State v. Kevin Lynch

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2015-0358

THE STATE OF NEW HAMPSHIRE

v.

KEVIN LYNCH

Argued: September 21, 2016
Opinion Issued: March 10, 2017

Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney
general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

CONBOY, J. The defendant, Kevin Lynch, appeals his conviction,
following a jury trial, of misdemeanor simple assault. See RSA 631:2-a (2016).
He argues that the Superior Court (Wageling, J.) erred by denying his motion to
suppress his statements to police allegedly obtained in violation of his Miranda
rights. See Miranda v. Arizona, 384 U.S. 436 (1966). He also argues that the
Superior Court (Schulman, J.) erred by permitting hearsay testimony from a
pediatrician at trial. The State cross-appeals the trial court’s order dismissing
two indictments post-trial on double jeopardy grounds. We affirm.
I. Defendant’s Appeal

A. Suppression Motion

The following facts are taken from the trial court’s order denying the
defendant’s motion to suppress, are established by the evidence submitted at
the suppression hearing—which includes the videotaped recording and
transcript of the defendant’s police interview—or are otherwise undisputed. On
March 7, 2014, Detective Sergeant Munck of the Exeter Police Department
interviewed the defendant at the police station regarding an allegation that he
had assaulted his girlfriend’s three-year-old daughter earlier that day. At the
beginning of the interview, Munck informed the defendant that the interview
was being audio- and video-recorded and read him his Miranda rights. The
defendant waived his rights and agreed to speak with Munck. During the
interview, the defendant made incriminating statements.

Prior to trial, the defendant sought to suppress his incriminating
statements. The State objected. Following a hearing, at which the parties
made arguments and introduced the recording of the defendant’s interview as
the only evidence in support of each party’s position, the court denied the
defendant’s motion. In doing so, the court noted that the State conceded that
the defendant was subjected to custodial interrogation.

On appeal, the defendant argues that, under the State and Federal
Constitutions, the trial court erred in denying his motion because he invoked
his right to remain silent and his right to counsel after receiving Miranda
warnings, and Munck failed to honor his invocation. See N.H. CONST. pt. I,
art. 15; U.S. CONST. amends V, XIV. We will address the defendant’s state
constitutional claim first, citing federal law only to aid in our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

Before a defendant’s responses made during custodial interrogation may
be used against him, the State must prove, beyond a reasonable doubt, that
the interrogation did not violate his constitutional rights under Miranda. State
v. Gribble, 165 N.H. 1, 10 (2013). On appeal, in reviewing the trial court’s
finding that the State met its burden, we view the evidence in the light most
favorable to the State. State v. Chapman, 135 N.H. 390, 394 (1992).

The defendant does not dispute that he initially waived his Miranda
rights during the March 7 custodial interrogation. Nor does he assert that his
statements were involuntary. Rather, he argues that he invoked his right to
silence and his right to counsel during the interview, thereby requiring Munck
to cease questioning. To determine whether, after initially waiving his
constitutional rights under Miranda, the defendant subsequently invoked those
rights, we examine his statements under the totality of the circumstances. See
id.; see also Mayes v. State, 8 S.W.3d 354, 359 (Tex. App. 1999). Although we

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review a trial court’s findings concerning which words a defendant used to
invoke his Miranda rights under the clearly erroneous standard, whether the
defendant’s words constitute an invocation of his rights is a question of law,
which we review de novo. State v. Ayer, 154 N.H. 500, 518 (2006).

In Miranda, the Supreme Court held that, if an accused is in police
custody, has been informed of his Miranda rights, and “indicates in any
manner, at any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74; see State v.
Jeleniewski, 147 N.H. 462, 465 (2002) (“When a defendant invokes his right to
remain silent, the police must ‘scrupulously honor’ that invocation.”).
Similarly, the Court held that “[i]f the individual states that he wants an
attorney, the interrogation must cease until an attorney is present.” Miranda,
384 U.S. at 474; see State v. Grant-Chase, 140 N.H. 264, 267 (1995)
(explaining that, if a defendant requests counsel after Miranda warnings have
been given or after interrogation has begun, there is “an irrebuttable
presumption that the defendant asked for the assistance of counsel for the
purpose of having counsel present during any further questioning, and the
police [cannot] reinitiate questioning until counsel [is] present”). As we have
explained, “This right to counsel is a fundamental one which transcends the
enforcement of the criminal law and should be liberally observed by those who
have sworn to uphold the constitution, and no effort should be made to
discourage the exercise of the right by our citizens.” State v. Tapply, 124 N.H.
318, 325 (1983).

