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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Strafford
No. 2014-0592


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                SETH MAZZAGLIA

                         Argued: November 16, 2016
                      Opinion Issued: December 13, 2016

      Joseph A. Foster, attorney general (Geoffrey W.R. Ward, 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.

      DALIANIS, C.J. The defendant appeals his first degree murder
convictions following a jury trial in Superior Court (Houran, J.). See RSA
630:1-a, I(b)(1) (2016). On appeal, he argues that the trial court erred when it
excluded evidence alleging that the victim had expressed to her prior partners
an interest in bondage-related sexual activities. We affirm.

      The relevant facts follow. A Strafford County grand jury indicted the
defendant on seven charges relating to the victim’s October 2012 death. The
State charged two alternative-theory counts of first degree murder, one alleging
a purpose to kill and the other alleging a knowing murder while committing
felonious sexual assault.

      The central disputed issue at the defendant’s trial concerned the
circumstances of the victim’s death. The State contended that the defendant,
enraged by the victim’s refusal to participate in a sexual encounter with him
and his girlfriend, attacked the victim from behind while she was watching a
movie, strangling her with a rope. The State further asserted that, after the
victim had died, the defendant sexually assaulted her.

      By contrast, the defense theory was that the victim died during a
consensual sexual encounter with the defendant and his girlfriend. According
to that theory, the victim allowed the defendant and his girlfriend to put a
“harness” around her and then had consensual sexual intercourse with the
defendant, while his girlfriend accidently smothered her. The defense theory
was based upon the story that the defendant’s girlfriend had initially told the
defense team in October 2012.

       Before trial, the defendant filed a motion to introduce evidence alleging
that the victim, then a 19-year-old college student, had previously expressed
interest in bondage-related sexual activities. The defense sought to admit
evidence alleging that the victim had expressed interest in such activities to her
prior sexual partner in May 2010, approximately two and one-half years before
her murder. The defense also sought to admit evidence alleging that she had
expressed the same interest more recently to her then-current sexual partner.

       The defendant argued that, without the evidence alleging that the victim
had previously expressed interest in bondage-related sexual activity, “any
claims that [the victim] would consent” to bondage-related activities with the
defendant and his girlfriend “would seem objectively counterintuitive and
implausible.” The defendant’s pretrial motion also sought to introduce
evidence of specific instances of the victim’s alleged prior sexual conduct.
However, at the trial court hearing on the motion, defense counsel clarified that
counsel sought only to introduce evidence of the victim’s alleged “openness” to
bondage-related sexual activities and would not seek to introduce evidence
alleging specific instances of her prior consensual sexual conduct.

      The trial court denied the motion, pursuant to New Hampshire Rule of
Evidence 412. See N.H. R. Ev. 412. The court explained that, under Rule 412,
“inquiry into the prior consensual activities of victims is generally prohibited,”
but that “[i]n certain instances, . . . protection of the victim and her privacy
rights must yield to a defendant’s right to due process and to confront
accusers.” (Quotation and brackets omitted.) “Thus,” the court further
explained, “a defendant must be given the opportunity to demonstrate that due
process requires admission of a victim’s prior sexual conduct,” by



                                        2
demonstrating that the evidence “is relevant” and that “its probative value
outweighs its prejudicial effect on the victim.” (Quotations omitted.)

       The court first found that the evidence alleging the victim’s prior
expressions of interest in bondage-related sexual activities was not relevant to
show that the victim consented to engage in such activities with the defendant
and his girlfriend. The court also determined that, even if it were to accept the
defendant’s theory that the evidence had some relevance to show that the
victim would consent to engage in bondage-related sexual activities with the
defendant and his girlfriend, its probative value was outweighed by prejudice to
the victim and her family.

       On four occasions during the trial, the defendant argued that the State
had opened the door to the evidence alleging that the victim had previously
expressed interest in bondage-related sexual activities. On each occasion, the
trial court disagreed and precluded the defendant from introducing the
challenged evidence. Ultimately, the jury convicted the defendant on both
alternative theory first degree murder charges, and he was sentenced on one.
This appeal followed.

       We first address the defendant’s assertion that the trial court erred when
it denied his pretrial motion to introduce evidence alleging that the victim had
previously expressed interest in bondage-related sexual activities. The
defendant argues that the trial court erred by applying Rule 412 to the
challenged evidence. Alternatively, the defendant contends that, even if Rule
412 applies to the evidence, the trial court erred by determining that the
evidence was irrelevant to a material issue and that, even if relevant, the
probative value of the evidence was outweighed by its prejudicial effect on the
victim and her family, and that excluding the evidence under Rule 412 violated
his due process rights.

      We review the trial court’s ruling for an unsustainable exercise of
discretion, and will reverse only if it was clearly untenable or unreasonable to
the prejudice of the defendant’s case. State v. Kim, 153 N.H. 322, 327 (2006).

      Rule 412 provides, in pertinent part:

      (a) Except as constitutionally required, and then only in the
      manner provided in (b), below, evidence of prior consensual sexual
      activity between the victim and any person other than the
      defendant shall not be admitted into evidence in any prosecution
      or in any pretrial discovery proceeding undertaken in anticipation
      of a prosecution under the laws of this state.

