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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Grafton
No. 2012-886


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                 ASHLEY HAYWARD

                           Argued: January 16, 2014
                        Opinion Issued: August 15, 2014

      Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.


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

       DALIANIS, C.J. Following a jury trial in Superior Court (Vaughan, J.),
the defendant, Ashley Hayward, was convicted of one count of accomplice to
robbery. See RSA 626:8 (2007); RSA 636:1 (2007). At trial, she asserted a
duress defense, claiming that she was coerced into participating in the robbery
by threats made against her by Tyler Dodge, her boyfriend and a co-participant
in the robbery. On appeal, she argues that the trial court erred in precluding
her from introducing evidence of Dodge’s past threatening and violent behavior.
We reverse and remand.
I. Background

      The jury could have found the following facts. On the night of January
9, 2012, the defendant and Dodge were visiting Dodge’s friend, Marvin Jones,
at Jones’s residence in Arlington, Massachusetts. At some point, Jones,
Dodge, and the defendant drove north in the defendant’s vehicle to the
Baymont Inn in Lebanon, where the defendant had briefly been employed for a
period ending about one month earlier. At approximately 12:30 a.m. on
January 10, Dodge and Jones entered the lobby of the Baymont Inn with their
faces obscured and robbed the front desk clerk of $220. They then returned to
the defendant’s car, where she was waiting, and all three drove away.

       On January 18, 2012, officers from the Lebanon Police Department
interviewed the defendant about the robbery. The defendant appeared upset,
but denied knowledge of the robbery. When confronted with evidence of her
involvement during a second interview later that day, the defendant initially
denied participating in the robbery, but ultimately confessed to driving Dodge
and Jones to and from the Baymont Inn. She explained that Dodge had
threatened to “beat the shit out of her” if she did not drive them. During both
interviews, the defendant cried and appeared scared and upset. She explained
that Dodge was trying to change his life, but “was getting out of control.” She
told the officers that Dodge had difficulty managing his anger and that he
would get angry at her very quickly. The defendant also explained that Dodge
was very controlling, that “it was his way or the . . . highway,” and that they
had gotten into a fight over Dodge’s intent to commit the robbery. During this
interview, the defendant told the officers that if she had not driven Dodge to the
robbery, he would have taken her car and “that would have been more of a
fight,” and that she was “afraid [she] was going to get hurt and so [she] did
what he asked.” She also stated that she did not call 911 because she did not
want Dodge to go to jail and because she did not want to be implicated in the
robbery.

       The following day, the defendant was interviewed a third time. In that
interview, she explained to officers that Dodge wanted to commit the robbery in
part because they had no money and were hungry, and he wanted to buy the
defendant food. She also said that she thought that she, Dodge, and Jones
were going to Newport, New Hampshire to visit family, but that after reaching a
toll booth in New Hampshire, Dodge stated that he wanted to rob the Baymont
Inn.

       Additionally, at some time during her interviews, the defendant told the
officers that, in the past, Dodge threatened her when she did not do as he
asked ― including putting a knife to her throat.




                                        2
       Before trial, the State filed a motion in limine requesting, in pertinent
part, that the trial court preclude the defendant from arguing the defense of
duress during trial. The State’s motion was based solely upon the evidence it
presumed the defendant would seek to admit regarding Dodge’s threats on the
night of the robbery. The State argued that those threats were inadmissible
because the defendant had “multiple alternatives at her disposal to avoid
committing the criminal act.” The State argued that the defendant could not
meet her burden of showing duress by a preponderance of the evidence, and
that the court, therefore, should preclude all evidence of duress. The
defendant objected to the motion, referencing not only the threats that Dodge
made against her on the night of the robbery, but also referencing his prior
threats and violence against her, including putting a knife to her throat. She
asserted that such evidence entitled her to an instruction on the defense of
duress.

       The court addressed the State’s motion on the day the trial began. After
hearing arguments from the parties, the court ruled that the defendant could
introduce evidence regarding Dodge’s threats against her on the night of the
robbery, including his threat to beat her “if she didn’t drive him to the Baymont
for the robbery.” However, the court excluded evidence of Dodge’s prior threats
and acts of violence against the defendant, including the incident in which he
held a knife to her throat. The court explained the basis for its decision as
follows:

      [A]s far as prior incidents, I think, my view of the case law is pretty
      clear. You can’t reach back and pick up things in the past. I
      mean, as a practical matter, this woman, if she was at some point
      previously threatened, could have left her companion and gone
      someplace else. So she stuck with him.

             And the case law, the two cases we have in New Hampshire
      focus on the event itself. And that’s the testimony, if it comes in,
      that I would allow to come in, not the prior incidents.

