State of New Hampshire v. Madison T. West

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0448, State of New Hampshire v. Madison T. West, the court on August 18, 2026, 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, Madison T. West, appeals his convictions on three counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I(l) (2016), following a jury trial in Superior Court (Will, J.). On appeal, the defendant argues that the trial court erred when it: (1) allowed the State to impeach its own witness with prior inconsistent statements where the witness otherwise offered no substantive or relevant testimony; (2) admitted a child declarant's statements to a medical provider under the hearsay exception for statements made for the purpose of medical diagnosis or treatment, see N.H. R. Ev. 803(4); and (3) excluded certain testimony offered by the defendant's expert witness. We affirm.

The jury could have found the following facts. In August 2020, J.C. and her friend R.M. were both four years old. R.M.'s mother, who was divorced from R.M.'s father, was dating the defendant. The defendant lived in a home in Strafford with R.M., her mother, and R.M.'s older sister. One afternoon, J.C.'s father dropped her off at R.M.'s house for a playdate. R.M.'s mother was gone for part of the afternoon, during which time the defendant was at the house with J.C., R.M., and R.M.'s older sister. The defendant told J.C. and R.M. that they were going to a "fun party" and led the girls into the walk-in closet in the master bedroom. Inside the closet, the defendant "made [them] put [their] mouths" on the defendant's penis. J.C. did not want to put her mouth on the defendant's penis, and the defendant called her a "[p]arty pooper" and told her she "ha[d] to do it." The defendant also performed cunnilingus on J.C.¹The defendant told J.C. and R.M. not to tell anyone what had happened or else "[h]e would get taken away."

R.M.'s mother returned to the house and found the defendant, J.C., R.M., and R.M.'s older sister in the kitchen. Later that evening, the defendant

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brought J.C. back to her house. After the defendant left, J.C. told her parents about the incident with the defendant and R.M. J.C.'s parents notified the police and took her to the emergency room the following morning. Later, J.C. and R.M. each participated in two interviews with the Child Advocacy Center (CAC). J.C. was also examined by Dr. Amy Roy, a pediatrician with the Child Advocacy and Protection Program.

Both J.C. and R.M. testified at trial, at which point each girl was eight years old. J.C. testified about the events that transpired in the closet, while R.M. testified that she could not remember or otherwise did not know about the incident with the defendant, although she recalled having playdates with J.C. and recalled her mother dating a man with the defendant's name. Following a four-day trial, the jury found the defendant guilty of two counts of AFSA involving J.C., one for engaging in fellatio and one for engaging in cunnilingus. The jury also found the defendant guilty of one count of AFSA involving R.M. for engaging in fellatio. This appeal followed. Each of the defendant's arguments on appeal challenges the trial court's admission or exclusion of certain evidence. 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. Munroe, 173 N.H. 469, 479 (2020). 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 determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. State v. Roy, 174 N.H. 622, 627 (2021). Our task is not to determine whether we would have found differently, but is only to determine whether a reasonable person could have reached the same decision as the trial court on the basis of the evidence before it. Id. The defendant first argues that the trial court erred when it permitted the State to impeach its own witness, R.M., with her prior inconsistent statements. After J.C. reported the assaults to her parents, R.M. later disclosed to her biological father that the defendant had assaulted her and J.C. R.M. also stated during an interview with the CAC that her mother "was really angry" about J.C. accusing the defendant of the assaults. At trial, the State used these prior statements to impeach R.M. after R.M. testified that she either did not remember making these statements or otherwise did not know why her mother was angry, as described in her CAC interview. The defendant contends that, because R.M. did not offer substantive testimony that was instrumental to building the State's case, the State could not impeach her with her prior inconsistent statements. See State v. Soldi, 145 N.H. 571, 574 (2000) ("Where the State has called a witness whose corroborating testimony is instrumental to constructing the State's case, the State has the right to question the witness, and to attempt to impeach her, about those aspects of her testimony that

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conflict with the State's account of the same events." (quotation and brackets omitted)).

