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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll

No. 2020-0025

THE STATE OF NEW HAMPSHIRE

v.

MARK BOULTON

Argued: April 14, 2021

Opinion Issued: September 30, 2021

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, senior 

assistant attorney general, on the brief and orally), for the State.

Rudolph Friedmann, LLP, of Boston, Massachusetts (William A. Korman

on the brief and orally), for the defendant.

BASSETT, J. The defendant, Mark Boulton, appeals convictions, 

following a jury trial, on four counts of aggravated felonious sexual assault, see

RSA 632-A:2, IV (2016), and one count of misdemeanor sexual assault, see

RSA 632-A:4, I(b) (Supp. 2020). He argues that the Superior Court (Ignatius, 

J.) erred by: (1) denying his request to enter portions of the transcript of his 

interview with police into the record; and (2) allowing a witness for the State to 

offer expert testimony while testifying as a lay witness. We affirm.

The following facts are undisputed or supported by the record. In 2016, 

a 15-year-old child reported that she had been sexually assaulted by the 
2

defendant. The Moultonborough Police Department investigated the 

allegations. A detective in the department interviewed the defendant, and the 

department prepared a transcript of the interview.

At trial, the State called the detective as a witness. On direct 

examination, the detective testified regarding his interview with the defendant, 

but the State did not offer the transcript of the interview into evidence, nor did 

it use the transcript to refresh the detective’s memory. The defendant objected 

to the detective’s testimony, arguing that he was mischaracterizing the 

interview. The trial court overruled the objection, observing that the defendant 

was free to cross-examine the detective if he believed that the detective was 

mischaracterizing the interview. 

On cross-examination, the defendant sought to have the detective read 

portions of the interview transcript into the record. The State objected. The 

defendant responded that he was entitled to read portions of the transcript into 

the record because the State had provided an incomplete and misleading 

account of the interview. See N.H. R. Ev. 106. 

The trial court sustained the objection. The court ruled that, because 

the State had only questioned the detective regarding the interview, without 

introducing any portion of the transcript, the defendant was not entitled to 

introduce the transcript in order to correct any misleading impression. Rather, 

the court stated, the defendant could use the transcript to refresh the 

detective’s memory or impeach specific answers. At the close of the State’s 

case, the defendant asked the court to reconsider its prior ruling. The 

defendant requested that the court “allow the defense to enter into evidence the 

entirety of [the defendant’s] statements” from the interview in regard to certain 

topics that the detective had testified to. The court denied the motion.

At trial, the State also called as a witness the Moultonborough police 

officer who had led the department’s investigation in the case. On direct 

examination, the State asked the officer to explain the role of a Child Advocacy 

Center in a criminal investigation when a child is interviewed. The defendant 

objected, arguing that, because the officer was not testifying as an expert, she 

should not be allowed to testify as to how she had been “trained . . . to speak 

with children.” The trial court overruled the objection, explaining that the 

officer could answer the question because it would provide the jury with 

background information about how a child sexual assault investigation 

generally proceeds. Shortly thereafter, the State asked the officer how many 

child sexual abuse investigations she had led. The defendant again objected, 

arguing that that information was irrelevant. The court overruled the 

objection, stating that the answer would provide appropriate background 

information regarding the officer’s training and experience.
3

During cross-examination, the defendant asked the officer whether it is 

standard practice when conducting an investigation to interview witnesses as 

soon as possible after an event. The officer responded that witnesses 

sometimes need time to “process” an event before discussing it. On redirect 

examination, the officer was asked to expand on her answer:

Q You talked a little bit, at the beginning of that cross [-

examination], about giving people time to process. Counsel [for the 

defendant] had asked you questions about immediately 

interviewing witnesses and alleged victims. And you started to talk 

a little bit about processing. What do you mean by that?

A When a traumatic event occurs -- and we know this, you

know, essentially, from our training and how to approach, you

know, if we’re at a --

The defendant objected, arguing that the officer was “not testifying as an 

expert, so I don’t think she gets to talk about processing, internal mind, all of 

that stuff.” The trial court overruled the defendant’s objection. This exchange

between the State’s counsel and the officer followed:

Q Counsel [for the defendant] had asked you questions 

about how it’s -- the protocol or the procedure is to interview 

people right away. And your response, if I understand you 

correctly -- correct me if I’m wrong -- was that not always and that 

sometimes people need to process. Was that your answer?

