2017-0712, The State of New Hampshire v. George J. Colbath

affirm. about statements that he allegedly made about the victim’s appearance. We that the Superior Court (Smukler, J.) erred by allowing two witnesses to testify conduct pursuant to New Ha mpshire Rule of Evidence 404(b). He also argues (Fauver and Smukler, JJ.) erred by admitting evidence of certain uncharged also RSA 631:2 - b, III (2016). On appeal, he argues that the Superior Court assault (AFSA). See RSA 632 - A:2, I(d), III (2016), V (2016) (amended 2017); see following a six - day jury trial, on 17 charges of aggravated felonious sexual HICKS, J. The defendant, George J. Colbath, appeals his convictions,

the defendant. Sisti Law Office s, o f Chichester (Mark L. Sisti on the brief and orally), for

on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Heather A. Cherniske, attorney,

No. 2 017 - 0712 Belknap

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

“because he had said he would never, ever put his penis inside of [her].” with his penis for the first time. The victim was ang ry with the defendant and performed cunnilingus. The defendant then penetrated the victim’s vagina use it on her. He then proceeded to do so and again digitally penetrated her her “a small vibrator in a white sati n bag.” He told the victim that he wanted to and the defendant were moving some belongings into the Alton home, he gave girlfriend broke up, and he and the victim moved to Alton. W hen the victim In the summer between eighth and ninth grade, the defendant and his

defendant digitally penetrated the victim and then performed cunnilingus. again, but the victim said that she “didn’t want. . . to.” Nonetheless, the va gina. The defendant indicated that he wanted to digitally penetrate her movie with her. As he did so, he moved his hand up her leg, close to her defe ndant entered her bedroom, lay down next to her, and began to watch the occurred while the victim was watching a movie in her bedroom. The Shortly after the first movie i ncident occurred, a second incident

this on a different day and “he said that he couldn’t help himself.” pulling her shirt down and touching her breasts. She confronted him about One day, when the victim was sleeping, she awoke to the defendant

victim’s underwear and digitally penet rated her. to show her how to “make [herself] feel good.” The defendant then removed the ever masturbated, and, when she said that she had not, he said that he wanted watching a movie together at home. The defendant asked the victim if she had The next incident occurred when the victim and the defendant were

way.” The defendant told the victim that she “must have excited [herself] in some examine [her] vagina,” and remarked that her vagina looked like her mother’s. t he victim showed the defendant her underwear. The defendant “pro ceeded to defendant about it, “and he wanted [her] to show him.” While in the bathroom, her underwear. Because she did not know what it was, she asked the in eighth grade. Upon arriving home fr om a party, the victim noticed “liquid” in of sexual contact between the victim and the defendant occurred when she was Nottingham to live with his then - girlfriend and her children. The first incident When the victim was in sixth grade, s he and the defendant moved to

victim turned 11. defendant. The victim’s mother died in November p. 2 2009, shortly before the her mother moved to New Hampshire, where her mother met and married the December 1998. Her parents separated when she was an infant, and she and The jury could have found the following facts. The victim was born i n

AFS A. All of the charges alleged incidents occurring in Belknap County (e.g., A Belknap County Grand Jury indicted the defendant on 17 counts of

before doing so said that he was going to destroy his phone. that “he was going to kill himself.” The defendant hung up on Suzanne, but defendant telephoned Suzanne, telling her that he had taken “something” and home, and, as he left, threatened to kill himself. After he left the home, the defendant, he said that “he wasn’t going to go to jail for this.” He then left the Suzan ne about the defendant’s conduct. When S uzanne confronted the Suzanne that she “couldn’t tell her.” Eventually, however, the victim told member,” and the victim “kind of lost it.” She “broke down,” crying, and told Suzanne asked the victim if she “had ever been molested by a close family been acting more short and tense with [the defenda nt].” On January p. 3 30, By the end of January 2016, Suzanne had noticed that the victim “had

because “they [wouldn’t] believe [her].” the secret anymore.” The defendant told her to “go ahead and tell somebody” eventually tell . . . somebody about it because [she] couldn’t hand le . . . holding with him,” and she “told him that if he keeps it up, [she] was going to have to Sh ortly after the victim turned 17, the defendant “made [her] have sex

