State of New Hampshire v. Christopher A. Small

1. Whether the State produced sufficient evidence to prove the defendant committed felonious sexual assault by engaging in a pattern of sexual assault by touching the victim’s breasts.

The defendant was indicted on four counts of aggravated felonious sexual assault (AFSA). T 1 at 14-16.1 A Strafford County jury found him guilty on all counts. T3 at 485-87. The trial court (Will, J.) sentenced the defendant to serve seven to twenty years on one count of AFSA, consecutive to a ten to twenty year sentence on the second AFSA conviction. Def. App. at 26-31. The trial court sentenced the defendant to serve ten to twenty years on two AFSA pattern convictions, to run concurrent with each other but consecutive to his other AFSA convictions. Def. App. at 32-37.

T1 at 69. A.P’s parents separated when she was young and the defendant assumed the role of A.P.’s primary custodian. T1 at 70-71. The defendant eventually married another woman, with whom he had additional children. T1 at 72. Financial difficulties forced the family to move frequently, and they often stayed in homes with relatives. T1 at 72-77. During this time, the defendant began asking A.P. to “cuddle” with him. T1 at 80. The “cuddling” soon progressed to the defendant touching A.P. under her shirt, then her vagina, and culminated with digital and penial penetration. T1 at 81-99.

By her sophomore year, A.P. had grown depressed and she decided to move in with her biological mother and stepfather. T1 at 101-03. Stepfather sexually abused A.P., which she disclosed to the police while they were investigating stepfather’s physical abuse of A.P.’s mother. T1 105-08. However, A.P. was not prepared at the time to disclose that she had been abused by the defendant as well. T1 at 113-15, 184-85 A.P.’s mother did not believe the sexual abuse allegations against stepfather, and A.P. returned to the defendant’s home. T1 at 108-09. A.P.’s relationship with the defendant and her stepmother grew tense, and she eventually disclosed to her boyfriend that the defendant had sexually abused her. T1 at 115-17. Although A.P. told her boyfriend not to tell anyone, he notified the school guidance counselor. T1 at 117. The guidance counselor notified the police, who in turn referred A.P. for a forensic interview at the Child Advocacy Center (CAC). T2 at 321-22, 330-35. The investigation led to the defendant being indicted on four counts of aggravated felonious sexual assault (AFSA). T1 at 14-16. The first count alleged the defendant committed AFSA by engaging in sexual penetration with A.P., and the second count alleged he committed AFSA by digitally penetrating her vagina. T1 at 14-15. The third and fourth counts alleged the defendant engaged in a pattern of sexual assault by touching A.P.’s genitalia and her “breasts and/or buttocks.” T1 at 15-16.

The family then moved to a house in Farmington. T1 at 85. A.P. recalled a specific instance at this residence in which the defendant asked her to cuddle with him underneath the blankets. T1 at 85-86. Like he did at the home in Rochester, the defendant began by touching A.P. on the “chest” under her shirt and then moved to her vagina. T1 at 86.

By the time A.P. was in 6th grade, the family had moved to a home on Spring Street in Rochester. T1 at 87-88. A.P. recalled a specific event on Spring Street in which the defendant asked A.P. to cuddle and he proceeded to touch her “chest” and underneath her pants. T1 at 88. The defendant then took off A.P.’s clothes and tried inserting his penis into her vagina. T1 at 89. The defendant stopped after a few seconds when he saw A.P. was in pain. T1 at 90-91. The defendant told A.P. his penis did not “fit” because she was “too tight.” T1 at 94.

The family then moved to a house in Somersworth on Lincoln Street. T1 at 94-95, 133. A.P. stated the defendant once walked into her room on Lincoln Street and told her he understood what he was doing was “wrong” and he was going to stop. T1. at 95. This prove to be untrue. A.P. explained that her family later moved to another home on High Street in Somersworth. T1 at 96. A.P. recalled two occasions while living on High Street in which defendant called her into bed to cuddle and inserted his fingers inside her vagina. T1 at 96-99.

