State v. Oakes

• Decision Date: 07 December 2010
• Docket Number: No. 2009–145.,2009–145.
• Citation: 161 N.H. 270,13 A.3d 293
• Parties: The STATE of New Hampshirev.Harold OAKES.
• Court: New Hampshire Supreme Court

161 N.H. 270

13 A.3d 293

The STATE of New Hampshire

v.Harold OAKES.

No. 2009–145.

Supreme Court of New Hampshire.

Argued: Sept. 15, 2010.Opinion Issued: Dec. 7, 2010.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for the defendant.HICKS, J.

The defendant, Harold Oakes, appeals his conviction on two counts of aggravated felonious sexual assault and one count of felonious sexual assault. See RSA 632–A:2 (2007) (amended 2008); RSA 632–A:3 (2007) (amended 2008). He argues that the Superior Court ( Bornstein, J.) erred by: (1) denying his motion to dismiss for insufficient evidence; (2) denying his motion to compel depositions; (3) permitting the State to amend the indictments; (4) granting the State's motion to exclude evidence of the victim's prior and subsequent allegations of sexual assault; (5) granting the State's motion to exclude the defendant from testifying about the duration of his interview with the police; and (6) ordering restitution. We affirm.

The record supports the following facts. On November 8, 2007, Sadie Tetreault, a foster care mother, reported to the Vermont Department of Children and Families (DCF) that the defendant had sexually abused her foster daughter, E.N., a child under the age of thirteen. The DCF Investigator reported the allegations to the Enfield Police Department.

The Enfield Police contacted the defendant and interviewed him for one and a half hours on December 1, 2007. On December 6, 2007, the defendant arrived at the police station at 9:00 a.m. to take a polygraph test. After the polygraph, a detective interviewed him from 12:30 p.m. to 3:40 p.m.

On February 15, 2008, the defendant was indicted on two counts of aggravated felonious sexual assault and one count of sexual assault. In July 2008, he filed a motion to compel deposition testimony from both of his interviewing officers and the polygraph examiner in order to develop evidence that he had given a false confession. The State objected, arguing that the individuals had already provided detailed statements, rendering depositions unnecessary. The trial court denied the defendant's motion, finding that the relevant issues were not complex, the defendant could discover the information by “other means,” and the depositions were not “necessary.” See RSA 517:13, II (2007); State v. Fernandez, 152 N.H. 233, 876 A.2d 221 (2005).

In August 2008, the State moved to amend the original indictments to expand the time frame of the alleged incidents from January 1, 2005 through December 1, 2005, to January 1, 2005 through September 1, 2006. The State argued that time was not an element of the offense and the amendments were “a matter of form and not substance.” The defendant filed no objection. On September 3, 2008, the trial court granted the motion.

In November 2008, the defendant filed a motion to exclude any testimony about the polygraph examination and results, which the trial court granted. In response, the State moved that the defendant be precluded from discussing the time of his arrival at the police station, arguing that it would confuse the jury since the State was not permitted to discuss the polygraph test. Over the defendant's objection, the trial court granted the State's motion, ruling that the defendant could not testify to the time he spent in the police station for the polygraph test if the State didn't “have an opportunity to explain what [the polygraph examiner] was doing there or why.”

Before trial, the State filed a motion to exclude evidence of the victim's prior and subsequent sexual assault allegations, after receiving notification from the defendant that he intended to call three witnesses to testify that the victim falsely accused them of sexual assault. The State argued that the evidence was not admissible pursuant to Superior Court Rule 100–A and New Hampshire Rule of Evidence 403. The State further argued that the evidence was irrelevant and would result in a “trial within a trial,” because the victim maintained that the assaults did occur. The defendant objected, arguing that: (1) Superior Court Rule 100–A does not apply to “false allegations” of sexual activity; (2) the victim was not unfairly prejudiced under Rule 403 because she cannot “justify deceit”; and (3) the evidence was relevant to the victim's credibility. The trial court granted the State's motion, finding the prior allegations had minimal probative value that was “substantially outweighed by the danger of unfair prejudice—confusion of the issues and misleading the jury.”

