State of New Hampshire v. Timmy J. Rouleau

Whether the court erred by admitting evidence about an Amazon wish list containing sexual toys, on the theory that the evidence was “intrinsic” to the charged crimes. Issue preserved by defense objection and the court’s ruling. T1 69-72. *

The State charged Timmy Rouleau with twelve counts alleging sexual offenses against A.S. (born June 15, 2005). T 1 4-9. Six charges alleged aggravated felonious sexual assault (AFSA), of which two alleged a pattern offense (touching breasts with hand, and digital penetration) and four alleged single acts. A seventh charge alleged attempted AFSA. In addition, the State indicted Rouleau on three counts of felonious sexual assault (FSA) and two counts of sexual assault (SA). Four charges – an AFSA, the attempted AFSA, and both SA’s – specified April 2-3, 2019, as the date of commission. The other eight charges, including the pattern and other single-act charges, all specified commission between March 1, 2016, and June 15, 2018.

Rouleau stood trial over three days in June 2021. The jury returned guilty verdicts on all counts. T 3 346-49. The court (Howard, J.) entered convictions on all twelve counts and sentenced Rouleau to cumulative, stand-committed terms of twenty to sixty years, with two and a half years of the minimum subject to being suspended upon completion of sex offender treatment. S 36-41; A3-A32, A39. The court further pronounced cumulative and consecutive suspended terms of twenty to forty years. A33-A38. Rouleau filed a Notice of Appeal.

Because the single-act and pattern charges overlapped such that convictions and sentences could not be entered on both, this Court remanded the case to the trial court for re- sentencing. The Superior Court subsequently vacated four convictions and stand-committed sentences, relating to single-act charges. A40. The sentences for those four convictions had run concurrently with other sentences, and the court elected not to change Rouleau’s other sentences.

In 2006, Timmy Rouleau and Stacey Genest had a romantic relationship that lasted a few months, during which they conceived a daughter. The relationship revived briefly in 2008 and then resumed for a longer period beginning in December 2015. T1 128-29, 135, 150-52; T 2 230, 232-34. At the time the relationship resumed in 2015, Genest had four children, the eldest of whom was A.S., born June 15, 2005, and whose father was a man Genest dated before Rouleau. T1 40-41, 127-29. The second eldest was Rouleau’s daughter, born in 2007. T1 129, 150-51; T2 232-33. The youngest two were boys, born during Genest’s subsequent marriage to a third man that ended in December 2015. T1 45, 129-31, 151-52. Rouleau is also the father of another daughter, close in age to A.S., born to another woman. T1 95- 96; T2 241. That child would sometimes spend weekends with Rouleau. T1 155-56; T2 241.

In 2019, Rouleau worked a night shift at a convenience store/gas station and took college courses at Great Bay Community College, studying computer science and technology. T1 92-93, 158-59; T2 230-31, 239. Genest worked as a nurse, while also continuing her education through on-line courses. T1 93, 127, 136-37. In March 2016, a few months after the relationship resumed, Genest moved with her four children from the Lakes Region to an apartment building in Lee called Cedarwood Estates, in which Rouleau also had an apartment. T1 45-48, 131-33, 152-53; T2 235- 36. Although Genest rented a separate apartment in Cedarwood Estates, she and her children spent much of their time in Rouleau’s apartment. T1 46-47, 91-92, 132-33, 154- 55. In November 2017, Rouleau, Genest, and the children moved from Cedarwood Estates to Darby Field Commons, another apartment building in Lee. T1 90, 133, 153-55, 172. There, the family occupied a three-bedroom apartment. T1 90-91, 133. In the summer of 2018, Rouleau and Genest became engaged to be married. T1 134. They planned a wedding in July 2019. T1 134-35.

In early April 2019, A.S., then thirteen years old, went on a school-related band trip to Disney World. T1 159-60. The morning following her late-night return home, A.S. told her mother that Rouleau had, that night, touched her sexually. T1 162-63. She had never previously made such an allegation to anyone. T1 109. Initially, A.S. said only that Rouleau had touched her that night. T1 167-68. Genest awoke Rouleau, who was still fully dressed, to confront him. T1 143-44, 163. Rouleau began to cry and, according to Genest, in response to her statement that she would have to call the police, said that if she did, he wouldn’t see any of his kids again. T1 143, 163. With respect to the accusation, Genest testified that he said that he didn’t remember any such thing happening and that he wouldn’t do anything to hurt the kids. T1 142-43, 163-64. After putting the other children on the school bus, Genest took A.S. to work and then to A.S.’s father’s house, where A.S. stayed for a few days. T1 144-45, 164, 167.

