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2004-502, STATE OF NH v. SCOTT ABRAM
admit certain evidence. We affirm in part, reverse in part, and remand.
appeals, challenging the trial court’s failure to sever the charges for trial and to one count of indecent exposure and lewdness, RSA 645:1 (Supp. 2005). He 2005), four counts of endangering the welfare of a child, RSA 639:3 (1996), and
Superior Court (defendant married a woman who had three children, A.A., C.A. and K.A. The The jury reasonably could have found the following facts. In 1997, the
I. Background
sexual assault of his step-children, A.A. and C.A., RSA 632-A:2 (1996 & Supp.
McGuire, J.) of twenty-one counts of aggravated felonious
DALIANIS, J.
The defendant, Scott Abram, was convicted by a jury in
Paul Garrity, of Londonderry, on the brief and orally, for the defendant.
on the brief and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general,
Opinion Issued: June 13, 2006 Argued: February 22, 2006
SCOTT ABRAM page is: http://www.courts.state.nh.us/supreme. v.
THE STATE OF NEW HAMPSHIRE errors in order that corrections may be made before the opinion goes to press.
Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial No. 2004-502 Readers are requested to notify the Reporter, Supreme Court of New Merrimack ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as then forced her to engage in sexual intercourse with him. When C.A. returned,
C.A. was absent from the bedroom, the defendant said, “f--- me,” to A.A., and
punishment more quickly. He then ordered C.A. to lock the front door. While subjected her to sexual intercourse. He then masturbated in front of her. comments, and coerced them onto the bed under the guise of ending the kneel in a corner of his bedroom. He berated them with obscene and vulgar
intercourse to avoid punishment. 2
she refused, he made her perform fellatio. cunnilingus, and demanded that she perform fellatio. home from school as a “punishment,” subjected her to sexual intercourse and
pinned A.A. against the wall of the pool, removed her bathing suit bottom, and told J.T. to leave the pool and play in the yard. At that point, the defendant and C.A. had been arguing and, as a punishment, the defendant made them family members at home. They were playing in the pool when the defendant
the damage, he yelled at her and then coerced her into engaging in sexual
her vagina and breasts with her hand. He then demanded, “f--- me,” and when
occasions throughout the same period of time, the defendant made A.A. stay
At another point in September 2002, the sexual abuse escalated. A.A. pool in their backyard. At the time, the defendant, A.A. and J.T. were the only
tile on the bathroom floor with an iron. When A.A. told the defendant about rest of the family, including the defendant, attended a wedding. K.A. melted a empty cubicles in the office, sat her on the desk, and instructed her to touch In early September 2002, A.A. stayed home to baby-sit for K.A. while the cleaning the facility. On one occasion, the defendant forced A.A. into one of the penetration and forced him to engage in mutual acts of fellatio. On different clean its office on Wednesday evenings and Sundays. A.A. assisted him in throughout the 2001-2002 school year, the defendant subjected C.A. to anal penetration and forced her to perform fellatio. On numerous occasions
During the summer of 2002, the defendant sexually assaulted A.A. in the
Later that month, RE/MAX Realty in Concord hired the defendant to
bedroom on a crib mattress. He subjected her to sexual intercourse and digital fellatio. his bedroom, subjected him to anal penetration and forced him to engage in had a party at their house. Late in the evening, the defendant called C.A. into and nine years old, respectively. Specifically, on or about January 1, 2002, the defendant and his wife
Shortly after the move to Concord, the defendant assaulted A.A. in his
2000, the family moved to Concord, at which time A.A. and C.A. were eleven defendant and his wife had two children together, M.T. and J.T. In November abuse he inflicted between November 2000 and November 2002. aggravated felonious sexual assault and related offenses, arising from the
indecent exposure and lewdness. The defendant appealed.
defendant was subsequently arrested and indicted on multiple charges of
acts of fellatio.
