State of New Hampshire v. Anthony Manuel Ortiz

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0494, State of New Hampshire v. Anthony
Manuel Ortiz, the court on August 16, 2017, issued the following
order:

Having considered the briefs and the oral arguments of the parties and the
record submitted on appeal, the court concludes that a formal, written opinion is
unnecessary in this case. The defendant, Anthony Manuel Ortiz, appeals his
convictions, following a jury trial, on charges of aggravated felonious sexual
assault (AFSA), see RSA 632-A:2, I(m) (2016), and criminal restraint, see RSA
633:2 (2016). He contends that the Superior Court (Delker, J.) erred by: (1)
finding the victim’s statements to a doctor admissible under New Hampshire Rule
of Evidence 803(4) (amended 2017); (2) precluding the defendant from cross-
examining the victim regarding her failure to respond to a particular text
message from her boyfriend; and (3) sentencing the defendant on both the AFSA
charge and the criminal restraint charge. We affirm.

I. Admissibility of the Victim’s Statements under Rule 803(4)

A. Relevant Facts

Before trial, the defendant moved in limine to preclude Dr. Gwendolyn
Gladstone from testifying about statements that the victim made to her on the
ground that they constituted inadmissible hearsay. See N.H. R. Ev. 802
(amended 2017). The State countered that the victim’s statements were
admissible under an exception to the hearsay rule, Rule 803(4), which allows a
declarant’s out-of-court statements to be admitted when they were “made for
purposes of medical diagnosis or treatment.” N.H. R. Ev. 803(4). The trial court
reserved ruling upon the issue until trial.

On the first day of trial, the victim testified that she saw Gladstone “[t]o see
if [she] had any diseases or anything,” such as a sexually transmitted disease,
and to determine whether she was pregnant. On the second day of trial, the
court allowed Gladstone to testify outside of the presence of the jury to determine
whether her testimony about the victim’s statements was admissible under Rule
803(4). Gladstone testified that she evaluated the victim on July 14, 2015, “to
find out from her what had happened” so that Gladstone “could address any
medical issues that might’ve come up as a result.”

Gladstone testified that she starts her medical examinations by asking for
“a general medical history.” She then “proceed[s] to a more detailed history about
the reason for the visit.” Gladstone testified that, when she asked the victim
“about what brought her” to Gladstone’s office, the victim “described . . . an
assault that had happened . . . several weeks before.” Specifically, the victim told
Gladstone “that someone that she knew had sexually assaulted her, which . . .
included penile vaginal penetration, and that she had also been strangled during
the event.” Gladstone testified that the victim described “some symptoms that
she had had since then,” including “having difficulty with intrusive thoughts” and
“[v]aginal pain.” Gladstone testified that she offered to examine “that part” of the
victim’s body, “specifically to look to see if there were signs of injury, since [the
victim] had described pain that had gone on for several days, and to see if there
were any signs of infection, because she didn’t think that her -- the person had
worn a condom at the time.” The victim declined to be examined.

Gladstone also testified that she explained to the victim “that it’s a good
idea to be tested for pregnancy even if a person thinks they aren’t pregnant, just
to be sure,” and, thus, she “recommended that [the victim] be tested.” The victim
was tested for pregnancy and “had medical testing for sexual infections, even
though she had no symptoms.” The trial court ruled that Gladstone’s testimony
about the victim’s statements to her were admissible under Rule 803(4).

B. Analysis

Rule 803(4) constitutes an exception to the general rule that hearsay (an
out-of-court statement offered for the truth of what it asserts) is inadmissible.
See N.H. R. Ev. 801(c) (amended 2017). Rule 803(4) allows out-of-court
statements to be admitted for the truth of what they assert when those
statements are “made for purposes of medical diagnosis or treatment and
describ[e] medical history, or past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment.” N.H. R. Ev. 803(4). Such
statements are admissible “regardless of to whom the statements are made, or
when the statements are made.” Id. In order for such statements to be
admissible, however, the trial court must affirmatively find “that the proffered
statements were made under circumstances indicating their trustworthiness.”
Id.

In State v. Roberts, 136 N.H. 731, 740 (1993), we interpreted Rule 803(4)
as requiring a three-part test before a declarant’s statements may be admitted
under that hearsay rule exception. See State v. Munroe, 161 N.H. 618, 627
(2011). First, a court must find that the declarant intended to make the
statements to obtain a medical diagnosis or treatment. Id. Second, the
statements must describe medical history, or symptoms, pain, sensations, or
their cause or source to an extent reasonably pertinent to diagnosis or treatment.
Id. Third, the court must find that the circumstances surrounding the
statements support their trustworthiness. Id.

