State v. Woodard

• Decision Date: 04 April 2001
• Docket Number: No. 98–779.,98–779.
• Citation: 146 N.H. 221,769 A.2d 379
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire, v. Donna L. WOODARD.

146 N.H. 221

769 A.2d 379

The STATE of New Hampshire,

v.Donna L. WOODARD.

No. 98–779.

Supreme Court of New Hampshire.

April 4, 2001.

Philip T. McLaughlin, attorney general(Ann M. Rice, senior assistant attorney general, on the brief and orally), for the State.

Green & Utter, P.A., of Manchester, (Philip H. Utter on the brief and orally), for the defendant.

BROCK, C.J.

The defendant, Donna L. Woodard, appeals her conviction on nine counts of felonious sexual assault, seeRSA 632–A:3 (1996)(amended 1997), alleging several errors by the Superior Court(Gray , J.).On appeal, she argues that the trial court erred: (1) by admitting the victim's mother's testimony concerning her sexual relationship with the defendant; (2) by admitting the victim's prior disclosures concerning the sexual assaults; (3) by denying her request for a bill of particulars, or, alternatively, failing to require the State to bring alternative indictments; and (4) by failing to consult with the parties prior to responding to a jury request to review a transcript.We reverse and remand.

The following facts were adduced at trial.In 1982, the defendant was a middle school teacher.The victim was a sixth grade student assigned to the defendant's homeroom.During the school year, the defendant often asked the victim to run errands for her at school and to sit on her lap at snack time.The defendant also saw the victim outside of school, taking her to the movies or for ice cream, giving her rides on her motorcycle or in her sports car, and giving her gifts.During these outside activities, the defendant became progressively more affectionate with the victim.Shortly after the victim entered the seventh grade, the defendant and her husband moved next door to the victim's family.After a few months, the defendant and her husband separated, and the defendant eventually moved into the victim's home.

After the victim completed the sixth grade, the defendant's physical contact with her escalated.On two occasions at school, the defendant sought out the victim and in the privacy of a closet and a shower stall sexually assaulted her.The defendant also sexually assaulted her in the parking lot of a grocery store, in a dressing room at Pawtuckaway State Park, and on three occasions in the victim's home.

During this same period of time, the victim's mother found letters from the defendant to the victim in the victim's room.The notes were signed "Love, Woody" and of such an intimate nature that the victim's mother became concerned and shared the contents with her brother, her parents, and two friends.She did not, however, report her concerns to any law enforcement authorities.

The victim did not immediately disclose the assaults by the defendant.She did, however, advise the defendant at the beginning of the eighth grade that the assaults must stop.She later began telling others, including her divorced parents, about the assaults.When she learned several years later of the arrest of another teacher at her former middle school for sexual abuse, she sent a message on her computer to other town residents who subscribed to her Internet service provider that the defendant, who was still employed at the school, had sexually assaulted her.The local police learned of the Internet message and, after investigation, arrested the defendant.

At trial, the State sought to introduce evidence of a sexual relationship which the victim's mother had with the defendant approximately two years after she discovered the letters to her daughter.When the defendant objected to its relevance, the State responded as follows:

Your Honor, it is relevant in that it is germane to the issue of motive as to the witness' motive in terms of not throwing the defendant out of the house and also in terms of not calling the police when she became suspicious of sexual activity between her daughter and the defendant and it's on that basis, not propensity, that the State intends to offer this evidence.

After adducing testimony about this relationship from the victim's mother, the State questioned her about why she neither asked the defendant to leave nor went to the police.In her response, she made no reference to her relationship with the defendant.Instead, she testified that she was afraid that if she reported the assault, the defendant would "take her [daughter] from [her]."The defendant then requested a mistrial which the trial court denied.

I.Testimony of Victim's Mother

The State contends that testimony concerning the sexual relationship between the victim's mother and the defendant was relevant because it explained the mother's failure to report her suspicions about the assaults to the police.The defendant argues that the mother testified that she did not go to the authorities because she feared that the defendant would leave and take her daughter with her; therefore, evidence of the relationship was either irrelevant or far more prejudicial than probative.

