2009-145, State of New Hampshire v. Harold Oakes

Michael A. Delaney

No. 2009-145

Grafton

sexual assault. See counts of aggravated felonious sexual assault and one count of felonious HICKS, J. The defendant, Harold Oakes, appeals his conviction on two

Sisti Law Offices

prior and subsequent allegations of sexual assault; (5) granting the State’s indictments; (4) granting the State’s motion to exclude evidence of the victim’s motion to compel depositions; (3) permitting the State to amend the (1) denying his motion to dismiss for insufficient evidence; (2) denying his (amended 2008). He argues that the Superior Court (Bornstein, J.) erred by:

the defendant.

general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as from the defendant that he intended to call three witnesses to testify that the p. 2 prior and subsequent sexual assault allegations, after receiving notification Before trial, the State filed a motion to exclude evidence of the victim’s

polygraph examiner] was doing there or why.” polygraph test if the State didn’t “have an opportunity to explain what [the defendant could not testify to the time he spent in the police station for the defendant’s objection, the trial court granted the State’s motion, ruling that the since the State was not permitted to discuss the polygraph test. Over the time of his arrival at the police station, arguing that it would confuse the jury response, the State moved that the defendant be precluded from discussing the about the polygraph examination and results, which the trial court granted. In by “other means,” and the depositions were not “necessary.” See In November 2008, the defendant filed a motion to exclude any testimony relevant issues were not complex, the defendant could discover the information unnecessary. The trial court denied the defendant’s motion, finding that the individuals had already provided detailed statements, rendering depositions that he had given a false confession. The State objected, arguing that the interviewing officers and the polygraph examiner in order to develop evidence 2008, he filed a motion to compel deposition testimony from both of his aggravated felonious sexual assault and one count of sexual assault. In July On February 15, 2008, the defendant was indicted on two counts of

polygraph, a detective interviewed him from 12:30 p.m. to 3:40 p.m. arrived at the police station at 9:00 a.m. to take a polygraph test. After the and a half hours on December 1, 2007. On December 6, 2007, the defendant The Enfield Police contacted the defendant and interviewed him for one September 3, 2008, the trial court granted the motion. “a matter of form and not substance.” The defendant filed no objection. On argued that time was not an element of the offense and the amendments were December 1, 2005, to January 1, 2005 through September 1, 2006. The State expand the time frame of the alleged incidents from January 1, 2005 through In August 2008, the State moved to amend the original indictments to

II (2007); State v. Fernandez, 152 N.H. 233 (2005).

reported the allegations to the Enfield Police Department. daughter, E.N., a child under the age of thirteen. The DCF Investigator Children and Families (DCF) that the defendant had sexually abused her foster Tetreault, a foster care mother, reported to the Vermont Department of The record supports the following facts. On November 8, 2007, Sadie

interview with the police; and (6) ordering restitution. We affirm. motion to exclude the defendant from testifying about the duration of his p. 3 “in the context of this particular sentence,” it was not unconstitutional because indefinite sentence without any basis in the record. The trial court found that request. The defendant objected, arguing that it was an unconstitutional submission. The trial court imposed restitution consistent with the State’s the department of corrections could request a hearing to review the State indicated that once a bill was submitted from the victim, the defendant or medical bills, the State recommended an amount not to exceed $10,000. The future counseling for the victim. Because the victim had not yet incurred sentencing recommendation, the State requested restitution to pay for any The jury convicted the defendant on all three charges. As part of its

On the last day of trial, the State filed a motion in

inadmissible. evidence regarding the time at which [the polygraph examiner] arrived” was jury could infer or find guilt,” and denied the defendant’s motion. to exclude the polygraph testimony, where the court had found that “the ruled that the State had “produced sufficient evidence from which a reasonable the State’s motion, finding it consistent with its previous ruling on the motion The trial court, construing the evidence in the light most favorable to the State, believe that’s all decided and agreed to, Your Honor.” The trial court granted was in the station to take it. The defendant did not object, stating, “No, I satisfy its burden on the remaining charge brought pursuant to RSA 632-A:3. an element of RSA 632-A:2, II (2007). He further argued that the State failed to references to the polygraph, including the length of time that the defendant committed any of the acts “for the purpose of sexual arousal or gratification,” that the ruling on the defendant’s previous motion in limine excluded all dismiss the three charges, arguing that the State failed to prove the defendant statement and in the testimony of two defense witnesses. The State argued At the conclusion of the State’s case, the defendant orally moved to second interview. The defendant had referenced the time period in his opening defendant from testifying to the time of his arrival at the police station for his

