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                 THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Merrimack
No. 2012-827


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                              THEADORE MITCHELL

                          Argued: January 16, 2014
                         Opinion Issued: May 16, 2014

      Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant
attorney general, on the brief and orally), for the State.

      James B. Reis, assistant appellate defender, of Concord, on the brief and
orally, for the defendant.


       LYNN, J. Following a jury trial in Superior Court (Smukler, J.), the
defendant, Theadore Mitchell, was convicted of one count of aggravated
felonious sexual assault, RSA 632-A:2, I(m) (2007), and two class A
misdemeanor counts of violation of a protective order, RSA 173-B:9, III (2002).
He appeals, arguing that the trial court erred by excluding evidence that he
offered to take a polygraph test. The defendant also argues that the trial court
plainly erred when it allocated his pretrial confinement credit. We affirm in
part, vacate in part, and remand for resentencing.
                                        I

       The record establishes the following facts. In the early morning of May 2,
2012, officers arrested the defendant pursuant to a warrant and transported
him to the Northfield Police Station. Officer Aaron Chapple brought the
defendant into a booking room and read him his Miranda rights. See Miranda
v. Arizona, 384 U.S. 436 (1966). The defendant waived his rights and agreed to
speak with Chapple. Chapple began a recorded interview and informed the
defendant that he was being charged with aggravated felonious sexual assault
and simple assault. Several times throughout the interview the defendant
denied any sexual contact with the victim. Chapple observed that the
defendant got “a little bit more defensive” when specifically questioned about
having sex with the victim.

       During the interview, the defendant asked, “[C]an’t you take a lie detector
test for this stuff?” Chapple replied, “[W]e don’t do lie detectors on – you know,
on everything.” Later in the interview, the defendant stated, “I’ll take a lie
detector. I can take a polygraph. I’ll do whatever you guys tell me to.”
Chapple did not acknowledge this offer. Toward the end of the interview, the
defendant again stated, “I could take a lie detector test. I’ll pass that sucker.
I’m not a good liar.” Chapple again did not acknowledge the offer. In addition
to the above offers to take a polygraph, the defendant made other statements
adamantly denying, throughout the interview, that he and the victim had sex.

       Before trial, the State moved to exclude the portions of the defendant’s
recorded interview in which he offered to take a polygraph test. Defense
counsel objected, arguing that the defendant’s willingness to take a polygraph
should be admitted as evidence. Defense counsel analogized the defendant’s
statements to the statement, “I’ll swear on a stack of Bibles,” arguing that they
provided context of the degree to which the defendant asserted his innocence.
Defense counsel specifically argued that the defendant’s offers should be
admitted under the doctrine of completeness because the State would gain a
misleading advantage if it were allowed to admit only part of the recorded
interview. Additionally, defense counsel argued that the offers should be
admitted pursuant to the defendant’s right to present “favorable proofs” under
the State and Federal Constitutions.

      The trial court first determined that the doctrine of completeness did not
apply, reasoning that the State would not gain a misleading advantage because
the defense would be able to elicit evidence that the defendant adamantly
denied culpability. The court found that the particular manner of the
defendant’s denial, i.e., by offering to take a polygraph, was of little probative
value and was likely to cause a great deal of confusion. Having declined to
admit the statements under the doctrine of completeness, the trial court ruled
that the defendant’s offers to take a polygraph test were inadmissible hearsay.



                                        2
The trial court later expanded upon its ruling, citing State v. LaForest, 106
N.H. 159, 161 (1965), as well as out-of-state authority, for the general premise
that an accused’s willingness or refusal to take a polygraph is inadmissible.

       The jury ultimately convicted the defendant of one count of aggravated
felonious sexual assault and two counts of violation of a protective order. This
appeal followed.

                                         II

      On appeal, the defendant presents several arguments in support of his
claim that the trial court erred in excluding from evidence his offers to take a
polygraph test. We address each argument in turn below.

      Initially, we note that it appears from the record that the trial court
assumed, without deciding, that the defendant’s offers to take a polygraph test
were relevant. See N.H. R. Ev. 401 (“‘Relevant evidence’ means 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.”). Accordingly, we make the same assumption and do
not address this issue further.

       “The decision to admit or exclude evidence is within the discretion of the
trial court.” State v. Furgal, 164 N.H. 430, 438 (2012) (quotation omitted). In
determining whether the trial court’s ruling is a proper exercise of judicial
discretion, “we consider whether the record establishes an objective basis
sufficient to sustain the discretionary decision made.” Id. (quotation omitted).
“To show an unsustainable exercise of discretion, the defendant must
demonstrate that the trial court’s ruling was clearly untenable or unreasonable
to the prejudice of his case.” Id. (quotation omitted).

