State v. Towle

111 A.3d 679, 167 N.H. 315
CourtSupreme Court of New Hampshire
DecidedJanuary 29, 2015
DocketNo. 2013-217
StatusPublished
Cited by15 cases

This text of 111 A.3d 679 (State v. Towle) 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. Towle, 111 A.3d 679, 167 N.H. 315 (N.H. 2015).

Opinion

Hicks, J.

After a jury trial in Superior Court {Bomstein, J.), the defendant, Robert Towle, was convicted on four counts of aggravated felonious sexual assault for engaging in fellatio and anal penetration with his minor son, and on four counts of criminal liability for the conduct of another for encouraging his wife and another adult to engage in sexual acts with his minor son. See State v. Towle, 162 N.H. 799, 800 (2011); see also RSA 632-A:2 (2007) (amended 2008, 2012, & 2014); RSA 632-A:3 (Supp. 2003) (amended 2006,2008,2010, & 2014); RSA 626:8 (2007). The trial court sentenced the defendant to serve 57 to 114 years in prison and ordered the defendant to have no contact with the victim, the reporting witness, and his other minor son. On appeal, the defendant raises two challenges to his convictions and one challenge to his sentence. The defendant argues that the trial court erred by: (1) permitting the State to use prior statements to refresh the victim’s recollection when the victim had not demonstrated an inability to recall the relevant event;, and (2) permitting the State to introduce testimony referring to inadmissible photographic evidence. In addition, the defendant argues that the trial court erred by imposing the no-contact order. We affirm the convictions and reverse the no-contact order.

The defendant first argues that the trial court erred by permitting the State to use prior statements to refresh the victim’s recollection of the final [318]*318sexual assault that occurred in early 2006, after the victim had been removed from the defendant’s custody. The defendant asserts that the victim testified unequivocally that the defendant had not sexually assaulted him on that occasion and was neither confused nor uncertain. Therefore, he argues, the State had no justification for refreshing his recollection.

The record reflects the following exchange on direct examination:

[State]: And did anything happen at that time when your father [was] there?
[Victim]: Well, I had showed up. And he was in the computer room with the baby. I went back there. And we were chit-chatting. He was doing whatever on the computer and drinking a beer. And then he had asked me to take my .pants off. And I was like, really? You know, we’re already in this situation and you’re right here asking me to take my pants off. And I just had a serious problem with that.
[State]: And then what ended up happening?
[Victim]: To the best of my knowledge, I just decided against it. I was really uncomfortable with the whole situation. I didn’t want it to happen, period. You know? It was I’m here to see my brother, not to engage with you. You know? It’s unnecessary.
[State]: [D]id you argue with him or what?
[Victim]: No, I don’t believe there was any real arguing. Just, you know, I felt my time being there was over and I believe I left.
[State]: And so did anything happen between you and your father at that location?
[Victim]: No, because I believe I made sure it didn’t.

The defendant, who represented himself at trial, revisited the incident during his cross-examination of the victim:

[Defendant]: [The State] asked you — he was trying to ask you, you know, if you were assaulted by me at the Reed’s [sic] house on High Street.
[Victim]: Right.
[Defendant]: And just in your testimony, you conveyed to him that nothing happened?
[Victim]: To the best of my memory, nothing happened. I put it — you know, I said no.
[319]*319[Defendant]: Just a second ago, did you not just say to me that it wasn’t in front of [infant son], it was —
[Victim]: Well, the situation that you were trying to do wasn’t happening in front of [infant son].
[Defendant]: My question to you was not whether there was a situation. My question was —
[Victim]: Well, if you’re referring to nothing happening, you know, you trying to get me to take my pants off, and if that’s not it, then please fix me — point me to where I’m supposed to go with that. Correct me. That’s what I’m trying to say.

On redirect, the State attempted to use the victim’s prior statements to refresh his recollection of the incident. The defendant objected on the basis that the State had not laid a foundation for refreshing the victim’s recollection. The trial court sustained the objection and ordered the State to first establish that the victim’s recollection needed refreshing. The following exchange occurred:

[State]: Now, in terms of your testimony yesterday during direct and cross-examination, you talked about visiting your brother____
[Victim]: Uh-huh.
[State]: And you recall the Defendant propositioning you at that time to do what had happened many times before that you testified?
[Victim]: Yes, sir..
[State]: And at that point you testified that you didn’t recall him actually performing oral sex on you at that time; is that correct? [Victim]: I did.

Next, the State asked the victim to review a portion of his interview with a staff member at the Child Advocacy Center and whether the interview refreshed his recollection about the incident that had occurred in early 2006. The victim stated that the interview did refresh his recollection, and the defendant objected.

During the ensuing sidebar conference, the defendant argued that the State was attempting to refresh the victim’s recollection when the victim, on direct examination, had never stated that he could not remember what had occurred and stated clearly that nothing had happened. The State argued that the victim had just declared that he did not recall what had occurred, and only at that point did the State ask the victim to review the interview transcript. The trial court overruled the objection and allowed the [320]*320State’s examination to continue. The State continued its redirect examination and the victim stated that he remembered the defendant asking him to take his pants off and the defendant actually performing oral sex on him.

The defendant reiterated his objection during the next day of trial and in a motion to dismiss after the conclusion of the State’s case. The State argued that the victim had stated on redirect examination that he did not remember if anything had occurred during that visit with the defendant in early 2006 and that its efforts to refresh the victim’s recollection were proper. After noting that it had “observed and heard the entire course of trial and . . . the circumstances presented,” the trial court ruled that refreshing the victim’s memory was proper.

The trial court has broad discretion to determine the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion. State v. Miller, 155 N.H. 246, 249 (2007). For the defendant to prevail under this standard, he must demonstrate that the trial court’s decision was clearly untenable or unreasonable to the prejudice of his case. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
111 A.3d 679, 167 N.H. 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-towle-nh-2015.