2009-027, State of New Hampshire v. Christopher Horak

The defendant, Christopher Horak, appeals his conviction of

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Orville B. Fitch, II, acting attorney general (Thomas E. Bocian, 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. 2009-027 editorial errors in order that corrections may be made before the opinion goes Manchester District Court 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 2

personal obligation to tell the truth.”

gratification. narrate as well as understand the duty to tell the truth’ . . . .” findings that the witness ‘lacks sufficient capacity to observe, remember and competent to testify, . . . [a]lthough this presumption may be overcome by

to testify. We address the second issue first.

conclusion that the witness is competent is entitled to great deference.” distinguish the truth from a lie, as well as [her ability] to appreciate her contends that the record fails to demonstrate both the complainant’s “ability to respect to an understanding of the duty to tell the truth. Specifically, he R. Ev. 601(b)). The defendant challenges the complainant’s capacity with construed as being for the purpose of sexual arousal or Id. (quoting N.H. trial court.” his bare penis, to which she complied, which can be reasonably to wit: did expose his bare penis to her and then told her to touch Under New Hampshire Rule of Evidence 601, “[w]itnesses are presumed

she was mentally defective; and ( p. 2 2) ruling that the complainant was competent v. Briere, 138 N.H. 617, 620 (1994). having committed sexual assault, in that: State much depends on the trial court’s firsthand observations of the witness, its (2001) (explaining unsustainable exercise of discretion standard). “Because so 569, 571 (1992) (quotation omitted); see State v. Lambert, 147 N.H. 295, 296 absent an [unsustainable exercise] of discretion.” State v. Aikens, 135 N.H. the court’s determination of competency, we will not disturb that determination

State v. Mills, 136 N.H. 46, 49 (199 p. 2 2). “Where the record supports

“Whether a witness is competent to testify is a question of law for the complainant] 08/18/85, whom he knows to be mentally defective,

both that the complainant was mentally defective and that the defendant knew police were contacted, and the defendant was charged by complaint with appeal, he argues that the trial court erred in: (1) finding that the State proved The defendant was tried in Manchester District Court and convicted. On

disorders and developmental disabilities. Center, an organization providing services for people with acquired brain weekdays, while her mother worked, the complainant attended the Moore [The defendant did] [p]urposely engage in sexual conduct with [the

about an incident that had occurred with the defendant that morning. The off at the Moore Center. The complainant was crying and informed her nurse On April p. 2 24, 2008, the complainant’s mother dropped the complainant

and assistance with showering, dressing and brushing her teeth. On was born with disabilities and required daily care such as changing her diapers p. 3 “Because I have to get it out.” complainant why she would want to tell the truth and the complainant stated,

complainant answered, “The truth.” The prosecutor then asked the

nurse] wasn’t there when we met before, is that the truth or is that a lie?” The a prior meeting with the prosecutor, the prosecutor asked, “[I]f I said that [the after the complainant testified that she, her mother, and her nurse had been at

or would that be a lie?” The complainant responded, “The truth.” Similarly,

Q. Can you say that again . . . ?

A. Oh, well, sometimes to lie. prosecutor asked, “So if I told you it was hot out today, would that be the truth sometimes lie?” The following exchange then took place: On voir dire, the defense attorney asked her whether it is “okay to

After the complainant testified that it was very cold out that day, the

A. Of course.

Q. And do you want to tell the truth? truth and a lie? A. No, I’m not sure about the lie.

Q. Is it good or bad to tell a lie?

A. I’m not sure about that.

Q. And is it -- is it good or bad to tell the truth?

A. Yeah.

Q. And now do you know the difference between telling the

On direct examination of the complainant, the prosecutor inquired:

understanding is sustainable, we examine the record in some depth. determine whether a finding that the complainant possessed such an “demonstrated that she knew the difference between a lie and the truth”). To witness understood the duty to tell the truth where, inter alia, she State v. St. John, 120 N.H. 61, 63 (1980) (evidence supported finding that where, inter alia, witness “was able to distinguish between the truth and lies”); Brown, 138 N.H. 649, 653 (1994) (record supported finding of competency understanding of the distinction between the truth and a lie. See State v. Implicit in an understanding of the duty to tell the truth is an complainant. The court asked: p. 4 before a witness testifies, the court stated that it had one more question for the of the trial.” After concluding that it must make a determination of competency

lying or telling the truth?” The complainant answered, “A lie.” complainant what the judge was holding was a glass, “would that person be “What do you mean?” The judge again asked whether, if someone told the

defer making a competency evaluation, allow the complainant to testify and assault, to which defense counsel objected. The prosecutor urged the court to it meant to tell the truth. In response, she appears to have tried to recount the A. What do you mean?

