2008-751, STATE OF NEW HAMPSHIRE v. NATHANIEL ERICSON

year-old victim to hold Silly Putty in her hands while testifying; and (4) denying dismiss based upon sufficiency of the evidence; (3) allowing the then thirteen-

indictment charging the pattern variant of AFSA; (2) denying his motion to the Superior Court (McGuire, J.) erred by: (1) denying his motion to dismiss an RSA 632-A:2 (Supp. 2000) (amended 2003, 2008). On appeal he argues that by a jury of three counts of aggravated felonious sexual assault (AFSA). See DALIANIS, J. The defendant, Nathaniel Ericson, appeals his conviction

the defendant. Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for

attorney general, on the brief and orally), for the State. Orville B. Fitch, II, acting attorney general (Thomas E. Bocian, assistant

to press. Errors may be reported by E-mail at the following address: Opinion Issued: November 17, 2009

No. 2008-751 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 pornography that he had forced her to watch.

p. 2 his “boy parts” in her mouth and “girl parts” and about putting his fingers

which she knew was a “sex swing” because she had seen them in the Also at the lake house, the defendant sometimes put the victim in a swing, said that the defendant’s penis felt “kind of stiff” and that its skin was “peely.” her. on her, such as rubber breasts and buttocks, and watched pornography with touched her. She also told him that the defendant had talked about putting

defendant once attempted to put his penis into the victim’s vagina. The victim

removing her clothes and his. She also alleged that he put rubber body parts lake house with the defendant and showed him where the defendant had afraid that he would kill her. She told her father that she was left alone in the that she did not want to talk about what he had done to her because she was

penetration occurred at the lake house. In addition to these incidents, the fingers. All told, more than three but fewer than ten incidents of sexual defendant would then penetrate the victim’s vagina with his tongue and her to his bedroom, putting on a strobe light, knocking her to the bed and

fourth grade, she told her father that the defendant was a “child molester,” but

would take off her clothes and his own. When they were both naked, the assaulted her by inserting his fingers and tongue into her vagina after taking

anyone about them, she would regret it. In 2004, when the victim was in the afraid to report the assaults because the defendant told her that if she told any adults because the defendant forbade her from doing so. The victim was Although the victim told her sister about the assaults, she did not tell monthly. the summer of 2001, they visited the defendant and Rose at least twice 1999, the girls stayed with the defendant and Rose for weeks at a time. Until

her if she would like to play a game, would bring her into his bedroom, and The victim alleged that, at the Loon Mountain townhouse, the defendant

Hillsborough and at their townhouse at Loon Mountain. During the summer of

place at the lake house. When she and the defendant were alone, he would ask 1999, before she knew how to tie her shoes well. These first assaults took The defendant began to assault the victim sexually in the summer of

half-sister, Rose, and her husband, the defendant, at their cottage on a lake in the late 1990s, she and her sister spent a great deal of time with her mother’s could have found the following facts. The victim was born in October 1994. In Viewing the evidence in the light most favorable to the State, the jury

I. Background

and rubber body parts and showed them to the victim. We affirm. his motion in limine to exclude evidence that he owned pornographic videos that he ever had any sexual intent.

p. 3 seeing naked pictures, they must have been in a “ defendant called the police station and said that if the victim had reported

him not to do so. The defendant denied that he ever penetrated the victim and claimed that he never told anyone about this incident because the victim asked to be ashamed of and that both her mother and his wife masturbated. He that the victim masturbated. Less than an hour after the interview ended, the

Grafton County indictments was dismissed at the close of the State’s case, and

victim may have found them. He also admitted to owning adult movies, and them . . . .” He admitted that he kept dildos in a bedroom drawer and that the remaining two non-pattern Hillsborough County indictments. One of the

proper is not an issue in this appeal. and Grafton County indictments were joined for trial. Whether joinder was

that the victim took his finger and put it down the waistband of her underwear a child less than thirteen years old. that this kind of contact did not make him feel uncomfortable. He testified also repeatedly reached down to touch his penis through his clothes. He admitted kids got more of a fascination with the nakedness. For some reason it thrilled The jury convicted the defendant on the pattern indictment and on the

townhouse between September 1998 and September 2001. The Hillsborough

November 2000, he digitally penetrated or performed cunnilingus on the victim, the jury, for instance, that when the victim would try to climb on his lap, she seeing him naked. He told the police in the recorded interview: “I think the At trial, the defendant blamed the victim for their sexual contacts, telling they were showering and that he had no problem with the victim and her sister defecated. He also admitted that the victim may have touched his penis while

counts of AFSA for the assaults that allegedly occurred at the Loon Mountain jury indicted the defendant on one count of felonious sexual assault and two non-pattern indictments was dismissed before trial. A Grafton County grand

