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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Strafford No. 2009-535

THE STATE OF NEW HAMPSHIRE v. JOSEPH A. MUNROE Argued: February 10, 2011 Opinion Issued: March 31, 2011 Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant. CONBOY, J. After a jury trial in Superior Court (Brown, J.), the defendant, Joseph A. Munroe, was convicted of six counts of aggravated felonious sexual assault (AFSA), one count of felonious sexual assault (FSA), one count of felony indecent exposure, and one count of misdemeanor child endangerment. See RSA 632-A:2 (Supp. 2010); RSA 632-A:3 (Supp. 2010); RSA 645:1 (Supp. 2010); RSA 639:3 (2007). On appeal, the defendant argues the trial court erred by: (1) finding the child complainant competent to testify; (2) permitting hearsay testimony from a pediatrician; (3) denying his motion to dismiss; and (4) issuing jury instructions that constructively and erroneously amended one of the indictments. We affirm in part and vacate in part.

The jury could have found the following facts. In the spring of 2008, the defendant was living in a trailer home in Milton with his pregnant wife, E.F., their one-year-old daughter, K.M., and E.F.'s three children from her previous marriage to L.M.: son D.M., age nine years; daughter A.M., age three years; and daughter V.M., age seven years, the victim herein. Because the home was crowded with belongings and the outermost bedrooms did not have adequate heat, only one of the three bedrooms in the trailer was used by family members for sleeping. The defendant and E.F. slept on the futon couch in the living room, K.M. slept in a crib next to the couch, and D.M. slept adjacent to the couch on the floor. V.M. and A.M. generally slept in the one usable bedroom together, but at the time of the events at issue they too were sleeping in the living room because a family friend, C.F., had moved into their home and was using the bedroom. On an evening in April 2008, E.F. left the children in the care of the defendant. C.F. was working, D.M., A.M., and K.M. were playing video games in the bedroom, and V.M. was lying on the couch watching television with the defendant. V.M. was wearing pink pajamas and a "pull-up" to protect against nighttime wetting. The defendant first pulled down V.M.'s pajama bottoms and she pulled them back up. The defendant then pulled down her pajama bottoms and her pull-up, as well as his pants, got on top of her as she lay on the couch, and touched his penis to her vagina. The defendant moved his body "up and down" while touching her bottom with his hands. The defendant then knelt by her feet and performed cunnilingus on her. At some point, the defendant went into the bathroom and came out "wiggling" his penis in his hand. He also showed V.M. a picture on his cellular telephone of a girl showing her bottom. At some point, the defendant also showed V.M. a video on his Play Station Personal gaming system (PSP) while they sat together on the couch. The video showed the defendant and two women engaging in sexual activity. Although V.M. tried to stop watching the video, the defendant kept pushing her head down to view it. Several weeks after this incident, E.F. and C.F. were out of the house and the defendant was watching the children. V.M.'s siblings were in the bedroom and the defendant and V.M. were on the couch in the living room. The defendant pulled down V.M.'s purple pajama bottoms and her pull-up, licked his finger before moving it "up and down" in her vagina, and then licked his finger again. The defendant also lay on top of V.M., rubbing his penis against her vagina. The defendant then placed his penis in her mouth and pushed her head down when she tried to pull her head away. After both of these incidents the defendant told V.M. that if she told anyone what had happened "someone else . . . who is mean" would take her away from her family.

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Although worried that she might be taken away from her home, V.M. told a school friend, H., that the defendant had "touched her in bad places." This information was related to E.F. by neighborhood parents. Together E.F. and the defendant confronted V.M. The defendant was upset and angry, and told V.M. to "stop lying." V.M. responded that she had just been "kidding" about what she told H. Approximately two days later, V.M., A.M., and D.M. left to spend the weekend in Gonic with their father, L.M., and his fianc

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