3
assault, four counts of endangering the welfare of a child, and one count of
At that time, A.A. was thirteen years old and C.A. was eleven years old. The
forced her to perform fellatio. joinder. The trial court also granted the State’s motion
subjected C.A. to anal penetration and demanded that he engage in mutual come into his bedroom and C.A. complied out of fear. The defendant again hurt” and left the room. Later that day, the defendant demanded that C.A.
convicted the defendant of twenty-one counts of aggravated felonious sexual defendant had sexually abused their younger brothers, K.A. and M.T. The jury sexual intercourse with him and to perform fellatio. the defendant had been sexually abusing them over a significant period of time. the admission of evidence concerning the victims’ allegations that the leave the room. After he left, the defendant again forced A.A. to engage in in limine, precluding downstairs and onto the couch where he engaged in sexual intercourse and denied the motion, finding that the acts fell within the “common plan” rule for go upstairs. When he realized that no one had arrived, he ordered her back arising from the mutual acts that occurred in September 2002. The trial court thought he saw a car pull into their driveway, so he told A.A. to get dressed and only A.A. from the charges involving only C.A., and to further sever the charges Prior to the jury trial, the defendant moved to sever the charges involving
C.A. to anal penetration on the couch, until C.A. told the defendant that “it
On November 4, 2002, both victims revealed to the defendant’s wife that perform cunnilingus on A.A. At some point, the defendant ordered C.A. to
her breasts and subjected her to cunnilingus. At that point, the defendant
coerced C.A. into smoking marijuana with him. The defendant then subjected “punishment.” After forcing C.A. to stand in the corner for a period of time, he The next day, the defendant kept C.A. home from school as a
children to engage in sexual intercourse with each other and ordered C.A. to and intimidate them until they finally complied. The defendant then forced the and C.A. The children refused, but the defendant continued to verbally harass show on television and ordered her to remove her clothes, after which he licked A.A. into smoking marijuana. He then forced A.A. to watch a pornographic school to baby-sit for J.A. The defendant told J.A. to go upstairs, and coerced On October 31, 2002, the defendant ordered A.A. to stay home from
defendant then ordered A.A. to alternate between performing fellatio on him the defendant ordered him to undress, which C.A. did hesitantly. The plan.
so he was entitled to severance as a matter of right under
same conduct, upon a single criminal episode, or upon a common “related.” “Related” offenses are those that are based upon the argued that the offenses underlying the three sets of charges were “unrelated,” to severance of them. “Unrelated” offenses are those that are not 4 forced the children to engage in sexual acts with each other. The defendant incident in September 2002 during which the defendant assaulted A.A. and charged offenses were based upon a “common plan.” At that time, we had not attorney or the defense.”
trial, the prosecuting attorney or the defendant shall have a right
charges involving only C.A., and one for the charges stemming from the The State argued below that all charges should be joined for trial as all same defendant may be joined for trial, upon the application of the prosecuting Id. (citations omitted).
Whenever two or more unrelated offenses have been joined for
He requested three trials: one for the charges involving only A.A., one for the Id. at 128. We further explained, however, that:
criminal offenses, holding that “any two or more offenses committed by the In Ramos, we adopted the ABA standards for joinder and severance of
N.H. 118 (2003).
State v. Ramos, 149
unsustainable exercise of discretion.
Prior to trial, the defendant filed a motion to sever the pending charges.
A. Relatedness
prejudice of this case. Id. must demonstrate that the ruling was clearly untenable or unreasonable to the (2004). To show that the trial court’s decision is unsustainable, the defendant
State v. McIntyre, 151 N.H. 465, 466
not to sever the charges unless we conclude that the decision constitutes an motion to sever the charges for trial. We will uphold the trial court’s decision We first review whether the trial court properly denied the defendant’s
II. Joinder
defendant had sexually abused K.A. and M.T. admission of extrinsic evidence, concerning the victims’ allegations that the motion in limine to preclude the cross-examination of the victims, or the denying his motion to sever the charged offenses; and (2) granting the State’s On appeal, the defendant argues that the trial court erred by: (1) mutually dependent.
5
and have her fondle his penis while showing her the pictures. success of the earlier incidents. pictures in pornographic magazines, and eventually began to take her hand and aggravated felonious sexual assault, the defendant began showing her
Hampshire Rule of Evidence 404(b). intertwined with what follows, such that the charged acts are examined in retrospect is not enough; the prior conduct must be execution. That a sequence of acts resembles a design when
defendant proceeded over time to show the victim pornographic movies. Id.
