2006-086, STATE OF NH v. GEORGE BRUM2006-373, STATE OF NH v. GEOFFREY GAGNON

her. The encounter began consensually. On the evening of the assault, the reported to the Concord Police that a male co-worker had sexually assaulted raised consent as a defense. Eight years earlier, in April 1996, the victim

assaulted the victim during the early morning hours of July 31, 2004. He The record supports the following: The defendant allegedly sexually

misdemeanor sexual assault, see RSA 632-A:4, I(a) (Supp. 2006). We affirm. sexual assault, see RSA 632-A:2, I(a), (m) (Supp. 2006), and one count of jury in Superior Court (Hicks, J.) on three counts of aggravated felonious DALIANIS, J. The defendant, George Brum, appeals his conviction by a

the defendant. Schulman and Elizabeth L. Hurley on the brief, and Mr. Schulman orally), for Getman, Stacey, Schulthess & Steere, PA, of Bedford (Andrew R.

attorney general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Jeffrey S. Cahill, senior assistant

editorial errors in order that corrections may be made before the opinion goes No. 2006-086 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. 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 collateral matter and was inadmissible at trial. p. 2 victim had the capacity to consent or did consent to the 1996 event was a introducing extrinsic evidence of the 1996 assault, finding that whether the

to his case for consent.” The court also prohibited the defendant from

statement regarding the same event, and the existence of some However, because of the curious advent of th[e] 2005 not mention bruising in 1996. charged. phrase. In 2005, she said that the incident caused bruises on her legs; she did victim and has no probative value to the defendant’s denial of these charges or regarding the 1996 incident[ ] . . . . the victim consented to having sexual intercourse with him. He was never in sexual contact with two men at the same time is highly prejudicial to the any way, shape or form or examining in any way, shape or form another room, where they had sexual intercourse. The co-worker claimed that allegation. The court ruled, “Any suggestion that the victim may have engaged likelihood would have prohibited [the defendant] from talking in defendant from questioning the victim about the specifics of the prior [B]ut for the advent of th[e] 2005 statement, the Court in all

On the first day of trial, the court explained its order as follows:

worker’s actions as a “sexual assault,” whereas, in 1996, she did not use this his sexual advances towards [her].” Further, in 2005, she described the covictim’s bed. The victim and her co-worker left the bedroom and went into between her 1996 report and her 2005 statement. The court precluded the fact that she made a prior allegation of sexual assault and the discrepancies The trial court ruled that the defendant could question the victim about the the 1996 sexual assault through cross-examination and extrinsic evidence. Before trial, the defendant sought permission to introduce evidence of

co-worker “escorted” her to another room, laid her on her back and “continued with what was happening. The friend ended the contact and fell asleep on the 1996, according to the officer with whom she spoke, the victim stated that her brief period of sexual activity, the victim indicated that she was uncomfortable statement, the victim stated that her co-worker forced himself on top of her; in fondling one another, and asked the co-worker’s friend to join them. After a and removed her clothing; in 1996, the victim did not say this. In her 2005 statement, the victim stated that the co-worker and his friend held her down differed from the account she had given to the police in 1996. In her 2005 In 2005, the victim wrote a statement about the 1996 assault, which

returning to her residence, the victim and the co-worker began kissing and victim, her co-worker and his friend spent time at a local bar. Soon after she had bruises on her legs. Although asked, the victim was unable to recall p. 3 had been held down on the bed; and (6) in her 2005 statement she said that

said that she had only one drink; (5) in her 2005 statement, she said that she 1996, she said that she had had four drinks while in her 2005 statement, she made a written statement about the incident; (4) when she spoke to police in 1996, she spoke to a certain police officer about this incident; (3) in 2005, she

as far as I’m allowing [the defendant] to go. being held down, but in the 1996 version, you did not. And that’s testified that: (1) in 1996, she claimed to have been sexually assaulted; (2) in so far as to say in [the] 2005 version you stated that you were Consistent with the court’s order, on cross-examination, the victim 2005 than she gave in 1996. And I will allow [the defendant] to go