jury.” the danger of unfair prejudice - - confusion of the issues and misleading the allegations had minimal probative value that was “substantially outweighed by credibility. The trial court granted the State’s motion, finding the prior cannot “justify deceit”; and (3) the evidence was relevant to the victim’s activity; (2) the victim was not unfairly prejudiced under Rule 403 because she (1) Superior Court Rule 100-A does not apply to “false allegations” of sexual maintained that the assaults did occur. The defendant objected, arguing that: was irrelevant and would result in a “trial within a trial,” because the victim Hampshire Rule of Evidence 403. The State further argued that the evidence evidence was not admissible pursuant to Superior Court Rule 100-A and New victim falsely accused them of sexual assault. The State argued that the aloud the defendant’s written statement that “[o]nly tips of a finger was [sic p. 4 his fingertips into her, but stopped because “he knew it was wrong.” He read that he admitted to “tickle wrestling” with the victim and purposely inserting The officer who conducted the second interview of the defendant testified

“browbeated” [sic “brain was fried” by the end of the interview. He testified that he was aggressive,” and that he could not remember writing a statement because his occurred was accidental. He testified that the second interview was “very The defendant testified that any touching of the victim that may have guilt beyond a reasonable doubt.” State v. Ericson inferences from it in the light most favorable to the State, could have found 4 that no rational trier of fact, viewing all of the evidence and all reasonable In challenging the sufficiency of the evidence, the defendant must “prove

officer’s words, not his own words.

] during the interview and that his written statement used the

kid,” the defendant stated, “everybody thinks about it.” response to the officer’s question whether he ever thought about “touching a you can forgive me about [sic testified that he admitted to being alone with the victim “[f]our times.” In] this.” penetration. The officer who conducted the first interview with the defendant occurred, but it was an accident and I would like to apologize to you. I hope penetrated her, and she marked a plastic glove indicating the depth of defendant wrote to the victim that stated, “I am sorry for the incident that what had occurred. She further testified that the defendant digitally inserted when I touched her.” He also read aloud an apology letter that the her body, and that he threatened her and her family if she told anyone about] on her vagina and her buttocks. She testified that the defendant complimented At trial, the victim testified that the defendant touched her several times

I. Sufficiency of the Evidence

police, were sufficient to establish the elements of the three charges. describing the assaults, and the defendant’s written and oral statements to support his convictions. The State counters that the victim’s testimony On appeal, the defendant argues that the evidence was insufficient to a case after unsuccessfully moving to dismiss the indictments. Id. We will consider the entire trial record because the defendant chose to present

the bills.” could “challenge the amount of restitution if he disputes the reasonableness of ceiling on those costs. Additionally, the trial court found that the defendant the victim was likely to incur counseling costs and the sentence imposed a p. 5 II. Motion to Compel Depositions

any other special or exceptional circumstances which may exist.” Id information available to discover the information sought by the deposition, and shall consider the complexity of the issues involved, other opportunities or good cause shown.” RSA 517:13, II(b). “In determining the necessity, the court II. A deposition is necessary “[t]o ensure a fair trial, avoid surprise or for other preponderance of the evidence that such deposition is necessary.” RSA 517:13, depositions of a witness in a criminal case where the moving party shows by “a Under RSA 517:13, II, the trial court has the discretion to compel 5

the unsustainable exercise of discretion standard. See. We will evaluate the trial court’s denial of the defendant’s motion under

relying on RSA 517:13, II and Fernandez questioned the same witnesses at an evidentiary hearing.” The trial court, the defendant’s motion to dismiss. was “insufficient to prove multiple acts.” The trial court did not err in denying defendant “could have moved to exclude his confession as involuntary and “within the defendant’s personal knowledge.” The State noted that the clearly untenable or unreasonable to the prejudice of his case.” Id indictments “should have been merged for sentencing” because the evidence. The State argues that the interview techniques used by the officers were 236. “To prevail, the defendant must demonstrate that the court’s ruling was all three counts. In so holding, we reject the defendant’s argument that the determine the “methodology used by the police in their interrogation of him.” evidence for a rational trier of fact to find guilt beyond a reasonable doubt on Fernandez, 152 N.H. at false and/or involuntary confession. He argues that there was no other way to testimony of the victim and the police officers provided more than sufficient and polygraph examiner were necessary to support his claim that he made a In viewing the evidence in the light most favorable to the State, the The defendant argues that depositions of the interviewing police officers Fernandez, 152 N.H. at 236-37; RSA 517:13, II. the defendant could discover the information by “other means.” See issues were not “complex” and the depositions were not “necessary,” because

