2008-380, STATE OF NH v. RONALD TAYAG

Following his conviction for aggravated felonious sexual

for the defendant. Todd R. Russell, public defender, of Manchester, on the brief and orally,

attorney general, on the memorandum of law and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-380 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as question a witness with personal knowledge about the victim’s age.”

years old in July p. 2 2004. R.T. was the State’s last witness. thirteen at the time of the offense and “failed to produce a birth certificate or deferred ruling on the matter and R.T. was able to testify that she was twelve because it submitted uncorroborated evidence that R.T. was under the age of He next argues that the State did not meet its burden to prove R.T.’s age that R.T could testify to these same facts before the jury, which she did. usually had a birthday party on that day each year. The trial court then found

verdict of guilty. This appeal followed. and R.T.’s age. The trial court denied both motions, and the jury returned a

certificate or official record. She has no memory of her birth.” The trial court the conclusion that [the defendant] may have acted recklessly or negligently.” that “[n]o reasonable juror could have ruled out, beyond a reasonable doubt, two months earlier, her biological mother told her it was that date, and she State presented only circumstantial evidence of the mens rea of knowingly, and motion to dismiss for insufficient evidence. The defendant first argues that the On appeal, the defendant argues that the trial court erred in denying his

sleeping that particular night. the defendant went back to the cot in the recreation room where he was the State failed to submit sufficient evidence of the defendant’s mental state At the close of the State’s case, the defendant moved to dismiss, arguing

thirteenth birthday, and the State needs to introduce some kind of official birth

knew her date of birth because she had seen her birth certificate as recently as the jury, to establish her knowledge of her date of birth. R.T. testified that she the trial court heard foundation testimony from R.T., outside of the presence of After the State submitted its evidence, but prior to the close of its case,

and the defendant was standing over her. R.T. testified that when she moved,

her date of birth was.” The defense argued that “[R.T. is] very close to her going to testify [to her] date of birth [based upon] what somebody else told her cousin slept on the daybed, and two other cousins shared a pullout couch. birth. The defense objected on hearsay grounds, arguing that R.T. “is only her brother on a trundle bed that pulled out from underneath a daybed, one During the direct examination of R.T., the State asked R.T. her date of

fingers inside her vagina; her underwear and shorts were pushed to one side, testified that she awoke in the middle of the night when she felt the defendant’s before the other children and slept on the outside of the trundle bed. She R.T. testified that during one evening of the vacation, she went to sleep

and the children slept in a recreation room on the first floor. R.T. slept with July 5. During the vacation, the adults slept in bedrooms on the second floor and the defendant was standing over her. Based upon this evidence, and the

p. 3 fingers inside her vagina, her shorts and underwear were pushed to one side,

material element of an offense when he is aware that his conduct is of such

and examine each evidentiary item in context, not in isolation.” brother. She testified that one night she awoke when she felt the defendant’s acted knowingly. beach house, and that during her visit she slept in a trundle bed with her

have found guilt beyond a reasonable doubt.”

been excluded but, rather, whether other “A person acts knowingly with respect to conduct or to a circumstance that is a

however, we still consider the evidence in the light most favorable to the State

penetrated R.T., (2) when she was under the age of thirteen, and (3) that he Here, R.T. testified she was twelve years old when she vacationed at the

(quotation and brackets omitted). light of all the circumstances in the case.” DiNapoli, 149 N.H. at 516 jury is entitled to infer the requisite intent from the defendant’s conduct in reasonable inferences from it in the light most favorable to the State, could evidence have been excluded.” State v. Cobb, 143 N.H. 638, 658 (1999). “The

N.H. at 350. “The proper analysis is not whether every possible conclusion has burden to prove he acted knowingly, which RSA 626:2, II(b) (2007) defines as: Littlefield, 152

must exclude all rational conclusions except guilt. Under this standard, State. (2003) (quotation omitted). “When the evidence is solely circumstantial, it inferences arising therefrom in the manner most favorable to the 632-A:2, I(l). The State had the burden to prove that the defendant (1) sexually proven by circumstantial evidence.” of a motion to dismiss, we view the evidence and reasonable State v. DiNapoli, 149 N.H. 514, 516 minds or mental processes, a culpable mental state must, in most cases . . . be “Because persons rarely explain to others the inner workings of their

must prove that no rational trier of fact, viewing all of the evidence and all

(1992). We initially address the defendant’s argument concerning the State’s

See RSA 632-A:2, I(l); State v. Ayer, 136 N.H. 191, 194-95

The defendant was charged with one count of AFSA pursuant to RSA guilty of the crime charged. When reviewing the trial court’s denial

