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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Strafford
No. 2016-0426


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                              SHAWN PLANTAMURO

                           Argued: October 12, 2017
                       Opinion Issued: September 7, 2018

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      HANTZ MARCONI, J. The defendant, Shawn Plantamuro, appeals his
convictions, following a jury trial, on two counts of aggravated felonious sexual
assault, see RSA 632-A:2, I(l), II (2016), one count of felonious sexual assault,
see RSA 632-A:3, III (2016), and one count of felony indecent exposure and
lewdness, see RSA 645:1, II(a) (Supp. 2014) (amended 2015). On appeal, he
argues that the Superior Court (Houran, J.) erred by: (1) excluding “evidence
about the circumstances of” the victim’s disclosure of the assaults to her
mother; and (2) prohibiting the defendant’s ex-wife from testifying that he “is
sexually attracted to women, not to children.” We affirm.
                                        I

        The record reflects the following facts. In May 2016, the defendant was
convicted of sexually abusing the victim, who was born in 2007. At the time of
the abuse, which occurred between 2012 and 2014, the victim and her mother
lived in the same neighborhood as the defendant. The victim would often go to
the defendant’s house to visit him and his mother. The victim testified that the
assaults took place in the defendant’s bedroom, which was, essentially, a porch
converted into a bedroom. The victim testified that the defendant showed her
videos in which “[r]eal people” were “naked and . . . having sex”; she also
testified that the defendant told her that he was “going to do this to [her] one
day.” According to the victim, the defendant subsequently engaged in sexual
activity with her and masturbated in front of her. She testified that this
activity occurred on four occasions.

      The victim and her mother moved away from the defendant’s
neighborhood in early 2014. On June 15, 2014, the victim disclosed the
defendant’s behavior to her mother. The jury did not learn the circumstances
or content of this disclosure, which are described below, because the trial court
excluded this evidence on hearsay and relevance grounds.

       After the disclosure, the police obtained authorization to record a
telephone conversation between the victim’s mother and the defendant, see
RSA 570-A:2, II(d) (2001), during which she confronted him with the victim’s
allegations. Unaware that the conversation was being recorded, the defendant
denied molesting the victim but admitted allowing her to watch “Japanese
animation” videos that depicted “the whole nine yards,” including “boobs,”
“penetration,” and “intercourse.” This recorded telephone conversation was
played for the jury. The defendant testified at trial and denied that he had
molested the victim. On cross-examination, he admitted that, in his presence,
the victim watched animated videos that were “inappropriate” and that
“probably” depicted intercourse. The trial court dismissed two counts not
relevant to this appeal, and the jury convicted the defendant on the remaining
four counts.

                                       II

       The defendant raises two issues on appeal, both of which relate to the
trial court’s evidentiary rulings. First, he argues that the trial court erred by
excluding “evidence about the circumstances of” the victim’s disclosure of the
abuse to her mother in June 2014. Second, he argues that the trial court erred
when it ruled that State v. Graf, 143 N.H. 294 (1999), precluded him from
offering character evidence, in the form of opinion testimony from his ex-wife,
that he “is sexually attracted to women, not to children.” We set forth our
standard of review before addressing each argument in turn. We also note



                                       2
that, in addressing these arguments, we apply the rules of evidence in effect at
the time of the defendant’s 2016 trial. See State v. Holmes, 159 N.H. 173, 175
(2009) (interpreting version of evidence rule in effect at time of trial).

       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. Milton, 169 N.H. 431, 435 (2016). To demonstrate an
unsustainable exercise of discretion, the defendant must show that the trial
court’s ruling was clearly untenable or unreasonable to the prejudice of his
case. Id. In applying our unsustainable exercise of discretion standard of
review, we determine only whether the record establishes an objective basis
sufficient to sustain the discretionary judgment made. State v. Letarte, 169
N.H. 455, 461 (2016). Our task is not to determine whether we would have
found differently, but is only to determine whether a reasonable person could
have reached the same decision as the trial court on the basis of the evidence
before it. Id. The defendant bears the burden of demonstrating that the trial
court unsustainably exercised its discretion. See State v. Costella, 166 N.H.
705, 714 (2014).

