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THE SUPREME COURT OF NEW HAMPSHIRE
Hillsborough-southern judicial district
THE STATE OF NEW HAMPSHIRE
Argued: January 8, 2003
Opinion Issued: February 19, 2003
Philip T. McLaughlin, attorney general (Susan P. McGinnis, attorney, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, by brief and orally, for the defendant.
NADEAU, J. The defendant, Delbert Stott, appeals four convictions for aggravated felonious sexual assault, see RSA 632-A:2, II (1996), following a jury trial in the Superior Court (Lewis, J.). On appeal, he argues the trial court erred by denying his motions in limine to exclude certain statements he made to the police and certain testimony offered by a Nashua police officer on the credibility of the victims complaints. We affirm.
The State presented the following relevant facts at trial. The defendants son is the live-in boyfriend of the minor victims mother. The defendant and his wife live next door to their sons family in Nashua.
On March 3, 2001, the defendant and his wife went to their sons home to baby-sit the seven-year-old victim and her two minor siblings overnight. Because the childrens parents intended to be away all night, they had provided games and movies to occupy the children. Each of the alleged assaults occurred while the defendant was playing those games or watching those movies with the minor children, and while his wife was out of the room or unaware of her husbands actions. While they played games and watched movies, the seven-year-old victim sat on the defendants lap and the defendant rubbed her genitalia over her clothing. During one of the movies, the defendant moved his hands under the victims clothes and directly touched her genitalia. The following morning, the defendant left the victims home when her parents returned. The victim said nothing about the assaults.
Approximately one month later, on April 8, 2001, the victim told her brother, her mother and her mothers boyfriend about the assaults. The following day, the victims mother reported the assaults to the Nashua Police Department and the division for children, youth, and families. Officer Ron Welliver took the victims initial statement about the defendants alleged assaults on the day of her mother's report.
On April 11, Detective Dennis Brown interviewed the victim in the presence of her mother. Detective Browns preliminary questioning gauged the seven-year-old victims knowledge about the difference between the truth and a lie and the difference between a good and a bad touch. Satisfied that the seven-year-old understood these differences, the detective conducted a formal interview about her complaint.
The next day, Detective Brown, along with another detective and the victims mother, went to the defendants home and told him that he should come to the station so the detectives could speak with him. Before going to the station, however, the defendant and his wife went to their sons home to find out the exact allegations against him. Upon learning what the victim had told the police, the defendant went directly to the police department and denied engaging in any sexual misconduct, in addition to making several other statements. The defendant made all of these statements before Detective Brown asked a single question.
The defendants statements, which were the subject of his motion in limine and admitted at trial, were that: (1) he did not want to die in jail; (2) prosecutors were more like persecutors; (3) laws were not infallible; (4) he no longer had marital relations with his wife; and (5) he did not follow the laws of the State of New Hampshire, but he followed the laws of God. The defendant then confirmed all aspects of the seven-year-old victims account of events for March 3, 2001, except for the allegations that he improperly touched her genitalia, which he consistently and adamantly denied.
Prior to trial, the defendant moved to exclude all of these statements. The trial court, however, found the State made a plausible showing at the motion hearing that the probative value of the statements outweighed any prejudicial effect they would have upon the defendant. The trial court then denied the defendants motion, but permitted him to renew his objection during trial. The defendant, however, did not object to the statements at trial.
The defendant also moved, prior to trial, to exclude Detective Browns opinion testimony supporting the credibility of the minor victim. The trial court granted this request. The defendant then moved to exclude testimony from Detective Brown about both the victims and the defendants credibility. Specifically, the defendant sought to exclude the detectives statements that the defendant "should just be honest with [the detective] about what had happened" after the detective had already heard his denials of the victims allegations. The trial court denied this request.