“[t]o prevail on his challenge to the sufficiency of the evidence, the defendant State v. Littlefield, 152 N.H. 331, 349-50 (2005) (quotation omitted). Moreover,

was insufficient to prove beyond a reasonable doubt that he was entirety, giving the State the benefit of all reasonable inferences, [t]he defendant had to establish that the evidence viewed in its

To succeed on his motions to dismiss, p. 4 4

that the witness must have a sound basis for the knowledge of the offense. the witness is permitted to testify as to his or her age or date of birth. presented a close question as to whether she was fifteen or sixteen at the time hearsay because he cannot have personal knowledge of the event.”

requests that in cases in which the victim’s age is an element, we adopt a rule Id. We held, however, that where there is a “practical basis for such knowledge,” knowledge was based upon a “discovered” birth certificate and the facts Id. at 1 p. 4 46. We noted that “[t]echnically, a person’s testimony as to his own age is the victim was under the age of sixteen at the time. 145. the argument. employee of the division of welfare and listed a “Deborah Lynn Ebelt.” Id. at motion to dismiss at the close of the State’s case; we thus address the merits of Ebert” and the birth certificate upon which she relied was discovered by an argument concerns the sufficiency of evidence, the issue was preserved by his She had been abandoned by a couple named “Aldrich.” She was called “Debbie she went by another name and celebrated a different birthday.” Id. at 146. knowledge of her age was the birth certificate; before she saw that document

Id. at 1 p. 4 45, 146. The victim testified that “the origin of her certificate or testimony from R.T.’s mother to corroborate R.T.’s testimony. He

State’s burden. He argues that the State should have submitted R.T.’s birth her age and date of birth, and that such evidence is insufficient to satisfy the The issue was whether the victim could testify as to her age when her

pursuant to RSA 632-A:3 (Supp. 1979), which required the State to prove that could have concluded “illuminates intent” In Ebelt, the defendant was charged with felonious sexual assault

support this request. objection from defense counsel. We conclude that because the defendant’s corroborated. The defendant points to State v. Ebelt, 121 N.H. 1 p. 4 43 (1981), to

without merit. The defendant argues that the State submitted only R.T.’s testimony of

defendant “ran back [to] the cot” where he was sleeping, conduct that the jury rational conclusion. Moreover, R.T. testified that when she moved, the fingers into R.T.’s vagina. There is no evidence that supports any other not preserved for appeal because R.T. was able to testify as to her age without insufficient evidence of R.T.’s age. The State initially argues that this issue was We next address the defendant’s argument that the State submitted

argument that the State failed to prove the requisite mental state is therefore doing and knew that it was wrong. DiNapoli, 1 p. 4 49 N.H. at 517. The defendant’s

could conclude that the defendant acted knowingly when he inserted his inferences to be drawn therefrom most favorably to the State, a rational jury p. 5 R.T. was twelve years old at the time of the offense based upon her testimony. pursuant to

trustworthiness and reliability” to justify its admission.

satisfy its burden. The jury could have found beyond a reasonable doubt that sound basis for his or her knowledge — making the testimony admissible

a practical basis for her knowledge, which possessed “the characteristics of earlier, and she celebrates her birthday on the same day each year. There was her birth certificate with the same date of birth as recently as two months

corroboration, and the State was not required to produce her birth certificate to this chapter.” RSA 632-A:6, I (2007). Provided the complaining witness has a

BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

testified that she learned her date of birth from her biological mother, she saw Affirmed.

have a different date of birth. As such, her testimony did not require of the victim shall not be required to be corroborated in prosecutions under Moreover, unlike Ebelt, there was no evidence at trial that R.T. could possibly insufficient to prove this element of the offense. We disagree. “The testimony Ebelt, 121 N.H. at 146. was inadmissible. Instead, the defendant argues that her testimony alone is

R.T. testified that she was twelve years old at the time of the offense. She

Ebelt — that evidence is sufficient to prove the element of age.

told by her aunt);

Here, the defendant does not argue that R.T.’s testimony as to her age

Id. testify as to her age, which therefore required corroboration to be admissible. facts in Ebelt, we concluded that the witness did not have a sound basis to that there must be corroboration. Ebelt, 121 N.H. at 146. Based upon the 803(19)). It is only where there is no sound basis for the witness’s knowledge (Iowa 1997) (holding witness testimony as to age falls under evidence rule

N.H. R. Ev. 803(19); State v. Mitchell, 568 N.W.2d 493, 500

her knowledge where she learned it from her adoptive parents, who had been N.H. at 146; see Tetrault, 78 N.H. at 15 (finding witness had a sound basis for possess requisite “characteristics of trustworthiness and reliability.” Ebelt, 121 an exception to the hearsay rule, the basis for the witness’s knowledge must (citing State v. Tetrault, 78 N.H. 14, 14-15 (1915)). To justify its admission as