A Yeah, many --

Q Can you just --

A -- many times they do, yes.

Q Right. Explain that.

A Yeah. I -- I was saying, before, that, you know, a policeinvolved shooting, for example, we would never interview the officer 

involved or officers, you know, right site on scene, you know, three 

minutes after it happened: what did you see; what did you -- I 

mean, often, they’ll take a quick statement from them. By that, I 

mean, like, how many shots do you think you fired, and go from 

there, go home, rest. They seize the firearm.

My training with working with child advocacy centers and 

forensic interviewing, you know, they alway[s] -- we just constantly 

are saying, disclosure is a process. And a traumatic event, as we 
4

know, can -- you know, for anyone, just a general, you know, like, 

you go through a tough time, you lose a parent or something, no 

matter what age you are, and you become depressed, that’s a 

reaction to that. And it’s hard to process information on the event 

and whatnot.

And it does take time, and you remember little things.

And that’s why it’s important and we often do go back and talk to 

people, sometimes informally. Like I said, it’s not, you know, 

always, like, oh, push play, you know, record. For victims and 

suspects, yes, we -- there are certain things in place. But other 

than that, no.

The jury convicted the defendant, and this appeal followed.

On appeal, the defendant argues that the trial court erred when it ruled 

that he was not entitled to enter portions of the transcript of his interview with 

the detective into the record. He also argues that the trial court erred when it 

allowed the officer, who was testifying as a lay witness, to provide expert 

testimony regarding forensic interviewing.

“The trial court has broad discretion to determine the admissibility of 

evidence, and we will not upset its ruling absent an unsustainable exercise of 

discretion.” State v. Plantamuro, 171 N.H. 253, 255 (2018). “When we 

determine whether a trial court has sustainably exercised its discretion, we are 

really deciding whether the record establishes an objective basis sufficient to 

sustain the discretionary judgment made.” State v. Gonzalez, 170 N.H. 398, 

407 (2017) (quotation omitted). “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.” Plantamuro, 171 N.H. at 255. To show that the court’s 

ruling is not sustainable, the defendant must demonstrate that the decision 

“was clearly untenable or unreasonable to the prejudice of his case.” State v. 

Lambert, 147 N.H. 295, 296 (2001) (quotation omitted). 

We first address the defendant’s argument that the trial court erred when 

it ruled that he was not entitled to enter portions of the interview transcript 

into the record. The defendant argues that the State created a misleading 

impression when, through the detective, it elicited testimony as to selected

portions of the defendant’s statements during the interview. The defendant

contends that the jury was left with the impression that his responses were 

more inculpatory than they actually were. He argues that, pursuant to Rule 

106 of the New Hampshire Rules of Evidence, he had a right to introduce 

excerpts from the transcript into the record to correct the misleading 

impression created by the detective’s testimony. We disagree.
5

Rule 106, Remainder of or Related Writings or Recorded Statements, 

provides as follows:

(a) If a party introduces all or part of a writing or recorded 

statement, an adverse party may require the introduction, at the 

time, of any other part — or any other writing or recorded 

statement — that in fairness ought to be considered at the same 

time.

(b) A party has a right to introduce the remainder of an 

unrecorded statement or conversation that his or her opponent 

introduced so far as it relates:

(1) to the same subject matter; and

(2) tends to explain or shed light on the meaning of the part 

already received.

N.H. R. Ev. 106. Rule 106 codifies New Hampshire’s common law doctrine of 

completeness, which provides that a party “has the right to introduce the 

remainder of a writing, statement, correspondence, former testimony or 

conversation that his or her opponent introduced so far as it relates to the 

same subject matter and hence tends to explain or shed light on the meaning 

of the part already received.” State v. Lopez, 156 N.H. 416, 421 (2007)

(quotation omitted); see State v. Mitchell, 166 N.H. 288, 293 (2014). The 

doctrine “exists to prevent one party from gaining an advantage by misleading 

the jury.” Lopez, 156 N.H. at 421 (quotation omitted). The goal of the doctrine 

is “to correct misleading impressions by omission.” Mitchell, 166 N.H. at 294. 

“The trial court has discretion under Rule 106 to determine whether fairness 

requires admission of remaining parts [of a conversation] or related 

documents.” State v. Botelho, 165 N.H. 751, 760 (2013) (quotations omitted). 