      The court deferred ruling on whether it would permit the jury to consider
the duress defense until the close of the evidence, at which time it ruled that
the evidence was sufficient to warrant an instruction on the defense. It,
therefore, gave the following jury instruction:

      The defendant has raised a common law defense of duress.
      Duress is defined as acting against [one’s] will under threat of
      serious bodily injury or death. The Defendant has the burden of
      proving, by a preponderance of the evidence, that the Defendant
      was purposely acting to facilitate the commission of the crime of




                                         3
      robbery by threat of physical force under threat of imminent death
      or serious bodily injury.

             Evidence that the Defendant may have felt some pressure or
      influence to act, to aid in the commission of the offense or
      emotionally was unhappy facilitating the commission of the crime,
      is not sufficient to prove duress. The defense of duress applies
      only when the Defendant is under an unlawful threat of imminent
      death or serious bodily injury which threat caused the Defendant
      to engage in conduct with which she is charged.

     The jury found the defendant guilty of accomplice to robbery. This
appeal followed.

II. Discussion

       On appeal, the defendant argues that the trial court erred by excluding,
as irrelevant, evidence of Dodge’s threatening and violent conduct against her
before the night of the robbery. The defendant contends that evidence of
Dodge’s prior threats and violence, including the incident during which he put
a knife to her throat, was highly relevant to her duress defense. That evidence,
she argues, tends to make it more likely that she reasonably feared imminent
death or serious bodily injury when Dodge threatened, on the night of the
robbery, to beat her if she did not assist him. That evidence was probative, she
concludes, “to explain why she followed [Dodge’s] command to drive him to the
site of the robbery.” The State responds that the trial court properly excluded
the evidence as irrelevant because the prior threats were not made close in
time to the robbery. As noted above, the trial court ruled that only threats
made on the night of the robbery were admissible; all threats and violent acts
occurring prior to that time were ruled inadmissible.

      Before addressing the parties’ arguments, we observe that although we
have not yet recognized the common law duress defense, the State does not
dispute that duress was a cognizable defense in this case. Nor does the State
contend on appeal that the evidence was insufficient to justify the duress
instruction. Furthermore, neither party challenges the trial court’s duress
instruction. Accordingly, we have no occasion to decide those issues.

       We review a trial court’s ruling admitting or excluding evidence for an
unsustainable exercise of discretion. State v. White, 155 N.H. 119, 123 (2007).
“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.” State v. Furgal, 164 N.H. 430, 438 (2012)
(quotation omitted).




                                       4
       Evidence is relevant it if 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.
Evidence that an individual has been the victim of past violent acts may be
relevant to explain that individual’s present behavior. See State v. Beltran, 153
N.H. 643, 648 (2006) (evidence of defendant’s abuse of collaborator was
admissible to explain collaborator’s submission to defendant’s demands
surrounding the crime and her delay in reporting).

       Here, the trial court’s relevancy determination was erroneous for two
reasons. First, the trial court apparently concluded that the defendant’s
decision to remain with Dodge obviated any relevance of the prior threats and
violence. This was error. The defendant’s decision to remain with Dodge could
have affected the weight the jury gave to the evidence, but should not have
affected its admissibility. Second, the trial court also apparently concluded
that the prior threats and violence were too remote in time to be relevant to a
duress defense. This, too, was error. Dodge’s prior threats and violence were
relevant to the duress defense because they tended to make it more probable
that the defendant acted under a reasonable fear of imminent death or serious
bodily injury than would have been the case without such evidence. Moreover,
the trial court’s ruling was “clearly untenable or unreasonable to the prejudice
of [the defendant’s] case.” Furgal, 164 N.H. at 438. By excluding evidence that
Dodge had previously threatened and been violent toward the defendant,
including once putting a knife to her throat, the trial court deprived the jury of
evidence necessary to its assessment of her duress defense. Thus, we conclude
that the trial court erred when it found that evidence of Dodge’s prior threats
and violence was irrelevant to the defendant’s duress defense.

       The State urges us to affirm the trial court’s decision, nonetheless,
because alternative grounds support it. See State v. Dion, 164 N.H. 544, 552
(2013) (“Where the trial court reaches the correct result on mistaken grounds,
we will affirm if valid alternative grounds support the decision.” (quotation and
brackets omitted)). For the first time on appeal, the State asserts that, to the
extent the defendant sought to elicit evidence of Dodge’s prior threats and
violence by cross-examining the police officers who interviewed her, such
evidence constitutes inadmissible double hearsay. The first asserted level of
hearsay is comprised of Dodge’s out-of-court statements and actions; the
second asserted level of hearsay is comprised of the defendant’s out-of-court
statements to the police relaying Dodge’s statements and actions. In this
context, Dodge’s non-verbal conduct, such as the act of putting a knife to the
defendant’s throat, could be considered to be hearsay because it was “intended
by [him] as an assertion.” N.H. R. Ev. 801(a)(2). The defendant counters that
Dodge’s out-of-court statements and actions are not hearsay because they were
not offered for their truth. The defendant further responds that her statements




                                        5
to the police about what Dodge said and did are admissible under the doctrine
of verbal completeness.

