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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-southern judicial district
No. 2018-0096


                       THE STATE OF NEW HAMPSHIRE

                                            v.

                             JONATHAN J. MARDEN

                           Argued: January 17, 2019
                         Opinion Issued: June 14, 2019

      Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief and orally), for the State.


      Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown on
the brief and orally), for the defendant.

       BASSETT, J. The State appeals an order of the Superior Court
(Mangones, J.) setting aside the jury’s guilty verdict against the defendant,
Jonathan J. Marden, on one charge of aggravated felonious sexual assault.
See RSA 632-A:2, I(m) (2016). The trial court concluded that the defendant’s
trial counsel, who is not his appellate counsel, rendered ineffective assistance
of counsel when he failed to object to the testimony of the State’s expert
witness, Dr. Gwendolyn Gladstone, a physician specializing in the care of
abused or neglected children. The trial court found that, even though
Gladstone did not explicitly opine that the complainant had been sexually
assaulted, her testimony ran afoul of our general prohibition against offering
expert testimony “to prove that a particular child has been sexually abused.”
State v. Cressey, 137 N.H. 402, 412 (1993). We affirm.

       The record establishes the following facts. The complainant and the
defendant had been in a personal relationship from about February to May
2016. The complainant alleged that on October 26, 2016, the defendant
sexually assaulted her in the defendant’s vehicle in the parking garage outside
of her workplace. After being contacted by mall security, the complainant’s
supervisor and a security official went to the parking garage and saw two
people that “appeared to be having sex” in the passenger seat of one of the
cars. The supervisor knocked on the car window; the defendant then moved
away from the complainant to the driver’s seat. At that point, the supervisor
recognized the complainant. The defendant was ordered to leave the
property. The complainant was visibly upset when she returned to the
store. She told her supervisor that she had been raped and expressed concern
that she would lose her job. The defendant contends that the sexual relations
were consensual, whereas the complainant asserts that they were not. At the
time of the incident, the complainant was 17 years old and the defendant was
20 years old.

       At trial, the State called Gladstone as a witness as part of its case-in-
chief. Gladstone is a board-certified physician with a “sub specialty board
certification in child abuse.” At the time of trial, Gladstone was an
administrator of the Child Advocacy and Protection Program at Dartmouth-
Hitchcock. Her duties included reviewing policies related to the medical care of
children “where there’s a question of . . . maltreatment,” and advising “various
entities,” including New Hampshire’s child protection system. Before she was
an administrator, Gladstone had a pediatric practice and specialized in caring
for children suspected of being abused or neglected. Gladstone testified that
she belongs to the American Professional Society on the Abuse of Children, the
American Academy of Pediatrics Council on Child Abuse and Neglect, the Ray
Helfer Society (an international society of physicians who deal with child abuse
and neglect), the International Society on the Abuse of Children, and the New
Hampshire Attorney General’s Task Force on Child Abuse and Neglect.
Gladstone informed the jury that she had testified “[s]everal dozen times” as an
expert “[p]rincipally in the area of child abuse.” The State moved to qualify
Gladstone as an expert. The defendant did not object. The trial court granted
the motion, informing the jury that, because Gladstone was qualified as an
expert, “she may render an opinion in this matter.”

       Gladstone proceeded to tell the jury that, following the October incident,
the complainant’s primary care provider had referred the complainant to the
Child Advocacy and Protection Program at Dartmouth-Hitchcock, with which
she was then clinically affiliated. Gladstone testified that she medically
evaluated the complainant three weeks after the alleged assault. The purpose
of the evaluation was to review the complainant’s medical care, including,


                                        2
“what medication she had been given, how she was doing both physically and
emotionally[,] . . . [and to determine] whether she had been connected with a
counselor.” Gladstone testified that the complainant told her that “[s]he was
having some vaginal irritation and she was concerned that that might indicate
that she had acquired an infection.” The State then asked: “What other
symptoms of significance did she mention to you during your conversation with
her?” Defense counsel did not object to the question. Gladstone responded:

              She had some physical symptoms and she had some
      emotional symptoms. Physical symptoms included the genital
      irritation that I talked about. She also had difficulty with her
      appetite and had lost weight. She had difficulty sleeping. She felt
      sad and was crying. She described having less ability to go out of
      her house to play outside with her brother, to go to school, to
      socialize.

             She’d had some preoccupation with thoughts that had made
      it hard for her to concentrate at school. She had some intrusive
      images of the assault. And as a consequence she couldn’t
      concentrate on her school work and had gotten some bad grades,
      whereas previously she had been on the honor roll.

            ....

            She told me that her symptoms were getting better, but that
      they were still present and this was at more than three weeks after
      the assault.

         ....

             Based on the information . . . gathered from [the
      complainant], I recommended that she be tested for sexual
      infections. I recommended that she be tested for pregnancy
      because the first test had been done too soon after the assault to
      be sure that that hadn’t happened. I recommended that she see a
      counselor, because of the persistence of her symptoms, despite
      several weeks having passed.

