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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________

Rockingham
No. 2014-0591

                        THE STATE OF NEW HAMPSHIRE

                                        v.

                                   ROLAND DOW

                          Argued: September 16, 2015
                        Opinion Issued: January 12, 2016

      Joseph A. Foster, attorney general (Heather A. Cherniske, attorney, on
the brief and orally), for the State.


      Wilson, Bush, Durkin & Keefe, P.C., of Nashua (Charles J. Keefe on the
brief and orally), for the defendant.

       CONBOY, J. The defendant, Roland Dow, appeals his convictions after a
jury trial on two counts of first degree assault, one count of second degree
assault, five counts of endangering the welfare of a child, two counts of witness
tampering, and one count of unlawful interception and disclosure of oral
communications or telecommunications. See RSA 631:1 (2007) (amended
2014); RSA 631:2 (Supp. 2012) (amended 2014); RSA 639:3 (2007); RSA 641:5
(2007); RSA 570-A:2 (Supp. 2015). On appeal, he argues that the Superior
Court (Wageling, J.) erred by: (1) admitting detailed evidence that he physically
abused his former girlfriend, Jessica Linscott; and (2) allowing the State’s
expert witness to testify regarding the effects of domestic violence on a victim.
We affirm.
I.    Background

      The pertinent facts are as follows. In September 2012, Linscott and her
three-year-old son, J.N., lived with the defendant in his home in Plaistow. The
defendant and Linscott were in a domestic relationship, but the defendant was
not the father of J.N.

      Both the defendant and Linscott repeatedly disciplined J.N. for certain
behaviors. If J.N. “had an accident or if he peed on the floor,” the defendant
made J.N. “clean it up” and would put him “in the shower and rinse him off.”
The defendant would spray water in J.N.’s face and J.N. “would fight back.”
When the defendant let go of J.N., J.N. would “flop all over the tub” and “slip
and fall and smash his head.” The defendant would then yell at J.N. and put
him back under the shower spray. Linscott testified that “this happened many
times” and each time it “continue[d] until [the defendant] decided to shut the
shower off.” Sometimes Linscott put J.N. in the shower because she felt that if
she “didn’t do it . . ., when [the defendant] would do it, it would be worse.”

      The defendant also disciplined J.N. by having him run outside and by
spanking him. Linscott spanked J.N., too, “[b]ecause [she] thought [she] had
to” and that if she did not do so, the defendant and Linscott would fight about
it and the defendant “would do it, and it’d be a lot worse.” The defendant
repeatedly told Linscott that “something was wrong” with J.N. and that he “had
a mental problem and that he must have autism.” At first Linscott did not
believe the defendant, but “the more [the defendant] told [her J.N.] was doing
things wrong, the more [she] paid attention” and “believed that something was
wrong with” J.N.

      In November 2012, J.N. began “having seizures.” On one occasion,
Linscott tried to call 911, but the defendant “ripped the phone out of [her]
hand,” telling her that she was an “idiot” because J.N. “had bruises all over
him” and if she called 911 they would be arrested for abuse. The defendant
continued to treat J.N. the “same way as if [the seizures] weren’t going on,
because he thought [J.N.] was doing them to himself.” Linscott testified that,
whenever J.N. had a seizure, the defendant “[y]ell[ed] at him, [told] him to stop
doing that, and then hit him.”

        On November 14, after J.N. had been displaying the seizure-type
behavior for three or four days, the defendant and Linscott brought him to the
emergency room at Exeter Hospital. Subsequently, J.N. was transported to
Dartmouth-Hitchcock Medical Center in Lebanon because “he had fluid in . . .
or around his brain.” At Dartmouth-Hitchcock, Linscott was questioned by
staff from the hospital and the New Hampshire Division for Children, Youth
and Families about abuse at home. She did not “say anything” because she
“didn’t want to believe” that J.N.’s injuries were caused by the defendant.
Linscott testified that a “part of [her] was scared to tell them” and “scared to


                                        2
admit that it was going on.” Linscott was also interviewed twice by the police
and denied that the defendant had physically abused her or J.N.

