Argued: May 11, 2016
A. Foster, attorney general (Sean P. Gill, attorney, on the
brief and orally), for the State.
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the defendant.
defendant, David Aldrich, appeals his conviction, following a
jury trial in Superior Court (MacLeod, J.), on two
counts of aggravated felonious sexual assault. See
RSA 632-A:2, I(j) (2007). The defendant challenges the trial
court's ruling preventing him from cross-examining the
victim about three of four allegedly false allegations of
sexual assault that she had made against other men. He also
challenges the court's failure to disclose material
following an in camera review. We affirm.
record supports the following facts. The defendant was
charged with nine counts of aggravated felonious sexual
assault and three counts of incest, based upon events
occurring between 1995 and 2002. The three counts of incest
and seven of the nine counts of aggravated felonious sexual
assault were dismissed. The remaining two counts of
aggravated felonious sexual assault concerned alleged conduct
from July 1998 to July 1999 and July 2000 to May 2001, when
the victim was older than thirteen but younger than sixteen.
defendant filed a motion in limine requesting, among
other things, permission to cross-examine the victim about
prior allegedly false allegations of sexual assault. At a
pretrial motions hearing, the defendant proffered that, in
several interviews with police, the victim made allegations
of sexual assault or other misconduct against A.A., V.A.,
G.B., and M.G. According to the defendant, "[e]ach man
has denied these false allegations, " and, "at
least one witness, [E.W.], contradicts [the victim's]
allegations of sexual assault by [G.B.]." The defendant
argued that New Hampshire Rule of Evidence 608(b) and his
state and federal constitutional rights to confrontation
entitled him to this cross-examination. See U.S.
CONST. amends. VI, XIV; N.H. CONST. pt. I, art. 15.
State argued that "the probative value of these
'false accusations' is outweighed by the danger of
misleading the jury or in the alternative, confusion of the
issues, " and that "the defendant has failed to
demonstrate that the prior allegations were indeed
false." The State explained that the victim never
recanted the allegations and there was no evidence before the
court showing that the allegations were false.
trial court granted the defendant's motion in part and
denied it in part. The court allowed the defendant to
cross-examine the victim about her allegations against A.A.,
stating that "such cross-examination is sufficiently
probative given the unique facts of this case and not
outweighed by substantial prejudice, " and that
"[t]his is particularly so given the undisputed fact
that the [victim] falsely testified in a prior case regarding
[A.A.]." However, the court denied the defendant's
request to cross-examine the victim about her allegations
against V.A., G.B., and M.G., ruling that "[t]he factors
set forth in [State v. Miller, 155 N.H. 246 (2007)]
weigh against permitting such cross-examination."
appeal, the defendant argues that the court misapplied New
Hampshire Rules of Evidence 608(b) and 403 and violated his
state and federal constitutional rights to confrontation.
See U.S. CONST. amends. VI, XIV; N.H. CONST. pt. I,
first hold that the trial court correctly applied the
evidentiary rules. A trial court has broad discretion to
determine the scope of cross-examination or the admissibility
of evidence, and we will not upset its ruling absent an
unsustainable exercise of discretion. State v.
Kornbrekke, 156 N.H. 821, 823-24 (2008). To prevail
under this standard, the defendant must demonstrate that the
trial court's decision was clearly untenable or
unreasonable to the prejudice of his case. Id. at
Hampshire Rule of Evidence 608(b) provides, in pertinent
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness'
credibility, other than conviction of crime as provided in
Rule § 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into
on cross examination of the witness (1) concerning the
witness' character for truthfulness or untruthfulness . .
this rule, we consider whether the trial court accurately
gauged the probative value of the defendant's proposed
line of cross-examination. See Kornbrekke, ...