Subsequently, in Davis v. United States, 512 U.S. 452 (1994), the Court
held that “after a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and unless the suspect
clearly requests an attorney.” Davis, 512 U.S. at 461. In so holding, the Court
explained that, in order “[t]o avoid difficulties of proof and to provide guidance
to officers conducting interrogations,” the determination of whether an
individual has “actually invoked his right to counsel” is based upon an
objective inquiry. Id. at 458-59 (quotation omitted). “Invocation of the Miranda
right to counsel requires, at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance of an attorney.”
Id. at 459 (quotation omitted). “Although a suspect need not speak with the
discrimination of an Oxford don, he must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney.” Id.
(quotation and citation omitted). “But if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light of
the circumstances would have understood only that a suspect might be
invoking the right to counsel,” precedent does “not require the cessation of
questioning.” Id. To require officers to cease questioning in such a situation
would force police officers “to make difficult judgment calls about whether the

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suspect in fact wants a lawyer even though he has not said so, with the threat
of suppression if they guess wrong.” Id. at 461.

The Court went on to observe that “when a suspect makes an ambiguous
or equivocal statement it will often be good police practice for the interviewing
officers to clarify whether or not he actually wants an attorney.” Id. “Clarifying
questions help protect the rights of the suspect by ensuring that he gets an
attorney if he wants one, and will minimize the chance of a confession being
suppressed due to subsequent judicial second-guessing as to the meaning of
the suspect’s statement regarding counsel.” Id. But “[i]f the suspect’s
statement is not an unambiguous or unequivocal request for counsel, the
officers have no obligation to stop questioning him.” Id. at 461-62. The Court
has since extended these principles to the invocation of the right to remain
silent. See Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (stating that
“there is no principled reason to adopt different standards for determining
when an accused has invoked the Miranda right to remain silent and the
Miranda right to counsel”).

The defendant maintains he invoked his right to remain silent and his
right to counsel during the following exchange, which occurred approximately
one hour after the interview began and the defendant had been read and
waived his Miranda rights:

[The defendant]: I’m being accused of something that I didn’t do
and then I mean I guess the only thing I can do is probably stop
talking and get a lawyer because obviously it seems like [the
defendant’s girlfriend] said whatever story. [The victim] is saying
whatever story she’s saying and I am not a vicious person. I have
times where I do get frustrated and all that, but I always take time
to take a minute to get away from the situation so I don’t do
anything I regret. So, I mean, I didn’t touch her. I didn’t even see
her this morning that I remember.

[Munck]: Well, you just mentioned now that you want to stop
talking and get a lawyer. Is that what you want? Or do you want
to keep talking?

[The defendant]: I mean it just seems like I’m being accused of this.

[Munck]: Well, you are and it’s not necessarily, I’m the, I guess the
face of the person that’s accusing but there’s other stuff behind me
that’s backing that up.

[The defendant]: And I get what you’re saying but why would I do
something to risk losing my kids?

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[Munck]: Well, first of all before we keep going, do you want to stop
talking and get an attorney or do you want to keep talking with
me? That’s what I need to know.

[The defendant]: Well, I can’t afford an attorney so . . .

[Munck]: Well, you can stop talking and that has no play in it. If
you want to stop talking to me you can stop talking to me. The
fact that you don’t have any money for an attorney you know the
Miranda Rights talk about one being provided at your own . . . be
provided later. That’s not going to be tonight. That’s going to be
down the line.

[The defendant]: Yeah, so if you guys decide to put me in jail
because of this then I’m screwed.

[Munck]: Well, I just need to know, I just need to know from you do
you want to stop talking to me now and get an attorney or do you
want to stop, keep talking to me? That’s the decision that you
need to make, not me. You need to make that and let me know.

[The defendant]: Uh, I don’t, I don’t, I don’t know.

[Munck]: Okay, well I can’t make it for you. That’s something I
can’t give you advice. I can’t do anything like that. You need to
make your decision, you need [to] make a decision whether you
want to keep talking to me or not.

[The defendant]: I mean, honestly, at this point I just wanna go see
my kids cause I’m supposed to be with them right now. I’ve never
done that to [the victim]. I don’t see why she would say that.

[Munck]: Do you want to keep talking to me or not? Without an
attorney present? I will be more than happy to continue to talk to
you and, and do that but I need you to tell me what you want to
do.

[The defendant]: I, I, I, don’t understand, like what[.]

[Munck]: Okay, what you need to make a decision whether you
want to keep talking to me without an attorney or not and then we
can keep talking.

[The defendant]: Ya, but if I talk to you, or keep talking, or if I stop
talking do I get you [to] drop me back off and then you guys come
arrest me? Is that what happens?

5
[Munck]: Well, what I’m asking you, before, you’re thinking four
steps ahead. What I need to do is know whether you want to keep
talking to me without a lawyer present. That’s what I need to
know. If you do, then I’ll keep talking to you. If you don’t then I’ll
stop talking to you. But, that’s a decision, I guess I need you to
make that clear to me.

