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State v. Towle

Supreme Court of New Hampshire

January 29, 2015

The State of New Hampshire
v.
Robert Towle

Argued September 11, 2014

Page 680

Coos.

Joseph A. Foster, attorney general ( Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

OPINION

Page 681

Hicks, J.

After a jury trial in Superior Court ( Bornstein, J.), the defendant, Robert Towle, was convicted on four counts of aggravated felonious sexual assault for engaging in fellatio and anal penetration with his minor son, and on four counts of criminal liability for the conduct of another for encouraging his wife and another adult to engage in sexual acts with his minor son. See State v. Towle, 162 N.H. 799, 800, 35 A.3d 490 (2011); see also RSA 632-A:2 (2007) (amended 2008, 2012, & 2014); RSA 632-A:3 (Supp. 2003) (amended 2006, 2008, 2010, & 2014); RSA 626:8 (2007). The trial court sentenced the defendant to serve 57 to 114 years in prison and ordered the defendant to have no contact with the victim, the reporting witness, and his other minor son. On appeal, the defendant raises two challenges to his convictions and one challenge to his sentence. The defendant argues that the trial court erred by: (1) permitting the State to use prior statements to refresh the victim's recollection when the victim had not demonstrated an inability to recall the relevant event; and (2) permitting the State to introduce testimony referring to inadmissible photographic evidence. In addition, the defendant argues that the trial court erred by imposing the no-contact order.

Page 682

We affirm the convictions and reverse the no-contact order.

The defendant first argues that the trial court erred by permitting the State to use prior statements to refresh the victim's recollection of the final sexual assault that occurred in early 2006, after the victim had been removed from the defendant's custody. The defendant asserts that the victim testified unequivocally that the defendant had not sexually assaulted him on that occasion and was neither confused nor uncertain. Therefore, he argues, the State had no justification for refreshing his recollection.

The record reflects the following exchange on direct examination:

[State]: And did anything happen at that time when your father [was] there?
[Victim]: Well, I had showed up. And he was in the computer room with the baby. I went back there. And we were chit-chatting. He was doing whatever on the computer and drinking a beer. And then he had asked me to take my pants off. And I was like, really? You know, we're already in this situation and you're right here asking me to take my pants off. And I just had a serious problem with that.
[State]: And then what ended up happening?
[Victim]: To the best of my knowledge, I just decided against it. I was really uncomfortable with the whole situation. I didn't want it to happen, period. You know? It was I'm here to see my brother, not to engage with you. You know? It's unnecessary.
. ...
[State]: [D]id you argue with him or what?
[Victim]: No, I don't believe there was any real arguing. Just, you know, I felt my time being there was over and I believe I left.
. ...
[State]: And so did anything happen between you and your father at that location?
[Victim]: No, because I believe I made sure it didn't.

The defendant, who represented himself at trial, revisited the incident during his cross-examination of the victim:

[Defendant]: [The State] asked you -- he was trying to ask you, you know, if you were assaulted by me at the Reed's ...

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