After consulting with A.S.’s father, Genest reported the allegation to the police that afternoon. T1 145, 166-67; T2 191, 195. A few days later, when Genest asked A.S. about the April 2-3 incident, A.S. for the first time accused Rouleau of assaulting her on many past occasions when the family lived in the Cedarwood Estates apartment. T1 90-91, 115, 118-19, 167-68.

At trial, A.S. testified that, in the Cedarwood Estates apartment beginning when she was about ten years old, Rouleau would touch her breasts and vagina. T1 51-57. A.S. testified that those assaults would almost always happen on the couch in the living room, and that they happened “quite frequently.” T1 55-56. At first, “it was almost every day. And then it … would be anywhere from every day to every other day.” T1 56. The assaults would happen when Genest and the other children were sleeping or elsewhere or busy, and in the late afternoon after A.S. got home from school but before Rouleau left for work. T1 57. She estimated that Rouleau touched her in this way “a few hundred [times], maybe.” T1 57.

She testified about a couple of specific assaults that stood out in her mind and that the State charged as single acts. On one occasion when she was home sick from school and Genest was at work, Rouleau asked her to watch a movie on his bed with him. T1 60-61. While they lay on the bed, Rouleau put his mouth on her breasts and had her touch his penis with her hand. T1 61-64.

A second assault stood out for A.S. because, unlike the others, Rouleau spoke to her during it. T1 65-68. On that occasion, just after showering, A.S. sat on the couch in the living room to watch television. T1 65. Rouleau then asked her to cuddle and touched her breasts and vagina. T1 66. While touching her, he asked her whether she liked the touching, to which she replied that she did not. T1 66. A.S. testified that, as she aged, she avoided Rouleau by staying late after school, spending time outside with her friends, or staying in her room. T1 58, 67-68; see also T1 138 (Genest’s testimony that A.S. seemed to become more withdrawn). She testified that Rouleau would try to get her to come to the couch, but she would refuse. T1 59. A.S. did not tell anyone about the assaults because her mother and siblings seemed quite happy living with Rouleau. T1 68-69; see also T1 135-36 (Genest’s testimony about Rouleau’s good relationship with the children).

Around the time A.S. was in the seventh grade, the family moved to Darby Field Commons. T1 73-74. A.S. testified that, until the night of April 2-3, 2019, the assaults stopped when the family moved to Darby Field. T1 58-59, 90, 154, 172. Thus, A.S. acknowledged that, for approximately the year preceding April 2019, Rouleau did not touch her sexually.1 T1 99.

A few days before the night of April 2-3, 2019, A.S. traveled to Disney World with her school band. T1 75-76, 159-60. A storm delayed their return flight, causing her to get back to the school from the airport after midnight. T1 76, 99- 100, 139, 160. Genest met the school bus, brought A.S. home and, because A.S. was exhausted and her bed was covered with laundry, had her sleep in the bed Genest shared with Rouleau. T1 77-78, 100-01, 139-40. A.S. went to sleep in her clothes. T1 101-02. When Genest and A.S. went to bed, Rouleau was asleep on the couch in the living room. T1 77, 101, 139-40, 160. During the night, A.S.’s little brother came into the bed to sleep, as at some point also did Rouleau. T1 101-02, 141, 161-62.

A.S. testified that she woke up around 4:30 or 5:00 a.m. to find herself in the bed between Genest and Rouleau, with Rouleau touching her breasts and vagina. T1 78-80, 102. A.S. tried, without success, to wake Genest. T1 80. Rouleau then put his penis between her legs, such that it “felt like the tip of the penis had gone in” her vagina, “but not the whole thing.” T1 80-81.

A.S. started crying and Genest awoke. T1 81-82, 102, 141-42, 162. A.S. testified that Rouleau then rolled over on his side “as if nothing was happening.” T1 82. Seeking to understand what upset A.S., Genest took her downstairs where A.S. told Genest that Rouleau had just touched her sexually. T1 82-83, 105, 142. A.S. then went to sleep in her own bedroom. T1 83, 105. A.S. did not at that time tell her mother that Rouleau had ever previously touched her sexually. T1 84, 106. When Genest later asked her whether Rouleau could, in the darkness in his own bed, have confused A.S. with Genest, A.S. told Genest that Rouleau had also touched her in similar ways before. T1 84-85, 147. Rouleau testified and denied the allegations. T2 239, 248-49, 252. The defense highlighted evidence tending to cast doubt on the plausibility of the claim that Rouleau could have assaulted A.S. in the ways she described for so long in so small and busy an apartment. The Cedarwood Estates apartment was approximately 450 square feet and often full of people when the children were present. T2 235-36, 240. Also, because Genest did her schooling on-line, she was often present during the after-school time in which A.S. claimed to have been assaulted. T1 137; T2 240. At no point did Genest ever see anything to cause her to suspect abuse by Rouleau. T1 157, 159. In addition to testimony about the schedules of the adults, the defense elicited evidence describing the busy schedules of the children, which often kept Rouleau and Genest occupied taking the children to their various activities. T1 94-98, 113-14, 155-59; T2 237, 240-42. Moreover, a medical examination of A.S. yielded no abnormal findings. T2 218-19, 224.

