State of New Hampshire v. Kierran Pierce

II. Whether the trial court erred in denying the defendant’s mistrial motion.

III. Whether the evidence was sufficient to convict the defendant of attempted aggravated felonious sexual assault.

In January 2020, the Belknap County grand jury indicted the defendant with three aggravated felonious sexual assaults (AFSA) and one attempted AFSA, contrary to RSA 632-A:2. SA 5, 7-91. Two of the AFSAs alleged that the defendant digitally penetrated the victim’s vagina, the third AFSA alleged that the defendant touched the victim’s vagina with his hand, and the attempted AFSA alleged that the defendant “tried to put his mouth on [the victim’s] vagina.” Id. All of the charges were committed against the victim when she was ten years old in September 2016. Id. Following a two-day trial in November 2022, the jury found the defendant guilty of the AFSA alleging that the defendant touched the victim’s vagina and the attempted AFSA. T 216-220. After the State rested, the parties agreed to dismiss the two AFSAs alleging penetration. T 154-55. On December 13, 2022, the trial court (Leonard, J.) sentenced the defendant to six to twelve years stand committed on the AFSA conviction and ten to twenty years all suspended for fifteen years upon release on the attempted AFSA conviction. SA 11-21. This appeal followed.

At the time of trial, the victim was sixteen years old. T 28. When the victim was ten years old, she was living in New Hampton, New Hampshire with her older brother, her younger brother, and her grandparents. T 31, 33- 34. The victim’s grandparents had custody of the victim and her younger brother since she was an infant. T 92.

When the victim was ten, the defendant, who was her grandfather’s godson and nephew, stayed with them for a few days. T 34, 93. This was the first time that the victim remembered meeting the defendant. Id. The defendant arrived at the victim’s house on September 23, 2016 to help the victim’s grandfather “do some drywalling.” T 96, 99. It was common for the victim’s grandfather to invite family members to help him with his work. T 97.

The first day the defendant arrived, he tried to “conversate” with the victim and her younger brother while they were in the living room to help them feel comfortable around him. T 35-37. While this was happening, the victim’s grandmother was in the kitchen and her grandfather was in his bedroom. T 36.

During the defendant’s conversation with the children, the victim began playing with a “push car” that she sat on and used her feet to push herself around on while the defendant sat in a reclining chair. T 36-37. At some point, the defendant moved the victim from the push car to his lap on the reclining chair by hugging her and pulling her on top of him. T 37. She felt “really uncomfortable” being on the defendant’s lap because she did not know him and did not want to be on his lap. T 38. The defendant “bear hug[ged]” the victim as she sat sideways on his lap. T 39. The victim got off of the defendant’s lap and went to her bedroom down the hall from the living room and played video games. T 32-33, 39. At the time, the victim had her own bedroom. T 40. In the middle of the room was a big, green, reclining chair. T 40-41. On the left side of the room was the victim’s bed. T 40. Next to the door was her dresser with her television on top. Id. The victim played video games for a couple of hours with her bedroom door shut. T 41. At some point, the victim heard a few knocks on her bedroom door. T 42. The victim ignored the knocks, but after a few more knocks, she “got [] annoyed with it” so she opened her door, and the defendant was standing there. Id.

The victim asked the defendant why he was standing in her doorway and the defendant said that he was “just looking around, ” and proceeded to walk into the victim’s bedroom. T 42-43. He stood in her bedroom for a few minutes before sitting in her green chair. T 43. The victim was confused about why he was in her bedroom because she did not know the defendant well. T 43-44. After he sat down, the victim continued playing video games. T 44. After a few minutes of silence, the defendant tried to start a conversation with the victim to “make [her] more comfortable with him being in there.” Id. After a few minutes of conversation, the defendant “pulled [the victim] onto his lap.” T 45. The victim was sitting sideways on the defendant’s lap. T 47.

The defendant continued trying to talk to the victim to make her feel comfortable, although she did not remember what the defendant said to her. T 46. When she tried to get off of his lap, the defendant pulled her “back in with a bear hug.” T 47. The victim continued to struggle to get away from the defendant while he continued to “bear hug” her. T 47-48. While hugging her, the defendant also “started getting really touchy” by using his hands to touch her torso and her vagina. T 48-49. When the defendant touched her vagina, the victim “basically gave up struggling to get off.” T 50. The defendant turned the victim so that she was face-to-face with him, and he tried pulling her pants off. Id. To do this, the defendant put the victim’s back on his legs so that she was looking up at the ceiling and moved her legs up towards him, “kind of like how you change a baby.” T 50-51. The defendant used both of his hands to pull the victim’s jeans down to her knees. T 52. She remembered wearing underwear at this time, but did not remember where her underwear ended up while the defendant was touching her. T 52. Then, the defendant touched her legs and her vagina with his hands. T 53-54. She said that he only touched the outside of her vagina. T 54.

The victim said that while this was happening, she was trying to “get away.” T 54. Eventually she did “get away” by pushing herself off of the defendant’s lap with her legs after repositioning herself to face away from the defendant. T 54-55. Once she was off of the defendant’s lap, she pulled up her pants and ran “straight down to the other side of the trailer to [her] grandparents’ room.” T 55. When she reached their door, she “banged on their door, trying [] to get them to come to the door and answer it.” T 56. When she was banging on their door, she “had a lot of emotions running through [her] body.” Id. When her grandparents did not answer the door, the victim opened the door and told them what happened with the defendant. T 56-57. They did not believe her, so she went into her younger brother’s room and told him what happened. T 57.