       “‘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). We begin by addressing the first asserted
level of hearsay – Dodge’s out-of-court statements and conduct. We agree with
the defendant that evidence of what Dodge said and did does not constitute
hearsay because that evidence was not offered for its truth. “If a statement is
not offered to prove its truth, but is offered for some other reason, such as to
prove simply that the statement was made, it is not hearsay.” State v.
Sulloway, 166 N.H. ___, ___, 90 A.3d 605, 613 (2014) (quotation omitted).
Here, the defendant did not seek to offer Dodge’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 Dodge’s assertions were “true,” but merely that the threats or violence were
perceived by the defendant.

       We next address the second asserted level of hearsay – the defendant’s
statements to the police describing Dodge’s out-of-court statements and
conduct. Defense counsel stated at oral argument that the defendant’s
statements describing Dodge’s threats and violence were offered for their truth,
and, therefore, fall squarely within the definition of hearsay. In light of that
concession, we need not decide whether the defendant’s descriptions of Dodge’s
prior threats and violence, in fact, constituted hearsay.

       The defendant argues that her statements nonetheless were admissible
under the doctrine of verbal completeness in light of other statements she
made to the police as elicited by the State through the officers who interviewed
her. The doctrine of verbal completeness is a common law rule recognized by
this court, whereby “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); see
also N.H. R. Ev. 106. The doctrine “exists to prevent one party from gaining an
advantage by misleading the jury.” Lopez, 156 N.H. at 421 (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).




                                        6
       Here, the first requirement of the doctrine is met, as both the defendant’s
inculpatory statements regarding her role in the robbery and her exculpatory
statements regarding Dodge’s past threats and violence were made during her
interviews with the police. The defendant argues that the second requirement
of the doctrine also is met because “[p]ermitting the State to inform the jury
that [she] admitted to driving Dodge and Jones to the location of the robbery,
while excluding her explanation of why she did so, clearly would have allowed
the State to gain an advantage by misleading the jury.”

       Our review of this issue is informed by the context in which it arises.
Ordinarily, a decision by a trial court regarding the applicability of the verbal
completeness doctrine is made after the parties have had the opportunity to
address the issue, and the trial court has had the opportunity to exercise its
discretion in light of all of the relevant circumstances. Such a decision is
reviewed on appeal for an unsustainable exercise of discretion. See Lopez, 156
N.H. at 420-21. However, in this case, the trial court never addressed the
issue because it ruled before trial that Dodge’s prior threats and violence were
irrelevant and, therefore, inadmissible.

       Neither the trial court nor the parties discussed whether either Dodge’s
prior threats and violence or the defendant’s out-of-court description of them
constituted inadmissible hearsay. Nor was there any discussion about whether
the defendant’s out-of-court description was admissible under the verbal
completeness doctrine. Although in its brief, the State asserts that “the court
expressed the opinion that the evidence [of prior threats and abuse] was
‘relevant, but it [was] also hearsay,’” the State has mischaracterized the record.
When the court made that statement, it was discussing the admissibility of the
defendant’s out-of-court description of Dodge’s general demeanor. Similarly,
although the State contends that the trial court “explored” the hearsay
objection later in the trial, the hearsay objection to which the State refers
concerned Dodge’s statements on the night of the robbery. The objection was
not to his prior threats and violence, nor was it to the defendant’s statements
to the police describing them.

      Moreover, after the trial court ruled before trial that all evidence of
Dodge’s prior threats and violence was inadmissible as irrelevant, there was no
cause for the defendant to argue that the evidence was admissible under the
verbal completeness doctrine. That doctrine requires that the evidence sought
to be admitted be relevant to explain or shed light on previously admitted
evidence. Id. at 421. Given that the court had already determined that the
evidence was irrelevant, it would have been futile for the defendant to rely upon
a doctrine that has relevancy as one of its requisites. When, as in this case, a
discretionary decision is at issue and the trial court has not exercised that
discretion, we may sustain the trial court’s ruling on a ground upon which it
did not rely only if “there is only one way the trial court could have ruled as a



                                        7
matter of law.” Thomas v. United States, 59 A.3d 1252, 1266 (D.C. 2013); see
Wright v. United States, 508 A.2d 915, 919-20 (D.C. 1986) (appellate court may
affirm trial court that reached right result for wrong reason on a discretionary
ruling only in rare case where trial court had but one option it could choose
without abusing its discretion, so that appellate court can affirm as a matter of
law).

       Here, we cannot say, as a matter of law, that had the trial court
addressed the issue and exercised its discretion, it would have found the
evidence inadmissible under the verbal completeness doctrine. As the
defendant argues in her reply brief, the court reasonably could have decided
that permitting the State to inform the jury that the defendant admitted to the
police to driving Dodge and Jones to the location of the robbery, while
excluding relevant evidence for why she did so, allowed the State to gain a
misleading advantage.