Id. at 302. The
dependent, because the occurrence of the final assaults hinged upon the had testified at trial that, prior to the charged acts for felonious sexual assault performed cunnilingus on her, and forced her to perform fellatio on him. Castine, 141 N.H. at 303-04. The victim prior uncharged assaults on the victim under the “plan” exception to New a car trip. 146-48. In Castine, we held that the trial court properly admitted testimony of primarily upon State v. Castine, 141 N.H. 300 (1996). McIntyre, 1 51 N.H. at In adopting the Rule 404(b) definition of “common plan,” we relied which includes the charged crimes as stages in the plan’s
reasonable person to make an objective finding of a common plan.” Id. at 468. offenses illustrated “a clear progression in the level of abuse, allowing a Rule of Evidence 404(b). Id. at 467. We concluded that the charged
We held that it was reasonable to conclude that the acts were mutually
Id. where the victim was sleeping, partially disrobed her, digitally penetrated her, location, and used his position of authority to effectuate the assaults.
Id. One or two weeks later, the defendant had entered the room
Shortly thereafter, the defendant had touched the victim on her bare leg during that the defendant had touched her breast twice over her objection. Id. at 466. Id. at 468. The victim, who was eleven at the time of the assaults, had testified 404(b) is the existence of a true plan in the defendant's mind sexual assault charge with three counts of aggravated felonious sexual assault. In McIntyre, we held that the trial court properly joined a felonious
Id of the relatedness test, the definition of “common plan” under New Hampshire. at 467 (citations omitted).
cases, the defendant assaulted the children in the same manner, at the same
The distinguishing characteristic of a common plan under Rule
State v. McIntyre, 1 51 N.H. at 466-67. We stated:
Subsequent to the defendant’s conviction, we adopted, for the purposes
to find all charges “related” because, like the facts underlying the Vermont LaBounty, 716 A.2d 1 (Vt. 1998); State v. Johnson, 612 A.2d 1114 (Vt. 1992), the State, the trial court relied upon case law from Vermont, see State v. defined “common plan” for purposes of the relatedness test. At the urging of sexual intercourse and cunnilingus and he forced her to perform fellatio.
anal penetration and demanded mutual fellatio, and he subjected A.A. to intercourse to avoid punishment. September 2002, the defendant coerced A.A. into participating in sexual
individually remain home from school as a “punishment.” He subjected C.A. to
defendant sexually assaulted A.A. in the pool in their backyard. In early
repeatedly throughout the 2001-2002 school year, insisting that they and forcing her to perform fellatio. The defendant assaulted both victims assaulted A.A., subjecting her to sexual intercourse and digital penetration, me” and forced her to perform fellatio. During the summer of 2002, the RE/MAX Realty office, directed her to touch her vagina and breasts, said “f--shortly thereafter, the defendant took A.A. into an empty cubicle at the 6
the instant facts from those in
Soon after the family moved to Concord in November 2000, the defendant
C.A. to anal penetration and forced him to engage in fellatio. At some point
years, culminated in the September 2002 incident, when the defendant forced These acts of repetitive sexual abuse and exploitation, over a period of
defendant does not rebut these arguments, nor does he attempt to distinguish
stages in the execution of a common plan, and, thus, properly joined for trial.
In January 2002, during a party at their home, the defendant subjected involved allegations by both victims. opinion in
acts with each other, was the result of years of effort on his part. The incident, in which the defendant coerced the children into engaging in sexual each other for his gratification. It furthers argues that the September 2002 We agree with the State, in part, that certain charges were “related” as the standard set forth in
child endangerment charges, arising from the September 2002 incident, determining relatedness, as the trial court did not have the benefit of our depend upon the success of the assaults on C.A., or vice versa, and only two there was no showing of a “common plan” as the assaults on A.A. did not
McIntyre or Castine. Instead, he argues that “plan” exception to Rule 404(b).
were “part of a calculated design by the defendant to ‘groom’ the victim.”
demands for fellatio. defendant possessed a plan to force the children to engage in sexual acts with
McIntyre. Specifically, the State argues that the
reached the correct result as the charges were related as a common plan under
McIntyre. It argues, however, that the trial court, nevertheless,
The State concedes that the trial court applied an incorrect standard in
Id.
