State v. Botelho

83 A.3d 814, 165 N.H. 751
CourtSupreme Court of New Hampshire
DecidedDecember 24, 2013
DocketNo. 2012-447
StatusPublished
Cited by17 cases

This text of 83 A.3d 814 (State v. Botelho) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Botelho, 83 A.3d 814, 165 N.H. 751 (N.H. 2013).

Opinion

HICKS, J.

The defendant, Jessica Botelho, appeals her convictions of manslaughter, see RSA 630:2, 1(b) (2007); negligent homicide, see RSA 630:3,1 (2007); and reckless conduct, see RSA 631:3, I (2007), following a [753]*753jury trial in Superior Court (Garfunkel, J.). She argues that the trial court erred: (1) by admitting into evidence the name and description of a particular website that she visited while leaving her children unattended in her bathtub; and (2) by excluding certain portions of a recorded police interview. We affirm.

The jury could have found the following facts. On July 13, 2010, the defendant lived in a second-story apartment with her two sons, W.B., who was twelve months old, and T.P., who was two years old. At approximately 4:00 p.m., the defendant ran a bath for the two boys. At some point, she left the children alone in the bathtub with the water “stopped” and approximately two to three inches of water in the bathtub. She then left the apartment and went to an outdoor porch, where she used her laptop computer to connect to the internet. She later told police that T.P. knew how to turn on the bathtub faucet on his own.

The defendant gave conflicting accounts to police and other witnesses about the nature and length of her computer use, but admitted that she “posted [a] blog” on a website named “myfreeimplants.com.” The State described the website, which the defendant admitted that she had visited since 2007, as a “social networking website where people can make donations for others to get free breast implants.” A forensic examination of the defendant’s computer resulted in a report that documented nearly continuous user activity, exclusively at myfreeimplants.com, from 4:20 p.m. to 5:02 p.m. The majority of entries were associated with viewing and writing blog posts on myfreeimplants.com or sending messages on the website. The report documented only when a user entered, or was directed to, a new web address; thus, several gaps existed in user activity during which the user could have been watching videos, reading online content, or composing messages.

After some time, T.P. approached the defendant to tell her that W.B. was “sleeping swimming.” The defendant rushed to the bathroom, where she discovered W.B. in the bathtub with the faucet running. The defendant gave conflicting accounts to police about whether W.B. was lying on the bottom of the bathtub or floating. She turned off the faucet, retrieved W.B. from the bathtub, and attempted CPR. Unable to find her telephone, she ran downstairs with W.B. — leaving behind T.P., who had returned to the bathroom — and asked her downstairs neighbors for help. One of the neighbors called 911 at around 5:00 p.m. while the defendant and another neighbor resumed CPR attempts. A neighbor and his friend drove the defendant and W.B. to the emergency room, where they arrived at approximately 5:12 p.m. Meanwhile, two neighbors retrieved T.P. from the bathtub, which was half-full but draining, and found that the bathroom floor was covered with water. A detective later determined that it took approxi[754]*754mately eighteen minutes to fill the bathtub with the faucet at full volume, and approximately six minutes to drain it.

W.B.’s treating physician found that he had sustained irreversible neurological injury and brain damage as a result of oxygen deprivation. The doctor explained that this type of injury typically occurs “starting around seven minutes of low oxygen delivery” following the initial stages of drowning. After a consultation between the doctor, the defendant, and W.B.’s father, W.B. was removed from life support on July 20, resulting in his death. A medical examiner determined that he had died from complications related to a “near drowning.”

Prior to trial, the defendant filed a motion in limine “to exclude all evidence pertaining to the specific web addresses [she] visited during the days leading up to [the] incident,” including myfreeimplants.com. In so doing, she offered to stipulate that no one else had used her computer on July 13. Following two hearings, the trial court determined that “the probative value of such evidence [was] not substantially outweighed by the danger of unfair prejudice” and denied the motion. The court advised that it would ask a question during voir dire to determine whether potential jurors “[held] personal views about breast augmentation that would prevent [them] from being impartial.” At trial, the court ordered the redaction of specific references to the defendant’s correspondence with men on myfreeimplants.com and noted that counsel had agreed to redact two other descriptions of the website that could be construed as sexual in nature.

The court also approved, after two hearings, a motion in limine filed by the State to exclude portions of a videotaped police interview of the defendant that the State had offered against her. The parties had agreed to exclude certain portions of the recorded interview on relevance grounds but disputed whether two separate sections, each one amounting to approximately two pages of transcript, should be admitted. In excluding these two disputed sections, the court rejected the defendant’s argument that they should be admitted under the doctrine of completeness. See N.H. R. Ev. 106.

At trial, the State mentioned myfreeimplants.com by name twice in its opening statement and six times in its closing argument. Additionally, the State elicited more than forty direct references to the website during its direct examination of a computer forensic expert, who testified about the defendant’s web browsing history before and at the time of W.B.’s near drowning. An exhibit detailing this history was comprised largely of web addresses associated with myfreeimplants.com. Finally, there were several references to the website in the redacted video of the defendant’s police interview.

[755]*755A jury found the defendant guilty of manslaughter, negligent homicide, and reckless conduct. On the manslaughter charge, the court sentenced the defendant to the New Hampshire State Prison for five to ten years, stand committed. On the reckless conduct charge, the court sentenced the defendant to a concurrent term of one to three years. The court held sentencing in abeyance on the negligent homicide charge, an alternative theory to manslaughter for W.B.’s death, pending appeal. This appeal followed.

I. Admission of Website Information

The defendant argues on appeal that the trial court erred by admitting evidence relating to myfreeimplants.com. She argues that the website’s identifying information should have been excluded because: (1) it was not relevant; and (2) if it was relevant, any “probative value [was] substantially outweighed by the danger of unfair prejudice.” N.H. R. Ev. 403.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.H. R. Ev. 401; State v. Jenot, 158 N.H. 181, 185 (2008). Evidence that is not relevant is inadmissible. N.H. R. Ev. 402; State v. Mitchell, 148 N.H. 293, 295 (2002). Even when evidence is relevant, the trial court may exclude it “if its probative value is substantially outweighed by the danger of unfair prejudice.” N.H. R. Ev. 403; Jenot, 158 N.H. at 185.

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Bluebook (online)
83 A.3d 814, 165 N.H. 751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-botelho-nh-2013.