The victim’s grandfather said that when the victim told him about the defendant’s behavior the first night, she did not tell him that the defendant touched her vagina. T 121. The victim’s grandfather then spoke with the defendant and told him to “cut it out.” T 101-02. The following day, the victim’s grandfather had a conversation with the defendant “about the huggy, squeezy, touchy thing and pretty much how when the kids don’t want to be held like that or grabbed or whatever, that he should just leave them alone.” Id. In response, the defendant said that he was “just being affectionate.” T 102-03.

The victim’s grandfather remembered that when the defendant first arrived, he was “huggy” and “hugging the kids a lot.” T 100. Specifically, the defendant “grab[bed] them and [held] them and squeeze[d] them and you know, sh[ook] them a little bit.” Id. The defendant hugged the children in this manner “the entire weekend.” Id. The victim’s grandfather also remembered that the children did not like how affectionate the defendant was, but that “other than being a little touchy and grabby, it was really – not really any problem[].” T 101.

For the next two days, the victim avoided the defendant by spending time with her younger brother. T 57. Two days after the first sexual assault, the victim was in her bedroom playing video games when the defendant entered her bedroom without knocking. T 58. The defendant stood around for a few minutes and then sat down in the green chair. T 59. The victim was confused as to why the defendant was in her bedroom. Id. The defendant tried to talk with the victim for a few minutes to make her more comfortable with him. Id. Then, the defendant asked the victim to sit on his lap. T 60. She did not go to his lap, so the defendant pulled her onto his lap so that they were face-to-face like he had done the first time. T 60-61. Then, the defendant repositioned the victim so that her back was on his legs, she was looking at the ceiling, and her legs were up by his head. T 61. As he repositioned the victim, he told her that “it was okay.” T 62. The defendant then touched the victim “all over [her] body” for a “few minutes.” T 63. The victim struggled to get herself off of the defendant’s lap, but the defendant “pull[ed] [her] back in every time” she tried to get away. Id. The defendant pulled the victim’s pants down to her knees and touched her legs and her vagina under her underwear with his hands. T 64-65. The victim felt the defendant trying to put his fingers inside her vagina. T 65-66. At one point, the victim lifted up her head and saw the defendant’s mouth move closer towards her vagina. T 66. She explained that the defendant also moved her vagina closer to his mouth by lifting her up by her waist and moving her closer to him. T 66-67. Before the defendant could put his mouth on her vagina, the victim got away from the defendant. T 67.

The victim pulled her pants up and ran to her grandparents’ bedroom. T 68. Both of her grandparents were in their bedroom and the victim “tried to convince [her] grandfather that it was happening.” T 68-69. The victim’s grandfather did not believe what the victim told him about the defendant at first. T 69. The victim wrote her grandfather a note about the assaults. Id. After her grandfather read the note, he pulled her aside and asked her what “actually was happening, what was going on, and [] how long it’s been going on.” Id. Then, her grandfather spoke with the defendant in the living room. Id. After that conversation, the victim did not see the defendant again. T 70.

The victim’s grandfather remembered that, on September 25, 2016, the morning of the defendant’s last day with them, he had planned to tell the defendant that he had to return home because the work he had done “wasn’t really productive” and because the children “weren’t really happy about him being there.” T 103.

After he saw the letter from the victim saying that the defendant “touched her privates, ” he tried to call the defendant’s father, but did not reach him. T 104, 106. The victim’s grandfather did not call the police. T 106. He tried to talk to the victim, but she would not talk to her grandfather about the defendant. Id. After the assaults, the victim stopped going to school, stayed home more often, and felt uncomfortable around people she knew. T 72. The victim’s grandfather scheduled therapy appointments for the victim for a couple years until the victim found a therapist she preferred. T 108-09. Then, in 2018, the victim told a therapist about the defendant’s assaults and the therapist contacted the Division for Children, Youth, and Families (DCYF). T 74-75, 109. The victim was then interviewed at the Child Advocacy Center (CAC). T 75. At the CAC, following the victim’s interview, New Hampton Police Sergeant Cunningham asked the victim’s grandfather a few questions. T 129-30. He appeared nervous, was evading the sergeant’s questions, and “wouldn’t really give [the sergeant] an answer.” T 130. Despite his evasiveness, the victim’s grandfather gave the sergeant the victim’s note that she had written to him about the defendant that her grandfather had kept in a zippered pocket in his wallet. T 109, 130. The note “looked old, ” looked like it had been folded, and parts of it were difficult for the sergeant to read. T 142. The sergeant said that the “gist of the note” was that the defendant had touched the “children” inappropriately. T 132. The sergeant agreed that the note said that the defendant had touched the victim’s “privates.” T 141.

During the police investigation, the sergeant agreed that she did not go to the house in which these assaults occurred to ask the new occupants if she could photograph the interior or the exterior of the house or measure the rooms inside the house. T 145-46.

The State rested its case on the second day of trial. T 154. The defendant moved to dismiss all the charges. Id. Relevant to this appeal, the defendant argued that the victim had not identified the defendant in the courtroom as the man who sexually assaulted her. T 155. The defendant also argued that there was no testimony from which the jury could infer that the defendant’s intention was to perform cunnilingus on the victim rather than to simply “get a better look or a better view at something.” T 155-56. The State did not object to the dismissal of the two AFSAs alleging penetration. T 154. As to the remaining charges, the State argued that there was sufficient evidence to identify the defendant as the man who sexually assaulted the victim because the victim testified that her grandfather’s godson assaulted her, and the victim’s grandfather testified that he only had one godchild. T 156-57. The State also argued that the only “real rational explanation” for the defendant’s behavior was that he took a substantial step towards the commission of an AFSA when he grabbed the victim’s hips and raised her vagina up towards his face. T 157. The State also argued that it would not be rational to conclude that a person would “grab a child by the hips and raise them up towards their mouth to get a better look.” Id. The trial court denied the motion to dismiss, finding that the State presented sufficient evidence to identify the defendant in court and to prove that the defendant took a substantial step toward committing AFSA. T 158. Following this, the defendant rested. T 170.

