Following a jury trial, the defendant, Rodney Martinez, was convicted of aggravated felonious sexual assault. See RSA 632-A:2 (Supp. 2005). On appeal, he contends that the trial court erred in: (1) admitting a diagram highlighted by the victim; (2) overruling his hearsay objection concerning a neighbor's testimony; (3) denying his motion to dismiss at the close of the State's case; (4) denying his right to cross-examine a police officer; and (5) allowing the State to read a letter from the defendant's wife at the sentencing hearing. We affirm.
The defendant first argues that, because the victim was clothed at the time of the assault, the trial court erred in admitting a naked preadolescent female diagram on which the victim had highlighted where the defendant touched her. We accord the trial court considerable deference in determining the admissibility of evidence and will uphold a trial court's decision to admit evidence absent an unsustainable exercise of discretion. State v. Yates, 152 N.H. 245, 249 (2005). It was charged that the defendant "did without penetration, purposely touch the genitalia of a person under the age of 13 . . . ." The victim was eleven years old at the time of trial; she testified that she did not speak English at home. Although the assault took place while the victim was clothed, the State was required to prove that the defendant touched the victim on her genitalia. See RSA 632-A:2, II (Supp. 2005). Therefore to allow the State to establish this element of the offense, it was not error to allow the victim to indicate on the diagram where the defendant had touched her. The potential for any prejudice was further lessened in this case where the State made clear in its direct case that the victim had been clothed when the offense occurred.
The defendant next argues that the trial court erred in admitting the testimony of the victim's neighbor because it "only relayed what other witnesses had told her." He contends that the cited testimony constituted hearsay and met none of the exceptions set forth in N.H. R. Ev. 801(d) (statements which are not hearsay). A review of the testimony, however, reveals that the only testimony elicited on direct was the fact that a statement was made, see State v. Belkner, 117 N.H. 462, 469 (1977) (statement is not hearsay if offered not to prove fact contained therein but only to show statement was made); it was not until cross-examination that any details of the victim's statement were disclosed. We note also that the defendant did not avail himself of the trial court's several offers to give a limiting instruction.
The defendant next contends that the trial court erred in denying his motion to dismiss at the close of the State's case; he argues that the State failed to prove that he touched the victim for sexual gratification. When reviewing the trial court's denial of a motion to dismiss, we view the evidence and reasonable inferences arising therefrom in the light most favorable to the State. State v. Pittera, 139 N.H. 257, 260 (1994). When the evidence is circumstantial, it must exclude all rational conclusions except guilt. State v. Littlefield, 152 N.H. 331, 350 (2005).
The State's case included the testimony of the defendant's wife who testified that she came home from shopping without calling and that the house was quiet. Her young son told her that the defendant and the victim were upstairs checking on the baby. When the wife went upstairs, she did not hear any noise. She found the defendant on her bed with the victim; the victim jumped, looked scared and said nothing happened. The defendant said that they were checking on the baby although the baby monitor was downstairs and the wife testified that she could not generally hear the baby from her bedroom. The victim testified that the defendant had grabbed her, put her on the bed, touched her on the vagina and told her not to tell his wife. When asked, she demonstrated that he used a rubbing motion. Given the evidence presented, we find no error in the trial court's ruling.
Citing the doctrine of verbal completeness, the defendant next argues that the trial court erred in excluding part of his interview with the investigating police officer. When applied to conversations, there are two requirements to trigger the doctrine: first, the statements must be part of the same conversation; and second, admission of only a portion would mislead the jury. State v. Douthart, 146 N.H. 445, 448 (2001). In this case, the portion of the interview statement admitted was not misleading; it contained the defendant's explanations for how he ended up on the bed with the victim. Moreover, the additional portion that he sought to admit concerned whether or not he might have inadvertently touched her; because this subject matter was not covered in the admitted portion of the interview, its exclusion was not error. See State v. Crosman, 125 N.H. 527, 531 (1984).
The defendant's final argument is that the trial court erred when it allowed the State to read a letter from his wife at the sentencing hearing because she was not a victim. He contends that the letter violated his right to confrontation under the State Constitution and his rights under the Sixth and Fourteenth Amendments of the United States Constitution. We have previously held that the right to confrontation does not apply to sentencing. See State v. Tufts, 136 N.H. 517, 521 (1992). In support of his argument under the Federal Constitution, the defendant cites Crawford v. Washington, 541 U.S. 36 (2004). Crawford, however, addressed the protections provided by the Confrontation Clause during trial. The trial court specifically stated that it would consider the letter only as an indication of the impact made upon the victim as a result of the one conviction for which it was imposing sentence. We find no error.
DALIANIS, DUGGAN and GALWAY, JJ., ...