[The defendant]: I’m exhausted. I don’t know.

[Munck]: I think you made a mistake and I think you need to come
clean on it. That’s what I think.

[The defendant]: But I don’t do stuff like that.

[Munck]: I know you don’t.

[The defendant]: And I wouldn’t do that to her.

[Munck]: And I don’t think [it’s] part of your nature.

[The defendant]: But either way I’m screwed cause even if you
know we go to trial and all that and they say oh he really didn’t do
it. Well, I still have to go through a trial, I gotta bring my kids
through that. And then I have or go to trial and then they make
mistakes, which has happened a lot in the court then I get screwed
anyway. So I don’t . . .

[Munck]: I just want to know the truth behind what happened.
That’s all I want and I’m not getting it.

[The defendant]: I mean, I don’t, I don’t know what [the defendant’s
girlfriend] told you.

[Munck]: I know you . . . Well, before we continue I need to know,
you went to school for criminal justice[.]

[The defendant]: Yeah[.]

[Munck]: I need to know that you want to keep talking or at least
listening to me. But I need to know whether or not you want to
continue without an attorney right now. That’s what I need to
know from you.

[The defendant]: I mean, oh God, I never thought I’d be in this
situation.

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 [Munck]: You need to make a definitive decision. You need to
make a clear decision for me.

[The defendant]: I guess we’ll keep talking but I . . .

[Munck]: Okay, so your decision is that for now you’ll keep talking
to me without a lawyer?

[The defendant]: Yes[.]

(Emphasis added.)

The trial court found that the defendant’s statement at the beginning of
this exchange, “I guess the only thing I can do is probably stop talking and get
a lawyer,” put Munck “on notice that [the d]efendant might wish to remain
silent and might be seeking a lawyer,” but that it did not constitute “a
completely unequivocal invocation” of those rights. The defendant contends
that this was error because his statement “adequately conveyed to Munck that
[he] wanted to stop talking and consult with a lawyer.” We disagree.

An expression of doubt or uncertainty cannot be considered unequivocal.
See State v. Gasteazoro-Paniagua, 294 P.3d 857, 860-62 (Wash. Ct. App.
2013). Here, the defendant never explicitly stated that he no longer wished to
speak with Munck or that he wished to have an attorney present. Cf. Grant-
Chase, 140 N.H. at 267 (holding that defendant adequately indicated to officers
that she sought assistance of counsel when she stated that she wanted to call
her lawyer, and officer testified that request was unambiguous); State v. Nash,
119 N.H. 728, 731 (1979) (concluding that defendant’s statement that “he
thought he had better talk to an attorney” constituted a sufficient invocation of
his right to counsel). Rather, the defendant stated “I guess the only thing I can
do is probably stop talking and get a lawyer.” (Emphases added.) The
defendant’s use of the words “guess” and “probably” convey doubt or
uncertainty rather than an unequivocal statement or request. See Davis, 512
U.S. at 462 (determining that defendant’s statement “Maybe I should talk to a
lawyer” was not a request for counsel); United States v. Clark, 746 F. Supp. 2d
176, 185 (D. Me. 2010) (concluding that defendant’s use of the phrase “I guess”
in a lowered voice did not constitute an unambiguous invocation of “either his
right to counsel or his right to cease questioning” (quotation omitted)); Taylor v.
State, 689 N.E.2d 699, 703 (Ind. 1997) (determining that defendant’s statement
“I guess I really want a lawyer, but, I mean, I’ve never done this before so I
don’t know” constituted “an expression of doubt,” not an unambiguous
assertion of right to counsel (quotation omitted)); Gasteazoro-Paniagua, 294
P.3d at 860 (finding defendant’s statement “I mean, I guess I’ll just have to talk
to a lawyer about it . . .” was not an unequivocal request for counsel).

7
 Further, the defendant did not stop talking after making the statement.
He made the statement and then immediately continued to talk—explaining to
Munck that he did not commit the alleged assault. See Com. v. Vincent, 17
N.E.3d 1045, 1053, 1053-54 (Mass. 2014) (concluding trial judge did not err in
finding “defendant’s statements concerning possibly needing or wanting a
lawyer were ambiguous and equivocal” when defendant continued to talk about
incident without hesitation after making statements (quotation omitted)); cf.
Chapman, 135 N.H. at 397 (concluding that defendant’s statements were not
an invocation of his right to remain silent, but were part of a larger statement
in which he was arguing his innocence).

