## Facts

- Richard Colbath was charged with aggravated felonious sexual assault after intercourse with the complainant at his trailer; consent was the central dispute.
- On June 28, 1985, Colbath met the complainant at a tavern in Farmington, New Hampshire.
- Witnesses described the complainant as directing sexually provocative attention toward multiple men at the bar, including Colbath; Colbath described mutual sexual touching before they left together.
- At the trailer, a woman who lived with Colbath unexpectedly returned, forced entry, and assaulted the complainant; others intervened and the altercation ended.
- The complainant reported injuries to police and accused Colbath of rape; he was arrested.
- The State failed to disclose before trial a witness’s written statement suggesting uncertainty about whether the complainant left the bar with Colbath and characterizing the complainant as engaging in intimate behavior with Colbath and others; the statement surfaced during trial.
- The trial court admitted evidence of the complainant’s bar conduct and the ensuing fight only as “background” and instructed the jury not to consider it on whether the complainant consented to intercourse.

## Issues

1. Whether an approximately one-year delay between arrest and trial violated the defendant’s speedy-trial rights under the New Hampshire and United States Constitutions.
2. Whether the State’s failure to disclose a favorable witness statement before trial required dismissal under due process principles governing exculpatory evidence.
3. Whether the trial court erred by preventing the jury from considering evidence of the complainant’s proximate, public sexually provocative conduct with men other than the defendant as bearing on consent.

## Decision

- The court held there was no speedy-trial violation under the balancing test for pretrial delay.
- The court held the late disclosure of the favorable witness statement did not warrant dismissal because the defendant failed to show prejudice from the delay.
- The court reversed the conviction and remanded for a new trial because the trial court’s restriction prevented the jury from considering relevant evidence on the defense of consent.

## Legal Principles

- Speedy-trial claims are evaluated by balancing the length of delay, reasons for delay, the defendant’s assertion of the right, and prejudice; delay alone is not dispositive.
- Relief for the State’s failure to timely disclose favorable evidence requires a showing of prejudice attributable to the nondisclosure or delay.
- In a sexual-assault prosecution, rape-shield limits cannot be applied to exclude evidence of a complainant’s specific, contemporaneous, publicly observed sexual conduct closely connected in time and circumstance to the charged event when offered as circumstantial proof relevant to consent.
- A trial court commits reversible error when it admits such evidence only as “background” and forbids the jury from using it to evaluate consent and credibility where consent is the primary disputed issue.

## Conclusion

The conviction was reversed and the case remanded for a new trial because the jury was improperly barred from considering closely related evidence of the complainant’s contemporaneous public sexual behavior on the issue of consent, while the defendant’s speedy-trial and late-disclosure claims failed for lack of constitutional violation and lack of shown prejudice, respectively.


State v. Colbath, 130 N.H. 316, 540 A.2d 1212 (N.H. 1988)