2010-165 The State of New Hampshire v. Michael Moncada

Michael A. Delaney

No. 2010-165

Hillsborough-northern judicial district

felonious sexual assault, and one count of bail jumping. See three counts of aggravated felonious sexual assault (AFSA), ten counts of CONBOY, J. The defendant, Michael Moncada, appeals his conviction on

of the same household as the victim. We affirm. dismiss the AFSA charges for lack of sufficient evidence that he was a member stand trial; and (2) the Trial Court (Smukler, J.) erred in denying his motion to argues that: (1) the Trial Court (Duggan, J.) erred in finding him competent to (Supp. 2010); RSA 632-A:3 (Supp. 2010); RSA 642:8 (2007). On appeal, he

and orally, for the defendant. Pamela E. Phelan, assistant appellate defender, of Concord, on the brief THE SUPREME COURT OF NEW HAMPSHIRE

attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 The defendant offered to drive A.G. to Hampton Beach, and she agreed. After The next day, Lisa went to work and the two boys went to summer camp.

and the defendant made a down payment on the necklace. Lisa that they split the $100 cost and buy the necklace for A.G. Lisa agreed, looked at a gold necklace that had her name on it. The defendant proposed to her mother, the defendant, and the two boys to a flea market. There, A.G. finger and once with his penis. On the following Sunday, A.G. accompanied and A.G. were alone, the defendant sexually penetrated A.G twice with his night, Lisa and the two boys went to bed at about 9:00. While the defendant A.G. returned from North Conway on a Friday at the end of July. That

visited his Hayward Street apartment. her drug and alcohol use. However, the defendant retained and periodically often unavailable to supervise the children because of her work schedule and testified that the defendant was “basically taking care of the kids,” as she was drove Lisa to work in the morning and picked her up in the afternoon. Lisa week, cooked or helped with the cooking at night, and for a period of time, futon in A.G.’s room. The defendant took the boys to day camp during the nature of their relationship from the children. Anthony and M.W. shared a defendant slept on the couch because he and Lisa had decided to keep the began spending every night and eating their meals at Lisa’s apartment. The Around the time A.G. left for North Conway, the defendant and Anthony

his child. he wanted to spend the rest of his life with her, and that he wanted her to have During these communications, the defendant told A.G. that he loved her, that communicated through AIM, an Internet-based instant messaging service. father in North Conway. While she was there, she and the defendant After the school year ended, A.G. left to spend several weeks with her

Anthony began visiting Lisa’s apartment every day. defendant, and they began an intimate relationship. The defendant and their friendship. At the same time, Lisa became reacquainted with the had moved to an apartment on nearby Hayward Street, and the boys resumed to an apartment on Cypress Street in Manchester. The defendant and Anthony 2006, after a fire damaged the Beech Hill complex, A.G. and her family moved Anthony, lived in the same complex. Anthony and M.W. were friends. In May the Beech Hill apartment complex in Manchester. The defendant and his son, In early 2006, A.G., Lisa, and A.G.’s ten-year-old brother, M.W., lived in

defendant’s girlfriend, Lisa W. (Lisa). contact between the defendant and A.G., the thirteen-year-old daughter of the The record supports the following facts. The charges arose out of sexual

I. Facts p. 3 II. Competency that a defendant is competent to stand trial. Id The State bears the burden to prove, by a preponderance of the evidence,

“uncontroverted expert testimony, the trial court should delineate its reasons court. Id. When “a prima facie case of incompetency” is established through to the weight to be given to conflicting testimony, we will defer to the trial we find that no reasonable person could have come to the same conclusion as witnesses is for the trial court to determine.” Gourlay, 148 N.H. at 78. Unless testimony depends on the credibility of the witnesses, and the credibility of

This appeal followed. to be tried. State v. Gourlay him competent to stand trial, the jury found him guilty of the fourteen charges. contact with reality.” Haycock defendant is legally incompetent then he or she has a constitutional right not, 146 N.H. at 6 (quotation omitted). The defendant was subsequently indicted, and after the trial court found understanding” under the second prong, a defendant must have “sufficient Mental competence is a basic condition of a fair trial, and if a criminal Gourlay, 148 N.H. at 77 (quotation omitted). In order to have a “rational his attorney so as to be able to make informed choices regarding trial strategy.” only to aid in our analysis. State v. Ball requires that the defendant be capable of communicating “meaningfully with first consider his argument under the State Constitution, using federal cases (1960); State v. Haycock argues that the trial court erred in finding him competent to stand trial. We, 146 N.H. 5, 6 (2001). The first prong of the test proceedings against him.” Id Relying upon both the State and Federal Constitutions, the defendant.; see Dusky v. United States, 362 U.S. 402 understanding; and (2) a factual as well as rational understanding of the consult with and assist his lawyer with a reasonable degree of rational competency requires that a defendant have: (1) a sufficient present ability to

