After a jury trial in Superior Court {Bomstein, J.), the defendant, Robert Towle, was convicted on four counts of aggravated felonious sexual assault for engaging in fellatio and anal penetration with his minor son, and on four counts of criminal liability for the conduct of another for encouraging his wife and another adult to engage in sexual acts with his minor son. See State v. Towle,
The defendant first argues that the trial court erred by permitting the State to use prior statements to refresh the victim’s recollection of the final sexual assault that occurred in early 2006, after the victim had been removed from the defendant’s custody. The defendant asserts that the victim testified unequivocally that the defendant had not sexually assaulted him on that occasion and was neither confused nor uncertain. Therefore, he argues, the State had no justification for refreshing his recollection.
The record reflects the following exchange on direct examination:
[State]: And did anything happen at that time when your father [was] there?
[Victim]: Well, I had showed up. And he was in the computer room with the baby. I went back there. And we were chit-chatting. He was doing whatever on the computer and drinking a beer. And then he had asked me to take my .pants off. And I was like, really? You know, we’re already in this situation and you’re right here asking me to take my pants off. And I just had a serious problem with that.
[State]: And then what ended up happening?
[Victim]: To the best of my knowledge, I just decided against it. I was really uncomfortable with the whole situation. I didn’t want it to happen, period. You know? It was I’m here to see my brother, not to engage with you. You know? It’s unnecessary.
[State]: [D]id you argue with him or what?
[Victim]: No, I don’t believe there was any real arguing. Just, you know, I felt my time being there was over and I believe I left.
[State]: And so did anything happen between you and your father at that location?
[Victim]: No, because I believe I made sure it didn’t.
The defendant, who represented himself at trial, revisited the incident during his cross-examination of the victim:
[Defendant]: [The State] asked you — he was trying to ask you, you know, if you were assaulted by me at the Reed’s [sic] house on High Street.
[Victim]: Right.
[Defendant]: And just in your testimony, you conveyed to him that nothing happened?
[Victim]: To the best of my memory, nothing happened. I put it — you know, I said no.
[Defendant]: Just a second ago, did you not just say to me that it wasn’t in front of [infant son], it was —
[Victim]: Well, the situation that you were trying to do wasn’t happening in front of [infant son].
[Defendant]: My question to you was not whether there was a situation. My question was —
[Victim]: Well, if you’re referring to nothing happening, you know, you trying to get me to take my pants off, and if that’s not it, then please fix me — point me to where I’m supposed to go with that. Correct me. That’s what I’m trying to say.
On redirect, the State attempted to use the victim’s prior statements to refresh his recollection of the incident. The defendant objected on the basis that the State had not laid a foundation for refreshing the victim’s recollection. The trial court sustained the objection and ordered the
[State]: Now, in terms of your testimony yesterday during direct and cross-examination, you talked about visiting your brother____
[Victim]: Uh-huh.
[State]: And you recall the Defendant propositioning you at that time to do what had happened many times before that you testified?
[Victim]: Yes, sir..
[State]: And at that point you testified that you didn’t recall him actually performing oral sex on you at that time; is that correct? [Victim]: I did.
Next, the State asked the victim to review a portion of his interview with a staff member at the Child Advocacy Center and whether the interview refreshed his recollection about the incident that had occurred in early 2006. The victim stated that the interview did refresh his recollection, and the defendant objected.
During the ensuing sidebar conference, the defendant argued that the State was attempting to refresh the victim’s recollection when the victim, on direct examination, had never stated that he could not remember what had occurred and stated clearly that nothing had happened. The State argued that the victim had just declared that he did not recall what had occurred, and only at that point did the State ask the victim to review the interview transcript. The trial court overruled the objection and allowed the State’s examination to continue. The State continued its redirect examination and the victim stated that he remembered the defendant asking him to take his pants off and the defendant actually performing oral sex on him.
The defendant reiterated his objection during the next day of trial and in a motion to dismiss after the conclusion of the State’s case. The State argued that the victim had stated on redirect examination that he did not remember if anything had occurred during that visit with the defendant in early 2006 and that its efforts to refresh the victim’s recollection were proper. After noting that it had “observed and heard the entire course of trial and . . . the circumstances presented,” the trial court ruled that refreshing the victim’s memory was proper.
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. Miller,
It is well-settled that counsel can use a prior written statement to stimulate the recollection of a witness who demonstrates a doubtful memory while testifying. See State v. Cote,
The defendant argues that Cote is distinguishable from the present matter because in Cote the witness was a young child, and the trial court found he was giving one word answers to questions in order to end the examination and avoid discussing traumatic events. Id. at 371-72. The defendant contends that Cote is 'inapplicable because the witness was an adult, albeit one who was testifying about serious abuse he had suffered for many years as a child, and because he was able to give “a comprehensive and detailed account of the events on the day in question.”