During Sergeant Cunningham’s testimony, the State asked her about the “gist of the [victim’s] note.” T 130. Defense counsel objected, citing the “best evidence rule, ” or Rule of Evidence 1002, arguing that the witness did not need to summarize the note because it could be admitted as an exhibit. Id. In response, the State said it had to elicit a summary of the note because it could not admit the note as an exhibit since the parties had “severed the trials between the two [children] and [the victim’s] brother also allege[d] sexual abuse by the defendant, so [the State has] to do it that way.” T 131. While no one read the note into the record, presumably the victim’s note said that the defendant had sexually abused both her and her brother because, after defense counsel reviewed the note, he withdrew his objection to the sergeant’s testimony. T 131-32.

The State then asked the sergeant again about the “gist” of the note. T 132. The sergeant said, “[s]o the gist of the note, it was to [the defendant]. And it – it stated something to the effect of, [the defendant] touched me and, ” at which point the State said, “[a]gain, what is the gist of, ” at which point the sergeant interrupted the State and said, “[t]hat – that the children had been touched inappropriately.” Id. Defense counsel objected and the parties approached the bench. Id. Defense counsel told the trial court that he thought the sergeant had said that the children had been touched inappropriately. Id. The trial court said that it heard that, and the State said that it “obviously [did not] think it [was] admissible evidence” and “that’s why I’ve been trying to dance around this.” Id. Defense counsel requested a “moment” to speak with the defendant about what “relief” to seek. T 133. The trial court took a recess. Id.

Upon return, defense counsel requested a mistrial based on the testimony that “the children, plural, had been touched inappropriately, ” despite the trials being severed. T 134. Defense counsel cited State v. Kerwin, 144 N.H. 357 (1999), in which this Court held that a mistrial was appropriate because a witness testified that the defendant had committed a second sexual assault against another individual. Id. The State argued that a mistrial was not warranted. T 135. The State contended that Kerwin was distinguishable from the defendant’s case because in Kerwin, a witness testified that the defendant “raped some girl, ” while in the defendant’s case, the jury had heard testimony already about the victim’s note in which she had written that the defendant sexually assaulted her. T 136-37. The State also argued that the jury had only heard the sergeant say that the note said that the defendant touched the children because the State spoke over the sergeant when she said the word inappropriately. T 135-37. The State requested that the trial court provide a curative instruction in lieu of a mistrial. T 136-37.

Defense counsel responded that a mistrial was necessary in Kerwin because the witness’s statement “unambiguously conveyed to the jury the fact that the defendant allegedly had engaged in similar culpable conduct, namely the sexual assault of a girl.... it was similar conduct of sexual assault of a girl just as he was on trial for sexual assault of a girl.” T 137. Because the sergeant said that the defendant had touched the children inappropriately, defense counsel argued, Kerwin was analogous. Id. The trial court said that “the testimony so far ha[d] been that [the defendant] was very touchy with the children and handsy and all that conduct.” T 138. The trial court then denied the motion for a mistrial based on this testimony and its review of Kerwin. Id. The trial court also instructed the State to lead the sergeant through her testimony regarding the note. T 138-39.

Defense counsel asked if the trial court intended to provide a curative instruction to the jury. T 140. The trial court declined to provide a curative instruction, saying that an instruction would draw attention to the testimony. Id. The trial court also stated: “the testimony had been that [the defendant] was very touchy. And [the sergeant] didn’t say about touching – inappropriately touching, so my concern is if I do something it’s going to highlight it and perhaps create more confusion with the jury. And in fact, give more emphasis to it than was warranted. And we’ll see how the testimony goes. I – we’ll certainly revisit that if appropriate.” Id.

On October 13, 2022, the defendant filed a one-page motion requesting a view of 89 Kelley Pond Road in New Hampton, the residence at which the defendant sexually assaulted the victim. DA 9. The motion asked the trial court to order the owners of that residence to “make the home available for a view during trial in this matter.” Id. On October 14, 2022, the State objected, arguing that the victim and her family no longer lived at that residence and neither the victim, nor her family, nor the parties knew if the residence was “in the same state as it had been at the time of the alleged incidents back in 2016, ” making a view of the residence irrelevant. DA 11-12. The State also argued that, if the trial court ordered a view, the trial court would need to provide notice to the new owners to allow them an opportunity to assert their privacy rights in their home by objecting to the view. DA 12.

On October 25, 2022, the trial court denied the defendant’s motion for a view “given that the State, the defendant and the victim have no control over the residence.” DA 9.

On October 31, 2022, following jury selection, the parties discussed the defendant’s motion for a view. JS 127-134. The defendant argued that, in prior trials, trial courts had ordered views of residences that were no longer occupied by any witness in the trial. JS 127. He also argued that the view was “necessary for the jury to have [as] evidence in order to give [the defendant] a fair trial.” Id. The defendant then offered to explain to the trial court the specific reasons why the view was necessary, but only during an ex parte hearing so as not to reveal his trial strategy to the State. JS 127-28. The State argued that, in addition to not knowing who owned the residence at the time of trial, it did not “know what or if any alterations have been made, what, if any, items [were] in the rooms that would change, ” and that a view could result in “misleading evidence.” JS 128.