N.H. at 386 (citation omitted). reasonable person could have come to the same conclusion.” Ericson, 159 conflicting factual testimony, we defer to the findings of the jury unless no reject any portion of the victim’s testimony in its deliberations. When there is found the defendant guilty on all three counts. “The jury was free to accept or 465 (2007). The jury heard contradictory testimony from the witnesses, but testimony “were issues for the jury to resolve.” State v. Spinale, 156 N.H. 456, The evaluation of witness credibility and the weight given to witnesses’ not raised in the trial court that affect “substantial rights.” Sup. Ct. R. p. 6 The plain error rule allows us to exercise our discretion to correct errors

substantially and formally, described to him.” N.H. CONST. pt. I, art. 15. A be held to answer for any crime, or offense, until the same is fully and plainly, Part I, Article 15 of the State Constitution provides that “no subject shall

opportunity.” did not assert “an alibi defense” or other “defense based on lack of State further argues that the change was not prejudicial because the defendant Matey, 153 N.H. 263, 266 (2006) (quotations omitted). offenses; thus, the amendments were a change in form, not substance. The this rule “sparingly,” and only to prevent “a miscarriage of justice.” State v. response, the State argues that time was not an element of any of the charged Hancock, 156 N.H. 301, 303 (2007) (quotation omitted). We find error under fairness, integrity or public reputation of judicial proceedings.” State v. substantive change in the charge” and not merely “a change in the form.” In error must affect substantial rights; and (4) the error must seriously affect the granting the State’s motion. He argues that the amendments were “a To find plain error: “(1) there must be error; (2) the error must be plain[;] (3) the amendments of his indictments below, the trial court committed plain error in The defendant argues that, although he did not object to the 16-A.

III. Amendments to the Indictments

not developed his constitutional arguments, we decline to address them.” State Amendments to the United States Constitution.” “Because the defendant has of the New Hampshire Constitution and the Fifth, Sixth and Fourteenth In his brief, the defendant makes passing reference to “Part I, Article 15

(defendant waived constitutional claims by failing to elaborate on them.). v. Lott, 152 N.H. 436, 443 (2005); see State v. Chick, 141 N.H. 503, 504 (1996)

Fernandez, 152 N.H. at 236 (quotation omitted). that the defendant had not met his burden of establishing necessity.” Fernandez, “the trial court weighed the statutory factors and properly ruled evaluating voluntariness of a confession after suppression hearing). Here, as in See, e.g., State v. Hall, 148 N.H. 671, 672 (2002) (explaining standard for opportunity to cross-examine both of the officers and the polygraph examiner. and moved to suppress it. At the hearing, the defendant would have had an found, the defendant could have challenged the voluntariness of his confession transcript and officers’ reports were insufficient. However, as the trial court defendant attempts to distinguish Fernandez, arguing that here the partial prepare his defense.” Fernandez, 152 N.H. at 236 (quotation omitted). The request for depositions because the defendant had “ample information to In Fernandez, we upheld the trial court’s denial of the defendant’s before trial. See p. 7 sufficient time to understand the charges and prepare any additional defenses The defendant’s trial was held in mid-November 2008. The defendant had Id Further, the trial court granted the State’s motion on September 3, 2008.

amendment as an element of the offense charged. the crime alleged.” Id indictment's substance, but it is not as protected from trial court allegation, which had the “effect of specifying and circumscribing the scope of Here, the State’s amendment of the indictments was a change in the 7

in permitting amendment of the indictments.

