State v. Colbath

171 N.H. 626

200 A.3d 1265

The STATE of New Hampshire

v.George J. COLBATH

No. 2017-0712

Supreme Court of New Hampshire.

Argued: November 6, 2018

Opinion Issued: January 8, 2019

Gordon J. MacDonald, attorney general (Heather A. Cherniske, attorney, 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, George J. Colbath, appeals his convictions, following a six-day jury trial, on 17 charges of aggravated felonious sexual assault (AFSA). See RSA 632-A:2, I(d), III (2016), V (2016) (amended 2017); see also RSA 631:2-b, III (2016). On appeal, he argues that the Superior Court (Fauver and Smukler, JJ.) erred by admitting evidence of certain uncharged conduct pursuant to New Hampshire Rule of Evidence 404(b). He also argues that the Superior Court (Smukler, J.) erred by allowing two witnesses to testify about statements that he allegedly made about the victim's appearance. We affirm.

I

The jury could have found the following facts. The victim was born in December 1998. Her parents separated when she was an infant, and she and her mother moved to New Hampshire, where her mother met and married the defendant. The victim's mother died in November 2009, shortly before the victim turned 11.

When the victim was in sixth grade, she and the defendant moved to Nottingham to live with his then-girlfriend and her children. The first incident of sexual contact between the victim and the defendant occurred when she was in eighth grade. Upon arriving home from a party, the victim noticed "liquid" in her underwear. Because she did not know what it was, she asked the defendant about it, "and he wanted [her] to show him." While in the bathroom, the victim showed the defendant her underwear. The defendant "proceeded to examine [her] vagina," and remarked that her vagina looked like her mother's. The defendant told the victim that she "must have excited [herself] in some way."

The next incident occurred when the victim and the defendant were watching a movie together at home. The defendant asked the victim if she had ever masturbated, and, when she said that she had not, he said that he wanted to show her how to "make [herself] feel good." The defendant then removed the victim's underwear and digitally penetrated her.

One day, when the victim was sleeping, she awoke to the defendant pulling her shirt down and touching her breasts. She confronted him about this on a different day and "he said that he couldn't help himself."

Shortly after the first movie incident occurred, a second incident occurred while the victim was watching a movie in her bedroom. The defendant entered her bedroom, lay down next to her, and began to watch the movie with her. As he did so, he moved his hand up her leg, close to her vagina. The defendant indicated that he wanted to digitally penetrate her again, but the victim said that she "didn't want ... to." Nonetheless, the defendant digitally penetrated the victim and then performed cunnilingus.

In the summer between eighth and ninth grade, the defendant and his girlfriend broke up, and he and the victim moved to Alton. When the victim and the defendant were moving some belongings into the Alton home, he gave her "a small vibrator in a white satin bag." He told the victim that he wanted to use it on her. He then proceeded to do so and again digitally penetrated her and performed cunnilingus. The defendant then penetrated the victim's vagina with his penis for the first time. The victim was angry with the defendant "because he had said he would never, ever put his penis inside of [her]."

Once the defendant and the victim began living in Alton, he began penetrating her vagina with his penis "almost weekly." The defendant engaged in the same pattern of conduct whenever he penetrated her vagina with his penis: he would make the victim undress and lie down, then he would digitally penetrate her, perform cunnilingus, and insert his penis into her vagina. The defendant also penetrated the victim's anus with his penis "a couple of times."

The victim turned 16 in December 2014. In June 2015, she and the defendant moved to Center Barnstead to live with the defendant's now wife, Suzanne. In the beginning of the school year that began in August 2015, the victim became friends with a girl with whom she commuted to a vocational high school. This friend was the first person in whom the victim confided about the sexual incidents with the defendant. The victim had not previously disclosed them because she feared that, if she did so, she might lose her place to live, either because "the State would take [her]" or because the defendant would "ship[ ] [her] off to Alabama to live with [her] real father."