       Two days later, the defendant picked Linscott up at the hospital and they
left New Hampshire. J.N. remained in the hospital. Shortly thereafter, the
defendant and Linscott were arrested in Florida. At the time of her arrest,
Linscott was photographed with what appeared to be a black eye. When
interviewed by the police following her arrest, Linscott initially denied that the
defendant abused her or J.N., but later reported that she sustained the black
eye when the defendant struck her and described “things that had happened”
at the home in Plaistow.

       The defendant was charged with two counts of first degree assault
alleging that, acting in concert with or aided by Linscott, he recklessly caused
serious bodily injury to J.N., and two counts of second degree assault alleging
that, acting in concert with or aided by Linscott, he knowingly caused certain
bodily injury to J.N. He was also charged with five counts of endangering the
welfare of a child for “failing to seek medical care for J.N. while J.N. was
suffering seizures and/or other symptoms following a head injury,” two counts
of witness tampering, and one count of unlawful interception and disclosure of
oral communications or telecommunications. At trial, Linscott provided
detailed testimony regarding numerous instances in which the defendant
physically abused her and J.N. At the close of the evidence, the defendant’s
counsel argued to the jury that Linscott was lying and that any abuse suffered
by J.N. was caused by her.

     The jury acquitted the defendant of one of the second degree assault
charges, but convicted him on the remaining charges. This appeal followed.

II.   Linscott’s Testimony Regarding Her Abuse by the Defendant

      Before trial, the defendant sought to exclude, pursuant to New
Hampshire Rule of Evidence 404(b), any evidence that he threatened or abused
Linscott. The State objected, arguing that evidence of uncharged abuse of
Linscott by the defendant was relevant to explain to the jury why Linscott did
not report the abuse of J.N. and failed to disclose the abuse to the police. The
State asserted that, because J.N. would not be testifying at trial, the jury would
hear only Linscott’s testimony and, therefore, her “credibility [was] pivotal in
the State’s case against the defendant.”

       After hearing offers of proof and arguments by counsel and reviewing
transcripts and other documents submitted by the State, the trial court
determined that the defendant’s abuse of Linscott was relevant to explain her
fear of the defendant and why she participated in the alleged acts, as well as
why she lied to the police. The court further found that there was clear proof
that the defendant committed threatening and abusive acts against Linscott.


                                        3
Specifically, the court found that there was clear proof that the defendant
“pulled . . . Linscott and dragged her to the stairs,” and “then dropped her over
the stairs and struck her in the face, requiring medical treatment.” In addition,
the court found that, “[o]n approximately eight occasions, [the defendant]
strangled” Linscott and that he also “smashed her head against doors and
walls,” and “pulled out handfuls of her hair.” It further found that, at one
point, Linscott tried to call her mother and the defendant grabbed her “phone
and broke it in half.” The court found that, on one occasion, Linscott “had to
push her way past” the defendant in order to leave and that the defendant told
her “that if he ever found out she was talking with someone about their
situation, he would kill her.” Finally, the court found that the probative value
of the evidence that the defendant abused Linscott was not substantially
outweighed by its prejudice.

       The defendant argues that the court erred by allowing Linscott to testify
at trial concerning his abuse of her. He contends that admission of such
evidence violated New Hampshire Rule of Evidence 404(b).

      Rule 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show that the person acted in
      conformity therewith. It may, however, be admissible for other
      purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake or
      accident.

N.H. R. Ev. 404(b). The purpose of Rule 404(b) is to ensure that the defendant
is tried upon the merits of the crime as charged and to prevent a conviction
based upon evidence of other crimes or wrongs. State v. Beltran, 153 N.H.
643, 647 (2006).

        We review the trial court’s ruling for an unsustainable exercise of
discretion and will reverse only if the ruling was clearly untenable or
unreasonable to the prejudice of the defendant’s case. Id. Because the
defendant appeals only the court’s pretrial ruling on the admissibility of
Linscott’s testimony regarding her abuse by the defendant, and because the
defendant has not demonstrated that he renewed his objection after Linscott
testified at trial, “we consider only what was presented at the pretrial hearing.”
State v. Russell, 159 N.H. 475, 483 (2009) (quotation omitted); cf. State v.
Smalley, 151 N.H. 193, 196 (2004) (trial evidence reviewed on appeal because
defendant renewed his Rule 404(b) objection at the end of trial).