A:2, III. The remaining three indictments alleged that, between May 2000 and the pattern variant of AFSA between May 1999 and April 2000. See RSA 632counts of AFSA. See RSA 632-A:2. One indictment alleged that he committed A grand jury in Hillsborough County indicted the defendant on four showered with the victim and helped her to clean her bottom after she

February 2006 when the victim was finally ready to talk with them.

When interviewed by the police, the defendant told them that he

victim had told him. The victim’s mother did not take her to the police until inside her. The victim’s father informed the victim’s mother about what the months or more and within a period of five years.” p. 4 than one act of [AFSA] or felonious sexual assault or both over a period of two

months or more and within a period of five years. sexual assault on [the victim], a child under the age of 16, by committing more or felonious sexual assault or both, upon the same victim, over a period of two “pattern” of sexual assault, defined as committing more than one act of AFSA

the defendant committed AFSA in that “he did knowingly engage in a pattern of 4 May 1999 through and including April 2000 at Hillsborough, New Hampshire,” specified the conduct against which the defendant was required to defend: a Consistent with these statutes, the pattern indictment alleged that “on or about

prepare for trial. offense with which he was charged with sufficient specificity to enable him to

-- May 1999 through April 2000, and the identity and age of the victim. It also months or more and within a period of 5 years.” RSA 632-A:1, I-c (2007). failed to allege the predicate acts comprising the pattern of sexual assault. The defendant argues that the indictment was insufficient because it

See Davis, 149 N.H. at 704.

RSA 632-A:1, I-c. The indictment, therefore, informed the defendant of the

conduct -- Hillsborough, a time period in which it was alleged to have occurred than one act under RSA 632-A:2 . . . upon the same victim over a period of 2 Hannon, 151 N.H. 708, 718 (2005). It specified a location for the alleged the defendant can prepare for trial and avoid double jeopardy. than 16 years of age.” A “pattern of sexual assault” means “committing more facts sufficient to allow the defendant to prepare a defense. See State v. engages in a pattern of sexual assault against another person . . . who is less The pattern indictment alleged the elements of the offense, as well as

the crime. crime was accomplished or other facts that are not essential to the elements of

that an indictment describe the offense with sufficient specificity to ensure that provides, in relevant part: “A person is guilty of [AFSA] when such person offense with the requisite specificity to enable him to prepare a defense. The pattern variant of AFSA is set forth in RSA 632-A:2, III, which

Id.

language of the relevant statute; it need not specify the means by which the specific charges. Id. An indictment generally is sufficient if it recites the the elements of the offense and enough facts to notify the defendant of the 149 N.H. 698, 704 (2003). To be constitutional, the indictment must contain

N.H. CONST. pt. I, art. 15. Part I, Article 15 of the State Constitution requires

The defendant first argues that the pattern indictment failed to allege the

II. Motion to Dismiss Pattern Indictment

indictments. the jury was unable to reach a verdict on the remaining two Grafton County of the allegations made by the alleged victim.”

come to the same conclusion.

guilt beyond a reasonable doubt. weight to be given to the evidence, questions which were for the jury to resolve. inferences from it in the light most favorable to the State, could have found

defendant requested a bill of particulars.