      Moreover, the record in this case indicates that had the trial court ruled
that the evidence of prior threats and violent acts was relevant to the duress
defense, the court might have admitted it under the completeness doctrine.
During argument on the State’s motion in limine, after the court had ruled that
the threats on the night of the robbery were relevant, the prosecutor stated:

      Briefly, as we reiterated in chambers, the State understands and
      concedes that the statement attributed to Tyler Dodge by the
      Defendant, which is essentially the basis for her claim, is that he
      [would] beat [her] . . . if she didn’t drive him to the Baymont for the
      robbery. That statement, the State assumes, will come in because
      it was made during an interview with the police. And I think under
      the doctrine of completeness, both the inculpatory and any
      exculpatory statements would come in.

(Emphasis added.) The State’s argument on appeal that the defendant’s
statements to the police constituted hearsay (when testified to by the police)
applies not only to her statements regarding prior threats, but also to her
statements regarding threats made on the night of the robbery. Yet, as the
prosecutor recognized, the hearsay statements to the police regarding threats
made on the night of the robbery were admissible under the doctrine of
completeness, and the prosecutor expressed his opinion that under the
doctrine of completeness, any exculpatory statements by the defendant to the
police would be admitted. Had the trial court understood that the defendant’s
statements to the police regarding the prior threats and violent acts were also
relevant, exculpatory statements, it may well have admitted them under the
same theory.




                                        8
       In summary, we are unable to conclude on the record before us that
there was only one way that the trial court could have ruled had it been asked
to decide whether the evidence of Dodge’s prior threats and violence was
admissible under the completeness doctrine. Under those circumstances, we
decline to affirm the conviction on the ground that the trial court reached the
right result for the wrong reason.

       Finally, we briefly address the State’s contention that the trial court’s
error was harmless. To establish that an error was harmless, the State must
prove beyond a reasonable doubt that the error did not affect the verdict. State
v. Souksamrane, 164 N.H. 425, 429 (2012). An error may be harmless beyond
a reasonable doubt if the alternative evidence of the defendant’s guilt is of an
overwhelming nature, quantity, or weight, and if the evidence that was
improperly admitted or excluded is merely cumulative or inconsequential in
relation to the strength of the State’s evidence of guilt. Id. Here, the jury was
instructed that the defendant bore the burden of proving, by a preponderance
of the evidence, that she “was purposely acting to facilitate the commission of
the crime of robbery by threat of physical force under threat of imminent death
or serious bodily injury.” We agree with the defendant that the excluded
evidence, particularly evidence that Dodge put a knife to her throat, was highly
relevant to whether the defendant reasonably feared imminent death or serious
bodily injury when Dodge threatened to beat her on the night of the robbery.
Because of its nature, such evidence cannot be characterized as merely
cumulative or inconsequential in relation to the strength of the State’s evidence
of guilt. Had such evidence been admitted, it is possible that the jury would
have credited the defendant’s duress defense. Because we are not persuaded
beyond a reasonable doubt that the error did not affect the verdict, we reverse
and remand.

                                                  Reversed and remanded.

      HICKS, CONBOY, and BASSETT, JJ., concurred; LYNN, J., dissented.

      LYNN, J., dissenting. Although I agree with the majority that the trial
court erred in ruling that evidence regarding threats or violent acts directed
against the defendant by Tyler Dodge on occasions prior to the day of the
robbery were irrelevant to her duress defense, I do not agree that this error
requires the reversal of the defendant’s conviction.

                                        I

      Our traditional standard of review applicable to trial court evidentiary
rulings is that the party claiming error must demonstrate that the trial court’s
“ruling was clearly untenable or unreasonable to the prejudice of his case.”
State v. Deschenes, 156 N.H. 71, 76 (2007) (emphasis added). In this case,



                                        9
however, the majority deviates from this long-held standard and effectively
substitutes a standard that grants the defendant relief upon showing merely
that the trial court’s erroneous ruling might have prejudiced her case. In my
view, there is no sound justification for employing such a relaxed standard.

       It is important to note at the outset that, although it was the State that
requested in its motion in limine a pretrial ruling that the duress defense was
unavailable to the defendant, when the court denied that request it became the
defendant’s burden to demonstrate the admissibility of the evidence it sought
to introduce to support the defense. See, e.g., State v. Walters, 142 N.H. 239,
242 (1997) (“The party offering evidence generally bears the burden of
demonstrating its admissibility.”); N.H. R. Ev. 103(b)(2) (providing that error
may not be predicated upon a ruling excluding evidence unless a substantial
right of the party challenging the ruling is affected and the substance of the
evidence was contemporaneously made known to the court by offer of proof).

