THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2024-0061, State of New Hampshire v. Aung Thet, the court on December 23, 2025, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, Aung Thet, appeals his convictions, following a jury trial in the Superior Court (Howard, J.), on three sets of two alternative counts of aggravated felonious sexual assault (AFSA). See RSA 632-A:2, I(a), (m) (2016). He argues that the trial court erred in allowing the victim's doctor to testify that she referred the victim to additional services due to the victim's disclosure of her "trauma history." We affirm.
The jury could have found the following facts. The victim and the defendant separately emigrated from Myanmar (formerly Burma). After the victim responded to the defendant's job posting in a Burmese-language Facebook group, the defendant hired the victim to roll sushi at a supermarket deli in exchange for monthly pay and room and board. He also offered to help her file for asylum. The victim moved into the defendant's shared apartment and began working for him at the deli.
On several occasions in early 2020, the defendant forcibly engaged in sexual intercourse with the victim in the apartment. Thereafter, the victim learned that she was pregnant. Eventually, she moved out of the defendant's apartment and reported his sexual assaults to the police. A paternity test taken after the victim's child was born in the fall of 2020 confirmed that the defendant was the child's father. After giving birth, the victim learned for the first time that she could apply for a U visa for immigrant victims of crime. A grand jury subsequently indicted the defendant on seven counts of AFSA. At trial, after the victim and the State's other witnesses testified, the State called Terra Wilkins, a board-certified family practice physician who had treated the victim during her pregnancy and delivered her baby. Wilkins testified that the victim's pregnancy was "high risk," due to "several health conditions . . . as well as some mental health concerns and trauma history."
She added that due to this "trauma history," she referred the victim to additional services. Defense counsel objected on relevance grounds.
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The State argued that Wilkins' testimony about the referrals "set the foundation" for her testimony regarding the victim's disclosure that she had been sexually assaulted. The State asserted that the victim's disclosure to Wilkins was relevant, in turn, because the defendant denied assaulting the victim. After the State referred to the exception to the rule against hearsay for statements made for medical diagnosis or treatment, see N.H. R. Ev. 803(4), defense counsel clarified that his objection was to the relevance of Wilkins' testimony about the referrals. Defense counsel explained that he did not argue that the victim's disclosure constituted inadmissible hearsay. The trial court overruled the defendant's relevance objection. Wilkins then further testified that she had referred the victim to counseling and community resources. Over the defendant's reasserted objection, Wilkins also testified that the "trauma experience" the victim had disclosed was "that her child had been conceived through rape." After the State rested, the trial court dismissed one of the AFSA charges. The jury returned guilty verdicts on the remaining six counts of AFSA. This appeal followed.
On appeal, the defendant argues that the trial court erred by admitting Wilkins' testimony because it was irrelevant to the jury's assessment of the victim's credibility and prejudiced the defendant. "We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion." State
v. Dana, 175 N.H. 27, 32 (2022) (quotation omitted). "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." Id. "We have consistently held that whether evidence is relevant, and thus admissible for that reason, is within the sound discretion of the trial court." State v. VanDerHeyden, 136 N.H. 277, 283 (1992) (quotation omitted).
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." N.H. R. Ev. 401. As is relevant to this case, we have observed that in "a sexual assault case with no eyewitnesses other than the complainant and the defendant[,] the complainant's testimony, and thus her credibility, is crucial." State v. Kornbrekke, 156 N.H. 821, 825- 26 (2008) (holding that trial court erred in precluding defendant from cross- examining victim regarding a prior false accusation of sexual assault). The defendant first contends that Wilkins' testimony was irrelevant because credibility determinations are reserved for the jury, and therefore a witness may not opine on another witness's credibility. See State v. Racette,
175 N.H. 132, 135 (2022); State v. Lopez, 156 N.H. 416, 423-24 (2007).
"[A]lthough witnesses may give lay opinion testimony on a variety of topics, they are not permitted to give lay opinion testimony regarding the credibility of another witness." Racette, 175 N.H. at 135; see also Lopez, 156 N.H. at 423-24
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(setting forth "a broad prohibition on questions requiring a witness to comment upon the credibility of other witnesses"). This prohibition precludes such testimony because it "is not probative in that it requires a witness to testify to things outside of her or his knowledge," Lopez, 156 N.H. at 423, and because it invades "the province and obligation of the jury alone to determine the credibility of witnesses," Racette, 175 N.H. at 135.
"[T]he prohibition on opinion testimony applies both to testimony that comments on credibility explicitly, as well as testimony that comments on credibility indirectly." State v. McDonald, 163 N.H. 115, 123 (2011). Thus,
"testimony regarding a sexual assault complainant's specific behavior is inadmissible if its purpose is to prove that abuse occurred or if an expert testifies that the particular complainant's behaviors are consistent with those of a person who has been sexually abused." State v. Marden, 172 N.H. 258, 263 (2019). This type of testimony "impermissibly bolsters the complainant's credibility." Id.
According to the defendant, Wilkins impermissibly bolstered the victim's credibility by conveying her own belief in the victim's disclosure. He claims that she conveyed this belief by: (1) testifying that she referred the victim to trauma services due to the disclosure; and (2) characterizing the alleged sexual assault as the victim's "trauma history."
