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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Grafton
No. 2014-0513


                          THE STATE OF NEW HAMPSHIRE

                                         v.

                               RODRIC R. REINHOLZ

                             Argued: October 15, 2015
                           Opinion Issued: April 29, 2016

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


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

       BASSETT, J. The defendant, Rodric R. Reinholz, appeals his convictions,
following a jury trial, on two counts of pattern aggravated felonious sexual
assault (AFSA), see RSA 632-A:2, III (2007), two counts of AFSA by individual
acts, see RSA 632-A:2, I(l) (1996) (amended 2003), and one count of felonious
sexual assault (FSA), see RSA 632-A:3, III (1996) (amended 2003). The
defendant argues that the Superior Court (Bornstein, J.) erred when it
admitted into evidence an “affidavit” written by the victim. He also argues that
his convictions on the two pattern AFSA charges must be vacated under the
rule of mandatory joinder that we adopted in State v. Locke, 166 N.H. 344
(2014). We affirm.

      The jury could have found the following facts. The victim was born in
November 1988. Beginning in 1991, the victim and her two brothers visited
the defendant at his residence every other weekend. From about 1996 to 2001,
the defendant lived at an apartment in Ashland.

      At least once during each of the victim’s visits with the defendant in
Ashland, he sexually abused her. After showing the victim pornography, the
defendant would make her touch his penis with her hands and perform fellatio.
On one occasion, the defendant performed cunnilingus on her. When the
victim turned 13 years old in November 2001, she stopped visiting the
defendant and the abuse ceased.

     In October 2010, the victim reported the assaults to the police.
Thereafter, she filed a petition for a restraining order against the defendant,
which was granted by the court.

       In June 2011, a grand jury indicted the defendant on two counts of AFSA
and three counts of FSA. See RSA 632-A:2, I(l), :3, III. Each indictment alleged
that, between July 1996 and November 2001, the defendant engaged in an
individual sexual act with the victim, who was under the age of 13 at the time.
One AFSA charge alleged that the defendant engaged in cunnilingus (AFSA
cunnilingus), while the other alleged that he engaged in fellatio (AFSA fellatio).
One of the three FSA counts alleged that the defendant caused the victim to
touch his penis with her hand (FSA touching). During trial in January 2012,
one of the other FSA charges was dismissed. Because the jury was unable to
reach a verdict on the remaining four charges, the trial court declared a
mistrial.

        Before retrial, in February 2012, a grand jury indicted the defendant on
two counts of pattern AFSA. See RSA 632-A:2, III. Both alleged that, between
July 1996 and November 2001, the defendant engaged in a pattern of sexual
conduct with the victim. One pattern charge alleged that the defendant
engaged in a pattern of fellatio with the victim, while the other alleged that he
engaged in a pattern of causing the victim to touch his penis with her hands.
After the second trial in May 2012 on the remaining charges, the jury acquitted
him of one FSA charge, but convicted him on the AFSA cunnilingus, AFSA
fellatio, and FSA touching charges, as well as the two pattern AFSA charges.
The defendant appealed his convictions, arguing that the trial court erred when
it denied his request to allow a videotape of his police interview into the jury
room during deliberations. State of New Hampshire v. Rodric R. Reinholz, No.
2012-0605 (N.H. Jan. 17, 2014). Because we agreed with the defendant, we
reversed the convictions and remanded. Id.


                                        2
       After his third trial in May 2014, which is the subject of this appeal, the
defendant was again convicted on the AFSA cunnilingus, AFSA fellatio, and
FSA touching charges, as well as the two pattern AFSA charges. According to
the trial court, the “State elected to proceed with sentencing” on only certain
charges. Accordingly, the trial court sentenced the defendant on the AFSA
cunnilingus charge and the two pattern AFSA charges, but not on either the
AFSA fellatio charge or the FSA touching charge. This appeal followed.

      The defendant first argues that his convictions on the two pattern AFSA
charges must be vacated under the rule of mandatory joinder that we adopted
in Locke. Although the State asserted at oral argument that the defendant did
not preserve this argument, given that we are affirming the trial court, we will
assume, without deciding, that the argument is preserved.

      In Locke, decided after the defendant’s third trial, we held that “the
common law of New Hampshire incorporates the principles set forth in Model
Penal Code Section 1.07(2).” Locke, 166 N.H. at 349. Under Locke:

      a defendant shall not be subject to separate trials for multiple
      offenses based on the same conduct or arising from the same
      criminal episode, if such offenses are known to the appropriate
      prosecuting officer at the time of the commencement of the first
      trial and are within the jurisdiction of a single court.