By way of an explanation for a false accusation, the defense elicited evidence that A.S. saw her own father less frequently after her mother moved to Lee to be with Rouleau. T1 86-89, 98-99. With the looming prospect of Genest’s marriage to Rouleau, A.S. made a false accusation to end the relationship. Indeed, soon after A.S. made her allegations, Genest moved the family back to Laconia. T1 147. A.S. also testified that members of her family had been very supportive of her, in the aftermath of her making the allegations against Rouleau. T1 89, 165, 171-72.

To bolster its case, the State elicited A.S.’s testimony that Rouleau maintained a purchase wish list for her on Amazon. T1 72. Such lists permit customers to bookmark items they are considering buying. For example, A.S. could put on her list items she wanted for Christmas. T1 72-73, 111-12. She testified that Rouleau would put sexually- oriented items, such as sex toys, lingerie, and a penis-shaped lollipop, on her list and have her rank them in the order that she wanted them. T1 72-73. She testified that she feared that he would one day order one of those items and give it to her when other people were around. T1 73. She testified, though, that Rouleau never bought any of the sexual items, though he did once buy lingerie. T1 112.

The court erred in admitting evidence about an Amazon wish list for A.S. on which Rouleau put sexually-oriented items. When the defense objected, the State disclaimed reliance on Rule 404(b) for the admission of the evidence. Instead, the State argued, and the trial court ruled, that the wish-list evidence was intrinsic to the charged assaults. This Court’s caselaw, however, establishes that that evidence was not properly admissible as intrinsic to the charged crimes. Because the erroneous admission of the evidence prejudiced the defense, this Court must reverse Rouleau’s convictions.

On direct examination of A.S., after eliciting her testimony about the assaults in the Cedarwood Estates apartment and after asking why she had not reported them, the prosecutor asked the following question:

T1 69. Before A.S. could answer, defense counsel asked to approach. T1 69-70. Noting that the State had not filed any motion in limine seeking to introduce evidence under Rule 404(b), counsel asked for a proffer of what the State intended to elicit. T1 70. The State replied that A.S. would testify about a shopping wish list on Amazon created by Rouleau for A.S. that included “sexual toys and things like that, and one thing she particularly described was a penis-shaped lollipop.” T1 70. A.S. would testify that Rouleau required her to rank the items in order of her preference. T1 70.

New Hampshire law requires the proponent to give notice no later than forty-five days after the entry of a not- guilty plea of its intent to elicit evidence under Rule 404(b). See N.H. R. Crim. Pro. 12(b)(1)(F). Possibly bearing in mind that rule and the fact that the State had not, even belatedly, 2 filed such a motion, the prosecutor disclaimed any argument for admissibility of the evidence under Rule 404(b). T1 70. Instead, the prosecutor contended:

T1 70. Having thus disclaimed Rule 404(b), the prosecutor addressed the admissibility of evidence she described as “intrinsic” to the charged offenses as a question of Rule 403 weighing of probative value against the risk of unfair prejudice. T1 70-71.

The defense objected, asserting that the evidence fell within the scope of Rule 404(b). T1 71. Counsel contended that the evidence seemed to describe grooming behavior, a type of evidence traditionally treated under Rule 404(b). T1 71; see also, e.g., State v. Haley, 141 N.H. 541 (1997) (affirming admission of grooming evidence under Rule 404(b)); State v. Castine, 141 N.H. 300 (1996); (same). Moreover, according to A.S.’s testimony, the sexual assaults did not occur continuously throughout the time she lived with Rouleau, but rather had stopped for about a year when the family moved to the Darby Field Commons apartment, until the night of April 2-3. The defense also objected to the evidence under Rule 403, if Rule 404(b) did not govern the question of its admissibility. T1 71.

