THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. Christopher Slayback, the court on November 18, 2015, issued the following order: The defendant, Christopher Slayback, appeals his convictions on nine counts of aggravated felonious sexual assault, see RSA 632-A:2 (Supp. 2014). He argues that the Superior Court (Colburn, J.) erred in: (1) admitting excerpts from a letter he wrote to the victim after the charged conduct occurred; (2) admitting testimony from his ex-wife regarding her lack of interest in specific sexual acts; and (3) denying his request to amend the standard instruction regarding corroboration in sexual assault cases. He also argues that it was plain error for the trial court to admit the victim s testimony that she engaged in consensual sex with the defendant as an adult. We affirm. The defendant first argues that the trial court erred in admitting excerpts from a letter he wrote to the victim more than two years after the charged conduct occurred, when she was at Navy boot camp and no longer a minor. He argues that the letter showed only that he had a relationship with the victim when she was an adult and was not relevant to prove that the charged conduct occurred. To be admissible, evidence must be relevant. State v. Perri, 164 N.H. 400, 412 (2013); N.H. R. Ev Relevant evidence is 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. State v. Sulloway, 166 N.H. 155, (2014); N.H. R. Ev Whether evidence is relevant is a question of fact for the trial court s sound discretion, and we will not overturn its determination absent an unsustainable exercise of discretion. State v. Perri, 164 N.H. at 412. To show an unsustainable exercise of discretion, the defendant must demonstrate that the court s ruling was clearly untenable or unreasonable to the prejudice of his case. Id. In his opening statement, the defendant denied the charges and emphasized that the State s case was based entirely upon the victim s uncorroborated testimony which, he asserted, should not be believed. He attacked the victim s credibility by, among other things, emphasizing that after the alleged assaults and before she became an adult, she did not disclose them to her counselor, doctors, or anyone else, and did not seek help.

2 The victim testified that she was between the ages of fourteen and seventeen when the assaults occurred. She testified that the defendant told her that they were lovers, that his divorce from his wife was imminent, and that once it was finalized and [the victim] was [they] would run away to Montana together. The defendant told the victim that he was going to have his vasectomy reversed, and that they were going to have babies. The victim testified that she thought they were having an affair. In the excerpt of the letter read to the jury, the defendant wrote that he planned to attend the victim s graduation from Navy boot camp. He wrote, I miss you so much and cannot wait to see you when you re dressed in your [uni]form. I bet you look hot. He closed by stating, I love you so much, baby. See you soon. Love Chris. P.S. Big hug for you and big kiss for you. We have held that the State may introduce evidence to assist the jury in assessing a witness s credibility, see State v. VanDerHeyden, 136 N.H. 277, 283 (1992), and to explain a sexual assault victim s behavior, including evidence explaining a delay in disclosure, see, e.g., State v. Cook, 158 N.H. 708, 713 (2009). In this case, we conclude that the letter was relevant because it corroborated the victim s description of her relationship with the defendant while the assaults were occurring that they were lovers having an affair and explained why she did not disclose the assaults to her counselor, her doctors, the defendant s wife, or anyone else. The defendant argues that even if the letter was relevant, its probative value was substantially outweighed by the danger of unfair prejudice. [R]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. State v. Wells, 166 N.H. 73, 79 (2014) (quotation omitted); N.H. R. Ev [W]e give the trial court broad latitude when ruling on the admissibility of potentially unfairly prejudicial evidence. State v. Nightingale, 160 N.H. 569, 575 (2010). Thus, we will not disturb the trial court s decision absent an unsustainable exercise of discretion. Id. The defendant argues that the letter was unfairly prejudicial because the victim testified that she had sex with him in his hotel room after her boot camp graduation. He asserts that there was a danger that the jury would improperly infer from the letter, in combination with this testimony, that he sexually assaulted the victim as a minor. We note, however, that the defendant denied communicating in the letter any sexual interest in the victim, and he denied having sex with the victim after her boot camp graduation, or at any other time. The defendant s denials enhanced the probative value of the letter as supportive of the victim s credibility. See State v. VanDerHeyden, 136 N.H. at 283. Based upon this record, we cannot conclude that the trial court 2

