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 

 ___________________________ 

Merrimack 

No. 2012-827 

THE STATE OF NEW HAMPSHIRE 

v. 

THEADORE MITCHELL 

Argued: January 16, 2014 

Opinion Issued: May 16, 2014 

 Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant 

attorney general, on the brief and orally), for the State. 

 James B. Reis, assistant appellate defender, of Concord, on the brief and 

orally, for the defendant. 

 LYNN, J. Following a jury trial in Superior Court (Smukler, J.), the 

defendant, Theadore Mitchell, was convicted of one count of aggravated 

felonious sexual assault, RSA 632-A:2, I(m) (2007), and two class A 

misdemeanor counts of violation of a protective order, RSA 173-B:9, III (2002). 

He appeals, arguing that the trial court erred by excluding evidence that he 

offered to take a polygraph test. The defendant also argues that the trial court 

plainly erred when it allocated his pretrial confinement credit. We affirm in 

part, vacate in part, and remand for resentencing. 
2

I 

The record establishes the following facts. In the early morning of May 2, 

2012, officers arrested the defendant pursuant to a warrant and transported 

him to the Northfield Police Station. Officer Aaron Chapple brought the 

defendant into a booking room and read him his Miranda rights. See Miranda 

v. Arizona, 384 U.S. 436 (1966). The defendant waived his rights and agreed to 

speak with Chapple. Chapple began a recorded interview and informed the 

defendant that he was being charged with aggravated felonious sexual assault 

and simple assault. Several times throughout the interview the defendant 

denied any sexual contact with the victim. Chapple observed that the 

defendant got “a little bit more defensive” when specifically questioned about 

having sex with the victim. 

During the interview, the defendant asked, “[C]an’t you take a lie detector 

test for this stuff?” Chapple replied, “[W]e don’t do lie detectors on – you know, 

on everything.” Later in the interview, the defendant stated, “I’ll take a lie 

detector. I can take a polygraph. I’ll do whatever you guys tell me to.” 

Chapple did not acknowledge this offer. Toward the end of the interview, the 

defendant again stated, “I could take a lie detector test. I’ll pass that sucker. 

I’m not a good liar.” Chapple again did not acknowledge the offer. In addition 

to the above offers to take a polygraph, the defendant made other statements 

adamantly denying, throughout the interview, that he and the victim had sex. 

 Before trial, the State moved to exclude the portions of the defendant’s 

recorded interview in which he offered to take a polygraph test. Defense 

counsel objected, arguing that the defendant’s willingness to take a polygraph 

should be admitted as evidence. Defense counsel analogized the defendant’s 

statements to the statement, “I’ll swear on a stack of Bibles,” arguing that they 

provided context of the degree to which the defendant asserted his innocence. 

Defense counsel specifically argued that the defendant’s offers should be 

admitted under the doctrine of completeness because the State would gain a 

misleading advantage if it were allowed to admit only part of the recorded 

interview. Additionally, defense counsel argued that the offers should be 

admitted pursuant to the defendant’s right to present “favorable proofs” under 

the State and Federal Constitutions. 

 The trial court first determined that the doctrine of completeness did not 

apply, reasoning that the State would not gain a misleading advantage because 

the defense would be able to elicit evidence that the defendant adamantly 

denied culpability. The court found that the particular manner of the 

defendant’s denial, i.e., by offering to take a polygraph, was of little probative 

value and was likely to cause a great deal of confusion. Having declined to 

admit the statements under the doctrine of completeness, the trial court ruled 

that the defendant’s offers to take a polygraph test were inadmissible hearsay. 
3

The trial court later expanded upon its ruling, citing State v. LaForest, 106 

N.H. 159, 161 (1965), as well as out-of-state authority, for the general premise 

that an accused’s willingness or refusal to take a polygraph is inadmissible. 

 The jury ultimately convicted the defendant of one count of aggravated 

felonious sexual assault and two counts of violation of a protective order. This 

appeal followed. 

II 

On appeal, the defendant presents several arguments in support of his 

claim that the trial court erred in excluding from evidence his offers to take a 

polygraph test. We address each argument in turn below. 

Initially, we note that it appears from the record that the trial court 

assumed, without deciding, that the defendant’s offers to take a polygraph test 

were relevant. See N.H. R. Ev. 401 (“‘Relevant evidence’ means evidence having 

any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.”). Accordingly, we make the same assumption and do 

not address this issue further. 

“The decision to admit or exclude evidence is within the discretion of the 

trial court.” State v. Furgal, 164 N.H. 430, 438 (2012) (quotation omitted). In 

determining whether the trial court’s 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. (quotation omitted). 