Nonetheless, the defendant maintains that “Munck understood that [he]
was invoking his rights to silence and counsel” because Munck responded by
stating “you just mentioned now that you want to stop talking and get a
lawyer” and then asked the defendant, “Is that what you want? Or do you
want to keep talking?” Contrary to the defendant’s assertion, Munck’s
statement and subsequent questions demonstrate that it was not clear to
Munck whether the defendant had “actually invoked” his right to remain silent
or his right to counsel. Davis, 512 U.S. at 458 (quotation omitted).

The defendant further argues that Munck did not “scrupulously honor”
his invocation of his right to remain silent and his right to counsel and,
instead, “repeatedly asked [the defendant] whether he wanted to continue
talking or to stop and get a lawyer.” (Quotation omitted.) In Tapply, law
enforcement officers, rather than eliminating any ambiguity or doubt that
existed as to whether the defendant wished to assert or waive his right to have
counsel present during the interrogation, actively discouraged the defendant
from asserting his right by diverting his attention to other matters. Tapply,
124 N.H. at 322-24. We held that, “[i]nstead of diverting [the defendant’s]
attention” from his right to counsel, “the officers had a duty to honor his right.”
Id. at 325. Here, however, Munck did not fail to honor the defendant’s rights,
nor did he discourage the defendant from exercising them. Rather, Munck
gave the defendant every opportunity to exercise his rights by repeatedly asking
him to clarify whether he did, in fact, want to stop talking and get an attorney.
Although at one point Munck told the defendant he thought the defendant
made a mistake and that he just wanted to know the truth, Munck
immediately reiterated that he needed to know whether the defendant wanted
to continue talking with him without an attorney. He then again explained
that he needed the defendant “to make a definitive . . . clear decision.”

In the face of the defendant’s ambiguous statement, Munck asked the
defendant at least seven times whether he wished to continue talking without
an attorney before the defendant clearly stated that he would continue talking.
We see nothing improper about Munck’s responses to the defendant’s
ambiguous statement. See State v. Sundstrom, 131 N.H. 203, 207 (1988)
(finding that officers responded properly to defendant’s ambiguous statement

8
by explaining that he could request a lawyer to be present at any time and by
clarifying his indecision by asking defendant who his lawyer was and whether
he wanted to speak with his lawyer at that time or later); see also State v.
Carpentier, 132 N.H. 123, 128 (1989).

Under these circumstances, we conclude that the defendant did not
unambiguously assert his right to remain silent or his right to counsel. See
Sundstrom, 131 N.H. at 207 (holding that defendant’s statements “I don’t
know” and “Later. There’s no hurry” in response to officer’s question about
whether defendant wanted to call his attorney did not indicate that he was
seeking counsel at that time). Instead, the defendant made an ambiguous
statement suggesting that he “might be invoking” his right to remain silent and
his right to counsel. Davis, 512 U.S. at 459. Accordingly, we hold that the
defendant did not effectively assert either his right to remain silent or his right
to counsel, and Munck was not required to stop questioning him. See id. at
461-62; see also Berghuis, 560 U.S. at 381; Sundstrom, 131 N.H. at 207-08.
Thus, we conclude the defendant’s Miranda rights were not violated, and we
find no error in the trial court’s denial of his motion to suppress. As the
Federal Constitution offers the defendant no greater protection than the State
Constitution does under these circumstances, see Jeleniewski, 147 N.H. at
465; Sundstrom, 131 N.H. at 208; Berghuis, 560 U.S. at 381-82, we reach the
same result under the Federal Constitution as we do under the State
Constitution.

B. Trial Testimony of Pediatrician

At trial, the State sought to introduce statements made by the victim to
Gwendolyn Gladstone, M.D., a pediatrician certified in child-abuse medicine.
The State argued that the statements were made for the purpose of medical
diagnosis or treatment and, thus, were admissible under New Hampshire Rule
of Evidence 803(4). Over the defendant’s objection, the court allowed
Gladstone’s testimony.

Gladstone testified that she was called to Exeter Hospital on the date of
the assault because an emergency room physician contacted her and told her
that the victim “had been brought [to the hospital] because she had a rash on
her face and bleeding in her eyes, and the doctor seeing her wanted to know if
[Gladstone] could come and look at her because [the doctor] was concerned
that this might not have been accidental.” Gladstone explained that, when she
arrived at the hospital, she reviewed a CAT scan of the victim, spoke with
“people in the emergency department,” and then met with the victim and her
mother. Gladstone testified that the victim recognized her because they “had
met not long before” at two prior unrelated appointments. Gladstone explained
that her previous meetings with the victim had been at Gladstone’s “medical
office where there’s medical equipment like lights to look in your eyes and ears
and a stethoscope, scale, [and a] blood pressure cuff.” She stated that, on the

9
date of the assault, they met in an examination room in the emergency
department at the hospital. She described the room as being “a small room
that has a hospital bed in the middle” with a “bright light overhead” and
“equipment lights such as the ones to look in eyes and ears,” and “oxygen
tubing” on the back wall. She stated that the room also contained “a cart with
emergency supplies in it.”