[she] had.” beloved horses. The defendant would often tell the victi m that he was “all that away her privileges, such as her phone or her car, or threaten to sell her To force the victim to engage in sex acts with him, the defendant would take anus, using vibrators on her and on himself, and forcing her to perform fellatio. victim digitally, performing cunnilingus, inserting his penis into her vagina and assault the victim on a weekly basis. The assaults included penetrating the After the vict im confided in her friend, the defendant continued to

would “ship[ ] [her] off to Alabama to live with [her] real father.” to live, either because “the State would take [her]” or because the defendant disclosed them because she feared that, if she did so, she might lose her place about the sexual incidents with the defendant. The victim had no t previously high school. This friend was the first person in whom the victim confided victim became friends with a girl with whom she commuted to a vocational Suzanne. In the beginning of the school year that began in August 2015, the defendant moved to Center Barnstead to live with the defendant’s now wife, The victim turned 16 in December 2014. In June 2015, she and the

d efendant also penetrated the victim’s anus with his penis “a couple of times.” penetrate her, perform cunnilingus, and insert his penis into her vagina. The penis: he would make the victim undress and lie down, then he would digitally in the same pattern of conduct whenever he penetrated her vagina with his penetrating her vagina with his penis “almost weekly.” The defendant engaged Once the defendant and the victim began living in Alton, he began p. 4 4

mental state or intent at the time of the charged conduct. purpose of allowing you to assess -- and to be used to assess his he acted in performance [sic] with the character but solely for the of sho wing that the defendant is of a particular character and that introduced for a limited purpose, not to show -- not for the purpose occurred before the conduct charged in this case is being evidence you just heard involving statements of the defendant that It was introduced for the same limited purpose, and the

previous evidence, and I will tell you what it was. indeed. I also want to m ake you aware that there has been some comes up. This evidence was introduced for a limited purpose a limited purpose and, if that came up, I would instruct you as it that there may be occasions where evidence is being introduced for Members of the jury, at the beginning of this case, I told you

instruction: After the son testified thusly, the trial court gave the jury the following

“[Y]ou should see the tits on her.” adolescence” and living in Nottingham, the defendant had remarked to his son: objection, the testimony of his adult son that, when the v ictim was in “early The trial court also admitted into evidence, over the defendant’s

house.” victim as “very well [-]endowed like her mother,” and “built like a brick shit her body.” Specifically, the a unt testified that the defendant described the defendant made comments to the a unt about what the victim “looked like and defendant’s objection, the victim’s a unt’ s testimony that, “[a] few times,” the During the tri al, the trial court admitted into evidence, over the

intent to commit the alleged crimes.” incidents were relevant to demonstrate “the defendant’s plan, preparation, and defendant’s objection. The trial court determined that the Nottingham incidents into evi dence. The trial court granted the motion over the Before trial, the State filed a motion in limine to admit the Nottingham

household members. See RSA 632 - A:2, V; see also RSA 631:2 - b, III. included the allegation that the victim and the defendant were family or execute those threats. See RSA 632 - A:2, I(d). S everal of those charges threatening retaliation and that the victim believed that he had the ability to defendant coerced the victim to submit to discrete acts constituting AFSA by 201 p. 4 4. See RSA 632 - A:2, III. The remaining 13 charges alleged that the engaged in a pattern of AFSA between September 1, 2014, and December 6, Alton or Center Barnstead). Four of the charges alleged that the defendant had p. 5 5

