Alexander R. Cole Unknown Military Branch Convicted Sex Offender Felonious Sexual Assault Of A Child

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Name: Alexander R. Cole

Case: State Of New Hampshire v. Alexander R. Cole No. 95-863

Date Of Conviction: 1995

Plea: Not Guilty

Charges: Felonious Sexual Assault Of A Child

Military Branch: U.S. Army

Listed In National Sex Offenders Registry? NO

The following facts were adduced at trial. In February 1995, the eleven-year-old victim was walking home from a dance at the Carter Community Building in Lebanon when a man wearing a green jacket began following him. The man then walked in front of the victim and proceeded to expose his genitals to the victim. The victim testified that as he tried to run past the man, the man blocked his way and the victim was knocked down. The victim testified that during the incident, the man grabbed the victim's penis. The defendant was subsequently arrested and convicted of one count of felonious sexual assault.

During sentencing, the superior court considered the defendant's two prior court martial convictions in imposing an enhanced sentence of twenty to forty years. This appeal followed.

The defendant first argues that the trial court erred in refusing to rule on the admissibility of prior convictions before he decided whether to testify. Before trial, the State moved in limine to introduce two prior court martial convictions, one for sodomy and the other for indecent exposure, as impeachment evidence pursuant to New Hampshire Rule of Evidence 609. In chambers, the trial court noted that the State's motion was "a relatively poor attempt to get around [Rule] 404(b)." The State nonetheless argued that these convictions were relevant to the issue of credibility because the defendant had told police that he had been honorably discharged from the Army. In response, the court reiterated its belief that the State's motion was "an attempt to get around 404(b)." Additionally, the State argued that it should be able to question the defendant about whether he was attracted to young boys and, if the defendant denied such attraction, about the two convictions. The court refused to rule before the defendant had decided whether to take the stand, reasoning that it was unable to rule "in a vacuum" and that "it may be moot in any event."

On appeal, the defendant argues that the court's refusal to rule violated his constitutional right to testify in his own defense. Compare Apodaca v. People, 712 P.2d 467, 472-73 (Colo. 1985) (refusal to rule impermissibly burdens defendant's due process right to testify in his own defense) with United States v. Masters, 840 F.2d 587, 590-91 (8th Cir. 1988) (no constitutional entitlement to ruling even if refusal inhibits defendant from testifying on his own behalf). We will not engage in a constitutional analysis, however, because counsel did not raise a constitutional basis for his objection at trial. State v. Weeks, 140 N.H. 463, 467, 667 A.2d 1032, 1035 (1995).

The defendant concedes that "defense counsel did not expressly invoke the defendant's right to testify in his objection," because he argued only that "tactically I need to know in advance how the Court's going to rule on this issue before I proceed." The defendant argues that the constitutional issue was preserved nonetheless because the "judge's response indicates he understood that the defense wanted a ruling so the defendant could decide whether he should testify." The purpose of our preservation requirement is to ensure that the trial court is made aware of the substance of the objection and thus given an opportunity to correct the error, see, e.g., State v. Ryan, 135 N.H. 587, 589, 607 A.2d 954, 955 (1992), and to discourage "parties unhappy with the trial result [from combing] the record, endeavoring to find some alleged error never addressed by the trial judge that could be used to set aside the verdict," State v. Menard, 133 N.H. 708, 710, 584

Conviction affirmed; sentence vacated; remanded for resentencing.