2013-0217, State of New Hampshire v. Robert Towle

defendant to serve 57 to 114 years in prison and ordered the defendant to have 2006, 2008, 2010, & 2014); RSA 626:8 (2007). The trial court sentenced the (2007) (amended 2008, 2012, & 2014); RSA 632 - A:3 (Supp. 2003) (amended son. See State v. Towle, 162 N.H. 799, 800 (2011); see also RSA 632 - A:2 encouraging his wife and another adult to engage in sexual acts with hi s minor and on four counts of criminal liability for the conduct of another for sexual assault for engaging in fellatio and anal penetration with his minor son, defendan t, Robert Towle, was convicted on four counts of aggravated felonious HICKS, J. After a jury trial in Superior Court (Bornstein, J.), the

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2013 - 217 Coos

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, Concor d, 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 p. 2 22 as 2

. . ..

know, I felt my time being there was over and I believe I left. [Victim]: No, I don’t believe there was any real arguing. Just, you

[State]: [D]id you argue with him or what?

. . ..

not to engage with you. You know? It’s unnecessary. to happen, period. You know? It was I’m here to see my brother, was really uncomfortable with the whole situation. I didn’t want it [Victim]: To the best of my knowledge, I just decided against it. I

[State]: And then what ended up happening?

with that. asking me to take my pants off. And I just had a serious pro blem You know, we’re already in this situation and you’re right here then he had asked me to take my pants off. And I was like, really? was doing whatever on the computer and drinking a beer. And with the baby. I went back there. And we were chit - chatting. He [Victim]: Well, I had showed up. And he was in the computer room

[was] there? [State]: And did anything happen at that time when your father

The record reflects the following exchange on direct examination:

State had no justification for refresh ing his recollection. occasion and was neither confused n or uncertain. T herefore, he argues, the unequivocally that the defendant had not sexually assault ed him on that from the defendant’s custody. The defendant asserts that the victim testified sexual assault that occurred in early p. 2 2006, after the victim had been removed State to use prior statements to refresh the victim’s recollection of the final T he defendant first argues that the trial court erred by permitting the

and reverse the no - contact order. tri al court erred by imposing the no - contact order. We affirm the convictions inadmissible photographic evidence. In addition, the defendant argues that the relevant event; and ( p. 2 2) permitting the State to introduce testimony referring t o recollection when the victim had not demonstrated an inability to recall the (1) permitting the State to use prior statements to refresh the victim’s challenge to his sentence. T he defendant argues that the trial court erred by: appeal, the defendant raises two challenges to his convictions and one no contact with the victim, the reporting witness, and his other minor son. On p. 3 3

[Victim]: Uh - huh.

and cross - examination, you talked about visiting your brother . . .. [State]: Now, in terms of your testimony yesterday during direct

occurred: that the victim’s recollect ion needed refreshing. The following exchange The trial court sustained the objection and ordered the State to first establish that the State had not laid a foundation for refreshing the victim’s recollection. refresh his recollection of the incident. The d efendant objected on the basis On redirect, the State attempted to use the victim’s prior statements t o

Correct me. That’s what I’m trying to say. please fix me -- point me to where I’m supposed to go with that. you trying to get me to take my pants off, and if that’s not it, then [Victim]: Well, if you’re referring to nothing happening, you know,

situation. My question was -- [Defendant]: My question to you was not whether there was a

happening in front of [infant son]. [Victim]: Well, the situation that you were trying to do wasn’t

wasn’t in front of [infant son], it was -- [Defendant]: Just a second ago, did you not just say to me that it

you know, I said no. [Victim]: To the best of my memory, nothing happened. I put it --

nothing happened? [Defendant]: And just in your testimony, you conveyed to him that

[Victim]: Right.