These factual distinctions are not dispositive. Our decision in Cote is neither limited to its facts nor anomalous. In fact, Cote is consistent with other jurisdictions that grant broad discretion to trial courts to determine whether refreshing a witness’s recollection is warranted. See, e.g., Thompson v. United States,
Furthermore, we disagree with the defendant’s assertion that “[n]othing in [the victim’s] trial testimony... afforded a basis to allow the prosecutor to employ the refreshing-recollection device.” In his testimony, the victim described a myriad of abuses inflicted on him by the defendant. He testified with clear and unambiguous language to such things as statements the defendant made to him, acts the defendant made him perform or performed on him, and where and when such acts occurred. When he began to detail the incident that occurred in early 2006, however, the tone of his language became uncertain and ambiguous. In his description of that incident, he began using phrases such as “I believe,” “to the best of my knowledge,” or “to the best of my memory” before detailing what he believed had occurred. This phraseology suggests uncertainty or a failure of memory, and the shift from clear and unambiguous language to uncertain language, along with the trial court’s ability to observe the victim’s demeanor, supports the trial court’s reasonable conclusion that the victim’s memory was exhausted. Furthermore, the victim, on redirect examination, testified that he “didn’t recall [the defendant] actually performing oral sex on [him]” in early 2006. Accordingly, we conclude that the trial court properly exercised its discretion by permitting the State to use the victim’s
The defendant next argues that the trial court erred by permitting the State to elicit testimony referencing evidence that had been excluded prior to trial. The defendant asserts that the repeated references to the excluded evidence unfairly prejudiced his case.
The record reflects the following relevant facts. Before the trial began, the defendant filed a pre-trial motion to exclude five photographs that depicted the defendant and the victim nude and in various states of arousal. The trial court granted the motion to the extent that the photographs and any “explicit inflammatory testimony” describing the photographs would not be admissible at trial unless the defendant “opened the door.” Nevertheless, the trial court allowed the State to elicit testimony regarding the photographs and their “inappropriate” nature to explain why E.J., the witness who brought the sexual abuse to the attention of the police and the New Hampshire Division for Children, Youth, and Families (DCYF), came forward with her allegations. Then, prior to E.J.’s testimony, the trial court ruled that the photographs could be described as evidence that E.J. believed would implicate the defendant in criminal activity. In reaching this conclusion, the trial court found that the photographs had significant probative value, particularly with respect to explaining why E.J. went to the police and DCYF and why those agencies took action against the defendant, but the photographs could unfairly prejudice the defendant. Therefore, the trial court excluded the photographs and any graphic descriptions thereof but permitted testimony that E.J. had evidence that she believed substantiated her allegations in order to provide context to her actions and testimony.
During the trial, other witnesses briefly discussed the photographs in various contexts. The victim, during the State’s direct examination, testified that he finally “opened up” about the sexual abuse after his guardian ad litem (GAL) confronted him with the fact that she had “[seen] the pictures.” This was the only time during trial that this evidence was referred to as being photographic in nature.
On appeal, the defendant argues that the trial court erred by permitting the
To determine whether alleged cumulative errors require reversal, we first determine whether the trial court did, in fact, err. See State v. Ellsworth,
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 on something other than the established propositions in the case. State v. Perri,
The trial court can, however, obviate the danger of unfair prejudice by such actions as issuing a limiting instruction to the jury or limiting the scope of the evidence that the parties are permitted to present to the jury. See, e.g., Willis,
With respect to each reference to the excluded photographs, we conclude that the trial court’s ruling is sustainable. The references to the photographs provided necessary context to testimony of the witnesses. In ruling on the defendant’s pre-trial motion, the trial court stated: “[T]he photographs themselves are not admissible. Explicit inflammatory testimony describing the contents of the photos is not admissible; however, the State [may] elicit reasonable evidence describing, again, at least the photographs insofar as they offer an explanation of why [E.J.] went to the police and what she said....” At that time, the trial court permitted the State to refer to the contents of the photographs as “inappropriate,” but prior to E.J.’s testimony it revised its ruling and limited E.J.’s ability to characterize the photographs to “evidence of a crime that [the defendant] committed.” In making these rulings, the trial court accepted the State’s argument that reference to the photographs was necessary to explain why E.J. went to the police and DCYF to report the defendant’s activities with the victim and why the police took her allegations seriously. In reaching this conclusion, the trial court recognized that the photographs had substantial probative value, due to the context they provided, but also created a substantial danger of unfair prejudice, due to their graphic nature, and tailored its response accordingly to permit the most probative aspects to be introduced while excluding the most prejudicial aspects.