“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. (quotation omitted). 

A 

 We address first the trial court’s ruling that the defendant’s offers to take 

a polygraph test constituted hearsay. The trial court reasoned that while the 

State could introduce the defendant’s statements against him, any attempt by 

the defendant to introduce those statements would constitute hearsay. The 

court later ruled that the defendant’s offers could not be admitted even if he 

testified. 

“Hearsay is an out-of-court statement offered in evidence to prove the 

truth of the matter asserted, N.H. R. Ev. 801(c), which is not specifically 

excluded as non-hearsay by Rule 801(d).” Kelleher v. Marvin Lumber & Cedar 

Co., 152 N.H. 813, 832 (2005) (quotation omitted). In this case, the 

defendant’s offers to take a polygraph were made during his out-of-court 
4

interrogation, and he has not argued that he sought to admit these statements 

for any reason other than to prove the truth of the matter asserted, i.e., that he 

was in fact willing to take a polygraph. 

The defendant raises two exceptions to the hearsay rule, but his 

argument was not preserved for appeal in either instance. In his brief, the 

defendant asserts for the first time that, even if his offers constituted hearsay, 

they are admissible under the state-of-mind exception. See N.H. R. Ev. 803(2). 

“Generally, we do not consider issues raised on appeal that were not presented 

in the trial court.” State v. Brum, 155 N.H. 408, 417 (2007) (citation omitted). 

“The preservation requirement recognizes that ordinarily, trial courts should 

have an opportunity to rule upon issues and to correct errors before they are 

presented to the appellate court.” Id. at 417. While the admissibility of the 

defendant’s offers to take a polygraph was an issue raised before the trial 

court, the argument that the offers were admissible under this exception to the 

hearsay rule was not. “Consequently, the [State] and the trial court never had 

the opportunity to consider that legal issue or the development of facts that 

might or might not have supported that argument.” Id. (quotation omitted). 

We thus decline to address the issue on appeal. See id. 

In addition, at oral argument, defense counsel asserted for the first time 

that the defendant’s statements were not hearsay because they constituted 

acts of independent legal significance. See Simpkins v. Snow, 139 N.H. 735, 

737 (1995) (“[W]here a statement has independent legal significance, it is not 

considered hearsay.” (citations omitted)). This issue was not addressed in the 

defendant’s briefs and was only cursorily mentioned during defense counsel’s 

oral argument. We therefore decline to review it. See State v. Kincaid, 158 

N.H. 90, 95 (2008) (holding that arguments not briefed are waived on appeal). 

Accordingly, we conclude that the trial court’s ruling that the defendant’s 

offers constituted inadmissible hearsay was not erroneous. 

B 

The trial court also ruled that the doctrine of verbal completeness did not 

require admission of the defendant’s offers to take a polygraph test. The trial 

court reasoned that the State would not gain a misleading advantage because, 

although it would be able to introduce statements made by the defendant 

during the recorded interview, the defendant would still be able to elicit 

evidence he adamantly denied that he was guilty of the charges. On appeal, 

the defendant challenges the trial court’s determination. 

The doctrine of completeness is a common law rule recognized by this 

court, wherein: 
5

[A] party has the right to introduce the remainder of a writing, 

statement, correspondence, former testimony or conversation that 

his or her opponent introduced so far as it relates to the same 

subject matter and hence tends to explain or shed light on the 

meaning of the part already received. 

State v. Lopez, 156 N.H. 416, 421 (2007) (quotation omitted). The doctrine 

“exists to prevent one party from gaining an advantage by misleading the jury.” 

Id. (quotation omitted). “Thus, there are two requirements to trigger the 

doctrine respecting conversations: first, the statements must be part of the 

same conversation; and second, admission of only a portion would mislead the 

jury.” Id. (quotation omitted). The rule does not render evidence automatically 

admissible, though “otherwise inadmissible evidence may be admitted to 

prevent a party from gaining a misleading advantage.” State v. Warren, 143 

N.H. 633, 636 (1999) (citation omitted). 

“The common law rule is partially codified by New Hampshire Rule of 

Evidence 106, which expressly applies to writings and recorded statements.” 

State v. Botelho, 165 N.H. __, __, 83 A.3d 814, 822 (2013) (citation omitted). 

Rule 106 states: “When a writing or recorded statement or part thereof is 

introduced by a party, an adverse party may require at that time the 

introduction of any other part or any other writing or recorded statement which 

ought in fairness to be considered contemporaneously with it.” N.H. R. Ev. 