High Street. know, if you were assaulted by me at the Reed’s [sic] house on [Defendant]: [The State] asked you -- he was trying to ask you, you

during his cross - examination of the victim: The defendant, who represented himself at trial, revisited the incident

[Victim]: No, because I believe I made sure it didn’t.

at that location? [State]: And so did anything happen between you and your father p. 4 4

was clearly untenable or unreasonable to the prejudice of his case. Id. prevail under this standard, he must demonstrate that the trial court’s decision discretion. State v. Miller, 1 55 N.H. 2 p. 4 46, 249 (200 7). For the defendant to evidence, and we will not upset its ruling absent an unsustainable exercise of The trial court has broad discretion to determine the admissibility of

proper. presented,” the trial court ruled that refreshing the victim’s memory was it had “observed and heard the entire course of trial and. . . the circumstances that its efforts to refresh the victim’s recollection were proper. After noting that anything had occurred during that visit with the def endant in early 2006 and that the victim had stated on redirect examination that he did not remember if a motion to dismiss after the conclusion of the State’s case. T he State argued The defendant reiterated his o bjection during the next day of trial and in

defendant actually performing oral sex on him. that he remembered the defendant asking him to take his pants of f an d the continue. T he State continued its redirect examination and the victim stated The trial court overruled the objection and allowed th e State’s examination to at that point did the State ask the victim to review the interview transcript. the victim had just declared that he did not recall what had occurred, and only occurred and stated clearly that not hing had happened. The State argued that direct examination, had never stated that he could not remember what had State was attempting to refresh the victim’s recollection when the victim, on During the ensuing sidebar conference, the defendant argued that the

objected. stated that the interview did refresh his recollection, and the defendant recollection about the incident that had occurred in early 2006. The victim member at the Child Advocacy Center and whether the interview refreshe d his Next, the State asked the victim to review a portion of his interview with a staff

[Victim]: I did.

actually performing oral sex on you at that time; is that correct? [State]: And at that point you testified that you didn’t recall him

[Victim]: Yes, sir.

testified? time to do what had happened many times before that you [State]: And you recall the Defendant propos itioning you at that

. . .. p. 5 5

exhausted. other than direct statements to evaluate whether a witness ’s memory has been discretion is allowed the trial court.”). Thus, a trial court can rely on factors which the procedure [for refreshing recollection] must be adapted, considerable 437 P.2d 36, 39 (Colo. 1968) (“[B]ecause of the wide variety of situations to conclusion t hat a witness’s memory was exhausted); Montgomery v. Tufford, to observe the witness’s demeanor and responses to questions support ed its States, 342 F.2d 137, 140 ( p. 5 5th Cir. 1965) (holding th at the trial court’s ability refreshing a witness’s recollection is warr anted. See, e.g., Thompson v. United jurisdictions that grant broad discretion to trial courts to determine whether neither limited to its facts nor anomalous. I n fact, Cote is consistent with other These factual distincti ons are not dispositive. O ur decision in Cote is

detailed account of the events on the day in question.” years as a child, and because he was able to give “a comprehensive and albeit one who was testifying about serious abuse he had suffered for many defendant contends that Cote is inapplicable because the witness was an adult, examination and avoid discussing traumatic events. Id. at 371 - 72. The found he was giving one word answer s to questions in order to end the matter b ecause in Cote the witness was a young child, and the trial court The defendant argues that Cote is distinguishable from the present

statement that the witness’s memory has failed. See Cote, 143 N.H at 372. discretion in permitting a party to refresh a witness’s recollection without a recollection, and we have held that a trial court properly exercised its demeanor of a witness and determine whether the witness lacks present have recognized that a trial court is in th e best position to consider the effective present recollection. See Wigmore, Evidence, supra § 76 p. 5 5, at 145. We N evertheless, that is not the only way to determine that a witness lacks not indicated a failing memory that no basis exists for refreshing recollection). 415, 416 (1941) (concluding that where a witness has testified positively and witness lack s effective present recollection. Cf. Bartis v. Warrington, 91 N.H. faile d provide s the most direct method for a trial court to determine that a A witness ’s clear statement indicating that the witness’s memory has

