State of New Hampshire v. David Zuzelo

1. Whether the court erred by denying the defense’s motion to preclude admission of evidence of L.I.’s alleged behavioral changes and/or characteristics. Issue preserved by the Defendant’s motion in limine, the hearings on the matter, the defense motion to reconsider, Defendant’s contemporaneous objections during trial, and the court’s orders. AD 29-39; H 3- 13; T 13-18, 315-324, 344, 396, 501.* 2. Whether the trial court erred in denying the defendant’s motion to dismiss based on sufficiency of the evidence. Issue preserved by the Defendant’s oral motion and argument. T 694-705.*

1 * Citations to the record are as follows: “AD” refers to the attached supplement containing the orders from which Zuzelo appeals; “H” refers to the transcript of the proceedings held in the morning of July 21, 2022; charges; “T” refers to the transcript of the jury trial held from July 25, 2022 to July 29, 2022.

In March 2022, the State obtained indictments from a Rockingham County grand jury charging David Zuzelo with three counts of Aggravated Felonious Sexual Assault and one count of Felonious Sexual Assault. A D 40-43. At the conclusion of a Jury Trial on August 1, 2022, the Jury found Zuzelo not guilty of one indictment of Aggravated Felonious Sexual Assault and the indictment of Felonious Sexual Assault and guilty of the remaining two indictments of Aggravated Felonious Sexual Assault. T 856-863; AD 40-41.

On October 13, 2022, the court sentenced Zuzelo on the first charge of Aggravated Felonious Sexual Assau lt to twenty to forty years, stand committed. A D 44-50. On the second charge of Aggravated Felonious Sexual Assault, the court sentenced Zuzelo to a consecutive twenty to forty years, stand committed. AD 51-57.

Around the end of 1999 or 2000, David Zuzelo moved to Chester, NH to live with Joyce Bunting. T 560. Zuzelo was married to Joyce Bunting in November of 2008. T 557. Zuzelo and Bunting remained in Chester, NH until they moved to New Mexico in 2016. T 607.

Joyce Bunting has one daughter, Holly Isabelle, and two grandchildren, Adrianna Bilodeau and L.I. T 556.

L.I. was born on March 6 th, 1998 and was 24 years old when she testified at trial. T 63.

L.I. would spend time with her grandmother and Zuzelo at their house in Chester. T 73. L.I. referred to Zuzelo and Bunting as her grandparents. T 76. L.I. testified that her and her grandmother were “really close” and she would visit Zuzelo and Bunting anytime that she felt she wanted to go over to their house. T 75. L.I. would go over to her grandparents with her family, sometimes with her sister, and sometimes she would stay there by herself. T 75. L.I. testified that she would spend the night at her grandp arents and “there were certain weekends where we were there, or just a casual day during the week if we weren't in school.” T 82. L.I. testified that her sister would go to her grandparents with her “half the time, at least”. T 82.

L.I. testified in support of the charges, stating the “first time, I was on the couch -- one of those gray couches that you saw in the living room. And I woke up to David rubbing my clitoris on the outside of my clothes.” T 94. L.I. testified that Zuzelo rubbed her clitoris wit h his fingers and that she pretended to be asleep while the assault occurred. T 95-96. L.I. acknowledged during her testimony that when she spoke to law enforcement, she had stated that when she had described the first assault that Zuzelo was removing the bottom half of her clothes and directly touched her vagina. T 201. L.I. testified that she was roughly eight years old at this time and it was during the summertime. T 94, 95. L.I. testified that a second sexual assault occurred on the same couch in the sa me manner but that the contact occurred under her clothing. T 101-102. The amount of time that elapsed between the first sexual assault and the second sexual assault was “days to weeks” and L.I. testified that the assaults “all happened around the same ti me span, but they were all different. So within -- like, it was very close together.” T 106, 216. L.I. testified that the sexual assaults “happened so frequently that it was so close together within the months between the summertime and the fall time. There was only, like, three months within the summer, so it was pretty frequent.” T 106. L.I. testified that she did not know what month the sexual assaults occurred in. T 192, 196-197, 216.

When asked about any other sexual assaults on the couch, the following exchange occurred during L.I.’s testimony: Q Okay. So you talked about the first and second time that you member this Defendant touching you on the couch. Do you remember anything like that ever happening again on that couch specifically?

A Not specifically -- Q Was it -- A -- on the couch, anyway.