Absent an abuse of discretion, we will uphold a trial court's ruling on the admissibility of evidence.SeeState v. Philbrook , 138 N.H. 601, 603, 644 A.2d 66(1994).To establish that a trial court has abused its discretion, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of the defendant's case.SeeState v. Young , 144 N.H. 477, 482, 743 A.2d 1275(1999).

The trial record indicates that the inquiry of the victim's mother concerning her failure to report her suspicions to the authorities was limited to the period of time after the discovery of the letters.The record establishes, however, that the victim's mother became aware of increasing evidence over time that the defendant had sexually assaulted her daughter.This evidence began with her discovery of the letters and culminated in the victim's disclosing the assaults to her mother five years after they had ceased.Despite the increasing evidence, the victim's mother continued to resist contacting the authorities.

We will assume, without deciding, that the trial court could have concluded that the State's introduction of evidence of the sexual relationship to explain her inaction met the threshold test of relevancy.Nevertheless, we conclude that its probative value was substantially outweighed by the danger of unfair prejudice.SeeN.H.R. Ev. 403.That the relationship between the defendant and the victim's mother began almost two years after the last assault and even longer after her discovery of the letters and had ended at least two years before the victim's disclosure to her mother reduces the probative value of the evidence.Moreover, this was but one of several explanations for the mother's inaction which the jury might have considered.Other evidence established that the victim's mother was living alone with her three daughters and working at three jobs at the time that the defendant came to live in the home.The defendant not only provided financial assistance but also assumed some responsibility for child care.Testimony also established that the defendant remained in the victim's home for a number of years, that the living space in the home was limited, and that the mother, the defendant, and on occasion, the victim shared the same bedroom.Therefore, evidence of possible emotional and financial bonds that might have existed between the defendant and the victim's mother had already been introduced.

Moreover, the potential for the jury to be unfairly influenced by whatever bias they might have concerning homosexual conduct created the danger of prejudice.SeeUnited States v. Gillespie , 852 F.2d 475, 479(9th Cir.1988);cf.State v. Roberts , 136 N.H. 731, 738, 622 A.2d 1225(1993).It was particularly relevant in this case where the defendant was on trial for the sexual assaults of a young girl.Disclosure to the jury that the defendant had engaged in a homosexual relationship could have caused the jury to conclude that she was more likely to have committed the alleged assaults.Although the trial court twice offered to give a limiting instruction, we conclude that a limiting instruction would not have cured the prejudicial effect of the testimony, but rather would have emphasized the prejudice.SeeState v. LaBranche , 118 N.H. 176, 179–80, 385 A.2d 108(1978).

The State contends that the evidence was merely cumulative and that its admission was harmless.We disagree.The inadmissible testimony was the only direct evidence presented of the defendant's engaging in a consensual homosexual relationship.The inferential leaps that the jury might have been tempted to make with this evidence are simply too significant to ignore.Therefore we cannot find beyond a reasonable doubt that this inadmissible testimony had no prejudicial effect on the jury.

In the interest of judicial economy, we address the remaining issues that may arise on remand.SeeState v. Frost , 141 N.H. 493, 498, 686 A.2d 1172(1996).

II.Admission of Victim's Prior Disclosures of Assaults

The defendant next contends that the trial court abused its discretion in allowing the victim and the prosecutor to refer to disclosures the victim had previously made to others about the alleged assaults.She argues that the disclosures constituted prior consistent statements which were inadmissible absent any attempt by the defendant to impeach the victim.

Testimony that a sexual assault victim had previously disclosed the assaults to others may be admissible to contradict any inferences which might be drawn from her delay in complaining.SeeState v. Lynch , 94 N.H. 52, 52, 45 A.2d 885(1946).Evidence of such disclosures was originally admitted under the doctrine of fresh complaint, which was based on the presumption that a sexual assault victim would immediately confide in someone and that if no complaint were made, it could be assumed that no assault occurred.See4 J. Wigmore, Evidence§ 1135, at 298(Chadbourne rev.1972).We have recognized in...