# State v. Ellsworth > Supreme Court of New Hampshire · June 25, 2004 · 151 N.H. 152 URL: https://www.frixlaw.com/law-library/cases/8053225 ## Case - **Full name:** The State of New Hampshire v. Richard Ellsworth - **Court:** Supreme Court of New Hampshire - **Decided:** June 25, 2004 - **Citations:** 151 N.H. 152; 855 A.2d 474; 2004 N.H. LEXIS 110 - **Precedential status:** Published - **Opinion:** Concurring in part by Broderick - **Judges:** Broderick, Dalianis, Duggan, Galway, Nadeau - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8053225 ## How later opinions describe it (automated extraction) - concluding that a prosecutor’s comment during closing argument that there was “one person” — the defendant — who knew “exactly how” the charged sexual assaults occurred and it was not the victim’s “job to try and explain it” was an impermissible comment upon the defendant’s fa… ## Opinion text BRODERICK, C. J., concurring in part and dissenting in part. I concur in that part of the majority opinion holding that the denial of the defendant’s motion for a mistrial, based upon remarks made by the prosecutor during his closing argument, was an unsustainable exercise of discretion. *161 I write separately, however, because I believe that the majority opinion misapplies the doctrine of verbal completeness. In this case, the prosecutor introduced the defendant’s statement that he slept on the couch with his son and the alleged victim to rebut specific inferences, created by defense counsel’s cross-examination of Banaian, that: (1) it was not physically possible for the assaults to have occurred in the manner alleged; and (2) Banaian did not “do anything” to corroborate the victim’s allegations during his investigation. Unlike the majority, I do not believe that admitting the defendant’s statement regarding the sleeping arrangements, without admitting his denial of guilt, misled the jury. Standing alone, it indicated only that the defendant, his son and the alleged victim did, in fact, sleep on the same couch. There was nothing about the statement that required qualification, explanation, contradiction, or context. The defendant’s second statement did not deny that the sleeping arrangements were as his first statement purported them to be. Instead, he denied assaulting the alleged victim. The State, however, had not introduced the first statement to prove that the defendant had assaulted the alleged victim, nor could any rational juror have inferred that from it. Therefore, the defendant’s denial was not necessary to clarify the prosecution’s contentions that it was physically possible for the assaults to have occurred and that Banaian had corroborated the victim’s allegations. Cf. State v. Warren, 143 N.H. 633 (1999) (doctrine of verbal completeness required additional evidence to correct false impression); State v. Crosman, 125 N.H. 527 (1984) (same). Circumstances similar to this case were present in State v. Dixon, 144 N.H. 273 (1999). In that case, the defendant was indicted on three charges of aggravated felonious sexual assault. Dixon, 144 N.H. at 274 . The three charges were identical except that each assault allegedly occurred at a different residence. Id. at 275 . At trial, the State called a police officer, who had interviewed the defendant, to testify regarding the defendant’s statements concerning his residences during the time period in which the assaults allegedly occurred. Id. at 281 . As the defense commenced cross-examination, the State obtained a ruling barring the defense from eliciting testimony that, during the interview, the defendant denied assaulting the victim. Id. On appeal, the defendant argued, under the doctrine of verbal completeness, that he was entitled to cross-examine the officer about his denial of guilt. Id. In affirming the defendant’s conviction, we held that his denial was unrelated to the information the officer provided regarding the defendant’s residences, and that the defendant’s statements concerning his residences could not have reasonably given rise to an inference that he admitted guilt. Id. at 281-82 . *162 In Dixon we recognized that the defendant’s denial of wrongdoing was not necessary to provide context to testimony regarding the facts underlying the alleged crime. Similarly, the defendant’s denial here does not provide context to his statement that he slept on the couch with his son and the alleged victim. Accordingly, and recognizing the discretion with which the trial court rules on the admissibility of evidence, I do not believe that the trial court erred in excluding the defendant’s statement in which he denied assaulting the victim. Galway, J., joins in the opinion of Broderick, C. J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8053225. Public record. Not legal advice.