2016-0426, The State of New Hampshire v. Shawn Plantamuro

sexually attracted to women, not to children.” We affirm. mother; and (2) prohibiting the defendant’s ex - wife from testifying that he “is about the circumstances of” the victim’s disclosure of the assaults to her argues that the Superior Court (Houran, J.) erred by: (1) excluding “evidence lewdness, see RSA 645:1, II (a) (Supp. 2014) (amended 2015). On appeal, he see RSA 632 - A:3, III (2016), and one count of felony indecent exposure and as sault, see RSA 632 - A:2, I(l), II (2016), one count of felonious sexual assault, conviction s, following a jury trial, on two counts of aggravated felonious sexual HANTZ MARCONI, J. The defendant, Shawn Plantamuro, appeals his

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. Gordon J. MacDonald, attorney general (Sean R. Locke, assistant

No. 2016 - 0426 Strafford

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

standard of review before addressing each argument in tur n. We also note that he “is sexually attracted to women, not to children.” We set forth our offering character evidence, in the form of opinion testimony from his ex - wife, when it ruled that State v. Graf, 143 N.H. p. 2 294 (1999), precluded him from abuse to her mother in June 2014. Second, he argues that the trial court erred excluding “evidence about the circumstances of” the victim’s disclosure of the trial court’s evidentiar y rulings. First, he argues that the trial court erred by The defendant raises two issues on appeal, both of which relate to the

four counts. relevant to this appeal, and the jury convicted the defendant on the remaining “probably” d epicted intercourse. The trial court dismissed two counts not the victim watched animated videos that were “inappropriate” and that molested the victim. On cross - examination, he admitted that, in his presence, played for the jury. The defendant testified at trial and denied that he had “penetration,” and “intercourse.” This recorded telephone conversation was animation” videos that depicted “the whole nine yards,” including “boobs,” denied molesting the victim but admitted allowing her to watch “Japanese allegations. Unaware that th e conversation was being recorded, the defendant RSA 570 - A: p. 2 2, II(d) (2001), during which she confronted him with the victim’s telephone conversation between the victim’s mother and the defendant, see After the disclosure, the police obtained authorization to record a

excluded this evidence on hearsay and relevance gro unds. or content of this disclosure, which are described below, because the trial court defendant’s b ehavior to her mother. The jury did not learn the circumstances neighborhood in early p. 2 2014. On June 15, 2014, t he victim disclosed the The victim and her mother moved away from the defendant’s

activity occurred on four occasions. activity with her and masturbated in front of her. She testified that this day.” According to the victim, the defendant subsequently engaged in sexual testified that the defendant told her that he was “going to do this to [her] one videos in which “[r]eal people” were “naked and . . . having sex”; she also co nverted into a bedroom. The victim testified that the defendant showed her assaults took place in the defendant’s bedroom, which was, essentially, a porch the defendant’s house to visit him and his mother. The victim testified that the lived in the same neighborhood as the defendant. The victim would often go to the abuse, which occurred between p. 2 2012 and 2014, the victim an d her mother convicted of sexually abusing the victim, who was born in 2007. At the time of The record reflects the following facts. In May 2016, the defendant was

768 (2017). the trial court, and the trial court’s rulings. See State v. Wilson, 169 N.H. 755, how the se issue s were presented to the trial court, the parties’ arguments to evaluate the merits of the defendant’s preserved argument(s), we must examine preserved for our review. To resol ve the State’s preservation challenge, and to contends that the defendant’s hearsay and rape shield law arguments are not relevance rulings, as well as its application of the rape shield law. The State On appeal, the defendant challenges the trial court’s hearsay and

See RSA 6 p. 3 32 - A:6, II (2016); N.H. R. Ev. 412. victim’s mas turbatory behavior was “territory” covered by the rape shield law. masturbation evidence on relevance grounds. The court also ruled that the 15th conversation constituted inadmissible hearsay. The court excluded the sexual abuse. The trial court ruled that the statements made during the June about her masturbatory behavior and the victim disclosed t he defendant’s 2014 (June 15th conversation), during which the mother asked the victim activity; and (2) statements made by the victim and her mother on June 15, exclusion of the following: (1) evidence that the victim engaged in masturbatory her mother in June 2014. We construe the defendant’s brief as challenging the “evidence about the circumstances of” t he victim’s disclosure of the abuse to The defendant first challenges the trial court’s decision to exclude

