State v. Yates

• Decision Date: 23 May 2005
• Docket Number: No. 2004–283.,2004–283.
• Citation: 876 A.2d 176,152 N.H. 245
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Brandon YATES.

152 N.H. 245

876 A.2d 176

The STATE of New Hampshire

v.Brandon YATES.

No. 2004–283.

Supreme Court of New Hampshire.

Argued: April 5, 2005.

Opinion Issued: May 23, 2005.

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

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

BRODERICK, C.J.

The defendant, Brandon Yates, was tried before a jury in Superior Court (Hicks , J.) on two counts of aggravated felonious sexual assault (AFSA), see RSA 632–A:2 (Supp.2004) ; two counts of felonious sexual assault (FSA), see RSA 632–A:3 (Supp.2004) ; one count of sexual assault, see RSA 632–A:4 (Supp.2004) ; two counts of endangering the welfare of a child, see RSA 639:3 (Supp.2004) ; and four counts of prohibited sales, see RSA 179:5 (2002). The jury found the defendant guilty of one endangerment charge, all four charges of prohibited sales and one charge of FSA, and acquitted him of the remaining charges. On appeal, the defendant challenges his convictions for FSA and endangering the welfare of a child, arguing that the trial court erred in allowing the State to play the tape of a 911 call at trial, and in failing to dismiss the endangerment charge. We affirm in part, reverse in part, vacate in part, and remand for resentencing.

A jury could have found the following facts. In mid-afternoon on November 2, 2002, the fourteen-year-old victim and three of her juvenile friends met with the defendant, who was then eighteen years old, at the Memorial School in Hudson. The group gathered in the woods behind the school, and the defendant produced a bottle of vodka from his backpack. The victim drank more of the vodka than anyone else. At some point, the group went further into the woods and up a small hill, where the defendant built a fire. Thereafter, the victim began to appear impaired. She slurred her words, talked nonsensically and had difficulty walking.

Several members of the group tried to assist the victim to the school so she could call her mother, but she kept falling and was unable to walk down the hill. Eventually, they abandoned their efforts and returned the victim to the fire. Two of the victim's friends then left, at which time the victim was lying on the ground near the fire with her eyes closed, not responding when people spoke to her.

At approximately 5:00 p.m., a third member of the group, Amy, left the woods to call her mother, Laurie M. The defendant remained behind with the victim. Amy was unable to find a working pay phone nearby, so she walked home and called her mother at work to tell her that the victim was in trouble and to ask her to come home. When Ms. M. arrived, she and Amy went to the woods and called for the victim and the defendant. They heard no response, and returned home to get a flashlight. Amy's stepfather, Joseph M., accompanied them on their return to the woods.

After several minutes of searching, they found the victim lying on the ground, approximately three feet away from a pile of burning embers remaining from the fire. The victim was wearing pajama bottoms, which were pulled down by her ankles. Her shirt was off, her bra was up near her neck, and she was not responsive. The defendant was gone. It was very cold outside, so Mr. and Ms. M. covered the victim with their coats. Ms. M. then used her cell phone to call the victim's mother and 911. After speaking briefly with the 911 operator, Ms. M. handed the cell phone to her husband so that he could remain on the line with 911 while she met emergency response personnel to direct them to the victim.

The victim was transported to St. Joseph's Hospital. At the hospital, Joanna Rix, a registered nurse and a certified sexual assault nurse examiner, treated the victim. The victim was initially unresponsive to loud voices, shaking, touching and a "sternal rub."

About two hours later, while the victim was still unresponsive, Ms. Rix performed a sexual assault examination using a rape kit. Ms. Rix observed bits of dead leaves, moss, grass and other types of woodland debris in the victim's navel, between her buttocks and in her genital area. She also observed fresh injuries to the victim's genital area.

At approximately 12:30 a.m. on November 3, two detectives from the Hudson Police Department arrived at the defendant's house and told him that they wanted to speak with him concerning the events of the previous evening. At their request, he accompanied them to the Nashua Police Department. When questioned by the police, the defendant admitted to being in the woods behind the Memorial School with the group of teenagers, and to providing them with alcohol. Although he initially denied having any sexual contact with the victim, the defendant eventually admitted, both orally and in writing, to such contact. When asked about the victim's level of impairment, the defendant responded that on a scale of one to ten, with ten being the most impaired, he thought she was an eight or nine.

Prior to trial, the defendant moved to exclude the tape of the 911 call, based, in part, on his contention that the prejudicial effect of the tape outweighed its probative value. The court ordered the State to edit the second half of the tape, containing Mr. M.'s conversation with the 911 operator, and allowed the State to play for the jury only Ms. M.'s conversation. Both before and after the State played the tape, the trial court gave the jury limiting instructions. The trial court denied the State's request to play the tape during its closing argument, and also denied the State's request to admit the tape into evidence as a full exhibit. At the close of the State's case, the defendant moved unsuccessfully to dismiss both charges of endangering the welfare of a child, arguing that he did not owe the victim a "duty of care" within the meaning of RSA 639:3.

I

Relying upon New Hampshire Rule of Evidence 403 and State v. Jordan, 148 N.H. 115, 803 A.2d 604 (2002), the defendant first argues that the trial court erred in allowing the State to play the 911 tape for the jury. Although he concedes that Ms. M.'s statements during the 911 call qualified as excited utterances under New Hampshire Rule of Evidence 803(2), he maintains that the tape lacked probative value because: (1) several witnesses, including Ms. M., testified to the same information about the victim's physical condition contained on the tape; and (2) Ms. M.'s statements were not a contemporaneous account of the events underlying the charged offenses. He contends that the tape was unfairly prejudicial to his case because: (1) Ms. M. offered an opinion during the 911 call that she could not have offered as a witness testifying at trial, namely, that the victim appeared to have been "sexually abused"; and (2) the 911 operator referred to the victim being "sexually abused," and asked Ms. M. whether the "attacker" was still nearby, twice reinforcing the conclusion that the defendant was guilty of assaulting the victim. Thus, according to the defendant, the prejudicial effect of the tape substantially outweighed its probative value, and was not sufficiently mitigated by the trial court's limiting instructions to the jury, its ruling that the State could not play the tape during its closing or its ruling that the State could not admit the tape as evidence.

The State, for its part, argues that the trial court did not err in allowing the tape to be played because Ms. M.'s description of the victim's physical condition, conveyed just a short time after the defendant had left her in the woods, demonstrated how the victim may have appeared at the time of the assault and abandonment. The State maintains that the tape was therefore relevant to material elements of the two AFSA charges and the two endangerment charges: (1) whether the victim was physically incapacitated; and (2) whether the defendant knew of her condition.

We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion. State v. Jordan, 148 N.H. 115, 117, 803 A.2d 604 (2002). To demonstrate that the trial court exercised unsustainable discretion, the defendant must show that the ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

New Hampshire Rule of Evidence 401 defines relevant evidence as "evidence having 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." However, evidence that is relevant may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. N.H. R. Ev. 403 ; State v. Hall, 148 N.H. 671, 675, 813 A.2d 501 (2002). As we explained in Jordan :

Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Unfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove his guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial. Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.

Jordan, 148 N.H. at 117–18, 803 A.2d 604 (quotation, citation and brackets omitted).

In Jordan , we upheld the trial court's decision to admit into evidence a redacted 911 tape. Id. at 117–18, 803 A.2d 604. In that case, the defendant's wife instructed her daughter, Erica, to call 911 after the defendant hit a man who was at the house and pushed his wife to the ground, fracturing her arm, such that she could...