The defendant, Shayne Beardsley, appeals his convictions for aggravated felonious sexual assault. He argues that the trial court erred in precluding him from adducing certain evidence to impeach the victim's mother. We affirm.
The record before us includes the following evidence. The defendant committed the assaults in 2002, when the victim was twelve years old. The victim first disclosed the assaults in October 2010 to the defendant's sister; the victim told her mother in December 2010.
At trial, the victim's mother testified that she called the defendant on the day that the victim disclosed the assaults to her and that the defendant told her that the victim "loves me. She wants me. She wants to marry me . . . ." The victim's mother also testified that the defendant subsequently called her house on two occasions during which he said that he was not going to go to jail for the assaults, and he threatened to kill the victim. The victim's mother was asked on cross-examination by defense counsel: "But [the defendant] never actually did call the house, did he?" She responded: "I said he did call the house. I don't mean to be rude, but that is what he did, he called the house." Upon further questioning, she also denied telling the victim that the defendant had never called the house.
The defendant sought to call the victim as a rebuttal witness to elicit testimony that the victim told the defendant's sister that the victim's mother had lied about the telephone calls "and that the Defendant never called the house." At a colloquy at the bench, defense counsel admitted that she anticipated that, if she were to call the victim to testify, the victim would deny that she told the defendant's sister that the victim's mother had lied about the telephone calls. Defense counsel further argued that, if the victim denied having made such a statement to the defendant's sister, the defense should be allowed to call the defendant's sister to impeach the mother's testimony that the telephone calls took place.
The trial court ruled, inter alia: "I certainly would let you put [the victim] on to ask her, did your mother ever lie - - ever say I lied about the telephone calls. That would be, to me, direct evidence for impeachment purposes, but now we're one step further along in the hearsay totem pole, because this is not a twice __ no, it's double layers of hearsay, and in my assessment of this case, and assessment of the Rules of Evidence, it simply isn't going to add __ it's too extrinsic, it's too collateral to the issues that are before [the] Court." The defendant did not recall the victim to testify.
We review a trial court's ruling on the admissibility of evidence under our unsustainable exercise of discretion standard. State v. Letendre, 161 N.H. 370, 372 (2011). To establish an unsustainable exercise of discretion, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. at 372-73. In this case, the defendant argues that because he anticipated that neither the victim nor her mother would admit that the victim's mother had lied about the telephone calls, he "needed to call" his sister to "expose the lie."
Given the defendant's failure to recall the victim, his claim of prejudicial error is too speculative for appellate adjudication. See, e.g., State v. Atkins, 145 N.H. 256, 258 (2000). Without knowing how the victim would have responded had she been asked whether she told the defendant's sister that her mother had lied about the telephone calls, we cannot determine whether the defendant was prejudiced by the trial court's ruling. See State v. Croft, 142 N.H. 76, 79 (1997) (specificity of offers of proof is irrelevant because trial testimony can differ from proffers for any number of reasons). Had the victim admitted making the statement and offered an explanation for doing so, the defendant's current claim of error might well have been foreclosed. Accordingly, we decline to reverse the defendant's conviction based upon his anticipation that, if he had recalled the victim, she would have denied making the statement to his sister.
HICKS, CONBOY and BASSETT, JJ., ...