Q Was there another time on the -- sorry. Go ahead. A I was just going to say not specifically on the couch, but there was another incident that did occur.

Q Was there another time on the couch where something else happened?

A No.

Did you say other than the couch?

Q No, on the couch.

A Not on the couch.

T 106-107.

L.I. testified that the only other specific event she recalled regarding being sexually assaulted was when Zuzelo touched her breasts in the pool located at the residence in Chester, NH. T 110-117.

L.I. testified that she had no specific recollection of any other times when Zuzelo touched her with his hands. T 117. L.I. indicated that she believed similar assaults occurred on the couch more than five times but no more than 15 to 20 times. At other times, L.I. testified that she did not have a good memory and the assaults could have been anytime between the three inc idents that she did remember. T 123, 229. The following exchange occurred during L.I. ’s testimony regarding her specific recollection of any other assaults by Zuzelo with his hands: Q With regard to him touching you with his hands, are there any other spec ific times that you remember -- A No.

Q -- the details of?

A No.

T 117.

L.I. testified regarding behavioral issues she had after the sexual assaults, describing herself as a “problem child”, that she was not nice to people, and that she had anxiety and depression. T 143, 146.

Holly Isabelle, L.I.’s mother, testified that L.I.’s personality “seemed to start to change and continued to change as she grew older.” T 326. Holly Isabelle testified specifically about physical and behavioral changes that L.I. exhibited, stating “around the age of 9, 10, she started to put on an ex treme amount of weight, almost doubling in size, which was, you know, a bit of a surprise. The other unusual change in appearance was, I got her up from school one morning, and she had plucked all of her eyelashes out.” T 344-345, 347-349.

Finally, Holly Isabelle testified that L.I. “developed some anxiety, depression, which continued until she got older into college as well.” T 346.

Adrianna Bilodeau, the older sister of L.I., testified that at around age eight L.I. changed and began to have “angry outbursts”, was very “short toned” and “kept to herself”. T 389, 396-398. Adrianna testified that L.I. has “excessive weight gain and she plucked all of her eyelashes out.” T 402. Stephen Isabelle, L.I. ’s father, testified to behavioral changes by L.I., indicating that she exhibited anger towards him and that she pulled her eyelashes out. T 491, 500-502, 503.

1. Evidence of the alleged victim’s behavioral changes are inadmissible pursuant to New Hampshire Rule of Evidence 401, New Hampshire Rule of Evidence 402, New Hampshire Rule of Evidence 403, and Part I, Article 15 of the New Hampshire Constitution and the Fifth, Sixth and Fourteenth Amendments of the United State s Constitution. The evidence of L.I.’s exhibited behavioral changes and/or characteristics during the time of and after the alleged assaults, to include having nightmares, gaining weight, pulling out her eyelashes, and being angry are not relevant to the alleged offense and the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. There is no nexus between the behavioral changes and the charged offense. This evidence was used to suggest to the Jury that because L.I. exhibited changes in behavior during and after the allege d sexual assaults that they were the result of the sexual assaults and that the sexual assaults therefore occurred.

2. The State failed to prove beyond a reasonable doubt all the essential elements of the two charged offenses for which the Jury found him gu ilty. Specifically, as to charge ID #1926118 in Docket #218-2021-CR-1330, the State failed to prove beyond a reasonable doubt that Zuzelo engaged in sexual penetration of L.I. by inserting his finger into her genital opening. As to charge ID #1926120C, the State fail to prove beyond a reasonable doubt that Zuzelo engaged in a pattern of sexual assault over a period of two months or more and within a period of five years.

On July 21, 2023, the Defendant filed a motion to preclude admission of evidence of L.I’s alleged behavioral changes and/or characteristics, requesting the Court preclude the State from introducing evidence that L.I exhibited behavioral changes and/or characteristics during the time and after the alleged sexual assaults. AD 29-35. These behavioral changes includ ed L.I. having nightmares, gaining weight, pulling out her eyelashes, and being angry. The Defendant argued that these behavioral changes were not admissible pursuant to New Hampshire Rules of Evidence 401, 402, 403, Part I Article 15 of the New Hampshire Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. The crux of the basis for this request was that the “evidence would only be offered to suggest that such behavior was the result of L.I. being the victim of a sexual assault.” A D 29-35. The State had not notice d any expert witnesses to testify to any type of expert opinion that these types of behavioral characteristics are commonly found in child abuse victims and therefore there was no nexus between the proffered evidence, L.I.’s alleged change in behavior, and the issue of whether or not L.I. was sexually assaulted.