      (b) Upon motion by the defense filed in accordance with the then
      applicable Rules of Court, the defense shall be given an


                                        3
      opportunity to demonstrate, during a hearing in chambers, in the
      manner provided for in Rule 104:

            ....

            (2) Use of Evidence At Trial: that due process requires the
            admission of the evidence proffered by the defense which
            would be otherwise excluded under subsection (a), above,
            and the probative value in the context of the case in issue
            outweighs its prejudicial effect on the victim.

N.H. R. Ev. 412. The defendant contends that Rule 412 does not apply to the
challenged evidence because the evidence at issue concerns alleged statements
of interest, not specific instances of the victim’s alleged sexual conduct. For
the purposes of this appeal, we assume without deciding that the defendant is
correct. Nonetheless, the trial court properly excluded the challenged evidence
on the ground that it lacked probative value, or, in other words, was irrelevant
to establish that the victim consented to engage in bondage-related sexual
activities with the defendant and his girlfriend. See N.H. R. Ev. 401, 402.

       To be admissible at trial, evidence must be relevant; that is, it must have
a “‘tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.’” State v. Higgins, 149 N.H. 290, 297 (2003) (quoting
N.H. R. Ev. 401). The defendant argues that the challenged evidence is
relevant because it “undermine[s] a significant obstacle to the jury’s
acceptance” of the defense theory that the victim’s sexual encounter with the
defendant and his girlfriend was consensual. The defendant asserts that the
“significant obstacle” to the jury’s acceptance of the defense theory is its
presumption that the victim had “ordinary attitudes about sexual practices”
and “would have no interest in engaging in [bondage-related sexual] techniques
under any circumstances.”

       The defendant acknowledges that “[i]n jury selection, many prospective
jurors agreed that, in the absence of information, they would make no
assumptions about whether a person might have an interest in [bondage-
related sexual activities].” However, he argues that “by the time of
deliberations, the jurors knew a great deal about [the victim’s] many admirable
qualities,” and that, therefore, “there is a significant risk that [they] would
presume . . . that she would share the culturally-typical aversion to [bondage-
related sexual activities] and . . . would not under any circumstances willingly
participate in it.” The relevance of the challenged evidence, he contends, “lay
in its capacity to neutralize” the presumption that the victim “was a normal
person” who would not consent to bondage-related sexual activities.




                                        4
      We find Higgins, 149 N.H. at 297, instructive. In that case, the
defendant sought to question the victim about “whether she previously had
consented to acts of bondage, sadomasochism or sodomy in exchange for drugs
or money.” Higgins, 149 N.H. at 295. The defendant contended “that this line
of inquiry was relevant to his defense theory that the victim consented to being
restrained and to engaging in anal intercourse with him because she was
previously willing to engage in acts she otherwise found objectionable in order
to gain money to support her drug habit.” Id. We rejected the defendant’s
relevance argument:

      To be admissible at trial, evidence must be relevant; that is, it
      must have a 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. We find no
      merit to the defendant’s contention that prior acts of anal
      intercourse, bondage and sadomasochism in the course of the
      victim’s prostitution would have made it more probable that she
      allowed him to restrain her with handcuffs, shackles and rope and
      consented to anal intercourse.

            Consent to sexual conduct with one person in no way
      implies consent to such activity with another. Each decision to
      consent is a new act, a choice made on the circumstances
      prevailing in the present, not governed by the past. Whether a
      woman previously engaged in a particular type of sexual activity,
      such as anal intercourse or sadomasochistic role-play, with
      another person has no bearing, in and of itself, on whether she
      agreed to do so with the defendant.

            ....

             We recognize that circumstances may arise which may make
      a prostitute’s past consensual sexual activity relevant to her bias,
      prejudice or motive to fabricate. In this case, the defendant argues
      only that the evidence sought would have been offered to show her
      propensity to engage in sodomy, bondage and sadomasochism and
      thus, make it more probable that she would have consented to
      engage in such conduct with him, a position we reject under the
      circumstances of this case. Accordingly, we conclude that the
      defendant failed to establish that his proposed line of inquiry
      during the deposition process could have led to any relevant
      information which would have aided the jury in ascertaining any
      specific fact contested.

Id. at 297-98 (quotations and citations omitted).



                                       5
       Like the defendant in Higgins, the defendant here seeks to introduce the
challenged evidence to show that the sexual encounter at issue was
consensual. Contrary to the defendant’s assertions, the only relevance of the
challenged evidence in this case is that it shows the victim’s alleged propensity
to consent to bondage-related sexual activities. Just as the propensity
evidence in Higgins was not relevant to show that the encounter between the
victim and defendant in that case was consensual, so too the propensity
evidence in this case is not relevant to establish that the encounter between
the victim, the defendant, and his girlfriend was consensual. As we explained
in Higgins, “[c]onsent to sexual conduct with one person in no way implies
consent to such activity with another.” Id. at 297. Similarly, the fact that the
victim allegedly previously expressed to prior partners an interest in bondage-
related sexual activity does not make it more probable that she consented to
her encounter with the defendant and his girlfriend. Id. at 297-98.