As such, we held that the trial court properly admitted the testimony under the
Id.
described a series of interdependent acts, which, along with the charged acts,
Id. at 303. We held that the challenged testimony
guide” for an escalating series of assaults that culminated with weekly The victim testified that the pornographic material amounted to a “how-tocomponent of the “common plan” analysis. ground for establishing “relatedness” in this context, but is merely a
offenses being “intertwined.” “Inextricably intertwined” is not a separate
acts with each other for his gratification.
We agree with the defendant that the State misunderstands the relevance of manner, and that “all the same witnesses were necessary to prove all charges.” the fact that the children lived in the same house and were abused in the same
been part of the defendant’s plan to groom the children to engage in sexual
7 references the similar accusations and recantations by the children in 1999,
the September 2002 incident), we conclude that these charges could not have subsequent to September 30, 2002 (the last date covered by the indictments for November 1, 2002. Insofar as these charges occurred, or could have occurred,
because they were otherwise “inextricably intertwined.” Specifically, the State were related as they constituted a single criminal episode, acts are mutually dependent” (emphasis added)). Accordingly, the State has It argues, however, that all charges arising from the September 2002 incident “prior conduct must be intertwined with what follows, such that the charged children to engage in sexual acts with each other. underlying criminal offenses to be construed as part of a “common plan,” the September 2002 incident, when the defendant assaulted A.A. and forced the McIntyre, 151 N.H. at 467 (for
of aggravated felonious sexual assault of C.A. that occurred on or about
In the alternative, the State argues that all charges were “related”
assaults of A.A. that occurred on that date, but subsequent to the mutual acts.
charges that occurred prior to, and including the charges arising from, the
innocence,” unnecessary to “achieve a fair determination of the defendant’s guilt or assault of A.A. that occurred on or about October 31, 2002; and three charges 2001, through October 24, 2002; three charges of aggravated felonious sexual felonious sexual assault of A.A. during the time period from September 10, The trial court also joined for trial, however, three charges of aggravated
the September 2002 incident, and would, thus, not apply to the sexual
court did not commit an unsustainable exercise of discretion by joining the apply the law intelligently to each offense. Accordingly, we hold that the trial sexual acts with each other while he observed and then participated. id., because the jury would be able to distinguish the evidence and thus, met with minimal resistance when he forced the children to perform in sex by regularly subjecting them to severe acts of sexual abuse. He was, challenge on appeal the trial court’s secondary finding that severance was at 128, and thus were properly joined. We agree. The defendant does not
see Ramos, 149 N.H.
criminal charges prior to and including the child endangerment charges from The State acknowledges that the “common plan” applies only to the
success was dependent upon his having desensitized the children to engaging the victims to engage in sexual acts with each other for his gratification. His criminal offenses is subject to harmless error analysis.
through rulemaking,” 8 and “the adoption of a new rule of criminal procedure should be accomplished sexual abuse of C.A. that occurred on November 1, 2002. Misjoinder of
defendant’s guilt is of an overwhelming nature, quantity, or weight and if the
joinder in criminal trials [for] an issue that is not squarely before the court,” 10, 2001, through October 24, 2002, and again on October 31, 2002, and the to the sexual abuse of A.A. that occurred over the time period from September subsequent to the September 2002 incident; specifically, the charges relating may be harmless beyond a reasonable doubt if the alternative evidence of the State bears the burden of proving that an error was harmless. Id. An error a reasonable doubt, that the verdict was not affected by the error. Id. The It is well settled that an error is harmless only if it is determined, beyond
N.H. 53, 62 (2003). as narrowly defined in State v. Mason, 150
circumstances. However, the court should not adopt “new standards for dissipation of judicial resources in requiring multiple trials under such sexual assaults to multiple trials. We are also troubled by the potential join for trial those charged offenses that occurred, or could have occurred, We now examine whether it was harmless error for the trial court to also common plan,” B. Harmless Error
(Dalianis, J., dissenting).
see Sup. Ct. R. 51(A)(1)(b). Ramos, 149 N.H. at 128-29 the same transaction, constitute the same act, or form part of a “common plan”
nonetheless, about the trauma inherent in subjecting a victim of multiple Although we believe that Ramos was correctly decided, we are concerned, are “based upon the same conduct, upon a single criminal episode, or upon a abuse, each severe in its own right, did not constitute a “common plan.” assault of the same victim over a period of many years, if the individual acts of thus, entitle a defendant to numerous trials for charges arising from the sexual
McIntyre. The current definition of “relatedness” could,
absolute right to sever each charge for trial if those charges did not arise from multiple acts of sexual assault involving the same victim, would have an Under our current definition of “relatedness,” a defendant, charged with
definition.