We first address the defendant's argument that Wilkins effectively credited the victim's disclosure by testifying about her decision to make the referrals. In contrast to the defendant's contention, we have repeatedly held that testimony about a professional action taken in response to a statement does not indicate any personal belief in that statement. For example, in State
v. Kulas, we considered an attorney's testimony that upon learning of the victim's sexual assault while assisting the victim with a restraining order, the attorney had asked the police to investigate "a possible rape." State v. Kulas,
145 N.H. 246, 247-49 (2000). We held that the attorney's testimony "neither explicitly nor implicitly offered an opinion as to the victim's credibility." Id. at
248. We explained that "[a]t best, the jury could infer that the victim's attorney concluded that if the facts were as the victim related, there were grounds to report the 'possible rape' . . . . But that does not imbue her testimony with an aura of importance, or any sense of enhanced believability." Id. at 249 (quotation and citation omitted).
Similarly, in State v. Fleetwood, we held that a medical examiner did not improperly opine on the truth of the defendant's confession when the examiner said the confession was the "most compelling factor" supporting his determination that the defendant's baby had been smothered to death. State v. Fleetwood, 149 N.H. 396, 408-09 (2003). We reasoned that examiners often rely on case histories to reach conclusions on the manner of death, and
"nothing prevented the examiner from testifying that he relied upon her
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confession in determining the cause of death." Id. at 409. Finally, in State v. Morrill, a Division for Children, Youth and Families (DCYF) caseworker testified that DCYF had closed its abuse investigation into the defendant after the child victim recanted her assault allegations. State v. Morrill, 151 N.H. 331, 333 (2004). We concluded that the caseworker's "testimony could not have misled a rational juror into drawing a conclusion as to what may have been her personal belief." Id. at 334.
Wilkins' testimony about her referrals fits squarely within our prior holdings. Wilkins testified that after the victim "shared her trauma experience," she referred the victim "to community resources, counseling through our office, as well as doula services and other care coordination through the hospital in which she delivered as well as our practice." The fact that Wilkins made these referrals following the victim's disclosure "could not have misled a rational juror" that the doctor was offering a personal belief in the disclosure. See id. Rather, a rational juror would understand that doctors often operate on general assumptions about patients' candor while discharging their professional obligation to provide care. Cf. Kulas, 145 N.H. at 247, 249 (concluding that an attorney's contact with police did not imply that she personally believed her client's assault allegation); State v. Long, 975 A.2d 660, 672-73 (Conn. 2009) (explaining that no evidence supported prosecutor's assertion that doctor who examined sexual assault victim first "made a preliminary determination regarding the credibility of her complaint," and that doctor's "decision to conduct an examination" was not necessarily "contingent on his own personal view of the veracity of the patient's complaint"). The defendant's argument that Wilkins' use of the term "trauma history"
indicated that she credited the victim's allegations is also unavailing. The defendant points to Marden, in which we assessed whether the trial court erred by ruling that defense counsel's failure to object to an expert witness's testimony regarding the victim's "symptoms of significance" constituted ineffective assistance of counsel. See Marden, 172 N.H. at 262-65. In that case, we determined that the expert witness, a doctor, had "impermissibly bolster[ed] the [victim's] credibility" by testifying that the victim's low appetite, poor concentration, and other symptoms following the alleged sexual assault were "symptoms of significance." Id. at 261, 263-65. Importantly, our conclusion in Marden turned on the fact that the doctor in that case was testifying as an expert on child abuse. Id. at 260, 265. We reasoned that the only "discernible purpose" for recognizing the doctor as an expert was "to invite the jury to infer" that she had formed the expert opinion that the victim had suffered sexual abuse, based at least in part on the victim's "symptoms of significance." Id. at 265.
Here, on the other hand, Wilkins was not qualified as an expert and testified to her percipient knowledge about her care for the victim. Further, Wilkins used the label "trauma history" solely as shorthand for the victim's
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self-reported sexual assault itself. Unlike the doctor's testimony about the victim's "symptoms of significance" in Marden, Wilkins' use of the term "trauma history" did not describe any symptoms or behaviors that she had observed and assessed. See id. at 261, 265. Thus, the challenged testimony in this case differs significantly from the medical testimony we determined to be impermissible in Marden. See id. at 265. Based upon the record before us, we conclude that Wilkins did not impermissibly attest to the truth of the victim's disclosure.
The defendant next contends that the trial court erred in admitting the victim's disclosure to Wilkins because this disclosure "also was not relevant as a prior consistent statement." He argues that the disclosure did not meet the requirements for admitting a prior consistent statement under New Hampshire Rule of Evidence 801(d)(1)(B) or state common law. See State v. McSheehan,
137 N.H 180, 183 (1993) (explaining that under New Hampshire Rule of Evidence 801(d)(1)(B), prior statements "consistent with the witness's in-court testimony . . . are not hearsay and may be introduced as substantive evidence"
if offered to rebut, inter alia, a charge of recent fabrication); State v. White, 159 N.H. 76, 79 (2009) (explaining that in limited circumstances, the common law allows the admission of prior consistent statements for rehabilitation after a witness has been impeached).