The State counters that this argument was never presented to the trial court and therefore is not preserved for our review. Generally, we do not consider issues raised on appeal that were not presented in the trial court. State v. Batista-Salva, 171 N.H. 818, 822 (2019). This preservation requirement, expressed in both our case law and Supreme Court Rule 16(3)(b), reflects the general policy that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court. Id. The defendant, as the appealing party, bears the burden of demonstrating that he specifically raised the arguments articulated in his appellate brief before the trial court. Id.

The defendant contends that his substantive testimony argument was preserved at trial by: (1) his objection during R.M.'s testimony to the admission of her prior statements from her CAC interview; and (2) his objection during R.M.'s father's testimony to the admission of statements that R.M. made to her father. In both instances, however, the defendant objected to the State's attempted impeachment of R.M. on the ground that the State could not impeach R.M.'s answers of "I don't know" and "I don't remember" with prior inconsistent statements in order to demonstrate that R.M. did, at one point, know or remember the events inquired about by the State. In both instances, the court overruled the defendant's objection, concluding that R.M.'s answers of "I don't know" were effectively denials that the State could impeach with her prior statements. The defendant never argued before the trial court, as he does on appeal, that the State could not impeach R.M. with her prior inconsistent statements because R.M.'s testimony "offered no relevant substantive evidence." Thus, the trial court did not have the opportunity to consider the argument the defendant raises on appeal.²We therefore conclude that this argument is unpreserved. See id. at 822-23.

We further conclude that the trial court did not commit plain error when it permitted the State to impeach R.M. with her prior statements. "For us to find plain error: (1) there must be error; (2) the error must be plain; and (3) the

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error must affect substantial rights." Id. at 824. "If all three of these conditions are met, we may then exercise our discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. Even if we assume without deciding that: (1) an error occurred; and (2) the error was plain, we conclude the defendant has not satisfied the third prong because he has not demonstrated that the error "actually affected the outcome of the proceeding." State v. Pinault, 168 N.H. 28, 34 (2015); Batista-Salva, 171 N.H. at 824 (stating defendant has burden to show plain error). The trial court repeatedly instructed the jury to consider R.M.'s prior statements only for the

"limited purpose" of assessing R.M.'s credibility, not the substance of the statements themselves. Cf. State v. Dewitt, 143 N.H. 24, 28 (1998) (stating that trial court's limiting instructions that jury could consider complainant's prior consistent statements for limited purpose of evaluating complainant's credibility, not for truth of statements themselves, "adequately protected the defendant from unfair prejudice"). Juries are presumed to follow instructions. State v. Cooper, 168 N.H. 161, 171 (2015). We conclude that the defendant has not demonstrated plain error.

The defendant next argues that the court erred by admitting J.C.'s statements to Dr. Roy as statements made for the purpose of obtaining medical diagnosis or treatment. After J.C. disclosed the assaults to her parents, Dr. Roy examined J.C. When asked if she knew why she was at the doctor's that day, J.C. told Dr. Roy that "[h]e made me put my mouth on the part he goes pee with." Dr. Roy then asked if there was anything J.C. was worried about, and J.C. responded that "she was afraid it was making her sick because she kept sneezing."

The defendant argues on appeal, as he did before the trial court, that J.C.'s statements to Dr. Roy were inadmissible hearsay. Hearsay is generally defined as an out-of-court statement offered in court to prove the truth of the matter asserted. Munroe, 173 N.H. at 479; see N.H. R. Ev. 801(c). Hearsay is generally inadmissible, subject to certain well-delineated exceptions. Munroe,

173 N.H. at 479; see N.H. R. Ev. 802. One such exception, entitled "Statement Made for Medical Diagnosis or Treatment," applies to a statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment;

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause; and

(C) the court affirmatively finds w[as] made under circumstances indicating [its] trustworthiness.

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N.H. R. Ev. 803(4). The statement must satisfy all three parts of this test to be admissible under Rule 803(4). Munroe, 173 N.H. at 479.

