State of New Hampshire v. Seth Skillin

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0477, State of New Hampshire v. Seth
Skillin, the court on September 19, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Seth Skillin, appeals his conviction, following a jury trial in
Superior Court (Delker, J.), on charges of criminal threatening with a deadly
weapon, see RSA 631:4, I(a), II(a)(2) (2016), and being a felon in possession of a
deadly weapon, see RSA 159:3, I (2014). He argues that the trial court erred by
not admitting the victim’s written statement to police as an exhibit. We assume,
without deciding, that this issue is preserved.

The decision to exclude evidence is within the discretion of the trial court.
State v. Palermo, 168 N.H. 387, 391 (2015). In determining whether a ruling is a
proper exercise of judicial discretion, we consider whether the record establishes
an objective basis sufficient to sustain the discretionary decision made. Id. 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. Id.

The defendant argues that the trial court did not admit the victim’s prior,
inconsistent written statement to the police “solely on the ground that it could
not be used substantively.” On the contrary, in support of its ruling, the trial
court noted that defense counsel had read the entire statement, consisting of two
sentences, to the jury. See N.H. R. Ev. 403 (stating that relevant evidence may be
excluded if its probative value is substantially outweighed by considerations of
needless presentation of cumulative evidence).

The defendant argues that when “a witness’s prior written . . . statement is
relevant to evaluate a witness’s credibility, . . . the statement itself may be
admitted as a full exhibit.” However, he does not argue that the trial court is
required to admit the written statement. See Wieszeck v. Sepessy, 116 N.H. 160,
162 (1976) (stating that whether documents should be admitted for impeachment
depends upon trial court’s appraisal of the adequacy of cross-examination).
Upon this record, we cannot conclude that the trial court’s decision not to admit
the written statement as an exhibit was unreasonable or untenable.
 Furthermore, we conclude that the defendant was not prejudiced by the
trial court’s decision. See Palermo, 168 N.H. at 391 (stating that defendant has
burden to show he was prejudiced by trial court’s exercise of discretion). The
defendant argues that the exclusion of the written statement prejudiced him
“[b]ecause the written statement itself would have been far more convincing than
[the victim’s] equivocal acknowledgment.”

Defense counsel read aloud the two-sentence statement in full and cross-
examined both the victim and his brother about it in detail. The victim admitted
that the written statement said that the defendant “tried to hit [him] with
something,” but testified that, in fact, the defendant was holding a knife. The
victim acknowledged that he had signed the written statement and that the
statement said nothing about a knife. The victim explained that his brother had
written the statement on his behalf, translating his oral statement from Spanish
to English. The victim agreed that the written statement was accurate and
testified that the brother had made an error in the translation. See State v.
Schonarth, 152 N.H. 560, 563 (2005) (stating jury may accept or reject testimony
in whole or in part). The brother testified that he made no such error. The
defendant argued in his opening and closing that the victim’s written statement
was inconsistent with his testimony.

Under these circumstances, we cannot conclude that the defendant was
prejudiced by the trial court’s denial of his motion to admit the victim’s written
statement as an exhibit. See Palermo, 168 N.H. at 391. Accordingly, we
conclude that the court’s ruling did not constitute an unsustainable exercise of
discretion.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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