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 On appeal, the defendant argues that the victim’s statements fail to satisfy
all three parts of the Roberts test. We accord the trial court considerable
deference in determining the admissibility of evidence, and we will not disturb its
decision absent an unsustainable exercise of discretion. Id. at 626. To
demonstrate an unsustainable exercise of discretion, the defendant must show
that the trial court’s ruling was clearly untenable or unreasonable to the
prejudice of his case. Id. 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. State v. Tabaldi, 165 N.H.
306, 321 (2013). We defer to the trial court’s findings of fact, but review its
conclusions of law de novo. See State v. Champagne, 152 N.H. 423, 430 (2005).

1. The Declarant’s Intent

The defendant argues that the first part of the Roberts test is not met, in
part, because the victim was referred to Gladstone by the child advocacy center.
The defendant implies that Gladstone’s examination of the victim was not for a
medical purpose, but, rather, was to further a criminal investigation. See
Munroe, 161 N.H. at 626. As we explained in Munroe, however, “[t]hese two
purposes . . . are not mutually exclusive.” Id.

Here, the evidence supports a finding that one of the purposes of
Gladstone’s examination was to diagnose or treat the victim’s medical symptoms.
As the defendant concedes, the victim saw Gladstone to determine whether she
was pregnant or had a sexually transmitted disease. One of the reasonable
inferences from the victim’s testimony is that she was concerned about
pregnancy and/or sexually transmitted diseases because she had been sexually
assaulted. The fact that the victim then allowed Gladstone to test for pregnancy
and sexually transmitted diseases supports the trial court’s finding that the
victim made her statements to Gladstone “in order to obtain an accurate
diagnosis or proper treatment.” State v. Gordon, 148 N.H. 710, 721 (2002)
(quotation omitted). Contrary to the defendant’s assertions, the fact that the
victim declined to be examined physically by Gladstone does not compel a
contrary conclusion. See id. at 720-21.

The defendant also asserts that the lack of temporal proximity between the
alleged assault and Gladstone’s examination precludes a finding that the victim
made her statements for a treatment or diagnostic purpose. See Munroe, 161
N.H. at 628. However, a lack of temporal proximity is not dispositive of the issue
of intent. Id. Indeed, Rule 803(4) expressly states that a declarant’s statements
are admissible “regardless of . . . when the statements are made.” N.H. R. Ev.
803(4); see Munroe, 161 N.H. at 628.

The defendant further argues that, to show that the victim possessed the
requisite intent, the State had to establish that she made her “statements
understanding that they would further the diagnosis and possible treatment of
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[her] condition,” and that the State failed to make that showing. Munroe, 161
N.H. at 627 (quotation omitted). The State need only establish that the victim
made her statements understanding that they would further diagnosis and
possible treatment of her condition when the victim is a young child. See id.
However, here, as the defendant admits, the victim is not a young child.

2. Subject Matter of Statements

The defendant asserts that the second part of the Roberts test is not met
because the victim’s statements regarding what took place during the alleged
assault and the symptoms she suffered as a result of it were not “reasonably
pertinent” to diagnosis or treatment. Id. (quotation omitted). We cannot say that
the trial court unsustainably exercised its discretion by reaching a contrary
conclusion. See State v. Soldi, 145 N.H. 571, 576-77 (2000). Here, Gladstone
was presented with a victim of an alleged assault, who was concerned that she
had become pregnant, or had contracted a sexually transmitted disease, from the
assault. See id. at 576 (disagreeing with the defendant that the victim’s
statement that he grabbed her hair and shoulder and shook her was not
pertinent to medical diagnosis or treatment because physician was presented
with a victim of an assault and obtaining a history of how the injury took place
was “vitally important in making an accurate diagnosis”). Given this context, the
trial court reasonably determined that the victim’s statements were reasonably
pertinent to diagnosis and treatment.

3. Reliability

The defendant contends that the third part of the Roberts test is not met
because: (1) the victim had no prior relationship with Gladstone; (2) the victim
met with Gladstone weeks after the alleged assault; (3) Gladstone did not testify
that the victim appeared upset or emotional during the visit; (4) the victim was
referred to Gladstone by the child advocacy center; (5) the victim did not allow
Gladstone to examine her; (6) the requested tests did “not rely at all on the
nature of what allegedly occurred”; and (7) what the victim told Gladstone did not
place the victim “in a bad light.” Given all the testimony, and the reasonable
inferences that may be drawn therefrom, we conclude that the trial court did not
unsustainably exercise its discretion when it found that the proffered statements
were made under circumstances indicating their trustworthiness. See Munroe,
161 N.H. at 628.