705, 714 (2014). court unsustainably exercised its discretion. See State v. Costella, 166 N.H. before it. Id. The defendant bears the burden of demonstrating that the trial have re ached the same decision as the trial court on the basis of the evidence found differently, but is only to determine whether a reasonable person could N.H. 455, 461 (2016). Our task is not to determine whether w e would have sufficient to sustain the discretionary judgment made. State v. Letarte, 169 review, we determine only whether the record establishes an objective basis case. Id. In applying our unsustainable exercise of discretion standar d of court’ s ruling was clearly untenable or unreasonable to the prejudice of his unsustainable exercise of discre tion, the defendant must show that the trial discretion. State v. Milton, 169 N.H. 4 p. 3 31, 435 (2016). To demonstrate an evidence, and we will not upset its ruling absent an unsustainable exercise of T he trial court has broad discretion to determine the admissibility of

(2009) (interpreting version of evidence rule in effect at time of trial). the time of the defendant’s 2016 trial. See State v. Holmes, 159 N.H. 17 p. 3 3, 175 that, in addressing these arguments, we apply the rules of evidence in effect at p. 4 4

See N.H. R. Ev. p. 4 402 (amended 2017) (“Evidence which is not relevant is not victim’s masturbatory behavior was not admissible because it was not relevant. In the same pretrial order, the court also ruled that evidence of the

hearsay.”). is not offered to prove its truth, but is offered for some other reason, it is not asserted therein. Cf. State v. Reinholz, 169 N.H. 22, 28 (2016) (“If a statement that the State planned to offer these statements for the truth of the matter anticipated proponent of this evidence. The court also appeared to as sume constituted inadmissible h earsay, the trial court identified the State as the (2011). In ruling that the statements made during the June 15th conversation certain well - delineated exceptions.” State v. Munroe, 161 N.H. 618, 626 801(c) (amended 2017). “Hearsay evidence is generally inadmissible, subject to State v. Bennett, 1 p. 4 44 N.H. 13, 17 (1999) (quotation omitted); see N.H. R. Ev. offered in evidence to prov e the truth of the matter asserted in the statement.” they constituted hearsay. Hearsay is defined as “an out - of - court statement her mother during the June 15th conversation were not admissible because Before trial, the court ruled that the statements made by the victim and

inappropriately and making her touch his pen is. showing her movies with naked people in them, as well as touching her conversation with her mother, the victim disclosed that the defendant had been effe ct, the victim replied, “Shawn showed me.” During the ensuing mother asked the victim who showed her how to do that, or something to that her pants. The victim told her mother that “[i]t felt good.” When the victim’s mother spok e with the victim about why she had been putting her hands down reported this behavior to the victim’s mother. On June 15, 201 p. 4 4, the victim’s friend of the victim’s mother observed the victim rubbing herself and later Prior to the disclosure, the victim attended a sleep - over. While there, a

otherwi se broached this sub ject when the mother observed the behavior. record that the victim’s mother confronted the victim about this behavior or the victim engaging in masturbatory behavior. There is no suggestion in the Beginning at an unspecified point in time, the victim’s mother observed

presented at the pretrial hearing.”). the challenged evidence before trial, we consider only the offers of proof N.H. p. 4 410, 414 (2011) (“Because the trial court ruled upon the admissibility of evidentiary d isputes were presented to the court.”); cf. State v. Gordon, 161 review the propriety of the trial court’s pretrial rulings in the context in which appeal. See State v. Addison (Capital Murder), 165 N.H. 381, 419 (2013) (“[W]e available to the trial court at the time it made the rulings pertinent to this The following information concerning the victim’s disclosure was

offered. See Reinholz, 169 N.H. at 28; State v. Pelletier, 149 N.H. 243, 2 p. 5 53 Whether a statement is hearsay depends upon the purpose for which it is

preserved for our review. We begin with the hearsay issue. the defendant’s arguments about hearsay and the rape shield law are not masturbation are not covered by the rape shield law. The State co unters that of the matter asserted therein. He further contends that acts of solitary 1 p. 5 5th conversation were not hearsay because he did not offer them for the truth The defendant also argues that the statements made during the June