The court overruled the defense objection. T1 71. In so ruling, the court reasoned:

T1 71. Because the court admitted the evidence as intrinsic, the defense had no basis to request a Rule 404(b)-oriented limiting instruction, and none was given. The State proceeded to elicit the evidence described in the fact statement above, relating to the Amazon wish list. T1 72-73. In admitting that evidence, the court erred.

If the trial court correctly interprets the rules of evidence, its application of those rules is reviewed for an unsustainable exercise of discretion. State v. Munroe, 173 N.H. 469, 472 (2020). Under that standard, this Court assesses whether the ruling is clearly untenable or unreasonable to the prejudice of the appellant’s case. Id. This Court does not, though, defer to the trial court’s interpretation of the rules of evidence. Id. (“we review the trial court’s interpretation of court rules de novo”). Given the procedural history described above, this case poses a legal question about the scope of evidence admissible as “intrinsic” to the charged crimes. This Court’s review, therefore, is de novo.

This Court has “distinguished between ‘extrinsic’ evidence of other crimes, wrongs, or acts, which is governed by Rule 404(b), and ‘intrinsic’ evidence, which is not.” State v. Thomas, 168 N.H. 589, 598 (2016). Evidence of other acts “is ‘intrinsic, ’ and therefore not subject to Rule 404(b), when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged.” Id.; see also State v. Papillon, 173 N.H. 13, 24-25 (2020) (articulating same analysis); State v. Wells, 166 N.H. 73, 77-78 (2014) (same); State v. Dion, 164 N.H. 544, 551 (2013) (same). “‘Intrinsic’ or ‘inextricably intertwined’ evidence will have a causal, temporal, or spatial connection with the charged crime.” Wells, 166 N.H. at 77.

By way of further explanation, this Court has observed that, “[t]ypically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged offense.” Wells, 166 N.H. at 77-78. The Court has also said that such evidence “is admissible under the rationale that events do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of the charged act so that it may realistically evaluate the evidence.” Id. at 78 (quotation marks and citation omitted).

An application of those principles yields the conclusion that the Amazon wish list was not intrinsic to the charged crimes. The wish list did not form a part of the same criminal episode as any charged act. The State did not proffer (and A.S. did not testify) that Rouleau mentioned or otherwise used the wish list immediately before, during, or immediately after any sexual assault.

For the same reason, the wish list lacked the requisite “causal, temporal, or spatial connection with the charged crime.” Wells, 166 N.H. at 77. The success of Rouleau’s assaults, as alleged by A.S., did not depend in any way on his discussions with her about the wish list. A.S.’s testimony about the wish list was not “essential for providing a coherent and intelligible description of the charged offense.” Papillon, 173 N.H. at 26 (citing Wells, 166 N.H. at 78 and United States v. Clay, 667 F.3d 689, 698 (6th Cir. 2012)).

Moreover, for at least two reasons, the State cannot characterize the wish list evidence as “intrinsic” to the charged assaults by relying on the fact that some charges alleged a pattern AFSA between March 1, 2016, and June 15, 2018. T1 4. First, while a pattern AFSA alleges a course of conduct over a period of time, RSA 632-A:2, III, that does not mean that a pattern AFSA is a continuing offense in the sense that possession of contraband, for example, is a continuing offense. See, e.g., State v. Farr, 160 N.H. 803, 809-12 (2010) (describing continuing offense). People who possess drugs continuously commit the crime of possession from the moment they obtain the drug until the moment they dispossess themselves of it. A person who commits a pattern AFSA is not continuously committing the crime. Rather, they commit the pattern offense only in those moments during the charged period when they are assaulting the victim. Second, it bears emphasis that A.S. testified that Rouleau stopped assaulting her when the family moved to the Darby Field apartment, a move that happened in November 2017, more than a year before A.S. first accused Rouleau on the morning of April 3, 2019. T1 172. The State’s proffer did not indicate when the Amazon wish list was created or when (or how often) Rouleau talked with A.S. about it. The prosecutor proffered that the wish list happened “in the midst of this timeframe” and that it was not “prior to” the first assaults. T1 70. For all that the record reflects, the wish list could have been created following the move to the Darby Field apartment, and thus at a time when, according to A.S., the assaults covered by the pattern charges had stopped.3 Caselaw confirms the conclusion that the wish list was not intrinsic to the charged crimes. In every case in which this Court has found other-act evidence intrinsic to the charged crime, there existed a much closer connection between the other act and the charged crime. In Wells, for example, the charge alleged aggravated felonious sexual assault in the form of intercourse, and the other-act evidence held to be intrinsic consisted of testimony that, during a single criminal episode, shortly before engaging in the charged intercourse, the defendant digitally penetrated the victim. Wells, 166 N.H. at 76-78; see also Dion, 164 N.H. at 551 (in negligent homicide prosecution arising out of incident in which defendant’s car struck and killed pedestrian, describing as “intrinsic” evidence of defendant’s cell phone usage during that same journey); State v. Hall, 148 N.H. 671, 675 (2002) (affirming admission of evidence of uncharged act where act was “part and parcel of the same episode”). By contrast, the wish list lacked that kind of connection to a charged act. This case differs also from cases such as State v. Martin, 138 N.H. 508 (1994). In that sexual assault case, evidence that the defendant threatened or inflicted harm on the victim’s pets was deemed intrinsic to the charge because it explained the victim’s delay in reporting the assaults. Id. at 518-19; see also State v. Kulikowski, 132 N.H. 281, 287 (1989) (same). Here, by contrast, there is no evidence that A.S. delayed disclosure of the assaults because of the wish list. Indeed, the fact that she seems not to have told the prosecutors about the wish list until shortly before trial, T1 71, supports the conclusion that the wish list did not influence A.S.’s actions relating to her reporting of the alleged assaults.

