2012-447, State of New Hampshire v. Jessica Botelho

The defendant, Jessica Botelho, appeals her convictions of

orally, for the defendant. James B. Reis, assistant appellate defender, of Concord, on the brief and

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

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 minutes of low oxygen delivery” following the initial stages of drowning. After a

p. 2 doctor explained that this type of injury typically occurs “starting around seven

neurological injury and brain damage as a result of oxygen deprivation. The W.B.’s treating physician found that he had sustained irreversible

drain it.

the bathtub with the faucet at full volume, and approximately six minutes to detective later determined that it took approximately eighteen minutes to fill draining, and found that the bathroom floor was covered with water. A

two neighbors retrieved T.P. from the bathtub, which was half-full but

emergency room, where they arrived at approximately 5:12 p.m. Meanwhile, attempts. A neighbor and his friend drove the defendant and W.B. to the around 5:00 p.m. while the defendant and another neighbor resumed CPR

asked her downstairs neighbors for help. One of the neighbors called 911 at

with W.B. — leaving behind T.P., who had returned to the bathroom — and

bathtub, and attempted CPR. Unable to find her telephone, she ran downstairs the bathtub or floating. She turned off the faucet, retrieved W.B. from the conflicting accounts to police about whether W.B. was lying on the bottom of

discovered W.B. in the bathtub with the faucet running. The defendant gave

“sleeping swimming.” The defendant rushed to the bathroom, where she After some time, T.P. approached the defendant to tell her that W.B. was

been watching videos, reading online content, or composing messages.

thus, several gaps existed in user activity during which the user could have documented only when a user entered, or was directed to, a new web address; myfreeimplants.com or sending messages on the website. The report

entries were associated with viewing and writing blog posts on

exclusively at myfreeimplants.com, from 4:20 p.m. to 5:02 p.m. The majority of

computer resulted in a report that documented nearly continuous user activity, others to get free breast implants.” A forensic examination of the defendant’s 2007, as a “social networking website where people can make donations for

described the website, which the defendant admitted that she had visited since

“posted [a] blog” on a website named “myfreeimplants.com.” The State about the nature and length of her computer use, but admitted that she The defendant gave conflicting accounts to police and other witnesses

on his own. internet. She later told police that T.P. knew how to turn on the bathtub faucet to an outdoor porch, where she used her laptop computer to connect to the

to three inches of water in the bathtub. She then left the apartment and went

children alone in the bathtub with the water “stopped” and approximately two p.m., the defendant ran a bath for the two boys. At some point, she left the twelve months old, and T.P., who was two years old. At approximately 4:00

defendant lived in a second-story apartment with her two sons, W.B., who was The jury could have found the following facts. On July 13, 2010, the committed.

p. 3 defendant to the New Hampshire State Prison for five to ten years, stand

admitted under the doctrine of completeness. See N.H. R. Ev. 106.

web browsing history before and at the time of W.B.’s near drowning.

The court also approved, after two hearings, a motion in limine filed by

and reckless conduct. On the manslaughter charge, the court sentenced the A jury found the defendant guilty of manslaughter, negligent homicide, 3 sections, the court rejected the defendant’s argument that they should be pages of transcript, should be admitted. In excluding these two disputed whether two separate sections, each one amounting to approximately two

to manslaughter for W.B.’s death, pending appeal. This appeal followed. examination of a computer forensic expert, who testified about the defendant’s

in the redacted video of the defendant’s police interview.

certain portions of the recorded interview on relevance grounds but disputed

sentencing in abeyance on the negligent homicide charge, an alternative theory State elicited more than forty direct references to the website during its direct defendant to a concurrent term of one to three years. The court held

On the reckless conduct charge, the court sentenced the be construed as sexual in nature.

