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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Coos

No. 2014-0791

THE STATE OF NEW HAMPSHIRE

v.

JAMIE F. LETARTE

Argued: October 19, 2016

Opinion Issued: December 9, 2016

Joseph A. Foster, attorney general (Sean P. Gill, 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.

DALIANIS, C.J. The defendant, Jamie F. Letarte, appeals his conviction 

by a jury on one count of aggravated felonious sexual assault, see RSA 632-

A:2, I(j)(2) (2016), and one count of felony indecent exposure, see RSA 645:1, 

II(a) (Supp. 2014) (amended 2015). On appeal, he argues that the Superior 

Court (Bornstein, J.) erred when it precluded him from introducing extrinsic 

evidence to impeach the victim’s testimony on a collateral matter during her 

cross-examination by defense counsel, see N.H. R. Ev. 608(b), and when it 

denied his motion to vacate the verdict and schedule a new trial. We affirm.
2

I. Background

The jury could have found the following facts. The defendant is the 

biological father of the victim. The charges stem from an incident that 

occurred in February 2012. The victim, who was then approximately 13 years 

old, was having a friend sleep at her house. The victim and her friend became 

intoxicated on alcohol that the defendant had provided them. When the victim 

woke up in the early morning, she felt the defendant’s fingers inside her vagina

and, when she told him to stop, he masturbated in her presence.

The defendant was tried in October 2014. During his opening statement, 

defense counsel told the jury that the victim had accused the defendant of 

sexually assaulting her “so she could deflect attention from her own 

misconduct that day.” Defense counsel said that “this is . . . not an unusual 

move for [the victim]” because she had “threatened to do the same thing to 

another family member.” For ease of reference, we refer to the family member 

as “the witness.” Defense counsel explained that the witness would tell the 

jury that when the victim and her mother were staying at his house, he 

“noticed that [the victim] appeared to be intoxicated” and “that his liquor 

cabinet had been broken into.” According to defense counsel, the witness

would also testify that, when he told her that she and her mother had to leave, 

to avoid being removed from the home, the victim said to her mother, “[A]ll I 

have to do is say that [the witness] attempted to rape me.”

The State objected, arguing that the witness’s proposed testimony was 

inadmissible. Defense counsel countered that the proposed testimony was 

probative of the victim’s credibility. Defense counsel explained that he sought 

not only to cross-examine the victim about the alleged incident involving the 

witness, but also to introduce the witness’s testimony to impeach her if she 

denied it.

The trial court ruled that the proposed cross-examination was 

permissible and stated, that “at least at this point[,] . . . reference to such 

evidence in opening arguments is permissible and it would be anticipated that 

the extrinsic evidence would be admissible as well.” The trial court explained 

that, if the parties “want to have a further hearing out of the presence of the 

jury tomorrow morning . . . [where the witness] testifies . . ., we can certainly 

do that.”

Defense counsel then continued his opening statement, repeating that 

accusing a family member of sexual assault “is not an unusual move” for the 

victim because she had told her mother that “all” she had to do “is call the 

police and tell them that [the witness] attempted to rape [her] and he will be the 

one out of the house.” Defense counsel asserted that “[t]here’s a pattern[;] [i]f 

[the victim] doesn’t like the situation, she’ll go to extreme lengths to rid herself 

of people, including [making] . . . false allegations of sexual assault, false 
3

allegations to either . . . the police or investigators, and that’s what’s going on 

here.”

When the victim testified on direct examination, she was not asked, and 

did not testify, about the witness incident or about any other alleged incident 

not involving the defendant. On cross-examination, however, in response to 

questioning by defense counsel, the victim denied threatening to tell the police 

that the witness had sexually assaulted her. She also denied telling the 

witness that she “would tell the police that he raped” her.