id. The trial court committed no error, much less plain error,

the indictments. established any prejudice to his defense due to the change in the time frame of the crime was committed. Such an allegation is part of the has never asserted an alibi defense or lack of access to the victim; nor has he the scope of the crime alleged; for instance, an allegation of how argument does not rely upon the originally specified time frame. The defendant the victim, and any touching that may have occurred was accidental. This victim on four occasions. At trial the defendant testified that he never touched interview at the police station, the defendant admitted to being alone with the 2005 and December 1, 2005. We find no merit to this argument. During his prepared a defense only to any alleged assaults occurring between January 1, “prepare his defense.” Id. (quotation omitted). The defendant argues that he that the change prejudiced his ability to “understand properly the charges” or

the indictment that has the effect of specifying and circumscribing omitted). charges against him or in his ability to prepare his defense.” Id. (quotation prejudices the defendant either in his ability to understand properly the “causes an impermissible amendment of the indictment is whether the change . (quotation and citation omitted). The test for whether a changed allegation

the crime charged in an indictment, but changes an allegation in [B]etween these two extremes is the amendment that does not alter

the form or the substance of the indictment. Id. (quotation omitted). Some amendments are not easily classified as affecting been passed on by a grand jury.” State v. Elliott, 133 N.H. 759, 764 (1990) because “they do not jeopardize the right to be tried only on charges that have 489 (2001); see RSA 601:8 (2001). Amendments in form are permissible indictments in form, but not in substance.” State v. Bathalon, 146 N.H. 485, 129 N.H. 515, 519 (1987) (quotation omitted). A trial court “may amend charges that are not made in the indictment against him.” State v. Erickson, in preparing his defense, and a court cannot permit a defendant to be tried on defendant “has a right to rely upon the information contained in an indictment p. 8 A. Extrinsic Evidence

of the issues, or misleading the jury . . . .” value is substantially outweighed by the danger of unfair prejudice, confusion in pertinent part: “Although relevant, evidence may be excluded if its probative This Rule is limited by New Hampshire Rule of Evidence 403, which provides,

witness’ character for truthfulness or untruthfulness . . . . into on cross examination of the witness . . . concerning the court, if probative of truthfulness or untruthfulness, be inquired by extrinsic evidence. They may, however, in the discretion of the conviction of crime as provided in Rule § 609, may not be proved

attacking or supporting the witness’ credibility, other than

Specific instances of the conduct of a witness, for the purpose of

Kornbrekke misconduct” is immaterial because the defendant relies only upon the would have testified at trial that the victim “had lied about allegations of sexual As an initial matter, the defendant’s assertion that the three witnesses

Under New Hampshire Rule of Evidence 608(b):

factors in his brief. (Quotation omitted). Kornbrekke applies

cross-examination or the admissibility of evidence.” Id We afford the trial courts “broad discretion to determine the scope of

157 N.H. 570, 572 (2008). untenable or unreasonable to the prejudice of a party’s case. State v. Forbes, exercise of discretion standard and reverse only if the rulings are clearly under a Kornbrekke challenges to a trial court’s evidentiary rulings under our unsustainable cross-examine the truthfulness of his accuser.” The defendant argues that. at 823. We review exclude this evidence denied the defendant “the opportunity to inquire into and The defendant argues that the trial court’s order granting the State’s motion to against others, both before and after the allegations against the defendant. Kornbrekke. witnesses that the victim had made false allegations of sexual misconduct preponderance of the evidence.” In its brief, the State seeks to distinguish witnesses “can it be said that the accusation was shown to be false, even by a Before trial, the defendant sought to introduce testimony from three truthfulness or untruthfulness.” The State argues that for none of the the inquiry on cross-examination is only admissible if it is “probative of State argues that under Rule 608(b) of the New Hampshire Rules of Evidence, allegations” was probative. See State v. Kornbrekke, 156 N.H. 821 (2008). The

IV. Evidence of the Victim’s Prior and Subsequent Allegations of Assault other evidence already received on credibility; and (9) whether

p. 9 specific-instances evidence is cumulative or unnecessary in light of specific-instances conduct in fact occurred; (8) the extent to which

specific instances to trial; (7) the likelihood that the alleged witness’s testimony; (6) the nearness or remoteness in time of the are similar to the circumstances surrounding the giving of the

the circumstances surrounding the specific instances of conduct of untruthfulness is connected to the case; (5) the extent to which probative of other relevant matters: (4) the extent to which the act