For all these reasons, this Court must conclude that the wish list was not intrinsic to the charged assaults. As noted above, other-act evidence is admissible, if at all, only as either “intrinsic” to the charged crimes, or via Rule 404(b). 4 See Thomas, 168 N.H. at 598 (distinguishing “between ‘extrinsic’ evidence of other crimes, wrongs, or acts, which is governed by Rule 404(b), and ‘intrinsic’ evidence, which is not”). Accordingly, evidence of Rouleau’s uncharged acts of creating the wish list and discussing it with A.S. could be admitted, if at all, only under Rule 404(b). Because the State and the trial court disclaimed reliance on Rule 404(b), no legitimate basis existed to admit the evidence. It therefore had no probative value.

It did, however, carry a substantial risk of unfair prejudice. The evidence depicted Rouleau in a very negative light, as one who would discuss sexual matters with a child. The evidence therefore carried a substantial risk that the jury would engage in propensity-based reasoning. That is, the jury might resolve doubts about Rouleau’s guilt on the basis that, because he is the kind of person who would create for a child a wish list containing sex toys, he is the kind of person who would sexually molest that child.

Evidence Rule 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury....” “Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, arouse 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. Willis, 165 N.H. 206, 216 (2013). As explained above, to be admitted, other-act evidence must be either “intrinsic” to the charged offenses or, if “extrinsic, ” admissible under Rule 404(b). Rule 403 cannot function as an alternative rationale for admission of other-act evidence, for if it could, the special admissibility rules constructed under Rule 404(b) and under this Court “intrinsic” doctrine would become superfluous and irrelevant. As this Court has noted, “Rule 403 is a rule of exclusion that cuts across the rules of evidence.” Zola v. Kelley, 149 N.H. 648, 654 (2003). If evidence must be excluded by application of the rules governing the admissibility of other-act evidence, Rule 403 – itself a rule of exclusion – cannot render that same evidence admissible.

In Papillon, this Court described the intrinsic-evidence doctrine as an “exception to Rule 404(b).” Papillon, 173 N.H. at 28. In interpreting the exception, this Court “must remain mindful of the purpose of Rule 404(b), which is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based upon evidence of other crimes or wrongs.” Id. (cleaned up). If other-act evidence does not fall within the exception, it is therefore governed by Rule 404(b). Rule 404(b) contains not only the Rule 403 balancing principle, but also other restrictions on admissibility. Thomas, 168 N.H. at 598. It therefore follows that, having failed in its attempt to characterize the other-act, wish-list evidence as intrinsic, and having disclaimed Rule 404(b), the State cannot then seek its admission under Rule 403.

Here, because the State and court disavowed Rule 404(b) and because the evidence was not intrinsic to the charged crimes, the evidence had no substantial, admissible probative value. Because, as also described above, the evidence carried a substantial risk of unfair prejudice, even if applicable, the Rule 403 balancing test must arrive at the conclusion that the risk of unfair prejudice substantially outweighed the probative value. The trial court therefore erred in admitting the evidence and this Court must reverse Rouleau’s convictions.

WHEREFORE, Mr. Rouleau respectfully requests that this Court reverse his convictions.

Undersigned counsel requests fifteen minutes of oral argument before a full panel.

The appealed decision was not in writing and therefore is not appended to the brief.

This brief complies with the applicable word limitation and contains approximately 4673 words.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.