At the conclusion of the State’s case, the defendant moved to dismiss the AFSA charge alleging he engaged in a pattern of sexual assault by touching A.P.’s breasts or buttocks. T3 at 389. Defense counsel contended the evidence was insufficient on this count because A.P. stated that the defendant touched her “chest” underneath her shirt but never specified that her chest referred to her breasts. Id. The trial court denied the motion, finding the jury could reasonably find the defendant touched A.P.’s breasts based on her testimony and gesturing. T3 at 394. At the conclusion of the evidence, the jury found the defendant guilty on all counts. T3 at 485-87. This appeal followed.

There was sufficient evidence for the jury to find the defendant guilty of AFSA by engaging in a pattern of sexual assault by touching the victim’s breasts. Although A.P. used the word “chest, ” the jury could reasonably infer she was referring to the breast area of her chest in light of evidence that the touching was under her shirt, began when she was only nine years old, A.P. considered it “inappropriate, ” it occurred at time when the defendant also touched her vagina, and the defendant confessed that he knew what he was doing was “wrong.” T1 at 81-96. Other jurisdictions have found a jury could find a defendant touched the victim’s breasts, despite the victim’s use of the word “chest, ” under substantially similar facts. See infra 12-13.

The defendant’s reliance on State v. O’Neill, 134 N.H. 182 (1991) is misplaced. That case held that there was insufficient evidence that anal penetration occurred when the victim testified only that the defendant “stuck his fingers in my bum.” Id. at 183. As the O’Neill court explained, the word “bum” commonly refers to the “buttocks, ” not the anus. In this case, the State was not attempting to prove penetration of a part of body by relying on the victim’s use of a word that commonly referred to a different part of the anatomy. Id. at 187. Thus, O’Neill is not persuasive under the facts of this case.

The defendant’s sole argument on appeal is that the trial court should have dismissed for insufficient evidence the AFSA count alleging he engaged in a pattern of sexual assault by purposefully touching A.P.’s “breasts and/or buttocks.” Def. Br. at 16. The defendant contends that A.P.’s use of the word “chest” was not sufficient to prove he touched A.P.’s breasts under the evidence produced at trial. Def. Br. at 16-20. This argument lacks merit.

A challenge to the sufficiency of the evidence raises a claim of legal error that is reviewed de novo. State v. Collins, 166 N.H. 514, 517 (2014). However, “the defendant has the burden to demonstrate that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” State v. McCue, 134 N.H. 94, 104 (1991).

When reviewing the sufficiency of the evidence, each evidentiary item must be examined “in the context of all the evidence, not in isolation.” State v. Young, 159 N.H. 332, 338 (2009). The jury may “draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom.” Id. “[E]valuation of witness credibility, resolving conflicts in the testimony, and determining the weight to be given to the evidence are matters within the province of the jury.” State v. Alwardt, 164 N.H. 52, 57 (2012).

“A person is guilty of aggravated felonious sexual assault when such person engages in a pattern of sexual assault against another person, not the actor’s legal spouse, who is less than 16 years of age.” RSA 632-A:2, III. A “pattern of sexual assault” involves more than one act of felonious sexual assault upon the same victim over a period of two or more months and within a period of five years. RSA 632-A:1, I-c. Engaging in “sexual contact” with a person under 13 years of age is a felonious sexual assault. RSA 632-A:3, III. The term “sexual contact” involves “the intentional touching whether directly, through clothing, or otherwise, of the victim’s or actor’s sexual or intimate parts, including emissions, tongue, anus, breasts, and buttocks.” RSA 632-A:1, IV.

The defendant contends the evidence was insufficient because “[a]lthough A.P. testified that Small touched her chest, stomach, and legs, she never used the words breasts or buttocks during her testimony, and there was no other evidence to indicate that her references to chest, stomach, and legs meant breasts or buttocks.” Def. Br. at 16. This argument ignores the requirement that the testimony be viewed in the context of “all the evidence” and the jury’s right to draw reasonable inferences from the evidence. Young, 159 N.H. at 338.