3 unsustainably exercised its discretion in concluding that the probative value of the letter was not substantially outweighed by the danger of unfair prejudice. See State v. Nightingale, 160 N.H. at 575. The defendant also argues that the letter was inadmissible under Rule 404(b) as evidence of other bad acts, namely, his decision to have sex with the victim when she was nineteen years old. The defendant has the burden to provide this court with a sufficient record to decide his issues on appeal and to demonstrate that he raised the issues in the trial court. State v. Winward, 161 N.H. 533, 542 (2011). The general rule in this jurisdiction is that a contemporaneous and specific objection is required to preserve an issue for appellate review. State v. Winstead, 150 N.H. 244, 246 (2003) (quotation omitted). The objection must state explicitly the specific ground of objection. N.H. R. Ev. 103(b)(1). In the defendant s motion in limine to exclude the letter, he relied upon Rules 401 and 403. The trial court was unable to locate the recording of the hearing on the motion; however, nothing in the record shows that the defendant raised a Rule 404(b) objection at the hearing, and the record shows that he did not object to the admission of the letter at trial. In his brief, the defendant does not specifically assert that he raised a Rule 404(b) objection in the trial court, and he does not contest the assertion in the State s brief that he raised this issue for the first time on appeal. Based upon this record, we conclude that the defendant has not demonstrated that he raised this issue in the trial court, and we therefore decline to address it. See State v. Winstead, 150 N.H. at 246. The defendant next argues that it was plain error for the trial court to admit the victim s testimony that she engaged in consensual sex with the defendant as an adult. The defendant asserts that the only possible relevance of this testimony was to support the improper inference that he acted in conformity with the charged conduct. The record shows that the defendant did not object to this testimony. Accordingly, as an initial matter, we disagree with the defendant s assertion that the trial court admitted this testimony, when the court was not asked to rule on its admissibility. See State v. Noucas, 165 N.H. 146, 161 (2013) (reviewing whether trial court committed plain error in failing sua sponte to strike testimony or issue a curative instruction after officer testified that the defendant invoked his right to counsel). Thus, the issue here is whether the trial court erred in failing sua sponte to strike the victim s testimony. See id. We have never held that a trial court must sua sponte strike a witness s testimony. See id. Moreover, we conclude that the evidence was relevant for the non-propensity purpose of supporting the victim s description of her relationship with the defendant during the time of the charged conduct that they were lovers having an affair which, as previously noted, was relevant to explain her failure to disclose the assaults earlier. See State v. Cook, 158 N.H. at 713. Accordingly, we conclude that the defendant has not demonstrated that it was plain error for the trial court not to 3

4 sua sponte strike the testimony. See State v. Noucas, 165 N.H. at 160 (to find plain error, there must first be an error). The defendant next argues that the trial court erred in admitting testimony from his ex-wife regarding her lack of interest in oral and anal sex, asserting that such testimony was not relevant to whether he assaulted the victim. The defendant was charged with having oral and anal sex with the victim on more than one occasion when she was a minor. The victim testified that during her relationship with the defendant, he told her that his sex life with his wife was not nearly as exciting because she was not open minded to certain things, including anal sex and oral sex. The defendant s ex-wife testified that she was not comfortable with anal sex or oral sex, and that she had never shared this information with anyone. We conclude that the wife s testimony was relevant because it tended to show that the defendant committed the assaults to satisfy sexual desires that his wife was not willing to satisfy. In addition, the testimony showed that the defendant discussed with the victim his sex life with his wife, which supported the victim s testimony that she and the defendant were lovers having an affair. Accordingly, we conclude that the trial court did not unsustainably exercise its discretion in admitting this testimony. See State v. Perri, 164 N.H. at 412. The defendant also argues that the probative value of this testimony was substantially outweighed by the danger of unfair prejudice. However, the record fails to show that the defendant raised this issue at trial. Accordingly, we decline to address it. See State v. Winstead, 150 N.H. at 246. The defendant next argues that the trial court erred in denying his request to amend the standard instruction stating that corroboration in sexual assault cases is not necessary. He asserts that this instruction focuses the jury s attention on the complaining witness[ s] testimony and discourages [the jury] from... considering other evidence. The defendant asked if we could include language... to the effect of but you may consider in your deliberations the existence or absence of corroborating evidence in reaching your verdict. [T]he purpose of the trial court s charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case. State v. Furgal, 164 N.H. 430, 434 (2012) (quotation omitted). The trial court is not required to use the specific language requested by the defendant. Id. (quotation omitted). Whether a particular jury instruction is necessary, and the scope and wording of jury instructions, are within the sound discretion of the trial court, and we review the trial court s decisions on these matters for an unsustainable exercise of discretion. Id. at 435 (quotation omitted). We determine whether the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case. Id. at (quotation omitted). 4

5 After closing arguments, the trial court instructed the jury as follows: The law does not require that the testimony of the alleged victim be corroborated. This means that if you find that the alleged victim s testimony is credible[,] in other words, if you believe her testimony, th[e]n you may return a verdict of guilty without additional evidence. This does not mean that simply because the alleged victim took an oath to tell you the truth, you must accept her testimony as true. In deciding whether the State has prov[ed] the charges against the Defendant beyond a reasonable doubt, you must decide the credibility of the alleged victim just as [you] must decide the credibility of every other witness. You must apply the same factors to decide her credibility as you apply to all witnesses. We conclude that the court s instruction adequately and accurately stated the law regarding uncorroborated testimony in sexual assault cases, see, e.g., State v. Cook, 148 N.H. 735, 742 (2002) (approving similar instruction), and, thus, we cannot conclude that the court unsustainably exercised its discretion in denying the defendant s request to modify the instruction, see State v. Furgal, 164 N.H. at 435. The defendant argues that we should revisit the standard instruction regarding the uncorroborated testimony of an alleged assault victim. To the extent that the defendant seeks to have us overrule our precedent approving similar instructions, [t]he doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results. State v. Quintero, 162 N.H. 526, 532 (2011) (quotation omitted). We have identified four factors to be considered in determining whether precedent should be overruled. See id. at (discussing factors). Although the defendant discusses cases from other jurisdictions addressing this issue in various ways, he has failed to brief the stare decisis factors. Accordingly, we decline to reconsider our precedent approving similar instructions. See State v. Blackmer, 149 N.H. 47, 49 (2003) (noting that we confine our review to issues the defendant has fully briefed). Affirmed. DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred. Eileen Fox, Clerk 5