Gladstone explained that, in her first prior meeting with the victim, she
asked the victim’s mother a number of questions relating to the victim’s health.
She said that, on the date of the assault, she took “an interval medical history
[from the victim’s mother] which is to ask about anything medical that had
happened to [the victim] since the last time” Gladstone had taken such a
medical history. Gladstone agreed with the prosecutor that each time she met
with the victim, including the date of the assault, she had a conversation with
the victim about the fact that Gladstone was a doctor for children. She further
agreed that, on each occasion, the victim appeared to understand that she was
talking to a doctor and why she was doing so.

Gladstone stated that after obtaining the interval medical history, she
had the victim’s mother leave the room so she could speak with the victim
alone. She testified that the victim “sat on the exam table” and Gladstone
asked her if there was “anything that [she] wanted to tell [Gladstone] about.”
She stated that the victim responded by telling Gladstone about four “physical
things that had happened to her.” Gladstone explained that the first thing the
victim said was that the defendant “did this” and then “put her hand over her
mouth.” The victim also “pointed to a scratch on her arm and . . . said, ‘The
kitty did that.’” Gladstone stated further that the victim “had an IV in one of
her hands, and she told [Gladstone] that the doctor tied her up with a blue
rope and did that.” Gladstone asked the victim if the “blue rope” was a “blue
tourniquet on the table” in the room and the victim said “yes.” Gladstone
agreed with the prosecutor that the fourth thing the victim told her related to
the nature of the victim’s previous unrelated meetings with Gladstone.
Gladstone described the victim as being “a pretty perceptive kid” and said that,
on the day of the assault, she was “pretty talkative.” Gladstone videotaped the
child’s injuries. Although at oral argument defense counsel stated that she
believed Gladstone’s interview of the victim was videotaped, that videotape, if it
exists, is not part of the appellate record.

On appeal, the defendant argues that the trial court erred when it
permitted Gladstone to testify regarding the victim’s statement that the
defendant “did this,” and that when the victim said this, the victim put “her
hand over her [own] mouth.” The defendant contends that the victim’s
statement constituted inadmissible hearsay and was not subject to the
exception under New Hampshire Rule of Evidence 803(4).

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 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, 161 N.H. 618, 626
(2011). 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.

“Hearsay is generally defined as an extrajudicial statement offered in
court to show the truth of the matter asserted in the statement.” Id. (quotation
omitted); N.H. R. Ev. 801(c). Hearsay evidence is generally inadmissible,
subject to certain well-delineated exceptions. Munroe, 161 N.H. at 626; see
N.H. R. Ev. 802. One such exception, “Statements for Purposes of Medical
Diagnosis or Treatment,” applies to:

[s]tatements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis
or treatment, regardless of to whom the statements are made, or
when the statements are made, if the court, in its discretion,
affirmatively finds that the proffered statements were made under
circumstances indicating their trustworthiness.

N.H. R. Ev. 803(4). The rationale for this exception is that statements made
with a purpose of obtaining medical attention are usually made with the
motivation to obtain an accurate diagnosis or proper treatment and, thus, they
are inherently reliable because there is normally no incentive to fabricate.
Munroe, 161 N.H. at 626.

A three-part test must be met for evidence to be admissible under Rule
803(4). Id. at 627. First “a court must find that the declarant intended to
make the statements to obtain a medical diagnosis or treatment.” Id.
(quotation, brackets, and ellipsis omitted). Second, “the statements must
describe medical history, or symptoms, pain, sensations, or their cause or
source to an extent reasonably pertinent to diagnosis or treatment.” Id.
(quotation omitted). Third, the court must find that the circumstances
surrounding the statements support their trustworthiness. Id. Here, the
defendant challenges the trial court’s ruling with respect to the first and third
parts of the test.

With respect to the intent requirement of part one, “we require extra care
in determining the declarant’s intent” when the declarant is a child. State v.
Letendre, 161 N.H. 370, 373 (2011) (quotation omitted). This is 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. (quotation
and brackets omitted). Thus, the proponent of Rule 803(4) statements must

11
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.” Munroe, 161 N.H. at 627 (quotation and
brackets 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. at 628 (quotation omitted).

