The defendant, Paul Frederick, appeals his convictions for aggravated felonious sexual assault. He argues that the trial court erred in denying his motion in limine, which requested exclusion of evidence that he had trouble maintaining an erection when he used alcohol or drugs. We affirm.
We briefly set forth the facts in this case. The defendant began dating the victim's mother in 2003; they dated for at least three years and had a child together. The defendant assaulted the victim in 2009 when she stayed at his apartment overnight. Prior to trial, the defendant filed a motion in limine seeking, inter alia, to exclude testimony by the victim's mother that the defendant "has trouble maintaining an erection when under the influence of drugs or alcohol." The court expressed reservations about whether this statement should be reviewed under a Rule 404(b) analysis, but concluded that if Rule 404(b) applied, the statement was relevant for a purpose other than proving the defendant's character or disposition and that there was clear proof that the defendant committed the act. The court reserved judgment on whether the probative value of the statement was not substantially outweighed by the danger of unfair prejudice until the victim testified. After the victim completed her testimony, the trial court ruled that the evidence was admissible, subject to a limiting instruction.
We review the trial court's ruling on the admissibility of evidence under our unsustainable exercise of discretion standard; we will reverse only if it was clearly untenable or unreasonable to the prejudice of the defendant's case. State v. Mendola, 160 N.H. 550, 558 (2010). Rule 404 (b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." We have held that before a trial court admits evidence under Rule 404(b), it must determine that: (1) the evidence is relevant for a purpose other than character or disposition; (2) there is clear proof that the defendant committed the prior act; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant. State v. Belonga, 163 N.H. 343, 359 (2012).
On appeal, the defendant limits his challenge of error to the trial court's conclusion that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to him. In support of this challenge, he argues both that the evidence was cumulative and that its value was "minimal" because the victim's mother's observations of the defendant's inability to maintain an erection when he consumed alcohol or drugs occurred "some years before [the victim's] observations during the assault."
The State argues that that portion of the defendant's argument, "in essence, that the evidence in this case was stale, " is not preserved. We agree. As the defendant aptly observes, the purpose of our preservation rule is to make a trial court aware of the substance of an objection and thus to give it an opportunity to correct the error, if any. See State v. Howe, 145 N.H. 41, 46 (2000). The defendant concedes that "trial counsel did not specifically articulate the passage of time between the [victim's mother's] observations and [the victim's] observations." He contends, however, that "[i]mplicit in the defense's objection was a denial of the probative strength of the evidence." Given the lack of any reference by the defendant to the potential staleness of this evidence during his argument on his motion in limine, we conclude that this argument has not been preserved for our review. We see no indication that the trial court was aware of this specific issue. Moreover, had the temporality issue been raised, the trial court could have considered whether it was relevant in its decision on admissibility and the State could have considered whether to address it by presenting additional testimony. Instead, we are left to speculate as to the period within which the victim's mother made her observations.
We turn then to whether the evidence elicited was cumulative. We agree with the State that, in this case, where the five counts of sexual assault included both penile and digital penetration, the victim's mother's testimony was not cumulative of the evidence found on the victim's clothing. Rather, it was specifically corroborative of the victim's testimony concerning her observations as the defendant attempted to, and ultimately succeeded in, penetrating her with his penis. Accordingly, it is probative of the charged conduct.
The victim's mother presented very limited testimony. Her only reference to the defendant's drug use was in response to the State's question: "Do you remember telling Detective Tremblay that the Defendant has trouble maintaining an erection when he's under the influence of drugs or alcohol?" Her response: "He does and also due to back surgery." At the time of this testimony, the victim had already testified that the defendant had used cocaine.
Based upon the record before us we conclude that the trial court's decision to admit the limited testimony of the victim's mother was sustainable.
HICKS, LYNN, and BASSETT, JJ., ...