       The jury convicted the defendant of aggravated felonious sexual assault.
See RSA 632-A:2, I(m). Shortly thereafter, the defendant retained new counsel.
The defendant’s new counsel moved to set aside the verdict on the ground that
the defendant’s trial counsel rendered ineffective assistance because he had
failed to object to Gladstone’s testimony regarding the complainant’s
“symptoms of significance.” The defendant argued that, under Cressey,
Gladstone, as “an esteemed expert in the field of child sexual assault,” should
not have been allowed to testify “about ‘symptoms of significance’ regarding the


                                       3
alleged [complainant’s] emotional and mental state three weeks following the
alleged assault.”

       Following an evidentiary hearing, the trial court ruled that the
defendant’s trial counsel’s representation was constitutionally deficient. The
trial court set aside the verdict and granted a new trial. The State
unsuccessfully moved for reconsideration. This appeal followed.

       On appeal, the State argues that the trial court erred when it ruled that
defense counsel’s failure to object to Gladstone’s testimony regarding the
complainant’s “symptoms of significance” constituted ineffective assistance of
counsel. The defendant counters that the trial court ruled correctly because
Gladstone “improperly linked the behavioral and emotional symptoms specific
to the complainant in this case to the sexual assault at issue” and counsel’s
failure to object prejudiced the outcome of the case. We agree with the
defendant.

       The State and Federal Constitutions guarantee a criminal defendant
reasonably competent assistance of counsel. N.H. CONST. pt. I, art. 15; U.S.
CONST. amend. VI. To demonstrate a violation of this right, the defendant
must show that his counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a
just result. State v. Eschenbrenner, 164 N.H. 532, 539 (2013). We first
examine the constitutional competency of counsel’s performance under the
State Constitution, and rely upon federal case law only to aid in our analysis.
Id.; State v. Ball, 124 N.H. 226, 231-33 (1983).

       To prevail upon a claim of ineffective assistance of counsel, the defendant
must demonstrate, first, that counsel’s representation was constitutionally
deficient and, second, that counsel’s deficient performance actually prejudiced
the outcome of the case. State v. Collins, 166 N.H. 210, 212 (2014). A failure
to establish either prong requires a finding that counsel’s performance was not
constitutionally defective. Id.

       To satisfy the first prong of the test, the performance prong, the
defendant must show that counsel’s representation fell below an objective
standard of reasonableness. Id.; Strickland v. Washington; 466 U.S. 668, 688
(1984). To meet this prong of the test, the defendant must show that counsel
made such egregious errors that he failed to function as the counsel the State
Constitution guarantees. Collins, 166 N.H. at 212. We afford a high degree of
deference to the strategic decisions of trial counsel, bearing in mind the
limitless variety of strategic and tactical decisions that counsel must make. Id.
at 212-13. The defendant must overcome the presumption that trial counsel
reasonably adopted his trial strategy. Id. at 213. Accordingly, a fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of


                                        4
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Id.

       To satisfy the second prong, the defendant must demonstrate actual
prejudice by showing that there is a reasonable probability that the result of the
proceeding would have been different had competent legal representation been
provided. State v. Wilbur, 171 N.H. 445, 449 (2018). A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id. The
prejudice analysis considers the totality of the evidence presented at trial. Id.

      Both the performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact. Collins, 166 N.H. at 213.
Therefore, we will not disturb the trial court’s factual findings unless they are
unsupported by the evidence or erroneous as a matter of law, and we review
the ultimate determination of whether each prong is met de novo. Id. Notably,
here, because the judge who ruled on the motion to set aside the guilty verdict
also presided at trial, the trial court is in a better position than we are to
assess whether defense counsel’s performance prejudiced the defendant. See
State v. Whittaker, 158 N.H. 762, 775 (2009).

      The trial court relied upon Cressey and its progeny when it determined
that defense counsel rendered ineffective assistance. See Collins, 166 N.H. at
214-15 (citing cases); State v. Luce, 137 N.H. 419, 421 (1993); Cressey, 137
N.H. at 407, 412. In Cressey, we held that expert testimony may not be offered
to prove that a particular child has been sexually abused. Cressey, 137 N.H. at
412. In later cases, we clarified that 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. MacRae, 141 N.H. 106, 109 (1996).

       Such testimony is inadmissible, in part, because it impermissibly
bolsters the complainant’s credibility. See id. at 110. An expert testifying that
the particular complainant’s behaviors are consistent with those of a sexual
abuse victim, in effect, renders “an opinion on the accuracy of the victim’s
recitation of [the] facts.” Id. (quotation omitted). Such an opinion is improper
because “that determination is solely within the province of the jury.” Collins,
166 N.H. at 214 (quotation omitted).

       The reliability of evidence is of special concern when offered through
expert testimony because of the risk that the jury will disproportionately defer
to the expert’s statements because the subject area is beyond the common
knowledge of the average person, and because the expert’s opinion is given
with an air of authority. Cressey, 137 N.H. at 405. We have held that a
defense counsel’s failure to object to expert testimony that contravenes Cressey
constitutes ineffective assistance of counsel. Collins, 166 N.H. at 214-15.


