Argued: October 12, 2017
J. MacDonald, attorney general (Sean R. Locke, 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.
defendant, Shawn Plantamuro, appeals his convictions,
following a jury trial, on two counts of aggravated felonious
sexual assault, see RSA 632-A:2, I(1), II (2016),
one count of felonious sexual assault, see RSA
632-A:3, III (2016), and one count of felony indecent
exposure and lewdness, see RSA 645:1, II(a) (Supp.
2014) (amended 2015). On appeal, he argues that the Superior
Court (Houran, J.) erred by: (1) excluding
"evidence about the circumstances of" the
victim's disclosure of the assaults to her mother; and
(2) prohibiting the defendant's ex-wife from testifying
that he "is sexually attracted to women, not to
children." We affirm.
record reflects the following facts. In May 2016, the
defendant was convicted of sexually abusing the victim, who
was born in 2007. At the time of the abuse, which occurred
between 2012 and 2014, the victim and her mother lived in the
same neighborhood as the defendant. The victim would often go
to the defendant's house to visit him and his mother. The
victim testified that the assaults took place in the
defendant's bedroom, which was, essentially, a porch
converted into a bedroom. The victim testified that the
defendant showed her videos in which "[r]eal
people" were "naked and . . . having sex"; she
also testified that the defendant told her that he was
"going to do this to [her] one day." According to
the victim, the defendant subsequently engaged in sexual
activity with her and masturbated in front of her. She
testified that this activity occurred on four occasions.
victim and her mother moved away from the defendant's
neighborhood in early 2014. On June 15, 2014, the victim
disclosed the defendant's behavior to her mother. The
jury did not learn the circumstances or content of this
disclosure, which are described below, because the trial
court excluded this evidence on hearsay and relevance
the disclosure, the police obtained authorization to record a
telephone conversation between the victim's mother and
the defendant, see RSA 570-A:2, II(d) (2001), during
which she confronted him with the victim's allegations.
Unaware that the conversation was being recorded, the
defendant denied molesting the victim but admitted allowing
her to watch "Japanese animation" videos that
depicted "the whole nine yards," including
"boobs," "penetration," and
"intercourse." This recorded telephone conversation
was played for the jury. The defendant testified at trial and
denied that he had molested the victim. On cross-examination,
he admitted that, in his presence, the victim watched
animated videos that were "inappropriate" and that
"probably" depicted intercourse. The trial court
dismissed two counts not relevant to this appeal, and the
jury convicted the defendant on the remaining four counts.
defendant raises two issues on appeal, both of which relate
to the trial court's evidentiary rulings. First, he
argues that the trial court erred by excluding "evidence
about the circumstances of" the victim's disclosure
of the abuse to her mother in June 2014. Second, he argues
that the trial court erred when it ruled that State v.
Graf, 143 N.H. 294 (1999), precluded him from offering
character evidence, in the form of opinion testimony from his
ex-wife, that he "is sexually attracted to women, not to
children." We set forth our standard of review before
addressing each argument in turn. We also note that, in
addressing these arguments, we apply the rules of evidence in
effect at the time of the defendant's 2016 trial. See
State v. Holmes, 159 N.H. 173, 175 (2009) (interpreting
version of evidence rule in effect at time of trial).
trial court has broad discretion to determine the
admissibility of evidence, and we will not upset its ruling
absent an unsustainable exercise of discretion. State v.
Milton, 169 N.H. 431, 435 (2016). To demonstrate an
unsustainable exercise of discretion, the defendant must show
that the trial court's ruling was clearly untenable or
unreasonable to the prejudice of his case. Id. In
applying our unsustainable exercise of discretion standard of
review, we determine only whether the record establishes an
objective basis sufficient to sustain the discretionary
judgment made. State v. Letarte, 169 N.H. 455, 461
(2016). Our task is not to determine whether we would have
found differently, but is only to determine whether a
reasonable person could have reached the same decision as the
trial court on the basis of the evidence before it.
Id. The defendant bears the burden of demonstrating
that the trial court unsustainably exercised its discretion.
See State v. Costella, 166 N.H. 705, 714 (2014).
defendant first challenges the trial court's decision to
exclude "evidence about the circumstances of" the
victim's disclosure of the abuse to her mother in June
2014. We construe the defendant's brief as challenging
the exclusion of the following: (1) evidence that the victim
engaged in masturbatory activity; and (2) statements made by
the victim and her mother on June 15, 2014 (June 15th
conversation), during which the mother asked the victim about
her masturbatory behavior and the victim disclosed the
defendant's sexual abuse. The trial court ruled that the
statements made during the June 15th conversation constituted
inadmissible hearsay. The court excluded the masturbation
evidence on ...