2008-392, STATE OF NH v. CHARLES COOK

The defendant, Charles Cook, appeals from a jury verdict

brief and orally), for the defendant. Jeffco, Starbranch & Soldati, of Portsmouth (Lincoln T. Soldati on the

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

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-392 editorial errors in order that corrections may be made before the opinion goes Belknap Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 has or has not proved the Defendant’s intent to engage in a pattern.” p. 2 Pennsylvania acts for the limited purpose of “determining whether the State

instruction. The trial court instructed the jury that it could only consider the

testimony about the Pennsylvania incidents, the defendant requested a limiting

pattern indictment—

wheeler and put his hand down her shirt and touch her breasts. Following her would go out on trails with the defendant, the defendant would stop the fouradmitted the Pennsylvania acts that were the same as those alleged in the would occur while they were on four-wheelers. M.C. testified that when she vaginal penetration. The trial court, pursuant to a Rule 404(b) analysis, M.C.’s breasts and kissing, however, the Pennsylvania acts also included digital

the State has offered evidence of other acts by the Defendant Some evidence was introduced for a limited purpose. In particular,

instruction to the jury as to the Pennsylvania acts: putting his tongue in her mouth. M.C. is the defendant’s granddaughter. At the close of all the evidence, the trial court gave the following defendant caused unprivileged physical contact to M.C. by one single act of and later denied the motion. testified that she would visit the defendant in Pennsylvania and the same acts of limitations had expired. The trial court took the matter under advisement, defendant moved to dismiss the simple assault charge, arguing that the statute the same time period and involving the same victim. In addition to touching At the close of the State’s case, and again at the close of the evidence, the

penetration. sexual assault. The trial court, however, excluded evidence of digital

years old. The latter indictment alleged that within the same time frame, the

bed at night and touch her breasts and kiss her using his tongue. M.C. also Pennsylvania, but would visit often. During these visits he would tuck her into indecent assault, and corruption of minors arising out of similar acts during lived in Belmont with her mother and step-father. The defendant lived in defendant faced charges in Pennsylvania of aggravated indecent assault, At trial, M.C. testified that in 1998, when she was nine years old, she

evidence admissible to show the defendant’s intent to commit a pattern of

purpose of sexual arousal or gratification, when she was less than thirteen 2002, the defendant engaged in a pattern of touching M.C.’s breast, for the former indictment alleged that between December 27, 1998, and December 26,

prior bad acts pursuant to New Hampshire Rule of Evidence 404(b). The Before trial, the defendant filed a motion in limine seeking to exclude

two charges: aggravated felonious sexual assault and simple assault. The The record reveals the following facts. The defendant was indicted on to engage in a pattern.” The trial court thus found that the State met its

preparation, plan, knowledge, identity, or absence of mistake or not be substantially outweighed by its prejudice to the defendant. felonious sexual assault, it must also prove that the defendant had the intent defendant committed the act; and ( p. 3 3) the probative value of the evidence must

purposes, such as proof of motive, opportunity, intent,

proving more than the defendant’s intent to commit each individual act of defendant’s character or disposition; (2) there must be clear proof that the pattern of sexual assault. The trial court stated: “[T]he state has the burden of relevant for the limited purpose of showing the defendant’s intent to commit a Here, as to the first prong, the trial court found that the evidence was

unreasonable to the prejudice of the defendant’s case. Id. exercise of discretion, and will reverse only if it was clearly untenable or plain error, of prior bad acts. Id. We review the trial court’s ruling for an unsustainable party offering the evidence bears the burden of demonstrating the admissibility

conformity therewith. It may, however, be admissible for other the character of a person in order to show that the person acted in 404(b): (1) the evidence must be relevant for a purpose other than proving the have established a three-part test for the admissibility of evidence under Rule of other crimes or wrongs. State v. Beltran, 15 p. 3 3 N.H. 643, 647 (2006). We merits of the crime as charged and to prevent a conviction based upon evidence The purpose of Rule 404(b) is to ensure that the defendant is tried on the

Rule 404(b) was error. Although the defendant characterizes this issue as

simple assault charge. Evidence of other crimes, wrongs, or acts is not admissible to prove

Rule 404(b) provides:

preserved for appeal and the plain error rule is inapplicable. as charged. points out that the defendant timely objected at trial. The issue was thus intent to engage in a pattern of aggravated felonious sexual assault limited purpose of determining whether the Defendant had the see State v. Sideris, 157 N.H. 258, 264 (2008), the State correctly

We first address whether admission of the Pennsylvania acts pursuant to

acts and its instruction to the jury; and (2) denying his motion to dismiss the defendant argues that the trial court erred in: (1) admitting the Pennsylvania The jury returned verdicts of guilty on both charges. On appeal, the

such evidence to be credible, you may consider it only for the toward [M.C.] for which [he] has not been charged. If you find intent, an issue not in dispute.

p. 4 It was therefore error for the trial court to admit the Pennsylvania acts to prove

did not need to prove an additional mental state to prove the pattern element. although the State had to prove the mental state applicable to sexual assault, it with respect to the element of engaging in a pattern of sexual assault.” Thus,

be addressed by a limiting instruction.”