        As we recently explained in State v. Noucas, 165 N.H. 146, 158 (2013),
“[i]n order to predicate error on a trial court’s ruling excluding evidence, the
proponent of the evidence bears the burden of making a contemporaneous offer
of proof sufficient to apprise the court of the specific nature of the excluded
evidence.” Id.; see also So. Willow Properties v. Burlington Coat Factory of
N.H., 159 N.H. 494, 503 (2009); State v. Saulnier, 132 N.H. 412, 413-14
(1989). “The object of Rule 103(b) is to advise the trial judge of a claim of error
so that it can be addressed before any damage is beyond correction in the trial
court.” Noucas, 165 N.H. at 158 (quotation and brackets omitted). To satisfy
this requirement, the proponent must do more than merely describe the
content of proposed evidence; instead, the offer of proof must establish both
the relevancy and competency of the evidence at issue. See id. at 159 (citing
United States v. Adams, 271 F.3d 1236, 1241 (10th Cir. 2001), for premise that
“[m]erely telling the court the content of proposed testimony is not an offer of
proof. In order to qualify as an adequate offer of proof, the proponent must,
first, describe the evidence and what it tends to show, and, second, identify the
grounds for admitting the evidence.” (quotation, brackets, and ellipses
omitted)). The party seeking admission of the evidence also has a burden “to
create a sufficient record for our review on appeal, i.e., a record that sets forth
the specific basis for admissibility of the proffered evidence.” Appeal of
Montplaisir, 147 N.H. 297, 303 (2001) (quotation omitted); see Bohan v. Ritzo,
141 N.H. 210, 218 (1996). “Mere conclusory assertions or speculation are not
sufficient to meet that burden.” Montplaisir, 147 N.H. at 303 (quotation and
ellipses omitted); see Bohan, 141 N.H. at 218.

      As applied to the disputed evidence here at issue, i.e., the evidence
regarding Dodge’s alleged threats and violence toward the defendant on




                                        10
occasions prior to the day of the robbery,1 including the incident when he
placed a knife to the defendant’s throat, the above requirements mandated that
the defendant make an offer of proof showing: (1) that such conduct by Dodge
was relevant; and (2) that the defendant had competent evidence to prove that
such conduct occurred. I am in full agreement with the majority’s analysis as
to why the trial court erred in its ruling on the first point — relevancy. What I
disagree with is the majority’s conclusion that, because the trial court made an
erroneous ruling on relevancy, this somehow relieved the defendant of her
responsibility to satisfy the second requirement of a proper offer of proof. The
only explanation offered by the majority for adopting this approach is to say
that, in light of the court’s ruling on relevancy, “it would have been futile” for
the defendant to do so given that relevancy is one of the requisites of
admissibility under the doctrine of completeness. The important point,
however, is that relevancy is not the only requisite to admissibility under the
doctrine of completeness — the proponent of the evidence also must show that,
absent its admission, a misleading impression would be created. Ante at 6. To
me, the very fact that the majority finds it necessary to reverse the defendant’s
conviction based on the trial court’s failure to rule on this second prong of the
completeness doctrine poignantly demonstrates the fallacy of its position.

       If what the majority means by “futile” is that, given the trial court’s ruling
on relevancy, the defendant had little chance of changing the outcome by
pressing the second prong of the offer of proof, I do not disagree. But why
should that fact excuse the defendant from making an appropriate record so
that we have before us all the information we need to determine whether she
was actually prejudiced by the trial court’s ruling? It is not at all uncommon
for trial counsel, faced with an adverse ruling from the court, to request the
opportunity to make a full offer of proof for the purpose of preserving an issue
for appeal. Nor is there any indication in the record that the trial court
prevented — or would have prevented — the defendant from making a full offer
of proof.

       The majority correctly observes that the determination of whether the
prior threats evidence was admissible, notwithstanding the hearsay rule, under
the verbal completeness doctrine was a decision committed to the discretion of
the trial court.2 Had the defendant articulated her position and asked the trial

1 For ease of reference, I hereinafter refer to this evidence as the “prior threats evidence.”
2 By emphasizing a single word in a statement made by the prosecutor, the majority seems to
suggest that he all but conceded that “any exculpatory statements [made by the defendant during
the police interviews] would come in.” Ante at 8 (emphasis added). But on the very next page of
the transcript, the prosecutor stated that “the State takes exception” to the court’s ruling that
even the statement made by the defendant that Dodge threatened to “beat the shit out of her” on
the night of the robbery met the standard of admissibility. Since this statement was exculpatory,
the best that can be said is that the record is unclear as to what the State’s position would have
been about whether the prior threats evidence would have been admissible under the doctrine of
completeness. I am in complete agreement with the majority that neither the trial court nor the