       We next address the defendant’s arguments that the trial court erred
when it failed to find that the State had opened the door to the previously
excluded evidence of the victim’s alleged interest in bondage-related sexual
activities. The “opening the door” doctrine comprises two doctrines governing
the admissibility of evidence. State v. Gaudet, 166 N.H. 390, 396 (2014)
(quotation omitted). The first doctrine, “curative admissibility,” applies when
inadmissible prejudicial evidence has been erroneously admitted, and the
opponent seeks to introduce testimony to counter the prejudice. Id. (quotation
omitted). The second doctrine, “specific contradiction,” is more broadly applied
to situations in which one party has introduced admissible evidence that
creates a misleading advantage and the opponent is then permitted to
introduce previously suppressed or otherwise inadmissible evidence to counter
the misleading advantage. Id. (quotation omitted). Here, we are concerned
only with the specific contradiction doctrine. See id.

       For this doctrine to apply, the initial evidence must have reasonably
misled the fact finder in some way. Id. The rule, thus, prevents a party from
successfully excluding evidence favorable to his opponent and then selectively
introducing some of this evidence for his own advantage, without allowing the
opponent to place the evidence in proper context. Id. The fact that the “door
has been opened” does not permit all evidence to “pass through” because the
doctrine is intended to prevent prejudice and is not to be subverted to allow for
the injection of prejudice. Id. (quotation omitted). “The trial court is in the
best position to gauge the prejudicial impact of particular testimony.” Id.
(quotation omitted). Accordingly, we will not upset the trial court’s ruling on
whether the State opened the door to prejudicial rebuttal evidence absent an
unsustainable exercise of discretion. Id.

       The defendant argues that, on four occasions during the trial, the State,
in effect, asserted that the victim “in fact was not the kind of person who would
consent to [bondage-related] sexual practices,” thus, opening the door to


                                        6
evidence that she had expressed to prior partners an interest in such activities.
Based upon our review of the four occasions upon which the defendant relies,
we conclude that the trial court did not unsustainably exercise its discretion
when it ruled that the State did not, on those occasions, open the door to
admission of the evidence at issue.

       On the first occasion, the State, during its opening statement, asserted
that, according to the defendant, the victim “died during a consensual sexual
encounter gone bad” and that, even though she “was in a committed and
exclusive relationship,” she “consented to dangerous and brutal sex with the
[d]efendant, who she barely knew, and with [his girlfriend], who was a work
acquaintance.” The State further contended that the defense theory was that
“[t]he victim agreed to be bound, gagged, strangled, hit, violently sexually
exploited by an almost complete stranger, and by a coworker acquaintance who
she saw outside of work only once.” This theory, the State asserted, was “[a]n
insult to [the jury’s] commonsense and to [the victim’s] memory.”

        On the second occasion, the State elicited testimony from one of the
victim’s friends that the victim did not tell him either that “she was sexually
attracted to [the defendant’s girlfriend]” or that she and the defendant’s
girlfriend had “talked about sex” and bondage-related sexual activities one
night.

        On the third occasion, the State elicited testimony from the defendant’s
girlfriend that she and the defendant had never used the “extreme degree” of
bondage involved in the defense theory of the case. Although the State also
elicited the girlfriend’s testimony that her story to the defense team had been
“ridiculous,” the trial court struck this response from the record and instructed
the jury that the response was not evidence in the case and could not be
considered “in any way.”

       On the last occasion, during its cross-examination of one of the
defendant’s friends, the State elicited testimony that, he, like the defendant,
enjoyed Japanese anime, videogames that involved fantasy and role playing,
and, like the victim, he enjoyed the book and the television show, “Game of
Thrones.” The following colloquy then occurred:

      Q You’re into all this other stuff like [the defendant] so you must
      be into [bondage-related sexual activities], right?

      A No.

      Q It’s a fairly simple, logical error isn’t it?

      A Yes.



                                           7
      Q It’s faulty deduction, right?

      A Yes.

      Q It’s faulty deduction that leads to erroneous conclusions, right –

      A Yes.

      Q -- to misperceptions and misjudgments, right?

      A Sure.

      The defendant contends that on each of the above occasions, the State
created the misimpression that the victim was repelled by bondage-related
sexual activities, and, therefore, opened the door to evidence alleging that she
was, in fact, interested in such activities. Based upon our review of the record,
we conclude that the trial court was not compelled to interpret the evidence as
the defendant interprets it. Rather, it was reasonable for the trial court to have
found, in each of the instances upon which the defendant relies, that the State
did not create the misimpression that the victim was repelled by bondage-
related activities. Accordingly, we uphold the trial court’s determination that
the State did not open the door to the challenged evidence. All issues that the
defendant raised in his notice of appeal, but did not brief, are deemed waived.
See State v. Blackmer, 149 N.H. 47, 49 (2003).

                                                  Affirmed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




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