State v. Abram

• Decision Date: 13 June 2006
• Docket Number: No. 2004–502.,2004–502.
• Citation: 153 N.H. 619,903 A.2d 1042
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Scott ABRAM.

153 N.H. 619

903 A.2d 1042

The STATE of New Hampshire

v.Scott ABRAM.

No. 2004–502.

Supreme Court of New Hampshire.

Argued: Feb. 22, 2006.

Opinion Issued: June 13, 2006.

Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State.

Paul Garrity, of Londonderry, on the brief and orally, for the defendant.

DALIANIS, J.

The defendant, Scott Abram, was convicted by a jury in Superior Court (McGuire, J.) of twenty-one counts of aggravated felonious sexual assault of his step-children, A.A. and C.A., RSA 632–A:2 (1996 & Supp.2005), four counts of endangering the welfare of a child, RSA 639:3 (1996), and one count of indecent exposure and lewdness, RSA 645:1 (Supp.2005). He appeals, challenging the trial court's failure to sever the charges for trial and to admit certain evidence. We affirm in part, reverse in part, and remand.

I. Background

The jury reasonably could have found the following facts. In 1997, the defendant married a woman who had three children, A.A., C.A. and K.A. The defendant and his wife had two children together, M.T. and J.T. In November 2000, the family moved to Concord, at which time A.A. and C.A. were eleven and nine years old, respectively.

Shortly after the move to Concord, the defendant assaulted A.A. in his bedroom on a crib mattress. He subjected her to sexual intercourse and digital penetration and forced her to perform fellatio. On numerous occasions throughout the 2001–2002 school year, the defendant subjected C.A. to anal penetration and forced him to engage in mutual acts of fellatio. On different occasions throughout the same period of time, the defendant made A.A. stay home from school as a "punishment," subjected her to sexual intercourse and cunnilingus, and demanded that she perform fellatio.

Specifically, on or about January 1, 2002, the defendant and his wife had a party at their house. Late in the evening, the defendant called C.A. into his bedroom, subjected him to anal penetration and forced him to engage in fellatio.

Later that month, RE/MAX Realty in Concord hired the defendant to clean its office on Wednesday evenings and Sundays. A.A. assisted him in cleaning the facility. On one occasion, the defendant forced A.A. into one of the empty cubicles in the office, sat her on the desk, and instructed her to touch her vagina and breasts with her hand. He then demanded, "f––– me," and when she refused, he made her perform fellatio.

During the summer of 2002, the defendant sexually assaulted A.A. in the pool in their backyard. At the time, the defendant, A.A. and J.T. were the only family members at home. They were playing in the pool when the defendant told J.T. to leave the pool and play in the yard. At that point, the defendant pinned A.A. against the wall of the pool, removed her bathing suit bottom, and subjected her to sexual intercourse. He then masturbated in front of her.

In early September 2002, A.A. stayed home to baby-sit for K.A. while the rest of the family, including the defendant, attended a wedding. K.A. melted a tile on the bathroom floor with an iron. When A.A. told the defendant about the damage, he yelled at her and then coerced her into engaging in sexual intercourse to avoid punishment.

At another point in September 2002, the sexual abuse escalated. A.A. and C.A. had been arguing and, as a punishment, the defendant made them kneel in a corner of his bedroom. He berated them with obscene and vulgar comments, and coerced them onto the bed under the guise of ending the punishment more quickly. He then ordered C.A. to lock the front door. While C.A. was absent from the bedroom, the defendant said, "f––– me," to A.A., and then forced her to engage in sexual intercourse with him. When C.A. returned, the defendant ordered him to undress, which C.A. did hesitantly. The defendant then ordered A.A. to alternate between performing fellatio on him and C.A. The children refused, but the defendant continued to verbally harass and intimidate them until they finally complied. The defendant then forced the children to engage in sexual intercourse with each other and ordered C.A. to perform cunnilingus on A.A. At some point, the defendant ordered C.A. to leave the room. After he left, the defendant again forced A.A. to engage in sexual intercourse with him and to perform fellatio.

On October 31, 2002, the defendant ordered A.A. to stay home from school to baby-sit for J.A. The defendant told J.A. to go upstairs, and coerced A.A. into smoking marijuana. He then forced A.A. to watch a pornographic show on television and ordered her to remove her clothes, after which he licked her breasts and subjected her to cunnilingus. At that point, the defendant thought he saw a car pull into their driveway, so he told A.A. to get dressed and go upstairs. When he realized that no one had arrived, he ordered her back downstairs and onto the couch where he engaged in sexual intercourse and forced her to perform fellatio.