the evidence before it.” Id. (quotation omitted). person could have reached the same decision as the trial court on the basis of would have found differently, but is only to determine whether a reasonable made.” Id. (quotation omitted). “Our task is not to determine whether w e establishes an objective basis sufficient to sustain the discretionary judgment exercise of discretion standar d of review, we determine only whether the record prejudice of his case.” Id. (quotation omitted). “In applying our unsustainable the trial court’ s decision was clearly untenable or unreasonab le to the “For the defendant to prevail under this standard, he must d emonstrate that exercise of discretion standard. See State v. Letarte, 169 N.H. 4 p. 5 55, 4 6 1 (2016). evidentiary rulings. We revie w such challenges under our unsustainable On appeal, the defendant challenges certain of the trial court’s

limited purpose. a much more limited purpose and you may consider it only for that commit the c rime. The evidence of the other acts was admitted for that he has a bad character, or that he has the propensity to evidence as proof that the defendant has a criminal personality, the crimes with which he is charged. Nor may you consider the similar acts a s a substitute for proof that the defendant committed alleged in the indictments. You may not consider this evidence of the indictments. He is not on trial for committing acts that are not indictments. The defendant is on trial only for the acts charged in acts, he must also hav e committed the acts charged in the evidence to infer that because the defendant committed the other by you for any other purpose. Specifically, you may not use this acted knowingly. Evidence of similar acts may not be considered met it[s] burden of provin g the defendant’s mental state, that he only for the limited purpose of determining whether the State has . . . . If you find such evidence to be credible, you may consider it statements made when he and [the victim] lived in Nottingham the State has offered evidence of the defendant’s conduct and Some evidence was introduced for a limited purpose. Specifically,

jury instructions: The trial court reiterated that limiting instruction when it issued its final

occu rred in Rockingham County specifically. . . Nottingham. the defendant moved to Belknap County, the conduct that a unt], and it pertains to evidence of conduct that occurred before pertains to similar evidence you heard previously by [the victim’s So -- and that it pertains to the evidence you just heard, it p. 6 6

was aware that his threats would be coercive in effect. See RSA p. 6 632 - A:2, I(d). that he was doing so and that when he threatened to retaliate against her, he reasonable doubt, that when he sexually penetrated the victim, he was aware convict the defendant of those 13 charges, the State had to prove, beyond a nature or that such circum stance s exists.” RSA 626:2, II(b) (2016). Thus, to material element of an offense when he is aware that his conduct is of such person acts knowingly with respect to conduct or to a circumstance that is a the ability to execute those threats in the future. See RSA 632 - A:2, I(d). “A threatening to retaliate against her, and that the victim believed that he had sexual penetration and that he knowingly coerced the victim to submit by AFSA, the State had to prove that he knowingly engaged in specific incidents of Here, to establish that the defendant committed 13 of the 17 charges of

State v. Thomas, 1 p. 6 68 N.H. 589, 600 (2016). relevant to the defendant’s mental state and whether he acted knowingly. See at 464. The trial court found that evidence of the Nottingham incidents was have a clear connection to the evidentiary purpose for which it is offered.” Id. evidence “must have some direct bearing on an issue actually in dispute and To satisfy the first prong of the Rule 404(b) analysis, the other bad act

first and third prongs of the Rule 404(b) analy sis are here at issue. to the balance between probative worth and prejudicial impact. Id. Only the particulars of a case, and we accord considerable deference to its conclusion as the prejudice of his case. Id. The trial court is well - p ositioned to evaluate the defendant shows that the decision was clearly untenable or unreasonable to test lies within its sound discretion, and we will disturb its judgment only if the 381, 4 p. 6 63 (2013). The trial court’ s evide ntiary decision under this three - prong unfair prejudice to the defendant. State v. Addison (Capi t al Murder), 165 N.H. probative value of the evidence is not substantially outweighed by the danger of establishes that th e defendant committed the other bad acts; and (3) the other than proving the defendant ’ s character or disposition; (2) clear proof the State must demonstrate that: (1) such evidence is relevant for a purpose N.H. R. Ev. 404(b). Before evidence of other bad acts may be admitted at trial,

