The defendant, Rodric R. Reinholz, appeals his convictions of aggravated felonious sexual assault, see RSA 632-A:2, I(l) (Supp. 2013); RSA 632-A:2, III (Supp. 2013), and felonious sexual assault, see RSA 632-A:3, III (Supp. 2013). He argues that the trial court erred in denying his request to allow the video of his police interview into the jury room during deliberations. In the alternative, he argues that the court erred in admitting the victim's affidavit without admitting the video. We reverse and remand.
The record shows that prior to trial the State moved in limine to play a videotape of the defendant's police interview for the jury. The defendant agreed that the video could be shown at trial, and the parties were largely able to agree on which portions of the video were admissible. The trial court resolved the remaining disputes by written order after a hearing.
Prior to the second day of trial, before the State played the video to the jury, the defendant argued that the videotape itself "should be entered as a full exhibit so the jury can review it should they find it necessary." The State responded that it was "leaning towards not" seeking to introduce the video as a tangible exhibit, reasoning that if it did so, the jury would have the video of the defendant's interview in the jury room during deliberations without the victim's trial testimony. The court reserved ruling, instructing the jury to "pay careful attention to what you see on the video" because "[i]t's evidence in the case." After the State played the video, it sought to introduce an exhibit consisting of the victim's domestic violence petition, which she completed shortly before the defendant's interview, along with the domestic violence temporary order of protection. The State argued that the exhibit, which the parties refer to as the victim's "affidavit, " placed the defendant's interview "in context, " given that during the interview, the defendant referred to statements in the affidavit that he admitted were true and to other statements in the affidavit that he denied. The defendant did not object to the admission of the protective order but objected on hearsay grounds to the portions of the exhibit containing the victim's allegations against the defendant. The trial court ruled that the exhibit was not hearsay because it was not being introduced for the truth of the statements contained therein. The court also ruled that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice "in view of the fact that the Defendant was using this exhibit extensively in the discussion that just occurred with [the trooper]."
After the State rested, the defendant again moved to have the court admit the video as a full exhibit, just "as a document would be." The trial court denied the motion, ruling:
In my view, the video is the same as testimony presented in court for the jury's consideration. . . . [J]ust as the jury was not entitled to a transcript of a witness's testimony to review during deliberations or video testimony of a doctor or other expert who normally testifies at trial, the video of the Defendant here should not go to the jury. It invites the jury to give undue weight and influence of the testimony of one witness over other witnesses.
All of the trial exhibits, including the victim's affidavit, were provided to the jury for deliberations, but not the videotape. During deliberations, the jury asked the court, "Can we have a copy of the transcript of the Defendant's interview?" In the subsequent colloquy with the court, defense counsel stated that he did not believe that the jury was entitled to the transcript, but he requested that the jury be provided with the video, renewing his request that it be admitted as an exhibit and asserting that the jurors "want to review that exhibit, which I believe they're entitled to." The trial court asked, "How is that any different than somebody testifying in court?" Defense counsel responded, "This is different . . . "[N]obody was on the witness stand. It was an interview . . . . It's not the same thing as testifying at trial." The trial court denied the request. It also denied the jurors' request for a transcript of the interview, instructing them that they "must use [their] own independent recollection of the testimony, consistent with the instructions that the Court gave [them]."
We agree with the defendant that the videotape was, "for all practical purposes, admitted, " and that the trial court erred in denying his request to provide the video to the jury during deliberations based upon its characterization of the video as testimonial evidence. In State v. Monroe, the trial court admitted the defendant's audiotaped confessions into evidence, and the jury replayed the tapes numerous times during deliberations. State v. Monroe, 146 N.H. 15, 15 (2001). In affirming the defendant's convictions, we held that "we do not view a defendant's taped confession as testimonial evidence, but rather as a tangible exhibit which is non-testimonial in character." Id. at 17. Similarly, in State v. Dugas, in which we affirmed the defendant's arson conviction, the trial court admitted into evidence audiotapes of the defendant's police interviews and videotapes from the store's surveillance camera recorded prior to the fire, all of which were submitted to the jury for review during deliberations. State v. Dugas, 147 N.H. 62, 72 (2001). In Dugas, the defendant argued on appeal that the videotapes and audiotapes were part of his testimony, and that the trial court should have instructed the jury to rely only upon their own recollections of the "taped testimony" during deliberations. Id. Citing Monroe for the proposition that the tapes were not testimonial but rather tangible exhibits, we held that the trial court did not err in submitting them to the jury to review during deliberations. See id. Indeed, as the trial court's above-quoted ruling on the defendant's motion to admit the video demonstrates, the court's conclusion that allowing the video to go to the jury would invite the jury to give undue weight to "the testimony of one witness over other witnesses" was specifically premised upon its mistaken view that "the video is the same as testimony presented in court for the jury's consideration." In this case, we cannot conclude from the record that the trial court would have made the same decision if it had understood that the videotape was a tangible exhibit. Nor can we conclude that the defendant was not prejudiced by the court's decision. See State v. Gordon, 161 N.H. 410, 416 (2011) ("An error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error."). Accordingly, we reverse the convictions and remand.
Reversed and remanded.
HICKS, LYNN and BASSETT, JJ., concurred. ...