State v. Thibedau

702 A.2d 299, 142 N.H. 325, 1997 N.H. LEXIS 97
CourtSupreme Court of New Hampshire
DecidedSeptember 26, 1997
DocketNo. 96-244
StatusPublished
Cited by12 cases

This text of 702 A.2d 299 (State v. Thibedau) 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. Thibedau, 702 A.2d 299, 142 N.H. 325, 1997 N.H. LEXIS 97 (N.H. 1997).

Opinion

THAYER, J.

A jury convicted the defendant, Alfred Thibedau, of committing two counts of aggravated felonious sexual assault, see RSA 632-A:2, I(j)(2) (1996), against his niece. The defendant challenges the Superior Court’s (Mohl, J.) ruling that the defendant “opened the door” to the admission of evidence of a prior sexual assault against the victim. We affirm.

The defendant’s trial lasted two days. During cross-examination of the victim, defense counsel asked where a face cloth had come from when she had not testified about a face cloth during direct examination. The State objected. The trial court allowed the defense counsel to refresh the victim’s recollection of a previously transcribed interview with a victim witness advocate during which she told the interviewer about the defendant’s use of water from a wet face cloth as a lubricant to facilitate sexual intercourse when she was thirteen or fourteen. This incident is connected with the current charges. The transcript also referred to a similar incident occurring when the victim was six years old. After defense counsel instructed the victim to read to herself the portion of the transcript indicated, the following colloquy ensued:

QUESTION: Do you recall an incident that you described with a face cloth?
ANSWER: Yeah.
QUESTION: And do you recall telling Sue Whitford that he used a face cloth, “like he squeezed it. He squeezed it over my private area?”
ANSWER: Yeah.
QUESTION: But you say — when I ask you now, you said that he was in the room with you and he never left the room at any time?
[327]*327ANSWER: He didn’t, that I can remember.
QUESTION: Did he have a wet face cloth in [the] pocket of his shorts?
ANSWER: Maybe. I don’t know.

On redirect, the State sought to have the victim read into evidence the portion of the transcript that defense counsel instructed her to use to refresh her memory. At the resulting bench conference, the trial court stated that the defendant had opened the door for the admission of the information contained in this portion of the transcript. Defense counsel objected. The trial court concluded that the defendant raised the issue of the face cloth, which created an ambiguity in the testimonial evidence, and allowed the State to read into evidence the contested portion of the transcript:

QUESTION: When he was on top of you, did he just — and his private was in yours, did he just stay there or did he —
ANSWER: No. He moved and stuff, and it was hard for him to do that. I was telling him that it was hurting and he used — he was trying to use like, um, a — one time I remember he used, um a face cloth that was wet.
QyESTION: Mmhmm?
ANSWER: Or something to go through with it or whatever.
QUESTION: Okay. Was that this time or a different time that he used, I think, a face cloth?
ANSWER: It was both the times that I remember, once when I was six and then again when I was fourteen. I remember them clear as day, and both — were both the same time that he used the face cloth.
QUESTION: Okay. And how did he use the face cloth? What did he do with it?
ANSWER: He, like, squeezed it.
QUESTION: Okay. And where did he squeeze it?
ANSWER: He squeezed it over my private area.
[328]*328QUESTION: Okay. You said that he had a hard time. Was that — you said that it hurt.
ANSWER: Mmhmm.
QUESTION: Was he saying something about it? How did he get — how did you get the impression'that he was having a hard time?
ANSWER: Because he was, like — he [wasn’t] very patient. You know what I mean? He was getting mad at me sometimes.'

After the victim attested to the accuracy of the State’s reading of the transcript, the trial court instructed the jury that the reason it had allowed the State to read the preceding portion of the interview was

only for you to judge [the victim’s] credibility as a witness. It is not offered for the truth of the contents of the statement made. And to the extent that there is any reference to any incident other than the incident that the defendant is charged with here, you may not consider that evidence as evidence concerning whether the defendant committed the acts that are alleged in this case. It’s admitted, as I said, only for purposes of whether or not you believe this witness as a witness in this case.

The State continued its redirect examination of the victim, further questioning her about the defendant’s use of the face cloth. After presenting other witnesses, the State rested its case, and the defendant examined two defense witnesses before concluding its case. The jury found the defendant guilty of both counts of aggravated felonious sexual assault.

On appeal, the defendant asserts that he did not “open the door” to the admission of the prior sexual assault because his cross-examination of the victim did not create a false or misleading impression. See, e.g., State v. Trempe, 140 N.H. 95, 98-100, 663 A.2d 620, 622-23 (1995). Additionally, he contends that even if his cross-examination did create a misleading or false impression, the-evidence of the prior assault did not refute it. Although the State disputes the contention that the trial court erred, it also argues that any error was harmless beyond a reasonable, doubt.

We need not determine whether the trial court properly admitted evidence of the prior assault because even assuming error, [329]*329the error was harmless. See State v. Anderson, 141 N.H. 168, 169, 679 A.2d 583, 584 (1996); State v. Taylor, 141 N.H. 89, 92, 677 A.2d 1093, 1095 (1996). The State bears the burden of proving that an error is harmless, a burden satisfied by proof beyond a reasonable doubt that the erroneously admitted evidence did not affect the verdict. State v. Silk, 138 N.H. 290, 291, 639 A.2d 243, 244 (1994). In deciding whether the State has met its burden, we consider the strength of the alternative evidence presented at trial. See State v. Hennessey, 142 N.H. 149, 158, 697 A.2d 930, 936 (1997); State v. Vandebogart, 139 N.H. 145, 158, 652 A.2d 671, 679 (1994). We also consider the character of the inadmissible evidence, including whether the evidence was cumulative or inconsequential in relation to the State’s evidence. See Vandebogart, 139 N.H. at 158, 652 A.2d at 679.

A review of the record reveals that the strength of the alternative evidence was overwhelming.

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Cite This Page — Counsel Stack

Bluebook (online)
702 A.2d 299, 142 N.H. 325, 1997 N.H. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thibedau-nh-1997.