prejudicial. memory had failed, any effort to refresh his recollection was improper and defendant argues that absent a sufficient basis to conclude that the victim’s (19 p. 5 57); 3 J. Wigmore, Evidence § 758, at 125 (Chadbourn rev. 1970). The Maguire & Quick, Testimony: Memory and Memoranda, 3 How. L.J. 1, 21 effective present recollection without stimulation by the memorandum.” recollection to be proper, it is widely recognized that there must be a “lack of Ev. p. 6 612; State v. Sloc inski, 89 N.H. 262, 265 (1938). For an effort to refresh while testifying. See State v. Cote, 143 N.H. 368, 372 (1999); see also N. H. R. stimul ate the recollection of a witness who demonstrates a doubtful memory It is well - settled that counsel can use a prior written statement to 6

her actions and testimony. t hat she believed substantiate d her allegations in order to provide context to graphic descriptions thereof but permit ted testimony that E.J. had evidence defendant. Therefore, the trial court exclude d the photographs and any action against the defendant, but the photographs c ould unfair ly prejudice the explaining why E.J. went to the police and DCYF and why those agencies took photographs had significant probative value, particularly with respect to criminal activity. In reaching this conclusion, the trial court found that the be described as evidence that E.J. believed would implicate the defendant in Then, prior to E.J. ’s testimony, the trial court rul ed that the photographs could Children, Youth, and Families (DCYF), came forward w ith her allegations. abuse to the attention of the police and the New Hampshire Division for “inappropriate” nature to explain why E.J., the witness who brought the sexual allowed the State to elicit testimony regarding the photographs and their at trial unless the defendant “opened the door.” Nevertheless, the trial court inflammatory testimony” describing the photographs would not be admissible court granted the motion to the extent that the photographs and any “explicit the defendant and the victim nude a nd in various states of arousal. The tria l the defendant filed a pre - trial motion to exclude five photographs that depicted The record reflects the following relevant f act s. Before the trial began,

evidence unfairly prejudiced his case. trial. The defendant asserts that the repeated references to the excluded State to elicit testimony referencing evidence that had been excluded prior to T he defendant next argues that the trial court erred by permitting the

victim’s prior statements to refresh his recollectio n. trial court proper ly exercised its discretion by permitt ing the State to use the performing oral sex on [him]” in e arly 200 p. 6 6. Accordingly, we conclude that the on redirect examination, testified that he “didn’t recall [the defendant] actually conclusion that the victim’s memory was exhausted. Furthermore, the victim, ability to observe the victim’s demeanor, supports the trial court’s reasonable unambiguous la nguage to uncertain language, along with the trial court’s suggests uncertainty or a failure of memory, and the shift from clear and memory” before detailing what he believed had occurred. This phraseology phrases such as “I believe,” “to the best of my knowledge,” or “to the best of my uncertain and ambiguous. In his description of that incident, he began using incident that occurred in early 2006, however, the tone of his language became him, and where and when such acts occurred. When he began to detail the defendant made to him, acts the defend ant made him perform or performed on with clear and unambiguous language to such things as statements the described a myriad of abuses inflicted on him by the defendant. He testified emp loy the refreshing - recollection device.” In his testimony, the victim in [the victim’s] trial testimony . . . afforded a basis to allow the prosecutor to Furthermore, we disagree with the defendant’s assertion that “[n] othing p. 7 7

substantial or credible. limitation, the photographs were referred to as either evidence or evidence that E.J. believed was referring to the photographs as anything but “evidence.” After the trial court imposed this We note that this testimony occurred prior to the trial court’s decision to prevent E. J. from 1

“probative”). Nevertheless, where the probative value of that evidence is an interview that provided context to defendant’s evasive answers as 165 N.H. 206, 223 (2013) (describing potentially prejudicial statements during statements or actions may have significant probative value. See State v. Willis, 403. We have recognized that e vidence that provides context to a witness’s substantially outweighed by the danger of unfair prejudice . . ..” N.H. R. Ev. “[a]lthough relevant, evidence may be excluded if its probative value is New Hampshire Rule of Evidence 403, which states, in relevant part, that N.H. p. 7 710, 721 (1998). The defendant challenges the trial court’s application of determine whether the trial court did, in fact, err. See State v. Ellsworth, 142 T o determine whether alleged cumulative errors require reversal, we first