Ramos, 149 N.H. at 128, we did not foreclose expansion of that
severance of criminal offenses and thus defined “related” offenses as those that set forth in Ramos. While we there adopted the ABA standards for joinder and Finally, we take this opportunity to revisit the definition of “relatedness”
could have occurred, subsequent to the September 2002 incident. not established the “relatedness” of the charged offenses that occurred, or that the jury considered each charge separately.
forcing the victims to have sexual intercourse with each other), and one count
charges that were admitted into evidence, as the verdict does not demonstrate returned by the jury were untainted by the significant number of unrelated that the State cannot prove, beyond a reasonable doubt, that the verdicts
assault, four counts of endangering the welfare of a child (which involved
all charges was elicited through the same witnesses. testimony was easily referable to the individual charges, and the evidence for argues that the evidence relating to each charge was not complex, the
9 largely dependent upon the victims’ credibility. The defendant also contends
evidence concerning at least twelve counts of aggravated felonious sexual
have heard some evidence of abuse of both victims. In addition, the State
admission to any criminal wrongdoing by the defendant, and the case was insurance fraud and arson-related charges). Specifically, he argues that there was no corroborating physical evidence, no the evidence was not of an overwhelming nature as to any individual charge.
With respect to the related offenses, the jury properly heard extensive not affected by the evidence concerning the related offenses.
charges in accordance with the defendant’s request, each of the juries would
charges, and/or whether the bank fraud evidence caused the jury to convict on The defendant counters that the State cannot meet its burden because
(unrelated offenses), and/or whether the verdict on the unrelated offenses was
Here, the State contends that even if the trial court had severed the
to other charges.” of sexual assaults against a child when that evidence is otherwise not relevant and arson-related evidence caused the jury to convict on misjoined bank fraud assault charges would be admissible at a trial on the other charges. v. Bruck, 152 F.3d 40, 44 (1st Cir. 1998) (analyzing whether insurance fraud
Cf. United States
occurred, or could have occurred, subsequent to the September 2002 incident offenses) was not affected by the evidence concerning the charged offenses that on the offenses that occurred prior to the September 2002 incident (related We, therefore, analyze whether, beyond a reasonable doubt, the verdict
Id.
recognized a “high potential for prejudice in permitting a jury to hear evidence
Id. We
State also conceded that it was unlikely that the evidence relating to the sexual offense and the case was largely dependent upon witness credibility. Id. The Id. We found that the evidence was not overwhelming as to any particular with second degree assault and witness tampering charges was not harmless. In Mason, we held that the erroneous joinder of sexual assault charges
strength of the State’s evidence of guilt. Id. inadmissible evidence is merely cumulative or inconsequential in relation to the showing of relatedness. argue that such evidence would have been otherwise admissible, absent a inflicted between November 2000 and September 30, 2002. The State does not
10
03-S-150, 03-S-151, 03-S-1070, 03-S-1074 and 03-S-1075. defendant had also sexually abused their younger brothers, K.A. and M.T. heard extensive evidence of at least seventeen offenses arising from abuse concerning allegations made by the victims in November 2002 that the
State’s motion of the United States Constitution were violated when the trial court granted the New Hampshire Constitution and the Fifth, Sixth and Fourteenth Amendments affected by the error of misjoinder.
