Monday, January 06, 2014

Implants, Manslaughter and Relevance

A jury convicted Jessica Botelho of manslaughter in violation of New Hampshire Revised Statutes § 630:2, negligent homicide in violation of New Hampshire RevisedStatutes  § 630:3 and reckless conduct in violation of New Hampshire Revised Statutes § 631:3, she appealed.  State v. Botelho, 2013 WL 6797643 (Supreme Court of New Hampshire 2013). 

After she was convicted, the trial judge sentenced Botelho “to the New Hampshire State Prison for five to ten years” on the manslaughter conviction, “to a concurrent term of one to three years” on the reckless conduct conviction and “held sentencing in abeyance on the negligent homicide charge, an alternative theory to manslaughter for W.B.'s death, pending appeal.”  State v. Botelho, supra.  I assume the latter statement means negligent homicide is a lesser included offense of manslaughter, which was included to give the jury the option of convicting Botelho on the lesser crime, if they thought that was appropriate.

On appeal, she argued, among other things, that the trial judge erred “by admitting into evidence the name and description of a particular website that she visited while leaving her children unattended in her bathtub”.  State v. Botelho, supra.  To understand that argument, you have to understand how, and why, the prosecution arose.  You can read more about the case in the news stories you can find here and here.

According to the Supreme Court’s opinion, based on the evidence presented at trial, the “jury could have found the following facts.”  State v. Botelho, supra. 

On July 13, 2010, [Botelho] lived in a second-story apartment with her two sons, W.B., who was twelve months old, and T.P., who was two years old. At approximately 4:00 p.m., [she] ran a bath for the two boys. At some point, she left the children alone in the bathtub with the water `stopped’ and approximately two to three inches of water in the bathtub. She then left the apartment and went to an outdoor porch, where she used her laptop computer to connect to the internet. She later told police that T.P. knew how to turn on the bathtub faucet on his own.

[Botelho] gave conflicting accounts to police and other witnesses about the nature and length of her computer use, but admitted that she `posted [a] blog’ on a website named `’ The State described the website, which [Botelho] admitted she had visited since 2007, as a `social networking website where people can make donations for others to get free breast implants.’

A forensic examination of [her] computer . . . documented nearly continuous user activity, exclusively at, from 4:20 p.m. to 5:02 p.m. The majority of entries were associated with viewing and writing blog posts on or sending messages on the website. The report documented only when a user entered, or was directed to, a new web address; thus, several gaps existed in user activity during which the user could have been watching videos, reading online content, or composing messages.

After some time, T.P. approached [Botelho] to tell her W.B. was `sleeping swimming. [She] rushed to the bathroom, where she discovered W.B. in the bathtub with the faucet running. [Botelho] gave conflicting accounts to police about whether W.B. was lying on the bottom of the bathtub or floating. She turned off the faucet, retrieved W.B. from the bathtub, and attempted CPR.

Unable to find her telephone, she ran downstairs with W.B.--  leaving behind T.P., who had returned to the bathroom -- and asked her downstairs neighbors for help. One of the neighbors called 911 at around 5:00 p.m. while [Botelho] and another neighbor resumed CPR attempts. A neighbor and his friend drove [her] and W.B. to the emergency room, where they arrived at approximately 5:12 p.m.

Meanwhile, two neighbors retrieved T.P. from the bathtub, which was half-full but draining, and found that the bathroom floor was covered with water. A detective later determined that it took approximately eighteen minutes to fill the bathtub with the faucet at full volume, and approximately six minutes to drain it.

State v. Botelho, supra. 

At the hospital, W.B.’s

treating physician found he had sustained irreversible neurological injury and brain damage as a result of oxygen deprivation. The doctor explained that this type of injury typically occurs `starting around seven minutes of low oxygen delivery’ following the initial stages of drowning. 

After a consultation between the doctor, [Botelho] and W.B.'s father, W.B. was removed from life support on July 20, resulting in his death. A medical examiner determined that he had died from complications related to a `near drowning.’

State v. Botelho, supra. 

Botelho went to trial, and her attorney was apparently concerned about how the jury would react to the nature of the website she was browsing when W.B. nearly drowned, so, prior to trial, she filed a

motion in limine `to exclude all evidence pertaining to the specific web addresses [she] visited during the days leading up to [the] incident,’ including In so doing, she offered to stipulate that no one else had used her computer on July 13.

Following two hearings, the trial court determined `the probative value of such evidence [was] not substantially outweighed by the danger of unfair prejudice’ and denied the motion. The court advised that it would ask a question during voir dire to determine whether potential jurors `[held] personal views about breast augmentation that would prevent [them] from being impartial.’ At trial, the court ordered the redaction of specific references to [Botelho’s] correspondence with men on and noted counsel had agreed to redact two other descriptions of the website that could be construed as sexual in nature.

State v. Botelho, supra. 

The comment about the probative value of the evidence was a response to Botelho’s argument, under New Hampshire Rule of Evidence 403, that if the evidence came in, it would prejudice the jurors against her. On appeal, Botelho reiterated that argument, claiming that ”the website's identifying information should have been excluded because: (1) it was not relevant; and (2) if it was relevant, any `probative value [was] substantially outweighed by the danger of unfair prejudice.'" State v. Botelho, supra. 

The Supreme Court began its analysis of her argument by noting that evidence is relevant if

it has `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.  New Hampshire Rule of Evidence 401.  Evidence that is not relevant is inadmissible. New Hampshire Rule of Evidence 402. Even when evidence is relevant, the trial court may exclude it `if its probative value is substantially outweighed by the danger of unfair prejudice. New Hampshire Rule of Evidence 403.

`Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Unfair prejudice is not . . . mere detriment to the objecting party's case, in which sense all evidence offered is meant to be prejudicial. Rather, the prejudice required . . . is an undue tendency to induce a decision on some improper basis, commonly one that is emotionally charged.’

State v. Jenot, 965 A.2d 1086 (New Hampshire Supreme Court 2008).

State v. Botelho, supra. 

Botelho argued that the website was not relevant because the

`distinguishing characteristic’ of her admissions regarding her use of the site `was how frequently [she] visited the website, not [its] name, content, or purpose.’ . . .Thus, her argument implies, a generic reference to a website with similar features would have been equally explanatory of gaps in user activity. 

Finally, she argues that the website's identifying information was not relevant because `forensic analysis and [her] own statements . . . establish[ed] that she had used her computer during the relevant period of time,’ and because she had offered to stipulate that no one else had used her computer during that time.

State v. Botelho, supra.  As to prejudice, she claimed “jurors were `invited’ to conclude that she solicited money `to advance a selfish interest’ in breast augmentation surgery that presumably was `non-essential [and] sexually-oriented.’” State v. Botelho, supra. 

The Supreme Court, though, found that “[u]nder the unique circumstances of this case, we need not determine whether admission of the website information was error under New Hampshire Rules of Evidence 401 and 403, because even if it was erroneous, the error was harmless.” State v. Botelho, supra.  As Wikipedia notes, a harmless error, basically, is one that does not warrant a new trial. Or, as this court explained, “[a]n error may be harmless beyond a reasonable doubt if the alternative evidence of the defendant's guilt is of an overwhelming nature, quantity, or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt.”  State v. Botelho, supra. 

The Supreme Court then found that the alternative evidence of Botelho’s guilt was

overwhelming. . . . Setting aside the names and descriptions of the particular websites that she visited, unchallenged forensic evidence demonstrated nearly continuous online activity from 4:20 p.m. to 5:02 p.m. Although she gave conflicting accounts about the nature and length of her computer use, [Botelho] admitted in a recorded police interview that she used her computer, located on her porch, to `post[ ][a] blog’ while her young children remained unattended in a bathtub containing water. The risk her children would drown or suffer serious injury in this situation was `substantial and unjustifiable. New Hampshire Revised Statutes § 626:2.

[Botelho’s] conflicting, and self-serving, statements about the amount of time she spent on the computer do not diminish the overwhelming nature of the evidence that she left her children unattended for an extended period of time. In addition to the computer forensic evidence, the water level in the bathtub before and after W.B.'s near drowning was strong circumstantial evidence that W.B. and T.P. spent an extended period of time there alone. [Botelho] stated that the water was `stopped’ when she left the bathroom, and that, upon her return, she turned off the faucet when she found the water running.

Two neighbors testified that, by the time they retrieved T.P. from the bathtub several minutes later, the bathtub was draining but was still half-full, and the floor was wet. The evidence suggests the bathtub overflowed with water either before or shortly after [Botelho] retrieved W.B. Even if T.P. had turned on the faucet immediately after [she] left her children alone in the bathtub, and even if T.P. again turned on the faucet immediately after [she] went downstairs with W.B. to get help, [Botelho] would have had to leave her children unattended for a significant period of time in order for the bathtub to fill up, overflow, and begin to drain.

State v. Botelho, supra. 

The court then parsed how these facts established Botelho’s guilt of the relevant crimes:

The evidence showed [Botelho] was `aware of and consciously disregard[ed]’ the risk to her children. New HampshireRevised Statutes § 626:2. As [she] concedes in her brief, `[t]he parties did not take issue with the proposition that young children should not be left alone in a bathtub.’ [Botelho] told police she limited the water level to two to three inches, indicating she understood the risk to her children of drowning in the bathtub. Additionally, she admitted to knowing that T.P. could operate the faucet on his own, further increasing the risk. 

This evidence, combined with the evidence of the extended period of time during which [Botelho] left her children unattended, established both that she was `aware of and consciously disregard[ed]’ this risk, and that her disregard `constitute[d] a gross deviation from the conduct that a law-abiding person would observe in the situation.’ New Hampshire Revised Statutes § 626:2.

Finally, the evidence showed that [Botelho’s] reckless conduct `cause[d]’ W.B.'s death, New Hampshire Revised Statutes § 630:2. The medical examiner testified that W.B. died from complications resulting from near drowning, and [his] treating physician testified that W.B.'s injuries evidenced near drowning. 

The evidence also showed [Botelho] placed T.P. `in danger of serious bodily injury,’ New Hampshire Revised Statutes § 631:3, when she left him in the bathtub with W.B. Moreover, testimony from neighbors and [her] own admissions demonstrated that T.P. remained exposed to the risk when [she] left him alone in the bathroom while seeking help for W.B. in another apartment.


State v. Botelho, supra. 

Finally, the court found that references to

throughout the trial were inconsequential in relation to the strength of the evidence of guilt. . . . The majority of references to occurred during a computer forensic expert's testimony, which focused on the length and nature of [Botelho’s] computer use during the relevant time period rather than the specific content of the website. 

We are persuaded that the State's choice to establish [her] computer use with specific references to, rather than generic references to an unnamed website, had no effect on the verdict. 

State v. Botelho, supra. 

For these and other reasons, the court affirmed Botelho’s convictions and sentences. State v. Botelho, supra. 

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