A hearing was held on the Defendant’s Motion on July 22, 2022. At the hearing, the State objected to the Defendant’s request to preclude and argued that the evidence of L.I.’s behavioral changes was admissible to explain her delayed disclosure of six to eight years. H 7. The State argued this evidence was relevant specifically to show why she was not comfortable going to her parents, why the disclosure took so long, specifically, everyone's reaction to her behaviors, blaming her, making her feel like a problem child, she felt that she wouldn't be believed, based on the behaviors. And it also explains why the victim continued to go to the Defendant's house, spend time with the Defendant despite being abused, and she should be allowed to explain why she did that and how it made her feel.

H 7-8. The State indicated that L.I. and her parents would testify to the behavioral changes. H 9.

On July 22, 2022, the Court issued its Order denying the Defendant’s Motion to Preclude stating:

explaining the delayed disclosure in this case - which, in turn, re lates directly to the jury's assessment of the victim's credibility in this case. The Court finds the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Contrary to the defendant's contention, this kind of evidence is not contingent of having an expert witness explain its significance - particularly in light of the reason that the State is profferring it. The State is not seeking to admit the evidence to prove that the constellation of "changed in behaviors" was caused by the sexual assaults. It is offered to inform the jury about her adolescent behaviors, relationships with peers and family, lack of trust, lack of confidence, her shame and fear, and, hence, her decision or inability to not disclose the alleged abuse. As such, the evidence is highly probative on that issue in the case. Such evidence to proactively address "delayed disclosures" has been admissible for decades. State v Cressy, 137 NH 402, 412 (1993) and State v. Woodward, 146 NH 221, 226 -27 (2001). Contrary to the defendant's assertion, Cressy does not limit such evidence exclusively to expert testimony.

AD 35.

The Defendant filed a Motion to Reconsider the Court’s Order on July 25, 2022, which was heard the same day by the Court. AD 36-39. The Defendant argued that the fact that L.I. may have gained weight as a child, pulled out her eyelashes on one occasion, been angry, or had nightmares has no direct bearing on her decision or inability to disclose the alleged assaults. The alleged change in behavior provide no explanation as to why she did not disclose and will ultimately be viewed by the Jury as behavioral reactions by L.I. to being sexually assaulted.

AD 37. The Court denied the Defendant’s Motion to Reconsider on the record stating:

characteristics, at least as I understand what the evidence is going to be, will be related to the mental process that was going on in her head at the same time, and that's physically acting out. And that's why I found it was probative evidence in this case to explain and support her contention that she didn't feel comfortable.

T 16-17. A trial court's decision to admit testimony is subject to the unsustainable exercise of discretion standard. State v. Gonzalez, 150 N.H. 74, 77(2003). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

New Hampshire Rule of Evidence 401 states that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” N.H. R. Ev. 401.

In the instant case, L.I.’s beha vioral changes and/or characteristics have no tendency to make a fact more or less probable than it would be without the evidence. It is well settled that “the State may offer expert testimony explaining the behavioral characteristics commonly found in child abuse victims to preempt or rebut any inferences that a child victim witness is lying. This expert testimony may not be offered to prove that a particular child has been sexually abused.”

State v. Cressey, 137 N.H. 402, 412 (1993). Furthermore, “testimony regarding a sexual assault complainant's specific behavior is inadmissible if its purpose is to prove that abuse occurred or if an expert testifies that the particular complainant's behaviors are consistent with those of a person who has been sexually abused. Such testimony is inadmissible, in part, because it impermissibly bolsters the complainant's credibility.” State v. Marden, 172 N.H. 258, 263. In the instant case, the State did not present any expert testimony to explain behavioral charac teristics commonly found in victims of child abuse challenge any inference that L.I. was lying. Therefore, this evidence had no relevance. The Court allowed the admission of L.I.’s behavioral characteristics under the reasoning that it was “offered to inform the jury about her adolescent behaviors, relationships with peers and family, lack of trust, lack of confidence, her shame and fear, and, hence, her decision or inability to not disclose the alleged abuse.” A D 35. However, during her testimony, L.I., never made any reference to the fact that these behavioral characteristics played a role in her delayed disclosure.