1996 incident. asking the victim whether any charges were filed against her co-worker for the mention this to the police in 1996. The court prohibited the defendant from her 2005 statement she said that her legs were bruised, while she did not The court also permitted the defendant to ask the victim about the fact that in

victim gave a different version of facts in the allegation of assault in Answer: Yes. [The defendant is] allowed to ask in general whether the

. . . .

of: consumed was different from the 1996 version. general, . . . whether in the 2005 version the number of drinks [I]t’s the Court’s ruling that [the defendant] may ask, in

. . . . Answer: Whatever she answers. allowed. There are differences between those two statements. triggered so that some limited cross-examination should be Did you write a statement about those events in 2005? Answer: Yes. Did you make a sexual assault allegation in 1996?

limited to general questions only, and beginning with the question It was the Court’s intention . . . that [the defendant] be

The court then clarified:

felt that the defendant’s confrontation rights were sufficiently differences between the allegations of 1996 and 2005, the Court evidence is also probative of other relevant matters; (4) the extent p. 4 truthfulness or untruthfulness; (3) the extent to which the

unimportant; (2) the extent to which the evidence is probative of

embarrassment.”

(1) whether the testimony of the witness . . . is crucial or

among the factors to consider are: When assessing the probative value of evidence under Rule 608(b),

misleading the jury, and that of Rule 611 bars harassment and undue value not be outweighed by danger of unfair prejudice, confusion of issues, or 608(b) explain: “[T]he overriding protection of Rule 403 requires that probative consider the companion Rules 403 and 611. As the reporter’s notes to Rule When exercising its discretion under Rule 608(b), the court must also

statement to the witness was not hearsay because it was a party admission. the witness’ character for truthfulness or untruthfulness . . . . and told her to tell the victim to tell the truth. Counsel argued that this inquired into on cross examination of the witness (1) concerning As the trial court of the court, if probative of truthfulness or untruthfulness, be commencing an unwarranted criminal investigation without probable cause.” proved by extrinsic evidence. They may, however, in the discretion accurate report of the 1996 incident to the Concord Police for the purpose of than conviction of crime as provided in Rule § 609, may not be purpose of attacking or supporting the witness’ credibility, other Specific instances of the conduct of a witness, for the

New Hampshire Rule of Evidence 608(b) provides, in pertinent part:

that no charges were ever brought against her co-worker for the 1996 incident. trial court erred when it precluded him from asking the victim about the fact fact of her 1996 report to the police, we interpret his argument to be that the sought to introduce testimony that the defendant called this witness from jail allowed the defendant to cross-examine the victim about the

interview to refresh her recollection. him from cross-examining the victim about “the fact that she made a factually The defendant first argues that the trial court erred when it precluded

See N.H. R. Ev. 801(d)(2). The trial court excluded it as hearsay.

Later, while defense counsel was examining one of his own witnesses, he

bruises, and the defendant did not use the police officer’s notes of the 1996 whether she told the police in 1996 that she had been held down or had answer as the witness gives it.

for truthfulness or untruthfulness, generally, the examiner must take the examiner may inquire into conduct that is probative of the witness’s character is needed to rebut other evidence concerning credibility. 200 p. 5 5 allegations about the 1996 incident. Under Rule 608(b), while a cross prohibiting him from introducing extrinsic evidence of the victim’s 1996 and

victim gave the police a State v. Hopkins, 136 N.H. 272, 276 (1992). for truthfulness or untruthfulness. As the defendant admits, in 1996, the

received on credibility; and (9) whether specific-instances evidence cumulative or unnecessary in light of other evidence already The defendant next asserts that the trial court violated Rule 608(b) by occurred; (8) the extent to which specific-instances evidence is

transform the victim’s admittedly truthful account into a false one. co-worker. That charges were not filed against the co-worker does not

filed against the victim’s co-worker was not probative of the victim’s character it, the trial court reasonably could have found that whether charges were ever against her co-worker for the 1996 incident. Based upon the evidence before defendant from asking the victim about the fact that no charges were brought We hold that the trial court acted within its discretion by precluding the likelihood that the alleged specific-instances . . . conduct in fact

under this standard, the defendant must demonstrate that the trial court’s discretion standard. See State v. Abram, 1 p. 5 53 N.H. 619, 632 (2006). To prevail We review the trial court’s decision under our unsustainable exercise of