Id. at 348 (quotation omitted); see Model Penal Code § 1.07(2) (1985). We
observe that the rule announced in Locke has been codified in Rule 20(a)(4) of
the New Hampshire Rules of Criminal Procedure, which became effective on
March 1, 2016.

      Here, the parties do not dispute that all of the charges at issue were
within the jurisdiction of a single court. Additionally, we assume without
deciding that the prosecutor had the requisite knowledge regarding the pattern
AFSA charges at the commencement of the defendant’s first trial. We,
therefore, confine our analysis to whether the two pattern AFSA charges were
“based on the same conduct or ar[ose] from the same criminal episode” as the
AFSA fellatio and FSA touching charges. Locke, 166 N.H. at 348 (quotation
omitted).

      As noted above, one pattern AFSA charge alleged that the defendant
engaged in a pattern of fellatio with the victim, and the other alleged that he
engaged in a pattern of causing the victim to touch his penis with her hand.
The defendant asserts that these charges were based upon the same conduct
or arose from the same criminal episode as the AFSA fellatio and FSA touching
charges. Thus, the defendant asserts, the State was required to bring the two
pattern AFSA charges at the time of his first trial, and its failure to do so



                                         3
requires that his convictions on the two pattern AFSA charges be vacated. See
State v. Glenn, 167 N.H. 171, 177-78 (2014) (vacating defendant’s convictions
under mandatory joinder rule). We disagree.

        Here, in contrast to the AFSA fellatio and FSA touching charges — which
each alleged that the defendant engaged in an individual sexual act — each of
the two pattern AFSA charges required the State to prove that the defendant
engaged in a series of two or more sexual acts over a period of between two
months and five years. See State v. Fortier, 146 N.H. 784, 791 (2001) (stating
that the “essential culpable act, the actus reus” of pattern AFSA “is the pattern
itself, that is, the occurrence of more than one sexual assault over a period of
time”). Because the two pattern AFSA charges spanned the same time period,
concerned the same victim, and involved the same types of sexual acts as the
AFSA fellatio and FSA touching charges, it is possible that the individual acts
of sexual assault alleged in the AFSA fellatio and FSA touching charges each
comprised one of the predicate acts necessary to establish the corresponding
pattern AFSA charge. However, the opposite could also be true. In other
words, it is also possible that the individual acts alleged in the AFSA fellatio
and FSA touching charges did not comprise one of the predicate acts necessary
to find the corresponding AFSA charge.

       Accordingly, because the jury in this case was never instructed
otherwise, it is possible that the verdicts on the pattern AFSA charges were
based in part upon the individual acts alleged in the AFSA fellatio and FSA
touching charges. It is also possible that the verdicts were not so based. See
id. (explaining that, in regard to a pattern charge, the “jury must unanimously
agree that a defendant engaged in more than one act of sexual assault . . . , but
need not agree on the particular acts, provided that they find the requisite
number of acts occurred during the statutory time period”). We observe that,
had the defendant or the State so requested, either would have been entitled to
an instruction informing the jury that it could not use the same alleged act of
sexual assault both to comprise a part of the pattern supporting a conviction
on a pattern AFSA charge and to support a conviction upon an individual
charge based upon that act. See id. at 793. Because the defendant does not
argue that the trial court had an obligation to so instruct the jury, sua sponte,
this case does not present us with that issue.

      Given these circumstances, we cannot conclude, as a matter of law, that
the two pattern AFSA charges were based upon the same conduct or arose
from the same criminal episode as the AFSA fellatio and FSA touching charges.
Thus, we hold that the mandatory joinder rule does not apply, and, therefore,
the defendant’s convictions on the two pattern AFSA charges need not be
vacated.


 We note that, in its brief, the State cites State v. Collins, 168 N.H. 1 (2015) when discussing the
sentence that the defendant received here. Although Collins bears some similarities to this case,


                                                  4
       The defendant next argues that the trial court erred when it admitted
into evidence an “affidavit” written by the victim. The so-called affidavit was
part of the petition for a restraining order that the victim had filed against the
defendant, and it alleged that he sexually abused her each time that she visited
him when she was between the ages of 7 and 13. The affidavit included
allegations that the defendant made the victim watch pornography with him,
and included graphic descriptions of various sexual acts that he made her
engage in. During the video-recorded interview that the defendant had with a
police officer, the officer gave the affidavit to the defendant to read.