      We have established a three-part test for the admissibility of evidence
under Rule 404(b): (1) the evidence must be relevant for a purpose other than
proving the defendant’s character or disposition; (2) there must be clear proof


                                        4
that the defendant committed the act; and (3) the probative value of the
evidence must not be substantially outweighed by the danger of unfair
prejudice to the defendant. Beltran, 153 N.H. at 647. The State bears the
burden of demonstrating the admissibility of such evidence. Id. Here, the
defendant argues that the State failed to meet its burden, challenging the trial
court’s decision with respect to the first and third prongs of the Rule 404(b)
analysis.

      In order to meet its burden under the first prong, the State is required to
specify the purpose for which the evidence is offered and articulate the precise
chain of reasoning by which it will tend to prove or disprove an issue actually
in dispute, without relying upon forbidden inferences of predisposition,
character, or propensity. Id. (emphasis added). “That chain of reasoning must
demonstrate a sufficient logical connection between the acts and the
permissible purpose for which the State offers the evidence.” Russell, 159 N.H.
at 483 (quotation and ellipsis omitted). Thus, for prior bad acts to be relevant,
the acts must be in “some significant way connected to material events
constituting the crime charged” and not so remote in time as to eliminate the
nexus. Beltran, 153 N.H. at 647-48.

      The defendant contends that our articulation of the relevance standard
for admission of prior bad act evidence sets forth a higher standard than that
required under New Hampshire Rule of Evidence 401, and that evidence of
uncharged acts of domestic violence committed by him against Linscott did not
meet this standard. We need not decide whether the relevance standard under
Rule 404(b) is “higher” than that under Rule 401 because we conclude that the
proffered evidence of the defendant’s prior abuse of Linscott met the standard
we have articulated for admission of prior bad act evidence under Rule 404(b).

      There was a significant logical connection between the defendant’s abuse
of Linscott and her failure to report the abuse of J.N. and the reason she lied to
the police. Because J.N. was not testifying at trial, Linscott’s testimony
regarding the defendant’s abuse of J.N. was critical to the State’s ability to
prove the crimes charged against the defendant relating to J.N. Consequently,
the defendant’s abuse of Linscott was relevant for the non-propensity purpose
of explaining her justifiable fear of the defendant that prompted her to delay
reporting the defendant’s abuse of J.N. and, later, to lie to the police. See
Beltran, 153 N.H. at 648 (evidence of defendant’s physical abuse of witness
relevant to explain her submission to defendant’s demands surrounding
murders and her delay in reporting); cf. State v. Berry, 148 N.H. 88, 91 (2002)
(evidence of defendant’s physical abuse of victim relevant to explain her
delayed reporting of sexual abuse); State v. Connor, 19 A.3d 146, 148-51 (Vt.
2011) (evidence of history of defendant’s abusive conduct toward victim
relevant to establish credible context for assault when victim delayed reporting
assault to police). Thus, contrary to the defendant’s contention, evidence of the



                                        5
defendant’s abuse of Linscott was in a significant way connected to material
events constituting the crime charged. See Beltran, 153 N.H. at 647-48.

       The defendant further argues that his abuse against Linscott was not in
some significant way connected to material events constituting the crime
charged because the State failed to establish that Linscott “engaged in any acts
regarding [J.N.] because the [defendant] abused her.” He maintains that “there
was no evidence presented to the trial court that the abuse by [him] had any
impact on [Linscott] in relation to [J.N.].” Specifically, he argues that there was
no evidence that Linscott herself stated that she acted as she did out of fear of
the defendant. The defendant, however, has failed to provide us with a
transcript of the offer-of-proof hearing or with the other transcripts and
documents relied upon by the court in making its ruling. Without the
transcripts or documents, we cannot conclude that the court unsustainably
exercised its discretion in ruling that the State had met its burden under the
first prong of Rule 404(b). See State v. Hebert, 122 N.H. 1089, 1090 (1982)
(concluding that, without transcript, we could not say that trial court abused
its discretion in ruling on defendant’s motion for return of property).