Prior to trial, the defendant filed a motion in limine “to exclude all

question during voir dire to determine whether potential jurors “[held] personal with myfreeimplants.com. Finally, there were several references to the website prejudice” and denied the motion. The court advised that it would ask a exhibit detailing this history was comprised largely of web addresses associated such evidence [was] not substantially outweighed by the danger of unfair that the State had offered against her. The parties had agreed to exclude An

opening statement and six times in its closing argument. Additionally, the At trial, the State mentioned myfreeimplants.com by name twice in its counsel had agreed to redact two other descriptions of the website that could defendant’s correspondence with men on myfreeimplants.com and noted that impartial.” At trial, the court ordered the redaction of specific references to the drowning.” examiner determined that he had died from complications related to a “near

Following two hearings, the trial court determined that “the probative value of the State to exclude portions of a videotaped police interview of the defendant

views about breast augmentation that would prevent [them] from being removed from life support on July 20, resulting in his death. A medical consultation between the doctor, the defendant, and W.B.’s father, W.B. was

offered to stipulate that no one else had used her computer on July 13. leading up to [the] incident,” including myfreeimplants.com. In so doing, she evidence pertaining to the specific web addresses [she] visited during the days time.

p. 4 had offered to stipulate that no one else had used her computer during that had used her computer during the relevant period of time,” and because she because “forensic analysis and [her] own statements . . . establish[ed] that she Jenot, 158 N.H. at 185 (quotation, brackets, and ellipses omitted).

commonly one that is emotionally charged.

Finally, she argues that the website’s identifying information was not relevant

undue tendency to induce a decision on some improper basis, Rather, the prejudice required to predicate reversible error is an case, in which sense all evidence offered is meant to be prejudicial.

similar features would have been equally explanatory of gaps in user activity. exceptional.” Thus, her argument implies, a generic reference to a website with including written and video content and an “interactive component,” are “not

prejudice is not, of course, mere detriment to the objecting party's

addition, she argues that the “specific website features” of myfreeimplants.com,

other than the established propositions in the case. Unfair action that may cause a jury to base its decision on something its instinct to punish, or trigger other mainsprings of human

frequently [she] visited the website, not [its] name, content, or purpose.” In characteristic” of her admissions regarding her use of the site “was how relevant to establishing her interest in the site because the “distinguishing

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

less probable than it would be without the evidence.” N.H. R. Ev. 401; State v. was not relevant. She argues that the website’s identifying information was not The defendant first argues that evidence relating to myfreeimplants.com

outweighed by the danger of unfair prejudice.” N.H. R. Ev. 403. Evidence is unfairly prejudicial if its primary purpose or effect is to

substantially outweighed by the danger of unfair prejudice.” N.H. R. Ev. 403;

fact that is of consequence to the determination of the action more probable or Evidence is relevant if it has “any tendency to make the existence of any

relevant; and (2) if it was relevant, any “probative value [was] substantially Jenot, 158 N.H. at 185.

evidence is relevant, the trial court may exclude it “if its probative value is N.H. R. Ev. 402; State v. Mitchell, 148 N.H. 293, 295 (2002). Even when Jenot, 158 N.H. 181, 185 (2008). Evidence that is not relevant is inadmissible. I. Admission of Website Information

identifying information should have been excluded because: (1) it was not evidence relating to myfreeimplants.com. She argues that the website’s The defendant argues on appeal that the trial court erred by admitting harmless. See State v. Enderson,148 N.H. 252, 255 (2002). The State has the p. 5 Rules of Evidence 401 and 403, because even if it was erroneous, the error was

whether admission of the website information was error under New Hampshire Under the unique circumstances of this case, we need not determine

narcissistic and to judge her, in part, on that basis.”

