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State v. Tower

Supreme Court of New Hampshire

August 28, 2007

State of New Hampshire
v.
Lucian Tower

UNPUBLISHED OPINION

The defendant appeals his convictions on four counts of aggravated felonious sexual assault. He argues that the trial court erred in admitting: (1) testimony of his prior uncharged out-of-state sexual assaults against the victim; and (2) testimony that the victim saw him view naked women on the family computer and attempted to videotape her engaging in sexual acts. We affirm.

Absent an unsustainable exercise of discretion, we will affirm the trial court's decision concerning the admissibility of evidence. State v. Wall, 154 N.H. 237, 242-43 (2006).

The defendant first argues that the trial court erred in admitting evidence of his prior uncharged out-of-state assaults against the minor victim. A review of the record indicates that the challenged testimony was first elicited by defense counsel on cross-examination of the victim in response to questions addressing her inability to remember details of the charged assaults. Thus, this case is distinguishable from State v. Glodgett, 144 N.H. 687 (2000), and State v. Montgomery, 144 N.H. 205 (1999), cases cited by the defendant in support of his argument, wherein the State elicited evidence of uncharged conduct in its case in chief. As we stated in Montgomery, "Had the defendant, for example, "opened the door" by directly challenging [the minor victim's] inability to recall particular detail about the charged assaults, the State may well have been able to use the uncharged sexual assaults to rehabilitate its witnesses." Id. at 209. Given the facts of this case, the trial court's ruling was sustainable. See State v. Morrill, 154 N.H. 547, 549-50 (2006) (otherwise inadmissible evidence admissible to counter misleading advantage under doctrine of specific contradiction).

We agree with the State that the defendant's arguments concerning the admissibility of testimony that the victim saw him view naked women on the family computer and attempted to videotape her engaging in sexual acts have not been preserved for our review. See State v. Blackmer, 149 N.H. 47, 48 (2003) (general rule in this jurisdiction is that contemporaneous and specific objection is required to preserve issue for appellate review). To the extent that the defendant requests review under our plain error rule, see Sup. Ct. R. 16-A, we decline to do so in this case given the incomplete record before us. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (burden on appealing party to provide record sufficient to conduct appellate review). Absent any record of the trial court's pre-trial ruling, we are unable to discern or review its basis.

Affirmed.

DALIANIS, DUGGAN and HICKS, JJ, ...


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