       Before his third trial, the defendant filed a motion in limine to exclude
the affidavit, arguing that it constituted inadmissible hearsay. The Trial Court
(MacLeod, J.) denied the motion, explaining that, because the affidavit was
“offered by the State to place the defendant’s interview [with the police officer]
in context and not for the truth of the statements therein,” the affidavit was
admissible. The trial court also found that the probative value of the affidavit
substantially outweighed the danger of unfair prejudice to the defendant.

      During trial, the affidavit was admitted into evidence and was, thus,
available to the jury during deliberations. However, the trial court twice
instructed the jury that the affidavit was being admitted only to provide
“context” for the defendant’s interview with the police officer and not for the
truth of its allegations. The video recording of the defendant’s interview with
the police officer was also admitted into evidence — without objection — and
was played for the jury during trial.

       On appeal, the defendant argues that the trial court erred by admitting
the affidavit because it constituted inadmissible hearsay, and because the
danger of unfair prejudice substantially outweighed the affidavit’s probative
value.

      “The trial court has broad discretion to determine the admissibility of
evidence, and we will not upset its ruling absent an unsustainable exercise of
discretion.” State v. Towle, 167 N.H. 315, 320 (2015). “For the defendant to
prevail under this standard, he must demonstrate that the trial court’s decision
was clearly untenable or unreasonable to the prejudice of his case.” Id.

       We first address the defendant’s argument that the affidavit constituted
inadmissible hearsay. See N.H. R. Ev. 802. The defendant argues that,
because the sexual abuse allegations in the affidavit would not be “relevant if
[they] were known to be false,” the affidavit was offered to prove the truth of the

it is distinguishable. Unlike the defendant in Collins, the defendant here was not sentenced upon
both the individual and pattern charges. See Collins, 168 N.H. at 7. Moreover, unlike the
defendant in Collins, the defendant in this case does not raise a double jeopardy argument;
rather, he relies upon only the mandatory joinder rule that we adopted in Locke. See id.


                                                5
matter asserted — that he sexually assaulted the victim. The State counters
that the affidavit was not hearsay because it was not offered to prove the truth
of the allegations contained therein.

       “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” N.H. R. Ev. 801(c). “Unless it falls within an exception,
hearsay evidence is generally inadmissible.” State v. Lisasuain, 167 N.H. 719,
725 (2015). If a statement is not offered to prove its truth, but is offered for
some other reason, it is not hearsay. State v. Hayward, 166 N.H. 575, 581
(2014).

       The video shows that, during the defendant’s interview with the police
officer, the officer gave the victim’s affidavit to the defendant, allowed him time
to read it, and then questioned him. The video also shows the physical and
verbal reactions that the defendant had in response to reading the affidavit.
Moreover, although the police officer and the defendant referenced the affidavit,
the specific allegations of sexual abuse contained in it were not described in
detail during the interview.

       We agree with the trial court that the affidavit was admitted for a non-
hearsay purpose, and, therefore, was not hearsay. The trial court concluded
that the affidavit was admitted only to establish “context” for the police
interview of the defendant. To the extent that the word “context” was intended
to mean that the affidavit was admitted to show its effect upon the defendant
during the interview, we agree. A statement that is not offered to prove the
truth of the matter asserted but to show its effect on the witness is not
hearsay. See United States v. Churn, 800 F.3d 768, 776 (6th Cir. 2015); see
also United States v. Robinzine, 80 F.3d 246, 252 (7th Cir. 1996) (explaining
that a statement offered only to show the fact that the statement was made and
how it affected the witness, and not “the truth-value of what was said,” is not
hearsay); State v. Launey, 335 So. 2d 435, 437 (La. 1976) (“When writings or
utterances are offered to show the effect on the reader, they are generally
classified as admissible non-hearsay.”).

       Thus, for example, in Hayward we concluded that the statements and
conduct of a co-participant in a robbery were not hearsay because they were
offered not for their truth, but only to show the effect that they had on the
defendant. See Hayward, 166 N.H. at 581. We explained that:

      [T]he defendant did not seek to offer [the co-participant’s] threats
      or violence to prove the truth of any assertions he made; rather,
      such evidence was offered merely to provide a foundation for the
      reasonableness of the defendant’s fear at the time of the robbery.
      In short, the point of such evidence was not whether any of [the co-



                                        6
      participant’s] assertions were “true,” but merely that the threats or
      violence were perceived by the defendant.

Id.

        Like the evidence in Hayward, the victim’s affidavit in this case was not
admitted for the truth of the allegations that it contained; rather, it was
presumably offered merely to help the jury assess the defendant’s reactions to
it during the police interview. We observe that, had the defendant requested a
clarifying jury instruction that the affidavit was to be considered only to show
its effect on the defendant, he would have been entitled to such an instruction.
Although the defendant also argues that the affidavit was not relevant unless
its allegations were true, we disagree. Even if the allegations were “known to
be false,” as the defendant hypothesizes, the affidavit would be relevant to
assess his reactions to reading it during the interview.