106. “Rule 106 permits the introduction of the remaining parts of a recorded 

statement in order to prevent the misleading impression given by an out-ofcontext presentation from taking root.” Botelho, 165 N.H. at __, 83 A.3d at 822 

(citation omitted). “The trial court has discretion under Rule 106 to determine 

whether ‘fairness’ requires admission of remaining parts or related documents.” 

Id. (quotation omitted). 

Here, the defendant’s interview was a “recorded statement,” and thus the 

defendant’s effort to introduce “any other part” of the interrogation falls under 

Rule 106. The defendant argues that “the jury was deprived of a true 

understanding of the full extent of [his] denials.” However, in light of the trial 

court’s ruling that he would be allowed to elicit testimony that he adamantly 

denied guilt, the exclusion of these offers did not prejudice the defendant. In 

addition, at trial, portions of the recorded interview were played in which the 

defendant said he “didn’t do nothing [sic]” and that “nothing happened,” and in 

which he denied adamantly that he and the victim had sex. In fact, the 

defendant’s statements to this effect take up most of the interview portions 

played for the jury. 

In its ruling, the trial court reasoned that the defendant’s “other adamant 

denials of culpability” would address any concern that excluding the offers to 

take a polygraph would create a misleading impression. We agree with the trial 
6

court. The doctrine of completeness does not require the admission of 

otherwise inadmissible evidence simply to bolster a defendant’s claim of 

innocence, but rather exists to correct misleading impressions by omission. 

See Botelho, 165 N.H. at __, 83 A.3d at 823, 824; State v. Scovill, 144 N.H. 

409, 413 (1999); State v. McSheehan, 137 N.H. 180, 183 (1993). 

Inasmuch as the record supports the trial court’s view that excluding 

evidence of the polygraph offers did not create a misleading impression, we do 

not find the trial court’s decision to exclude the offers untenable or 

unreasonable to the prejudice of the defendant’s case. 

C 

 The trial court also concluded that any probative value of the polygraph 

offers would be substantially outweighed by their prejudicial effect. See N.H. R. 

Ev. 403. The court reasoned that the particular manner in which the 

defendant denied his culpability was of low probative value, and that admitting 

evidence of the defendant’s offers would cause a great deal of confusion. Later, 

the court cited LaForest and out-of-state authority for the general proposition 

that evidence of a defendant’s willingness or lack of willingness to take a 

polygraph is not admissible. 

On appeal, the defendant argues that the probative value of his 

statements was not substantially outweighed by the danger of unfair prejudice. 

Under New Hampshire Rule of Evidence 403, “evidence may be excluded if its 

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

confusion of the issues, or misleading the jury.” N.H. R. Ev. 403. We will not 

disturb a trial court’s decision to exclude evidence under Rule 403 absent an 

unsustainable exercise of discretion. State v. Perri, 164 N.H. 400, 408 (2012). 

“To show an unsustainable exercise of discretion, the defendant must 

demonstrate that the court’s ruling was clearly untenable or unreasonable to 

the prejudice of his case.” Id. (citation omitted). 

As to the offers’ probative value, because the trial court admitted 

evidence that the defendant adamantly denied his culpability during the police 

interview, we agree with its conclusion that evidence of offers to take a 

polygraph had little incremental probative value to the defendant’s defense. Cf. 

Lopez, 156 N.H. at 423 (holding that trial court did not err by excluding 

evidence that defendant had cried during an interview with police when he had 

been permitted to introduce other evidence that he had cried when speaking 

with his family prior to and during his arrest); State v. Morrill, 154 N.H. 547, 

552 (2006) (“Because the State had presented admissible evidence supporting 

its [case], introducing . . . inadmissible hearsay for the same purpose was 

unnecessary.” (citation omitted)); State v. Trempe, 140 N.H. 95, 99 (1995) 

(holding that trial court unsustainably exercised its discretion when it admitted 
7

prejudicial evidence for purpose of correcting potential misconceptions related 

to defendant’s testimony when prosecutor could have dispelled misconceptions 

by soliciting other, less prejudicial facts). 

With respect to prejudice, we have long followed the general rule that 

evidence derived from a polygraph test is inadmissible. LaForest, 106 N.H. at 

161; see also State v. Ober, 126 N.H. 471, 471-72 (1985) (stating that we have 

“consistently held that the results of polygraph tests are not admissible as 

evidence of guilt or innocence in criminal trials”). In LaForest, we also voiced 

approval for the related rule “that the accused’s willingness or refusal to take a 

polygraph test is likewise inadmissible,” although this statement is dicta 

because the defendant’s willingness or refusal to take a test was not directly at 

issue in that case. LaForest, 106 N.H. at 161. The vast majority of courts in 

other jurisdictions have held that offers to submit to a polygraph test are 

inadmissible. See, e.g., People v. Muniz, 190 P.3d 774, 785 (Colo. App. 2008); 

