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State v. Porter7/29/1999
Belknap
After a jury trial in the Superior Court (Smukler, J.), the defendant, Gary Porter, was convicted of kidnapping, see RSA 633:1, I (1996), and aggravated felonious sexual assault, see RSA 632-A:2, I(a) (1996). The court sentenced the defendant to extended terms of incarceration based on his prior convictions. See RSA 651:6, I(c) (1996) (amended 1998). We affirm the defendant's convictions but vacate his sentences and remand for resentencing.
The evidence presented at trial would support the following factual findings. The defendant and the victim met in September 1995, and soon thereafter began living together in the defendant's home. Although the relationship gradually deteriorated, the couple continued to live together. On November 27, 1995, the victim met the defendant at a social club in Laconia, where they consumed alcohol and discussed their relationship. The defendant subsequently took the victim to his home. The defendant left to give a ride to a friend, and the victim consumed additional alcohol. The defendant returned in an angry mood, physically assaulted the victim, dragged her into his bedroom, and forcibly raped her. The defendant held the victim captive in his bedroom and attempted, unsuccessfully, to commit suicide. The victim escaped after the defendant became incapacitated.
The defendant was later arrested and charged with aggravated felonious sexual assault, see RSA 632-A:2, I(a), kidnapping, see RSA 633:1, I, and attempted escape, see RSA 629:1 (1996); RSA 642:6 (1996). After a fifteen-day trial, at which the defendant represented himself, the jury convicted the defendant on all but the attempted escape charge, and the court imposed extended sentences. See RSA 651:6, I(c). This appeal followed.
On appeal, the defendant argues that the trial court erred in: (1) excluding evidence of the victim's character; (2) declining to review in camera the victim's substance abuse evaluation; (3) imposing a notice requirement for the admission of alleged prior false allegations of sexual assault; (4) denying him an opportunity to recall a witness; (5) consolidating the charges; (6) permitting the State to cross-examine him concerning facts underlying prior convictions; (7) failing to dismiss alternative kidnapping indictments; and (8) imposing extended terms of incarceration. The defendant also argues that the prosecutor violated his right to due process during closing arguments by repeatedly disparaging the manner in which he conducted his defense.
We turn first to the defendant's argument that the trial court erred in excluding evidence of the victim's character. We will not disturb a ruling on the admissibility of evidence absent an abuse of discretion. State v. Patten, 137 N.H. 627, 629, 631 A.2d 921, 922 (1993).
The defendant alleged that the victim fabricated the charges against him due to her alleged mental instability, alcoholism, jealousy, and possessiveness. In response to a motion in limine filed by the State, the defendant argued that he would prove through extrinsic evidence that the victim was a mentally unstable alcoholic. The defendant also argued that extrinsic evidence of the victim's alleged prior accusation of rape against a former boyfriend should be admitted under New Hampshire Rule of Evidence 404(a)(2). The court ruled that the defendant could not admit evidence of the victim's alcoholism, conviction of driving while intoxicated, or her participation in a "multiple offender program" because the defendant failed to demonstrate a nexus between the victim's alleged alcoholism and mental instability and her ability to testify truthfully. See N.H. R. Ev. 404(a)(2), 608. The court further ruled that the defe
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