The defendant, Paul Harris, appeals his conviction for endangering the welfare of a child. He argues that the trial court erred in excluding evidence of the victim's motive to fabricate, in violation of his state and federal constitutional rights to confrontation and due process. We affirm.
We first consider the defendant's arguments under the State Constitution, referring to federal decisions for guidance only. State v. Spaulding, 147 N.H. 583, 588 (2002). The right to cross-examine adverse witnesses in criminal cases is fundamental; cross-examination provides the defendant a right to meet the witnesses against him face-to face and be fully heard in his defense. See id.; N.H. CONST. pt. I, art. 15. The trial court, however, has broad discretion to limit the areas of cross-examination on matters of improper inquiry. Spaulding, 147 N.H. at 588. The admissibility of prior sexual conduct is governed by the rape shield law, which generally prohibits inquiry into prior consensual sexual activity between a victim of sexual assault and persons other than the defendant. Id. at 589; see RSA 632-A:6, II (2007); N.H. R. Ev. 412. Where a defendant is able to demonstrate that due process or his right of confrontation requires the admission of evidence of a victim's prior sexual conduct, the rape shield law may not apply. Spaulding, 147 N.H. at 589. In cases where such evidence is relevant, it is admissible only where the trial court determines that its probative value outweighs its prejudicial effect on the victim. Id. We review the trial court's decision limiting the scope of cross-examination under our unsustainable exercise of discretion standard. Id.
The defendant argues that evidence of the victim's prior consensual sexual activity was relevant to establish her motive to fabricate: (1) to deflect attention from her own sexual activity; and/or (2) to support her godmother in her separation from her husband, the defendant. In his motion to admit her prior sexual activity, the defendant argued that the victim made accusations against him "to deflect attention from her sexual activity with [two brothers]." The Trial Court (Lynn, C.J.) deferred ruling on the motion until after the victim testified at trial. Immediately before trial began, the Court (Colburn, J.) heard additional arguments and denied the motion, finding that it did not make sense that the victim would lie "to get out of trouble with her mother" and that there was insufficient proof "to make it a theory."
The defendant argues that "[e]vidence that [the victim's] allegations were made after an unknown 'issue' with her mother had arisen resulting in her being sent to her [godmother's] home was not a comparable substitute for the excluded evidence." In support of this argument, the defendant contends that the significance of this motive evidence was diminished because he was unable to address the victim's "inappropriate sexual activity." Having reviewed the record, we conclude that the trial court's ruling was sustainable. The jury was aware that the trouble with her mother resulted in the victim being sent to stay with her godmother; therefore, the jury knew that the issue was significant. Given this evidence, there was little, if any, relevance to the nature of the issue giving rise to the victim's "banishment." Moreover, any potential relevance was outweighed by the danger of unfair prejudice caused by the jury learning of the victim's consensual acts with the two brothers.
We turn then to the defendant's second theory of the victim's motive to fabricate. The record reveals that the defendant cross-examined the victim about "big problems in the defendant's marriage" and argued in closing that she made the accusation when her godmother "was specifically questioning her about Paul, questioning her right at the time that [they] were going through a very acrimonious separation of their marriage." Given the permitted scope of cross-examination, the defendant's second claim of error fails.
DALIANIS, C. J., and HICKS and CONBOY, JJ., ...