State v. Dustin

• Decision Date: 14 June 1982
• Docket Number: No. 81-182,81-182
• Citation: 446 A.2d 1186,122 N.H. 544
• Parties: The STATE of New Hampshire v. Frank W. DUSTIN.
• Court: New Hampshire Supreme Court

Page 1186

446 A.2d 1186

122 N.H. 544

The STATE of New Hampshire v.Frank W. DUSTIN.

No. 81-182.

Supreme Court of New Hampshire.

June 14, 1982.

Gregory H. Smith, Atty. Gen. (Michael A. Pignatelli, Asst. Atty. Gen., on the brief and orally), for the State.

Brown & Nixon P. A., Manchester (David W. Hess, Manchester, on the brief and orally), for defendant.

BOIS, Justice.

The defendant appeals from a jury verdict finding him guilty of criminal restraint under RSA 633:2.He focuses his challenge on the trial court's decision to permit certain allegedly prejudicial statements and questions by the prosecution.We affirm his conviction.

On the evening of July 27, 1979, the complainant, twenty-two-year-old Brenda Baron, was hitchhiking from Nashua to Merrimack.The defendant, Frank Dustin, and Donald Croto, a companion of his, were passing by in a pickup truck and stopped to give her a ride.Miss Baron entered the truck, which was driven by the defendant, and sat between the two men.

Miss Baron testified that, at the outset, she told the men of her intention to get out at the traffic lights near McDonald's Restaurant in Merrimack.She further testified that both men were drinking beer and that, despite her repeated requests and fervent pleas, which the defendant acknowledged she had made, the men refused to let her out of the truck at the desired location.

According to Miss Baron's testimony, Croto said that the men were going to take her to a party in Manchester.At that point, Miss Baron became frightened and began crying.She testified that she thought the men were going to beat her up or rape her.While the vehicle was moving, she grabbed the gearshift lever and attempted to place it in park.The defendant pushed her away and allegedly told Croto angrily: "Keep her quiet."Miss Baron then attempted to jump out of the open window on the passenger side of the vehicle.She hung out the window, screaming frantically for help, and was seen or heard by at least two witnesses.She testified that Croto pulled her back and punched her in the mouth.Approximately five minutes after passing the traffic lights near McDonald's Restaurant in Merrimack, the defendant stopped the truck and let Miss Baron out.

Not surprisingly, the defendant's version of these events differed dramatically from Miss Baron's account.He testified that he was unaware of the traffic lights near McDonald's Restaurant in Merrimack and that, although Miss Baron may have stated her desire to get out of the vehicle, he did not hear these statements.He claimed that he stopped the truck as soon as possible after he heard Miss Baron's request to get out.

Defense counsel objected to remarks which the prosecutor made, in his opening and closing arguments, regarding Miss Baron's fear of being raped during the incident.In addition, defense counsel objected to the prosecutor's questions concerning Miss Baron's mental state during the events in question.The Trial Judge (Cann, J.) overruled these objections and, as noted, the defendant was convicted of criminal restraint in violation of RSA 633:2.On this appeal, the defendant argues that the references to Miss Baron's fear of sexual molestation and bodily injury were irrelevant and unduly prejudicial, and that the trial court therefore erred in permitting these remarks.

Evidence is relevant if it tends in any way to establish a proposition which is of consequence in an action.State v. Ebelt, 121 N.H. 143, 144, 427 A.2d 29, 30(1981);seeState v. Woodard, 121 N.H. 970, ---, 437 A.2d 273, 275(1981).

RSA 633:2(Criminal Restraint) provides that "[a] person is guilty of a class B felony if he knowingly confines another unlawfully in circumstances exposing him to risk of serious bodily injury."We have held that the phrase "serious bodily injury" includes mental anguish and psychological injuries.State v. Goodwin, 118 N.H. 862, 868, 395 A.2d 1234, 1237-38(1978).In this case, the disputed evidence and statements regarding the complainant's fear of rape and bodily injury suggested that she might suffer psychological injuries as a result of the incident.The evidence was therefore relevant because it tended to prove an element of the offense; namely, that circumstances existed exposing Miss Baron to a risk of "serious bodily injury," as defined above.