accident. preparation, plan, knowledge, identity, or absence of mistake or other purposes, such as proof of motive, opportunity, intent, acted in conformity therewith. It may, however, be admissible for prove the ch aracter of a person in order to show that the person Evidence of other crimes, wrongs, or acts is not admissible to

provides: evidenc e of the Nottingham incidents pursuant to Rule 404(b). Rule 404(b) The defendant first argues that the trial court erred by admitting

evidence of the defendant’s threatening behavior towards the victim and pornography); State v. Richardson, 138 N.H. 162, 166 (1993) (deciding that pornography was relevant to show that he knowingly possessed child websites containing child pornography and that he regularly viewed such N.H. 366, 3 p. 7 76 - 77 (2009) (holding that evidence that the defendant sought out law en forcement officer who was acting in the line of duty”); State v. Howe, 159 shot a police officer, he “was aware that his actions would cause the death of a because it was “highly probative” of the State’s theory that, when the defendant Murder), 165 N.H. at 466 - 67 (upholding admission of other bad act evidence she failed to provide him with proper nutrition); see also Addi son (Capital demonstrate that she knowingly caused the victim serious bodily injury when of abuse that the defendant perpetrated against the victim was relevant to acted knowingly. See id. at 596, 602 (concluding that evidence of other forms as relevant to intent for crimes requiring the State to prove that the defendant previously upheld the admission of other bad act evidence under Rule 404(b) not relevant to his intent. See Thomas, 168 N.H. at 600. However, we have acted knowingly, and not purposely, evidence of the Nottingham incidents was The defendant argues that, because the State had to prove only that he

omitted). offenses [are] closely connected by logically significant factors.” Id. (quotation in c ommitting the other bad acts and the defendant’s intent in the charged sufficient support for a reliable inference of intent only if the defendant’s intent charged and uncharged acts.” Id. at 2 p. 7 77 (quotation omitted). “We will find propensity, that the defendant had the same intent on the occasions of the support a reliable i nference, not dependent on the defendant’ s character or “To be relevant to intent, evidence of other bad acts must be able to

were not admitted at trial for those purposes. those arguments because, despite the trial court’s pretrial ruling, the incidents incidents were relevant to show his preparation or plan, we do not address challenges the trial court’s pretrial determination that the Nottingham considered by the jury for any other purpose. Although the defendant introduced solely to prove the defendan t’s mental state and could not be and/or plan, at trial, the court twice instructed the jury that the incidents were that the incidents were admissible also to show the defendant’s preparation (quotation omitted). Al though in its pretrial ruling, the trial court determined issue to require evidence at trial.” State v. P epin, 156 N.H. 269, 2 p. 7 79 (2007) is an element of the crime to be proved by the State, intent “is sufficiently at When, as in this case, the defendant does not concede intent and intent

N.H. at 466. proof that can be proffered by the prosecution.” Addison (Capital Murder), 165 t estimony on the defendant’s state of mind calls for consideration of all proper burden, and we have recognized that the unlikelihood of developing direct “Convi n cing a jury of this mens rea beyond a reasonable doubt is a heavy p. 8 8

sufficiently connected to the charged acts to be admissible under Rule 404(b)). acts with a victim of a different gender than the complainant was not (1995) (event occurring six years before charged acts and involving different sex was not too remote to be admissible), with State v. McGlew, 139 N.H. 505, 507 390, 391, 397 (19 p. 8 86) (threat made in 1980 before the charged event in 1984 connected to charged event as to be admissible), and State v. Allen, 128 N.H. (threat made five months before charged event was sufficien tly closely requisite nexus between it and the charged event), Pepin, 156 N.H. at 278 months before victim’s murder was not so remote in time as to eliminate the Compare State v. Cassavaugh, 161 N.H. 90, 98 (2010) (threat delivered two was in eighth grade, and the Alton assaults began the following summer. According to the victim’s testimony, the Nottingham incidents began when she nexus between them and the charged assaults. See Dukette, 145 N.H. at 230. T he Nottingham incidents were not so remote in time as to eliminate the