The defendant argues that there was no evidence to show that the victim
understood that she was meeting with Gladstone for the purpose of medical
diagnosis or treatment. Specifically, he contends that there was no evidence
that the victim “connected the environment to a medical purpose” or that she
“relayed the allegation against [the defendant] as being for the purpose of
diagnosing or treating, or [being] even related to, her injuries.” He further
maintains that there was no evidence that Gladstone informed the victim that
the information she was seeking “would help in the treatment of a medical
problem.” He argues that all of this is especially significant given that the
victim was three years old when she made the statement regarding the
defendant.

We conclude that the trial court’s finding that the State had met its
burden to demonstrate that the victim made the statement for medical
diagnosis or treatment was not an unsustainable exercise of discretion. The
record demonstrates that the victim’s statement was made on the same day as
the alleged assault. See id. (stating that “temporal proximity [between assault
and examination] can indicate a declarant’s statements were made for the
purpose of seeking medical treatment”). As the trial court found, the statement
was made in a hospital—“the most formal of medical settings”—after the victim
had undergone “diagnostic tests up to and including a CAT scan.” See id.
(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”). In addition, the victim had an existing doctor-
patient relationship with Gladstone as she had met with her in Gladstone’s
medical office on two prior occasions in the previous six months. See State v.
Graf, 143 N.H. 294, 304 (1999) (noting preexisting relationship between doctor
and victim in analysis of whether victim made statements for purpose of
medical diagnosis or treatment); cf. VanPatten v. State, 986 N.E.2d 255, 265
(Ind. 2013) (holding that there was insufficient evidence that alleged victim
made statements to forensic nurse-examiner for purpose of medical diagnosis
or treatment in part because there was no evidence regarding alleged victim’s
“past experience with medical facilities or medical providers”).

The defendant argues that the fact that Gladstone did not tell the victim
that the information she was seeking would help in the treatment of the victim

12
precludes a finding that the statement was made for medical treatment.
Although a doctor’s explanation that she is there to examine and treat any
injuries of the declarant can support a finding that the declarant made a
statement for the purpose of seeking medical treatment, see Letendre, 161 N.H.
at 375, the fact that Gladstone did not specifically tell the victim that she was
there to help with treatment is not dispositive of the issue of intent in this case.
Here, Gladstone testified that she explained to the victim that she was a doctor
for children and that the victim appeared to understand that she was talking to
a doctor and why she was doing so. When Gladstone asked the victim a non-
leading question regarding whether the victim had anything to tell her, the
victim told Gladstone that the defendant “did this” and then the victim “put her
hand over her [own] mouth,” that the cat scratched her, and that she had been
tied with a rope, which, when asked by Gladstone, the victim identified as
being a tourniquet. As the trial court noted, all of the victim’s responses
related to her “injuries and their . . . alleged causes.”

The defendant contends, however, that there was no evidence that
Gladstone actually provided any treatment to the victim. We have explained
that diagnosis need not inevitably result in treatment for statements to qualify
under the rule; however, the diagnosis must have been sought with the
purpose of treatment, if necessary. State v. Wade, 136 N.H. 750, 755 (1993).
Thus, the statements must have been made for the purpose of “medical
diagnosis or treatment, as opposed to solely for the purpose of enabling a
physician to testify.” Id. (quotation omitted). Gladstone’s open-ended, non-
leading question to the victim asking whether she had anything to tell
Gladstone does not support a conclusion that the victim made the statements
for the purpose of enabling Gladstone to testify. Rather, the circumstances
were sufficient to permit an inference that the victim made the statement to
Gladstone with the understanding that the doctor was examining her for a
medical purpose. In light of all of the circumstances, it can reasonably be
inferred that, notwithstanding the victim’s young age, she understood that any
statements she made to Gladstone were for the purpose of obtaining medical
help. See Munroe, 161 N.H. at 628; see also State v. Diaz, No. 103878, 2016
WL 4480668, at *10 (Ohio Ct. App. Aug. 25, 2016) (“[I]t is unlikely that a 3-
year-old child would believe that a nurse, in a medical setting such as a
hospital, was examining her for any purpose other than for a medical
evaluation.”); State v. Gordon, 952 S.W.2d 817, 823 (Tenn. 1997) (concluding
that, under totality of circumstances, three-year-old victim made statements to
child psychologist at hospital for purpose of medical diagnosis and treatment).

The defendant further argues that there was no evidence that the victim
“understood that what she was telling Gladstone needed to be truthful in order
for her medical treatment to be effective.” We disagree.