revers ing his convictions. We disagree. effect of these references unfair ly prejudice d him in a manner that necessitates describing the photographs been admitted.” He contends that the cumulative same impression that would have been created had more explicit testimony that the cumulative effect of the ref erences to the photographs “create d the previously had ruled, substantially outweighed any probative value. He asserts the State to reference the excluded photographs, whose unfair prejudice, it On appeal, the defendant argues that the trial court erred by permit ting

defendant. was not substantially outweighed by the danger of unfair prejudice to the and, further, that the probative valu e of the testimony the State sought to elicit false or misleading impressions the witnesses’ responses may have created concluded that the defendant had “open ed the door” for the State to correct any the bases for both entities to take action against him. The trial court regarding the claims she had made to DCYF and the Berlin police, a s well as during his direct examination of each witness, had challenged E.J. ’s credibility objections to these lines of questioning because it found that the defendant, DCYF and the Berlin police. The trial court overruled the defendant’s the photographs, brought by E.J. to substantiate the allegations she made to cross - examination by the State about physical evidence, specifically referring to Department, and Attorney Wendy Roberts, the victim’s GAL, were all asked on were both affiliated with DCYF, Det ective Karl Nelson of the Berlin Police photographic in nature. Attorney Jennifer Do ugherty and Karen York, who 1 the only time during trial that this evidence was referred to as being (GAL) confronted him with the fact that she had “[seen] the pictures.” This was that he finally “opened up” about the sexual abuse after his guardian ad litem various contexts. The victim, during the State’s direct examination, testified Du ring the trial, other witnesses briefly discussed the photographs in p. 8 8

photographs as “inappropriate,” but prior to E.J. ’s testimony it revised its that time, the trial court permitted the State to refer to the contents of the offer an explanation of why [E.J.] went to the poli ce and what she said . . . .” At reasonable evidence describing, again, at least the photographs insofar as the y contents of the photos is not admissible; however, the State [may] elicit themselves are not admissible. Explicit inflammatory testimony describing the defendant’s pre - trial motion, the trial court st ated: “[T] he photographs provided necessary context to testimony of the witnesses. In r uling on the that the trial court ’s ruling is sustainable. The references to the photographs With respect to each referenc e to the excluded photographs, we conclude

of his case. Id. the trial court’s ruling was clearly untenable or unreasonable to the prejudice Hampshire Rule of Evidence 404(b)). To prevail, the defendant must show that 643, 649 (2006) (applying the same evidentiary standard under New balancing prejudic ial impact and probative worth. State v. Beltran, 153 N.H. Thus, we aff ord considerable deference to the trial court’s determination in steps, if any, are necessary to obviate the potential prejudice. Id. at 323. potential prejudicial impact of particular testimony, and to determine what creating unfair prejudice). The trial court is in the best position to gauge the parties’ ability to introduce prejudicial details to the jury cured the danger of the evidence); Perri, 164 N.H. at 40 p. 8 8 - 09 (finding that limi ting the scope of the interpret potentially prejudicial evidence cured any error created by admitting Willis, 165 N.H. at 224 (holding that a limiting instruction to the jury on how to of the evidence that the parties are permitted to present to the jury. See, e.g., such actions as issuing a limiting instruction to the jury or limiting the scope The trial court can, however, obviate the danger of unfair prejudice by

evidence, stipulat ion, or inference. Id. at 322 - 23. extent to which the issue upon which it is offered is established by other potential for appealing to a juror’s sense of resentment or outrage; and (3) the whether the evidence would have a great emotional impact upon a jury; (2) its ch arged. Id. Among the factors we consider in weighing the evidence are: (1) the defendant on some improper basis, commonly one that is emotionally necessitate reversible error is an undue tendency to induce a decision against State v. Tabaldi, 165 N.H. 306, 322 (2013). Rather, the prejudice required to which sense all evidence offered by the prosecution is m eant to be prejudicial. detriment to a defendant from the tendency of the evidence to prove guilt, in case. State v. Perri, 164 N.H. 400, 40 p. 8 8 (2012). Unfair prejudice is not mere base its decision on something othe r than the established propositions in the punish, or trigger other mainsprings of human action that may cause a jury to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to Evidence is unfairly prejudicial if its primary purpose or effect is to