the defendant failed to prove that the prior allegations of sexual assault were The trial court granted the State’s motion in limine on the grounds that
the convictions on indictments nos. 03-S-140, 03-S-141, 03-S-142, 03-S-149, related offenses. In considering the unrelated offenses, the jury improperly offenses was not affected by the error of misjoinder. Accordingly, we reverse cross-examination of the victims, and the admission of extrinsic evidence, conclude, beyond a reasonable doubt, that the verdict concerning the unrelated in limine. By granting the motion, the trial court prohibited the
Next, the defendant argues that his rights under Part I, Article 15 of the reasonable doubt, that the verdict concerning the related offenses was not November 2000 and November 1, 2002. We, thus, conclude, beyond a III. Exclusion of evidence November 2000 and September 30, 2002, or all of the events between
verdict on the unrelated offenses was affected by the evidence underlying the was substantial in nature, as under the instant facts. We, thus, cannot otherwise not relevant to other charges,” id., especially where such evidence hear evidence of sexual assaults against a child when that evidence is We acknowledge the “high potential for prejudice in permitting a jury to
whether the juror heard evidence concerning only the events between
did not have the same “high potential for prejudice” that was present in We reach a different conclusion, however, with respect to whether the the victims reported the abuse was merely cumulative in its effect, and, thus, evidence that this pattern continued for approximately one more month until
juror’s determination of the victims’ credibility would have changed based upon would have substantially enhanced the victims’ credibility, it is unlikely that a factually unique about the assaults underlying the unrelated offenses that Mason, 150 N.H. at 62. Furthermore, given that there was little that was
Mason.
November 2000 and September 30, 2002. Under these circumstances, of indecent exposure and lewdness, all arising from abuse inflicted between showing that the prior allegations were demonstrably false,” which we
defendant may introduce a victim’s prior allegations of sexual assault by
prior allegations were false. witnesses who alleged that the older victim had admitted that several of the 11
individuals. victims and extrinsic evidence concerning the prior allegations, holding that “a
Constitutions.
second individual, that was eventually terminated; and testimony from two the correct standard in excluding such evidence. motives.”
had made prior false allegations of sexual assault against three other We affirmed the trial court’s exclusion of both cross-examination of the
State Constitution, victims’ credibility under Rule 608(b). Id. at 547. evidence concerning the prior allegations was admissible to impeach the
Id. at 548-50. The defendant contended that the defendant’s rights to due process or confrontation under the State or Federal
investigation, arising from the victims’ allegation of sexual assault against the that the allegations were false. The State argues that the trial court employed proffered evidence is highly probative of the material issue of the complainant’s allegation of sexual assault against the first individual; reports from a police M.T.’s subsequent reports of sexual abuse undermined the defendant’s claim among other things, the jury verdict of acquittal arising from the victims’ allegations of sexual assault, their persistent complaints of anal pain and
White, 145 N.H. at 547. Specifically, the defendant proffered,
victims who were sisters, and he sought to introduce evidence that the victims In White, the defendant was charged with felonious sexual assault of two such evidence violated his due process and confrontation rights under the
Id. at 719-20.
limitations on the admission of extrinsic evidence did not violate the
State v. Ellsworth, 142 N.H. 710, 719 (1998). We held that such
Rule of Evidence 608(b) “only where the allegations are similar, and the by a victim in a sexual assault case could be admitted under New Hampshire allegations were false; and (3) although K.A. and M.T. initially denied the the first time that extrinsic evidence of a prior false allegation of sexual assault opinions for guidance only. Id. at 232-33. In State v. Ellsworth, we held for
State v. Ball, 124 N.H. 226, 231 (1986), and cite federal
We first address the defendant’s claim that the trial court’s exclusion of
neither proved nor negated sexual abuse, did not clearly demonstrate that the allegations were false; (2) the physical examinations of K.A. and M.T., which in reporting the timeline of sexual abuse did not clearly indicate that the court found that, among other things: (1) A.A.’s minor temporal inconsistency F.3d 19 (1st Cir.), cert. denied, 126 S. Ct. 478 (2005). Specifically, the trial 296 F. Supp. 2d 46 (D.N.H. 2003), vacated on fed’l constitutional grounds, 399 533 U.S. 932 (2001), petition for habeas corpus denied by White v. Coplan, (“demonstrably false” means “clearly and convincingly untrue”), cert. denied, “demonstrably false” under State v. White, 145 N.H. 544, 548 (2000) jury acquittal on charges brought against one individual; thus, the defendant
discretion by granting the State’s motion
12 case at bar.
allegations, the finding of “falsity to a reasonable probability,” and an actual
Accordingly, we hold that the trial court did not unsustainably exercise its cases” where a state restriction is “patently unreasonable.”