In determining the admissibility of evidence which is relevant and otherwise unobjectionable, the trial court should balance the potential prejudice of the evidence against its probative value.State v. Baker, 120 N.H. 773, 775, 424 A.2d 171, 172(1980).In the instant controversy, the disputed remarks about the complainant's fear of rape and bodily injury, although relevant, were not essential to the prosecution's case.The offense of criminal restraint did not require proof of the complainant's state of mind, and other less inflammatory evidence existed showing that Miss Baron was exposed to a "risk of serious bodily injury."For these reasons, we find that the trial court may have acted ill-advisedly in permitting the disputed remarks regarding the complainant's apprehensions.

Nonetheless, we hold that the admission of the challenged statements did not constitute reversible error, because in the absence of such statements, the jury would have still reached the same substantive conclusions as were conveyed by the inadmissible remarks.The record contains abundant admissible evidence which would have led any reasonable juror to believe that the complainant was fearful of being raped and beaten by the defendant and Croto.The complainant testified that the defendant refused to stop the truck despite at least six requests by her.She stated that, during the events in question, the defendant yelled at her and spoke to her in a nasty tone of voice.The defendant admitted that the complainant may have "said something about getting out" of the truck.He also admitted that Miss Baron was crying hysterically, that she tried to jump out of the moving truck on two occasions, and that she told him that she was scared.His only explanation for her behavior was that she was crazy.This explanation, however, was not supported by any other evidence.

As previously mentioned, one witness testified that she saw Miss Baron hanging from the window of the truck, screaming loudly for help.The same witness stated that she saw the complainant immediately after the alleged incident, and that Miss Baron was "very nervous, panicky ... and crying fiercely."Another witness testified that while she was in her home she heard a loud scream and that she subsequently met with the complainant, who was "crying, really hysterical."She further testified that she stayed with Miss Baron for two or three hours after the incident and that the complainant remained very upset throughout this period.

An additional witness stated that she saw the defendant's truck stop near the Merrimack police station, as the complainant had testified, and that "it looked as if there was a struggle on the inside of the truck."Finally, the police officer who attended to Miss Baron after the alleged incident testified that she had a swollen lip which was bleeding profusely.This testimony appeared to corroborate Miss Baron's claim that Croto had punched her in the mouth.

Certainly, in light of all the above-mentioned testimony and the dearth of any other plausible explanations for Miss Baron's behavior, a rational juror would have concluded, independently of the challenged remarks, that Miss Baron was afraid of suffering substantial bodily injury at the hands of the defendant and Croto.Thus, we hold beyond a reasonable doubt that the inadmissible evidence regarding the complainant's fears did not affect the jury's decision.SeeState v. Welch, 120 N.H. 687, 688, 421 A.2d 142, 142-43(1980);State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498(1976).

Furthermore, a review of the record reveals that the trial court minimized any prejudice which might have arisen from the admission of the disputed statements.The court properly instructed the jury regarding the State's burden of proof, and the elements of criminal restraint and the lesser-included offense of false imprisonment (RSA 633:3).See generallyState v. Langdon, 121 N.H. 1065, ---, 438 A.2d 299, 301(1981).The court also gave the jury a correct definition of the statutory phrase "serious bodily injury."Cf.State v. Bird, 122 N.H. 10, ---, 440 A.2d 441, 443-444(decided January 15, 1982).As a result, we conclude that the admission of the disputed statements and testimony was harmless in the context of this case.SeeState v. Scarlett, 121 N.H. 37, 42-43, 426 A.2d 25, 28-29(1981);State v. Koski, 120 N.H. 112, 115, 411 A.2d 1122, 1124(1980);State v. Gosselin, 117 N.H. 115, 120, 370 A.2d 264, 269(1977).

The defendant also argues that prejudice resulted when the trial court admitted into evidence a diagram, drawn by the complainant, showing the times and relative physical locations of the events at issue.He contends that the diagram failed to include significant landmarks, and distorted numerous physical facts otherwise in evidence.

The decision to admit documentary evidence falls within the sound discretion of the trial court.Marchand v. Company, 95 N.H. 422, 424-25, 65 A.2d 468, 470(1949);cf.State v. Perron, 118 N.H. 245, 246, 385 A.2d 225, 225(1978).At the start of this case, the trial judge permitted the jury to view the road in Merrimack where the events in question occurred.We hold that the admission of the diagram, albeit roughly drawn, provided the jury with a basis of general reference, thus aiding it in recollecting the site viewed.The trial court, moreover, allowed the defendant to impeach the accuracy of the diagram on several occasions.Consequently, we cannot say that the trial judge erred in finding that the probative value of the diagram outweighed the possible prejudice which it might have produced.See...