excluded. N.H. R. Ev. 403. substantially outweighed by the danger of unfair prejudice, it must be p. 9 9

t estimony in question, regardless of whether the door had been opened. without deciding that New Hampshire Rule of Evidence 403 applies to the evidence created an impression that unfairly prejudiced him. We will assume “opened the door”; instead, he argues that the references to the photographic concluding that the testimony elicited from his witn esses on direct examination On appeal, the defendant does not argue that the trial court erred by

regarding the photographs. defendant had “opened the door” for the State to elicit limited testimony the risk of unfair prejudice. Accordingly, th e trial court ruled that the the probative value of such clarification was not substantially outweighed by for taking action against the defendant. The trial court thus concluded that lead the jury to conclude that the Berlin police and DCYF had no justification The trial court found that the witnesses’ testimony could, without clarification,

concerns and conclusions in the years 2006, 2007 and 2008. victim], and about the actions that they took based on those may have sexually assaulted or otherwise sexually abused [the conclusions at which they h ad arrived as to whether the D efendant the D efendant had questioned [his witnesses] . . . about the

response to E.J. ’s compl aint, the trial court found that: credibility, E.J. ’s credibility, and the actions of the police and DCYF in In response to the defendant’s efforts to attack the testifying witnesses ’

court sustainably concluded that the testimony was proper. characterized and did not unfairly prejudice the defenda nt. Thus, the trial on the defendant’s pre - trial motion concerning how the photographs could be trial court also found that nothing in that passing statement violated its ruling victim’s testimony regarding why he finally came forward with his story. The pictures,” the trial court found that the statement provided context to the he disclosed the abuse to his GAL after she told him that she had “[seen] the In response to the defendant’s objection after the victim had testified that

aspects to be introduced while excluding the most prejudicial aspects. nature, and tailored its response accordingly to permit the most probative but also created a substantial danger of unfair prejudice, due to their graphic photographs had substantial probative value, due to the context they provided, seriously. In reaching this conclusion, the trial court recognized that the defendant’s activities with the victim and why the police took her allegations necessary to explain why E.J. went t o the police and DCYF to report the court accepted the State’s argument that reference to the photographs was a crime that [the defendant] committed.” In making these rulings, the trial ruling and li mited E.J. ’s ability to characterize the photographs to “evidence of p. 10 10

of that authorized by statute constitutes reversible error). Whether the trial See State v. Parmenter, 149 N.H. 40, 45 (2002) (imposing a sentence in excess We first address w hether the trial court exceed ed its statutory authority.

or public reputation of judicial proceedings. Id. at 303. substantial rights; and (4) the error must seriously affect the fairness, integrity, (1) there must be error; (2) the error must be plain; (3) the error must affect State v. Hancock, 156 N.H. 301, 302 - 03 (2007). To find error under this rule: those circumstances in which a miscarriage of justice would otherwise result. court. See id. Howeve r, the rule should be used sparingly, its use limited to Under the plain error rule, we may consider errors not raised in the trial

error rule. See Sup. Ct. R. 16 - A. requests, review the imposition of the entire no - contact order under our plain preserve that issue for our review. Nevertheless, we will, as the defendant extent that he challenges the entire no - contact order, the defendant did not challenge d the no - contact order only with respect to his minor son. To the appella te review. Id. Here, during the sentencing hearing, the defendant a contemporaneous and specific objection is required to preserve an issue for review. See State v. Blackmer, 149 N.H. 47, 48 (2003). The general rule is that We first determine whether this challenge was properly preserved for our

of the sentence or revocation of probation. We agree. conditional discharges, where violation of the condition may lead to imposition impose such a condition only on suspended or probationary sentences or order as part of a sente nce of imprisonment. He contends that a trial court can pursuant to RSA 651:2 (Supp. 2014), a trial court cannot impose a no - contact imposed on him as a condition of his sentence. The defendant asserts that, We next address the defendant’s challenge to the no - contact order