The court then heard additional argument from the parties regarding 

whether the witness should be allowed to testify so as to impeach the victim’s 

testimony. The State objected to the witness’s proposed testimony on the 

ground that its admission violated New Hampshire Rule of Evidence 608(b)

because it constituted extrinsic evidence offered to impeach a witness on a 

collateral matter. See N.H. R. Ev. 608(b) (providing, in pertinent part, that 

“[s]pecific instances of the conduct of a witness, for the purpose of attacking or 

supporting the witness’ credibility, . . . may not be proved by extrinsic 

evidence”); see also State v. Hopkins, 136 N.H. 272, 276 (1992) (explaining the 

collateral issue rule). The State also observed that the witness incident 

occurred more than a year after the incident involving the defendant. Defense 

counsel countered that the witness’s testimony fell within an exception to Rule 

608(b)’s bar to extrinsic evidence, which we adopted in State v. Ellsworth, 142 

N.H. 710, 718-19 (1998), and which applies to allegedly false allegations of 

sexual assault.

The trial court preliminarily concluded that the Ellsworth exception was 

the proper lens through which to view the proposed testimony. Thus, over the 

State’s continued objection, the trial court conducted a hearing, outside of the 

jury’s presence, to determine whether the witness’s testimony met that 

exception. The witness testified that he and the victim had fought because he 

thought that she had broken into his liquor cabinet and stolen his liquor. He 

testified that he told the victim that he “didn’t want her drinking in [his] home 

and she got very upset about it.” When the witness went into the kitchen, he 

saw the victim and her mother talking and heard the victim tell her mother 

“that all she needed to do was to call the police and tell them that [he] had 

sexually molested her and they would take [him] out of the house.”

Defense counsel then argued that the witness’s testimony was admissible 

pursuant to the Ellsworth exception to Rule 608(b)’s bar to extrinsic evidence 

because he had submitted “clear proof” that, had the victim actually made the 

accusation she threatened to make, it “would’ve been false.” Alternatively, 

defense counsel argued that the testimony was admissible under State v. 

Vandebogart, 139 N.H. 145, 165-67 (1994), to show that the victim “was lying 

on the stand.” The trial court ruled that the witness’s testimony did “not fit 

within” the Ellsworth exception and was also inadmissible under Vandebogart. 
4

As a result, the witness was not called for the defense. Defense counsel 

objected to the ruling, explaining that counsel had “relied on . . . the Court’s 

representation . . . that this was an Ellsworth case” in crafting his opening 

statement, cross-examining witnesses, and presenting the defense.

After the trial had concluded, the defendant filed a motion to vacate the 

verdict and for a new trial based upon what he termed the court’s “last minute 

determination that the Ellsworth exception did not apply” to the witness’s

testimony. In the motion, defense counsel reiterated that he had relied upon 

the trial court’s “statements that the evidence regarding . . . [the witness] would 

be admissible pursuant to Ellsworth,” and, because of that reliance, had 

“highlighted and stressed this evidence to the jury in opening statements” and 

in his cross-examination of the victim. Defense counsel argued that the trial 

court’s “[i]nconsistent application” of its prior ruling that the Ellsworth

exception applied to the witness’s testimony “worked a reversible prejudice to 

[the] defense” and deprived the defendant of his right “not only to due process

but also to a fair trial” pursuant to Part I, Article 15 of the New Hampshire 

Constitution and the Fourteenth Amendment to the Federal Constitution.

Following a hearing, the trial court denied the defendant’s motion. The 

court found that because defense counsel summarized the witness’s proposed 

testimony to the jury in his opening statement before the State had objected 

and before the court, ultimately, had ruled that the witness’s testimony was 

inadmissible, the defendant could not claim to have been prejudiced. This 

appeal followed.

II. Analysis

The defendant argues that the trial court erred when it: (1) precluded 

him from introducing the witness’s testimony to impeach the victim’s testimony 

on cross-examination; and (2) denied his motion to vacate and for a new trial. 

We address each argument in turn.

A. Ellsworth Exception

The defendant first asserts that the witness’s testimony was admissible 

under the Ellsworth exception to Rule 608(b)’s bar to extrinsic evidence. We 

review a trial court’s decision on the admissibility of evidence under our 

unsustainable exercise of discretion standard. State v. Towle, 167 N.H. 315, 

320 (2015). “For the defendant to prevail under this standard, he must 

demonstrate that the trial court’s decision was clearly untenable or 

unreasonable to the prejudice of his case.” Id. In applying our unsustainable 

exercise of discretion standard of review, we determine only “whether the 

record establishes an objective basis sufficient to sustain the discretionary 

judgment made.” State v. Lambert, 147 N.H. 295, 296 (2001). “Our task is not 

to determine whether we would have found differently,” but is only “to 
5

determine whether a reasonable person could have reached the same decision 

as the trial court on the basis of the evidence before it.” Benoit v. Cerasaro, 

169 N.H. 10, 21 (2016) (quotation and brackets omitted).

Rule 608(b) provides, in pertinent part:

Specific instances of conduct. Specific instances of the 

conduct of a witness, for the purpose of attacking or supporting 

the witness’ credibility, other than conviction of crime as provided 

in Rule § 609, may not be proved by extrinsic evidence. They may, 

however, in the discretion of the court, if probative of truthfulness 

or untruthfulness, be inquired into on cross examination of the 

witness (1) concerning the witness’ character for truthfulness or 

untruthfulness, or (2) concerning the character for truthfulness or 

untruthfulness of another witness as to which character the 

witness being cross-examined has testified.

(Emphases added.) Thus, under Rule 608(b), although a cross-examiner may 

inquire into conduct that is probative of the witness’s character for 

truthfulness or untruthfulness, the examiner, generally, must take the answer 

as the witness gives it. Hopkins, 136 N.H. at 276. The examiner may not 

introduce extrinsic evidence, such as calling other witnesses, to prove conduct 

of a witness that is probative of that witness’s character for truthfulness or 

untruthfulness. See N.H. R. Ev. 608(b).

One way to think of Rule 608(b) is that it is an exception to Rule 404(b)’s 

general prohibition against introducing character evidence for the purpose of 

showing that a person has a propensity to behave in a certain way, and, 

therefore, behaved in that way on a particular occasion. See Johnson, Prior 

False Allegations of Rape: Falsus in Uno, Falsus in Omnibus?, 7 Yale Journal 

of Law & Feminism 243, 250-51 (1995). Rule 608(b) permits inquiry of the 

witness about a prior instance of lying for the purpose of showing that the 

witness has the character trait of being a liar (a propensity to lie) and, 

therefore, her testimony should not be believed by the fact finder. See id. But 

the rule specifically limits the manner of eliciting this character evidence to 

inquiry on cross-examination and prohibits proof of the lie through extrinsic

evidence. See id. at 251. If the witness denies having lied on the prior 

occasion, the cross-examiner cannot introduce extrinsic evidence to contradict 

the witness’s testimony on the point. See id.

In Ellsworth, because of constitutional concerns, we explained that, in 

sexual assault cases, Rule 608(b)’s bar to extrinsic evidence “should not be 

interpreted so strictly as to preclude the admission of extrinsic evidence that is 

probative of a material issue.” Ellsworth, 142 N.H. at 719. We cautioned that 

such extrinsic evidence “should be admitted only where the allegations [of 

sexual assault] are similar, and the proffered evidence is highly probative of the 
6

material issue of the complainant’s motives.” Id. We have since clarified that 

to introduce extrinsic evidence of prior allegations of sexual assault, the 

defendant must demonstrate that the allegations were “demonstrably false,” 

which we have interpreted to mean “clearly and convincingly untrue.” State v. 

Miller, 155 N.H. 246, 250 (2007) (quotations omitted).

The defendant argues that “[b]ecause the Ellsworth [exception] applies” 

to the witness’s testimony, we “must find that the [trial] court erred in 

excluding [it].” We disagree. Ellsworth is a narrow exception that applies only

to prior demonstrably false accusations of sexual assault. The witness’s

testimony did not concern such an accusation. Indeed, whatever probative 

value extrinsic evidence of a prior false accusation of sexual assault may have 

concerning a victim’s credibility, a mere threat to make such an accusation has 

even less probative value. Arguably, people are more likely to make threats 

than they are to carry out such threats. Here, even assuming that the victim 

made the threat attributed to her by the witness, there is no suggestion that 

she ever carried out the threat by actually accusing him of sexually assaulting 

her. That being the case, the Ellsworth exception does not apply, and the trial 

court did not unsustainably exercise its discretion by limiting the defendant to 

exploring the matter through cross-examination of the victim.