Japanese animation videos. “showed” her. The defendant asserts that the victim was referring to the mother’s “overreaction” to the victim’s statement that the defendant had spontaneous false accusation” against the defendant in response to her relevant be cause it supported the defense theory that the victim “made a defendant’s sexual abuse. The defendant contends that this evidence was which they discussed the victim’s masturbation and the victim disclosed the made by the victim and her mother during the June 1 p. 5 5th conversation, during (1) evidence that the victim had been masturbating and (2) the statements On appeal, the defendant argues that the trial court erred by excluding

“territory” covered by the rape shield law. doing so, the court ruled that the victim’s masturbatory behavior was through its questioning of witnesses or its opening statement. In the course of The court also ru led that the State had not made this evidence relevant reaffirmed its pretrial ruling that the masturbation evidence was not relevant. which it treated as a motion to reconsider its relevance ruling. The court court also denied the defendant’s mid - trial motion to admit certain evidence, attempts to elicit testimony about the victim’s masturbatory behavi or. The During trial, the court sustained the State’s objections to the defendant’s

mother’s direct testimony place that evidence at issue.” the evidence “could become rele vant, should, for example, [the victim’s] or her the masturbation evidence on the basis of relevance. It noted, however, that Because the court ruled that these statements were not admissible, it excluded admis sibility of the statements made during the June 1 p. 5 5th conversation. therefore, that the relevance of the masturbation evidence depended upon the conversation between the victim and her mother. T he court concluded, victim’s masturbation would be relevant only to explain the June 15th Ev. 401 (amended 2017). The trial cour t determined that evidence of the more probable or less probable than it would be without the evidence.” N.H. R. existence of any fact that is of consequence to the determination of the action admissible.”). Evidence is relevant if it has “any tendency to make the p. 6 6

to bring this to the trial court’s attention. See State v. Gay, 1 p. 6 69 N.H. 232, 248 contents of the June 15th conversation, it was incumbent upon the defendant misunderstood or overlooked that the defendant sought to introduce the might seek to introduce some or all of these statements. If the court hearsay”). The trial court did not appear to contemplate that the defendant 165 N.H. at 158 (characterizing out - of - court statement as “presumptively 15th conv ersation in ruling that those statements were hearsay. Cf. Noucas, the State as the anticipated proponent of the statements made during the June admissible. This is important because, in its pretrial order, the court identified made during the June 15th conversation were not hearsay and, therefore, were at 158 - 59. The defendant never explained to the trial court why the sta tements exception. See State v. Sweeney, 151 N.H. 666, 677 (2005); Noucas, 165 N.H. burden of demonstrating that it is not hearsay or that it meets a hearsay The party seeking to introduce an out - of - court statement bears the

Ritzo, 141 N.H. 210, 218 (199 p. 6 6); accord Costella, 166 N.H. at 715. forth the specific basis for admissibi lity of the proffered evidence. Bohan v. of creating a suff icient record for our review on appeal, i.e., a record that sets Noucas, 165 N.H. at 158 - 59. The proponent of the evidence bears the burden evidence and (2) why it is admissible. See, e.g., Costella, 166 N.H. at 714 - 15; offer of proof that apprises the trial court of (1) the specific nature of the court erroneously excluded evidence at trial, a party generally must make a n McInnis, 169 N.H. 565, 573 (2017). To preserve an argument that the trial arguments articulated in his appellate brief before the trial court. State v. party, bears the burden of demonstrating that he specifically raised the the appellate court. Wilson, 169 N.H. at 768. The defendant, as the appealing opportunity to rule on issues and to correct errors before they are presented to Court Rule 16(3)(b), reflects the general policy that trial forums should have an This preservation requirement, expressed in both our case law and Supreme presented in the trial court. See State v. Noucas, 165 N.H. 146, 152 (2013). Generally, we do not consider issues raised on appeal that were not

