Rape verdict goes undecided on technicality

By BEA LEWIS, For The Laconia Daily Sun

LACONIA — Six days of testimony in a rape trial was all for naught after the judge dismissed the charges based on a technicality.

Judge Peter Fauver found that the wording in the indictments outlining the charges against George Colbath were lacking, and as a result the case couldn't go to the jury.

"The judge ruled that the indictments were defective. The case was never heard on the merits," said Prosecutor Annaliese Wolf.

The trial for Colbath, 62, of Barnstead, began on Jan. 23, in Belknap County Superior Court and closing arguments were scheduled to be heard Wednesday morning.

Before the jury returned to the courtroom, defense attorney Mark Sisti successfully argued that the state had failed to prove all the elements of the alleged crimes, and that the charges should be thrown out.

"I certainly believe in the merits of the case and strongly believe that the defendant should be held accountable for his actions," Wolf said, after the jury had been dismissed.

Colbath stood accused of seven counts of aggravated felonious sexual assault. He had been charged with engaging in a variety of sex acts with the girl when she was under age 18, between Sept. 1, 2014, and Jan. 30, 2016, in Barnstead and Alton. All of the charges alleged a pattern of conduct over the course of two or more months and within five years. State law defines a pattern of sexual assault as committing more than one act. Each of the indictments against Colbath alleged a lone sex act.

Wolf said while she conferred with other lawyers in her office prior to crafting the indictments, she blamed herself for the faulty wording.

Four other sexual assault charges involving the same alleged victim when she lived briefly in Nottingham remain pending against Colbath, and are scheduled to go to trial in Rockingham County in March.

The prosecutor said her office will seek new indictments against Colbath for the Belknap County allegations, as so-called "jeopardy" does not attach in proceedings later voided because of defective charges.

The father of the girl Colbath is charged with sexually assaulting said she was "very upset" after learning that the jury would not be allowed to deliberate a verdict.

On Tuesday, a criminalist with the New Hampshire Department of Safety Forensic Lab told the jury that DNA extracted from a semen stain on a comforter taken from the girl's bed, matched Colbath.

Colbath took the witness stand in his own defense and vehemently denied the allegations. He also told the jury he had no idea how his seminal fluid ended up on the comforter seized by Barnstead police.

Under questioning by Sisti, the criminalist agreed that a pre-existing semen stain could be transferred when wet.

Colbath also recounted that he was diagnosed with bladder cancer in July 2014 and maintained that the treatment that he undergoes every three to four months is painful, and leaves him with no desire for or ability to have sex.

When the prosecutor had the chance to cross-examine Colbath, she wasted no time in challenging his credibility. She played recordings of jailhouse phone calls Colbath made to his then girlfriend, now wife, and his sister.

As a result of Wolf's questioning, the jury heard that Colbath has been married six times, and that on least two of the marriage certificates admitted as evidence he told the clerk filling out the license that two of his wives had both been his second marriage.

"This isn't the first time you've lied on a certificate is it George?" the probed the prosecutor. His most recent marriage is listed as being his fourth on the official certificate.

Colbath said he didn't provide wrong information intentionally, and called it an oversight.

During questioning by his attorney, Colbath tearfully read the notes he's written on the back of envelopes and other scraps of paper he'd found in his truck as he was contemplating suicide in response to being accused.

He told the jury that he'd bought a dryer vent hose and attached it to the exhaust pipe in a bid to asphyxiate himself. The hose kept falling off, however, and he continued to write notes, expressing his innocence and his concern about the welfare of the alleged victim and his girlfriend.

When taken into custody by police he was suffering from carbon monoxide poisoning and was hospitalized overnight. He also acknowledged that he asked his sister to clean out his truck, following his arrest, and that a bottle of Viagra pills was among the things she took out.

He told the jury that he'd taken the erectile dysfunction drug in the past and that they didn't help. Because they were expensive, he testified he didn't throw them out, hoping that once he finished his cancer treatment, he might try them again.

Besides the dryer hose, Colbath agreed with the prosecutor that he'd also bought beer and chips.

When his fifth wife died after being run over by her own sports utility vehicle, Colbath told the jury he'd received a $105,000 insurance payout.

The prosecutor focused the jury on Colbath's alleged preoccupation with money, noting the first thing he did after arriving at the accident scene was to remove his wife's pocketbook from the Jeep. He maintained he grabbed the bag to make sure someone else didn't walk off with it.

Colbath also disclosed as a result of the prosecutor's questions, that he was more than $60,000 in debt and that during a jailhouse call to his now wife, told her that he planned to discharge the red ink by filing for bankruptcy before they got married.

The prosecutor additionally asked Colbath whether during a jailhouse call from his sister, he told her to stop talking because he knew the calls were being recorded.

"I can't remember right off the top of my head, but I probably did," Colbath said.

The prosecutor said she could refresh his memory and played a recording in which Colbath can be heard telling his now wife, that he couldn't have his sister saying "that kind of stuff," as all calls were recorded.

In her strongest bid to cast doubt on Colbath's truthfulness, the prosecutor focused on his testimony that he had no idea how his seminal fluid ended up on the comforter taken from the alleged victim's bed.

In a recording of a phone call he made while in jail to the woman he has since married, the jury heard Colbath said that before he'd met her, he'd had a "one-night stand" on a bed topped with the comforter tested by the forensic lab and that he'd been, "unable to perform."

"That's my ace in the hole," Colbath can be heard saying in the recording.