                                        III

       The defendant first challenges the trial court’s decision to exclude
“evidence about the circumstances of” the victim’s disclosure of the abuse to
her mother in June 2014. We construe the defendant’s brief as challenging the
exclusion of the following: (1) evidence that the victim engaged in masturbatory
activity; and (2) statements made by the victim and her mother on June 15,
2014 (June 15th conversation), during which the mother asked the victim
about her masturbatory behavior and the victim disclosed the defendant’s
sexual abuse. The trial court ruled that the statements made during the June
15th conversation constituted inadmissible hearsay. The court excluded the
masturbation evidence on relevance grounds. The court also ruled that the
victim’s masturbatory behavior was “territory” covered by the rape shield law.
See RSA 632-A:6, II (2016); N.H. R. Ev. 412.

       On appeal, the defendant challenges the trial court’s hearsay and
relevance rulings, as well as its application of the rape shield law. The State
contends that the defendant’s hearsay and rape shield law arguments are not
preserved for our review. To resolve the State’s preservation challenge, and to
evaluate the merits of the defendant’s preserved argument(s), we must examine
how these issues were presented to the trial court, the parties’ arguments to
the trial court, and the trial court’s rulings. See State v. Wilson, 169 N.H. 755,
768 (2017).




                                        3
                                        A

      The following information concerning the victim’s disclosure was
available to the trial court at the time it made the rulings pertinent to this
appeal. See State v. Addison (Capital Murder), 165 N.H. 381, 419 (2013) (“[W]e
review the propriety of the trial court’s pretrial rulings in the context in which
evidentiary disputes were presented to the court.”); cf. State v. Gordon, 161
N.H. 410, 414 (2011) (“Because the trial court ruled upon the admissibility of
the challenged evidence before trial, we consider only the offers of proof
presented at the pretrial hearing.”).

       Beginning at an unspecified point in time, the victim’s mother observed
the victim engaging in masturbatory behavior. There is no suggestion in the
record that the victim’s mother confronted the victim about this behavior or
otherwise broached this subject when the mother observed the behavior.

       Prior to the disclosure, the victim attended a sleep-over. While there, a
friend of the victim’s mother observed the victim rubbing herself and later
reported this behavior to the victim’s mother. On June 15, 2014, the victim’s
mother spoke with the victim about why she had been putting her hands down
her pants. The victim told her mother that “[i]t felt good.” When the victim’s
mother asked the victim who showed her how to do that, or something to that
effect, the victim replied, “Shawn showed me.” During the ensuing
conversation with her mother, the victim disclosed that the defendant had been
showing her movies with naked people in them, as well as touching her
inappropriately and making her touch his penis.

       Before trial, the court ruled that the statements made by the victim and
her mother during the June 15th conversation were not admissible because
they constituted hearsay. Hearsay is defined as “an out-of-court statement
offered in evidence to prove the truth of the matter asserted in the statement.”
State v. Bennett, 144 N.H. 13, 17 (1999) (quotation omitted); see N.H. R. Ev.
801(c) (amended 2017). “Hearsay evidence is generally inadmissible, subject to
certain well-delineated exceptions.” State v. Munroe, 161 N.H. 618, 626
(2011). In ruling that the statements made during the June 15th conversation
constituted inadmissible hearsay, the trial court identified the State as the
anticipated proponent of this evidence. The court also appeared to assume
that the State planned to offer these statements for the truth of the matter
asserted therein. Cf. State v. Reinholz, 169 N.H. 22, 28 (2016) (“If a statement
is not offered to prove its truth, but is offered for some other reason, it is not
hearsay.”).

      In the same pretrial order, the court also ruled that evidence of the
victim’s masturbatory behavior was not admissible because it was not relevant.
See N.H. R. Ev. 402 (amended 2017) (“Evidence which is not relevant is not



                                        4
admissible.”). Evidence is relevant if it has “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.” N.H. R.
Ev. 401 (amended 2017). The trial court determined that evidence of the
victim’s masturbation would be relevant only to explain the June 15th
conversation between the victim and her mother. The court concluded,
therefore, that the relevance of the masturbation evidence depended upon the
admissibility of the statements made during the June 15th conversation.
Because the court ruled that these statements were not admissible, it excluded
the masturbation evidence on the basis of relevance. It noted, however, that
the evidence “could become relevant, should, for example, [the victim’s] or her
mother’s direct testimony place that evidence at issue.”