The trial court granted the defendant’s request for an ex parte hearing on the motion for a view. JS 129. During that hearing, the defendant argued that the view was necessary because the victim alleged that one of the sexual assaults occurred “out in the open in the living room” and, as such, it would be “important for the jury to see how open that would be, how readily visible that would have been.” JS 129-30. The defendant also argued that it was necessary to show how closed the “quarters” were when the victim was sexually assaulted and how close the victim’s family members were to the victim’s room when the assaults occurred. JS 130. He also contended that, because the police never photographed the interior of the residence, there was “no other evidence that [the defendant] could put forward” to show what the residence looked like. Id. The trial court asked the defendant if he had investigated any “alternatives” to a view, such as sending an investigator out to photograph or document the interior of the residence. JS 131. The defendant answered that he “ha[d] no other alternatives.” Id.

After the ex parte hearing, the trial court had the State rejoin the hearing and denied the defendant’s renewed motion for a view. JS 132. The trial court found that the current owners had a privacy interest in their residence and the trial court did not find that it was “appropriate” to bring the jury, the trial court, and the parties into their residence, based on the information available to the trial court. Id. The trial court also agreed with the State that, without knowing how the residence’s interior appeared, it could confuse the jury to view a residence that did not look the same as when the assaults occurred. JS 132-33.

The trial court did not err in denying the defendant’s motion for a view. At the time of trial, the victim and her family had not lived in the residence where the defendant sexually assaulted the victim for years. Neither party knew who owned the residence at the time of trial or whether the residence’s interior was similar to, or different from, how it was during the victim’s sexual assaults. Given this information, allowing the jury to view the residence likely would have led to the jury seeing misleading evidence. Moreover, both the victim and her grandfather testified as to the layout of the residence’s interior and the layout of the bedroom in which the sexual assaults occurred. The defendant also had pretrial opportunities to obtain photographic and other visual evidence of the residence, but chose not to obtain this evidence.

Additionally, the new owners likely had a constitutional privacy right at stake with respect to a court order permitting a view of their residence, see generally N.H. Const. Pt. I, Art. 2-b, and given the late hour in which the view was requested, adequately giving the new owners notice and an opportunity to respond before trial would likely have not been feasible. As such, the trial court did not abuse its discretion in denying the defendant’s motion for a view.

Even if the trial court erred in denying the defendant’s motion for a view, this error was harmless beyond a reasonable doubt. The evidence against the defendant at trial was both strong and overwhelming. Additionally, evidence of the residence’s interior was admitted at trial through the victim’s and the grandfather’s testimony. Moreover, given the uncertainty at trial about what the residence’s interior presently looked like under new ownership, it would have been speculative to say whether the view would have been favorable to the defendant.

The trial court also did not err in denying the defendant’s motion for a mistrial. This Court has held that a mistrial is appropriate when a defendant’s prior criminal behavior has been “unambiguously conveyed to the jury.” State v. Kerwin, 144 N.H. 357, 360-61 (1999) (quotations and citation omitted). While the sergeant testified at trial that the gist of the victim’s note to her grandfather said that the defendant inappropriately touched the children, this was not an unambiguous reference to criminal conduct against the victim’s brother. This testimony did not explicitly establish that the defendant had been charged with AFSAs against another child or that he had admitted to sexually assaulting someone else. The jury had heard testimony from the victim and her grandfather that the defendant was physically affectionate towards both children and that the children had both complained to their grandfather about it soon after the defendant arrived. As such, the sergeant’s testimony about the note was not an unambiguous reference to any criminal conduct the defendant had committed against the victim’s brother.

There was sufficient evidence of the defendant’s intention to sexually assault the victim by performing cunnilingus on her to sustain the defendant’s attempted AFSA conviction. The victim testified that the defendant, after sexually assaulting her by touching her naked vagina and trying to digitally penetrate her, lifted her vagina closer to his mouth by lifting her up towards him by her waist. The victim also testified that she escaped the defendant’s grasp before he could put his mouth on her vagina. The jury could have inferred from the testimony at trial, specifically the victim’s testimony about both sexual assaults and his grooming behavior upon his arrival, that the defendant’s intent in lifting her naked, ten-year- old vagina closer to his mouth was only to perform cunnilingus on her. While the defendant asserts on appeal that the State failed to exclude at trial other rational conclusions consistent with innocence, such as his intention to lift the victim’s vagina towards his face to either look at it or smell it, neither of these conclusions are rational given the other evidence and testimony elicited at trial. The defendant, a stranger to the victim, would have no rational, innocent reason to move the victim’s naked vagina closer to his face. Because these explanations are not rational, and because a rational jury could conclude that the defendant’s intention behind his behavior was to sexually assault the victim by performing cunnilingus on her, there was sufficient evidence at trial to support this conviction. Accordingly, this Court should affirm the defendant’s convictions below.

“The admissibility of evidence is a matter left to the sound discretion of the trial court.” State v. White, 155 N.H. 119, 123 (2007). “[This Court] will not reverse the trial court’s decision to admit [or exclude] evidence absent an unsustainable exercise of discretion.” State v. Lopez, 156 N.H. 416, 420 (2007). “To sustain his burden, the defendant must show that the trial court’s decision was unreasonable to the prejudice of his case.” White 155 N.H. at 123. “[In determining] whether a ruling made by a judge is a proper exercise of judicial discretion, [this Court considers] whether the record establishes an objective basis sufficient to sustain the discretionary decision made.” State v. Lambert, 147 N.H. 295, 296 (2001). “[A] view is evidence.” State v. Booton, 114 N.H. 750, 757 (1974). Whether to allow a view is in the trial court’s discretion “and its ruling will not be disturbed unless plainly wrong.” RSA 519:21; Booton, 114 N.H. at 757.