With regard to a child declarant, it is important that there be affirmative
evidence of the child’s understanding of the purpose for which information is

13
being obtained from her in order to preserve the trustworthiness guarantee
inherent in Rule 803(4). Wade, 136 N.H. at 755. In Wade, the doctor testified
only about her standard practice when initially seeing a patient and the
importance of taking a medical history, thus shedding light on the doctor’s
motives, but not the victim’s. Id. at 756. Here, Gladstone testified that she
had a prior relationship with the victim concerning a separate medical issue
and that she explained to the victim each time they met, including on the day
of the assault, that she was a doctor for children. See State v. Lowe, 140 N.H.
271, 275 (1995) (holding that four-year-old child’s presence in familiar location,
where child had previously received medical care, supported trial court’s
finding that statements were reliable). She stated that the victim appeared to
understand that she was talking to a doctor and why she was doing so.
Further, the fact that the victim responded to Gladstone’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. We,
therefore, conclude that the circumstances surrounding the statement at issue
support the trial court’s ruling that the statement was trustworthy.
Accordingly, we hold that the trial court did not unsustainably exercise its
discretion when it permitted Gladstone’s testimony.

II. State’s Cross-appeal

The defendant was charged with three counts of second-degree assault.
Each indictment alleged that the defendant “knowingly . . . caused bodily
injury to [the victim] . . . specifically by causing non-accidental trauma . . . .”
Each indictment then alleged a different injury: “by inflicting hemorrhaging in
[the victim’s] eyes,” “by inflicting hemorrhaging in her face,” and “by inflicting
hemorrhaging in her chest.” Before trial, the defendant moved to dismiss two
of the three indictments, arguing that they violated double jeopardy principles
because the injuries they alleged were caused by the same discrete act and,
therefore, if convicted under multiple indictments, he would be subjected to
multiple punishments for the same offense. The State objected.

Subsequently, the trial court issued an order concluding that “the
appropriate units of prosecution for second degree assault are an act and a
specific bodily injury” and, therefore, to support three convictions in this case,
the State would “need to prove three actions and three bodily injuries.” It
explained, however, that it would “not dismiss the indictments at this juncture”
because “there [was] insufficient evidence before [it] to determine how many
‘acts’ occurred causing the alleged injuries.” In doing so, the court noted that
“[t]he double jeopardy bar does not prevent a defendant from being tried on
alternate theories of crimes—it merely prevents a person from being convicted
of, and sentenced [for], multiple crimes for the same offense.” Thus, the court
denied the defendant’s motion without prejudice to raise the double jeopardy
argument after trial in the event that he was convicted under multiple
indictments.

14
 At the close of the evidence, the defendant requested a jury instruction
on the lesser-included offense of simple assault, which the court granted. The
jury acquitted the defendant of the second degree assault charges and
convicted him of the simple assault charges. Following the verdict, the court
stated that it would issue an order regarding the defendant’s double jeopardy
claim, but that it considered there to be “one offense charged three different
ways.” The State objected, arguing that the defendant was convicted of three
separate offenses and, therefore, his convictions did not violate double jeopardy
principles under either the State or Federal Constitutions. The court issued an
order dismissing two of the three simple assault convictions on the basis that
“there was a single criminal act that caused three arguably disparate injuries.”
The court explained that “[t]he unit of prosecution for simple assault by means
of recklessly causing bodily injury is an act that results in bodily injury of any
type. Thus, a single act that causes two or more medically distinct ‘injuries’
(such as, for example a two handed push that causes two separate contusions)
is a single offense.” (Citation omitted.)

On appeal, the State argues that the trial court erred in dismissing two of
the simple assault charges. Noting that “[t]he primary issue in the double
jeopardy challenge was the appropriate unit of prosecution,” the State contends
that the unit of prosecution for simple assault is “each individual injury that
the defendant recklessly caused, even if the injuries were caused by only a
single act.” Because each indictment alleged a discrete bodily injury, the State
maintains that the defendant’s convictions did not violate double jeopardy
principles. The issue of double jeopardy presents a question of constitutional
law and, therefore, our review is de novo. State v. Fischer, 165 N.H. 706, 715
(2013).

Part I, Article 16 of the New Hampshire Constitution and the Fifth and
Fourteenth Amendments to the United States Constitution protect a defendant
from being punished twice for the same offense. N.H. CONST. pt. I, art. 16;
U.S. CONST. amends. V, XIV.

Multiple punishment cases come in two varieties. First,
there are the so-called “double-description” cases, in which the
issue is whether two statutes describe two separate offenses or are
merely different descriptions of the same offense. Second, there
are “unit of prosecution” cases in which the problem is not that the
same course of conduct is proscribed by more than one statute but
that a defendant’s continuing course of conduct is fragmented into
more than one violation of a single statutory provision.

State v. Ramsey, 166 N.H. 45, 51 (2014) (quotations, ellipsis, citations, and
brackets omitted). The parties agree that this case is of the second variety.

15
 We recently recognized that, although we have consistently articulated
the test to be used in a double jeopardy analysis under our State Constitution,
we have not consistently applied the test. State v. Locke, 166 N.H. 344, 351
(2014).