       To the extent that the defendant relies upon Linscott’s trial testimony to
support his argument that there was no evidence that her actions in relation to
the abuse of J.N. were caused by her fear of the defendant, we decline to
consider such testimony. The defendant has appealed only the trial court’s
pretrial ruling and has not demonstrated that he renewed his objection to the
evidence after Linscott testified at trial. Cf. Smalley, 151 N.H. at 196.

       The defendant next argues that the court erred in its analysis under the
third prong of Rule 404(b). Under the third prong, evidence of other,
uncharged bad acts “is admissible if the danger of unfair prejudice to the
defendant does not substantially outweigh the probative value of the evidence.”
Russell, 159 N.H. at 485 (quotation omitted). Evidence is unfairly prejudicial if
its primary purpose or effect is to appeal to a jury’s sympathies, arouse its
sense of horror, provoke its instinct to punish, or trigger other mainsprings of
human action that may cause a jury to base its decision upon something other
than the established propositions in the case. Beltran, 153 N.H. at 649. It is
not, however, evidence that is merely detrimental to the defendant because it
tends to prove his guilt. Id. Among others, the factors we consider in weighing
the evidence are: “(1) whether the evidence would have a great emotional
impact upon a jury; (2) its potential for appealing to a juror’s sense of
resentment or outrage; and (3) the extent to which the issue upon which it is
offered is established by other evidence, stipulation or inference.” Russell, 159
N.H. at 485 (quotation omitted).

      “We accord considerable deference to the trial court’s determination in
balancing prejudice and probative worth under Rule 404(b).” Id. (quotation
omitted); see also State v. Tabaldi, 165 N.H. 306, 323 (2013) (“[W]e give the trial


                                         6
court broad latitude when ruling on the admissibility of potentially unfairly
prejudicial evidence.” (quotation omitted)). “To prevail, the defendant must
show that the trial court’s ruling was clearly untenable or unreasonable to the
prejudice of his case.” Russell, 159 N.H. at 485 (quotation omitted).
“Particularly pertinent to determining this balance is whether the evidence is
relevant to prove an issue that is actually in serious dispute.” Id. (quotation
omitted).

      “First, we consider the probative value of the evidence.” Id. (quotation
omitted). Determining the probative value of evidence entails analyzing how
relevant it is. State v. Costello, 159 N.H. 113, 123 (2009). Here, as the trial
court found, this evidence “has a strong tendency to explain that [Linscott] was
afraid for her life,” and to provide the jury with “a better context to understand
her actions and evaluate her credibility.”

      The defendant contends that no matter what relevance this evidence may
have had, it “was greatly outweighed by the danger of unfair prejudice.” He
maintains that evidence of prior abuse committed by him against Linscott was
“unfairly prejudicial . . . [d]ue to the similar nature of the charged and
uncharged conduct.” He further maintains that such evidence “had no other
impact upon the jury other than to evoke a sense of horror or rebuke.”

      In weighing prejudice, a trial court must consider “the nature of the
other bad act. Some acts have a great emotional impact upon a jury and have
greater potential for appealing to a juror’s sense of resentment or outrage.”
Smalley, 151 N.H. at 200 (quotation omitted). “Unfair prejudice is inherent in
evidence of other similar crimes or prior convictions.” Beltran, 153 N.H. at 649
(quotation omitted). The degree of prejudice may depend upon the similarity of
the other incidents to those for which the defendant is currently on trial. Id.