The trial court sustainably denied the defendant’s motion for a view of the victim’s residence at the time of the sexual assaults because, at the time of trial, the victim, her family, and the defendant did not live in the residence and there was no information that the residence’s current interior resembled the residence’s interior six years prior to trial, when the victim was sexually assaulted.

The defendant argued following jury selection that a view was necessary to show “how close these quarters [were] when she’s saying that things happened with... three other individuals in the trailer” and to show “how open that would be, how readily visible that would have been.” JS 130. Yet, the defendant did not articulate why asking the victim or the victim’s grandfather about the residence’s interior at trial was insufficient evidence, other than saying that testimony would not be “the same as actually being there and seeing the size of this place....” JS 131. It was also highly likely that a view could have presented misleading evidence to the jury, given that the parties did not know what the residence’s interior looked like at the time of trial, nor had the victim confirmed whether the residence looked as it did when the sexual assaults occurred. JS 128. Defense counsel could also have attempted to obtain alternative evidence of the residence’s interior by photographing it. It is unclear if defense counsel explored this option or any additional options prior to filing a motion for a view because, when the trial court asked defense counsel about alternatives, defense counsel simply answered that there were none, but did not provide any further information. JS 131.

Moreover, issuing a court order allowing a view of the residence without notice of the defendant’s motion for a view and an opportunity to be heard on the defendant’s motion for a view prior to trial would likely have violated the current owners’ constitutional privacy rights. N.H. Const. Pt. I, Art. 2-b. Additionally, because the defendant asked for a view less than three weeks before trial, providing notice of the defendant’s motion to the owners and an opportunity for them to respond with time for the trial court to resolve the issue was likely not feasible. Given the information presented to the trial court regarding the defendant’s motion for a view, the trial court acted within its discretion when it denied the view. Neither party could tell the trial court who owned the residence at the time of trial or what the residence’s interior looked like at the time of trial. Neither party could assure the trial court that a view would not lead to the jury seeing misleading evidence if the residence’s interior was vastly different from the time of the sexual assaults. Moreover, the defendant could not articulate what alternatives he had attempted prior to seeking a view, nor could he articulate why testimony alone about the residence’s interior at the time of the sexual assaults was insufficient evidence.

Accordingly, it was not plainly wrong for the trial court to deny the defendant’s motion for a view.

Even if it was plainly wrong for the trial court to deny the defendant a view, this error was harmless because there was strong and overwhelming evidence of the defendant’s guilt at trial and other evidence established the residence’s interior during the sexual assaults.

“To determine whether the State has proven beyond a reasonable doubt that an error did not affect the verdict, [this Court] must evaluate the totality of the circumstances at trial.” State v. Boudreau, No. 2021-0350, 2023 N.H. LEXIS 107, at *9 (N.H. Jun. 7, 2023). This Court considers the following factors in determining whether an error did not affect the verdict: “(1) the strength of the State’s case; (2) whether the evidence was cumulative or inconsequential in relation to the State’s case; (3) the frequency of the error; (4) the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence; (5) the nature of the defense; (6) the circumstances in which the evidence was introduced at trial; (7) whether the trial court took any curative steps; (8) whether the evidence is of an inflammatory nature; and (9) whether the other evidence of the defendant’s guilt is overwhelming.” Id. at *10 (citations omitted). No one factor is dispositive, and this Court may consider other factors not listed above. Id.

The State’s evidence against the defendant at trial was both strong and overwhelming. The victim offered direct, credible testimony that when the defendant first arrived at her home, he immediately tried to make her feel comfortable around him by conversing with her and sitting with her in the living room where she was playing. The victim also described in specific detail each sexual assault, including the position in which the defendant placed her to commit the assaults and her attempts to escape. She also described that prior to each assault, he tried to make her comfortable with his presence in the room by chatting with her before pulling her onto his lap and assaulting her.

The victim’s testimony was corroborated at trial by her grandfather, who said that after the first assault, he told the defendant to “cut it out.” T 102. He also testified that he told the defendant not to be so “huggy, squeezy, or touchy” with both children because both had complained to him about the defendant’s unwanted affection. Id The grandfather also testified that he had kept a note in his wallet for years that the victim had written to him on the third day that the defendant stayed with them telling the grandfather that the defendant “touched [her] privates.” T 121. During cross-examination, the victim was only impeached with prior statements about whether she was crying when she told her grandparents about the second sexual assault and about whether she ran straight to her grandparents’ room after both sexual assaults or whether, after the first sexual assault, she found her younger brother and told him what happened before running to her grandparents’ room to tell them. T 77-81. She was also impeached with her CAC interview, during which she said that she did not struggle to get away from the defendant during the first sexual assault when at trial, she testified that she did. T 82-84. The defendant chose not to challenge the victim about any prior statements she made about the sexual assaults themselves, presumably because these statements were consistent with her trial testimony. As such, the State presented both strong and overwhelming evidence of the defendant’s guilt at trial. Moreover, evidence of the residence’s interior was admitted at trial. The State elicited testimony from the victim about the residence’s layout, including the location of each room relative to the living room, which is the first room one would enter through the front door. T 32-34. She also testified that the charged conduct occurred in her bedroom, which she described the layout of in detail. She described the big chair in the middle of her room in which the assaults occurred. T 40. She also described where her bed was, where her dresser was, and where her television was. T 40-41. The State also elicited testimony from the grandfather that the residence was a “60-foot trailer” with three bedrooms, two bathrooms, a kitchen, and a living room. T 98. He also described where each room was in the trailer. Id. The defendant did not ask either the victim or her grandfather about the residence’s interior during the sexual assaults. As such, there was sufficient testimony regarding the residence’s interior and layout as well as a description of the bedroom in which the sexual assaults occurred.