B. Cross-Examination 9 untruthfulness; (3) the extent to which the evidence is also (2) the extent to which the evidence is probative of truthfulness or (1) whether the testimony of the witness is crucial or unimportant;

The defendant relies solely upon the Kornbrekke during cross-examination of the victim under Rules 403 and 608(b). Kelly A trial court must also determine whether the evidence is admissible

motives.” State v. Ellsworth proffered evidence is highly probative of the material issue of the complainant’s this bar on extrinsic evidence “where the allegations are similar, and the determine the “degree of probative value” of the evidence: With other allegations of sexual assault, we have created an exception to should consider in determining the “interplay between Rules 403 and 608” to N.H. at 200. In Kornbrekke, we reiterated the factors that the trial court

testimony. evidence of the victim’s allegedly false allegations through the three witnesses’ Ev. 608(b). Thus, we decline to address the trial court’s exclusion of extrinsic the admission of extrinsic evidence. See Ellsworth, 142 N.H. at 719; N.H. R. thereby electing not to rely upon Ellsworth or the Rule 608(b) requirements for

(quotations omitted). clearly and convincingly untrue.” State v. Brum, 155 N.H. 408, 414 (2007) “the prior allegations were demonstrably false, which we interpret to mean permitted to introduce extrinsic evidence of the victim’s prior allegations where

omitted). cross-examination.” State v. Kelly, 160 N.H. 190, 202 (2010) (quotation truthfulness or untruthfulness, but must take the answer the witness gives on witness about conduct that is probative of the witness’s character for credibility of the victim. Id. “[D]efense counsel may cross-examine a State Ev. 608(b). Typically, extrinsic evidence is not permitted to attack the Under Rule 608(b), extrinsic evidence presents a separate issue. See N.H. R. exclusively to cross-examination of a victim. Kornbrekke, 156 N.H. at 828. p. 10 A “critical factor” in the Kornbrekke

untruthfulness and otherwise admissible.” Id Unlike Kornbrekke 10 must assess whether the prior accusation is probative of truthfulness or false in order to cross-examine the complainant about it; rather, the trial court “The defendant need not prove that a prior accusation was demonstrably not relevant to show “untruthfulness” of the victim on cross-examination. allegations of sexual assault were false; if they were not false, the evidence is

untruthfulness.” Id. at 827; see Brum, 155 N.H. at 413-14. the account was not probative of the complainant’s truthfulness or account into a false one, and the trial court could have reasonably found that no charges related to the prior incident were filed did not transform the

Id. at 826. probative of the complainant’s character for truthfulness or untruthfulness.” no such false accusation was made, then the cross-examination is not accusation . . . is a critical factor to the probative value analysis in this case. If Kornbrekke In Kornbrekke, “The likelihood . . . the complainant in fact made a prior false id. at 823, the victim here maintains that the assaults did occur. We stated in Kornbrekke where the victim recanted her statement in writing,

evidence, but not falsity. DCF deemed the two subsequent allegations unsubstantiated for lack of counseling during which he admitted to the assaults, he was never charged. instance substantiated. Although the perpetrator agreed to attend sex offender prior and two subsequent to the allegations in this case. DCF deemed the prior victim made accusations of sexual assault against three other individuals, one assault and later recanted her statement in writing. Id solely upon the Rules of Evidence and did not address the Kornbrekke. at 823. Here, the In their written and oral motions to the trial court, both parties relied, the victim had previously accused a man of sexual

victim’s cross-examination. See Kornbrekke, 156 N.H. at 825. determining the admissibility of a victim’s prior false allegations during the ruling reflects analysis of the factors we reiterated in Kornbrekke concerning credibility. for R. Ev. 403. We will review the trial court’s decision to determine whether its unfair prejudice - - confusion of the issues and misleading the jury.” See N.H. probative value they may have is substantially outweighed by the danger of that the “probative value of those allegations is minimal at best and that any Thus, the trial court relied solely on an analysis of Rule 403 in determining

, 156 N.H. at 825.