There is no United States Supreme Court decision that is on all fours with the unreasonable to the prejudice of his case. “at the least, to a reasonable probability.” Consistent with our holding in were “demonstrably false,” but, rather, argues that the allegations were false, unusual” in light of the strong similarity between the past and present Circuit concluded that the “extreme case” of White, 145 N.H. 544, was “quite ruling absent an unsustainable exercise of discretion. allegations concerning K.A. and M.T. were “clearly and convincingly untrue.” Id. The First noted, however, that a Confrontation Clause objection may apply to “extreme defendant in this context could not support a finding that the victims’ error with the “demonstrably false” standard applied by this court. rendering its decision, the trial court articulated why each proffer by the Id. at 26. It Coplan, 399 F.3d at 27. It found, in a general sense, no federal constitutional First Circuit vacated the district court’s agreement with our ruling in White.
See Coplan, 399 F.3d at 25. Upon habeas review, however, the
We now review the defendant’s claims under the Federal Constitution. demonstrate that the trial court’s decision was clearly untenable or
does not explicitly argue that the victims’ allegations concerning K.A. and M.T. in limine to exclude such evidence.
examination or the admissibility of extrinsic evidence, and we will not upset its
As addressed above, the trial court applied the correct legal standard. In
221 (1998).
State v. Alexander, 143 N.H. 216,
of discretion standard). To prevail under such a standard, a defendant must State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise standard should not apply to this case, as he did below. The defendant also N.H. 463, 467 (1995); see also State v. Dewitt, 143 N.H. 24, 26-27 (1998); cf.
State v. Weeks, 140
A trial court has broad discretion to determine the scope of cross-
K.A. and M.T. were false. convincingly that the victims’ prior allegations of sexual assault concerning White, we hold that the defendant was required to demonstrate clearly and
The defendant does not argue on appeal that the “demonstrably false”
rights to due process and confrontation. Id. at 553-54. examination did not violate the defendant’s State and Federal constitutional “demonstrably false.” Id. at 551. We further held that the limitation on cross- “reasonable probability,” he failed to meet the higher, requisite standard of that although the defendant had proved the falsity of the accusations to a interpreted to mean “clearly and convincingly untrue.” Id. at 548. We held motion
13
court did not unsustainably exercise its discretion in granting the State’s Constitution as we do under the State Constitution in holding that the trial Constitution. Accordingly, we reach the same result under the Federal
violate the defendant’s due process and confrontation rights under the Federal
that were present in DUGGAN, GALWAY and HICKS, JJ., concurred.
part; and remanded. Affirmed in part; reversed in
in limine.
“demonstrably false” requirement to the particular facts before us did not
White. We, thus, hold that the application of the
concerning K.A. and M.T. due to doubt about their veracity. The defendant has not asserted the type of “extreme” and “unusual” facts
See Weeks, 140 N.H. at 467. resulting in a “trial within a trial,” and potentially causing substantial delay. allegations were false. Unlike the defendant in K.A. and M.T. would produce significant confusion of the issues, likely concern different victims. As a result, the admission of evidence concerning instances of abuse involving the same victims, the prior allegations here the prior allegations and underlying charges in White concerned similar charges concerning C.A. and the allegations concerning K.A. and M.T. While The defendant also points to the similarity between the underlying
proffer any evidence to suggest that the State failed to pursue the allegations victims’ allegations concerning K.A. and M.T. were false. Nor did the defendant not proffer testimony from any witness claiming first-hand knowledge that the
White, the defendant here did
and the temporal inconsistencies by A.A. did not clearly indicate that the negated sexual abuse, M.T. later recanted his initial denial of sexual abuse, other things, the medical examinations of K.A. and M.T. neither proved nor reasons. See id. at 26-27. We disagree. The trial court found that, among White and should be reversed on federal constitutional grounds for the same The defendant contends that this case presents similar facts to those in
Id. at 26. witnesses and documents, and so greater risks of confusion and delay . . . .” right to offer extrinsic evidence . . . [as] [s]uch an excursion requires more examination, stating that it was “not endorsing any open-ended constitutional victims. Coplan, 399 F.3d at 26-27. It limited its holding to crosswas entitled to explore the prior allegations on cross-examination of the