Criminal

Jennifer Codding
Strategic Litigator and Senior Counsel
Massey Law Group Tampa, FL

No. 2017-0265

June 7, 2019

Affirmed

 

  • Issue: Whether trial counsel’s failure to mention a specific defense in his opening statement and closing argument violated the defendant’s right to effective assistance of counsel; whether trial counsel’s failure to mount an intranet defense to a computer services charge prejudiced defendant’s case and therefore violated defendant’s right to effective assistance of counsel.

 

Defendant appealed an order of the Superior Court denying his motion for a new trial based on ineffective assistance of counsel as to a count of using computer services for a prohibited purpose in violation of RSA 649-B:4, I(a) (2016) (computer services use charge).

In 2015, a jury convicted defendant on 3 counts of sexual assault, one count of endangering the welfare of a child, and the computer services use charge. The charges stemmed from St. Paul’s School intranet email communications between the 18-year-old defendant and a 15-year-old girl, both students at the school, which resulted in an in-person meeting between the parties at which time the defendant sexually assaulted the girl. After the convictions, Defendant moved for a new trial based on ineffective assistance of trial counsel. After a three-day evidentiary hearing, the Court concluded that counsel’s performance was not constitutionally infirm and denied defendant’s motion.

On appeal, Defendant argued trial counsel rendered ineffective assistance in challenging the computer services use charge, in violation of FL and US Constitutions. Specifically, he contended his trial counsel was ineffective “in failing to contest the mens rea element” of the computer services use charge in that “counsel never mentioned [the computer services use] charge or [the defendant’s] defense to it to the jury, either in opening statement, closing statement or otherwise,” and “in failing to contest the actus reus element of use of the internet or an on-line service” because counsel “did not consider the possibility of” or advance “a defense based on the intranet character of the St. Paul’s School network.”

To prevail upon a claim of ineffective assistance of counsel, the defendant needed to demonstrate that counsel’s representation was constitutionally deficient, in that counsel’s reputation fell below the objective standard of reasonableness, and that counsel’s deficient performance actually prejudiced the outcome of the case.

As to the mens rea defense, the Court held that the judicious selection of arguments for opening statement and summation is a core exercise of defense counsel’s discretion and that counsel’s decision to focus his opening statement and closing argument on attacking the victim’s creditability and to defend all of the charges the defendant faced by focusing on penetration and consent were tactical decisions that fell within the wide range of professional assistance. Accordingly, trial counsel’s failure to mention a specific defense to the computer services charge in his opening statement and closing argument did not violate the defendant’s right to effective assistance of counsel.

As to the intranet defense to the computer services use charge, the Court looked to the plain meaning of RSA 649-B:4 to determine if the intranet system used by the defendant constituted computer services use within the meaning of the statute. The Court rejected the defendant’s construction of the computer services statute and held that defendant had not demonstrated actual prejudice from his trial counsel’s failure to mount an intranet defense to the computer services charge and thus had not established ineffective assistance of counsel.

 

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.