The State counters that any argument that the victim's disclosure was inadmissible as a prior consistent statement is not preserved for our review because the defendant raises it for the first time on appeal. The State observes that at trial, "the defendant only objected to the testimony's relevance, expressly disclaimed a hearsay objection . . . and did not argue that this testimony was improper under the common law doctrine of prior consistent statements."
"Generally, we do not consider issues raised on appeal that were not presented in the trial court." State v. Plantamuro, 171 N.H. 253, 258 (2018).
"The defendant, as the appealing party, bears the burden of proving that he preserved his appellate arguments." State v. Leroux, 175 N.H. 204, 208 (2022).
"[T]o preserve an issue for appellate review, a party must make a specific and contemporaneous objection during trial." Id. at 209. "This requirement affords the [trial] court an opportunity to correct any error it may have made and is grounded in common sense and judicial economy." Id. Nonetheless,
"[p]reservation is a limitation on the parties to an appeal, not the reviewing court; thus we have discretion to waive our preservation requirement." State v. Batista-Salva, 171 N.H. 818, 823 (2019).
"One factor we consider when deciding to exercise this discretion is whether the failure to raise the argument to the trial court results in an insufficiently developed factual or legal record to guide our analysis." Id. We have waived our preservation requirement when resolving the issue required "no
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further factual development." Petition of Retired Keene Sch. Teachers, 177 N.H. 29, 36 (2024), 2024 N.H. 55, ¶17. Here, the record before us is sufficiently developed to enable this court to decide the issue and, accordingly, we exercise our discretion to address the merits of the defendant's argument. In addressing the defendant's objection to the victim's disclosure, the trial court could have properly found that the disclosure was admissible under the hearsay exception for statements made for medical treatment or diagnosis. See N.H. R. Ev. 803(4). Our inquiry for a statement's admissibility under this hearsay exception considers three factors. See State v. Roberts, 136 N.H. 731, 740 (1993). First, a "court must find . . . that the declarant intended to make the statements to obtain a medical diagnosis or treatment." Id. Second, "the statements must describe medical history, or symptoms, pain, sensations, or their cause or source to an extent 'reasonably pertinent to diagnosis or treatment.'" Id. at 741 (quoting N.H. R. Ev. 803(4)). Third, "[t]he final test under Rule 803(4) is whether circumstances indicate that the statements are trustworthy." Id. at 743.
Here, Wilkins testified that the victim made the disclosure "freely and at her own timing" during a routine obstetric appointment, not in response to any question from Wilkins. See id. at 741 (analyzing first factor, and stating, "[O]ne can infer that a person who voluntarily visits a doctor intends to obtain medical attention."). The disclosure concerned the cause of her pregnancy. See id. at 741-43 (analyzing second factor). Because the victim's mental health concerns made her pregnancy "high risk," the disclosure also affected her prenatal treatment. See id. at 741-42 (observing that "[c]ourts have admitted . . . statements [that] are medically necessary for treatment or diagnosis of sexual abuse and other psychiatric or emotional disorders"). Finally, the victim's established relationship with Wilkins, her prenatal medical provider, reinforced the disclosure's trustworthiness. See id. at 738 (concluding that witness's
"open and honest, professional relationship" with mental health providers supported the trustworthiness of his statements); State v. Bader, 148 N.H. 265, 276 (2002) (explaining that victim's preexisting relationship with family physician indicated her statement's trustworthiness).
Indeed, courts routinely admit victims' disclosures of sexual assault to medical personnel under this rule in the context of disputed sexual assault allegations. See, e.g., State v. Munroe, 161 N.H. 618, 622-23, 628 (2011); State v. Letendre, 161 N.H. 370, 371-72, 375-76 (2011). The court could thus have ruled, within its discretion, that New Hampshire Rule of Evidence 803(4) supplied a proper basis to admit Wilkins' testimony regarding the victim's disclosure.
We also understand the defendant's argument as suggesting that the victim's disclosure falls below the general standard of relevance under New Hampshire Rule of Evidence 401 because, when Wilkins testified, the
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defendant had not sufficiently attacked the victim's credibility. We have recognized that in a sexual assault case where the victim and defendant are the only witnesses to the assault, evidence bearing on the victim's credibility "is crucial." See Kornbrekke, 156 N.H. at 825-26. Here, only the victim and defendant witnessed the assaults, and the defendant denied assaulting her. Thus, as the State argued at trial and contends on appeal, the victim's credibility was a fact of consequence. See N.H. R. Ev. 401; Kornbrekke, 156 N.H. at 825-26. Accordingly, the trial court did not unsustainably exercise its discretion by finding that her disclosure to Wilkins was relevant. We conclude that the trial court acted within its discretion in overruling the defendant's objection to Wilkins' testimony. In addition to finding no error, we further conclude that the probative value of this evidence was not substantially outweighed by any danger of unfair prejudice to the defendant's case. See N.H. R. Ev. 403.
Affirmed.
MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ.,
concurred.
Timothy A. Gudas, Clerk