hearsay ruling. We disagree. relevance arguments to the trial court “implicitly” challenged the court’s hearsay argument is nonetheless preserved for our review because his n ever “t[ook] on [the issue of] hearsay directly.” He asserted, however, that his trial court. Indeed, at oral argument, the defendant conceded that trial counsel We agree with the State that the defendant did not make this argument to the after her mother “overreacted” to the statement “Shawn showed me.” See id. be offering them to show that the victim first accused him of touching her only them for the truth of the matter asserted in those statements; rather, he would would not be hearsay if he was the proponent because he would not be offering defendant argues that the statements ma de during the June 15th conversation other reason, it is not hearsay.” Reinholz, 1 p. 6 69 N.H. at 28. On appeal, the (2003). “If a st atement is not offered to prove its truth, but is offered for some p. 7 7

to masturbation. address the parties’ arguments concerning whether the rape shield law applies evidence on relevanc e grounds. In light of this conclusion, we need not court sustainably exercised its discretion when it exclu ded the masturbation not necessary to explain its context”). Therefore, we conclude that the trial never introduced” at trial, “evidence of the circumstances surrounding it were Bennett, 144 N.H. at 16 (holding th at because “the defendant’s statement was trial, the fact that the victim had been masturbating was not relevant. See her. Because the contents of the June 15th conversation were excluded from masturba tion evidence to the victim’s statement that the defendant “showed” conversation. Indeed, on appeal, the defendant ties the relevance of the victim on June 15 and the statements made during the subsequent explain why the victim’s mother broached the subject of masturbation with the admitted into evidence. The masturbatio n evidence was only relevant to upon whether the statements made during the June 15th conversation were ruled, and w e agree, that the relevance of the masturbation evidence depended excluding the masturbation evidence on the basis of relevance. The trial court We next turn to the defendant’s argument that the trial court erred by

court”). offered for purposes other than its truth . . . is an issue of fact for the trial (201 p. 7 7); cf. Pelletier, 149 N.H. at 253 (noting that whether a statement “is argument in the first instance on appeal. See State v. Edic, 169 N.H. 580, 583 addressed the substance of an objection.”). We decline to consider this that an issue is preserved when the trial court understood and therefore review. Cf. State v. Gross - Santos, 169 N.H. 593, 598 (2017) (“[W]e have held statements were offered. Accordingly, this argument is not preserved for our court to the non - truth purpose for which he now argues the out - of - court the masturbation evidence se veral times during trial, he never alerted the trial Furthermore, although the defendant raised his relevance argument regarding argument for our review. See id.; LaMontagne Builders, 150 N.H. at 274. Therefore, the filing of this motion did not preserve the defendant’s hearsay were not hearsay because he was offering them for a non - truth purpose. did not include the argument he now makes on appeal: that the statements evidence as a motion to reconsider its relevance ruling. This motion, however, The court treated the defendant’s mid - tria l motion to admit certain

asserted by the defendant on appeal.” Gay, 169 N.H. at 24 p. 8 8. because “[t]he trial court must have had the opportunity to consider any issues the trial court in a motion for reconsideration). This requirement exists legal issues that arise as a result of a trial court’s order must be presented to N.H. 2 p. 7 70, 274 (2003) (holding that, to satisfy our preservation requirement, (2016); see also LaMontagne Builders v. Bowman Brook Purchase Group, 150 8

involving a minor.” Graf, 143 N.H. at 29 p. 8 8. The defendant sought to introduce case was “pertinent to the crime of aggravated felonious sexual assault In Graf, we considered whether the proffered character evidence in that

premised upon a different offer of proof. We therefore decline to address any arguments made by the defendant that are on by th at court. See Costella, 166 N.H. at 714 - 15; Gordon, 161 N.H. at 414. reviewing the trial court’s ruling, we rely on the offer of proof made to and ruled testimony differs on appeal from the offer of proof he made to the trial court. In to children.” We note that the defendant’s characterization of the proffered was opinion testimony t hat the defendant “is sexually attracted to women, not admissible under Rule 404(a)(1). The proffered character evidence in this case question” of whether the defendant’s proffered character evidence was Here, the trial court ruled that our decision in Graf “answer[ed] th [e]

controversy.” (quotation and citations omit ted)). on whether it relates to the particular trait(s) that are relevant to the matter in if it is relevant. Whether the proffered character evidence is relevant depends synonymous with relevance. Se e Graf, 143 N.H. at 29 p. 8 8 (“Evidence is pertinent 404(a)(1); see Graf, 143 N.H. at 297 - 98. In Graf, we defined pertinence to be must be “pertinent,” and it must constitute a “trait of character.” N.H. R. Ev. To be admissible under Rule 404(a)(1), the proffered character evidence