Additionally, neither party knew what the residence’s interior looked like at the time of trial. As such, neither party nor the trial court knew whether a view would have been helpful to the jury in determining whether the State proved its case beyond a reasonable doubt. Thus, whether the view would have been favorable to the defendant or helpful to the jury during deliberations is wholly speculative.

Accordingly, any error in denying the defendant’s motion for a view was harmless beyond a reasonable doubt.

“Although a high degree of necessity is required before a mistrial is declared, ‘manifest necessity’ is a variable standard which cannot be applied mechanically.” State v. Gould, 144 N.H. 415, 417 (1999). “Determining whether manifest necessity exists to justify the declaration of a mistrial requires a balancing of competing concerns: the defendant's interests in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial.” State v. Solomon, 157 N.H. 47, 52 (2008). “A trial court must therefore take all circumstances into account, and should allow counsel to comment as well as consider alternatives before declaring a mistrial.” State v. Perry, 166 N.H. 297, 302 (2014) (quotations and citation omitted). This Court has “cautioned trial courts not to terminate trials too quickly, and ha[s] encouraged them to discuss lesser sanctions with counsel and to take time for reflection.” Id.

This Court has held that an “incurable prejudice, ” such as “when the testimony of a witness conveys to a jury the fact of a defendant’s prior criminal offense” may require the declaration of a mistrial. Kerwin, 144 N.H. at 360 (quotations and citation omitted). “Introduction of such evidence, however, does not automatically require a mistrial.” State v. Drew, 137 N.H. 644, 648 (1993). This Court has held that, in this circumstance, a mistrial is appropriate only when “a defendant’s prior criminal conduct has been unambiguously conveyed to the jury.” Kerwin, 144 N.H. at 360-61 (quotations and citation omitted).

The defendant moved for a mistrial following the sergeant’s testimony that the “gist” of the victim’s handwritten note was that “the children had been touched inappropriately.” T 132. Despite the defendant’s argument that this testimony was unambiguous and akin to testimony that the defendant was charged with an additional crime, the record establishes that this testimony did not rise to an incurable prejudice to the defendant warranting a mistrial.

Prior to trial, the defendant was charged with four AFSAs against the victim’s younger brother, alleging that the defendant twice touched the victim’s brother’s penis, that the defendant forced the victim’s brother to touch his penis, and that the defendant performed fellatio on the victim’s brother. SA 3-4, 6, 10. These charges were severed from the victim’s charges. DA 3-8. At trial, the victim testified that when the defendant first arrived at her home, he talked with her to make her feel comfortable with him, and then soon after pulled her onto his lap in a bear hug in the living room. T 36-38. The victim explained that this made her feel confused and “really uncomfortable.” T 38. The victim’s grandfather also testified that on the second day the defendant stayed with him, he discussed with the defendant the children’s dislike of the defendant’s touching them. He testified that, “it seemed more like the kids were being overly – they didn’t like it more than they should have not like it. But at the time, I just figured that’s because they’re kids and they didn’t like people touching them, holding them hugging, squeezing them or whatever.” T 102. The victim’s grandfather also said that he told the defendant “about the huggy, squeezy, touchy thing and pretty much how when the kids don’t want to be held like that or grabbed or whatever, that he should just leave them alone.” Id. In response, the defendant said he was “just being affectionate. T 103. When the sergeant testified regarding the “gist” of the defendant’s note, the jury had already heard testimony from the victim and the grandfather that the defendant had been touching both children for almost the entire weekend. The jury also knew that the defendant had sexually assaulted the victim more than once. The jury had also heard from the defendant’s grandfather that both children complained repeatedly about the defendant’s “huggy, squeezy, touchy thing.” T 102. Moreover, according to the prosecutor, the sergeant was spoken over as she said the word inappropriately. T 137. The trial court agreed with the prosecutor, saying “yeah. She said touched the children.” Id. As such, the record established that it is possible that the jury only heard that the “gist” of the note was that the defendant touched the children, despite the transcript picking up that the sergeant said the word inappropriately. This testimony was not incurably prejudicial for the jury to hear given the other testimony it heard about the defendant’s behavior. Thus, the trial court did not err in denying the defendant’s motion for a mistrial because the sergeant did not unambiguously reference the defendant’s criminal conduct against the brother, only that the defendant had also touched the brother, which was consistent with the grandfather’s testimony.

If the jury did hear that the sergeant said that the “gist” of the victim’s note was that the defendant inappropriately touched the children, this too is not an unambiguous reference to the defendant’s criminal conduct against the brother given the grandfather’s testimony. The grandfather testified that he talked to the defendant about his unwanted hugs, squeezing, and touching of the children. T 102. He also testified that when the defendant first arrived, he hugged the children a lot. T 100. The victim’s grandfather also remembered that the children did not like how affectionate the defendant was, but that “other than being a little touchy and grabby, it was really – not really any problem[].” T 101. Given this, the jury had already heard that the defendant was overly physically affectionate with the children. This conduct, although unwanted, did not give rise to any charges against the defendant. Thus, this conduct could have been characterized as inappropriate without referring to the defendant’s AFSA charges that had been severed.

