State v. Towle, 167 N.H. 315

Background

Defendant Robert Towle was convicted after a jury trial of multiple counts of aggravated felonious sexual assault (sexual acts with his minor son) and counts of criminal liability for encouraging others to engage in sexual acts with the child.
Trial court sentenced Towle to 57–114 years imprisonment and imposed a no-contact order forbidding contact with the victim, the reporting witness (E.J.), and Towle’s other minor son.
On appeal Towle raised three challenges: (1) the State improperly used prior statements to refresh the victim’s recollection when the victim did not demonstrate a lack of memory; (2) the State elicited trial testimony referring to photographs that had been excluded as prejudicial; and (3) the trial court lacked authority to impose the no-contact order as part of a term of imprisonment.
Trial record: victim’s testimony shifted from detailed to uncertain language about a 2006 incident; the State used a Child Advocacy Center interview to refresh the victim and elicited refreshed testimony that oral sex occurred.
Pretrial, the court excluded five explicit photographs but allowed limited references to photographic evidence to explain why E.J. reported the abuse; during trial several witnesses mentioned “photos” or “evidence” in that limited context after the defense attacked E.J.’s credibility.
Appellate posture: New Hampshire Supreme Court reviews evidentiary rulings for abuse of discretion and reviews whether the no-contact condition exceeded statutory sentencing authority de novo (plain error review for preservation issues).

Issues

Issue	State's Argument	Towle's Argument	Held
Whether the State properly used prior statements to refresh the victim’s recollection	Victim showed lack of recollection on redirect; prior interview properly refreshed memory	Victim testified clearly that nothing happened and showed no memory failure, so refreshing was improper and prejudicial	Court affirmed: trial court reasonably found diminished recollection (demeanor, qualifying language) and did not abuse discretion in permitting refreshment
Whether testimony referencing excluded photographs unfairly prejudiced the defendant	Limited references were necessary to explain why E.J. reported and to rebut impressions defendant’s questioning created; probative value outweighed prejudice	Repeated references cumulatively created same prejudicial impression as the excluded photos and warranted reversal	Court affirmed: trial court tailored exclusions, allowed only limited contextual testimony after defendant "opened the door," offered limiting instruction (which defendant declined), and did not unsustainably exercise discretion
Whether a trial court may impose a no-contact order as a condition of an active term of imprisonment	State did not show statutory authority forbids some limitations, but relied on precedent allowing conditions in other contexts	RSA 651:2 authorizes only imprisonment, probation, conditional/unconditional discharge, or a fine; no-contact order as independent condition of an active prison term exceeds statutory authority	Reversed the no-contact order portion of sentence: court held imposing no-contact as part of imprisonment exceeded statutory authority under RSA 651:2 (plain error review)

Key Cases Cited

State v. Miller, 155 N.H. 246 (trial court has broad discretion in admissibility of evidence)
State v. Cote, 143 N.H. 368 (prior statements may be used to refresh a witness who demonstrates doubtful memory)
State v. Ellsworth, 142 N.H. 710 (framework for assessing whether cumulative trial errors require reversal)
State v. Perri, 164 N.H. 400 (definition of unfair prejudice under Rule 403)
State v. Parmenter, 149 N.H. 40 (trial court exceeds statutory authority when it imposes conditions not authorized by sentencing statute)
State v. Buckingham, 121 N.H. 339 (vacating sentence terms that lack statutory authorization)
State v. Smith, 163 N.H. 13 (distinguished; no-contact imposed as condition of a suspended sentence in that case)