undue embarrassment.” Id. (quotation omitted). admitting the Rule 608(b) evidence will subject the witness to “harassment and Additionally, consistent with Rule 611, the court may consider whether result in time-consuming and distracting mini-trials on that point. Id. whether doubts over the occurrence of the specific-instances evidence will 608(b) evidence, whether the jury will give the evidence too much weight or remoteness in time of the specific instances to trial; (7) the whether the jury will develop a bias against the witness because of the Rule the giving of the witness’s testimony; (6) the nearness or When assessing the danger of unfair prejudice, the court may consider instances of conduct are similar to the circumstances surrounding

State v. Miller, 1 p. 5 55 N.H. ___, ___ (decided April 18, 2007) (quotation omitted).

extent to which the circumstances surrounding the specific to which the act of untruthfulness is connected to the case; ( p. 5 5) the p. 6 6

are not sufficiently similar to those against the defendant.

N.H. at 719.

extrinsic evidence of this statement because the allegations contained therein demonstrably false, we hold that the trial court did not err by precluding demonstrated by clear and convincing evidence that the 2005 allegations were proper use of extrinsic evidence under Rule p. 6 608 and that the defendant would have corroborated it. Even if we assume, without deciding, that this is a evidence of this statement would not have rebutted the victim’s testimony, but With respect to the 2005 statement, we note that introducing extrinsic

him from admitting extrinsic evidence of the victim’s 199 p. 6 6 allegations. false. Accordingly, we conclude that the trial court did not err by precluding definition, and as a matter of law, not clearly and convincingly demonstrably Allegations that the defendant admits are “factually accurate” are, by

criminal conduct.” a material issue.” even though her factual account of the incident “was one of consensual, nonso strictly as to preclude the admission of extrinsic evidence that is probative of false because the victim “asked the police to pursue a criminal prosecution,” that confirmed her 199 p. 6 6 allegations. He argues that they were demonstrably corroborating, interlocking, contemporaneous statements” about the incident were “factually accurate,” and that the victim’s co-worker and his friend “gave With respect to the 1996 allegations, the defendant concedes that they

defendant, highly probative of the victim’s motive, and demonstrably false. incident because these allegations were similar to the allegations against the extrinsic evidence of the victim’s 199 p. 6 6 and 2005 allegations about the 1996 The defendant asserts that he should have been allowed to introduce

we interpret to mean ‘clearly and convincingly untrue.’” that “in the context of sexual assault [the] Rule . . . should not be interpreted assault by showing that the prior allegations were demonstrably false, which clarified that a “defendant may introduce a victim’s prior allegations of sexual grounds, 399 F.3d 18 (1st Cir.), cert. denied, 12 p. 6 6 S. Ct. 478 (2005), we further Coplan, 296 F. Supp. 2d 46 (D.N.H. 2003), vacated on fed’l constitutional denied, 533 U.S. 932 (2001), petition for habeas corpus denied by White v. complainant’s motives.” Id. In State v. White, 145 N.H. 544, 548 (2000), cert. the proffered evidence is highly probative of the material issue of the evidence that applies “where the allegations [of sexual assault] are similar, and Ellsworth, we created an exception to Rule 608(b)’s bar to extrinsic rebuttal

Despite Rule p. 6 608(b)’s apparent bar to extrinsic evidence, we have held

witnesses, to rebut the witness’s statements.” Id. The examiner may not introduce “extrinsic evidence, such as calling other p. 7 Constitution.”

Clauses. 7 account and 2005 statement violated the State Due Process and Confrontation

examination is an incident of rights guaranteed by part I, article 15 of the State

examination of the victim concerning the discrepancies between her 1996 Trial courts have broad discretion to fix the limits of proper areas of cross-

State v. Newman, 148 N.H. 287, 289 (2002) (quotation omitted).