Rowland v. United States, 840 A.2d 664, 674 n.11 (D.C. 2004); State v. Hilton, 

431 A.2d 1296, 1301 (Me. 1981); Kosmas v. State, 560 A.2d 1137, 1140 (Md. 

1989); Com. v. Martinez, 769 N.E.2d 273, 278-79 (Mass. 2002). Summarizing 

the reasons for excluding such evidence, the Muniz court aptly explained: 

[A]dmitting such evidence would create a substantial danger of 

confusing the issues and misleading the jury. A fact-finder’s 

assessment of a suspect’s offer to take a polygraph test would 

require consideration of the suspect’s subjective state of mind; 

subjective beliefs of particular law enforcement officers as to the 

value of such a test under the circumstances; evidence of the 

behavior and beliefs of hypothetical “reasonable” suspects and 

officers in the circumstances of the case (to test the expressed 

subjective beliefs of testifying defendants and officers); and, if a 

test were not conducted, hypothetical scenarios concerning what 

officers would have done with the test results in the event the 

defendant “passed” or “failed” the test. Attempting to untangle this 

veritable Gordian knot would be an exercise in conjecture. 

Muniz, 190 P.3d at 786-87. We agree with these sentiments and therefore 

conclude that there was ample justification for the trial court’s finding that any 

probative value of evidence of the defendant’s offers to take a polygraph test 

would be far outweighed by the danger that their admission “would cause a 

great deal of confusion.” The trial court’s conclusion that the results of its Rule 

403 balancing analysis required exclusion of the offers to take a polygraph was 

not untenable or unreasonable to the prejudice of the defendant’s case. 

Accordingly, the court did not unsustainably exercise its discretion. 
8

D 

Next, the defendant contends that the trial court’s refusal to admit this 

evidence violated his rights to present “all proofs favorable” under Part I, Article 

15 of the State Constitution and to due process and a fair trial under the Fifth, 

Sixth, and Fourteenth Amendments to the Federal Constitution. 

Following our standard practice, we first consider the defendant’s 

arguments under the State Constitution and rely upon federal law only to aid 

our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). “The right to produce 

all favorable proofs under Part I, Article 15 gives a defendant only the right to 

produce witnesses, not to produce their testimony.” State v. Alta, 158 N.H. 

406, 410 (2009) (quotation omitted). “Part I, Article 15 does not entitle the 

defendant to introduce evidence in violation of the rules of evidence.” State v. 

Graf, 143 N.H. 294, 296-97 (1999) (citation omitted). Here, the defendant does 

not contend that his right to produce witnesses was infringed, only that he was 

unable to produce evidence. Thus, we find no merit in the defendant’s 

argument that the trial court’s refusal to allow evidence of his offers to take a 

polygraph violated his right to produce all favorable proofs. 

To the extent that the defendant argues that the trial court’s exclusion of 

his offers to take a polygraph violated his right to due process, we note that a 

defendant has no right under Part I, Article 15 to introduce evidence that will 

have little effect other than to confuse the issues or confound the jury, for such 

evidence is not competent favorable proof. State v. Mitchell, 148 N.H. 293, 294 

(2002). Here, the trial court allowed the defendant to introduce evidence of his 

adamant denials; as the trial court observed, “[t]he fact that he [denied the 

charges] in a particular way . . . [was] of lower probative value.” We agree with 

the court’s determination that introduction of the defendant’s offers would 

likely have had little effect other than to confuse the issues or confound the 

jury. 

The Federal Constitution offers the defendant no greater protection than 

does the State Constitution under these circumstances. Graf, 143 N.H. at 296-

97; see also United States v. Scheffer, 523 U.S. 303, 308 (1998) (holding that 

under the Federal Constitution, a defendant’s right to present relevant evidence 

is not unlimited, “but rather is subject to reasonable restrictions”). 

Accordingly, we reach the same result under the Federal Constitution as we do 

under the State Constitution. 

III 

Finally, the defendant argues that the trial court plainly erred when it 

imposed a 175-day house of corrections sentence on one of the violation of 

protective order charges, to be served stand committed, and then allocated all 
9

of his pretrial confinement credit to this sentence, thus depriving him of the 

opportunity to earn time off the sentence for good behavior. See RSA 651:18, II 

(2007). The State concedes that, in light of our decision in State v. Edson, 153 

N.H. 45, 48-50 (2005), the sentence is plainly erroneous. Accordingly, we 

vacate the sentences imposed and remand for resentencing in accordance with 

Edson. 

Affirmed in part; vacated in 

part; remanded for 

resentencing. 

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