       During trial, the court sustained the State’s objections to the defendant’s
attempts to elicit testimony about the victim’s masturbatory behavior. The
court also denied the defendant’s mid-trial motion to admit certain evidence,
which it treated as a motion to reconsider its relevance ruling. The court
reaffirmed its pretrial ruling that the masturbation evidence was not relevant.
The court also ruled that the State had not made this evidence relevant
through its questioning of witnesses or its opening statement. In the course of
doing so, the court ruled that the victim’s masturbatory behavior was
“territory” covered by the rape shield law.

                                        B

       On appeal, the defendant argues that the trial court erred by excluding
(1) evidence that the victim had been masturbating and (2) the statements
made by the victim and her mother during the June 15th conversation, during
which they discussed the victim’s masturbation and the victim disclosed the
defendant’s sexual abuse. The defendant contends that this evidence was
relevant because it supported the defense theory that the victim “made a
spontaneous false accusation” against the defendant in response to her
mother’s “overreaction” to the victim’s statement that the defendant had
“showed” her. The defendant asserts that the victim was referring to the
Japanese animation videos.

       The defendant also argues that the statements made during the June
15th conversation were not hearsay because he did not offer them for the truth
of the matter asserted therein. He further contends that acts of solitary
masturbation are not covered by the rape shield law. The State counters that
the defendant’s arguments about hearsay and the rape shield law are not
preserved for our review. We begin with the hearsay issue.

       Whether a statement is hearsay depends upon the purpose for which it is
offered. See Reinholz, 169 N.H. at 28; State v. Pelletier, 149 N.H. 243, 253



                                        5
(2003). “If a statement is not offered to prove its truth, but is offered for some
other reason, it is not hearsay.” Reinholz, 169 N.H. at 28. On appeal, the
defendant argues that the statements made during the June 15th conversation
would not be hearsay if he was the proponent because he would not be offering
them for the truth of the matter asserted in those statements; rather, he would
be offering them to show that the victim first accused him of touching her only
after her mother “overreacted” to the statement “Shawn showed me.” See id.
We agree with the State that the defendant did not make this argument to the
trial court. Indeed, at oral argument, the defendant conceded that trial counsel
never “t[ook] on [the issue of] hearsay directly.” He asserted, however, that his
hearsay argument is nonetheless preserved for our review because his
relevance arguments to the trial court “implicitly” challenged the court’s
hearsay ruling. We disagree.

       Generally, we do not consider issues raised on appeal that were not
presented in the trial court. See State v. Noucas, 165 N.H. 146, 152 (2013).
This preservation requirement, expressed in both our case law and Supreme
Court Rule 16(3)(b), reflects the general policy that trial forums should have an
opportunity to rule on issues and to correct errors before they are presented to
the appellate court. Wilson, 169 N.H. at 768. The defendant, as the appealing
party, bears the burden of demonstrating that he specifically raised the
arguments articulated in his appellate brief before the trial court. State v.
McInnis, 169 N.H. 565, 573 (2017). To preserve an argument that the trial
court erroneously excluded evidence at trial, a party generally must make an
offer of proof that apprises the trial court of (1) the specific nature of the
evidence and (2) why it is admissible. See, e.g., Costella, 166 N.H. at 714-15;
Noucas, 165 N.H. at 158-59. The proponent of the evidence bears the burden
of creating a sufficient record for our review on appeal, i.e., a record that sets
forth the specific basis for admissibility of the proffered evidence. Bohan v.
Ritzo, 141 N.H. 210, 218 (1996); accord Costella, 166 N.H. at 715.

