The defendant, Jean Payoute, appeals his conviction, following a jury trial in superior court, on charges of prostitution, as principal or accomplice. See RSA 645:2 (2007 & Supp. 2013). The defendant was convicted of acting in concert with or being aided by Wayne Miller to transport and facilitate K.S., a minor, to perform or engage in sexual contact, see RSA 632-A:1, IV (Supp. 2013), or sexual penetration, see RSA 632-A:1, V (Supp. 2013), in return for consideration. The defendant contends that the trial court erred by: (1) allowing K.S.'s mother to testify that K.S. was "afraid that if she does testify that somebody's going to come after her and kill her or really hurt her badly"; (2) admitting evidence that the defendant had placed advertisements on the web site where advertisements involving K.S. appeared; and (3) denying his motion to dismiss for insufficient evidence. We affirm.
We review challenges to a trial court's evidentiary rulings under our unsustainable exercise of discretion standard and reverse only if the rulings are clearly untenable or unreasonable to the prejudice of a party's case. State v. Brooks, 164 N.H. 272, 283 (2012). The defendant first challenges the admission of K.S.'s statement under New Hampshire Rule of Evidence 803(3), which provides that hearsay may be admitted if it is "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed." To be admissible under this exception, the declaration must concern the mental state of the declarant and cannot be used to establish the conduct of another. MacDonald v. Bishop, 145 N.H. 442, 445 (2000).
In this case, the defendant concedes that K.S.'s statement that she was afraid was admissible under Rule 803(3), but contends that the rest of her statement was not. However, the trial court could reasonably have found that the rest of her statement was admissible for two reasons: (1) it was not offered to prove the conduct of another; and (2) it was necessary to describe K.S.'s state of mind accurately.
The trial court could have concluded that K.S.'s statement that she was afraid "if she does testify that somebody's going to come after her and kill her or really hurt her badly" was not offered to prove that someone would hurt her. It did not include a factual statement, such as that the defendant would hurt her. Instead, it was closely limited to the nature of her fear. Cf. MacDonald, 145 N.H. at 445 (decedent's statement of intent offered to prove what defendant told him).
In addition, the trial court could have found that the rest of her statement was necessary to articulate her state of mind accurately. The defendant suggested, in his opening statement, that K.S. was absent because she was culpable. Thus, if the jury had heard only that she was afraid to testify, it might have inferred that was the reason. This is comparable to the situation in State v. Legere, 157 N.H. 746, 764 (2008), where we rejected the defendant's argument that even if a general statement of the declarant's "concern" were admissible, the statement that he was "concerned for his safety" was not. In that case, we reasoned that merely stating that the declarant was "concerned" did not explain his state of mind because concern for one's safety is not the same as, for example, concern about the fate of another. Id. at 764-65.
Similarly, in this case K.S.'s statement that she was afraid to testify, where the jury might infer that her fear arose from her culpability, is not the same as the statement that she was afraid to testify because she might be hurt as a result. Therefore, the rest of the statement was necessary to establish her state of mind accurately. The defendant argues that this portion of her statement lacks the indicia of reliability associated with state-of-mind statements. We disagree because, unlike a statement of memory or belief, which is excluded by the rule, the reason for K.S.'s fear was not offered to prove past facts, but rather to establish her then-present state of mind.
The defendant next argues that, even if the statement falls within Rule 803(3), it was not relevant under Rules 401 and 402 and that its probative value was substantially outweighed by its prejudicial impact, see N.H. R. Ev. 403. These arguments are raised as plain error. See Sup. Ct. R. 16-A. Under Rule 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Under Rule 403, evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in this case. State v. Town, 163 N.H. 790, 796 (2012). Unfair prejudice is not, of course, a mere detriment to a defendant from the tendency of the evidence to prove his guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial. Id.
The defendant argues that "[t]he explanation for K.S.'s absence from trial – that she feared she would be harmed if she testified – was not relevant to whether [the defendant] committed the charged offenses." However, the trial court could have found that K.S.'s statement was relevant because the defendant raised the possibility that she failed to testify because she was culpable. Her statement offered an alternative explanation, thereby tending to make his guilt more probable by diminishing his proposed explanation for her absence. The defendant argues that "[e]vidence of a witness's fear of the defendant is relevant only in limited instances." However, this statement did not evince K.S.'s fear of the defendant; it made no reference to the defendant. Thus, it could not have instigated an emotional response from the jury against him. Therefore, the admission of K.S.'s statement was not error, plain or otherwise.
The defendant next contests the admission of evidence that he purchased numerous advertisements, in the year prior to the charged period, on the web site where the advertisements involving K.S. appeared. He contends that these advertisements were not relevant because (1) they did not involve K.S., and (2) they were purchased prior to the period in which the defendant was accused of engaging in prostitution.
Although the advertisements were not directly connected to K.S., they were directly connected to the defendant. Cf. State v. Ranger, 142 N.H. 140, 142 (1997) (stating that evidence may not be relevant if State cannot connect it to the defendant). Part of his defense was that someone else could have used his name to post the subsequent advertisements concerning K.S. Thus, the trial court could have concluded that evidence showing his familiarity with the web site tended to make the fact that he posted the advertisements of K.S. more probable. The earlier advertisements were not so distant in time as to negate their implication that the defendant was familiar with the web site and knew how to use it.
The defendant also argues that "[t]he prejudicial impact of the evidence . . . outweighed its probative value." The State did not establish the content of the earlier advertisements. We cannot conclude that this evidence was likely to inflame the jury's passion, thereby causing it to base its decision on something other than the established propositions in this case. See Town, 163 N.H. at 796. Therefore, the trial court's decision to admit this evidence was not clearly untenable or unreasonable. See Brooks, 164 N.H. at 283.
Finally, the defendant contends that the trial court erred by denying his motion to dismiss. Although the defendant's statement to police constitutes direct evidence, we assume, without deciding, that the evidence as to one or more of the elements of the charged offenses is solely circumstantial. Therefore, to prevail upon his challenge to the sufficiency of the evidence, the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt. State v. Germain, 165 N.H. __, __, 79 A.3d 1025, 1034 (2013). The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded. Id. Our role is not to determine whether another possible hypothesis has been suggested by the defendant that could explain the events in an exculpatory fashion. Id. Rather, we evaluate the evidence in the light most favorable to the prosecution and determine whether the alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id. Questions about the reasonableness of theories of innocence are for the jury to decide in cases predicated upon circumstantial evidence. Id. at __, 79 A.3d at 1035.
In this case, the defendant argues that "another rational conclusion consistent with innocence can be drawn from the State's evidence, i.e., Miller acted alone and used [the defendant] as a scapegoat." The following evidence could have supported the jury's conclusion that this hypothesis was not reasonable and, therefore, did not create reasonable doubt in light of all the evidence presented: The motel clerk described the man who paid for K.S.'s room as having braids. The defendant wore braids, and Miller testified that he did not. The records of a telephone registered to the defendant's mother evidenced approximately twenty calls a day received from or made to K.S.'s telephone. The defendant's name and address were connected to advertisements of K.S.'s services. After being arrested, the defendant told police, "[a]ll you can prove is that I knew her." There was no evidence of any relationship between K.S. and Miller.
Given the totality of the evidence, we conclude that the defendant has not met his burden to demonstrate that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt ...