145 N.H. 246 | N.H. | 2000
superior court justice, specially assigned under RSA 490:3. The' defendant, Paul Kulas, was convicted after a jury trial in the superior court of one count of aggravated felonious sexual assault. See RSA 632-A:2 (1996) (amended 1997, 1998, 1999). On appeal, he argues that the Trial Court (Hollman, J.) erred by admitting the testimony of the victim’s attorney that she requested permission of the victim and reported a “possible rape” to the Nashua Police Department. Because we find that the testimony did not constitute impermissible opinion evidence as to the credibility of the victim, we affirm.
Based on the evidence at trial, the jury could have found the following facts. The victim and the defendant shared a residence in Nashua with the victim’s two children. On April 22, 1997, after spending approximately one and one-half hours in the late afternoon at a local restaurant with a friend, the victim returned home. The defendant became enraged, accused her of drinking and driving, and placed the victim in a “bear hug.” As she struggled to break free, the defendant forcefully struck her in the face.
The defendant testified that although they argued about her drinking and driving, the victim struck her own face when she reached for her cigarette lighter on the floor and fell. When she later collapsed, the defendant testified that he slapped her in an effort to revive her. The defendant testified that she later apologized and they had intercourse.
The victim did not immediately report either the physical assault or the sexual assault to the police. Sometime later, the victim left the defendant, and in July 1997, she reported the physical assault, but not the sexual assault, to the Nashua Police Department.
The victim obtained the services of an attorney to assist her in securing a restraining order against the defendant. The victim first learned that the defendant may have committed a sexual assault when, upon describing the assault to her attorney, the attorney concluded that the defendant’s conduct may have satisfied the elements of aggravated felonious sexual assault.
At trial, the victim’s attorney testified, over objection, that she reviewed certain documents the victim had provided to her. She further testified that after reviewing the documents she asked the victim’s permission to contact the domestic violence unit of the Nashua Police Department “to ask [an officer] to look into ... a possible rape.”
The defendant contends that by allowing the victim’s attorney to testify as she did, the court permitted the witness to offer an implicit opinion as to the victim’s credibility. Because the case turned on the credibility of the victim’s testimony, the defendant asserts that the testimony of the victim’s attorney was tantamount to expert opinion evidence that the attorney believed the victim and that, inferentially, the jury should believe the victim.
The determination of the credibility of a witness rests solely with the jury. See State v. Hodgdon, 143 N.H. 399, 404, 725 A.2d 660, 664 (1999). Trial courts must ensure that an expert’s testimony does not supplant the jury’s “responsibility to use [its] own common sense in judging a witness’s credibility.” State v. Campbell, 127 N.H. 112, 116, 498 A.2d 330, 333 (1985).
The testimony of the victim’s attorney was narrowly tailored to the parameters set by the trial judge. The relevant portion of the testimony is as follows:
Q. In the course of that representation, did you review documents [the victim] had provided to you in a conference with her?
A. Yes, I did.
Q. As a result of reviewing those documents and discussing them with your client, what action did you take?
A. I asked her permission to call [an officer] of the [Nashua] domestic violence unit, and to ask him to look into possible, a possible rape.
Q. Do you recall the date you called [the officer]?
A. It was the end of July, I think it was July 25th, 26th, 27th, something in there.
This court reviews the admission of a witness’s testimony under the abuse of discretion standard. State v. Johnson, 144 N.H. 175, 180-81, 738 A.2d 1284, 1288 (1999). “To demonstrate an abuse of discretion, the defendant must show that the trial court’s rulings were clearly untenable or unreasonable to the prejudice of his case.” Id. at 181, 738 A.2d at 1288.
The record demonstrates no abuse of discretion. The victim’s attorney neither explicitly nor implicitly offered an opinion as to the victim’s credibility. Her testimony related solely to the facts, which were made relevant by the victim’s delayed report, that she learned of the victim’s description of the incident, discussed the incident with the victim, and requested permission to report a “possible rape” to the Nashua Police Department.
Because the admission of the testimony at issue was proper, there was no abuse of discretion by the trial court. Issues raised in the notice of appeal but not briefed are waived. State v. Colbert, 139 N.H. 367, 370, 654 A.2d 963, 965-66 (1995).
Affirmed.