because the victim’s “allegations changed over time.” He argues, by contrast, after unsuccessfully moving to dismiss, the issue on appeal is the sufficiency of investigators.” Additionally, he contends that the evidence was insufficient Id. frames of the alleged assaults” or “what details she gave to police we defer to the findings of the jury unless no reasonable person could have Hull, 149 N.H. 706, 712 (2003). When there is conflicting factual testimony, reject any portion of the victim’s testimony in its deliberations. See State v. See State v. Spinale, 1 p. 5 56 N.H. 456, 465 (2007). The jury was free to accept or discrete acts of molestation.” The defendant’s arguments go to the victim’s credibility and the proper that no rational trier of fact, viewing all of the evidence and all reasonable

note that there is no evidence in the record submitted on appeal that the

specified in the indictments. Because the defendant chose to present a case prove that particular acts of sexual assault occurred during the time frames because, on cross-examination, the victim “was unable to recall any of the time motion to dismiss all of the indictments on the ground that the State failed to The defendant argues that the evidence was insufficient to convict him

in his challenge to the sufficiency of the evidence, the defendant had to prove State v. Cunningham, 1 p. 5 59 N.H. ___, ___, 977 A.2d 506, 509 (2009). To prevail failure to allege more specifically the predicate acts comprising the pattern. We defendant’s ability to prepare a defense was not impaired by the indictment’s frame and location in which the assaults allegedly occurred, we hold that the

that comprise it. The defendant next asserts that the trial court erred when it denied his

III. Sufficiency of the Evidence victims, who have been subject to repeated, numerous incidents of sexual

not be alleged.

elements of the pattern offense, as well as additional facts, such as the time

Id. at 791. Because the indictment here alleged the essential

pattern statute, therefore, is the pattern itself, and not the specific assaults

created RSA 632-A:2, III “to respond to the legitimate concern that many young

See State v. Fortier, 146 N.H. 784, 791 (2001). Our legislature

pattern do not constitute elements of the pattern crime, and, therefore, need Contrary to his assertions, the individual acts of sexual contact underlying the his argument and to preserve the issue for appeal.

p. 6 basis of his objection. In light of this record, we hold that he has failed to

process argument by asking the court to follow the rule set forth in

judge that either due process or the defendant’s right to confrontation was the

we held that he sufficiently alerted the trial court that he was raising a due

provision that was allegedly violated. raise a constitutional argument. Nor did he ever identify a constitutional or any other phrase that might have alerted the trial court that he intended to fact that counsel specifically used the term “exculpatory evidence” and invoked

exculpatory evidence had violated his right to a fair trial.

439. By contrast, in this case, there was nothing to make clear to the trial Ohio, 426 U.S. 610 (1976), a seminal due process case. Demeritt, 148 N.H. at

although defense counsel never cited a specific rule or constitutional provision,

defendant never made reference to “due process,” “fair trial,” “right to confront,” 40. While the defendant never used the phrase “due process,” we held that the

record showed that the defendant had specifically argued that the loss of 439 (2002); State v. Bruce, 147 N.H. 37, 40 (2001). For example, in Bruce, the constitutional provision in the trial court. See State v. Demeritt, 148 N.H. 435, preserved a constitutional claim even though he never cited a specific This case is unlike others in which we have held that a defendant has appellate review. contemporaneous and specific objection is required to preserve an issue for

constitutional rights to a fair trial. victim to hold Silly Putty in her hands violated his state and federal failed to establish a “compelling need” to allow her to hold the Silly Putty. The than she might otherwise be evaluated by the jury,” and that the State had victim to hold Silly Putty while testifying would make her appear “more helpless In the trial court, the defendant objected on the ground that to allow the

must state explicitly the specific ground of objection. Id.

State v. Winstead, 150 N.H. 244, 246 (2003). The objection

excluded all rational conclusions except guilt. arguments for our review. The general rule in this jurisdiction is that a amends. VI, XIV. The defendant, however, has not preserved either of these

The defendant next contends that the trial court’s decision to allow the

IV. Silly Putty

circumstantial evidence). See State v. Newcomb, 140 N.H. 72, 80-81 (1995) (defining direct and the contrary, in this case, the victim presented direct evidence of the assaults.

solely circumstantial, which would require that we examine whether it The defendant mistakenly contends that the evidence against him was defendant. p. 7 the evidence must not be substantially outweighed by its prejudice to the

inferences of predisposition, character, or propensity.”

clear proof that the defendant committed the act; and (3) the probative value of

disprove an issue actually in dispute, without relying upon forbidden precise chain of reasoning by which the offered evidence will tend to prove or accident.

which the State offers the evidence. Id. other than proving the defendant’s character or disposition; (2) there must be logical connection” between the other acts and the permissible purpose for 322, 327 (2006). That chain of reasoning must demonstrate “a sufficient

To meet its burden under the first prong, the State must “articulate the preparation, plan, knowledge, identity, or absence of mistake or purposes, such as proof of motive, opportunity, intent, demonstrating the admissibility of prior bad acts. conformity therewith. It may, however, be admissible for other Id.