Although the defendant argues that portions of the transcript should 

have been admitted into evidence under Rule 106, he does not specify whether 

he advances this argument under paragraph (a) or (b). We will analyze his 

argument under both paragraphs. 

By its express terms, paragraph (a) applies only if a party “introduces all 

or part of a writing or recorded statement.” N.H. R. Ev. 106(a). We note that 

this language is identical to the language in Federal Rule of Evidence 106. See

Fed. R. Evid. 106. Here, on direct examination, the detective testified based on 

his memory of the interview, and the State did not refer to the interview

transcript when it questioned him. We agree with federal courts applying 

Federal Rule of Evidence 106 that, under such circumstances, a party has not 

introduced a “writing or recorded statement” — i.e., the transcript — and 

therefore the opposing party does not have a right to introduce the transcript in 
6

order to correct any misleading impression. See United States v. Garcia, 530 

F.3d 348, 350-54 (5th Cir. 2008) (ruling that the defendant could not introduce 

the transcript of his interview with a government agent in response to the 

agent’s testimony, when the agent only “testif[ied] as to his memory of the 

conversation,” and the jury “did not hear or read quotations” from the 

transcript); see also United States v. Pendas-Martinez, 845 F.2d 938, 939, 943-

45 (11th Cir. 1988) (ruling that, although defense counsel inadvertently read 

an isolated line from a report during cross-examination, the government did 

not have the right to introduce the entire report in response because defense

counsel’s use of the report was not “so extensive as to be tantamount to 

introduction of the report into evidence”). Here, because the State neither used

nor referred to the interview transcript when it questioned the detective, and it 

did not introduce the transcript into evidence, we conclude that the trial court 

sustainably exercised its discretion under paragraph (a). See N.H. R. Ev.

106(a). 

To the extent that the defendant also argues that the interview was an 

unrecorded statement or conversation under paragraph (b) and that the trial 

court erred when it prevented him from introducing the remainder of that 

conversation, we disagree. By eliciting testimony regarding the detective’s 

conversation with the defendant, the State arguably introduced part of an 

“unrecorded statement or conversation.” N.H. R. Ev. 106(b). However, the trial 

court did not prevent the defendant from “introduc[ing] the remainder” of the 

conversation. Id. Here, the trial court did not prevent the defendant from 

eliciting testimony regarding other portions of the interview through crossexamination. Rather, he was barred from introducing portions of the

transcript. Nevertheless, consistent with Rule 106(b), the defendant had the 

opportunity to cross-examine the detective regarding the entire interview, and 

to use the transcript to refresh the detective’s memory and impeach specific 

answers, thereby correcting any misleading impression that may have arisen as 

a result of the detective’s testimony on direct. See N.H. R. Ev. 106 Reporter’s 

Notes (explaining that an adverse party may “present related parts of 

conversations by way of cross-examination”). As the State observes, the trial 

court did not prevent the defendant from providing further context to the 

interview; it merely prohibited him from introducing the transcript to do so. 

Because the defendant had the opportunity to cross-examine the detective and

to use the interview transcript to correct any misleading impression, we 

conclude that the trial court sustainably exercised its discretion when it ruled 

that the defendant did not have the right to introduce parts of the transcript 

into the record. See N.H. R. Ev. 106(b).

We now turn to the defendant’s second argument: that the trial court 

erred when it allowed the officer, who was testifying as a lay witness, to provide 

expert testimony. The defendant asserts that the court allowed the officer to 

provide improper expert testimony on three occasions: when the officer 

explained the role of a Child Advocacy Center in an investigation; described 
7

how many child sexual abuse investigations she had led; and testified that

witnesses sometimes need time to “process” traumatic events before being 

interviewed, and that based on her training “working with child advocacy 

centers and forensic interviewing, . . . we just constantly are saying, disclosure 

is a process.” Although the defendant argues that all of this testimony is 

expert testimony, he focuses his argument almost exclusively on the officer’s 

testimony as to the third topic. Accordingly, we will also focus our analysis on 

that testimony. 

The defendant argues that this testimony constitutes expert testimony

because it is based on the officer’s specialized training and experience, and its

purpose was “to explain why [the victim] may have taken time to disclose what 

had happened to her, as well as why there may be inconsistencies in the 

retelling of the allegations of sexual assault.” The State counters that the 

testimony is not expert testimony because the average juror is familiar with the 

concept of “processing” a startling or traumatic event, and the officer’s 

testimony did not, in fact, explain why the victim may have delayed reporting 

the assaults or made inconsistent statements. We agree with the State.

