that the state should have advised him of its intention to prove personal injury by establishing emotional distress, defendant waived any complaint about lack of such notice by failing to request a statement of facts prior to trial pursuant to SCRA 1986, 5-205(C). See State v. Martin,
Insofar as defendant may be complaining that he was not specifically advised that Ms. Curtis would testify about RTS, he does not identify any legal requirement for such disclosure. In particular, he does not claim any violation of the state’s duties under the discovery provisions of the Rules of Criminal Procedure. Moreover, once defendant was specifically advised of the state’s theory and its intent to put on evidence regarding RTS, he failed to request a continuance in order to prepare further to meet that theory and the state’s evidence. Failure to request a continuance undermines defendant’s claim of unfair surprise. Cf. State v. Altgilbers,
MS. CURTIS’ MEDICAL EXPERTISE
Although defendant contends on appeal that Ms. Curtís was not medically qualified to testify about the victim’s asthma, nausea, and increased consumption of alcohol, his sole objection at trial was that she lacked the medical expertise to testify that the victim suffered from asthma, which was exacerbated by the rape. Yet Ms. Curtis never gave a medical diagnosis regarding the victim’s asthma; she merely testified that the victim reported to her that she was suffering from increased asthma. The objection had no merit.
OTHER APPELLATE OBJECTIONS
None of defendant’s other appellate objections was raised below. Other than those already discussed, trial counsel posed four objections to Ms. Curtis’ testimony. All four were made either immediately after her voir dire examination out of the presence of the jury or during her subsequent testimony: (1) He objected “just for the record” to all of her testimony, without noting any specific objection. (2) He objected to one question as “asked and answered.” (3) He objected that certain testimony by Ms. Curtis concerned a matter that was “not what the evidence was proffered for.” (4) He objected to a hypothetical question because the hypothetical suggested to the jury that the rape actually had occurred.
The only one of these objections that could possibly encompass any of defendant’s appellate issues is his objection “just for the record” to all of Ms. Curtis’ testimony. But an objection that does not state the grounds for the objection preserves no issue for appeal. See R. 11-103(A)(1). While the rule provides that an objection need not be specific if the specific ground is apparent from the context, nothing in the context of this objection suggested that defendant was urging any of the grounds raised on appeal.
PLAIN ERROR AND FUNDAMENTAL ERROR
Even if defendant did not raise proper objections at trial, he may be entitled to relief if the errors of which he complains on appeal constituted plain error, Rule 11-103(D), or fundamental error, SCRA 1986, 12-216(B)(2). In either case, we must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict. See State v. Marquez,
To determine if there has been plain or fundamental error, we must examine the alleged errors in the context of the testimony as a whole. Although Ms. Curtis’ testimony concerning RTS per se posed risks which might have required the trial court to sustain specific objections, we do not find that the risks were sufficiently great to make admission of that testimony plain or fundamental error. The essence of Ms. Curtis’ testimony was to establish mental anguish and to disabuse the jury of any misconceptions it might have had regarding how rape victims react to the offense. Such testimony is appropriate, and on those matters Ms. Curtis’ extensive experience with rape victims provided her with adequate expertise. Cf. State v. Newman (analogous testimony admissible to explain behavior of child victim of sexual abuse). We note that Ms. Curtis did not testify that the victim had in fact been raped. Indeed, early in her testimony she referred to the “alleged rape.” Thus, the chief risk of RTS testimony—that the jury will improperly
CONCLUSION
In future cases when there is a question as to whether an issue was properly preserved, appellate counsel should recite in the brief what trial counsel said to preserve the issue raised on appeal and should argue specifically how the issue was preserved or why it need not have been preserved.
We affirm defendant’s convictions.
IT IS SO ORDERED.
Notes
. Although Marquez might be considered a one-judge opinion of no precedential value, see Casias v. Zia Co.,