state applicable to the underlying acts of sexual assault need not be shown

prejudicial.” The trial court concluded that “the danger of unfair prejudice can conduct. behavior.

the jury. Indeed, RSA 632-A:2, III provides, in pertinent part: “The mental

we first address whether the evidence was relevant for this purpose. admissible for the purpose of explaining M.C.’s delayed disclosure. In doing so,

result and valid alternative grounds exist to reach that result.” victims, they may not be aware of the wrongful nature of the conduct; other them.” State v. Woodard, 146 N.H. 221, 226 (2001). “When children are in recent years that victims of sexual assaults may not immediately disclose the same time in a different place would not be surprising nor unduly purpose—to explain why M.C. delayed disclosing the facts of the charged See State v. Cressey, 137 N.H. 402, 411 (1993). “We have recognized pattern of assaults; therefore, the introduction of similar conduct occurring at The State may introduce evidence to explain a sexual assault victim’s a reasonable doubt.” Moreover, it found: “The charged conduct here involves a of sexual assault. The defendant argues the trial court erred in so instructing Beltran, 153 N.H. at 647. that the State need not prove the defendant had the intent to commit a pattern See some direct bearing on an issue actually in dispute . . . .”). defendant’s intent to commit a pattern of sexual assault. The parties agree 148 N.H. 88, 91 (2002). We thus address whether the Pennsylvania acts were

“We will not reverse a trial court decision . . . when it reaches the correct

not error because the evidence was relevant and admissible for another admitted for the wrong purpose, the trial court’s decision to admit them was in a pattern—an element of the crime that the state is required to prove beyond The State, however, argues that although the Pennsylvania acts were

(“To meet the relevancy requirement, the other bad acts evidence must have for the trial court to admit this evidence for the purpose of proving the

those Pennsylvania acts is highly probative of the defendant’s intent to engage sustained its burden. As to the last prong, the trial court found: “[E]vidence of trial court conducted a clear proof inquiry and found that the State had The defendant argues, and the State candidly concedes, that it was error

show the defendant acted in conformity therewith. As to the second prong, the burden to prove the Pennsylvania acts were offered for a purpose other than to relation to the strength of the State’s evidence of guilt.

p. 5 the Pennsylvania acts relevant.

inadmissible evidence is merely cumulative or inconsequential in is of an overwhelming nature, quantity, or weight and if the reasonable doubt if the alternative evidence of the defendant’s guilt

disclosing because she lived in fear as a result of the constant abuse, making

Rule 404(b) test, and thus is not admissible on alternative grounds. 5 Because this evidence is not relevant, it does not meet the first prong of the inadmissible evidence itself. An error may be harmless beyond a trial, the Pennsylvania acts are irrelevant to show any delay in disclosure.

mother and not with the defendant. She did not testify that she delayed

alternative evidence presented at trial and of the character of the reported them to the police. We conclude that, based upon the evidence at standard has been achieved involves consideration of the evidence did not affect the verdict. The evaluation of whether this proving harmless error. Id. State v. Enderson, 148 N.H. 252, 255 (2002). The State bears the burden of

1998 and when M.C. disclosed in 2003. During this period, M.C. lived with her any delay in disclosure is between when the acts allegedly first occurred in the defendant’s house in Pennsylvania, and that the abuse ended then. Thus,

evidence showed that M.C. disclosed the acts multiple times, but no one can be said beyond a reasonable doubt that the inadmissible In determining the gravity of an error, this court asks whether it

harmless error standard is succinctly stated as follows: Alternatively, the State argues that any error was harmless. The

delay in reporting until 2003 was never questioned at trial. Instead, the

explanation for delay in disclosure);

her visits to his residence in Pennsylvania. M.C. testified that she first defendant touched her breasts during his visits to her house in Belmont and occurring between December 1998 and December 2002. M.C. testified that the Here, the defendant was charged with a pattern of sexual touching

because victim testified she lived in constant fear). abuse of victim admissible to explain delay in reporting sexual assaults

that defendant threatened to kill himself if victim disclosed sexual assault as delay); State v. Dupont, 149 N.H. 70, 82 (2003) (holding admissible evidence admissible. Id. (finding introduction of prior disclosures admissible to explain report.” Id. We have thus found evidence explaining delay in disclosure to be victims may wish to forget the assault, or fear reprisals or disbelief if they admissible evidence at trial, we cannot conclude that it was inconsequential.

p. 6 twice. Because the inadmissible evidence was intertwined with the alternative

Police. During closing argument, the State mentioned the Pennsylvania acts

Pennsylvania, including her reporting of the offenses to the Pennsylvania State visited. Throughout the trial, witnesses continued to reference M.C.’s visits to she visited Pennsylvania “often” and the touching occurred “every time” she

prevented us from saying that the error was harmless.