To satisfy the first prong, a court must find that the declarant intended to make the statements to obtain a medical diagnosis or treatment. State v. Lynch, 169 N.H. 689, 702 (2017). "[W]e require extra care in determining the declarant's intent when the declarant is a child" because "it is difficult for a court to discover whether a young child completely understands the purpose for which information is being obtained from her." Id. (quotations omitted). Thus, the proponent of Rule 803(4) statements must establish that the child had the requisite intent "by showing that the child made the statements understanding that they would further the diagnosis and possible treatment of her condition." Id. (quotation omitted). Although the declarant's intent may be established by circumstantial evidence, we "will not assume, absent a record affirmatively establishing the proposition, that a young child possessed a sufficient treatment motive to allow her out-of-court statements to a physician to be introduced at trial." Id. (quotation omitted).

The defendant argues that the State presented insufficient evidence that J.C. understood that her statements to Dr. Roy were made for the purpose of obtaining medical diagnosis or treatment. We disagree. Dr. Roy testified that she introduced herself to J.C. as a doctor for children and that she did not recall J.C. expressing any confusion about her role as a doctor. See id. at 703- 04 (concluding that under the circumstances, including that doctor explained to victim she was doctor for children and victim appeared to understand, it could "reasonably be inferred that, notwithstanding the victim's young age,"

victim understood her statements to doctor had purpose of obtaining medical help). The meeting occurred in an exam room "like any other exam room,"

which contained medical equipment such as a blood pressure cuff, an otoscope, jars of tongue depressors, and johnnies. See State v. Munroe, 161 N.H. 618, 628 (2011) (determining that victim's statements were made for the purpose of medical treatment or diagnosis, in part, because the examination was conducted "in a medical office, with all the equipment that a young child would recognize as indicative of a doctor's visit"). Moreover, J.C.'s response to Dr. Roy's open-ended question, that J.C. was concerned that the incident with the defendant "was making her sick because she kept sneezing," indicates that J.C. understood the purpose of her visit with Dr. Roy to be medical in nature. Cf. Lynch, 169 N.H. at 705 ("[T]he fact that the victim responded to [the doctor's] open-ended, non-leading question with information relating solely to physical injuries and incidents supports the conclusion that the victim's response was reliable.").

Based upon this evidence, we disagree with the defendant that this case is analogous to State v. Wade, 136 N.H. 750 (1993). There, a five-year-old child revealed to two doctors that she had been sexually assaulted. Wade, 136 N.H. at 752. The trial court admitted the child's statements under Rule 803(4). Id.

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at 756. We reversed because, "although the doctors testified about their states of mind and intentions in speaking with and examining the child, nothing in the record shed any light on the child's intentions in making the statements."

Munroe, 161 N.H. at 627 (explaining reasoning in Wade); Wade, 136 N.H. at 756-57. Unlike in Wade, however, the circumstances surrounding J.C.'s statements to Dr. Roy shed light on the motive of the child declarant. See Wade, 136 N.H. at 756. Based on this evidence, it was not clearly unreasonable or untenable for the trial court to conclude that J.C. made her statements to Dr. Roy for the purpose of obtaining medical diagnosis or treatment, and therefore the court did not unsustainably exercise its discretion with respect to the first prong.

Next, to satisfy the second prong of the test, the statements must describe medical history, or symptoms, pain, sensations, or their cause or source to an extent reasonably pertinent to diagnosis or treatment. Lynch, 169 N.H. at 702. The defendant does not argue that J.C.'s statements failed to satisfy this prong, and we accordingly do not address it. To satisfy the third prong, the court must find that the circumstances surrounding the statements support their trustworthiness. Id. The defendant contends that the State failed to establish that J.C.'s statements to Dr. Roy were trustworthy. Based on the evidence described above, we conclude that the trial court did not unsustainably exercise its discretion when it determined that the State had proved that the circumstances surrounding J.C.'s statements to Dr. Roy sufficiently established the statements' trustworthiness. See N.H. R. Ev. 803(4)(C); Lynch, 169 N.H. at 704-05 (affirming trial court's finding that child declarant's statements to doctor were trustworthy where doctor explained to child that she was doctor for children, doctor had previously seen child for separate medical issue, child appeared to understand she was talking to doctor, and child responded to open-ended questions "with information relating solely to physical injuries and incidents"). Accordingly, the trial court did not err when it allowed J.C.'s statements to Dr. Roy into evidence.