A.P did not simply state the defendant touched her chest. She testified that he did so under her shirt in response to the prosecutor’s question about when the “inappropriate stuff started.” T1 at 80-82. The defendant’s touching of A.P.’s “chest” occurred during episodes in which he performed other sexual acts on A.P. T1 at 83- 99. The defendant subsequently confessed to A.P. that he knew what he was doing was “wrong.” T1 at 95. Further, A.P. explained that she was only nine years old when the abuse started. T1 at 80. At that age, a reasonable jury could certainly conclude that A.P.’s use of the word “chest” referred to her undeveloped breast area. When A.P.’s testimony is viewed in context of all the evidence, a reasonable jury could find that she alleged the defendant touched her breasts.

Other jurisdictions have come to the same conclusion under nearly identical facts. For example, the defendant in Arroyo v. State, 559 S.W.3d 484, 486 (Tex. Crim. App. 2016) argued there was insufficient evidence he subjected the victim to sexual contact by touching her breasts because she used the word “chest” during her testimony. The Texas Court of Appeals rejected this argument, concluding a rationale jury could find the defendant touched the victim’s breasts in light of other evidence that was introduced. Id. at 489. As it explained:

activity as something she “knew... was wrong, ” and she described this activity as progressing to touching her vagina. In describing the three occasions in which Appellant touched her in a sexual manner, K.E. stated that he engaged in the same conduct. Although K.E. was an adult when she testified, she was only nine years old at the time of the conduct and may have been more likely to refer to a child’s undeveloped breast area as the “chest.” We conclude that the evidence in this case was sufficient for a rational jury to conclude that Appellant touched K.E’s breast on three occasions and that the conduct of touching K.E.’s breast was done with the intent to arouse or gratify the sexual desire of a person. Id. at 488-89.

In Cherry v. State, the Georgia Court of Appeals held there was sufficient evidence the defendant committed child molestation by fondling the victim’s breast when she testified at trial that he touched her “chest” with his hands. 642 S.E.2d 369, 372-73 (Ga Ct. App. 2007). Similarly, the Wisconsin Court of Appeals held the jury could rationally find the defendant touched a child’s breasts even though the ten-year old victim testified that the defendant “touched her chest” in light of the victim’s young age at the time of the assaults and trial, as well as the evidence that the defendant did so while he “was in the midst of committing other, varied sexual acts with her.” State v. Famous, 2001 Wisc. App. LEXIS 949, *16- 17, 635 N.W.2d 905 (Wisc. Ct. App., Sept. 19, 2001) (unpublished). As these other jurisdictions recognize, holding there was insufficient evidence simply because the victim used the word “chest, ” as opposed to “breasts, ” invades the province of the jury and strips it of its right to draw reasonable inferences from the testimony based on all the evidence presented at trial. Nevertheless, the defendant contends that the trial court should have granted his motion to dismiss because the facts of this case are analogous to State. O’Neill, 134 N.H. 182 (1991). The defendant’s reliance on O’Neill is misplaced.

In O’Neill, the jury was instructed that it could find the defendant guilty of AFSA only if it proved the defendant sexually penetrated the victim, his eight-year-old son. 134 N.H. at 183. At the time, sexual penetration required proof of “any intrusion however slight by any part of the defendant’s body... into the anal opening of the victim’s body[.]” Id. However, the victim testified only that the defendant “pulled on my pee-pee and stuck his fingers in my bum.” Id. The prosecutor asked the victim to point to his “bum, ” prompting the child to either point to or place his hand on his buttocks. Id. However, the prosecutor did not use follow-up questions or visuals aids to clarify that “bum” referred to the victim’s anus. Id.