II. Cross-Examination of the Victim

A. Relevant Facts

The victim, who was eighteen years old at the time of the April 2016 trial,
testified that the defendant was her boyfriend’s long-time friend. She testified
that the defendant’s girlfriend used to be her best friend, and that the two
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couples used to “hang out at each other’s houses.” According to the victim, on
the evening of May 27, 2015, the defendant’s birthday, the victim and the
defendant spent time together with a group of friends at a mutual friend’s home.
The victim testified that, that night, she and her boyfriend were fighting with one
another, and that the defendant and his girlfriend were not together because they
“had been broken up” for “a week or two.” After her recollection was refreshed by
reviewing text messages, the victim testified that she and her boyfriend began
their fight at approximately 5:30 p.m. on May 27. She testified that her boyfriend
was upset with her because she was having a good time without him. After her
recollection was refreshed, the victim further testified that, between 5:30 p.m. on
May 27 and 3:40 a.m. on May 28, she and her boyfriend called one another
approximately 157 times and texted one another 1,580 times. She testified that
she and her boyfriend would call each other “over and over and over again” when
there was no response.

The victim testified that, at approximately 2:30 a.m. on May 28, while she
and her boyfriend were still in the midst of their “big fight,” she accompanied the
defendant to the defendant’s home. There, they went to his bedroom to watch
television. While the victim was watching television, she received, but did not
respond to, telephone calls and text messages from her boyfriend.

The victim testified that the defendant asked her if she “wanted to make
out with him.” The victim testified that she said, “No.” The victim testified that
the defendant then “kind of like got on top of [her] and kept trying to kiss [her]
and stuff.” The victim responded by “moving [her] face around” so that he could
not kiss her. The victim testified that the defendant “just kept trying and kept
pulling [her] hair back,” and that, at one point, “he put his hand around [her]
neck really hard,” so hard that she “couldn’t breathe.” The defendant then pulled
down the victim’s pants and underwear “really hard,” and “forced himself on
[her].” The victim testified that, by this, she meant that the defendant penetrated
her vagina with his penis and “kept thrusting back and forth.” The victim
testified that “it just hurt really bad” and that she “kept . . . telling him to stop
because he was dating [her] best friend” and she “was dating his best friend.”
She said that, after the defendant climaxed, she put on her clothes and left. The
victim also testified that, after the assault, she tried to avoid the defendant and
did not again find herself alone with him.

The defendant raised consent as a defense. His theory of the case was that
he and the victim had consensual sexual intercourse on May 28, 2015, and again
on May 31, 2015. Thus, during her cross-examination of the victim, defense
counsel asked the victim several questions about what occurred on May 31:

Q . . . And you remember that fight that you had [with your
boyfriend] that night on the 31st?

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 A The only thing I remember is that [my boyfriend] said he punched
a sign or something.

....

Q And [your boyfriend] and [the defendant] were not with you?

A No. [My boyfriend] was, like, walking around, I think.

Q Okay. And [the defendant] wasn’t with you at first that night?

A Yeah.

....

Q And when you were fighting with [your boyfriend] that night, you
were fighting over text message and calling each other again?

A Yeah.

Q And he accused you of drinking, right?

A Yes.

Q And you said, “No, I’m not drinking”?

A Yeah.

Q And he accused you of being at [the defendant’s] house?

A I don’t know.

Q You don’t know?

A Yeah. Can I look at [the text message]?

....

Q Okay. Page 5,094.

The State objected to this “line of questioning.” Specifically, the State
argued that the victim’s testimony about the content of the text messages she
received from her boyfriend constituted inadmissible hearsay. Defense counsel
argued that the content of the boyfriend’s text message was not hearsay because
it was not being offered for the truth of what it asserted — that the victim was at
the defendant’s house. Defense counsel asserted that the victim’s failure to
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respond to her boyfriend’s text message was relevant and “highly exculpatory”
because it allowed the reasonable inference that the victim was, in fact, with the
defendant. The State countered that the victim’s failure to respond to her
boyfriend’s accusation “is not evidence that she’s anywhere.” The State asserted
that, if the court “look[ed] at the series of texts, it goes on and on and on of [the
boyfriend] saying all kinds of things to [the victim] that she’s not denying or
affirming.”