State v. Vandebogart, 139 N.H. 145, 157-58 (1994) (quotations and citations death was sufficient, see RSA 626:2, III (2007). Finally, proof of reckless State’s evidence of guilt.

nature and degree that, considering the circumstances known to [her], its

judge [her] degree of inattention; [they] invited jurors to conclude that [she] was

another, RSA 630:3, I, though demonstrating that she recklessly caused such homicide required the State to show that she negligently caused the death of cumulative or inconsequential in relation to the strength of the 5 of another. RSA 630:2, I(b). Proof of the applicable variant of negligent

disregards a substantial and unjustifiable risk,” and the risk is “of such a

References to the website, she argues, “did not just place jurors in a position to surgery that presumably was “non-essential [and] sexually-oriented.” that she solicited money “to advance a selfish interest” in breast augmentation

quantity, or weight and if the inadmissible evidence is merely had to prove beyond a reasonable doubt that she recklessly caused the death evidence of the defendant’s guilt is of an overwhelming nature, may be harmless beyond a reasonable doubt if the alternative

The defendant was convicted of manslaughter, see RSA 630:2, I(b); 631:3, I. A person acts “recklessly” when “[she] is aware of and consciously placed or may have placed another in danger of serious bodily injury. RSA conduct required the State to show that she recklessly engaged in conduct that

negligently.” In particular, she argues that jurors were “invited” to conclude

To convict the defendant of the applicable variant of manslaughter, the State negligent homicide, see RSA 630:3, I; and reckless conduct, see RSA 631:3, I. and of the character of the inadmissible evidence itself. An error

omitted). verdict. See State v. Pelletier, 149 N.H. 243, 254 (2003).

“no bearing on a fair assessment of whether she acted recklessly or a risk that jurors would form negative “moral conclusions” about her that had She argues that the State’s repeated references to myfreeimplants.com created

involves consideration of the alternative evidence presented at trial The evaluation of whether this standard has been achieved

reasonable doubt that the erroneously admitted evidence did not affect the burden of proving harmless error, which it must do by establishing beyond a

probative value was substantially outweighed by the danger of unfair prejudice. Even if the website information was relevant, the defendant argues, any disregard[ed]” the risk to her children. RSA 626:2, II(c); see Belonga, 163 N.H. p. 6 The evidence showed that the defendant was “aware of and consciously

order for the bathtub to fill up, overflow, and begin to drain.

have had to leave her children unattended for a significant period of time in

after the defendant went downstairs with W.B. to get help, the defendant would alone in the bathtub, and even if T.P. again turned on the faucet immediately had turned on the faucet immediately after the defendant left her children

water either before or shortly after the defendant retrieved W.B. Even if T.P.

disregard[ed]” this risk, and that her disregard “constitute[d] a gross deviation

and the floor was wet. The evidence suggests that the bathtub overflowed with bathtub several minutes later, the bathtub was draining but was still half-full, running. Two neighbors testified that, by the time they retrieved T.P. from the

children unattended, established both that she was “aware of and consciously the evidence of the extended period of time during which the defendant left her faucet on his own, further increasing the risk. This evidence, combined with

that, upon her return, she turned off the faucet when she found the water

bathtub. Additionally, she admitted to knowing that T.P. could operate the

defendant stated that the water was “stopped” when she left the bathroom, and evidence that W.B. and T.P. spent an extended period of time there alone. The the bathtub before and after W.B.’s near drowning was strong circumstantial

indicating that she understood the risk to her children of drowning in the The defendant told police that she limited the water level to two to three inches, with the proposition that young children should not be left alone in a bathtub.” and unjustifiable.” RSA 626:2, II(c); see Belonga, 163 N.H. at 362.

period of time. In addition to the computer forensic evidence, the water level in

at 362. As the defendant concedes in her brief, “[t]he parties did not take issue children would drown or suffer serious injury in this situation was “substantial children remained unattended in a bathtub containing water. The risk that her used her computer, located on her porch, to “post[] [a] blog” while her young

nature of the evidence that she left her children unattended for an extended

computer use, the defendant admitted in a recorded police interview that she

See Enderson, 148 N.H. at 255. Setting aside the names and descriptions of amount of time she spent on the computer do not diminish the overwhelming Here, the alternative evidence of the defendant’s guilt was overwhelming. The defendant’s conflicting, and self-serving, statements about the

person would observe in the situation.” RSA 626:2, II(c) (2007); see State v. disregard constitutes a gross deviation from the conduct that a law-abiding