First, L.I. never even referenced her weight gain or the act of pulling her eyelashes out during her testimony and therefore never offered any testimony on how this affected her delayed disclosure. In fact, after L.I. testified and prior to the testimony of L.I.’s mother, Holly Isabelle, a bench conference occurred in which the State conceded that L.I. did not testify to these specific facts. T 318. Since L.I. did not testify to these events, nor did she testify that these behaviors had any role in her delayed disclosure, these behaviors should not have been admitted. The Defense raised this concern and objected to any testimony regardin g the behavioral changes and/or characteristics as L.I. has not provided any testimony regarding how these behaviors affected her delayed disclosure. The court overruled the objection and allowed Holly Isabelle, Stephen Isabelle, and Adrianna Bilodeau to testify about the weight gain and L.I. pulling out her eyelashes. T 315-324. Even if the Court agrees that this evidence was admissible for the reasons articulated by the lower court and the State, there was never any testimony to support even the most tenuous link that these behavioral characteristics were relevant to explain L.I.’s state of mind and why she delayed her disclosure. Since there was no testimony as to these behaviors being linked to why L.I. had a delayed disclosure, they are not relevant and the testimony by Holly Isabelle, Stephen Isabelle, and Adrianna Bilodeau regarding these behaviors should have been excluded.

The testimony by Holly Isabelle, Stephen Isabelle, and Adrianna Bilodeau regarding L.I’s behavior provides no value without either expert testimony or L.I.’s testimony as to how it would be directly related to the delayed disclosure. It should be noted that L.I. did testify to reasons for her delayed disclosure, which consisted of her concern that she would break up her grandparent’s marriage, break up the family, and a general fear that no one would believe her. T 142. L.I. never provided a scintilla of testimony that her delayed disclosure was due to her weight gain, because she had pulled her eyelashes out, that she had nightmares, or that she was outwardly angry toward others, and that because of this behavior she perceived that others would not believe her if she disclosed the assaults. Due to the lack of testimony by L.I. and the State’s failure to elicit any foundation as to how these behaviors played a role as to her state of mind regarding the delay in disclosure, they offer no evidentiary value. Therefore, the only inference the Jury could have drawn from this evidence was that L.I. exhibited these behaviors because she was sexually assaulted, which is exactly what is prohibited by this Court prior holdings, in that testimony of specific behavior is inadmissible if its purpose is to prove that abuse occurred. State v. MacRae, 141 N.H. 106, 109 (1996).

New Hampshire Rule of Evidence 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: un fair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” N.H. R. Ev. 403. “Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, ar ouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.” State v. Pelkey, 145 N.H. 133, 136 (2000). In the instant case, as detailed above, the behavioral characteristics displayed by L.I. were not probative and the only inference the Jury could have taken from this evidence was that the behavior was the result of L.I. being sexually assaulted by Zuzelo, which is an improper use of such evidence and prejudiced Zuzelo and his right to a fair trial and due process of law pursuant to Part I, Article 15 of the New Hampshire Constitution and the Fifth, Sixth and Fourteenth Amendments of the United State Const itution. As the evidence of L.I.’s behavioral changes and/or characteristics were inadmissible pursuant to New Hampshire Rule of Evidence 401, New Hampshire Rule of Evidence 402, New Hampshire Rule of Evidence 403, and Part I, Article 15 of the New Hamps hire Constitution and the Fifth, Sixth and Fourteenth Amendments of the United State Constitution, this Court should reverse Zuzelo’s convictions and grant him a new trial.

In March 2022, the State obtained indictments from a Rockingham County grand jury charging David Zuzelo with three counts of Aggravated Felonious Sexual Assault and one count of Felonious Sexual Assault. A D 40-43. At the conclusion of a Jury Trial on August 1, 2022, the Jury found Zuzelo guilty of the two counts of Aggravated Felonious Sexual Assault (Charge ID #’s 1926118C and 1926120c). T 856-863; AD 40-41.

As to Charge ID #1926188C, the State charged Zuzelo with Aggravated Felonious Sexual Assault, alleging:

2. engaged in sexual penetration with L.I. (Date of Birth:

3. by inserting his finger into the genital opening, 4. when L.I. was less than 13 years of age.

Sexual penetration is a material element of any aggravated felonious sexual assault offense under RSA 632 -A:2. Sexual penetration is defined to include "any intrusion, however slight, of any part of the actor's body or any object manipulated by the actor into genital or anal openings of the victim's body." RSA 632-A:1, V(e).

