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State v. Smith

Supreme Court of New Hampshire

April 1, 2013

State of New Hampshire
v.
Scott Smith

The defendant, Scott Smith, appeals his convictions for aggravated felonious sexual assault. He argues that the trial court erred in: (1) admitting testimony that upon hearing the victim's allegations, a police officer instructed her and her mother to get a restraining order; and (2) prohibiting the defendant from cross-examining the victim concerning specific instances of untruthfulness regarding sexual activity. We affirm.

The record includes the following evidence. The defendant began assaulting the victim in 2001, when the victim was approximately nine years old. She first disclosed the assaults to a friend in 2002. She spoke to the police and the New Hampshire Division for Children, Youth and Families and was examined by her pediatrician. Her mother later persuaded her to recant the allegations. After the investigation was closed, the defendant resumed his assaults of the victim, and married the victim's mother. In 2008, the victim again reported the assaults to the police. When an officer came to the house, the victim and her mother met with him. Both testified at trial that the officer advised them, inter alia, that they should go to court the next day to get a restraining order against the defendant.

We turn first to the defendant's argument that the trial court erred in admitting evidence that a police officer instructed the victim and her mother to get a restraining order. We review a trial court's ruling on the admissibility of evidence under our unsustainable exercise of discretion standard and will reverse only if the ruling is clearly untenable or unreasonable to the prejudice of the defendant. State v. Brooks, 164 N.H. 272, 283 (2012).

At trial, the defendant objected on the basis of hearsay when the State asked the victim whether the police officer who came to their home in 2008 had given the victim and her mother any instructions. Accordingly, he has not preserved for appellate review his assertion that the testimony was irrelevant. See State v. Blackmer, 149 N.H. 47, 48 (2003) (general rule in this jurisdiction is that contemporaneous and specific objection must be made to preserve issue for appellate review). Even if we were to assume that the issue of relevancy is properly before this court, we note that, in his opening, defense counsel argued that the allegations were fabricated by the victim and her mother to get the defendant "out of the house that mommy and kid didn't want in the house anymore." Accordingly, as the State observes in its brief, the challenged evidence was relevant to rebut the assertion that the victim had a planned course of action when she reported the assaults to the police.

Nor do we agree with the defendant's trial counsel that the testimony was inadmissible hearsay. Before the victim was permitted to respond to the State's question, the trial court instructed the jury as follows: "Ladies and gentlemen, you are going to hear some testimony about what the witness will testify a police officer said. That testimony is not offered for the truth of the matter but for the effect on the witness." The testimony then continued:

State: You had spoken to the police officer that night?
Witness: Yes.
State: And your mom did, as well?
Witness: Yes.
State: Did that police officer give you two some instructions?
Witness: He told us that morning, the following day, to go to the court and to get a restraining order against Scott. And then we were to go back to the Northfield PD to speak with an officer, Officer Jen Adams.

We turn then to the defendant's argument on appeal that the testimony impermissibly bolstered the credibility of the witness. We will assume without deciding that the defendant's trial counsel made clear to the trial court that this was a basis of his objection. We disagree, however, with appellate counsel's assertion that testimony about the instructions given by a police officer constituted a comment on the victim's credibility, and that State v. MacDonald, 163 N.H. 115 (2011), supports his argument. Indeed, the record reflects that the victim did not give a formal statement until "some days later." Rather than suggesting that the police officer had assessed the credibility of the victim's allegations, the testimony in this case, offered through the victim, related the steps which the police officer indicated should be taken after she made her initial report that the defendant had assaulted her. See, e.g., State v. Kulas, 145 N.H. 246, 248-49 (2000).

The defendant also argues that the trial court erred in prohibiting him from cross-examining the victim concerning specific instances of her untruthfulness regarding her sexual activity. We have held that the due process and confrontation rights of a defendant may require admission of evidence that would otherwise be inadmissible under the rape shield law, RSA 632-A:6 (2007). See State v. Dean, 129 N.H. 744, 748 (1987); see also N.H. R. Ev. 412.

Prior to trial, the defendant filed a motion in limine seeking to admit evidence that the victim had lied to a former boyfriend about her sexual activity with others, including the boyfriend's co-worker. In his motion, the defendant argued that he did not seek to adduce evidence about "the specific instances of [the victim's] sexual activity, but rather the extent to which she was untruthful about them." We note that to establish that the ...


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