Although she gave conflicting accounts about the nature and length of her demonstrated nearly continuous online activity from 4:20 p.m. to 5:02 p.m. the particular websites that she visited, unchallenged forensic evidence

Belonga, 163 N.H. 343, 362 (2012). p. 7 See Enderson, 148 N.H. at 256. The majority of references to trial were inconsequential in relation to the strength of the evidence of guilt. We also conclude that references to myfreeimplants.com throughout the

defendant’s guilt. Compare State v. Thibedau, 142 N.H. 325, 330 (1997)

bathroom while seeking help for W.B. in another apartment. remained exposed to the risk when the defendant left him alone in the references to an unnamed website, had no effect on the verdict. See Pelletier, website’s “interactive” and “social networking” features, and the defendant’s from neighbors and the defendant’s own admissions demonstrated that T.P.

prejudice, its name and description were not directly linked to establishing the argument, reinforcing its significant prejudicial impact” (emphasis added)).

the defendant” (quotation omitted)), and State v. Hennessey, 142 N.H. 149, 159

use with specific references to myfreeimplants.com, rather than generic which the State made while explaining gaps in user activity — emphasized the RSA 631:3, I, when she left him in the bathtub with W.B. Moreover, testimony We are persuaded that the State’s choice to establish the defendant’s computer Instead, specific references to the website in the State’s closing argument — during the relevant time period rather than the specific content of the website. website by name six times in its closing argument, creating a risk of unfair “[t]he State specifically addressed [the disputed evidence] in its closing corresponded regarding breast implants. Although the State referred to the with State v. Pelkey, 145 N.H. 133, 137-38 (2000) (error not harmless when salacious content such as references to men with whom the defendant v. Ramos, 149 N.H. 118 (2003), and State v. Quintero, 162 N.H. 526 (2011), disputed evidence] in closing argument”), abrogated on other grounds by State (1997) (harmless error where the State did not “call particular attention to [the

comprehensive, or directly linked to a determination of the guilt or innocence of portion” of its closing argument and the evidence was not “lengthy, (harmless error where the State referenced the disputed evidence in a “small

also showed that the defendant placed T.P. “in danger of serious bodily injury,” physician testified that W.B.’s injuries evidenced near drowning. The evidence which focused on the length and nature of the defendant’s computer use died from complications resulting from near drowning, and W.B.’s treating

addresses and short descriptions, and the trial court excluded potentially Furthermore, evidence relating to myfreeimplants.com was limited to web

149 N.H. at 254.

myfreeimplants.com occurred during a computer forensic expert’s testimony, serious bodily injury,” RSA 631:3, I. The medical examiner testified that W.B.

RSA 626:2, II(c); see Belonga, 163 N.H. at 362. from the conduct that a law-abiding person would observe in the situation.”

“cause[d]” W.B.’s death, RSA 630:2, I(b), :3, I, and placed T.P. “in danger of Finally, the evidence showed that the defendant’s reckless conduct p. 8 Warren, 143 N.H. at 636 (quotation and brackets omitted). The rule seeks “to

meaning of the part already received.

states: “When a writing or recorded statement or part thereof is introduced by

subject matter and hence tends to explain or shed light on the

interview as an admission by a party-opponent. See N.H. R. Ev. 801(d)(2)(A). interview that the State removed when it offered a redacted form of the been able to introduce, under the doctrine of completeness, two sections of the