Based upon its review of the “series of texts,” the trial court stated that the
victim’s failure to respond to her boyfriend’s accusation that she was with the
defendant was not admissible substantively, but possibly could be admissible for
impeachment purposes as a prior inconsistent statement. See N.H. R. Ev. 613(a)
(amended 2017). The court ruled, however, that the victim’s silence “is not an
inconsistent statement.” The court observed that, in the text messages that it
reviewed, the victim responded to her boyfriend “intermittent[ly].” The court
noted that in one of her text messages, the victim told her boyfriend, “You’re
blowing my phone up, just let it blow over.” The court stated, “I don’t think you
can infer from that, that that’s an inconsistent statement with her testimony that
she wasn’t alone with [the defendant] that day.”

After the court’s ruling, defense counsel continued to cross-examine the
victim:

Q So we were talking about May 31st, right?

A Yeah.

Q And the fight you had with [your boyfriend] that night?

A Yeah.

Q And between 10:36 and 10:48, you didn’t respond at all to [your
boyfriend], right?

A Yeah.

Q Okay. And again between 11:03 and 11:19, you didn’t respond to
him at all?

A Yeah.

In her closing argument, defense counsel told the jury:

You might remember I asked [the victim] about two gaps she
had in her communication with [her boyfriend] that night, May 31st.
On both [May 28th and May 31st], she’s fighting with her boyfriend,
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 both these nights she goes over to [the defendant’s] house, both
these nights there were gaps in her communication with [her
boyfriend]. So these two were on -- they were texting each other
every minute. So when there’s gaps, 12 minutes, 16 minutes, they
may not be significant for me, but it’s significant for these two when
they’re fighting. Those gaps are there because that’s when she was
having sex with [the defendant].

B. Discussion

On appeal, the defendant argues that the trial court erred by precluding
him from cross-examining the victim “about what, if anything, she said to her
boyfriend, . . . about being at [the defendant’s] house on May 31, 2015.” He
raises this argument under the Confrontation Clauses of both the State and
Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI,
XIV. However, in the trial court, the defendant did not raise either a state or
federal constitutional claim. Rather, he argued only that the victim’s proposed
testimony that she failed to respond to her boyfriend’s text message accusing her
of being with the defendant was not hearsay and should not be excluded on
relevancy grounds. As the appealing party, the defendant has the burden of
providing a record demonstrating that he raised his appeal issues before the trial
court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). We decline
to consider the defendant’s constitutional arguments because he has failed to
demonstrate that he preserved them for our review.

In his appellate brief, the defendant states:

The State’s claim that the line of questioning was hearsay or
called for speculation is wrong. If [the victim] did not answer [her
boyfriend’s] text accusing her of being at [the defendant’s] house that
is not hearsay or speculation. The trial court’s ruling that, in order
for the line of questioning to be relevant, it must be an inconsistent
statement was erroneous.

We decline to consider the substance of these contentions. To the extent that the
defendant intends them to comprise an argument that the trial court erred by
finding that the victim’s silence (1) was inadmissible substantively because it
constituted hearsay that did not fall within an exception to the hearsay rule and
(2) was inadmissible for impeachment purposes because it was not a prior
inconsistent statement, we conclude that his argument is insufficiently developed
for our review. See State v. Blackmer, 149 N.H. 47, 49 (2003). Moreover, the
defendant has not provided, as part of the appellate record, the text messages
upon which the trial court predicated its ruling.

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III. Sentencing

The trial court sentenced the defendant to serve prison terms for both the
AFSA and criminal restraint convictions. On appeal, the defendant argues,
under our plain error rule, see Sup. Ct. R. 16-A, that by so doing, the trial court
violated his state constitutional guarantee against double jeopardy. See N.H.
CONST. pt. I, art. 16. Although the defendant purports to raise his double
jeopardy argument under both the State and Federal Constitutions, he has only
briefed a state constitutional claim. To the extent that the defendant intended to
raise a federal constitutional claim, we consider that claim waived because it is
not briefed. See State v. Kelly, 159 N.H. 390, 394 (2009).

“For us to find plain error: (1) there must be error; (2) the error must be
plain; and (3) the error must affect substantial rights.” State v. Mueller, 166 N.H.
65, 68 (2014) (quotation omitted). “If all three of these conditions are met, we
may then exercise our discretion to correct a forfeited error only if the error meets
a fourth criterion: the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation omitted). The plain error rule
“is used sparingly, however, and is limited to those circumstances in which a
miscarriage of justice would otherwise result.” Id. (quotation omitted). “We have
looked to the federal plain error analysis in applying our plain error rule.” State
v. Rawnsley, 167 N.H. 8, 11 (2014) (quotation omitted). Because we conclude
that there was no error, we need not reach the remaining prongs of the plain
error analysis.