specific-instances evidence is needed to rebut other evidence suppressed or otherwise inadmissible evidence to counter the misleading p. 11 doctrine, the State would have been entitled “to introduce previously Under the “specific contradiction” branch of the opening-the-door

that the defendant had been interrogated for an additional three hours. polygraph exam, the jury would have been misled by reasonably concluding testified that he spent the morning at the police station with no reference to the of the issues, or misleading the jury.” N.H. R. Ev. why the defendant was present in the station. If the defendant were to have value is substantially outweighed by the danger of unfair prejudice, confusion spent in the police station for the polygraph test if the State could not explain Rule 403 provides that evidence may be excluded from trial “if its probative The trial court ruled that the defendant could not testify to the time he excluding testimony of the time the defendant arrived at the police station. We hold that the trial court sustainably exercised its discretion by

at 572. untenable or unreasonable to the prejudice of a party’s case. Forbes polygraph examination was a part of the interrogation., 157 N.H. 179 (2007). We will reverse the trial court only if the rulings are clearly mislead the jury to suggest that time spent conducting the defendant’s polygraph to his advantage at trial. The State argues that it would unfairly unsustainable exercise of discretion standard. State v. Giddens, 155 N.H. 175, we review challenges to a trial court’s evidentiary rulings under our examination prevented him from using the time spent conducting the court considerable deference in determining the admissibility of evidence,” and responds that the defendant’s motion to exclude testimony about the polygraph confession was involuntary, a question for the jury to decide. The State 403. “We accord the trial He contends that the trial court denied him the opportunity to show that his at the police station during his second interview and, thereby, misled the jury. motions that prevented him from testifying to the length of time that he spent The defendant argues that the trial court erred in granting the State’s

V. Defendant’s Testimony

consistent with them. See Kornbrekke, 156 N.H. at 825. applied the Kornbrekke factors, its rulings under Rule 403 were nevertheless in fact, false. See N.H. R. Ev. 403. While the trial court should have specifically abuse in one instance and no evidence to show that any of the allegations was, sexual assault under Rule 403, where there was a substantiated finding of when it excluded evidence of the victim’s prior and subsequent allegations of is missing. Id. The trial court did not unsustainably exercise its discretion Kornbrekke, 156 N.H. at 826; see N.H. R. Ev. 608(b). Here, the “critical factor” p. 12 State v. Carlson

in its proper context.

advantage, without allowing the prosecution to place the evidence

time of his arrival at the police station. granting the State’s motions to exclude the defendant’s testimony about the cannot say that the trial court unsustainably exercised its discretion in selectively introducing pieces of this evidence for his own would have misled the jury absent the excluded evidence. Accordingly, we polygraph examination, the defendant was not entitled to present evidence that Having persuaded the trial court to exclude testimony about the

excluding inadmissible evidence favorable to the State and then

statements or that they originated in a polygraph examination.”). polygraph examination, the state in rebuttal is not precluded from offering the admission in evidence of a confession . . . [as involuntary] because of a P.2d 125, 127 (Or. 1990) (en banc) (“[I]f a defendant chooses to object to the the duration and circumstances of her interrogation . . . .”); State v. Hart, 791 polygraph was admissible to rebut the evidence elicited by the defendant about Baldwin, 808 S.W.2d 384, 392 (Mo. Ct. App. 1991) (“[T]estimony regarding the rebut the defendant's claim of coercion with polygraph evidence.”); State v. 56, 61 (Ill. 1998) (“[T]he trial judge in this case correctly permitted the State to advantage. This rule prevents a defendant from successfully confession.”), cert testimony that his confession was coerced or involuntary. See. denied, 446 U.S. 954 (1980); People v. Jefferson, 705 N.E.2d demonstrate the extent to which failure of the polygraph precipitated the introduce testimony about a polygraph examination to rebut the defendant’s upon the alleged threats of [the Agent], without allowing the Government to We note that other state and federal jurisdictions allow the prosecutor to been unfair to allow defendant to present his account of his admissions, based United States v. Kampiles, 609 F.2d 1233, 1244 (7th Cir. 1979) (“It would have may be introduced to rebut an assertion of coercion of a confession . . . .”); F.2d 918, 923 (3d Cir. 1987) (“[E]vidence concerning a polygraph examination assertion that his confession was coerced.”); United States v. Johnson, 816 instead is offered for a limited purpose such as rebutting a defendant's admissible where it is not offered to prove the truth of the polygraph result, but Allard, 464 F.3d 529, 534 (5th Cir. 2006) (“[A] polygraph examination is the impression created by the defendant and cure the misleading United States v. impression, the State is entitled to counter with evidence to refute When a defendant leaves the trier of fact with a false or misleading

, 146 N.H. 52, 56 (2001) (quotation omitted).