unreasonable to the prejudice of her case. See id. doctrine of completeness” and that the doctrine “underlies” the rule). Rule 106 72 (1988) (noting that the corresponding federal rule “partially codified the unsustainable exercise of discretion. See State v. Warren, 143 N.H. 633, 636 See id. at 636-37; see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171- See Thibedau, 142 N.H. at 330. Thus, if error existed, it was harmless. See id. Evidence 106, which expressly applies to writings and recorded statements. his or her opponent introduced so far as it relates to the same doubt, that evidence relating to myfreeimplants.com did not affect the verdict. statement, correspondence, former testimony or conversation that The common law rule is partially codified by New Hampshire Rule of State used the disputed evidence, we are persuaded, beyond a reasonable a party has the right to introduce the remainder of a writing, party from gaining a misleading advantage.” Id. (citation omitted). admissible, otherwise inadmissible evidence may be admitted to prevent a portions of her police interview. Specifically, she argues that she should have the trier of fact.” Id. “While the rule does not render evidence automatically prevent a selective and out-of-context presentation of evidence from misleading

of demonstrating that the trial court's ruling was clearly untenable or

exclude evidence and thus will not disturb its decision absent an

inconsequential nature of the disputed evidence, and the manner in which the Given the strength of the State’s alternative evidence, the relatively court under which The doctrine of completeness is a common law rule recognized by this she visited. The defendant next argues that the trial court erred by excluding certain

II. Exclusion of Police Interview (1999). In order to prevail under this standard, the defendant has the burden

We accord the trial court considerable discretion in its decision to admit or

guilt rested upon the length of her computer use, not the particular websites interest in the site, rather than its content. As we have noted, the defendant’s statements.”

p. 9 the jury, in fairness it should have been admitted to explain her other

“[b]ecause the excised portion conflict[s] with the portion that was presented to lends further “credence to her convictions.” More broadly, she argues that response” she displays while making these excluded statements, she argues,

she had spent an extended period of time on the computer. The “emotional

that she “wasn’t out there that long” and expressing doubt over evidence that mourning over W.B.’s death — bolster earlier, admitted statements contending primarily of her insistence that she was “not a bad mom” and her apparent

A. First Disputed Section

defendant suggests that her “sentiments” conveyed in the section — consisting

rise to a reasonable inference of guilt.” Belonga, 163 N.H. at 358. Thus, the address each disputed section in turn. offered against that party regardless of whether or not those statements give

interview transcript make reference to her perception of time. Nevertheless, the computer. None of the defendant’s statements in this two-page section of the correctness of her perception of [the amount of] time” she spent on her

have admitted these statements under the doctrine of completeness. We Under Rule 801(d)(2)(A), “a party’s own statements are not hearsay when

statements were offered by the defendant rather than against her. See United

should have been admitted because it “emphasize[s] her conviction as to the The defendant argues that the first disputed section of the interview truth of the matter asserted.” N.H. R. Ev. 801(c).

root.” State v. Keith, 136 N.H. 572, 574 (1992) (quotation omitted). “The trial

of evidence). Nevertheless, the defendant argues that the trial court should considered contemporaneously with it.” N.H. R. Ev. 106. Rule 106 permits the by a party-opponent under New Hampshire Rule of Evidence 801(d)(2)(A). States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) (describing identical federal rule Rule 106. The redacted interview offered by the State constituted an admission defendant’s effort to introduce “any other part” of the statement falls under sought to introduce were not admissible as non-hearsay because these By contrast, the excluded portions of the interview that the defendant

prohibits the introduction of out-of-court statements in order “to prove the redacted interview was not subject to the hearsay rule, which generally the misleading impression given by an out-of-context presentation from taking

part or any other writing or recorded statement which ought in fairness to be a party, an adverse party may require at that time the introduction of any other

Here, the police interview was a “recorded statement,” and thus the

admission of remaining parts or related documents.” Id. court has discretion under Rule 106 to determine whether ‘fairness’ requires

introduction of the remaining parts of a recorded statement “in order to prevent taking root.” Keith, 136 N.H. at 574 (quotation omitted).

p. 10 the computer, would not have “prevent[ed] [a] misleading impression . . . from offers no direct response to the question of how long the defendant spent on responses are already in conflict. Admitting the first disputed section, which

Warren, 143 N.H. at 636 (quotation omitted). argues, the jury was “shielded from the true content of her statement.” excluded while other “inculpatory” statements were admitted, the defendant of how long she had been on the computer.” Because these statements were

may have spent more time on the computer than she initially thought. These

“explain[s] [nor] shed[s] light on the meaning of the part already received.”

