State v. Cannon

776 A.2d 736, 146 N.H. 562, 2001 N.H. LEXIS 128
Supreme Court of New Hampshire·Decided June 27, 2001·No. No. 99-389·Published·Cited by 9 cases

Opinion

DALIANIS, J.

After a jury trial in Superior Court (Smukler, J.), the defendant, Michael Cannon, was convicted of one count of aggravated felonious sexual assault. See RSA 632-A:2 (1996). On appeal, he argues that the trial court erred in excluding testimony. We reverse and remand.

The relevant facts follow. On December 8, 1997, the complainant went to the defendant’s home to “hang out.” The defendant was the ex-boyfriend of the complainant’s friend, Jen Coigley. Upon arrival at the defendant’s home, the complainant went upstairs to a bedroom with the defendant to watch television. The complainant testified that while the two were lying on a bed watching television, the defendant forced her to have sexual intercourse. While the defendant admits to having intercourse with the complainant, he maintains that it was consensual.

The defendant first argues that the trial court erred in excluding the testimony of Louis Sylvester, the defendant’s cousin, concerning the complainant’s prior consensual sexual activity. While the defendant concedes that generally such testimony is inadmissible under the rape shield doctrine, he contends that the complainant opened the door to the admission of Sylvester’s testimony when she testified that the reason she did not want to have sex with the defendant was because she had a boyfriend. We agree.

During the trial, the prosecutor asked the complainant about the events leading to the alleged assault:

Q: Okay. And he was trying to touch your side in what fashion? He is laying down next to you, how is he taking his hand trying to touch you?
A: He was just reaching over.
Q: What did you do?
A: I pushed his hand off of me and told him no.
[564] Q: Why?
A: Because I had a boyfriend.
Q: After.he reached over to try to touch you, what did he do next?
A: He just kept trying to touch me. It was just like he kept trying. It wasn’t like he just stopped.
Q: What was he saying, if anything, as he was trying to touch you?
A: You know you want to.
Q: And what were you saying?
A: No. I have a boyfriend and Jen was my friend. I didn’t want to hurt her.

After the State rested its case, the defense moved to call Sylvester as a witness. Defense counsel explained that Sylvester would testify to an incident that occurred one or two weeks prior to the alleged assault. He proffered the following account of the incident. Sylvester was with the complainant, the defendant, and Coigley at the defendant’s home. At some point, Sylvester and the complainant were left alone in the bedroom. The complainant became sexually aggressive toward Sylvester. Although he initially resisted, Sylvester had consensual sex with the complainant after the defendant encouraged him to do so.

The trial court denied the defendant’s motion, citing New Hampshire Rules of Evidence 403, 412 and 608, and “the rules that require certain timeliness for filing Howard motions.” See State v. Howard, 121 N.H. 53 (1981). The court found that the defendant had notice through discovery that one reason the complainant did not want to have sex with him was because she had a boyfriend and further, that the defendant knew about Sylvester’s encounter with the complainant. Additionally, the court found that the prejudicial effect of Sylvester’s testimony would have outweighed its probative value “on a very peripheral issue.”

“We will not reverse a trial court’s ruling on the admissibility of evidence absent an abuse of discretion. To show an abuse of discretion, the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of his case.” State v. Young, 144 N.H. 477, 482 (1999) (citations and quotation omitted).

[565] The rape shield doctrine generally prohibits introduction of evidence concerning the prior consensual sexual activities of sexual assault victims. See RSA 632-A:6, II (1996); N.H. R. EV. 412. We have held that “the requirement of due process and the right of confrontation limit the application of the rape shield law when evidence of the victim’s prior sexual activity with people other than the defendant has a probative value in the context of a particular case that outweighs its prejudicial effect on the victim.” State v. Goulet, 129 N.H. 348, 351 (1987) (quotation and brackets omitted); see also State v. Howard, 121 N.H. at 58-59. A defendant seeking to introduce evidence of a complainant’s prior sexual history must file a Howard motion with the court not less than forty-five days prior to trial. See SUPER. CT. R. 100-A. “If the defendant fails to file such motion, he shall be precluded from relying on such evidence, except for good cause shown.” Id.

We hold that the trial court erred in denying the defendant’s motion. While normally evidence of the complainant’s sexual history would be excluded pursuant to the rape shield doctrine, the State opened the door to the admissibility of Sylvester’s testimony when it asked the complainant why she pushed the defendant’s hands away and told him “No.” Cf. State v. Taylor, 139 N.H. 96, 99-100 (1994) (defendant opened the door to admission of testimony regarding prior sexual assaults when he testified that he did not sexually assault the victim because he “wouldn’t do a thing like that”); State v. Williams, 487 N.E. 2d 560, 562-63 (Ohio 1986) (defendant entitled to present evidence to rebut complainant’s testimony that she never consents to sex with men).

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State v. Cannon, 776 A.2d 736, 146 N.H. 562, 2001 N.H. LEXIS 128 (N.H. 2001).

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