       Evidence of the defendant’s uncharged treatment of Linscott was
evidence of abuse, as was the evidence of the charged treatment of J.N.
However, such evidence was not likely to have any greater impact upon the
jury than the charged acts. See State v. Howe, 159 N.H. 366, 378 (2009).
Evidence of the defendant’s abuse of Linscott, an adult, would not likely
engender a sense of horror or outrage more than would the evidence of the
defendant’s abuse of J.N., a three-year-old child. As we discussed, the
challenged evidence is relevant to explain why Linscott delayed reporting the
abuse of J.N. and lied to the police. In light of the State’s proffer that J.N.
would not testify at trial, Linscott’s testimony was crucial to the determination
of the defendant’s guilt or innocence. Thus, even though evidence of the
defendant’s abuse of Linscott may have been prejudicial, it was not “so
inflammatory as to substantially outweigh its probative value.” Id. (quotation
omitted). Accordingly, we conclude that the trial court’s ruling was not clearly
untenable or unreasonable to the prejudice of the defendant’s case. See
Beltran, 153 N.H. at 649-50.


                                        7
III.   Expert Testimony on Domestic Violence

      The defendant next argues that the trial court erred by allowing the
testimony of the State’s expert witness on domestic violence. Expert testimony
is admissible under New Hampshire Rule of Evidence 702 “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.” N.H. R. Ev. 702. The
determination of the admissibility of expert testimony “rests, in the first
instance, within the sound discretion of the trial court.” State v. Searles, 141
N.H. 224, 227 (1996) (quotation omitted). We reverse its determination “only if
the appealing party can demonstrate that the ruling was untenable or
unreasonable and that the error prejudiced the party’s case.” Id. (quotation
omitted).

       At trial, the State sought to introduce the testimony of Dr. Scott
Hampton, an expert in the field of domestic violence. Over the defendant’s
objection, the court allowed Hampton’s testimony. Hampton then generally
described the nature and types of domestic violence. He testified about the
progression of domestic violence in an intimate partner relationship and
explained why victims often remain in a relationship despite continued abuse.
He explained why victims of such violence do not report, and lie about, the
abuse and why a victim of domestic violence might fail to protect his or her
child in an abusive situation. He further described the effects that a victim’s
child, who is a non-biological child of the perpetrator of the abuse, would have
on the dynamics of a relationship involving domestic violence. Hampton stated
that he had not reviewed any of the evidence in this case, and he did not give
an opinion relative to this case.

      Relying upon Searles, the defendant argues that the court erred by
allowing Hampton to testify about domestic violence because “such evidence is
only admissible when a victim recants or otherwise minimizes the subject
abuse during her testimony,” and, here, Linscott “never minimized or recanted
any of her statements about the abuse to which she was subject.” Assuming
that the defendant preserved this argument for appeal, we disagree with the
defendant that Searles stands for the proposition that a victim of domestic
violence must recant her statements or minimize the abuse in order for expert
testimony on domestic violence to be admissible.

       In Searles, the defendant argued that the trial court erred by allowing the
State to introduce expert testimony concerning domestic violence syndrome in
his trial for second degree assault against his girlfriend and their daughter.
See id. at 225-26. He maintained that the expert’s testimony was irrelevant
because the victims did not minimize their injuries or the defendant’s conduct
in their trial testimony. Id. at 228. We disagreed. Id. at 228-29.




                                        8
       Recognizing that courts in other jurisdictions have approved the use of
expert testimony about the effects of domestic violence, we explained that
domestic violence syndrome offers an explanation for particular actions and
statements of domestic violence victims that may seem counterintuitive, such
as a victim’s recantation or minimization of abuse at trial. Id. at 227. When
this sort of behavior is at issue, the testimony of a qualified expert may aid the
jury in assessing the credibility of a domestic violence victim. Id. at 228.
Given the testimony by the victims in that case, we held that the trial court did
not err by concluding that evidence had been presented from which a jury
could reasonably find that the victims had minimized their injuries and the
defendant’s actions and that this minimization would likely be puzzling to the
lay observer. Id. at 228-29. In those circumstances, we concluded that expert
testimony about domestic violence syndrome could provide a reasonable
explanation for the victims’ changed account of their injuries and the events in
question. Id. at 229. We, therefore, determined that the expert testimony was
properly admitted to assist the jury in evaluating the trial testimony of the
victims. Id.