lies? THE COURT: . . . Can you tell me what happens if somebody

“would I be lying or would I be telling the truth?” The complainant responded,

happened. The court then asked the complainant to explain in her own words what out. I’m here to tell the truth. I’m here to tell the truth of what Oh, man, I can’t remember anything of this, oh, God. I can’t get it all

“Pen,” the judge asked whether, if he told her what he was holding was a glass, complainant to identify what the judge held in his hand, to which she replied, Finally, the trial court questioned the complainant. After asking the

A. That’s a hard question to ask. I don’t -- I don’t know what it is. remember anything. Q. When it’s okay to lie?

A. What’s that?

Q. Can you tell us one of those examples?

A. Yeah.

Q. So can you think of any examples when it’s okay to lie?

don’t know what is a lie. I don’t know a lie. I can’t remember. I can’t A. Well, that’s a hard question. I don’t know what is a lie, but – I

Q. When is [it] okay to lie?

A. Sometimes is a lie. probability, at some point get one answer right. Thus, the defendant asserts: p. 5 competency, as a witness giving random answers, would, as a matter of a lie and the truth does not render the witness incompetent to testify.” 5

complainant] was.

complainant had responded incorrectly.

We cannot agree with the State that “[a]fter confusing Justice Brock stated in his dissent in demonstrate that she understood the difference between the truth and a lie.

correct answer among a number of incorrect ones cannot establish proposition that “the failure of a witness to state clearly the difference between

[the complainant] did, and be deemed competent, as [the Mills, 136 N.H. at 54 (Brock, C.J. dissenting). type of question that both parties had previously posed and to which the indication of the witness’s understanding must be apparent on the record.” between the truth and a lie or the importance of telling the truth, some utter any ‘magic words’ indicating that he or she understands the difference

impaired thirteen year old girl). We do not disagree; nevertheless, as Chief answer, considered together with her prior incorrect ones, does not Pettis, 488 A.2d 704, 706 (R.I. 1985) (involving testimony by a mentally

to call his pen a glass.” The defendant, on the other hand, argues that a single The State cites a number of cases from other jurisdictions for the general the truth, that people got into trouble when they lied, and that it would be a lie define ‘truth;’ or ‘lie,’ . . . she was able to tell the court that she wanted to tell as [the complainant] did, eventually can get one answer “right,” as and highly leading questions about the ability to testify truthfully, shows only that the trial court was able to elicit a correct response to the same any witness. Nearly any witness can fail to answer several basic the trial court was able to cut through the confusion.” Rather, the record

We agree with the defendant that the complainant’s single correct

determination of competency. It contends that although she “was unable to

establish competency, Rule 601(b) hardly filters the testimony of [A]s a policy matter, if [the complainant’s] testimony suffices to

happens to people?

The State asserts that the complainant’s answers support the

The court then ruled that the complainant was competent to testify.

A. Oh, boy. They get in trouble when they lie.

happens if somebody lies? They don’t tell the truth? What do you think THE COURT: Well, that’s what I want to know from you. What p. 6 Supreme Court’s standard under the Federal Double Jeopardy Clause.

could have found guilt beyond a reasonable doubt.” and all reasonable inferences from it in the light most favorable to the State,

adopt for purposes of our state constitutional analysis the United States

defendant must prove that no rational trier of fact, viewing all of the evidence Hampshire and United States Constitutions would preclude a new trial.”

Jeopardy Clause does not preclude retrial”). expressions of confusion over the concepts of truth and falsehood.

493, 497 (1996): N.H. 331, 350 (2005) (quotation omitted). We held in State v. Frost, 141 N.H. complainant that we previously concluded was erroneously admitted; thus, we State v. Littlefield, 152

“To prevail on his challenge to the sufficiency of the evidence, the to support the conviction, the Double Jeopardy Clauses of both the New

not ― would have been sufficient to sustain a guilty verdict, the Double complainant’s prior faulty attempts to distinguish the truth from a lie and her offered by the State and admitted by the trial court ― whether erroneously or Lockhart v. Nelson, 488 U.S. 33, 34 (1988) (holding that “where the evidence

sufficient, however, we consider all the evidence, including the testimony of the competency in light of the totality of the responses”), v. Fuller, 147 N.H. 210, 213 (2001). In determining whether the evidence was competent is entitled to great deference.” State

defective. “We address this argument because if the evidence was insufficient complainant is mentally defective and that the defendant knew she is mentally The defendant also argues that the State failed to prove that the incorrect statement as a lie, that answer must be assessed in context with the competency. Although the complainant was eventually able to identify an demonstrate that she understood the duty to tell the truth. the distinction between truth and falsehood, and therefore failed to complainant’s testimony, as a whole, fails to demonstrate that she understood 482 (Ill. 2001), cert. denied, 534 U.S. 1105 (2002). We conclude that the

imperfect response to a question is insufficient to invalidate a finding of v. Sutherland observation of the witness, the trial court’s conclusion that [a witness] was, 743 N.E.2d 1007, 1014 (Ill. App. Ct. 2000) (noting that “one