                                               11
court to make a ruling on this issue, there is no reason to believe the court
would have refused to do so.3 And if the defendant had followed this course,
the trial court could have determined, within its discretion and as an
alternative basis for excluding such evidence, that even if its view as to the
relevancy of the evidence was erroneous, the defendant’s statements about
such conduct were not admissible under the doctrine of verbal completeness
because they were not necessary to correct a misleading impression resulting
from the portions of her statements that the court was permitting to be
admitted. The majority acknowledges that such an alternative ruling by the
trial court would not have been erroneous as a matter of law. Ante at 7-8.
Indeed, given the other extensive evidence of duress which the court permitted
the defendant to elicit from the officers who interviewed her, including her
statements about Dodge’s threats on the day of the robbery and about her fear
of both Dodge and Jones, such a ruling by the trial court would have been
entirely consistent with our case law. See State v. Mitchell, 166 N.H. ___, ___
(decided May 16, 2014) (holding that exclusion of evidence of defendant’s offers
to take polygraph examination did not create misleading impression where
defendant was allowed to elicit other evidence that he adamantly denied guilt
and observing that “the doctrine of completeness does not require the
admission of otherwise inadmissible evidence simply to bolster a defendant’s
claim of innocence”); State v. Botelho, 165 N.H. ___, ___, 83 A.3d 814, 824
(2013) (exclusion of portions of police interview in which defendant expressed
concern for her children did not prejudice her “because she expressed concern
for her children at several other points throughout the admitted portion of the
interview”); State v. Lopez, 156 N.H. 416, 423 (2007) (where defendant was
permitted to introduce evidence that he cried when speaking with his family
prior to and during his arrest, “trial court did not err by not permitting him to
introduce more of such evidence”); compare State v. Keith, 136 N.H. 572, 575
(1992) (doctrine of completeness required admission of remainder of non-
testifying witness’s statement to police where portion admitted by defendant
created misleading impression that witness saw someone “run into the woods,
never to return,” and that witness and police officer saw different individuals
run into woods). Unlike the majority, I would not permit the defendant to
benefit on appeal from her own failure to make a complete offer of proof and
seek a ruling from the trial court on all necessary prerequisites to the
admission of the evidence she now claims was wrongly excluded.4

parties discussed whether the prior threats evidence constituted hearsay or was admissible under
the doctrine of completeness. But that is the very point. As the proponent of that evidence, it was
the defendant’s burden to make a complete offer of proof and to seek a ruling from the trial court
on these issues. The consequences of the defendant’s failure to do so should rest with her, not
with the State.
3 Of course, if the trial court had declined to make such a ruling, in the face of a full offer of proof

by the defendant, then I would readily concede that nothing more could reasonably be expected
from the defendant in order to preserve the issue for our review.
4 The majority cites dicta from two cases decided by the Court of Appeals for the District of

Columbia for the proposition that where “a discretionary decision is at issue and the trial court



                                                  12
       Moreover, even assuming that there is some valid reason for excusing the
defendant’s failure to make a proper offer of proof as to the admissibility of the
prior threats evidence, I fail to see any justification for the majority’s decision
to grant the defendant a new trial as the appropriate form of relief. If, as the
majority asserts, the only error that potentially prejudiced the defendant was
the trial court’s failure to exercise its discretion as to whether the foregoing
evidence should have been admitted under the doctrine of completeness, the
appropriate remedy, at least in the first instance, should be limited to a
remand to the trial court to permit it to exercise its discretion. If, on remand,
the trial court determines that the disputed evidence should have been
admitted, only then would a new trial be in order. On the other hand, if the
court determines that the portions of the defendant’s statements to the police
admitted at trial did not create a misleading impression necessitating
admission of the disputed evidence, this court would remain available to the
defendant to obtain review of that decision. Indeed, in Thomas, one of the
cases upon which the majority relies, this is exactly the remedy the court
would have imposed were it not for the fact that the court also found
alternative grounds upon which the defendant was entitled to a new trial. See
Thomas v. United States, 59 A.3d 1252, 1267 (D.C. 2013). Since there is no
alternative basis for reversal of the conviction in this case, the majority’s rush
to order a new trial is inexplicable.

      Finally, even if this evidentiary ruling is adequately preserved for our
review, unlike the majority, I would find that any error was harmless beyond a
reasonable doubt.5 Because the State does not argue to the contrary, I, like
the majority, assume that duress was a legally available defense in this case.

has not exercised its discretion, we may sustain the trial court’s ruling on a ground upon which it
did not rely only if there is only one way the trial court could have ruled as a matter of law.” Ante
at 7-8 (citing Thomas v. United States, 59 A.3d 1252, 1266 (D.C. 2013), and Wright v. United
States, 508 A.2d 915, 919-20 (D.C. 1986)). Regardless of whether this dicta is sound as an
abstract principle of law, the important point is that neither case involved a situation, as exists
here, wherein the proponent of evidence failed to make a properly detailed proffer as to the basis
upon which the evidence was admissible. Thus, Thomas and Wright are distinguishable and do
not support the result reached by the majority in this case.
5 It must be noted that there is some analytical tension between the majority’s reliance on the

Wright-Thomas line of cases, on the one hand, and its conclusion that the error at issue here is
not harmless, on the other. If, as the majority asserts, the trial court error requiring reversal is
the court’s failure to exercise its discretion as to the doctrine of completeness, then presumably,
under its reasoning, there would have been no error at all if the court had exercised its discretion
to exclude the evidence. That being the case, it is hard to understand how the court’s failure to
exercise its discretion, which has the exact same result, i.e., the disputed evidence is excluded
from the trial, can be anything other than harmless error. Even assuming that the majority’s
position on these issues can be reconciled, however, the Wright opinion makes it clear that a
failure to exercise discretion error can constitute harmless error. See Wright, 508 A.2d at 921
(after determining that trial court’s ruling precluding defendant’s counsel from making an opening
statement could not be justified as a discretionary decision based upon the statement’s putative
“argumentative” nature because the court had never exercised its discretion on this issue, the
court nonetheless found the error harmless and affirmed the defendant’s conviction).