At the conclusion of the State's case, the defendant orally moved to dismiss the three charges, arguing that the State failed to prove the defendant committed any of the acts “for the purpose of sexual arousal or gratification,” an element of RSA 632–A:2, II (2007). He further argued that the State failed to satisfy its burden on the remaining charge brought pursuant to RSA 632–A:3. The trial court, construing the evidence in the light most favorable to the State, ruled that the State had “produced sufficient evidence from which a reasonable jury could infer or find guilt,” and denied the defendant's motion.

On the last day of trial, the State filed a motion in limine to prevent the defendant from testifying to the time of his arrival at the police station for his second interview. The defendant had referenced the time period in his opening statement and in the testimony of two defense witnesses. The State argued that the ruling on the defendant's previous motion in limine excluded all references to the polygraph, including the length of time that the defendant was in the station to take it. The defendant did not object, stating, “No, I believe that's all decided and agreed to, Your Honor.” The trial court granted the State's motion, finding it consistent with its previous ruling on the motion to exclude the polygraph testimony, where the court had found that “the evidence regarding the time at which [the polygraph examiner] arrived” was inadmissible.

The jury convicted the defendant on all three charges. As part of its sentencing recommendation, the State requested restitution to pay for any future counseling for the victim. Because the victim had not yet incurred medical bills, the State recommended an amount not to exceed $10,000. The State indicated that once a bill was submitted from the victim, the defendant or the department of corrections could request a hearing to review the submission. The trial court imposed restitution consistent with the State's request. The defendant objected, arguing that it was an unconstitutional indefinite sentence without any basis in the record. The trial court found that “in the context of this particular sentence,” it was not unconstitutional because the victim was likely to incur counseling costs and the sentence imposed a ceiling on those costs. Additionally, the trial court found that the defendant could “challenge the amount of restitution if he disputes the reasonableness of the bills.”

I. Sufficiency of the Evidence

On appeal, the defendant argues that the evidence was insufficient to support his convictions. The State counters that the victim's testimony describing the assaults, and the defendant's written and oral statements to police, were sufficient to establish the elements of the three charges.

In challenging the sufficiency of the evidence, the defendant must “prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” State v. Ericson, 159 N.H. 379, 385, 986 A.2d 488 (2009). We will consider the entire trial record because the defendant chose to present a case after unsuccessfully moving to dismiss the indictments. Id.

At trial, the victim testified that the defendant touched her several times on her vagina and her buttocks. She testified that the defendant complimented her body, and that he threatened her and her family if she told anyone about what had occurred. She further testified that the defendant digitally penetrated her, and she marked a plastic glove indicating the depth of penetration. The officer who conducted the first interview with the defendant testified that he admitted to being alone with the victim “[f]our times.” In response to the officer's question whether he ever thought about “touching a kid,” the defendant stated, “everybody thinks about it.”

The officer who conducted the second interview of the defendant testified that he admitted to “tickle wrestling” with the victim and purposely inserting his fingertips into her, but stopped because “he knew it was wrong.” He read aloud the defendant's written statement that “[o]nly tips of a finger was [ sic ] inserted when I touched her.” He also read aloud an apology letter that the defendant wrote to the victim that stated, “I am sorry for the incident that occurred, but it was an accident and I would like to apologize to you. I hope you can forgive me about [ sic ] this.”

The defendant testified that any touching of the victim that may have occurred was accidental. He testified that the second interview was “very aggressive,” and that he could not remember writing a statement because his “brain was fried” by the end of the interview. He testified that he was “browbeated” [ sic ] during the interview and that his written statement used the officer's words, not his own words.

The evaluation of witness credibility and the weight given to witnesses' testimony “were issues for the jury to resolve.” State v. Spinale, 156 N.H. 456, 465, 937 A.2d 938 (2007). The jury heard contradictory testimony from the witnesses, but found the defendant guilty on all three counts. “The jury was free to accept or reject any portion of the victim's testimony in its...