Rule 701 of the New Hampshire Rules of Evidence provides:

If a witness is not testifying as an expert, testimony in the form 

of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to 

determining a fact in issue; and

(c) not based on scientific, technical or other specialized 

knowledge within the scope of Rule 702. 

N.H. R. Ev. 701. Expert testimony involves “matters of scientific, mechanical, 

professional or other like nature, which requires special study, experience, or 

observation not within the common knowledge of the general public.” State v. 

DePaula, 170 N.H. 139, 153 (2017) (quotation omitted).

First, we disagree with the defendant’s argument that, merely because 

the officer’s testimony is based on her training and experience, we should deem

her testimony to be expert testimony. Testimony based upon a witness’s 

personal knowledge gained through employment is admissible as lay testimony, 

so long as the witness does not testify to scientific or technical processes which 

an average lay person would not be able to comprehend. See id. at 154-55 

(concluding that custodians of cell phone records could provide lay testimony 

regarding the range of cell towers based upon personal knowledge gained 

through their employment). “[I]ndividuals can present limited lay testimony 
8

regarding matters which, if discussed in detail, would require expert 

testimony.” Id. at 154. For example, a police officer may testify as a lay 

witness regarding his or her administration of a field sobriety test measuring 

rapid eye movement, notwithstanding the fact that the average lay person has 

never administered such a test, and despite the fact that testimony explaining

the underlying medical reasons for the eye movement would be expert 

testimony. See State v. Cochrane, 153 N.H. 420, 421-24 (2006). Similarly, an 

officer may testify as a lay witness regarding his or her use of a radar gun to 

measure a vehicle’s speed, even though testimony explaining the underlying 

mechanisms of a radar gun would be expert testimony because those 

mechanisms are “not common knowledge.” Id. at 424 (citing State v. Caswell, 

146 N.H. 243, 248 (2001)).

These cases demonstrate that a witness’s testimony is not expert 

testimony simply because it is based upon personal knowledge that the witness

would not have had absent his or her employment. See DePaula, 170 N.H. at 

154-55; Cochrane, 153 N.H. at 423-24. Personal observations made through a 

witness’s employment may well be observations that any lay person would “be 

capable of” making, at least with “some training.” Cochrane, 153 N.H. at 423. 

Even if the witness’s testimony incorporates some degree of professional 

knowledge, what is material is whether the testimony encompasses “highly 

technical or specialized . . . information,” id. at 424, or simply “elementary 

concepts” that an average juror would be able to understand, DePaula, 170

N.H. at 155.1 

Here, the officer was asked to explain why, under certain circumstances, 

it is preferable to allow a witness to “process” an event before interviewing the 

witness. The officer gave a lengthy response which, taken as a whole, conveyed 

that traumatic events can be difficult to recall and discuss, and that it is 

sometimes easier for a witness to do so after the witness has had some time to 

reflect. The officer’s reference to her experience with disclosure by child 

victims was offered in passing as one example of this point. The officer also 

gave the example of losing a parent, which unquestionably is an experience

within the common knowledge of the general public. We have little trouble 

 

1 We note that we observed in State v. Gonzalez, 150 N.H. 74, 77-80 (2003), that 

testimony by a social worker and a police officer during a sexual assault trial about their 

observations and conclusions made during their employment regarding the frequency of victim 

denials and delayed disclosures respectively was improper expert testimony from lay witnesses 

because their observations “required specialized training, experience and skill not within the 

ken of the ordinary person,” id. at 79 (quotation omitted); see also State v. Tierney, 150 N.H. 

339, 345, 347-48 (2003) (relying on Gonzalez in concluding that the trial court erred in 

allowing certain expert testimony but reversing defendant’s sexual assault convictions on other 

grounds). However, as we explain below, Gonzalez does not control the outcome in this case 

because the testimony here was of a different nature, was offered for a distinct purpose, and 

was elicited in a different procedural context than that in Gonzalez. 
9

concluding that the average juror is familiar with the notion that a person

might be better able to remember and discuss certain traumatic events after 

some time has passed since the event occurred. On its face, the officer’s 

testimony is not “highly technical or specialized” and therefore is not expert 

testimony. Cochrane, 153 N.H. at 424. For similar reasons, we are not 

persuaded by the defendant’s argument that the officer’s testimony explaining 

the role of a Child Advocacy Center and describing how many child sexual 

abuse investigations she had led is expert testimony because it is based on her 

training and experience. Like the officer’s testimony about “processing” 

traumatic events, this testimony does not contain “highly technical or 

specialized . . . information,” id., but rather provides general background 

information that the average lay person is able to understand, see id. at 421-

24; DePaula, 170 N.H. at 152-55. 