       The defendant further argues that the affidavit was inadmissible under
Rule 403 of the New Hampshire Rules of Evidence. According to the defendant,
“any non-hearsay, incremental probative value the affidavit had was minimal,”
while the “danger that the jury would consider the content of the [affidavit] for
its truth . . . was high.” He also posits that “no [limiting] instruction could
adequately mitigate the danger that the jury would consider the affidavit as
evidentiary support for the truth of the matters it asserted.” We disagree.

      Rule 403 states, in pertinent part, that relevant “evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” N.H. R. Ev. 403. “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.” State v. Nightingale, 160 N.H. 569, 574
(2010). “Unfair prejudice is not, of course, mere detriment to a defendant from
the tendency of the evidence to prove guilt, in which sense all evidence offered
by the prosecution is meant to be prejudicial.” Id. “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.” Id. “Among the factors we consider in weighing the
evidence are: (1) whether the evidence would have a great emotional impact
upon a jury; (2) its potential for appealing to a juror’s sense of resentment or
outrage; and (3) the extent to which the issue upon which it is offered is
established by other evidence, stipulation or inference.” Id. at 574-75.

      The trial court is in the best position to gauge the prejudicial impact of
particular testimony, and what steps, if any, are necessary to remedy that
prejudice. Id. at 575. Thus, we give the trial court broad latitude when ruling



                                        7
upon the admissibility of potentially unfairly prejudicial evidence, and we will
not disturb its decision absent an unsustainable exercise of discretion. Id.

       To perform the balancing required by Rule 403, we first consider the
probative value of the affidavit. See State v. Wells, 166 N.H. 73, 80 (2014). The
affidavit’s probative value derives from the fact that, as explained above, it
presumably aided the jury in understanding the defendant’s reactions to it
during the police interview. See People v. Ransom, 746 N.E.2d 1262, 1269 (Ill.
App. Ct. 2001) (concluding that evidence of victim’s reaction to viewing the
defendant’s photograph was “highly probative” of the identity of her attacker).

      We next consider whether the danger of unfair prejudice to the defendant
from the admission of the affidavit substantially outweighed its probative value.
See Wells, 166 N.H. at 80. Here, the prejudicial impact of the victim’s affidavit
was, at best, minimal.

       First, there was only a minimal risk that the affidavit would induce the
jury to decide against the defendant upon an improper or emotionally charged
basis. This is because the victim’s testimony at trial mirrored the allegations of
sexual abuse in the affidavit. For instance, the victim alleged in the affidavit,
just as she did in her testimony at trial, that, when she visited the defendant
before she turned 13 years old, the defendant forced her to view pornography
with him and made her engage in numerous sexual acts — which she
described in graphic detail. Accordingly, we cannot say that the affidavit was
likely to have any greater emotional impact upon the jury than the victim’s
testimony at trial concerning the same allegations. See id. at 80-81.

       Moreover, any possible prejudice from the allegations in the affidavit
being improperly considered for their truth was effectively cured by the two
limiting instructions that the trial court provided, which the jury is presumed
to have followed. See State v. Costello, 159 N.H. 113, 123 (2009). The trial
court twice told the jury that it was not to consider the affidavit’s allegations for
their truth. See State v. Willis, 165 N.H. 206, 225 (2013) (concluding that trial
court’s “prompt and thorough instructions” to jury that it was not to consider
statements for their truth cured any possible danger of unfair prejudice from
their admission). Accordingly, given the affidavit’s probative value and its
minimal prejudice, we conclude that the trial court did not err in admitting the
affidavit under Rule 403.

      In sum, because the affidavit did not constitute hearsay, and because its
probative value was not substantially outweighed by the danger of unfair
prejudice, we conclude that the trial court did not unsustainably exercise its
discretion by determining that the affidavit was admissible. To the extent that
the defendant further asserts that the admission of the affidavit violated his
rights under the Federal Confrontation Clause, see U.S. CONST. amends. VI,
XIV, we conclude that this argument is insufficiently developed for our review.


                                         8
See State v. Blackmer, 149 N.H. 47, 49 (2003) (noting that a mere laundry list
of complaints regarding adverse rulings by the trial court, without developed
legal argument, is insufficient to warrant review). Finally, any issues raised in
the defendant’s notice of appeal that he has not briefed are deemed waived.
See id.

                                                  Affirmed.

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




                                        9