B. Vandebogart

The defendant next contends that the witness’s testimony was admissible 

to rebut the victim’s testimony on cross-examination pursuant to our opinion 

in Vandebogart. In Vandebogart, we upheld the trial court’s decision to allow 

the State to “call a rebuttal witness to contradict the defendant’s testimony on 

collateral issues” on cross-examination. Vandebogart, 139 N.H. at 165. The 

defendant contends that “[b]ut for the substitution of the [victim] in the place of 

the defendant, and the defense in the place of the prosecution, this case 

presents an identical situation” to that in Vandebogart. We interpret the 

defendant’s argument to be that, just as the prosecution in Vandebogart was 

allowed to impeach with extrinsic evidence the testimony of the defendant in 

that case as to a collateral matter, he should have been allowed to use extrinsic 

evidence to impeach the testimony of the victim as to a collateral matter. 

Notably, the defendant does not argue that the witness’s testimony is 

admissible under any other evidentiary rule.

1. Vandebogart in Context

Before addressing the merits of the defendant’s argument, we place 

Vandebogart in the proper context. Strictly speaking, Vandebogart is not a 

Rule 608(b) case. Rather, it concerns impeachment of a witness by 

contradiction. “Impeachment by contradiction refers to impeachment with 

evidence that the target witness made a factual error in his testimony.” R. Park 

& T. Lininger, The New Wigmore A Treatise on Evidence: Impeachment and 
7

Rehabilitation § 4.1, at 197 (2012). It “is a well-recognized tool for exposing a 

witness’ lack of credibility.” United States v. Fonseca, 435 F.3d 369, 375 (D.C. 

Cir. 2006). “Most commonly, the contradiction is shown through the testimony 

of another witness”; in other words, the contradiction is shown through 

extrinsic evidence. Park & Lininger, supra at 197.

Impeachment by contradiction is not covered by Rule 608(b). See

Morgan v. Covington TP., 648 F.3d 172, 179 (3d Cir. 2011) (discussing Federal 

Rule of Evidence 608(b)); see also United States v. Castillo, 181 F.3d 1129, 

1132 (9th Cir. 1999) (same); United States v. Lopez, 979 F.2d 1024, 1033-34

(5th Cir. 1992) (same). Whereas Rule 608(b) concerns the use of extrinsic 

evidence of “[s]pecific instances of the conduct of a witness” offered “for the 

purpose of attacking or supporting the witness’ . . . character for truthfulness,” 

N.H. R. Ev. 608(b) (emphasis added), impeachment by contradiction concerns 

the use of extrinsic evidence to contradict specific testimony given under oath,

see Morgan, 648 F.3d at 179.

Put another way, “Rule 608(b) prohibits the use of extrinsic evidence of 

conduct to impeach a witness’ . . . general veracity,” while “impeachment by 

contradiction permits courts to admit extrinsic evidence that specific testimony 

is false, because [it is] contradicted by other evidence.” Castillo, 181 F.3d at 

1132; see State v. Cannon, 146 N.H. 562, 567 (2001) (stating that “[e]xtrinsic 

evidence is permissible . . . when it directly contradicts a witness’s testimony 

because such evidence does not attack the witness’s general credibility, but 

rather the truthfulness of the specific testimony”); State v. Mello, 137 N.H. 597, 

600 (1993) (explaining that Rule 608(b) “is directed at the use of [extrinsic 

evidence] to impeach a witness’s general credibility” and is not directed at the 

use of such evidence to impeach when a defendant gives “a knowingly false

answer under oath” (quotation omitted)).

“Impeachment by contradiction is permitted by Rule 607,” United States 

v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007), which provides that “[t]he 

credibility of a witness may be attacked by any party, including the party 

calling the witness,” N.H. R. Ev. 607. See C. Wright & V. Gold, 27 Federal 

Practice and Procedure § 6096, at 655 (2007) (“While the Evidence Rules do not 

explicitly recognize contradiction as a basis for attacking credibility, the 

admissibility of contradiction evidence can be inferred from the relevance rules 

and Rule 607.” (footnotes omitted)). “The court, in deciding whether to allow an

instance of impeachment by contradiction, engages in a Rule 403 analysis.” 

Greenidge, 495 F.3d at 99; accord Castillo, 181 F.3d at 1133. Thus, although 

evidence that impeaches a witness by contradiction is relevant because it 

undermines the witness’s credibility, it may be excluded under Rule 403 “if its 

probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative evidence.” 