On appeal, this Court affirmed the trial court’s order granting the defendant’s motion for judgment of acquittal notwithstanding the verdict on the grounds that there was insufficient evidence that anal penetration occurred. Id. This Court rejected the State’s argument that the victim’s act of pointing to his “posterior” when asked to point to his “bum” supported a reasonable inference he was referring to his anus. Id. at 187. The Court noted that the precise location the victim was pointing to was unclear under the record. Id. at 187. It then concluded that “the victim’s act of pointing at a general area of his body did no more to indicate that he meant his anus, than that he meant his buttocks, and was not sufficient to permit a reasonable inference as to the penetration element of the criminal charge.” Id. The Court supported its reasoning by emphasizing that the prosecution made no attempt to show the victim’s use of the word “bum” meant anything other than its common definition of “buttocks.” Id. Thus, the holding in O’Neill was that testimony the defendant stuck his fingers in the victim’s “bum, ” a word that commonly means “buttocks, ” was insufficient to prove the defendant penetrated the victim’s anus. Such an outcome was consistent with holdings in other jurisdictions concluding that the words “buttocks” and “anus” describe different parts of the anatomy and that touching inside or between the buttocks does not prove sexual intercourse. For example, the Rhode Island Supreme Court held that testimony that the defendant put his penis inside the victim’s “butt” was insufficient to establish sexual penetration because the “words [buttocks and anus] are not synonyms as they describe entirely different parts of the anatomy.” In re B.H., 138 A.3d 774, 781 (R.I. 2016) (quoting Downey v. State, 726 N.E.2d 794, 797 (Ind. Ct. App. 2000)). Similarly, the Washington Court of Appeals found that penetration of buttocks, but not the anus, does not meet definition of sexual intercourse because it “stretches credulity to maintain that the buttocks and anus are components of the same organ or that one is part of the other.” State v. A.M., 260 P.3d 229, 233 (Wash. Ct. App. 2011).

Conversely, no court has held that the words “chest” and “breasts” refer to distinct parts of the anatomy. The defendant complains that “the word ‘chest’ is not commonly defined as just the ‘breasts[, ]’” Def. Br. at 20. (emphasis added). But he does not dispute that the word chest includes the breasts. Even his preferred definition of the word “chest” defines it as “the part of the body enclosed by the ribs and breastbone.” See W

THIRD NEW INTERNATIONAL DICTIONARY, 385 (unabridged ed. 2002). O’Neill also required the State to prove not only touching of the anus, but actual penetration. Moreover, there are no significant anatomical distinctions between an adult and a child that would make the child’s use of the words “bum” or “buttocks” synonymous with the word anus. The same is not true for the breast area of a nine-year old girl. As the Texas Court of Appeals concluded, on strikingly similar facts, the adult witness who “was only nine years old at the time of the conduct and may have been more likely to refer to a child’s undeveloped breast area as the ‘chest.”” Arroyo, 559 S.W.3d at 489. Because the State was not attempting to prove penetration of a body part by relying on the victim’s use of a word referring to a different part of the anatomy, O’Neill is not applicable to the facts of this case.

In this case, a reasonable jury could find that the defendant touched A.P.’s breasts, despite her use of the word chest, when there was also evidence that (1) this touching occurred when A.P. was nine—before she had developed breasts; (2) was “inappropriate”; (3) took place under her clothes; (4) occurred during episodes in which defendant also touched her vagina; and (5) the defendant subsequently confessed he knew what he was doing was “wrong.” T1 81-96. Such a conclusion is consistent with both the jury’s right to draw reasonable inferences from all the evidence, and the decisions of other jurisdictions under substantially similar facts. .

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

The State does not request oral argument. If the Court is inclined to hold oral argument, however, undersigned counsel will argue for the State.

I, Robert L. Baldridge, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 3, 500 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 4, 2023 /s/ Robert L. Baldridge Robert L. Baldridge

I, Robert L. Baldridge, hereby certify that a copy of the State’s brief shall be served on, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

August 4, 2023 /s/ Robert L. Baldridge Robert L. Baldridge