                                                 13
That said, however, the record makes it abundantly clear that, from a factual
perspective, this defense was supported by little more than wishful thinking by
the defendant. The majority asserts that the prior threats evidence was “highly
relevant to whether the defendant reasonably feared imminent death or serious
bodily injury when Dodge threatened to beat her on the night of the robbery.”
Ante at 9. I agree that the prior threats evidence could have some marginal
incremental bearing on the degree and reasonableness of the defendant’s
asserted fear.6 But fear — even great fear — of Dodge and/or Jones by the
defendant is not all that is required to establish the defense of duress. In
addition to being afraid, the fear must be of suffering imminent death or
serious bodily injury. As we recognized in State v. Daoud, “one principle [of the
duress defense] remains constant: if there is a reasonable, legal alternative to
violating the law, a chance both to refuse to do the criminal act and also to
avoid the threatened harm, the defense will fail.” State v. Daoud, 141 N.H.
142, 147-48 (1996) (quotation and brackets omitted). And because duress is
an affirmative defense, it is the defendant, rather than the State, who bears the
burden of proving by a preponderance of evidence that no such alternative
existed. Id. at 147.

      In this case, even putting aside the defendant’s initial lies to the police
about her knowledge of, or involvement in, the robbery, and — after she
supposedly “came clean” — her patently implausible explanation of her initial
understanding of the reason for the trio’s trip to New Hampshire,7 the evidence
plainly and overwhelmingly established that, regardless of any fear she had of
Dodge and/or Jones, she did have alternatives to aiding and abetting in the
commission of the robbery. See Daoud, 141 N.H. at 148 (holding that
defendant’s offer to prove that she was the victim of battered woman’s

6 The defendant was permitted to present to the jury her statements to the police that, on the
night of the robbery, Dodge had threatened to “beat the shit out of her” if she did not drive him
and Jones to the robbery; that if she did not drive, Dodge would take her car anyway “and that
would be more of a fight”; that Dodge was getting out of control, would become angry very quickly,
and that “it was his way or the f____ highway”; that she participated in the robbery only because
she was scared and afraid she would get hurt if she did not do so; that she also was afraid of
Jones because of his gang affiliation and possible retaliation against her; and that she was crying
and upset when she told the police these things. In addition, she also established that both Jones
and Dodge had prior criminal records and that, shortly after the robbery, Dodge had been
arrested on an unrelated criminal charge. Given this evidence, which already portrayed Dodge as
a brutish, controlling criminal, the admission of the prior threats evidence would have been
cumulative and inconsequential, particularly because it had no bearing on the issue of the
availability to the defendant of alternatives to aiding and abetting the robbery.
7 The defendant’s story to the police was that at about 10:00 p.m. on a Sunday evening, she and

her boyfriend Dodge left for a two-hour ride to New Hampshire to visit her family — the expected
arrival time therefore being somewhere around midnight. According to the defendant, on this
supposed nocturnal journey to visit the family, she and Dodge were accompanied by a third
person — Jones — whose real name she did not know because Dodge had told her that he did not
want her to know the names of his friends so that she would be unable to give such information to
the police. Needless to say, the defendant called no family members to offer any corroboration
whatsoever of this version of events.



                                               14
syndrome and was in fear of her boyfriend was properly rejected as defense to
driving while intoxicated charge where evidence demonstrated that she had
lawful alternatives to driving available). The undisputed evidence at trial was
that the defendant was left alone in her car, which was parked in the lot of a
next-door business some 50-75 yards away from the Baymont Inn, for a period
of approximately seven minutes while Dodge and Jones entered the motel to
commit the robbery. Yet she made no effort to drive away, run away, hide
behind the Baymont or other businesses in the area, or call the police during
this interval. The defendant argued below and asserts on appeal that there is
no evidence she had either her cell phone or the car keys in her possession
while her confederates were inside committing the robbery. To the contrary,
not only was there weighty circumstantial evidence showing that she did have
possession of both the car keys and her cell phone while she waited in the car,8
but even if that were not the case, it was the defendant who bore the burden of
proof to show the absence of alternatives to commission of the crime, and thus
any weakness in the evidence on these points in no way undermined the
State’s compelling proof of the defendant’s purposeful participation in the
crime.

