Following a jury trial, the defendant, Joseph Barden, was convicted of aggravated felonious sexual assault. See RSA 632-A:2 (Supp. 2001) (amended 2003). On appeal, he contends that the trial court erred in: (1) accepting the victim's affidavit in lieu of her testimony during the Howard hearing, State v. Howard, 121 N.H. 53 (1981), denying his subsequent request to reopen the hearing and limiting his opportunity to present evidence of the victim's sexual activity as a result of the hearing; (2) denying his request for a Hungerford hearing, see State v. Hungerford, 142 N.H. 110 (1997); (3) admitting hearsay evidence and denying his related motion for a mistrial; (4) denying his motion to continue the sentencing hearing; (5) denying his request to sequester the victim's mother after she had testified; (6) denying his request for a directed verdict and motion to set aside the verdict; and (7) denying his motion for a new trial. We affirm.
The defendant first argues that the trial court erred in accepting the victim's affidavit in lieu of her testimony during the Howard hearing. We find no merit in the defendant's contention that by agreeing to the hearing, the State conceded that the victim was required to testify. Nor do we find error in the court's decision to admit the victim's affidavit in lieu of her testimony. The defendant's objection to the State's motion in limine set forth his rationale for seeking a Howard hearing; the minor victim addressed his allegations in her affidavit. The trial court's subsequent ruling on the admissibility of the victim's prior consensual sexual activity addressed both the allegations and admissions, properly balancing the due process rights of the defendant with the prejudicial effect on the victim. See State v. Baker, 127 N.H. 801 (1986). Contrary to his assertion on appeal, the defendant elicited evidence during trial of the victim's consensual activity. The defendant's final claim of error concerning the Howard hearing is that the trial court erred in denying his request to reopen it. The newly discovered evidence cited by the defendant did not involve accusations of sexual conduct. To the extent that it may have provided evidence of the victim's familiarity with certain sexual acts and that this issue has been preserved for our review, the victim had admitted such familiarity and the trial court had previously found it to be irrelevant to the charges in this case. We find no error in either of these rulings.
The defendant next argues that the trial court erred in denying his request for a Hungerford hearing. Unlike in Hungerford, the victim did not suffer a complete absence of awareness or memory of a traumatic event from the time of its occurrence until several years later. See Hungerford, 142 N.H. at 117. The victim here related the charged act on the day after the last time that the defendant assaulted her. That the details in her pretrial statements and her trial testimony may have differed was a proper subject of cross-examination; it did not, however, require a separate Hungerford hearing.
The defendant next argues that the trial court erred in admitting hearsay evidence when the victim's mother testified about the victim's statement that a boy at school asked the victim if she had had sex with the defendant. The State elicited this testimony after defense counsel extensively questioned the victim's mother about the victim's truancy and linked it to the period after the defendant left the house and no longer disciplined her. The boy's question was not hearsay as it was not offered for the truth of its content. See N.H. R. Ev. 801 (c). New Hampshire Rule of Evidence 803(3) provides that a statement of the declarant's then existing state of mind is not excluded by the hearsay rule. In this case, the statement was properly admissible to show the victim's state of mind and explain her increased truancy after the defendant no longer lived in her home. We find no error in the trial court's decision to admit this evidence.
The defendant also contends that the trial court erred in denying his motion to continue his sentencing hearing. The trial court found that the presentence report was available in the court's files seven days before the scheduled sentencing hearing. Whether to grant a continuance is within the discretion of the trial court. See State v. Saucier, 128 N.H. 291, 295 (1986). To show that the trial court's exercise of discretion is unsustainable, the defendant must demonstrate prejudice. State v. Lambert, 147 N.H. 295, 296 (2001). He has failed to demonstrate any prejudice in this case.
The defendant also argues that the trial court erred in denying his request to sequester the victim's mother after she completed her testimony. While he argues on appeal that New Hampshire Rule of Evidence 615 required that his sequestration request be granted, he offered no support for his request in the trial court. Even if we assume without deciding that this issue has been properly preserved for our review, we conclude that to the extent the trial court's ruling was error, it was harmless. See State v. Fox, 150 N.H. 623, 624 (2004) (error is harmless if State establishes that error did not affect verdict; we review strength of evidence State presented at trial and character of excluded evidence, including whether it was cumulative). In this case, the victim's mother testified before the victim. The defendant does not present any offer of the testimony that he might have elicited had the mother been sequestered and the defendant opted to recall her. Given the record before us, including direct testimony by the victim of the charged acts and the mother's corroborating testimony, we conclude that any error was harmless.
The defendant next contends that the trial court erred in denying his request for a directed verdict and motion to set aside the verdict. When sufficiency of the evidence at the close of the State's case and the close of trial is contested on appeal, the test is the same. State v. Pittera, 139 N.H. 257, 260 (1994). The defendant was charged with pattern sexual assault by digital penetration. The victim testified that he digitally penetrated her on three or four occasions. "To succeed on a sufficiency of the evidence claim, the defendant must show that, viewing the evidence in the light most favorable to the State, no rational trier of fact could have found guilt beyond a reasonable doubt." State v. Grimes, 152 N.H. 310, 311 (2005). While the defendant cites inconsistencies in the victim's testimony and out of court statements, those inconsistencies were for the jury to resolve. See State v. Giles, 140 N.H. 714, 716 (1996) ("In determining witness credibility, the jury may accept some parts and reject other parts of testimony, and adopt one or the other of inconsistent statements by witnesses.")
In his final claim of error, the defendant argues that the trial court erred in denying his motion for a new trial. To prevail on a motion for new trial, the defendant must prove that: (1) he was not at fault for failing to discover the evidence at the former trial; (2) the evidence is admissible, material to the merits and not cumulative; and (3) the evidence is of such a nature that a different result would probably be reached upon another trial. State v. Cossette, 151 N.H. 355, 361 (2004). The evidence cited by the defendant was elicited at trial and in fact was the basis for his motion for mistrial during the original trial. Absent a claim of subsequent discovery of evidence, the defendant failed to sustain his burden.
BRODERICK, CJ, and DUGGAN and GALWAY, JJ, ...