State v. Plantamuro, 2016-0426

• Decision Date: 07 September 2018
• Docket Number: No. 2016-0426,2016-0426
• Citation: 194 A.3d 464,171 N.H. 253
• Parties: The STATE of New Hampshire v. Shawn PLANTAMURO
• Court: New Hampshire Supreme Court

171 N.H. 253

194 A.3d 464

The STATE of New Hampshire

v.Shawn PLANTAMURO

No. 2016-0426

Supreme Court of New Hampshire.

Argued: October 12, 2017

Opinion Issued: September 7, 2018

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

HANTZ MARCONI, J.

The defendant, Shawn Plantamuro, appeals his convictions, following a jury trial, on two counts of aggravated felonious sexual assault, see RSA 632-A:2, I(l), II (2016), one count of felonious sexual assault, see RSA 632-A:3, III (2016), and one count of felony indecent exposure and lewdness, see RSA 645:1, II(a) (Supp. 2014) (amended 2015). On appeal, he argues that the Superior Court (Houran, J.) erred by: (1) excluding "evidence about the circumstances of" the victim's disclosure of the assaults to her mother; and (2) prohibiting the defendant's ex-wife from testifying that he "is sexually attracted to women, not to children." We affirm.

I

The record reflects the following facts. In May 2016, the defendant was convicted of sexually abusing the victim, who was born in 2007. At the time of the abuse, which occurred between 2012 and 2014, the victim and her mother lived in the same neighborhood as the defendant. The victim would often go to the defendant's house to visit him and his mother. The victim testified that the assaults took place in the defendant's bedroom, which was, essentially, a porch converted into a bedroom. The victim testified that the defendant showed her videos in which "[r]eal people" were "naked and ... having sex"; she also testified that the defendant told her that he was "going to do this to [her] one day." According to the victim, the defendant subsequently engaged in sexual activity with her and masturbated in front of her. She testified that this activity occurred on four occasions.

The victim and her mother moved away from the defendant's neighborhood in early 2014. On June 15, 2014, the victim disclosed the defendant's behavior to her mother. The jury did not learn the circumstances or content of this disclosure, which are described below, because the trial court excluded this evidence on hearsay and relevance grounds.

After the disclosure, the police obtained authorization to record a telephone conversation between the victim's mother and the defendant, see RSA 570-A:2, II(d) (2001), during which she confronted him with the victim's allegations. Unaware that the conversation was being recorded, the defendant denied molesting the victim but admitted allowing her to watch "Japanese animation" videos that depicted "the whole nine yards," including "boobs," "penetration," and "intercourse." This recorded telephone conversation was played for the jury. The defendant testified at trial and denied that he had molested the victim. On cross-examination, he admitted that, in his presence, the victim watched animated videos that were "inappropriate" and that "probably" depicted intercourse. The trial court dismissed two counts not relevant to this appeal, and the jury convicted the defendant on the remaining four counts.

II

The defendant raises two issues on appeal, both of which relate to the trial court's evidentiary rulings. First, he argues that the trial court erred by excluding "evidence about the circumstances of" the victim's disclosure of the abuse to her mother in June 2014. Second, he argues that the trial court erred when it ruled that State v. Graf, 143 N.H. 294, 726 A.2d 1270 (1999), precluded him from offering character evidence, in the form of opinion testimony from his ex-wife, that he "is sexually attracted to women, not to children." We set forth our standard of review before addressing each argument in turn. We also note that, in addressing these arguments, we apply the rules of evidence in effect at the time of the defendant's 2016 trial. See State v. Holmes, 159 N.H. 173, 175, 978 A.2d 909 (2009) (interpreting version of evidence rule in effect at time of trial).

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. Milton, 169 N.H. 431, 435, 150 A.3d 926 (2016). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. In applying our unsustainable exercise of discretion standard of review, we determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. State v. Letarte, 169 N.H. 455, 461, 151 A.3d 533 (2016). Our task is not to determine whether we would have found differently, but is only to determine whether a reasonable person could have reached the same decision as the trial court on the basis of the evidence before it. Id. The defendant bears the burden of demonstrating that the trial court unsustainably exercised its discretion. See State v. Costella, 166 N.H. 705, 714, 103 A.3d 1155 (2014).