“The opportunity to impeach a witness’s credibility through cross-

his State constitutional claim. See State v. Ayer, 150 N.H. 14, 34 (2003). does not develop a federal constitutional analysis and, thus, we address only Federal Confrontation Clause as well, see U.S. CONST. amends. VI, XIV, he

See N.H. CONST. pt. I, art. 15. Although the defendant cites the

The defendant next contends that the trial court’s limits upon his cross-

not err by excluding extrinsic evidence of the victim’s 2005 statement. stop, and holding onto her pajama bottoms “for dear life.” statement and those against the defendant, we conclude that the trial court did Given the lack of similarity between the allegations in the victim’s 2005

neck and forced her to fellate him, and put his mouth on her breast. vagina with his fingers and tongue, masturbated in front of her, grabbed her her, the defendant pulled her pajama bottoms to one side and touched her her. According to the victim’s trial testimony, in addition to forcibly kissing alleged that in 1996, her co-worker kissed her and had sexual intercourse with involving the defendant were different. In her 2005 statement, the victim Moreover, the sexual acts involved in the 1996 incident and those

defendant, pushing him away repeatedly, biting his lip and legs, begging him to contrast, according to her trial testimony, the victim actively resisted the that this was a good idea” and that “it wasn’t something [she] was into.” By stated that she told both the co-worker and his friend that she “didn’t think defendant did not involve a third party. In her 2005 statement, the victim encounter between the victim and two men; the incident involving the According to the 2005 statement, the 1996 incident began as a sexual

uninvited, at approximately three o’clock in the morning. involving the defendant began when he knocked on her apartment window, drinks.” By contrast, according to the victim’s trial testimony, the incident his friend back to her apartment “to watch some movies & have a couple of statement, the 1996 incident began after the victim invited her co-worker and similarity and evidentiary nexus.” Id. According to the victim’s 2005 crimes, which involved fellatio and inappropriate touching, “completely lack The 2005 report of forcible sexual intercourse in 1996 and the charged p. 8 8 Clause.

incident did not violate the defendant’s rights under the State Confrontation the discrepancies between the victim’s 1996 and 2005 accounts of the 1996 not admitting it for the truth of the matter asserted, see N.H. R. Ev. p. 8 801(c). Therefore, we hold that the trial court’s limits upon the defendant’s inquiry into argues for the first time that the statement was not hearsay because he was stopped. because it was a party admission, see N.H. R. Ev. 801(d)(2), on appeal, he joined the victim and the co-worker in sexual activity, but at some point truth. While at trial, the defendant argued that this statement was not hearsay his witness from testifying that he asked the witness to tell the victim to tell the permitted a threshold level of inquiry about this subject. Finally, the defendant argues that the trial court erred when it precluded the victim about all but one of these discrepancies and, therefore, was

ruling was clearly untenable or unreasonable to the prejudice of his case. Moreover, the defendant has failed to demonstrate that the trial court’s to kiss; (3) the victim’s clothes were removed; and (4) the co-worker’s friend

victim and sexually assaulted her. The record shows that the defendant asked had bruises on her legs; and (4) whether the co-worker forced himself on the whether the co-worker and friend held the victim down; (3) whether the victim the following respects: (1) the number of drinks the victim consumed; (2) The defendant informed the court that the two accounts also differed in

victim found her co-worker on her bed; (2) the victim and the co-worker began victim’s 1996 and 2005 accounts were similar in the following respects: (1) the 1996 incident. In a court exhibit, the defendant informed the court that the into the discrepancies between the victim’s 1996 and 2005 accounts of the The record reveals that the defendant made a threshold level of inquiry

the prejudice of his case.” Newman, 14 p. 8 8 N.H. at 2 p. 9 90. demonstrates that the court’s ruling was clearly untenable or unreasonable to decision limiting the scope of further cross-examination unless the defendant that a threshold level of inquiry was allowed, we will uphold the trial court’s discretion standard.” Id. (quotation omitted). “Thus, when the record reveals cross-examination thereafter is measured against an unsustainable exercise of inquiry . . . the constitutional standard is satisfied, and the judge’s limitation of threshold. Id. “Once a defendant has been permitted a threshold level of and must permit sufficient cross-examination to satisfy a constitutional defendant the right to cross-examine a witness upon a proper matter of inquiry 153 N.H. 588, 599 (2006). The trial court, however, may not completely deny a examination, including attacks upon a witness’s credibility. State v. Fichera, 9

that might or might not have supported that argument.”

BRODERICK, C.J.