N.H. at 297; see N.H. R. Ev. 404(a)(1). conformity with that character trait at the time of the alleged crime.” Graf, 143 “present evidence of a pertinent trait of character to prove that he acted in rebut the same.” Under this ex ception, the defendant in a criminal case may of a pertinent trait of character offered by an accused, or by the prosecution to Rule 404(a)(1) provides an exception to this general rule by allowing “[e]vidence occasion.” N.H. R. E v. 404(a); see State v. Demeritt, 14 p. 8 8 N.H. 435, 443 (2002). of proving that the person acted in conformity therewith on a particular of a person’s character or a trait of character is not admissible for the purpose cha racter evidence.” Graf, 143 N.H. at 297. The general rule is that “[e]vidence “New Hampshire Rule of Evidence 404(a) governs the admissibility of

introducing this evidence. 404(a)(1). We agree with the trial court that Graf precludes the defendant from p ursuant to our holding in Graf. See Graf, 143 N.H. at 29 p. 8 8 - 99; N.H. R. Ev. The trial court ruled that this evidence was not admissible under Rule 404(a)(1) testify that, in her opinion, he “is sexually attracted to women, not to children.” excluding certain character evidence. T he defendant sought to have his ex - wife We now turn to the defendant’s argument that the trial court erred by

introducing this proffered character evidence. sustainably exercised its discretion in precluding the defendant from women, not to children.” Accordingly, we conclude that the trial court children” and opinion testimony that a defendant is “sexually attracted to between opinion testimony that a defendant is “not sexually attracted to to children.” (Emphasis added.) We f ail to see a meaningful distinction his ex - wife testify that, in her opinion, he “is sexually attracted to women, not children, because she wouldn’t know.” At trial, the defendant sought to have wife from offeri ng opinion testimony that “he’s not sexually attracted to opinion.” Further, he conceded at oral argument that Graf precluded his ex matter about which other people would be in a position to have an informed character for committing [sexual] assaults against children would not be a In his brief, the defendant agrees that, pursuant to Graf, “a person’s

evidence.” Id. at 2 p. 9 99; see N.H. R. Ev. 401 (amended 2017). determination of the action more or less probable than it would be without the the tendency to make the existence of any fact that is of consequence to the evidence, lacking any foundation, would be irrelevant because it does not have Id. (quotations and citations omitted). We reasoned that “the proffered

to take advantage of children. whether the defendant is the type of person to sexually assault or witnesses lacked the knowledge necessary to form an opinion as to is normally an intimate, private affair, we hold that the character aggravated felonious sexual assault concerns sexual activity, which acquaintance upon which the opinion is based. Because must be confined to the nature and extent of observation and opinion of the defendant’s pertinent trait of c haracter, that opinion sexual conduct. When a character witness testifies as to his activity, or lack thereof, may have no correlation to one’s actual location calculated to avoid detection. One’s reputation for sexual of conduct which is done in public, but [in] an envi ronment or the charged crime because such conduct is generally not the type sexually assault or to take advantage of children is not pertinent to The trial court correctly noted that not being the type of person to

of Rule 404(a)(1).” Id. at 2 p. 9 99. We explained: proffered character evidence because it was not pertinent within the meaning of them.” Id. at 296. We held “that the trial court properly excluded the not the type of person who would sexually assault children or take advantage character evidence, through opinion test imony of other witnesses, “that he was p. 10 10

retired, specially assigned under RSA 490:3, concurred. LYNN, C.J., and HICKS and BASSETT, JJ., concurred; DALIANIS, C.J.,