                                         A

        We address first the trial court’s ruling that the defendant’s offers to take
a polygraph test constituted hearsay. The trial court reasoned that while the
State could introduce the defendant’s statements against him, any attempt by
the defendant to introduce those statements would constitute hearsay. The
court later ruled that the defendant’s offers could not be admitted even if he
testified.

      “Hearsay is an out-of-court statement offered in evidence to prove the
truth of the matter asserted, N.H. R. Ev. 801(c), which is not specifically
excluded as non-hearsay by Rule 801(d).” Kelleher v. Marvin Lumber & Cedar
Co., 152 N.H. 813, 832 (2005) (quotation omitted). In this case, the
defendant’s offers to take a polygraph were made during his out-of-court



                                          3
interrogation, and he has not argued that he sought to admit these statements
for any reason other than to prove the truth of the matter asserted, i.e., that he
was in fact willing to take a polygraph.

      The defendant raises two exceptions to the hearsay rule, but his
argument was not preserved for appeal in either instance. In his brief, the
defendant asserts for the first time that, even if his offers constituted hearsay,
they are admissible under the state-of-mind exception. See N.H. R. Ev. 803(2).
“Generally, we do not consider issues raised on appeal that were not presented
in the trial court.” State v. Brum, 155 N.H. 408, 417 (2007) (citation omitted).
“The preservation requirement recognizes that ordinarily, trial courts should
have an opportunity to rule upon issues and to correct errors before they are
presented to the appellate court.” Id. at 417. While the admissibility of the
defendant’s offers to take a polygraph was an issue raised before the trial
court, the argument that the offers were admissible under this exception to the
hearsay rule was not. “Consequently, the [State] and the trial court never had
the opportunity to consider that legal issue or the development of facts that
might or might not have supported that argument.” Id. (quotation omitted).
We thus decline to address the issue on appeal. See id.

      In addition, at oral argument, defense counsel asserted for the first time
that the defendant’s statements were not hearsay because they constituted
acts of independent legal significance. See Simpkins v. Snow, 139 N.H. 735,
737 (1995) (“[W]here a statement has independent legal significance, it is not
considered hearsay.” (citations omitted)). This issue was not addressed in the
defendant’s briefs and was only cursorily mentioned during defense counsel’s
oral argument. We therefore decline to review it. See State v. Kincaid, 158
N.H. 90, 95 (2008) (holding that arguments not briefed are waived on appeal).

       Accordingly, we conclude that the trial court’s ruling that the defendant’s
offers constituted inadmissible hearsay was not erroneous.

                                        B

      The trial court also ruled that the doctrine of verbal completeness did not
require admission of the defendant’s offers to take a polygraph test. The trial
court reasoned that the State would not gain a misleading advantage because,
although it would be able to introduce statements made by the defendant
during the recorded interview, the defendant would still be able to elicit
evidence he adamantly denied that he was guilty of the charges. On appeal,
the defendant challenges the trial court’s determination.

      The doctrine of completeness is a common law rule recognized by this
court, wherein:




                                        4
      [A] party has the right to introduce the remainder of a writing,
      statement, correspondence, former testimony or conversation that
      his or her opponent introduced so far as it relates to the same
      subject matter and hence tends to explain or shed light on the
      meaning of the part already received.

State v. Lopez, 156 N.H. 416, 421 (2007) (quotation omitted). The doctrine
“exists to prevent one party from gaining an advantage by misleading the jury.”
Id. (quotation omitted). “Thus, there are two requirements to trigger the
doctrine respecting conversations: first, the statements must be part of the
same conversation; and second, admission of only a portion would mislead the
jury.” Id. (quotation omitted). The rule does not render evidence automatically
admissible, though “otherwise inadmissible evidence may be admitted to
prevent a party from gaining a misleading advantage.” State v. Warren, 143
N.H. 633, 636 (1999) (citation omitted).