Fonseca, 435 F.3d at 375 (quotation omitted); see N.H. R. Ev. 403.
8

2. Use of Extrinsic Evidence

The general rule is that a witness may not be impeached by contradiction 

through extrinsic evidence as to a collateral matter. See Wright & Gold, supra

§ 6096, at 659; see also United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 

1995) (explaining that “largely for reasons of efficiency, extrinsic evidence to 

impeach is only admissible for contradiction where the prior testimony being 

contradicted was itself material to the case at hand”). “The objective” of the 

collateral issue rule “is to avoid a ‘trial within a trial,’ that is, to avoid the 

litigation of issues that are collateral to the case at hand.” Hopkins, 136 N.H. 

at 276.

“A matter is collateral if the impeaching fact could not have been 

introduced into evidence for any purpose other than the contradiction.” 

Calhoun v. Ramsey, 408 F.3d 375, 382 (7th Cir. 2005) (quotation omitted). 

Thus, generally speaking, “one may not contradict for the sake of contradiction; 

the evidence must have an independent ground for admission.” United States 

v. Bonner, 302 F.3d 776, 785 (7th Cir. 2002) (quotation and ellipsis omitted); 

accord United States v. Schwyhart, 123 Fed. App’x 62, 66 (3d Cir. 2005); 

United States v. Scott, 243 F.3d 1103, 1107 (8th Cir. 2001). Such independent 

grounds include proving a substantive fact in the case or proving that a 

witness was biased or lacked personal knowledge. See Wright & Gold, supra at 

661.

The opening-the-door doctrine is an exception to the general ban on the 

use of extrinsic evidence to impeach a witness’s testimony on a collateral 

matter. See id. at 665; see also Jones v. Southern Pacific R.R., 962 F.2d 447, 

450 (5th Cir. 1992). Thus, when a witness “opens the door” to a collateral 

issue, extrinsic evidence may be admissible to impeach her by contradiction. 

See Jones, 962 F.2d at 450; see also Mello, 137 N.H. at 601.

In some jurisdictions, the opening-the-door exception applies only to a 

witness’s testimony on direct examination. See Wright & Gold, supra at 667-

68. In those jurisdictions, extrinsic evidence is inadmissible to impeach a 

witness’s cross-examination testimony as to a collateral matter. See, e.g., 

Caruso v. State, 645 So. 2d 389, 394-95 (Fla. 1994); State v. Gibson, 113 P.3d 

423, 430 (Or. 2005) (en banc). “The policy behind this rule is to prevent the 

cross-examiner from injecting collateral matters into the trial by setting the 

witness up and then allowing the very party that injected the matter into the 

trial to impeach the witness’s credibility with extrinsic evidence relating to 

those collateral matters.” Jezdik v. State, 110 P.3d 1058, 1063-64 (Nev. 2005).

By contrast, in other jurisdictions the opening-the-door exception may be 

applied to a witness’s cross-examination testimony when that testimony is 

“truly volunteered.” Castillo, 181 F.3d at 1134 n.1. Additionally, in the 

context of constitutional claims, federal courts have ruled that extrinsic 
9

evidence may be admissible to impeach a criminal defendant’s crossexamination testimony as to collateral matters provided that the questions on 

cross-examination are “closely . . . connected with matters explored during 

direct” examination. United States v. Morla–Trinidad, 100 F.3d 1, 5 (1st Cir. 

1996) (discussing the impeachment exception to the exclusionary rule under 

the Fourth Amendment to the Federal Constitution); see also United States v. 

Havens, 446 U.S. 620, 622-23, 626-27 (1980) (deciding, as a constitutional 

matter, that the trial court did not err by allowing the government to impeach 

with extrinsic evidence the criminal defendant’s testimony on direct 

examination that he was not involved in drug smuggling and the similar 

statements he “made in response to proper cross-examination reasonably 

suggested by” the direct examination).

