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State v. Selke

Supreme Court of New Hampshire

February 22, 2013

State of New Hampshire
Theodore Selke,

The defendant, Theodore Selke, appeals his conviction for aggravated felonious sexual assault. He argues that the trial court erred in: (1) admitting evidence of prior uncharged crimes; and (2) limiting his cross-examination of the victim. We affirm.

The record before us includes the following evidence. The victim was born in 1992 in Illinois. She moved with her mother and brothers to Arizona when she was about eight years of age. Her mother met the defendant in 2001 while they were living in Arizona. The victim moved with her family and the defendant to New Hampshire in 2007. The defendant first began assaulting the victim while they were living in Arizona. The victim disclosed the assaults in November 2008 to her boyfriend, who was the defendant's son. In February 2009, she disclosed to a friend who agreed to go to the Derry Police Department with her to report the assaults. Following her interview, the police contacted the defendant and interviewed him. He was subsequently indicted on four counts of aggravated felonious sexual assault.

Prior to trial, the defendant filed several motions in limine. In the first, he requested permission to introduce materials from an investigative file provided by the Mesa, Arizona Police Department. In 2007, the victim's father reported to Arizona authorities that he had observed the victim sitting on the defendant's lap. When interviewed during the 2007 investigation, the victim denied that any inappropriate conduct had taken place. In another motion, the defendant sought to introduce evidence from an investigation conducted by the Mesa police in 2006, after the victim engaged in online sexualized communications with an adult male from Florida.

Another motion in limine sought to prevent the State from introducing evidence of uncharged sexual assaults committed by the defendant against the victim in Arizona. In its response, the State asked that all evidence related to the Arizona assaults be excluded, or, if the victim's statement to the Mesa police was admitted, that details of the Arizona assaults be admitted. Defense counsel clarified his position at the motions hearing, conceding that the victim could be allowed to testify that the assaults also took place in Arizona but that she should not be allowed to testify to the specific details of the assaults. The court granted the defendant's request to allow introduction of the victim's statements to Arizona authorities. The trial court advised that this ruling might open the door to otherwise inadmissible evidence to explain her 2007 statement but that it was unlikely to open the door to the details of the uncharged assaults.

At trial, the State did not refer to the victim's interview in Arizona in its opening statement. The defense observed in its opening that the State had not disclosed in its opening that the victim had been interviewed while living in Arizona and denied that the defendant had raped her. The State then called the victim's mother as its first witness and did not ask her questions about the assaults or investigations in Arizona. When defense counsel asked her on cross-examination about the 2007 visit by the victim's father, the State objected. In a bench colloquy, defense counsel stated that he wanted to ask about the father's 2007 report to police. The State responded, "Well, I mean if he wants to open the door." The court then stated, "All right. If you're going to, but that's up to you. Yes, you may do so." In continuing his questioning, defense counsel asked whether there had been a complete investigation into the allegations and whether the defendant had been cleared at its conclusion. The victim's mother responded in the affirmative to both questions.

At the beginning of the second day, the trial court advised that the testimony elicited on the first day had far exceeded the scope it had anticipated based on pre-trial discussions with counsel. The court then allowed the State to elicit testimony from the victim about the nature of the assaults as well as the threats the defendant had made to her if she disclosed the assaults.

Having reviewed the record before us, we conclude that the trial court's decision to allow questioning in this area is sustainable. See State v. Morrill, 154 N.H. 547, 550 (2006) (trial court ruling on admissibility of evidence will be affirmed absent unsustainable exercise of discretion). Although the defendant argues that his offer to stipulate to intent would bar admission of the challenged testimony under New Hampshire Rule of Evidence 404(b), his offer does not end our analysis. Defense counsel first elicited testimony that the defendant was cleared of allegations in 2007 after a complete investigation in Arizona, an investigation that included interviews with the victim and her mother. Accordingly, the State was properly allowed to counter the misleading advantage obtained by defense counsel by presenting testimony to explain the victim's report in Arizona. See State v. Wamala, 158 N.H. 583, 589-90 (2009). The violent nature of the assaults supported the victim's explanation of her initial denial of the assaults and continued delay in reporting them.

The defendant also argues that the trial court erred in limiting his cross-examination of the victim concerning the contents of a stalking petition that she filed against him. We afford trial courts broad discretion to determine the scope of cross-examination or the admissibility of evidence. State v. Oakes, 161 N.H. 270, 280 (2010). We review challenges to a trial court's evidentiary rulings under our unsustainable exercise of discretion standard and will reverse only if the rulings are clearly untenable or unreasonable to the prejudice of the defendant's case. Id.

The defendant argues that the limitation imposed on his cross-examination of the victim impaired his ability to attack her credibility with respect to her testimony that she was afraid to disclose the years of sexual assaults because of the defendant's threats. His specific argument is that "in a forum where [the victim] had to swear to the contents of her petition and then testify under oath, and at a point in time after she was out of [the defendant's] household, the only threat that she alleged was of an exceedingly innocuous and even frivolous character." A review of the record reveals the following cross-examination of the victim about the contents of the petition:

Defense counsel: Now you also swore in the petition that [the defendant] threatened you, right?
Victim: I don't remember that, but
Defense counsel: You explained to the judge that he threatened not to physically harm you, but to inform your school that you had treated his nephew unfairly, right?
Victim: Yes, but - - -
Defense counsel: And his nephew has Asperger's ...

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