In response to the defendant’s objection after the victim had testified that he disclosed the abuse to his GAL after she told him that she had “[seen] the pictures,” the trial court found that the statement provided context to the victim’s testimony regarding why he finally came forward with his story. The trial court also found that nothing in that passing statement violated its ruling on the defendant’s pre-trial motion concerning how the photographs could be characterized and did not unfairly prejudice the defendant. Thus, the trial court sustainably concluded that the testimony was proper.
In response to the defendant’s efforts to attack the testifying witnesses’ credibility, EJ.’s credibility, and the actions of the police and DCYF in response to E.J.’s complaint, the trial court found that:
the Defendant had questioned [his witnesses] . . . about the conclusions at which they had arrived as to whether the Defendant may have sexually assaulted or otherwise sexually abused [the victim], and about the actions that they took based on those concerns and conclusions in the years 2006, 2007 and 2008.
The trial court found that the witnesses’ testimony could, without clarification, lead the jury to conclude that the Berlin police and DCYF had no justification for taking action against the defendant. The trial court thus concluded that the probative value of such clarification was not substantially outweighed by the risk of unfair prejudice. Accordingly, the trial court ruled that the defendant had “opened the door” for the State to elicit limited testimony regarding the photographs.
On appeal, the defendant does not argue that the trial court erred by concluding that the testimony elicited from his witnesses on direct examination “opened the door”; instead, he argues that the references to the photographic evidence created an impression that unfairly prejudiced him. We will assume without deciding that New Hampshire Rule of Evidence 403 applies to the testimony in question, regardless
The trial court excluded, in its ruling on the pre-trial motion, the most prejudicial aspect of the evidence, the photographs themselves and any descriptions of the photographs’ contents. These limitations minimized the danger of unfair prejudice while preserving the probative aspect of the evidence — that is, explanation as to why witnesses undertook actions leading to the investigation of the defendant. See Perri,
We next address the defendant’s challenge to the no-contact order imposed on him as a condition of his sentence. The defendant asserts that, pursuant to RSA 651:2 (Supp. 2014), a trial court cannot impose a no-contact order as part of a sentence of imprisonment. He contends that a trial court can impose such a condition only on suspended or probationary sentences or conditional discharges, where violation of the condition may lead to imposition of the sentence or revocation of probation. We agree.
We first determine whether this challenge was properly preserved for our review. See State v. Blackmer,
Under the plain error rule, we may consider errors not raised in the trial court. See id. However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. State v. Hancock,
We first address whether the trial court exceeded its statutory authority. See State v. Parmenter,
RSA 651:2 defines the types of sentences that a trial court may impose upon a person convicted of a felony and limits those options to “imprisonment, probation, conditional or unconditional discharge, or a fine.” RSA 651:2, I. We have held that within those parameters, the trial court has broad discretion to “assign different sentences, suspend sentence, or grant probation in order to achieve the goals of punishment, deterrence, protection of society and rehabilitation.” State v. Evans,
For example, a trial court may choose, without exceeding its statutory authority, to set a term of imprisonment and partially suspend that sentence or exempt the defendant from punishment, so long as the defendant complies with the conditions imposed. See, e.g., State v. W.J.T. Enterprises,
Here, the trial court sentenced the defendant to 57 to 114 years in prison. In addition, the trial court ordered that the defendant not contact certain individuals, including the victim, E.J., and the defendant’s youngest son. The trial court did not, however, suspend or defer any part of the sentence, or impose a conditional discharge. Because the trial court sentenced the defendant to imprisonment, the no-contact order is an independent term that requires statutory authority for its imposition.
The State argues that the provisions of RSA 651:2 do not prevent the trial court from imposing additional conditions on a term of imprisonment, relying upon on our decision in State v. Smith,
With respect to the remaining plain error factors, we conclude that they have been satisfied. Because we have previously defined the scope of RSA 651:2, see, e.g., Buckingham,
Convictions affirmed; sentence affirmed in part and reversed in part.
Notes
We note that this testimony occurred prior to the trial court’s decision to prevent E. J. from referring to the photographs as anything but “evidence.” After the trial court imposed this limitation, the photographs were referred to as either evidence or evidence that E.J. believed was substantial or credible.
To the extent that the State argues that Smith is factually similar to this case, we note that in Smith the no-contact order was first imposed as a condition of a suspended sentence, not as a condition of a term of imprisonment, which is factually distinct from the present matter. Smith,
We note that our holding today does not prevent those listed in the no-contact order from pursuing alternative remedies to prevent the defendant from contacting them. We also note that our holding does not address the issue of the Department of Corrections’ authority to place limitations on the defendant’s contact with third persons, including those covered by the trial court’s no-contact order, while he serves his sentence.