Argued: November 6, 2018
J. MacDonald, attorney general (Heather A. Cherniske,
attorney, on the brief and orally), for the State.
Law Offices, of Chichester (Mark L. Sisti on the brief and
orally), for the defendant.
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.
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
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
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
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."
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.
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]."
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
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."
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."
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 ...