       The party seeking to introduce an out-of-court statement bears the
burden of demonstrating that it is not hearsay or that it meets a hearsay
exception. See State v. Sweeney, 151 N.H. 666, 677 (2005); Noucas, 165 N.H.
at 158-59. The defendant never explained to the trial court why the statements
made during the June 15th conversation were not hearsay and, therefore, were
admissible. This is important because, in its pretrial order, the court identified
the State as the anticipated proponent of the statements made during the June
15th conversation in ruling that those statements were hearsay. Cf. Noucas,
165 N.H. at 158 (characterizing out-of-court statement as “presumptively
hearsay”). The trial court did not appear to contemplate that the defendant
might seek to introduce some or all of these statements. If the court
misunderstood or overlooked that the defendant sought to introduce the
contents of the June 15th conversation, it was incumbent upon the defendant
to bring this to the trial court’s attention. See State v. Gay, 169 N.H. 232, 248



                                        6
(2016); see also LaMontagne Builders v. Bowman Brook Purchase Group, 150
N.H. 270, 274 (2003) (holding that, to satisfy our preservation requirement,
legal issues that arise as a result of a trial court’s order must be presented to
the trial court in a motion for reconsideration). This requirement exists
because “[t]he trial court must have had the opportunity to consider any issues
asserted by the defendant on appeal.” Gay, 169 N.H. at 248.

       The court treated the defendant’s mid-trial motion to admit certain
evidence as a motion to reconsider its relevance ruling. This motion, however,
did not include the argument he now makes on appeal: that the statements
were not hearsay because he was offering them for a non-truth purpose.
Therefore, the filing of this motion did not preserve the defendant’s hearsay
argument for our review. See id.; LaMontagne Builders, 150 N.H. at 274.
Furthermore, although the defendant raised his relevance argument regarding
the masturbation evidence several times during trial, he never alerted the trial
court to the non-truth purpose for which he now argues the out-of-court
statements were offered. Accordingly, this argument is not preserved for our
review. Cf. State v. Gross-Santos, 169 N.H. 593, 598 (2017) (“[W]e have held
that an issue is preserved when the trial court understood and therefore
addressed the substance of an objection.”). We decline to consider this
argument in the first instance on appeal. See State v. Edic, 169 N.H. 580, 583
(2017); cf. Pelletier, 149 N.H. at 253 (noting that whether a statement “is
offered for purposes other than its truth . . . is an issue of fact for the trial
court”).

                                        C

        We next turn to the defendant’s argument that the trial court erred by
excluding the masturbation evidence on the basis of relevance. The trial court
ruled, and we agree, that the relevance of the masturbation evidence depended
upon whether the statements made during the June 15th conversation were
admitted into evidence. The masturbation evidence was only relevant to
explain why the victim’s mother broached the subject of masturbation with the
victim on June 15 and the statements made during the subsequent
conversation. Indeed, on appeal, the defendant ties the relevance of the
masturbation evidence to the victim’s statement that the defendant “showed”
her. Because the contents of the June 15th conversation were excluded from
trial, the fact that the victim had been masturbating was not relevant. See
Bennett, 144 N.H. at 16 (holding that because “the defendant’s statement was
never introduced” at trial, “evidence of the circumstances surrounding it were
not necessary to explain its context”). Therefore, we conclude that the trial
court sustainably exercised its discretion when it excluded the masturbation
evidence on relevance grounds. In light of this conclusion, we need not
address the parties’ arguments concerning whether the rape shield law applies
to masturbation.



                                        7
                                        IV

       We now turn to the defendant’s argument that the trial court erred by
excluding certain character evidence. The defendant sought to have his ex-wife
testify that, in her opinion, he “is sexually attracted to women, not to children.”
The trial court ruled that this evidence was not admissible under Rule 404(a)(1)
pursuant to our holding in Graf. See Graf, 143 N.H. at 298-99; N.H. R. Ev.
404(a)(1). We agree with the trial court that Graf precludes the defendant from
introducing this evidence.