Moreover, the phrase “touching the children inappropriately, ” T 132, does not rise to the level of incurable prejudice that this Court has found in the four cases cited by the defendant in his brief. DB 18. In State v. LaBranche, the defendant was charged with only one AFSA at trial. 118 N.H. 176, 177 (1978). This Court held that a mistrial was appropriate because one witness testified that she went to the police to report the defendant’s AFSAs of her daughter after the second time he had assaulted her, and because the arresting officer mentioned the second instance of AFSA when he testified that he “went into the second incident” with the defendant and told the defendant that he would be charged with two counts of AFSA. Id. at 178. This Court found that these references were incurably prejudicial because “the jury could easily discern that the defendant was allegedly culpable for other instances of criminal conduct closely related to the charge before it.” Id. at 179.

In Kerwin, the defendant was on trial for one misdemeanor sexual assault. 144 N.H. at 357. This Court held that a mistrial was appropriate because the victim testified that “some girl” told her that the defendant “raped some girl.” Id. at 360-61. This Court found that this statement was incurably prejudicial because it “indicated to the jury that the defendant may have committed a crime more heinous than that which was charged” and conveyed unambiguously to the jury that the defendant had engaged in “similarly culpable conduct.” Id. at 361.

In State v. Ayotte, the defendant was on trial for two arson charges. 146 N.H. 544, 545 (2001). At trial, the prosecutor referenced in the opening statement and the closing argument that the State believed that the defendant had purposely started a fire an hour prior to the charged fire, for which the defendant had not been charged. Id. at 548. The State had also asked one of the police witnesses who investigated the defendant’s arson numerous questions about the prior fire, during which the witness described the prior fire as suspicious. Id. This Court held that this unambiguous testimony about and references to the defendant starting the first fire required a mistrial because the jury “could have misused this information to find that the defendant was knowingly and purposely starting similar fires around Berlin that evening.” Id. at 548-49. This Court also found that the only purpose for this evidence was to establish the defendant’s propensity to commit arson. Id. at 549.

In State v. Woodbury, the defendant was on trial for one count of robbery. 124 N.H. 218, 219 (1983). This Court found that a mistrial was appropriate because one of the State’s police witnesses testified that, after his arrest, the defendant said “I don’t know why you’re charging me with armed robbery. I’ve been that route before. I’ve been charged with armed robbery before.” Id. at 220. This Court held that this testimony unambiguously conveyed to the jury “evidence of an identical charge which had been previously filed against the defendant.” Id. at 221. In all four of these cases, a mistrial was appropriate because a witness unambiguously testified about a specific crime that the defendant committed or was suspected of committing. Here, however, no witness testified that the defendant was charged with sexually assaulting the victim’s brother, or that he had sexually assaulted another child, or that he had a pending AFSA case separate from the victim’s case, or that he said that he was accused of sexually assaulting another child during a police interview. Here, the objected-to testimony, that the defendant touched the children inappropriately, when considered alongside the grandfather’s testimony that he talked to the defendant about not hugging, squeezing, or touching the children as frequently as he had been, was an ambiguous reference to the defendant’s conduct against both children. The jury was not left with evidence of, or even the impression that, the defendant had sexually assaulted another child. As such, the trial court sustainably denied the defendant’s motion for a mistrial because the sergeant’s testimony was not incurably prejudicial.

“A challenge to the sufficiency of the evidence raises a question of law, which [this Court] review[s] de novo.” State v. Siebel, 174 N.H. 440, 445 (2021). “When considering a challenge to the sufficiency of the evidence, ‘[this Court] objectively review[s] the record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt … considering all the evidence and all reasonable inferences therefrom in the light most favorable to the state.’” State v. Sanders, 164 N.H. 342, 351 (2012) (quoting State v. Spinale, 156 N.H. 456, 464 (2007)). “The defendant bears the burden of proving that the evidence was insufficient to prove the guilt, ” viewing the evidence in the light most favorable to the State. State v. Saintil-Brown, 172 N.H. 110, 117 (2019). In reviewing the evidence, this Court assesses “each evidentiary item in the context of all the evidence, and not in isolation.” Id. (citing State v. Craig, 167 N.H. 361, 369 (2015)).

“With respect to sufficiency of the evidence, sufficiency is a term of art meaning the legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” Spinale, 156 N.H. at 463 (quotations and citation omitted). “Determining whether evidence is sufficient requires both quantitative and qualitative analysis; ‘quantitatively, ’ evidence may fail only if it is absent, that is, only where there is none at all, while ‘qualitatively, ’ it fails when it cannot be said reasonably that the intended inference may logically be drawn therefrom.” Id. (quotations and citation omitted).

To prove the attempted AFSA charge, the State had to prove that the defendant purposely “took a substantial step toward the commission of the crime [AFSA], in that he pulled [the victim’s] pants down and tried to put his mouth on her vagina.” SA 9. In relevant part, RSA 632-A provides that a person is guilty of AFSA when he engages in sexual penetration with a victim under the age of thirteen. RSA 632-A:2, I(l). Sexual penetration is defined, in part, as cunnilingus. RSA 632-A:1, V(a)(2). The defendant argues that there was insufficient evidence to convict the defendant of attempted AFSA because the circumstantial evidence of the defendant’s intent in moving his mouth towards the victim’s vagina did not exclude other reasonable conclusions other than guilt. DB 20. Specifically, the defendant claims that because the victim did not testify as to whether the defendant’s mouth was open or whether his tongue was out, it “[was] reasonable to conclude that [the defendant] wanted a closer look at [the victim’s] genitals. It [was] reasonable to conclude that [the defendant] wanted to smell [the victim’s] genitals.” Id. This argument fails because the evidence at trial regarding the defendant’s intention to take a substantial step towards the commission of an AFSA excluded all rational conclusions other than guilt.