       “The common law rule is partially codified by New Hampshire Rule of
Evidence 106, which expressly applies to writings and recorded statements.”
State v. Botelho, 165 N.H. __, __, 83 A.3d 814, 822 (2013) (citation omitted).
Rule 106 states: “When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require at that time the
introduction of any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it.” N.H. R. Ev.
106. “Rule 106 permits the introduction of the remaining parts of a recorded
statement in order to prevent the misleading impression given by an out-of-
context presentation from taking root.” Botelho, 165 N.H. at __, 83 A.3d at 822
(citation omitted). “The trial court has discretion under Rule 106 to determine
whether ‘fairness’ requires admission of remaining parts or related documents.”
Id. (quotation omitted).

      Here, the defendant’s interview was a “recorded statement,” and thus the
defendant’s effort to introduce “any other part” of the interrogation falls under
Rule 106. The defendant argues that “the jury was deprived of a true
understanding of the full extent of [his] denials.” However, in light of the trial
court’s ruling that he would be allowed to elicit testimony that he adamantly
denied guilt, the exclusion of these offers did not prejudice the defendant. In
addition, at trial, portions of the recorded interview were played in which the
defendant said he “didn’t do nothing [sic]” and that “nothing happened,” and in
which he denied adamantly that he and the victim had sex. In fact, the
defendant’s statements to this effect take up most of the interview portions
played for the jury.

      In its ruling, the trial court reasoned that the defendant’s “other adamant
denials of culpability” would address any concern that excluding the offers to
take a polygraph would create a misleading impression. We agree with the trial



                                        5
court. The doctrine of completeness does not require the admission of
otherwise inadmissible evidence simply to bolster a defendant’s claim of
innocence, but rather exists to correct misleading impressions by omission.
See Botelho, 165 N.H. at __, 83 A.3d at 823, 824; State v. Scovill, 144 N.H.
409, 413 (1999); State v. McSheehan, 137 N.H. 180, 183 (1993).

       Inasmuch as the record supports the trial court’s view that excluding
evidence of the polygraph offers did not create a misleading impression, we do
not find the trial court’s decision to exclude the offers untenable or
unreasonable to the prejudice of the defendant’s case.

                                       C

       The trial court also concluded that any probative value of the polygraph
offers would be substantially outweighed by their prejudicial effect. See N.H. R.
Ev. 403. The court reasoned that the particular manner in which the
defendant denied his culpability was of low probative value, and that admitting
evidence of the defendant’s offers would cause a great deal of confusion. Later,
the court cited LaForest and out-of-state authority for the general proposition
that evidence of a defendant’s willingness or lack of willingness to take a
polygraph is not admissible.

      On appeal, the defendant argues that the probative value of his
statements was not substantially outweighed by the danger of unfair prejudice.
Under New Hampshire Rule of Evidence 403, “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.” N.H. R. Ev. 403. We will not
disturb a trial court’s decision to exclude evidence under Rule 403 absent an
unsustainable exercise of discretion. State v. Perri, 164 N.H. 400, 408 (2012).
“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. (citation omitted).

       As to the offers’ probative value, because the trial court admitted
evidence that the defendant adamantly denied his culpability during the police
interview, we agree with its conclusion that evidence of offers to take a
polygraph had little incremental probative value to the defendant’s defense. Cf.
Lopez, 156 N.H. at 423 (holding that trial court did not err by excluding
evidence that defendant had cried during an interview with police when he had
been permitted to introduce other evidence that he had cried when speaking
with his family prior to and during his arrest); State v. Morrill, 154 N.H. 547,
552 (2006) (“Because the State had presented admissible evidence supporting
its [case], introducing . . . inadmissible hearsay for the same purpose was
unnecessary.” (citation omitted)); State v. Trempe, 140 N.H. 95, 99 (1995)
(holding that trial court unsustainably exercised its discretion when it admitted



                                       6
prejudicial evidence for purpose of correcting potential misconceptions related
to defendant’s testimony when prosecutor could have dispelled misconceptions
by soliciting other, less prejudicial facts).

      With respect to prejudice, we have long followed the general rule that
evidence derived from a polygraph test is inadmissible. LaForest, 106 N.H. at
161; see also State v. Ober, 126 N.H. 471, 471-72 (1985) (stating that we have
“consistently held that the results of polygraph tests are not admissible as
evidence of guilt or innocence in criminal trials”). In LaForest, we also voiced
approval for the related rule “that the accused’s willingness or refusal to take a
polygraph test is likewise inadmissible,” although this statement is dicta
because the defendant’s willingness or refusal to take a test was not directly at
issue in that case. LaForest, 106 N.H. at 161. The vast majority of courts in
other jurisdictions have held that offers to submit to a polygraph test are
inadmissible. See, e.g., People v. Muniz, 190 P.3d 774, 785 (Colo. App. 2008);
Rowland v. United States, 840 A.2d 664, 674 n.11 (D.C. 2004); State v. Hilton,
431 A.2d 1296, 1301 (Me. 1981); Kosmas v. State, 560 A.2d 1137, 1140 (Md.
1989); Com. v. Martinez, 769 N.E.2d 273, 278-79 (Mass. 2002). Summarizing
the reasons for excluding such evidence, the Muniz court aptly explained:

      [A]dmitting such evidence would create a substantial danger of
      confusing the issues and misleading the jury. A fact-finder’s
      assessment of a suspect’s offer to take a polygraph test would
      require consideration of the suspect’s subjective state of mind;
      subjective beliefs of particular law enforcement officers as to the
      value of such a test under the circumstances; evidence of the
      behavior and beliefs of hypothetical “reasonable” suspects and
      officers in the circumstances of the case (to test the expressed
      subjective beliefs of testifying defendants and officers); and, if a
      test were not conducted, hypothetical scenarios concerning what
      officers would have done with the test results in the event the
      defendant “passed” or “failed” the test. Attempting to untangle this
      veritable Gordian knot would be an exercise in conjecture.

Muniz, 190 P.3d at 786-87. We agree with these sentiments and therefore
conclude that there was ample justification for the trial court’s finding that any
probative value of evidence of the defendant’s offers to take a polygraph test
would be far outweighed by the danger that their admission “would cause a
great deal of confusion.” The trial court’s conclusion that the results of its Rule
403 balancing analysis required exclusion of the offers to take a polygraph was
not untenable or unreasonable to the prejudice of the defendant’s case.
Accordingly, the court did not unsustainably exercise its discretion.




                                        7
                                         D

       Next, the defendant contends that the trial court’s refusal to admit this
evidence violated his rights to present “all proofs favorable” under Part I, Article
15 of the State Constitution and to due process and a fair trial under the Fifth,
Sixth, and Fourteenth Amendments to the Federal Constitution.

       Following our standard practice, we first consider the defendant’s
arguments under the State Constitution and rely upon federal law only to aid
our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). “The right to produce
all favorable proofs under Part I, Article 15 gives a defendant only the right to
produce witnesses, not to produce their testimony.” State v. Alta, 158 N.H.
406, 410 (2009) (quotation omitted). “Part I, Article 15 does not entitle the
defendant to introduce evidence in violation of the rules of evidence.” State v.
Graf, 143 N.H. 294, 296-97 (1999) (citation omitted). Here, the defendant does
not contend that his right to produce witnesses was infringed, only that he was
unable to produce evidence. Thus, we find no merit in the defendant’s
argument that the trial court’s refusal to allow evidence of his offers to take a
polygraph violated his right to produce all favorable proofs.

       To the extent that the defendant argues that the trial court’s exclusion of
his offers to take a polygraph violated his right to due process, we note that a
defendant has no right under Part I, Article 15 to introduce evidence that will
have little effect other than to confuse the issues or confound the jury, for such
evidence is not competent favorable proof. State v. Mitchell, 148 N.H. 293, 294
(2002). Here, the trial court allowed the defendant to introduce evidence of his
adamant denials; as the trial court observed, “[t]he fact that he [denied the
charges] in a particular way . . . [was] of lower probative value.” We agree with
the court’s determination that introduction of the defendant’s offers would
likely have had little effect other than to confuse the issues or confound the
jury.

       The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. Graf, 143 N.H. at 296-
97; see also United States v. Scheffer, 523 U.S. 303, 308 (1998) (holding that
under the Federal Constitution, a defendant’s right to present relevant evidence
is not unlimited, “but rather is subject to reasonable restrictions”).
Accordingly, we reach the same result under the Federal Constitution as we do
under the State Constitution.

                                         III

      Finally, the defendant argues that the trial court plainly erred when it
imposed a 175-day house of corrections sentence on one of the violation of
protective order charges, to be served stand committed, and then allocated all



                                         8
of his pretrial confinement credit to this sentence, thus depriving him of the
opportunity to earn time off the sentence for good behavior. See RSA 651:18, II
(2007). The State concedes that, in light of our decision in State v. Edson, 153
N.H. 45, 48-50 (2005), the sentence is plainly erroneous. Accordingly, we
vacate the sentences imposed and remand for resentencing in accordance with
Edson.

                                                 Affirmed in part; vacated in
                                                 part; remanded for
                                                 resentencing.

      DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.




                                       9