       Our decision in Searles, however, is not as limited as the defendant
suggests. Although in that case we referred to a domestic violence victim’s
recantation or minimization of abuse at trial, we did not state that those were
the only circumstances in which expert testimony about domestic violence
syndrome may be admissible. Rather, those were simply two examples of
particular actions and statements that may seem counterintuitive to a jury so
as to allow for such expert testimony. See id. at 227-29.

       Other jurisdictions have allowed expert testimony on the nature and
effect of domestic violence in circumstances other than those involving
recantation or minimization at trial. See Com. v. Morris, 974 N.E.2d 1152,
1158 (Mass. App. Ct. 2012) (stating that expert testimony on domestic violence
is “admissible to help jurors understand the potentially counterintuitive
behavior of victims when assessing a victim’s credibility”); State v. Grecinger,
569 N.W.2d 189, 197 (Minn. 1997) (holding that expert testimony on battered
woman syndrome may be admissible in State’s case-in-chief “if it is introduced
after the victim’s credibility has been attacked by the defense, if it helps the
jury understand the victim’s inconsistent statements or delay in seeking
prosecution of the batterer, and if the expert merely describes the syndrome
and its characteristics and does not offer an opinion as to whether the victim
suffers from it” (citations omitted)); see also State v. Ciskie, 751 P.2d 1165,
1170-74 (Wash. 1988) (discussing usefulness of expert testimony on battered
women’s syndrome to trier of fact). Thus, permissible expert testimony on
domestic violence is not limited to only those cases in which a victim of
domestic violence recants her statements or minimizes the abuse at trial.
Accordingly, we reject the defendant’s argument because it is based upon the
faulty premise that Hampton’s testimony was admissible only if Linscott
recanted her statements or minimized the defendant’s conduct at trial.


                                        9
      To the extent the defendant argues that the court erred by admitting
Hampton’s testimony because Linscott was a witness in this case and “not a
victim of a charged crime,” this argument has been insufficiently developed for
our review. We, therefore, decline to address it. See State v. Roy, 167 N.H.
276, 292 (2015) (declining to address an insufficiently developed argument).

       Finally, the defendant argues that admission of Hampton’s testimony
unfairly prejudiced his case. He asserts that Hampton’s testimony “vilified
[him] in the eyes of the jury” and “turned [Linscott] from a co-defendant/
accomplice into an uncharged victim.” We disagree.

       Hampton testified exclusively in general terms about domestic violence
relationships and why victims of domestic violence act in certain ways. He did
not present opinion testimony based upon the facts of this case, nor did he
opine as to the credibility of any witness. Hampton’s testimony may have
closely aligned with Linscott’s description of abuse and therefore may have
aided the jury in understanding her actions. Contrary to the defendant’s
suggestion, however, it did not transform his testimony into an opinion that the
defendant was an abuser and Linscott a victim. See Morris, 974 N.E.2d at
1161.

      Moreover, during Hampton’s testimony, the court instructed the jury on
several occasions that Hampton was not speaking about any of the individuals
involved in this case. The court instructed the jury not to “infer in any way
that because Dr. Hampton happens to refer to a he if he’s talking about the
abuser he means that all abusers are [men] or that it’s in any way connected to
[the defendant] in terms of his testimony.” At the close of the evidence, the
court further instructed the jury that it was “not bound by the opinion of the
expert” and was “free to ignore the expert’s opinion if you find that the reasons
given in support of the opinion are not sound or if you find that other evidence
outweighs the opinion.” The jury is presumed to follow the trial court’s
instructions, thus diminishing any potential for unfair prejudice from the
admission of such testimony. See Costello, 159 N.H. at 123. For these
reasons, we do not agree with the defendant that Hampton’s testimony invited
the jury to base its decision upon something other than the established
propositions in the case. See Roy, 167 N.H. at 285.

       We conclude that the defendant has not demonstrated that the trial
court’s decision to allow Hampton’s testimony was untenable or unreasonable
to the prejudice of his case. Accordingly, we hold that the trial court did not
unsustainably exercise its discretion by admitting it.

                                                  Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.



                                       10