Nor are we persuaded by the defendant’s second argument that the 

officer’s testimony about “processing” was expert testimony because it was 

offered to explain why the victim may have delayed reporting the sexual 

assaults and offered inconsistent accounts of the assaults. The defendant 

relies on State v. Gonzalez, 150 N.H. at 78-79, in support of this argument. 

However, the defendant’s reliance on Gonzalez is misplaced. 

In Gonzalez, the defendant was charged with sexual assault. Id. at 75. 

At trial, as part of its case-in-chief, the State called a social worker and a 

detective as lay witnesses. Id. The State elicited testimony from both 

witnesses regarding their training and experience interviewing victims of sexual 

abuse. Id. at 75, 78. Based on that training and experience, the social worker 

testified that it is not unusual for victims to deny that they have been abused 

or to recant allegations, and the detective testified that victims do not typically 

report assaults at the time they occur. Id. The defendant objected to the 

testimony of both witnesses at trial, arguing that the testimony was improper

expert testimony, but the trial court admitted the testimony. See id. at 75-76. 

The defendant made the same argument on appeal, and we agreed, concluding 

that the testimony of both witnesses was expert testimony but that the court’s 

error in admitting it was harmless. Id. at 77-80. 

We emphasized that the State had offered the testimony to explain the 

behavior of victims regarding disclosure, observing that this was expert 

testimony because it educated the jury as to how victims frequently delay 

reporting abuse, provide inconsistent accounts of abuse, and recant 

allegations. Id. at 78-79. We noted that, because delayed disclosure or 

inconsistent accounts by a victim may be puzzling or appear counterintuitive to 

lay observers, “expert testimony may be permitted to educate the jury about 

apparent inconsistent behavior by a victim following an assault and to ‘provide 

useful information that is beyond the common experience of an average juror.’” 

Id. at 78 (quoting State v. MacRae, 141 N.H. 106, 109 (1996)) (brackets 
10

omitted). The purpose of the testimony was to explain the potentially 

counterintuitive behavior that sexual assault victims may sometimes display,

so that the jury could better assess the victim’s credibility. See id. at 75.

Here, unlike in Gonzalez, the officer’s testimony was not offered by the 

State during direct examination to educate the jury about how victims

generally address the issue of disclosure. Rather, the testimony was 

precipitated by defense counsel’s cross-examination of the officer: defense

counsel attempted to discredit the police department’s investigation in this

case by asking the officer several questions about standard investigation 

procedures, and then trying to establish that the department had not followed 

those procedures. As part of that strategy, defense counsel asked the officer,

“And another basic proper procedure is to try to do interviews in close as time 

as possible to an event, right?” The officer disagreed, explaining that the 

timing of interviews varies by case, and that “sometimes it is beneficial, 

actually, to wait for a person to process that information before we speak with 

them.” On redirect, the State simply provided the officer an opportunity to 

further explain that answer, and she gave the response at issue. Thus, 

although the officer’s passing reference on redirect to disclosure being a 

“process” for victims arguably touches upon the issue of delayed disclosure, the 

statement was offered to explain the police department’s investigation 

procedures, rather than the behavior of victims. The officer’s brief allusion to 

disclosure being a “process” for victims is very different from the testimony in 

Gonzalez, in terms of the purpose for which it was offered, the context in which 

it was elicited, and the degree to which it addresses the issue of disclosure by 

victims. Cf. id.

In sum, we conclude that the trial court sustainably exercised its 

discretion when it ruled that the defendant was not entitled to enter portions of 

the interview transcript into the record and when it admitted the officer’s 

testimony as permissible lay testimony. All issues raised in the defendant’s 

notice of appeal, but not briefed, are deemed waived. See State v. Stanin, 170 

N.H. 644, 652 (2018).

Affirmed.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.