The next day, the defendant kept C.A. home from school as a "punishment." After forcing C.A. to stand in the corner for a period of time, he coerced C.A. into smoking marijuana with him. The defendant then subjected C.A. to anal penetration on the couch, until C.A. told the defendant that "it hurt" and left the room. Later that day, the defendant demanded that C.A. come into his bedroom and C.A. complied out of fear. The defendant again subjected C.A. to anal penetration and demanded that he engage in mutual acts of fellatio.

On November 4, 2002, both victims revealed to the defendant's wife that the defendant had been sexually abusing them over a significant period of time. At that time, A.A. was thirteen years old and C.A. was eleven years old. The defendant was subsequently arrested and indicted on multiple charges of aggravated felonious sexual assault and related offenses, arising from the abuse he inflicted between November 2000 and November 2002.

Prior to the jury trial, the defendant moved to sever the charges involving only A.A. from the charges involving only C.A., and to further sever the charges arising from the mutual acts that occurred in September 2002. The trial court denied the motion, finding that the acts fell within the "common plan" rule for joinder. The trial court also granted the State's motion in limine, precluding the admission of evidence concerning the victims' allegations that the defendant had sexually abused their younger brothers, K.A. and M.T. The jury convicted the defendant of twenty-one counts of aggravated felonious sexual assault, four counts of endangering the welfare of a child, and one count of indecent exposure and lewdness. The defendant appealed.

On appeal, the defendant argues that the trial court erred by: (1) denying his motion to sever the charged offenses; and (2) granting the State's motion in limine to preclude the cross-examination of the victims, or the admission of extrinsic evidence, concerning the victims' allegations that the defendant had sexually abused K.A. and M.T.

II. Joinder

We first review whether the trial court properly denied the defendant's motion to sever the charges for trial. We will uphold the trial court's decision not to sever the charges unless we conclude that the decision constitutes an unsustainable exercise of discretion. State v. McIntyre, 151 N.H. 465, 466, 861 A.2d 767 (2004). To show that the trial court's decision is unsustainable, the defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of this case. Id.

A. Relatedness

Prior to trial, the defendant filed a motion to sever the pending charges. He requested three trials: one for the charges involving only A.A., one for the charges involving only C.A., and one for the charges stemming from the incident in September 2002 during which the defendant assaulted A.A. and forced the children to engage in sexual acts with each other. The defendant argued that the offenses underlying the three sets of charges were "unrelated," so he was entitled to severance as a matter of right under State v. Ramos, 149 N.H. 118, 818 A.2d 1228 (2003).

In Ramos, we adopted the ABA standards for joinder and severance of criminal offenses, holding that "any two or more offenses committed by the same defendant may be joined for trial, upon the application of the prosecuting attorney or the defense." Id. at 128, 818 A.2d 1228. We further explained, however, that:

Whenever two or more unrelated offenses have been joined for trial, the prosecuting attorney or the defendant shall have a right to severance of them. "Unrelated" offenses are those that are not "related." " Related" offenses are those that are based upon the same conduct, upon a single criminal episode, or upon a common plan.

Id. (citations omitted).

The State argued below that all charges should be joined for trial as all charged offenses were based upon a "common plan." At that time, we had not defined "common plan" for purposes of the relatedness test. At the urging of the State, the trial court relied upon case law from Vermont, see State v. LaBounty, 168 Vt. 129, 716 A.2d 1 (1998) ; State v. Johnson, 158 Vt. 344, 612 A.2d 1114 (1992), to find all charges "related" because, like the facts underlying the Vermont cases, the defendant assaulted the children in the same manner, at the same location, and used his position of authority to effectuate the assaults.

Subsequent to the defendant's conviction, we adopted, for the purposes of the relatedness test, the definition of "common plan" under New Hampshire Rule of Evidence 404(b). State v. McIntyre, 151 N.H. at 466–67, 861 A.2d 767. We stated:

The distinguishing characteristic of a common plan under Rule 404(b) is the existence of a true plan in the defendant's mind which includes the charged crimes as stages in the plan's execution. That a sequence of acts resembles a design when examined in retrospect is not enough; the prior conduct must be intertwined with what follows, such

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