“cumulative error.” See Ellsworth, 142 N. H. at 721. court did not err in admitting any of the challenged statements, there is no believed to exist; the defendant declined t he offer. Thus, because the trial instruction to the jury to cure any potential unfair prejudice that the defendant the defendant. Furthermore, the trial court offered to issue a limiting they had seen or were aware of photographic evidence of criminal conduct by pe rmitting the defendant’s witnesses to explain, on cross - examination, that conclude that the trial court did not unsustainably exercise its discretion in necessary to provide context to the witnesses’ actions. Accordingly, we trial, the trial court ruled that the testimony regarding the photographs was investigation of the defendant. See Perri, 164 N.H. at 408 - 09. Throughout the – that is, explanation as to why witnesses undertook actions leading to the danger of unfair prejudice while preserving the probative aspect of the evidence descriptions of the photographs ’ contents. These limitations minimized the prejudicial aspect of the evidence, the photographs themselves and any T he trial court excluded, in its ruling on the pre - trial motion, the most p. 11 11

trial court from imposing additional conditions on a term of imprisonment, The State argues that the provisions of RSA 651:2 do not prevent the

that requires statutory authority for its imposition. the defendant to imprisonment, the no - contact order is an independent term sentence, or impose a conditional discharge. Because the trial court sentence d son. The trial court did not, however, suspend or defer any part of the certain individ uals, including the victim, E.J., and the defendant’s youngest prison. In addition, the trial court ordered that the defendant not contact Here, the trial cou rt sentenced the defendant to 57 to p. 11 11 4 years in

See id. term s and determine whether a trial court has the authority to impose them. this occurs, we review those additional conditions as if they were ind ependent term of imprisonment or fine. See, e.g., Parmenter, 149 N.H. at 46 - 47. When fine and then impose additional conditions upon the defendant as part of the punishment). A trial court may not, however, set a term of imprisonment or imprisonment, a suspended sentence, and a conditional exemption from 490, 495 - 96 (1992) (affirming a sentence that combine d a term of with the cond itions imposed. See, e.g., State v. W.J.T. Enterprises, 136 N.H. exempt the defendant from punishment, so long as the defendant complies authority, to set a term of imprisonment and partially suspend that sentence or For e xample, a trial court may choose, without exceeding its statutory

authorize such a sentence). revoked the defendant’s driver’s license because RSA 651:2 did not specifically State v. Buckingham, 121 N.H. 339, 342 - 43 (1981) (vacating a sentence that meetings in add ition to imposition of a fine and driver’s license suspen sion); authority, a sentence provision that required the defendant to attend AA or NA See, e.g., Parmenter, 149 N.H. at 46 - 4 7 (vacating, as exceeding statutory exceed those parameters because to do so would exceed its statutory authority. rehabilitation.” State v. Evans, 127 N.H. 501, 505 (1985). A trial court cannot achieve the goals of punishment, deterrence, protection of society and “assign different sentences, suspend sentence, or grant probation in order to have held that within those parameters, the trial c ourt has broad discretion to probation, conditional or unconditional discharge, or a fine.” RSA 651:2, I. We upon a person convicted of a felony and limits those options to “imprisonment, RSA 651:2 defines the types of sentences that a trial court may impose

import of their terms and to promote justice. Id. whole. Id. We construe provisions of the Criminal Code according to the fair intent of the legislature as expressed in the words of a statute considered as a at 303. In matters of statutory interpretation, we are the final ar biter of the authority, we must engage in statutory interpretation. See Hancock, 156 N.H. novo. Id. In order to determine whether the trial court exceeded its statutory court exceeded its statutory authority is a questio n of law, which we review de p. 12 12

court ’s no - contact order, while he serves his sentence. limitations on the defendant’s contact with third persons, including those covered by the trial our holding does not address the issue of the Department of Corrections’ authority to place pursuing alternative remedies to prevent the defendant from contact ing them. We also note that We note that our holding today does not prevent those listed in the no - contact order from 3 163 N.H. at 15 - 16. condition of a term of imprisonment, which is factually distinct from the present matter. Smith, Smith the no - contact order was first imposed as a condition of a suspended sentence, not as a To the extent that the State argues that Smith is factually similar to this case, we note that in 2

DALIANIS, C.J.