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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2007-573 THE STATE OF NEW HAMPSHIRE v. JOHN FORBES Argued: May 22, 2008 Opinion Issued: August 6, 2008 Kelly A. Ayotte, attorney general (Nicholas Cort, 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. DUGGAN, J. The defendant, John Forbes, was convicted by a jury in Superior Court of one count of aggravated felonious sexual assault. See RSA 632-A:2, II (2007). On appeal, he argues that the Trial Court (Coffey, J.) erred in admitting evidence of his silence as an adoptive admission pursuant to New Hampshire Rule of Evidence 801(d)(2)(B). Because we agree that the trial court unsustainably exercised its discretion by admitting this evidence, we reverse and remand. The following undisputed facts are relevant to this appeal. In July 2005, the defendant was indicted by a grand jury on one count of aggravated felonious sexual assault of a minor child, KS. See RSA 632-A:2, II. The

indictment alleged that "on or between the first day of June and the first day of November in the year . . . 2004 . . . [the defendant] purposely touched the genitalia of KS with his hand under circumstances that can reasonably be construed as being for the purpose of sexual arousal or gratification at a time when KS was under 13 years of age." Prior to trial, the court held an in camera hearing on the defendant's motion to exclude certain testimony by his daughter, Wanda Roberts. At that hearing, Roberts testified about three conversations involving the defendant that the State intended to introduce at trial. For purposes of this appeal, only Roberts' testimony regarding two of those conversations is relevant. With respect to the first conversation, Roberts testified that, the day after she learned of KS' allegations, she called the defendant to confront him. At that time, Roberts asked the defendant to "tell [her] it's not true." Initially, the defendant appeared confused, responding, "what are you talking about." However, once Roberts clarified by saying, "tell me it's not true about [KS]," the defendant immediately replied, "I never touched [KS]." Although it was disputed, the court found that, at that point, the substance of KS' allegations had not been disclosed to the defendant and, thus, his response was admissible as "an admission." See State v. Lesnick, 141 N.H. 121, 129-30 (1996) (permitting the admission of "extrajudicial statement[s that] giv[e] rise to a reasonable inference of guilt"). The defendant does not appeal this ruling. As to the second conversation, Roberts testified that, at some point following the phone conversation, she and the defendant's sister, Hazel Kelley, had a discussion about KS' allegations while the defendant was "sitting there." During that conversation, Kelley told Roberts that the defendant was "not going to plead guilty to something he didn't do." Roberts responded by stating: "I can't say for sure that it happened. I wasn't there. I don't know. But from my point of view, I do believe [KS] . . . ." Roberts testified that, when she said that, the defendant "just sat there" and remained silent. The timing, location and other details of this discussion are not in the record. However, the court overruled the defendant's objection to this evidence, stating: the fact that Mr. Forbes remained silent while there was a family discussion going on about him not pleading guilty to something he didn't do and Wanda Roberts or somebody else saying well, how do you expect me to believe him, and his maintaining of silence, that also comes in. That comes in under

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