Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2019-0682

October 22, 2021

Affirmed in part and remanded.

 

  • Whether the trial court erred in admitting evidence of the victim’s change in gender identity after the sexual assaults were disclosed, in admitting evidence of the defendant’s display of pornographic images to his minor nephews around the time of the sexual assaults and in withholding some confidential records provided for in camera review?

 

The defendant was charged with seven counts of aggravated felonious sexual assault, one count of attempted aggravated felonious sexual assault and one count of felonious sexual assault.  The victims were the defendant’s two minor nieces.  After the sexual assaults were disclosed, the youngest victim changed their gender identity from female to male, began using male pronouns and a new name.  The trial court denied the defendant’s motion in limine to preclude any reference to the victim’s gender identity change and provided instructions to the venire panel and in later jury instructions.  The defendant appealed his convictions of five counts of aggravated felonious sexual assault, one count of attempted felonious sexual assault and one count of attempted felonious sexual assault.  On appeal, the defendant argued that the trial court erred in admitting evidence of the victim’s change in gender identity after the sexual assaults were disclosed, in admitting evidence of the defendant’s display of pornographic images to his minor nephews around the time of the sexual assaults and in withholding some confidential records provided for in camera review.  The Court held that the trial court did not err because it had addressed the evidence of the victim’s gender identity change through voir dire and jury instructions.  The Court also held that the evidence of the defendant’s display of pornographic images to his minor nephews was admissible to corroborate the victim’s testimony and because the evidence described the nature of the assaults, the probative value of said evidence was not substantially outweighed by the danger of unfair prejudice.  The Court remanded the case for the limited purpose of reviewing the withheld confidential records because the trial court, in conducting in camera review of the confidential DCYF records in this case, did not have the benefit of the recent State v. Girard holding providing the standard for determining when confidential records reviewed in camera must be disclosed.

 

Office of the Attorney General, (Zachary L. Higham, on the brief and orally), for the State. Thomas Barnard, Senior Assistant Appellate Defender, of Concord, on the brief and orally for the defendant.