Beltran, 153 N.H. at 647. The State bears the burden of

of this evidence.

of evidence under Rule 404(b): (1) the evidence must be relevant for a purpose N.H. R. Ev. 404(b). We have established a three-part test for the admissibility unreasonable to the prejudice of the defendant’s case.

exercise of discretion.

discretion. the character of a person in order to show that the person acted in Evidence of other crimes, wrongs, or acts is not admissible to prove

Rule 404(b) provides: asserts that New Hampshire Rule of Evidence 404(b) precluded the admission

reverse the trial court’s decision only if it was clearly untenable or

court’s admission of evidence pursuant to Rule 404(b) for an unsustainable

State v. Jenot, 158 N.H. 181, 184-85 (2008). We review the trial

The admissibility of evidence is a matter within the trial court’s broad

movies, dildos and rubber body parts and showed them to the victim. He motion in limine seeking exclusion of evidence that he owned pornographic Finally, the defendant argues that the trial court erred by denying his

V. New Hampshire Rule of Evidence 404(b)

147 N.H. 550, 554 (2002). preserve either a state or a federal constitutional claim. See State v. Gaffney, advances while she was at his Loon Mountain home.

p. 8 and pornography as part of his preparation of the victim to submit to his

the case. to base its decision upon something other than the established propositions in

was admissible to demonstrate that the defendant used the rubber body parts like fun” and that they “should try [them].” This evidence, objectively viewed, sexual.” The defendant told the victim the sexual acts “looked interesting or of the Rule 404(b) test.

to punish, or trigger other mainsprings of human action that may cause a jury

substantially outweigh the probative value of the evidence. 8

watch shows that sometimes involved “real actual people . . . doing something rubber body parts. This offer of proof was sufficient to meet the second prong

appeal to a jury's sympathies, arouse its sense of horror, or provoke its instinct

is admissible if the danger of unfair prejudice to the defendant does not

probative worth under Rule 404(b). Id. deference to the trial court’s determination in balancing prejudice and defendant because it tends to prove his guilt. Id. We accord considerable defendant told her how babies were made and then turned on the television to statements to police that the defendant showed her pornographic films and Id. It is not, however, evidence that is merely detrimental to the her that she “looked nice.” After the victim donned the body parts, the disposition. and buttocks. He then took off her clothes and had her don these parts, telling

at 649. Evidence is unfairly prejudicial if its primary purpose or effect is to rules of evidence in making this determination.” Beltran, 153 N.H. concerning the admissibility of evidence, and the trial court is not bound by the defendant committed the prior bad act “is a preliminary determination Under the third prong of the Rule 404(b) test, evidence of prior bad acts

parts, and that the victim may have seen the body parts; and (2) the victim’s (1) the defendant’s admissions that he owned pornography and rubber body evidence relevant for a purpose other than proving the defendant’s character or under his bed and showed her rubber body parts, including a penis, breasts To establish clear proof, the State made an offer of proof that included:

121, 126 (1996) (quotation omitted). Whether there is clear proof that the some other person, committed the prior bad act.” State v. Lesnick, 141 N.H. [proponent] presents evidence firmly establishing that the defendant, and not The second prong of the Rule 404(b) test “is satisfied when the

N.H. 300, 304 (1996). The trial court, therefore, did not err in finding the defendant in his bedroom in the Loon Mountain home, he pulled a box from testified that in the winter of 1999 or 2000, while watching television with the See State v. Castine, 141 prepared the victim for and desensitized her to the sexual assaults. The victim

parts and showed them to the victim was relevant to demonstrate how he Here, evidence that the defendant owned pornography and rubber body cannot now complain of error.”

instruction nor objected to the trial court’s failure to give one. “As such, he

potentially prejudicial nature.

with respect to the lake house assaults, he never asked for a limiting

that the probative value of the evidence was not substantially outweighed by its these circumstances, we hold that the trial court did not err by determining victim to submit to his advances and, as such, was highly probative. Under

defendant was minimal.” admissible with respect to the Loon Mountain assaults, it was inadmissible

BRODERICK, C.J.