After the victim confided in her friend, the defendant continued to assault the victim on a weekly basis. The assaults included penetrating the victim digitally, performing cunnilingus, inserting his penis into her vagina and anus, using vibrators on her and on himself, and forcing her to perform fellatio. To force the victim to engage in sex acts with him, the defendant would take away her privileges, such as her phone or her car, or threaten to sell her beloved horses. The defendant would often tell the victim that he was "all that [she] had."

Shortly after the victim turned 17, the defendant "made [her] have sex with him," and she "told him that if he keeps it up, [she] was going to have to eventually tell ... somebody about it because [she] couldn't handle ... holding the secret anymore." The defendant told her to "go ahead and tell somebody" because "they [wouldn't] believe [her]."

By the end of January 2016, Suzanne had noticed that the victim "had been acting more short and tense with [the defendant]." On January 30, Suzanne asked the victim if she "had ever been molested by a close family member," and the victim "kind of lost it." She "broke down," crying, and told Suzanne that she "couldn't tell her." Eventually, however, the victim told Suzanne about the defendant's conduct. When Suzanne confronted the defendant, he said that "he wasn't going to go to jail for this." He then left the home, and, as he left, threatened to kill himself. After he left the home, the defendant telephoned Suzanne, telling her that he had taken "something" and that "he was going to kill himself." The defendant hung up on Suzanne, but before doing so said that he was going to destroy his phone.

A Belknap County Grand Jury indicted the defendant on 17 counts of AFSA. All of the charges alleged incidents occurring in Belknap County (e.g., Alton or Center Barnstead). Four of the charges alleged that the defendant had engaged in a pattern of AFSA between September 1, 2014, and December 6, 2014. See RSA 632-A:2, III. The remaining 13 charges alleged that the defendant coerced the victim to submit to discrete acts constituting AFSA by threatening retaliation and that the victim believed that he had the ability to execute those threats. See RSA 632-A:2, I(d). Several of those charges included the allegation that the victim and the defendant were family or household members. See RSA 632-A:2, V; see also RSA 631:2-b, III.

Before trial, the State filed a motion in limine to admit the Nottingham incidents into evidence. The trial court granted the motion over the defendant's objection. The trial court determined that the Nottingham incidents were relevant to demonstrate "the defendant's plan, preparation, and intent to commit the alleged crimes."

During the trial, the trial court admitted into evidence, over the defendant's objection, the victim's aunt's testimony that, "[a] few times," the defendant made comments to the aunt about what the victim "looked like and her body." Specifically, the aunt testified that the defendant described the victim as "very well[-]endowed like her mother," and "built like a brick shit house."

The trial court also admitted into evidence, over the defendant's objection, the testimony of his adult son that, when the victim was in "early adolescence" and living in Nottingham, the defendant had remarked to his son: "[Y]ou should see the tits on her."

After the son testified thusly, the trial court gave the jury the following instruction:

Members of the jury, at the beginning of this case, I told you that there may be occasions where evidence is being introduced for a limited purpose and, if that came up, I would instruct you as it comes up. This evidence was introduced for a limited purpose indeed. I also want to make you aware that there has been some previous evidence, and I will tell you what it was.

It was introduced for the same limited purpose, and the evidence you just heard involving statements of the defendant that occurred before the conduct charged in this case is being introduced for a limited purpose, not to show -- not for the purpose of showing that the defendant is of a particular character and that he acted in performance [sic ] with the character but solely for the purpose of allowing you to assess -- and to be used to assess his mental state or intent at the time of the charged conduct.

So -- and that it pertains to the evidence you just heard, it pertains to similar evidence you heard previously by [the victim's aunt], and it pertains to evidence of conduct that occurred before the defendant moved to Belknap County, the conduct that occurred in Rockingham County specifically ... Nottingham.

The trial court reiterated that limiting instruction when it issued its final jury instructions:

Some evidence was introduced for a limited purpose. Specifically, the State has offered evidence of the defendant's conduct and statements made when he and [the victim] lived in Nottingham .... If you find such evidence to be credible, you may consider it only for the limited purpose of determining whether the State has met it[s] burden of proving the defendant's mental state, that he acted knowingly. Evidence of similar acts may not be

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