Courts are cautious when allowing extrinsic evidence to impeach a 

witness’s cross-examination testimony on collateral matters. See United States 

v. Kincaid–Chauncey, 556 F.3d 923, 932-33 (9th Cir. 2009), abrogated on other 

grounds by Skilling v. United States, 561 U.S. 358 (2010). This is, in part, 

because “when the testimony to be contradicted is offered under crossexamination, impeachment by contradiction is far less likely to achieve its 

intended purpose of rooting out perjury because opposing counsel may 

manipulate questions to trap an unwary witness into ‘volunteering’ statements 

on cross-examination.” Id. (quotation omitted). Moreover, “it is often difficult

to determine whether testimony is invited” by leading questions on crossexamination or whether it is “volunteered,” similar to when a defendant 

volunteers an irrelevant fact on direct examination. Id. at 933 (quotation 

omitted). Accordingly, the rule in some jurisdictions is that impeachment by 

contradiction with extrinsic evidence is allowed “only in rare situations where it 

is clear that testimony on cross-examination” as to a collateral matter “was 

truly volunteered.” Castillo, 181 F.3d at 1134 n.1.

In Vandebogart, we aligned ourselves with those jurisdictions that have 

permitted extrinsic evidence to impeach a criminal defendant’s testimony on 

cross-examination as to collateral matters. See Vandebogart, 139 N.H. at 165-

67. We said that, with regard to the opening-the-door doctrine, we saw “no 

reason to distinguish the defendant’s statements on direct examination from 

his responses to questions asked on cross-examination.” Id. at 167. Thus, 

although the extrinsic evidence was offered to impeach the defendant’s 

testimony on cross-examination as to collateral issues, we upheld the trial 

court’s decision to allow it. Id. at 165, 167.

Although we discussed Rule 608(b) in our decision, the evidence at issue 

in that case did not actually fall within the specific prohibition of that rule. In 

Vandebogart, the information elicited from the defendant on crossexamination—concerning how he got to know the witness, what he told her 

about his fiancée, and when he had last seen her—did not demonstrate that he 

had lied on prior occasions and, therefore, had the character trait of 
10

untruthfulness. Id. at 165. Rather, if his testimony on those points was false, 

extrinsic evidence contradicting the testimony and, thus, proving its falsity 

would not merely allow the jury to draw the circumstantial inference that the 

defendant was generally a liar; it would demonstrate directly that the defendant 

had lied in his trial testimony. We recognized this distinction when, in 

upholding the trial court’s decision to admit the extrinsic evidence, we wrote 

that the rebuttal evidence “did not attack the defendant’s general credibility, 

but rather the truthfulness of his testimony.” Id. at 167.

For the purposes of this appeal, we assume that Vandebogart applies 

when, as in this case, a criminal defendant seeks to rebut with extrinsic 

evidence a victim’s testimony on cross-examination about a collateral issue. 

Compare Cannon, 146 N.H. at 566-67 (citing Vandebogart and upholding the 

trial court’s decision to limit a witness’s testimony offered to rebut the victim’s 

testimony on cross-examination as to what appears to have been a collateral 

issue because the defendant failed to demonstrate that the trial court had 

unsustainably exercised its discretion), with State v. Kelly, 160 N.H. 190, 202-

03 (2010) (not citing Vandebogart and concluding that defense counsel was not 

entitled to impeach complainant’s testimony with extrinsic evidence 

demonstrating that her testimony on cross-examination was false). We also 

assume without deciding that the witness’s testimony concerned a collateral 

matter because the defendant does not argue otherwise.

3. Application to this Case

The defendant contends that, once the victim denied threatening to tell 

the police that the witness sexually assaulted her, “the defense had the right, 

under Vandebogart, to present extrinsic evidence to impeach that denial.” We 

disagree that Vandebogart establishes that a party has a “right” to present 

extrinsic evidence to impeach a witness’s testimony on cross-examination. In

that case, we merely upheld a trial court’s discretionary decision to allow such 

impeachment. See Vandebogart, 139 N.H. at 167.

Moreover, this case is readily distinguishable from Vandebogart. In 

contrast to the cross-examination of the defendant in Vandebogart, the 

evidence which the defendant sought to elicit from the victim falls squarely 

within the terms of Rule 608(b). The defendant cross-examined the victim 

about what he claimed was her threat to falsely accuse the witness of sexually 

assaulting her for the purpose of attacking her general credibility by showing 

that she had a propensity to lie. The defense theory was that, because the 

victim was a liar when she allegedly threatened to accuse the witness of sexual 

assault, she was also a liar when she alleged, “in great detail,” that the 

defendant had sexually assaulted her. Ellsworth, 142 N.H. at 717. Although 

the defendant argues that the purpose of eliciting the victim’s testimony about 

the witness incident was to demonstrate her “motive” to fabricate allegations of 
11

sexual assault, the probative value of that evidence “necessarily involves the 

victim’s alleged bad character and predisposition or propensity to lie.” Id.

