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State v. Colbath

Supreme Court of New Hampshire, Belknap

January 8, 2019


          Argued: November 6, 2018

          Gordon J. MacDonald, attorney general (Heather A. Cherniske, attorney, on the brief and orally), for the State.

          Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for the defendant.

          HICKS, J.

         The defendant, George J. Colbath, appeals his convictions, following a six-day jury trial, on 17 charges of aggravated felonious sexual assault (AFSA). See RSA 632-A:2, I(d), III (2016), V (2016) (amended 2017); see also RSA 631:2-b, III (2016). On appeal, he argues that the Superior Court (Fauver and Smukler, JJ.) erred by admitting evidence of certain uncharged conduct pursuant to New Hampshire Rule of Evidence 404(b). He also argues that the Superior Court (Smukler, J.) erred by allowing two witnesses to testify about statements that he allegedly made about the victim's appearance. We affirm.


         The jury could have found the following facts. The victim was born in December 1998. Her parents separated when she was an infant, and she and her mother moved to New Hampshire, where her mother met and married the defendant. The victim's mother died in November 2009, shortly before the victim turned 11.

         When the victim was in sixth grade, she and the defendant moved to Nottingham to live with his then-girlfriend and her children. The first incident of sexual contact between the victim and the defendant occurred when she was in eighth grade. Upon arriving home from a party, the victim noticed "liquid" in her underwear. Because she did not know what it was, she asked the defendant about it, "and he wanted [her] to show him." While in the bathroom, the victim showed the defendant her underwear. The defendant "proceeded to examine [her] vagina," and remarked that her vagina looked like her mother's. The defendant told the victim that she "must have excited [herself] in some way."

         The next incident occurred when the victim and the defendant were watching a movie together at home. The defendant asked the victim if she had ever masturbated, and, when she said that she had not, he said that he wanted to show her how to "make [herself] feel good." The defendant then removed the victim's underwear and digitally penetrated her.

         One day, when the victim was sleeping, she awoke to the defendant pulling her shirt down and touching her breasts. She confronted him about this on a different day and "he said that he couldn't help himself."

         Shortly after the first movie incident occurred, a second incident occurred while the victim was watching a movie in her bedroom. The defendant entered her bedroom, lay down next to her, and began to watch the movie with her. As he did so, he moved his hand up her leg, close to her vagina. The defendant indicated that he wanted to digitally penetrate her again, but the victim said that she "didn't want . . . to." Nonetheless, the defendant digitally penetrated the victim and then performed cunnilingus.

         In the summer between eighth and ninth grade, the defendant and his girlfriend broke up, and he and the victim moved to Alton. When the victim and the defendant were moving some belongings into the Alton home, he gave her "a small vibrator in a white satin bag." He told the victim that he wanted to use it on her. He then proceeded to do so and again digitally penetrated her and performed cunnilingus. The defendant then penetrated the victim's vagina with his penis for the first time. The victim was angry with the defendant "because he had said he would never, ever put his penis inside of [her]."

         Once the defendant and the victim began living in Alton, he began penetrating her vagina with his penis "almost weekly." The defendant engaged in the same pattern of conduct whenever he penetrated her vagina with his penis: he would make the victim undress and lie down, then he would digitally penetrate her, perform cunnilingus, and insert his penis into her vagina. The defendant also penetrated the victim's anus with his penis "a couple of times."

         The victim turned 16 in December 2014. In June 2015, she and the defendant moved to Center Barnstead to live with the defendant's now wife, Suzanne. In the beginning of the school year that began in August 2015, the victim became friends with a girl with whom she commuted to a vocational high school. This friend was the first person in whom the victim confided about the sexual incidents with the defendant. The victim had not previously disclosed them because she feared that, if she did so, she might lose her place to live, either because "the State would take [her]" or because the defendant would "ship[ ] [her] off to Alabama to live with [her] real father."

         After the victim confided in her friend, the defendant continued to assault the victim on a weekly basis. The assaults included penetrating the victim digitally, performing cunnilingus, inserting his penis into her vagina and anus, using vibrators on her and on himself, and forcing her to perform fellatio. To force the victim to engage in sex acts with him, the defendant would take away her privileges, such as her phone or her car, or threaten to sell her beloved horses. The defendant would often tell the victim that he was "all that [she] had."

         Shortly after the victim turned 17, the defendant "made [her] have sex with him," and she "told him that if he keeps it up, [she] was going to have to eventually tell . . . somebody about it because [she] couldn't handle . . . holding the secret anymore." The defendant told her to "go ahead and tell ...

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