       “New Hampshire Rule of Evidence 404(a) governs the admissibility of
character evidence.” Graf, 143 N.H. at 297. The general rule is that “[e]vidence
of a person’s character or a trait of character is not admissible for the purpose
of proving that the person acted in conformity therewith on a particular
occasion.” N.H. R. Ev. 404(a); see State v. Demeritt, 148 N.H. 435, 443 (2002).
Rule 404(a)(1) provides an exception to this general rule by allowing “[e]vidence
of a pertinent trait of character offered by an accused, or by the prosecution to
rebut the same.” Under this exception, the defendant in a criminal case may
“present evidence of a pertinent trait of character to prove that he acted in
conformity with that character trait at the time of the alleged crime.” Graf, 143
N.H. at 297; see N.H. R. Ev. 404(a)(1).

         To be admissible under Rule 404(a)(1), the proffered character evidence
must be “pertinent,” and it must constitute a “trait of character.” N.H. R. Ev.
404(a)(1); see Graf, 143 N.H. at 297-98. In Graf, we defined pertinence to be
synonymous with relevance. See Graf, 143 N.H. at 298 (“Evidence is pertinent
if it is relevant. Whether the proffered character evidence is relevant depends
on whether it relates to the particular trait(s) that are relevant to the matter in
controversy.” (quotation and citations omitted)).

       Here, the trial court ruled that our decision in Graf “answer[ed] th[e]
question” of whether the defendant’s proffered character evidence was
admissible under Rule 404(a)(1). The proffered character evidence in this case
was opinion testimony that the defendant “is sexually attracted to women, not
to children.” We note that the defendant’s characterization of the proffered
testimony differs on appeal from the offer of proof he made to the trial court. In
reviewing the trial court’s ruling, we rely on the offer of proof made to and ruled
on by that court. See Costella, 166 N.H. at 714-15; Gordon, 161 N.H. at 414.
We therefore decline to address any arguments made by the defendant that are
premised upon a different offer of proof.

      In Graf, we considered whether the proffered character evidence in that
case was “pertinent to the crime of aggravated felonious sexual assault
involving a minor.” Graf, 143 N.H. at 298. The defendant sought to introduce



                                         8
character evidence, through opinion testimony of other witnesses, “that he was
not the type of person who would sexually assault children or take advantage
of them.” Id. at 296. We held “that the trial court properly excluded the
proffered character evidence because it was not pertinent within the meaning
of Rule 404(a)(1).” Id. at 299. We explained:

      The trial court correctly noted that not being the type of person to
      sexually assault or to take advantage of children is not pertinent to
      the charged crime because such conduct is generally not the type
      of conduct which is done in public, but [in] an environment or
      location calculated to avoid detection. One’s reputation for sexual
      activity, or lack thereof, may have no correlation to one’s actual
      sexual conduct. When a character witness testifies as to his
      opinion of the defendant’s pertinent trait of character, that opinion
      must be confined to the nature and extent of observation and
      acquaintance upon which the opinion is based. Because
      aggravated felonious sexual assault concerns sexual activity, which
      is normally an intimate, private affair, we hold that the character
      witnesses lacked the knowledge necessary to form an opinion as to
      whether the defendant is the type of person to sexually assault or
      to take advantage of children.

Id. (quotations and citations omitted). We reasoned that “the proffered
evidence, lacking any foundation, would be irrelevant because it does not have
the tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence.” Id. at 299; see N.H. R. Ev. 401 (amended 2017).

       In his brief, the defendant agrees that, pursuant to Graf, “a person’s
character for committing [sexual] assaults against children would not be a
matter about which other people would be in a position to have an informed
opinion.” Further, he conceded at oral argument that Graf precluded his ex-
wife from offering opinion testimony that “he’s not sexually attracted to
children, because she wouldn’t know.” At trial, the defendant sought to have
his ex-wife testify that, in her opinion, he “is sexually attracted to women, not
to children.” (Emphasis added.) We fail to see a meaningful distinction
between opinion testimony that a defendant is “not sexually attracted to
children” and opinion testimony that a defendant is “sexually attracted to
women, not to children.” Accordingly, we conclude that the trial court
sustainably exercised its discretion in precluding the defendant from
introducing this proffered character evidence.

                                              Affirmed.




                                        9
       LYNN, C.J., and HICKS and BASSETT, JJ., concurred; DALIANIS, C.J.,
retired, specially assigned under RSA 490:3, concurred.




                                    10