defendant and his son ceased spending their nights at A.G.’s apartment., 124 N.H. 226, 231-33 (1983). childhood and he was trying to be a father figure to her.” After that day, the with A.G. and told Riel that he had given her gifts because she “had a rough his relationship with A.G. The defendant denied any “inappropriate” contact police station with Detective Brian Riel. Riel questioned the defendant about evidence regarding the defendant’s interview later that day at the Manchester defendant’s interaction with A.G. at the pool. The jury did, however, hear

precluding evidence of a complaint made to the police regarding the disclosed to the jury because the trial court had issued a pretrial ruling defendant was stopped by Manchester police. The reason for the stop was not spent some time at a public swimming pool. After they left the pool, the spending an hour at Hampton Beach, they returned to Manchester where they defendant is competent to stand trial in the current case. p. 4 was speaking. With these provisos, it appears to me that this his side and monitor his understandings while the other attorney better to have a pair of attorneys so that one attorney could sit by which have been expressed in an abstract fashion. He would do accommodations in terms of time available to explain key issues which are commonly used in courtrooms, this defendant requires

Because of the defendant’s difficulties with abstractions[,]

In his written report, Dr. Adams concluded:

[parents] are in charge of her decisions, not her.” doesn’t get to say if she’s going to have sex because she’s too young. Her suggested that the defendant might understand if he were told, “a girl under 16 under 16 and therefore not able to consent to sexual activity.” However, he retain the concept of consent if he were given the explanation, “The victim is Adams did not believe that the defendant would be able to understand and not be able to understand and retain abstract explanations. For example, Dr. material, especially spoken or written abstractions, and, therefore, he would opinion, the defendant’s impediments inhibit his ability to process verbal and a verbal IQ that might be in the “mentally retarded range.” In Dr. Adams’s individual,” with an overall IQ in the “borderline intellectual functioning” range Dr. Adams concluded that the defendant was “a psychiatrically normal the requirement in Haycock not necessary to assist him during trial. He further asserts that, contrary to erred in ruling that he was competent and that a second defense attorney was reasonable degree of rational understanding. He argues that the trial court impaired his ability to sufficiently consult with and assist his lawyer with a

certain cognitive deficits. a psychologist retained by the defense. Both agreed that the defendant has were Dr. James J. Adams, the State’s forensic psychiatrist, and Dr. Eric Mart, Two experts testified at the June 30, 2009 competency hearing. They evidence established that he suffers receptive and expressive deficits that prong of the competency standard. He asserts that uncontroverted expert record was devoid of any explanation for his rejection of the expert’s report). judge substituted his own psychological expertise for that of the expert and the On appeal, the defendant argues that the State did not prove the first 1992) (holding a competency hearing to be procedurally insufficient where the testimony. See Lagway v. Dallman, 806 F. Supp. 1322, 1338-39 (N.D. Ohio reasons, supported by the record, for rejecting uncontroverted medical

record.” Haycock, 146 N.H. at 8. for rejecting that testimony and those reasons must be supported by the like to think in abstractions. Many, many people prefer to be p. 5 A. Some people are, you know, deal with abstractions very well,

dispute the prosecutor’s description of his comment as a “recommendation”: the defendant having two attorneys. Indeed, at the hearing, Dr. Adams did not testimony indicates that his competency finding was specifically conditioned on characterization of Dr. Adams’s opinion. Nothing in Dr. Adams’s report or his

the proceedings to the defendant].” We disagree with the defendant’s rested on his determination that current counsel could not [sufficiently explain 5 conditioned on the appointment of a second defense attorney” and “necessarily The defendant argues that Dr. Adams’s competency opinion “was

defendant will be able to understand the nature of the process.” proceedings to the defendant beforehand, and as they unfold, so that the the court finds that the defendant’s current attorney can explain the 2006, he read the defendant his Miranda recommended that a second attorney be appointed to represent the defendant, rational understanding.” Further, the trial court stated, “While Dr. Adams Detective Riel testified that when he interviewed the defendant in July present ability to consult and assist his lawyer with a reasonable degree of a “rational understanding of the proceedings against him and a sufficient with a concrete, rather than abstract, explanation,” and that the defendant had court found that the “defendant is able to understand concepts when coupled In concluding that the defendant was competent to stand trial, the trial

obligation. He had also written her numerous letters from prison. in legal proceedings for the purpose of seeking termination of his child support when searching for jobs or apartments. She also testified that he participated following conversations and that she had observed him reading the newspaper had never perceived that the defendant had problems understanding or about having touched the victim inappropriately. his children, and the testimony of Detective Riel. Tara Wright testified that she He was able to answer the detective’s questions, though he evaded questions the testimony of Tara Wright, the defendant’s ex-girlfriend and mother of two of he understood his Miranda At the hearing, in addition to Dr. Adams’s testimony, the State offered rights and did not ask any questions about them. rights. The defendant indicated that