The Double Jeopardy Clause of the State Constitution provides three
double jeopardy protections: (1) protection against subsequent prosecution for
the same offense after acquittal; (2) protection against subsequent prosecution
for the same offense after conviction; and (3) protection against multiple
punishments for the same offense. See State v. Carr, 167 N.H. 264, 273 (2015).
The defendant raises a multiple punishments claim. Such claims “come in two
varieties”: (1) the “so-called ‘double-description’ cases, in which the issue is
whether two statutes describe two separate offenses or are merely different
descriptions of the same offense”; and (2) the “‘unit of prosecution’ cases in which
the problem is not that the same course of conduct is proscribed by more than
one statute but that a defendant’s continuing course of conduct is fragmented
into more than one violation of a single statutory provision.” State v. Ramsey, 166 N.H. 45, 51 (2014) (quotations and brackets omitted). This case is of the
first variety.

In “double-description” cases, we have, generally, examined “whether proof
of the elements of the crimes as charged will require a difference in evidence.”
Id.; see also State v. Locke, 166 N.H. 344, 351, 352-53 (2014) (noting that our
cases have not consistently applied our “same evidence” test and “invit[ing]
parties in future cases to ask us to reconsider our double jeopardy
jurisprudence” under the State Constitution (quotation omitted)).
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 The defendant argues that, to prove the criminal restraint indictment as
charged, “the State relied on all the same facts it used to prove the [AFSA]
charge,” and that “once the State proved [that he] committed the Criminal
Restraint charge, no additional evidence was necessary in order to prove the
elements of the AFSA charge.” We disagree.

The criminal restraint indictment alleged that the defendant (1) knowingly
(2) “[c]onfined [the victim] . . . in his bedroom” (3) “[u]nlawfully in circumstances
that exposed [her] to risk of serious bodily injury . . . [b]y holding [her] down and
sexually assaulting her.” The AFSA indictment alleged that the defendant (1)
knowingly (2) “[e]ngaged in sexual penetration with [the victim]” (3) “[w]hen, at the
time of the sexual assault, [she] indicated by speech that she did not freely
consent to the performance of the sexual act . . . [i]n that she said ‘no’, or words
to that effect.”

As charged, each offense requires proof of at least one fact that the other
does not. For instance, the criminal restraint indictment requires proof that the
defendant confined the victim and that he exposed her to the risk of serious
bodily injury, while the AFSA charge does not require proof of these facts.
Similarly, the AFSA charge requires proof that the defendant sexually penetrated
the victim, while the criminal restraint charge does not require such proof.

Contrary to the defendant’s assertions, the two charges are not the same
for double jeopardy purposes because they both require proof that he sexually
assaulted the victim. In fact, the AFSA charge requires proof of sexual
penetration. Proof that the defendant sexually assaulted the victim without
penetrating her would not suffice to convict him of the AFSA charge, but would
suffice to convict him of the criminal restraint charge.

Because proof of the elements of the two crimes as charged required a
difference in evidence, we conclude that they are not the same for double
jeopardy purposes. See Ramsey, 166 N.H. at 51-52. Accordingly, the trial court
did not violate the defendant’s state constitutional guarantee against double
jeopardy when it sentenced him to prison on both charges.

The defendant also argues, under our plain error rule, see Sup. Ct. R. 16-
A, that his prison sentences violated the common law doctrine of merger. See
Ramsey, 166 N.H. at 50. As with the defendant’s state constitutional claim, we
find no error, and, thus do not consider the remaining prongs of our plain error
analysis.

We have acknowledged that “[i]n the context of multiple sentences
stemming from a single act, there should be no difference between a double
jeopardy analysis and a common law merger analysis; double jeopardy and
merger are identical in this context and the operative consideration in both is
whether the two offenses are the same or different.” Id. (quotation, brackets, and
10
ellipsis omitted). Here because, as previously discussed, the evidence required to
prove the criminal restraint and AFSA charges is different, the two charges did
not merge. See id. at 51-52. Accordingly, the trial court did not violate the
common law doctrine of merger by sentencing the defendant on both charges.

Any issues that the defendant raised in his notice of appeal, but did not
brief, are deemed waived. See Blackmer, 149 N.H. at 49.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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