                                                 II

       Because I would not reverse the defendant’s conviction based upon the
trial court’s exclusion of the defendant’s statements to the police regarding the
prior threats evidence, I also address what arguably is an alternative argument
advanced by the defendant: that the trial court committed error in refusing to
allow her to adduce the prior threats evidence through her own direct
testimony at trial. I conclude that this issue also is not preserved for our
review.

      During the hearing on the State’s motion in limine, defense counsel
stated: “And I think if we do present evidence through the Defendant, she
would testify that [abuse by Dodge] did in fact happen in the past and she had
been victim to abuse.” This statement was the defendant’s only indication that
she might testify at the trial made prior to the court’s ruling on the motion in
limine. She made no mention of potentially offering the prior threats evidence
through her own testimony in her written objection to the State’s motion
submitted the morning of trial, and she never again mentioned the possibility


8 As the prosecutor aptly noted in his closing argument, the evidence plainly showed that the
defendant’s role in the robbery was to function as the driver of the getaway car. That being the
case, the notion that Dodge and Jones would have taken the car keys with them, thus delaying
the trio’s flight from the scene while one of them returned the keys to the defendant so that she
could operate the vehicle, obviously strains credulity. As to the cell phone, the police specifically
asked the defendant why she did not call 911. Her response was not that she was unable to do so
because she did not have possession of her cell phone; rather she said she did not call the police
because she did not want to get Dodge in trouble and did not want to implicate herself.



                                                15
during the pretrial hearing. After the court’s ruling that the prior threats
evidence was not admissible, the defendant’s counsel did inform the jury
during his opening statement that the defendant might testify. However, no
further mention of the defendant potentially testifying was made during the
remainder of the trial, and, at the conclusion of the State’s case, the defendant
rested without offering any evidence. At no time did the court ever specifically
address the admissibility of the defendant’s direct testimony as to Dodge’s prior
threats, and the defendant does not argue on appeal that she did not testify
because of the court’s ruling on the motion in limine. In fact, at oral argument
her counsel acknowledged that “[t]he claim here is not that the court’s ruling
drove [her] from the witness stand or something like that.”9

       Nonetheless, the defendant argues that our review of the exclusion of the
prior threats evidence is not limited to its admission through the testimony of
the police officers, and that we may also consider whether the excluded
evidence would have been admissible through her own direct testimony. She
asserts that her argument is considered preserved for our review upon a
showing that (1) the trial court made a “definitive ruling” excluding the
evidence, see State v. Bennett, 144 N.H. 13, 17 (1999), and (2) that the
substance of the evidence was contemporaneously made known to the court by
offer of proof, see N.H. R. Ev. 103(b). I disagree.

      As stated previously, “[i]n order to predicate error on a trial court’s ruling
excluding evidence, the proponent of the evidence bears the burden of making
a contemporaneous offer of proof sufficient to apprise the court of the specific
nature of the excluded evidence.” Noucas, 165 N.H. at 158. This case is
readily distinguishable from Bennett. In that case, although the defendant
argued only that he “might want to introduce” certain excerpts of a pretrial
statement to police, prompting the State to contend that the argument was not
preserved for appeal, the trial court later issued a written order declaring the
excerpts in question to be inadmissible hearsay. Bennett, 144 N.H. at 16-17.
As a result, we held that “the defendant’s proffer was sufficient to alert the trial
court to his argument, and the court’s written order demonstrate[d] that the
court considered it and ruled on it.” Id. at 17. In this case, the defendant’s
purported offer of proof, while similar to the proffer in Bennett in its
hypothetical nature, prompted no ruling by the trial court. Indeed, the trial
court did not respond to — or even acknowledge — counsel’s statement that
the prior threats evidence could be admitted through the defendant’s
testimony.

9 In her initial brief on appeal, the defendant did state that “[f]ollowing these rulings [on the
motion in limine], [the defendant] declined to testify.” However, this statement can be taken to
mean only that the defendant declined to testify during the trial, and that this declination literally
came after (i.e., “followed”) the trial court’s rulings on the motion in limine. It cannot be
interpreted to mean that there was a causal connection between the court’s ruling and the
defendant’s decision not to testify, especially given the defendant’s admission at oral argument.



                                                 16
      In any event, counsel’s mere speculative assertion that testimony about
the prior threats could be offered through the testimony of the defendant if she
were to testify fails to establish that she was prejudiced by the court’s ruling,
particularly in light of her counsel’s acknowledgment that there was no causal
connection between the ruling and the defendant’s decision not to testify.
Noucas, 165 N.H at 159 (defendant must establish that he was prejudiced by
court’s evidentiary ruling); cf. Luce v. United States, 469 U.S. 38, 42-43 (1984)
(holding that trial court ruling permitting defendant to be impeached with prior
convictions was too speculative to warrant appellate review where defendant
did not testify); State v. Atkins, 145 N.H. 256, 257-58 (2000) (same).

                                            III

      For the reasons stated above, I would affirm the defendant’s conviction. I
therefore respectfully dissent.




                                       17