ability to understand the material. courtroom proceedings was a greater impediment to his competence than his language very slowly,” and concluded that the defendant’s inability to follow reported that the defendant is “quite distractible” and that he “processes defendant to follow the trial proceedings in a meaningful way. Dr. Mart assessment, he believed that it would be difficult, if not impossible, for the stand trial. Although Dr. Mart agreed with Dr. Adams’s overall diagnostic Dr. Mart disagreed and concluded that the defendant was incompetent to defendant beforehand and as they unfolded. See p. 6 defendant’s current attorney could adequately explain the proceedings to the Adams’s report or testimony contravenes the trial court’s finding that the issues during the course of trial. We do not conclude that anything in Dr. attorney, and suggested that a second attorney might help to explain abstract observed that the defendant might require extra time to consult with his Thus, in Dr. Adams’s opinion, the defendant was competent. He simply

gathering something and inquiring about it. That might help him.

listening and watching him, and getting a sense of when he’s not A. Yes. I thought that might help if there’s an attorney kind of

the Federal Constitution under these circumstances, see Because the State Constitution provides at least as much protection as

Constitution as we do under the State Constitution. defendant so he has a better concrete handle on what’s going on? 77; Dusky, 362 U.S. at 402, we reach the same result under the Federal trial to kind of explain what the abstract issues are to the Gourlay, 148 N.H. at

term alcohol abuse, and a prior learning disability). impairment stemming from a self-inflicted gunshot wound to his head, longfact that both parties’ experts agreed that the defendant suffered from cognitive (affirming the trial court’s finding that the defendant was competent despite the defendant was competent and did not require a second attorney. See id. at 76 defer to the trial court’s determination that, in spite of his deficits, the no reasonable fact finder could have found as the trial court did. Therefore, we Given all the evidence on the competency issue, we cannot conclude that

be given testimony . . . is for the trial court to determine.” (quotation omitted)). second attorney be appointed to assist during the course of the Adams’s opinion than Dr. Mart’s. See Q. Okay. And is that the basis for your recommendation that a Gourlay, 148 N.H. at 78 (“The weight to trial court to delineate specific reasons for according more weight to Dr. medical evidence of the defendant’s incompetence, there was no need for the just one of his qualities. abstractions. But it’s not in the mentally retarded range, and it’s Further, because the trial court was not faced with uncontroverted

record). 568 (2002) (upholding a trial court’s factual findings as supported by the

think this defendant has a low level of being able to do that sort of thing. It’s part of the range of human abilities, and I

find in people who do concrete, simple work, mechanical work, concrete. Concreteness is a quality, you know, which we ordinarily p. 7 Hearns

tenant in a rooming house. than a parent. Such a definition would not include a [boarder] or a children who are under parental-type control of a person other guilt beyond a reasonable doubt. State v. Evans the maintenance of the household. Such a definition may include inferences from it in the light most favorable to the State, could have found any person who is a member of and participates and contributes to prove that no rational trier of fact, viewing all of the evidence and all reasonable

occasionally drove her to work. He cooked or helped with the cooking in the defendant was in an intimate relationship with A.G.’s mother, Lisa, and household. Both he and his son spent every night at A.G.’s home. The as A.G. He participated in and contributed to the maintenance of the that at the relevant time the defendant was a member of the same household Having reviewed the record, we conclude that there was ample evidence

Dictionary maintaining a single economic unit. Household members include 1096 (unabridged ed. 2002). living together in the same dwelling place.” Webster’s Third New International To successfully challenge sufficiency of the evidence, a defendant must a family: a domestic establishment; specif: a social unit comprised of those definition of “household”: “those who dwell under the same roof and compose , 151 N.H. at 234-35 (quotation omitted). The dictionary provides this

A household is a group of persons living in the same residence

37 (1994). In p. 7 Hearns, we upheld the use of a jury instruction that stated: term. See State v. Hearns, 151 N.H. 226 (2004); State v. Paglierani, 139 N.H. that the term was “self-explanatory.” We have previously declined to define the court did not define “household member” for the jury, but instead instructed The term “household member” is not defined in the statute. The trial

asserts that the trial court’s ruling was legally erroneous. A.G.’s household. The trial court denied the motion. On appeal, the defendant the grounds that there was insufficient evidence that he was a member of of the State’s evidence, the defendant moved to dismiss the AFSA charges on . . . the actor is a member of the same household as the victim.”). At the close [when] . . . the victim is 13 years of age or older and under 16 years of age and assault if such person engages in sexual penetration with another person . . . 632-A:2, I(j)(1) (“A person is guilty of the felony of aggravated felonious sexual the defendant was a member of the same household as the victim. See RSA To convict the defendant of these offenses as charged, the jury had to find that his sexual penetration of A.G. on the night she returned from North Conway. The defendant was convicted on three counts of AFSA, stemming from

III. Sufficiency of the Evidence p. 8 8

DALIANIS, C.J.