On appeal, the defendant challenges the trial courts denial of his motions in limine to exclude the statements and testimony at trial. Because both issues deal with the admissibility of evidence, we review the trial courts rulings only to decide if the trial court committed an unsustainable exercise of discretion. See State v. Jordan, 148 N.H. 115, 117 (2002). To prevail on appeal, the defendant must show the trial courts rulings were clearly untenable or unreasonable to the prejudice of his case. See State v. Lambert, 147 N.H. 295, 296 (2001).
The defendant asserts that the trial court erred by admitting his statements to Detective Brown because they were irrelevant and unfairly prejudicial to his defense. We disagree.
Relevant evidence is not unfairly prejudicial if it merely causes detriment to a defendant because it tends to prove his guilt. See Jordan, 148 N.H. at 117-18. Otherwise, all of the States evidence would be considered unfairly prejudicial to the defendant. See id. at 118. The prejudice required to prove reversible error is an undue tendency to induce a decision against the defendant on some improper basis, such as evidence of issues that are emotionally charged. See id.
At trial, the State argued that all of the defendants statements to the police constituted admissions, and were relevant to prove the defendants state of mind and consciousness of guilt. The defendant argued that the statements were unfairly prejudicial because a jury might find them to be unpatriotic or contemptuous of the legal system, or the jury might base its verdict upon an improper religious bias. The trial court ruled that the States proffered reasons established sufficient probative value for the statements to withstand any claimed prejudice by the defendant, while cautioning that the statements would be subject to the defendants renewed objection at trial. The trial court made no further order on the issue and the defendant made no further objection at trial.
We find that, while these challenged statements could give rise to many different inferences at trial, no possible inference from these statements rises to the level of unfair prejudice required to substantially outweigh their probative value. Cf. State v. Pelkey, 145 N.H. 133, 136 (2000) (finding defendants statements to be prejudicial).
The only disputed issue in this case was whether the defendant improperly touched the victim. The victim testified that he did, making the defendants statements to the contrary or his reasons for not making statements to the contrary extremely probative of his consciousness of guilt. On the other hand, none of these statements has the purpose or effect of appealing to a jurys sympathies, arousing its sense of horror, provoking its instinct to punish, or triggering other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Id. The statements do not admit any wrongdoing, disclose any prior bad acts or address any emotionally charged issues, such as child abuse, that would make a jury more likely to find the defendant guilty of sexually molesting the victim. See id. Accordingly, we hold that the trial courts admission of these statements was a sustainable exercise of discretion.
The defendant next argues the trial court erred by allowing Detective Brown to testify about his comment that the defendant should "be honest with him about what happened" and about the defendants religious comments. The defendant argues this testimony constitutes improper opinion evidence on the defendants and the victims credibility. The defendant argues that these statements portray him as a liar and as being guilty to God, while they portray the victims complaints as being credible.
Upon reviewing Detective Browns trial testimony, we conclude that it amounts to nothing more than a detailed factual narration of his interview with the defendant. See State v. Kulas, 145 N.H. 246, 248-49 (2000). Detective Brown testified to the questions he asked the defendant and the defendants responses thereto. The detective did not comment upon the credibility of either the victim or the defendant. Cf. State v. Reynolds, 136 N.H. 325, 327 (1992). Nor did he comment upon the ultimate issue of whether the improper touching occurred, thereby making one witness more or less credible than the other. Cf. State v. Lemieux, 136 N.H. 329, 331 (1992). The detectives challenged testimony was made in response only to the defendants unsolicited rambling, and, at most, the jury could find that the testimony as a whole corroborated the victims testimony, which is no reason to exclude it. See State v. Walsh, 139 N.H. 435, 437 (1995). We find, therefore, the trial courts admission of the detectives testimony was also a sustainable exercise of discretion.
All issues raised in the notice of appeal, but not briefed, are deemed waived. See State v. Mountjoy, 142 N.H. 648, 652 (1998).
BROCK, C.J., and DALIANIS and DUGGAN, JJ., concurred.