                                        5
       Our prior cases on the subject have involved expert witnesses who
explicitly rendered inadmissible opinions. For instance, in Cressey, the expert
opined that the symptoms exhibited by the child victims were consistent with
those of a sexually abused child. Cressey, 137 N.H. at 404. Similarly, in
Collins, the expert testified that the complainant’s behaviors “fit perfectly” with
those of a child sexual abuse victim and that she suffered from post-traumatic
stress disorder caused by alleged sexual abuse. Collins, 166 N.H. at 214-15
(quotation omitted).

       In the instant case, the trial court acknowledged that Gladstone, unlike
the experts in the Cressey-line of cases, did not “explicitly draw a line between
[the complainant’s] ‘symptoms of significance’ and sexual abuse.” However, the
court concluded that, because the jury knew that Gladstone was an expert on
child abuse and she had recounted the complainant’s reported symptoms of
significance, the jury could have inferred that she made that link.

       On appeal, the State argues that the defendant’s trial counsel’s failure to
object did not constitute ineffective assistance of counsel because Gladstone’s
testimony was “very different” from testimony we have previously found
inadmissible under Cressey and its progeny. See Cressey, 137 N.H. at 407,
412. The State asserts that, in effect, Gladstone merely testified as a fact
witness — she “repeat[ed] the symptoms that the [complainant] had described
to her” and “did not opine on their cause[] [or] describe any symptoms of a child
who had been sexually assaulted.” Such testimony, the State argues, was “not
offered to show that [the complainant] had signs of having been sexually
abused,” but instead was offered to rebut the defendant’s theory that the
complainant had fabricated the sexual assault so as to keep her job. The State
explains, “If the [complainant] was merely worried about losing her job, she
would not have been manifesting such symptoms three weeks later.” Thus, the
State argues, Gladstone’s testimony — that three weeks after the assault, the
complainant reported certain symptoms — did not violate Cressey, and defense
counsel did not render ineffective assistance by failing to object to it.

       We might agree with the State had the trial court not recognized
Gladstone as an expert and not informed the jury that she could render an
expert opinion. However, because the trial court recognized Gladstone as an
expert and informed the jury that she could offer an expert opinion, even if she
did not explicitly express an opinion that violates Cressey, the jury could have
inferred that, in fact, she did so. Although Gladstone did not expressly opine
that the complainant’s symptoms were typical of those of child sexual abuse
victims, she testified as to the complainant’s reported “symptoms of
significance,” and the jury could have inferred from that testimony that she, as
an expert in the care of abused and neglected children, found those symptoms
significant to child sexual abuse. See id. at 405 (observing that the jury may
attach extra importance to an expert’s opinion simply because it is given with
the air of authority that commonly accompanies an expert’s testimony).


                                         6
      Accordingly, we are not persuaded by the State’s argument that
Gladstone’s “testimony was not offered to suggest that [the complainant] had
been abused.” There is no discernible purpose for Gladstone to have been
recognized as an expert other than to invite the jury to infer that she had
formed the expert opinion that the defendant had assaulted the complainant.
Defense counsel’s failure to object to Gladstone’s testimony on Cressey grounds
cannot reasonably have been said to have been part of a trial strategy. See
Collins, 166 N.H. at 212. Therefore, we conclude that trial counsel’s
performance was constitutionally deficient.

       We turn now to the prejudice prong of the ineffective assistance of
counsel claim to determine whether there is a reasonable probability that the
result of the proceeding would have been different had competent legal
representation been provided. Wilbur, 171 N.H. at 449. The State argues that,
even if trial counsel’s conduct fell “below the range of reasonable professional
assistance” when he failed to object to Gladstone’s testimony, there was no
prejudice. The State asserts that Gladstone’s testimony was merely cumulative
of the testimony by the complainant’s co-workers about the complainant’s
emotional state immediately following the alleged assault. The State contends
that “Gladstone’s testimony simply established that the [complainant] was still
having an emotional reaction to the event.” We disagree. Gladstone’s
testimony and the inferences that could be drawn from it — that she believed
that the complainant had been sexually assaulted — were not cumulative of
the other demeanor evidence because Gladstone, unlike the other trial
witnesses, was recognized as an expert.

       The State further argues that Gladstone’s testimony did not affect the
outcome of the case because “there was no link made between the symptoms
the victim reported and sexual abuse.” However, as in most sexual assault
cases, the State’s case largely turned on the jury’s assessment of the
complainant. Collins, 166 N.H. at 214. Here, as previously discussed, the jury
could have inferred from Gladstone’s testimony that such a link was made.

      In light of our decision, we need not address the parties’ arguments
regarding whether defense counsel’s decision not to file a pretrial notice
regarding the introduction of evidence pertaining to the complainant’s other
sexual activity also constituted ineffective assistance of counsel. Because we
determine that defense counsel’s performance was ineffective under the State
Constitution, we need not consider it under the Federal Constitution. See Ball,
124 N.H. at 231-33.

                                                 Affirmed.

     LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.



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