to substantially prejudice the defendant. defendant for uncharged acts.” obscured the charged offense and may have tempted the jury to condemn the decision against the defendant on some improper basis, for it effectively

something like that and he would stop the four-wheeler and that’s when he upon a jury and have greater potential for appealing to a juror’s sense of M.C. testified that in Pennsylvania “we would go out on one of the trails or Id.; see State v. occurred during “four-wheeler” rides at the defendant’s home in Pennsylvania. We concluded that, similar to here, the character of the inadmissible evidence

precisely the sort of evidence that could create an undue tendency to induce a assaults “were identical to the charged crime,” which, “[b]y its nature . . . is assaults perpetrated by the defendant. Id. We stated that many of the the trial court admitted testimony by the victim of prior uncharged sexual

her testimony does not need to be corroborated, Indeed, we have stated that “some acts have a great emotional impact

her into bed at her home in Belmont. She then testified that these same acts

defendant’s intoxication included a report of the blood alcohol content and inadmissible, error was harmless because the properly admitted evidence of the with State v. Wall, 154 N.H. 237, 245 (2006) (even if State Laboratory’s test was testimony not harmless error because fingerprint was critical piece of evidence), State v. Connor, 156 N.H. 544, 549 (2007) (inadmissible fingerprint verification weight,” and thus amplified the importance of the Pennsylvania acts. Compare alternative evidence here was not of an “overwhelming nature, quantity or

M.C.’s testimony was the only evidence of the charged acts. Although

holiday—touched her breast and put his tongue in her mouth while tucking including once during a Christmas holiday and once during an Easter years). M.C. testified that the defendant, on more than four occasions—

is defined as more than once over a period of between two months and five assault occurred more than once. See RSA 632-A:1, I-c (Supp. 2008) (“pattern” pattern of sexual assault, requiring the State to prove that the charged sexual jury’s decision to convict. The defendant was charged with committing a beyond a reasonable doubt that the inadmissible evidence did not affect the Viewing the evidence in this case in its entirety, we cannot conclude p. 7 7

the Court . . . in accordance with the time limitations in Rule 98 . . . .” notice of such intention setting forth the grounds therefor shall be filed with

a defendant intends to claim any defense specified by the Criminal Code, a defense beyond a reasonable doubt.”). declared by this code to be . . . [a] defense, the state must disprove such limitations”); RSA 626: p. 7 7, I(a) (2007) (“When evidence is admitted on a matter a result of conduct as . . . [n]egatives a defense under the statute of 137 N.H. at 693; see RSA 625:11, III(d) (“element of an offense” includes “such assert. RSA 625:11, III(d) (2007); limitations is admitted at trial,” it becomes an element of the offense. Weeks, statute of limitations claim and “evidence pertaining to the statute of days after entry of not guilty plea). Once the defendant timely asserts his new trial.”). Ct. R. 101; see Super. Ct. R. 98(B)(1) (requiring notice of defense within thirty Pennsylvania acts. Super. instruction created does not render harmless the error in admitting the argument, we still address this argument. prove beyond a reasonable doubt. Although we reverse on the defendant’s first still good law). As a result, the defendant must raise the claim prior to trial. “If States v. Titterington, 374 F.3d 453, 457 (6th Cir. 2004) (stating that Cook is 470 (2005); see also United States v. Cook, 84 U.S. 168, 179-80 (1872); United (1993), abrogated on other grounds by State v. Knickerbocker, 152 N.H. 467,

A statute of limitations claim is a defense that the defendant must

Clauses of the State and Federal Constitutions would preclude a remand for a 6 p. 7 73 (2005) (“[W]e must decide this issue because . . . the Double Jeopardy the inadmissible evidence, however, the additional burden that the jury See State v. Sweeney, 151 N.H. 666,

limitations became an element of the offense that the State had the burden to See RSA 625:8, I(c), VI(a) (Supp. 2008). He argues that the statute of within the applicable statute of limitations or that the tolling provision applied. State had the burden to prove that the misdemeanor charge was brought failing to dismiss the misdemeanor charge. The defendant argues that the We next address the defendant’s argument that the trial court erred in

evidentiary requirement upon the State.” Because of the prejudicial impact of worked in the defendant’s favor by imposing an additional and unnecessary The State contends that the trial court’s limiting instruction “actually

was not harmless error; accordingly, the defendant’s convictions are reversed. beyond a reasonable doubt.”). Therefore, admission of the Pennsylvania acts the trial court’s admission of uncharged acts of sexual assault was harmless evidence and the gravity of its potential prejudicial impact, we cannot say that Montgomery, 144 N.H. 205, 210 (1999) (“Given the character of the improper p. 8 8

make such other order as the interest of justice requires.”).

motion to dismiss.

to reply or give evidence, as the case may be . . . .” the State’s case. “[S]uch a proceeding would deprive the prosecutor of the right BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

this rule, the Court may exclude any testimony relating to such defense or

RSA 625:11, III(d), and the trial court did not err in denying the defendant’s Thus, the statute of limitations did not become an element of the offense under

trial. Instead, the defendant raised the issue for the first time at the close of Here, the defendant did not file a statute of limitations claim prior to