similar circumstances). involved the same victim and a similar weapon, and they both occurred under prior assault of the victim and the charged conduct in part because they both a sufficient logically significant connection between the defendant’s al leged see also State v. Dukette, 145 N.H. 226, 230 (2000) (concluding that there was the same victim and occurred in a similar context. See Pepin, 156 N.H. at 27 p. 8 8; factors. The Nottingham incidents and the charged o ffenses were directed at incidents and the charged offenses are closely connected by logically significant was inadmissible under Rule 404(b). To the contrary, the Nottingham link in making evidence of the Nottingham incidents relevant to show intent, it The defendant next asserts that, because his propensity was an essential

that he knew what he was doing when he acted. that it was “safe” to commit the charged acts, which in turn tended to show did not report them to others made it more likel y that the defendant would feel addition, the fact that the Nottingham incidents occurred and that the victim threats to coerce the victim to submit to the charged sexual assaults). In the victim w as admissibl e under Rule 404(b) to demonstrate his use of implied p. 8 84 (1988) (holding that evidence of prior sexual acts between the defendant and threatening to retaliate against her. See State v. Johnson, 130 N.H. 578, 5 82 in Al ton and Center Barnstead, the defendant knowingly coerced the victim by That evidence made it more probable that, at the time of the charged incidents was aware that his threats would be coercive in effect. See RSA 632 - A:2, I(d). that he was doing so and that when he threatened to retaliate against her, he show that, when the defendant sexually penetrated the victim, he was aware In the instant case, proof of the Nottingham incidents was relevant to

own state of mind). offense was relevant to and probative of his intent towards the victim and her towards another in her presence in the days immediately preceding the char ged p. 9 9

exercise its discretion by admitting them into evidence. See id. the se reasons, therefore, we hold that the trial court did not unsustainably admitting evidence of the Nottingham incidents was slight. See id. For all of Given the trial court’s limiting instructions to the jury, an y prejudice from omitted). The jury is presumed to follow the trial court’s instructions. Id. determining the defendant’s intent and so instructed the jury.” Id. (quotation because “the trial court admitted th e evidence for the sole purpose of ledger, t he prejudicial impact to the defendant of the evidence was limited dispute, the probative value was significant. See id. On the other side of the defendant’s inte nt. See id. Because intent was an issue that was actually in See id. at 27 p. 9 9. As noted above, the Nottingham incidents are probative of the value of the evidence was not substantially outweighed by its prejudicial effect. The record supports the trial court’s determination that the probative

probative worth. Pepin, 156 N.H. at 278. considerab le deference to the trial court’ s balancing of prejudicial impact and “the potential prejudice.” Towle, 167 N.H. at 324. Thus, we afford and to det ermine what steps, if any, are necessary to” diminish or eliminate best position to gauge the potential prejudicial impact of particular testimony, N.H. at 464; State v. Towle, 167 N.H. 315, 324 (2015). “The trial court is in the issuing a limiting instruction to the jury. See Addison (Capital Murder), 165 A trial court can diminish or eliminate the danger of unfair prejudice by

23. offered is established by other evidence, stipulation, or inference. Id. at 322 of resentment or outrage; and (3) the extent to which the issue upon which it is emotional impact upon a jury; (2) its pot ential for appealing to a juror’ s sense in weighing the evidence are: (1) whether the evidence would have a great emotionally charged.” Id. (quotation omitted). Among the factors we consider against the defendant on som e improper basis, commonly one that is required to predicate reversible error is an undue tendency to induce a decision is meant to be prejudicial.” Id. (quotation omitted). “Rather, the prejudice evidence to prove guilt, in which sense all evidence offered by the prosecution prejudice is not. . . mere detriment to a defendant from the tendency of the State v. Tabaldi, 16 5 N.H. 306, 322 (2013) (quotation omitted). “Unfair decision on something other than the established propositions in the case.” or trigger other mainsprings of human action that may cause a jury to base its a jury’ s sympathies, arouse its sense of horror, provoke its instinct to punish, “[E] vidence is unfairly prejudicial if its primary purpose o r effect is to appeal to defendant into the trial process. Addison (Capital Murder), 165 N.H. at 46 4. evidence and the risk that such evidence will inject unfair prejudice against the requires the trial court to consider both the probative value of the relevant We turn now to the th ird prong of the Rule 404(b) analysis, which p. 10 10