III

The defendant first challenges the trial court's decision to exclude "evidence about the circumstances of" the victim's disclosure of the abuse to her mother in June 2014. We construe the defendant's brief as challenging the exclusion of the following: (1) evidence that the victim engaged in masturbatory activity; and (2) statements made by the victim and her mother on June 15, 2014 (June 15th conversation), during which the mother asked the victim about her masturbatory behavior and the victim disclosed the defendant's sexual abuse. The trial court ruled that the statements made during the June 15th conversation constituted inadmissible hearsay. The court excluded the masturbation evidence on relevance grounds. The court also ruled that the victim's masturbatory behavior was "territory" covered by the rape shield law. See RSA 632-A:6, II (2016); N.H. R. Ev. 412.

On appeal, the defendant challenges the trial court's hearsay and relevance rulings, as well as its application of the rape shield law. The State contends that the defendant's hearsay and rape shield law arguments are not preserved for our review. To resolve the State's preservation challenge, and to evaluate the merits of the defendant's preserved argument(s), we must examine how these issues were presented to the trial court, the parties' arguments to the trial court, and the trial court's rulings. See State v. Wilson, 169 N.H. 755, 768, 159 A.3d 859 (2017).

A

The following information concerning the victim's disclosure was available to the trial court at the time it made the rulings pertinent to this appeal. See State v. Addison (Capital Murder), 165 N.H. 381, 419, 87 A.3d 1 (2013) ("[W]e review the propriety of the trial court's pretrial rulings in the context in which evidentiary disputes were presented to the court."); cf. State v. Gordon, 161 N.H. 410, 414, 13 A.3d 201 (2011) ("Because the trial court ruled upon the admissibility of the challenged evidence before trial, we consider only the offers of proof presented at the pretrial hearing.").

Beginning at an unspecified point in time, the victim's mother observed the victim engaging in masturbatory behavior. There is no suggestion in the record that the victim's mother confronted the victim about this behavior or otherwise broached this subject when the mother observed the behavior.

Prior to the disclosure, the victim attended a sleep-over. While there, a friend of the victim's mother observed the victim rubbing herself and later reported this behavior to the victim's mother. On June 15, 2014, the victim's mother spoke with the victim about why she had been putting her hands down her pants. The victim told her mother that "[i]t felt good." When the victim's mother asked the victim who showed her how to do that, or something to that effect, the victim replied, "Shawn showed me." During the ensuing conversation with her mother, the victim disclosed that the defendant had been showing her movies with naked people in them, as well as touching her inappropriately and making her touch his penis.

Before trial, the court ruled that the statements made by the victim and her mother during the June 15th conversation were not admissible because they constituted hearsay. Hearsay is defined as "an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement." State v. Bennett, 144 N.H. 13, 17, 737 A.2d 640 (1999) (quotation omitted); see N.H. R. Ev. 801(c) (amended 2017). "Hearsay evidence is generally inadmissible, subject to certain well-delineated exceptions." State v. Munroe, 161 N.H. 618, 626, 20 A.3d 871 (2011). In ruling that the statements made during the June 15th conversation constituted inadmissible hearsay, the trial court identified the State as the anticipated proponent of this evidence. The court also appeared to assume that the State planned to offer these statements for the truth of the matter asserted therein. Cf. State v. Reinholz, 169 N.H. 22, 28, 140 A.3d 509 (2016) ("If a statement is not offered to prove its truth, but is offered for some other reason, it is not hearsay.").

In the same pretrial order, the court also ruled that evidence of the victim's masturbatory behavior was not admissible because it was not relevant. See N.H. R. Ev. 402 (amended 2017) ("Evidence which is not relevant is not admissible."). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H. R. Ev. 401 (amended 2017). The trial court determined that evidence of the victim's masturbation would be relevant only to explain the June 15th conversation between the victim and her mother. The court concluded, therefore, that the relevance of the masturbation evidence depended upon the...