“exasperation with the detective who continued to disagree with her recollection

assertions that she spent only a short amount of time, to expressions of explanations regarding her time spent on the computer, ranging from

defendant’s “emotional response” at this juncture of the interview neither timeframe. Admission of an additional, identical utterance in order to show the of the interview, immediately following her expression of doubts over the section, comprising under two pages of the interview transcript, reflects her admitted under the doctrine of completeness. The defendant argues that this narrative regarding her concern for T.P,” her surviving child, should have been

interview. Over the course of the interview, the defendant gave multiple B. Second Disputed Section

fact, she used this same phrase several seconds earlier in the admitted portion

contains both an insistence that she “didn’t do this” and an “emphatic The defendant also argues that a second disputed section, which

defendant argues, merely because it “conflict[s]” with other portions of the Finally, admission of the first disputed section is not compelled, as the

later displays of “conviction.”

context presentation[s] of evidence,” Warren, 143 N.H. at 636, not to mourning W.B., which phrase was also contained in the disputed section. In she admitted to spending on the computer. Keith, 136 N.H. at 574 (quotation Moreover, on several occasions she used the phrase, “my poor boy,” apparently “emotional” responses, including “periods of crying and near hysterics.”

supplement particular statements that the declarant wishes to qualify with

omitted). The doctrine of completeness seeks to correct “selective and out-of-

do not serve to prevent a “misleading impression” regarding the amount of time In addition, the defendant’s statements about her qualities as a mother the course of the nearly two-hour interview, the defendant made multiple The trial court did not err in excluding this section. It noted that, over prejudice of the defendant’s case. See Warren, 143 N.H. at 636.

p. 11 of the police interview was neither clearly untenable nor unreasonable to the Thus, we conclude that the court’s exclusion of the two disputed sections

her responses did not create a misimpression of guilt.

follow direct questions about the defendant’s guilt, and thus the redaction of

expect a response from an innocent person.” The disputed sections do not

characterization of the disputed sections as places at which “the jury would admitted portion of the interview. In addition, we disagree with the defendant’s she expressed concern for her children at several other points throughout the The exclusion of both sections did not prejudice the defendant because

innocent person.” in the conversation” during which “the jury would expect a response from an

addition, she argues that by excluding these sections, the court created “gaps

her children unattended, that she was a “shallow, unconcerned parent.” In counteracted the impression, created by her use of the website while leaving concern she displayed for her children in both sections would have DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

defendant’s particular expressions of concern in the disputed sections. Id.

by admitting evidence relating to myfreeimplants.com. She argues that the

redacted interview. Keith, 136 N.H. at 574 (quotation omitted). There is no from taking root,” id. (quotation omitted), because the admitted portion of the surviving son — as bulwarks against “misleading impression[s]” throughout the

been left with a “misleading impression” about the incident absent the throughout the admitted portion of the interview. Thus, jurors would not have incident. In any event, the defendant expresses her concern for both children “prevented” what would have been “a counterbalance” to the prejudice caused Next, the defendant argues that excluding both disputed sections

interview contained a variety of statements expressing her views.

to the time frame were not necessary “to prevent [a] misleading impression . . . misconstrues statements about her concern for her children — here, her second disputed section that purportedly bolster the defendant’s statements as The trial court did not err in excluding this section. Again, the defendant (quotation omitted). As with the first disputed section, statements in the

drowning and her perception of time spent on the computer during the plausible link between the defendant’s concern for T.P. following W.B.’s near