“If the evidence presented at trial consists of both direct and circumstantial evidence, [this Court]... uphold[s] the verdict unless no rational trier of fact could have found guilt beyond a reasonable doubt.” Siebel, 174 N.H. at 445. “Direct evidence is the testimony of a person who claims to have personal knowledge of facts about the crime charges such as an eyewitness.” State v. Newcomb, 140 N.H. 72, 80 (1995). “Circumstantial evidence, to be sufficient to convict, must exclude all rational conclusions other than the guilt of the defendant in a case where there is only circumstantial evidence to support the conviction.” Id. “Proof of mens rea will usually depend entirely on circumstantial evidence.” State v. Germain, 165 N.H. 350, 359 (2013). “The proper analysis is not whether every possible conclusion has been excluded, but rather whether other rational conclusions based upon the evidence have been excluded.” State v. Flynn, 151 N.H. 378, 383 (2004) (emphasis in original). At trial, the victim testified that during the second sexual assault, after the defendant pulled her onto his lap, positioned her so that her back was on his legs, she was looking at the ceiling, and her legs were up by his head, he touched the victim “all over [her] body” for a “few minutes.” T 60-63. The defendant also pulled her pants down and touched her legs and her vagina under her underwear with his hands and she felt him attempt to insert his finger inside her vagina. T 64-66. While the defendant was touching the victim’s vagina, she lifted up her head “a few times” and one of those times, she “saw [the defendant’s] head get closer towards [her], like, his face.” T 66. When asked what part of her body he was moving closer towards him, she said her vagina. Id. When asked to describe how this happened, she said that the defendant “pulled [her] closer to him” and “lifted her” by her waist. T 67. She said the reason he was unsuccessful in putting his mouth on her vagina was that she successfully escaped his lap by kicking and pushing him. T 67-68.

The victim offered direct evidence of the defendant’s conduct underlying the attempted AFSA charge, specifically that the defendant pulled the victim’s pants down and moved his mouth closer to her naked vagina by lifting her up towards him. The State relied at trial on both direct and circumstantial evidence to prove beyond a reasonable doubt that the defendant purposely took a substantial step towards the commission of an

It was rational for the jury to conclude that the defendant took a substantial step towards the commission of an AFSA when he purposely pulled the victim’s pants down and moved her vagina towards his mouth in an attempt to perform cunnilingus on the victim. In considering all the evidence presented at trial, a rational jury could conclude that this conduct, when considered along with the victim’s testimony of the defendant’s criminal conduct prior to the attempted cunnilingus, was “strongly corroborative of the [defendant’s] criminal purpose” to perform cunnilingus on her. RSA 629:1, II; see State v. Kilgus, 128 N.H. 577, 583 (1986) (“[A] substantial step is an overt act directed to the commission of the crime intended, which goes beyond mere preparation and is apparently suitable for that purpose but fails to result in the commission of the intended crime”) (quotations and citation omitted)).

Specifically, the victim testified that the defendant had tried to make her more comfortable around him from the moment he arrived by hugging her and showing her immense physical affection. Likewise, the jury had also heard the victim testify that the defendant had already sexually assaulted the victim by pulling her pants down and touching her vagina two days prior to the second sexual assault. The jury also heard that the defendant did not perform cunnilingus on the victim because she escaped, that she struggled to get away from him throughout the second sexual assault, and that during the struggle, the defendant still touched the outside of her vagina and attempted to digitally penetrate her vagina. As such, the jury could conclude that the defendant’s intention when he raised the victim’s naked vagina towards his mouth, immediately after he sexually assaulted her by touching her vagina, was to sexually assault her by performing cunnilingus on her.

Moreover, the defendant has not offered on appeal any rational conclusion other than guilt regarding the intent behind his behavior. While he argues that the defendant brought the victim closer to his mouth to either look at or smell her genitals, DB 20, neither of these explanations are rational conclusions. It is irrational to think that there would be any need for the defendant, a stranger to the victim, to inspect her vagina for any purpose other than his own sexual arousal or gratification. He was not her caregiver checking her vagina for a caregiving purpose, nor did she ask for him to inspect her vagina due to some concern she had, nor did the victim complain of any pain, odor, or irritation in her vagina warranting an inspection of it.

Instead, the defendant raised the victim’s vagina toward his mouth after he had touched her entire body all over for a few minutes, had the victim on her back with her legs up next to his head, had touched the outside of her vagina, and had attempted to digitally penetrate her. The only rational conclusion a jury could draw from this evidence was that the defendant was next attempting to penetrate the victim’s vagina with his mouth. As such, the defendant has not met his burden on appeal to prove that the evidence was insufficient of guilt.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the convictions below.

The State requests a 15-minute oral argument delivered by Audriana Mekula, Esq.

I, Audriana Mekula, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 9, 490 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

August 15, 2023 /s/ Audriana Mekula Audriana Mekula

I, Audriana Mekula, hereby certify that a copy of the State’s brief shall be served on, Wade Harwood, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

August 15, 2023 /s/ Audriana Mekula Audriana Mekula