consequences of one ’ s misdeed” (quotation and citation omitted)). attempted suicide, as an attempt to flee and escape forever from the temporal flight after a crime as showing consciousness of guilt, it may also consider Brown, 128 N.H. 606, 616 (1986) (explaining that “[j] ust as a jury may consider probative on the issue of the defendant’s consciousness of guilt”); State v. (1991) (stating that “[i]t is beyond dispute that evidence of post - offense flight is defendant was conscious of his guilt. See State v. Torr e nce, 134 N.H. 24, 27 suicide. The jury could reasonably have inferred from such evidence that the victim’s accusation, the defendant fled the home and threatened to co mmit Additionally, the jury heard evidence that, when confronted with the

defendant’s genetic material. semen, and a vibrator which tested positive for both the victim’s and the comforter from the victim’s bed, which tested positive for the defendant’s jury could have reasonably inferred that the assaults occurred, including the testimony. In addition, the State produced physical evidence from which the id. Rather, the State also produced witnesses who corroborated portions of her The State did not rely solely upon the victim’s testimony, however. See

her “a lmost weekly” with his penis, his fingers, and objects. N.H. 73, 83 (2014). She gave graphic testimony about the defendant assaulting “p roviding specific details about the individual assaults.” State v. Wells, 166 sexual assaults was of an overwhelming nature. The victim testified at trial Here, the alternative evidence that the defendant committed the charged

evidence.” Id. (quotation omitte d). evidence presented at trial as well as the character of the inadmissible determining whether an error was harmless, we consider the alternative the strength of the State ’ s evidence of guilt.” Id. (quotation omitted). “In the inadmissible evidence is merely cumulative or inconsequential in relation to of the defendant ’ s guilt is of an overwhelming nature, quantity or weight, and if an error is harmless. Id. “An error may be harmless if the alternative evidence 39 8 (2015) (quotation omitted). The State bears the burden of establish ing that that the verdict was not affected by the error.” State v. Palermo, 168 N.H. 387, “An error is harmless only if it is determined, beyond a reasonable doubt,

reasonable doubt. constituted error, we conclude that any such error was harmless be yond a prejudice. Even were we to assume that admission of the statements its probative value is substantially outweighed by the danger of unfair that the evidence was not releva nt to show his intent and that, even if relevant, victim’s body as relevant to his intent or state of mind. Specifically, he argues evidence of his statements to the victim’s a unt and to his son about the The defendant next contends that the trial court erred by admitting

concurred. LYNN, C.J., and BASSETT, HANTZ MARCONI, a nd DONOVAN, JJ.,

testimony was harmless beyond a reasonable doubt. See id. at 83 - 84. was inconsequential, we conclude that the admission of the challenged testimony of the victim’s a unt and the defendant’s son about his comments the alternative evidence of the defendant’s guilt w as overwhelming and the once to his son about the victim’s body was inconsequential. See id. Because comments that the defendant made “[a] few times” to the victim’s a unt and In relation to the strength o f this evidence, testimony about sexualized

guilt.” Wells, 166 N.H. at 83. the call and to consider the substance of his statements as admissions of enabled the jury “to assess the defendant ’ s tone of voice and behavior during take care of you.. . . Dad will see you whenever. Who knows.” Such evidence to jail, I just want you to know that, alright, but that’s alright, Suzanne will “You understand, right, if you testify, if you press charges against me, I’m going abuse to the defendant’s wife. In that message, the defendant told the victim, victim on the evening of January 30, 2016, the day on which she disclos ed the The jury also heard a voicemail message that the defendant left for the