Our test, which we have referred to as the ‘same evidence’ test,
provides: Two offenses will be considered the same for double
jeopardy purposes unless each requires proof of an element that
the other does not. We focus upon whether proof of the elements
of the crimes as charged will in actuality require a difference in
evidence.

Id. (quotation omitted). Because we have applied this test inconsistently and
because we have expressed doubt that our double jeopardy law can be
reconciled, we invited “parties in future cases to ask us to reconsider our
double jeopardy jurisprudence consistent with the principles of stare decisis
and to suggest a formulation of the double jeopardy test to be applied under
our State Constitution.” Id. at 353 (citation omitted).

The parties here have not asked us to reconsider our double jeopardy
jurisprudence. Although in its brief the State applies the “same evidence” test,
it also utilizes a statutory interpretation analysis, looking to the legislature’s
intent as expressed in the words of the simple assault statute to determine the
proper unit of prosecution in this case. At oral argument, the State further
recognized that a unit of prosecution analysis involves looking to the language
of the statute to determine the legislature’s intent.

Analyzing the legislature’s intent to determine the proper unit of
prosecution is an inquiry that we have often utilized when addressing a federal
double jeopardy challenge. See State v. Cobb, 143 N.H. 638, 647 (1999)
(explaining that under the United States Constitution’s Double Jeopardy
Clause “determination of the proper unit of prosecution is a function of the
legislature’s intent” (quotation and brackets omitted)); State v. Stratton, 132
N.H. 451, 455 (1989) (noting that “our review of the defendant’s double
jeopardy claim under the United States Constitution requires us to consider
the legislature’s articulated intent”). This is also the inquiry that the trial court
utilized in its pre-trial order, stating that it would “look to the language of the
applicable statute to determine the proper unit of prosecution.” (Quotation and
brackets omitted.) In its post-trial order, the court cited its first order in
concluding that “[t]he unit of prosecution for simple assault by means of
recklessly causing bodily injury is an act that results in bodily injury of any
type.” On appeal, the State does not appear to challenge the trial court’s use of
this inquiry. To the extent that the State believes the trial court improperly
used this inquiry, it was incumbent upon the State to move for reconsideration.
See State v. Mouser, 168 N.H. 19, 27 (2015). Because the appellate record
does not demonstrate that the State challenged the trial court’s use of this

16
inquiry, we will use it in addressing the State’s argument that the trial court
erred in determining the proper unit of prosecution for simple assault.

Thus, in determining whether a defendant is subject to multiple
punishments for the same offense, we must determine the unit of prosecution
intended by the legislature. State v. Jennings, 155 N.H. 768, 777 (2007).
“When a statutory provision is ambiguous, the rule of lenity demands that all
doubt be resolved against turning a single transaction into multiple offenses
and thereby expanding the statutory penalty.” Id. However, the rule of lenity
“is applicable only where statutory ambiguity has been found. Lenity thus
serves only as an aid for resolving an ambiguity; it is not to be used to beget
one.” Id. (quotation omitted). We review the plain language of the simple
assault statute to discern the legislature’s intent. See id. We construe
provisions of the Criminal Code “according to the fair import of their terms and
to promote justice.” RSA 625:3 (2016).

The simple assault statute provides, in pertinent part, that “[a] person is
guilty of simple assault if he . . . [r]ecklessly causes bodily injury to another.”
RSA 631:2-a, I(b). The State does not dispute that the defendant’s simple
assault convictions stemmed from only one act. Nonetheless, the State
contends that this is immaterial because the statutory language demonstrates
that the legislature intended “to make the unit of prosecution each individual
injury that the defendant recklessly caused, even if the injuries were caused by
only a single act.” We disagree.

The plain language of the statute establishes that the legislature has
criminalized the act of recklessly causing bodily injury—not each individual
injury. Cf. State v. Greene, 137 N.H. 126, 128 (1993) (explaining that the
elements of knowing simple assault are twofold: “the culpable mental state of
knowingly and the proscribed conduct of unprivileged physical contact”).
Nothing in the language of the statute suggests that the legislature intended to
allow multiple punishments “for a single criminal act against a single victim,
simply because the act results in multiple injuries.” Com. v. Traylor, 34 N.E.3d
276, 284, 284-86 (Mass. 2015) (holding that unit of prosecution for statute
prohibiting assault and battery upon a child was not injuries resulting from
proscribed conduct). Accordingly, we hold that the legislature intended for the
unit of prosecution under RSA 631:2-a, I(b) to be each individual act of causing
bodily injury to another. We, therefore, conclude that the trial court did not err
when it dismissed two of the three simple assault convictions.

Finally, any issues raised in the defendant’s notice of appeal that he has
not briefed are deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

Affirmed.

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

17