The standard of review in assessing the sufficiency of the evidence presented with respect to penet ration, is the Court will review the evidence and all reasonable inferences drawn therefrom in a light most favorable to the State. State v. Baker, 135 N.H. 447, 449 (1992). A conviction will be upheld on the evidence presented if "a reasonable jury could have found guilt beyond a reasonable doubt”. State v. O'Neill, 134 N.H. 182, 185 (1991).

The State failed to provide sufficient evidence to support a conviction for Charge ID #1926188C, in that failed to present evidence that there was sexual penetration by Zuzelo of L.I. Specifically, L.I. testified that the first sexual assault occurred over her cloth es and provided no testimony that she was penetrated by Zuzelo. T 193. L.I. testified that the second sexual assault was different than the first time in that “he had removed my lower half of my clothing off to the side a little bit, and like, penetrated me further into my inner labia”. T 102.

In State v. Guay, 162 N.H. 375 (2011), this Court emphasized that the mere touching of the vagina, or other parts of the genitalia, is insufficient to sustain the element of penetration. Id. at 384. The Court clarified that the act of sexual penetration was more than mere touching of the genital openings, and that the definition of sexual penetration was intrusion into genital or anal openings of the victim's body. L.I.’s testimony failed to establish intrusion into the genital opening, as she merely stated that there was “penetration” into her inner labia. This testimony is insufficient to prove sexual penetration and no reasonable trier of fact could find the State had proven this element of the offense beyond a reasonable doubt. Therefore, the conviction must be vacated and Char ge ID # 1926188C must be dismissed.

As it relates to Charge ID #1926120C, the State charged Zuzelo with Aggravated Felonious Sexual Assault, alleging:

2. engaged in a pattern of sexual assault with L.I. (Date of Birth: 03/06/98), 3. by intentionally touching L.I.’s genitalia with his hand on more than one occasion, directly, through clothing or otherwise, this contact being reasonably construed as for the purpose of sexual arousal or gratification, 4. over a period of two months or more and within a period of five years, 5. while L.I. was less than 13 years of age, 6. and David Zuzelo was not the legal spouse of L.I. To convict Zuzelo of a pattern of sexual assault, the State must have proved beyond a reasonable doubt that, among other things, the Zuzelo touched L.I.’s gen italia with his hand on more than on e occasions over a period of 2 months or more and within a period of 5 years” RSA 632-A:1, I-c. The testimony elicited from L.I. failed to establish beyond a reasonable doubt a pattern of sexual assault, in that the individual sexual assaults occurred over a 2-month period. L.I. testified regarding two incidents that she had a specific recollection of, each of which occurred on the couch. As it relates to these two times, L.I. testified that they occurred within “days to weeks” and that the assaults “all happened around the same time span, but they were all different. So within -- like, it was very close together.” T 106, 216. The State was unable to establish through L.I.’s testimony when the first sexual assault occurred, and she testified she did not know which month the assaults occurred in or when they started. T 192, 196-197, 216. When asked about any other assaults on cross-examination, L.I. had the following exchange: Q And then all these other times that you don't really have a good memory of, those happened after the pool?

A It could have been any time in between any of those.

T 229.

Based upon L.I’s testimony, no specific dates were testified to and no reasonable trie r or fact could find beyond a reasonable doubt that the sexual assaults on L.I. happened over a period of two months or more. In fact, L.I.’s testimony suggests that the sexual assaults occurred during a short period of time. In fact, L.I.’s testimony th at any other sexual assaults but for the two specified on the couch or in the pool suggests that the sexual assaults occurred under a two-month period of time. Because L.I.’s testimony failed to establish any concrete time frames of when the sexual assaul ts began and ended, no reasonable trier of fact could find that they occurred over a period of two months or more. Therefore, the conviction must be vacated and Charge ID #192C 6120C must be dismissed.

WHEREFORE, Mr. Zuzelo respectfully requests that this Court reverse and dismiss his convictions.

Undersigned counsel requests fifteen minutes of oral argument.

The appealed decision on the Defendant’s Motion to Preclude is in writing and is appended to the brief. The lower court’s denial of Mr. Zuzelo’s oral motion to dismiss was not in writing, so is not included with this brief. T 694-705. This brief complies with the applicable word limitation and contains approximately 4515 words.

Resp ectfully submitted,