Nov. 6, 2018
- Addressing whether: (1) there was sufficient evidence to support the defendant’s conviction; (2) the trial court erred by not allowing cross-examination of a witness; and (3) the trial court erred by not correcting statements in the State’s closing arguments.
The defendant challenged: (1) the sufficiency of the evidence to support his conviction for using computer services for a prohibited purpose, RSA 649-B:4, I(a); (2) the trial court’s decision not to allow certain cross-examination of a State’s witness; and (3) the trial court’s failure to sua sponte correct statements in the prosecutor’s closing argument.
In 2014, the defendant, then 18 years old, was a senior at St. Paul’s School. The school had a springtime tradition known as the “senior salute,” which involved seniors sending notes to younger students on campus, inviting them to spend time together before graduation, often with sexual connotations. The defendant kept a list of female students, including the 15-year old victim, whom the defendant hoped to “spend time with.” Earlier in the year, the defendant exchanged messages with friends indicating his desire to have sexual contact with the victim. On May 28, he sent the victim a salute via email, which she initially declined. After exchanging emails, and after the defendant enlisted a friend to encourage the victim to accept, the victim agreed to meet. They made plans via Facebook messenger. The defendant brought the victim to a secluded boiler room and the two engaged in various sexual acts, including oral sex and intercourse. Afterwards, the defendant told other students that he had sex with the victim.
The defendant argued that the State failed to prove that when he communicated with the victim over the computer, he intended to “seduce, solicit, lure, or entice” her to engage in sexual penetration. The defendant argued that there was no sexual content or mention of sex in his messages with the victim, and, therefore, there was no evidence he intended to draw the victim into sexual conduct under RSA 649-B:4, I(a). The Court rejected his interpretation, concluding that the statute does not require an express or affirmative request for sexual contact or explicit sexual content. The Court held that evidence of the defendant’s actions prior to, during, and after his encounter with the victim supported the jury’s finding of his intent to “solicit, seduce, lure, or entice” the victim to engage in sexual penetration, and thus, his conviction for that crime was supported.
Next, The Court held the trial court did not err by not permitting cross-examination of a witness for bias or motive to be untruthful in favor of the Concord police. That witness had engaged in conduct similar to the defendant’s with a different 15-year old, whose mother considered having the police investigate, but never did. The trial court initially disallowed the cross-examination but later reconsidered the decision. The court offered the defendant another chance to explore the issue at a later time, and the defendant assumed the burden to bring up the matter. The defendant, however, never raised the issue again. The defendant argued that his right to confrontation was violated when the court initially sustained the State’s objection. The Court held that by not raising the issue again when given the opportunity, he had waived the right to make that argument on appeal.
Finally, the Court held that the trial court did not commit plain error by failing to interject during the State’s closing argument, during which the State made misstatements regarding DNA evidence. The Court held that the statements at issue were not nonsensical or so egregious as to obligate the court to intervene, and that the misstatements would have been cured by the jury instructions. Additionally, given the overwhelming evidence of his guilt, the Court concluded the misstatements did not affect his substantial rights.
Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general), for the State. Jaye L. Rancourt and Jenna M. Bergeron, Brennan, Lenehan, Iacopino & Hickey, Manchester, for the