(2009). advantage” created by the defendant. State v. Wamala, 158 N.H. 583, 589 offender’s current ability to pay or upon the availability of other compensation. p. 13 “The legislature does not intend that restitution be contingent upon an offender who is responsible for the loss.” RSA 651:61-a, II (2007) explains: act to establish a presumption that the victim will be compensated by the often suffer losses through no fault of their own . . . . It is the purpose of this pertinent part: “The legislature finds and declares that the victims of crimes complies with New Hampshire statutory law. RSA 651:61-a, I (2007) states, in Therefore, we analyze only whether the trial court’s restitution order 13 our review. See failed to demonstrate that he preserved a federal constitutional argument for court, the defendant did not refer to the Federal Constitution. Thus, he has We also decline to perform a federal constitutional analysis. In the trial

State v. DeCato, 156 N.H. 570, 573 (2007).

Constitution in his brief. State v. Dellorfano (1) raise it in the trial court; and (2) specifically invoke a provision of the State state constitutional analysis. Dellorfano our review. To preserve a state constitutional claim, the defendant must:, 128 N.H. at 633. did not raise a state constitutional issue). Accordingly, we will not perform a under the State Constitution, we conclude that he has failed to preserve it for the defendant did not cite a New Hampshire constitutional provision and thus indefinite. To the extent that the defendant intends to raise this argument 432 (1984) (although defendant’s brief referred extensively to state case law, defendant’s crime. He contends that the sentence to pay restitution is too in his brief. Dellorfano any counseling costs the victim may incur in the future as a result of the, 128 N.H. at 632; see State v. Reynolds, 124 N.H. 428, defendant has failed to specifically invoke a provision of the State Constitution him to make restitution to the victim in an amount not to exceed $10,000 for referring to Rau Finally, the defendant argues that the trial court erred when it ordered was sufficient to raise the issue in the trial court, the State v. Rau, 129 N.H. 126 (1987). Even if we assume, without deciding, that trial court, the defendant argued that this sentence was unconstitutional under VII. Restitution , 128 N.H. 628, 632 (1986). In the

decline to address this argument and deem it waived. See he raise the instruction as an issue in his notice of appeal. Therefore, we confession. The defendant did not object to the jury instruction at trial, nor did [d]efendant was questioned” as a consideration of the voluntariness of the instruction provided that the jury should consider “the length of time that the trial court’s jury instruction on the voluntariness of his confession. The During oral argument, the defendant for the first time challenged the

Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 276 (2003).

VI. Jury Instruction p. 14 Affirmed

result of his crime. restitution to the victim in the future for counseling costs she incurs as a crime. Accordingly, the trial court did not err by ordering the defendant to pay 14 defendant to pay restitution for future economic losses caused by his or her statutes. Nothing in these statutes precludes a trial court from ordering a counseling costs occasioned by his crime does not violate the applicable restitution to the victim in the future up to a maximum of $10,000 for DALIANIS, DUGGAN and CONBOY, JJ., concurred. We conclude that the trial court’s order requiring the defendant to pay

offense.” State v. Eno causally connected to the offense and bears a significant relationship to the State must prove by a preponderance of the evidence that the loss or damage is of the trial court. If the factual basis for restitution is disputed, however, the “Determining the appropriate restitution amount is within the discretion

omitted).

more than once for the same injury.” Id. other compensation”; however, it “is not intended to compensate the victim regardless of the offender’s ability to pay and regardless of the availability of must state its reasons therefore. RSA 651:63, I. “Restitution may be ordered amount determined by the court.” If a court chooses not to order restitution, it (Supp. 2009), “[a]ny offender may be sentenced to make restitution in an incurred as a direct result of a criminal offense.” Pursuant to RSA 651:63, I explains that economic loss “means out-of-pocket losses or other expenses the offender to compensate a victim for economic loss.” RSA 651:62, III (2007) 651:62, V (2007) defines restitution, in part, as “money or service provided by feasible, the number of instances in which victims receive restitution.” RSA The legislature intends that the court increase, to the maximum extent