The record in this case simply fails to support the trial court’s finding of

sufficient evidence in the record to ground the finding.” Id. (emphasis added). not whether we would have ruled as the trial court did, but whether there is omitted). Such deference is not, however, absolute. Rather, “[t]he question is

(quotation omitted). Thus, in general, “[b]ecause so much depends upon his

the opportunity to observe the complainant’s demeanor firsthand, while we, in We also acknowledge, as the State emphasizes, that the trial court had from a mental disorder or defect.

p. 7 competency as a witness, all support a finding that the complainant suffers

own testimony which, as we concluded above, failed to establish her with acquired brain disorders and developmental disabilities, as well as her attendance at the Moore Center, an organization providing services for people

‘mentally defective’ element.”

demonstrated that her disabilities were mental as well as physical: her

calling out to her mother . . . undercut[s] the State’s claim with regard to the mentally wrong” with her).

factually distinguishable.

stop and eventually forced him to stop, demonstrating a clear lack of consent assault. The evidence in Call indicated that the victim told the defendant to Call is also factually distinguishable on the issue of resistance to the not allowed to testify as to the complainant’s medical diagnosis, the evidence The emphasis is on the individual’s she resisted [the defendant’s] advances, by telling him to leave her alone and was “handicapped,” “looked mentally retarded” and that there was “something conduct, including its potential to cause pregnancy or disease.

of the victim’s disabilities and limitations was apparently less specific, is

or explain the victim’s mental condition” in

activities such as dressing and maintaining hygiene. Although the mother was and nurse testified as to the complainant’s need for assistance with daily within the meaning of the statute; and (2) the complainant’s “testimony that had been born with disabilities, and that she cannot read. Both the mother way the physical nature and consequences of his or her sexual the act.” Id. Here, there was evidence from the complainant’s mother that she that the victim was mentally defective. He asserts that, as in alone, nothing indicates that the victim was incapable of legally consenting to in Call was just one ground for the conclusion that “[o]n this state of the record required expert testimony on this issue. Rather, the absence of such evidence

While we took note of the lack of expert or medical testimony “to describe as the decision is legitimately the person’s own.

was no expert or medical testimony that the complainant is mentally defective prong addresses a person’s capacity to appraise in a meaningful choice whether or not to engage in sexual conduct. The second Call: (1) there which we found the evidence insufficient to prove beyond a reasonable doubt defect” and (2) is incapable of freely arriving at an independent The defendant likens this case to State v. Call, 139 N.H. 102 (1994), in

whatever evaluative process the person chooses to employ, as long about physical consequences and to make a decision based on

632-A:2, I(h) only if he or she (1) suffers from a “mental disease or [A] complainant is “mentally defective” within the meaning of RSA statute.” We conclude that the evidence on this point was sufficient.

p. 8 that [the complainant] was mentally defective within the meaning of the

the light most favorable to the State, lead to only one conclusion: that he knew pertinent time and his firsthand awareness of her level of impairment, taken in The State argues that the defendant’s “observations of her confusion at the

out, the complainant testified about her confusion at the time of the assault.

whether or not to engage in sexual conduct.” We disagree. As the State points

contends that the State “did not prove he knew she was incapable of choosing complainant’s mental and physical limitations. The defendant nevertheless that no rational trier of fact could find that the defendant knew about the

and that he would help put the complainant to bed. Thus, we cannot conclude

not in isolation.”

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

mother for nine years, that he was living with them at the time of the assault

light most favorable to the State and examine each evidentiary item in context,

exclude all rational conclusions except guilt.” from it in the light most favorable to the State,” rational trier of fact, viewing all of the evidence and all reasonable inferences state is proven through circumstantial evidence,

The evidence indicated that the defendant had dated the complainant’s mentally defective within the meaning of the statute.

Id. (quotation omitted). consequences of . . . sexual conduct.”

Nevertheless, in employing this standard, “we still consider the evidence in the

514, 516 (2003), and, “[w]hen the evidence is solely circumstantial, it must

touch it? Why are you doing that?” On this record, we cannot say that “no complainant is mentally defective. Generally, a defendant’s culpable mental defective” element, it failed to prove that the defendant knew that the The defendant next contends that even if the State proved the “mentally

conclude that the evidence was sufficient to show that the complainant was

“capacity to appraise in a meaningful way the physical nature and (quotation omitted), could have found that the complainant did not have the

was, “what are you doing? . . . And I’m like, why are you trying to make me confusion about the sexual act taking place. She testified that her reaction me alone” and tried to call out for her mother, her testimony indicates 04. Here, while the complainant testified that she told the defendant “to leave and, by negative inference, possession of the capacity to consent. Id. at 103-