The trial court acted within its discretion in permitting the defendant to 

pursue such cross-examination. But when the victim denied making the prior 

threat, Rule 608(b)’s prohibition came into play and prohibited the defendant 

from introducing extrinsic evidence to contradict her testimony. See PerezPerez, 72 F.3d at 227. As noted previously, were we to permit the introduction 

of extrinsic evidence to contradict the victim’s testimony about a matter 

inquired into on cross-examination only because of its bearing on her general 

credibility for truthfulness, we would render Rule 608(b) a nullity. This we 

refuse to do.

In this case, the trial court reasonably could have decided that, because 

the defendant was allowed to cross-examine the victim about the witness 

incident so as to attack her general character for untruthfulness, it would have 

undermined the purposes of Rule 608(b) to allow him also to use extrinsic 

evidence to impeach that testimony. See C. Wright & V. Gold, 28 Federal 

Practice and Procedure § 6119, at 127 (2012) (observing that “[t]he 

admissibility of misconduct evidence to contradict can be entwined logically 

with the admissibility of such evidence to prove untruthfulness,” so that when 

“a witness is questioned about alleged misconduct probative of untruthfulness 

and . . . the witness denies the misconduct[,] . . . [i]f the extrinsic evidence is 

freely admissible to contradict, the purpose of Rule 608(b) is utterly 

destroyed”).

C. Motion to Vacate Verdict and for a New Trial

We next consider the defendant’s assertion that the trial court erred 

when it denied his motion to vacate the jury’s verdict and for a new trial. The 

defendant argues that “[h]aving initially ruled that the defense could elicit [the 

witness’s] testimony subject to specified conditions,” the court committed 

reversible error when it then “retract[ed] that permission” after the defense had 

relied upon it. (Underlining omitted.) He asserts that the court’s correction of 

its initial ruling that the Ellsworth exception applies to the witness’s testimony 

meant that his counsel was unable to deliver on the promise he made to the 

jury during his opening statement to produce the witness testimony. He 

contends that the trial court’s so-called “about-face violated [his] rights to due 

process and a fair trial, guaranteed by” Part I, Article 15 of the New Hampshire 

Constitution and “the Fifth, Sixth, and Fourteenth Amendments to the United 

States Constitution.”

We decline to address the merits of the defendant’s argument, in part, 

because he has not sufficiently developed it for our review. See State v. 

Blackmer, 149 N.H. 47, 49 (2003). For instance, he does not explain how the 

trial court’s ultimate decision to correct its earlier, erroneous, provisional 
12

ruling constitutes a deprivation of due process. See Merrimack Valley Wood 

Prods. v. Near, 152 N.H. 192, 203 (2005) (explaining that “[t]here can be no 

question of the inherent power of the [trial court] to review its own proceedings 

to correct error or prevent injustice” (quotation omitted)). We note that the two 

cases upon which the defendant relies in his brief are not due process cases 

and are factually distinguishable. See State v. Demond-Surace, 162 N.H. 17 

(2011) (concerning whether defendant was prejudiced by prosecutor’s improper 

comment); United States v. Smith, 629 F.2d 650 (10th Cir. 1980) (concerning 

whether the trial court committed reversible error by failing to comply with a 

federal procedural rule requiring it to inform counsel of its proposed action 

upon jury instruction requests before counsel argued to the jury).

Moreover, as the appealing party, the defendant has the burden of 

demonstrating that the trial court committed reversible error when it corrected 

its earlier, provisional, erroneous ruling that the Ellsworth exception applied to 

the witness testimony. See Gallo v. Traina, 166 N.H. 737, 740 (2014). Based 

upon our review of the trial court’s ruling on the defendant’s motion to vacate 

the jury verdict and for a new trial, the defendant’s challenges to it, the record 

submitted on appeal, and the applicable law, we conclude that the defendant 

has not demonstrated reversible error. See id.

Affirmed.

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.