Lastly, we address the defendant's argument that the trial court erred when it sustained the State's objection to a question posed by defense counsel to the defense expert, Dr. Eric Mart, who was qualified by the court as an expert in "forensic psychology and suggestibility science." On direct examination, defense counsel questioned Dr. Mart regarding the standard rules that a CAC interviewer explains to a child at the beginning of a forensic interview, including the rule that the child should not guess if he or she does not know the answer to a specific question. Defense counsel then asked Dr. Mart whether there was "anything about a child's inflection that could signal to you that they may not understand the rule about guessing." The State objected, arguing that Dr. Mart's answer would "indirectly comment[] on [J.C.'s] credibility when she took the stand" because defense counsel's question was

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"aimed at [J.C.'s] inflection when she answer[ed] her questions." The court sustained the State's objection, concluding that J.C.'s credibility was a matter for the jury to assess and that it would be improper for an expert witness to

"comment[] essentially on [J.C.'s] credibility[,] even in a generalized way."

The defendant argues this ruling was error. He contends that Dr. Mart's excluded testimony was general and not specific to J.C. He also argues that the testimony was relevant and he was prejudiced by its exclusion because "the reliability of children's statements, and the interview techniques that are designed to elicit and evaluate them, [were] squarely at issue" in the case.

"[E]xpert testimony concerning a particular child witness's veracity is inadmissible because that determination is solely within the province of the jury." State v. Collins, 166 N.H. 210, 214 (2014) (quotation omitted). The general prohibition on opinion testimony concerning another witness's credibility "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). For the reasons below, we cannot conclude that the trial court unsustainably exercised its discretion when it excluded Dr. Mart's testimony on the basis that the excluded testimony would have indirectly commented on J.C.'s credibility.

The defendant's arguments before both the judge and the jury support a finding that defense counsel sought to elicit testimony through Dr. Mart that was specific to this case, rather than "general education testimony [that] was not case-specific." State v. Raymond, 177 N.H. 459, 464 (2025), 2025 N.H. 30, ¶13. Prior to Dr. Mart's testimony, the defendant moved to dismiss all charges, arguing in part that "all of [J.C.'s] answers to the substantive questions about the alleged offense[s] were formed as questions" and "phrased as questions with the end of the word higher [in pitch]." The trial court could have reasonably interpreted defense counsel's reliance on J.C.'s inflection in her motion to dismiss as an attack on J.C.'s credibility — an attack that would likely have been reinforced through Dr. Mart's answer to the objected-to question. This interpretation is further supported by defense counsel's closing argument, which on more than one occasion referenced J.C.'s upward inflection when answering the State's questions, "much like she was asking the prosecutor if she got the answer correct."

Defense counsel's other questioning of Dr. Mart is telling, as well. Prior to the sustained objection, defense counsel asked Dr. Mart "specifically about a scenario" where a child did not disclose the abuse during an initial CAC interview, but later disclosed the abuse during a medical exam and again during a second, subsequent CAC interview, and whether Dr. Mart had any suggestibility concerns in such a scenario. This exact scenario occurred with J.C. The trial court could have reasonably interpreted this question as an attempt by defense counsel to attack J.C.'s credibility through Dr. Mart's

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testimony, rather than the solicitation of "general education testimony [that] was not case-specific." Id. at 464, 2025 N.H. 30, ¶13; see McDonald, 163 N.H. at 122-23.

Accordingly, it was not clearly unreasonable or untenable for the trial court to understand defense counsel's subsequent question to Dr. Mart regarding a child's inflection as an attempt to urge the jury to disbelieve J.C.'s testimony based on her inflection. See State v. Sargent, 148 N.H. 571, 576 (2002) ("[W]e do not allow expert psychological testimony concerning the veracity of a child's testimony about being abused."). We therefore find no error.

In conclusion, we affirm the defendant's convictions. Any issues the defendant raised in his notice of appeal but did not brief are deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

Affirmed.

DONOVAN, COUNTWAY, and GOULD, JJ., concurred; MACDONALD,

C.J., sat for oral argument but did not participate in the final vote.

Timothy A. Gudas, Clerk