State of New Hampshire v. Timmy J. Rouleau

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I understand reserve one Minute. Yes, your Honor. Thank you. May it please the court, Christopher Johnson on behalf of Tim Ruo. The issue in this appeal is a claim air in the admissibility as other act evidence intrinsic to the charged acts of this Amazon wishlist. My plan that, uh, this afternoon is to first, to address the merits of that and then second harmless error. I'm happy to take the court's questions at any point. So beginning with the merits, I think it's useful to start by identifying some areas of agreement or nons dispute. First, there seems no, there is agreement that this is other act evidence. Second, there is agreement, I think that it was not admissible under 4 0 4 B and third, there's no claim here that it's admissible to prove that defendant's intent the dispute rather, is whether this other act evidence was admissible because intrinsic to the charged acts, this court in a series of cases has our, has sort of formulated the test for that in various ways. Um, whether the, um, other act and the charges are inextricably intertwined, whether the other act is a necessary preliminary, whether the other act completes the story of the charge defenses. I think all of those articulations are aimed at a single concept. And this evidence fails that test. It's not inextricably intertwined. There was no evidence that the list was ever mentioned during the assaults or for that matter, that the assaults were referenced during discussions about the list. And it wasn't necessary to complete the story. Indeed, as never mentioned this to the authorities until just before trial, and as the state has pointed out, the prosecutor didn't see any reason to mention it enclosed. So it's not part of the story of the charges. It Sort of sounds like the trial court didn't have enough information before to make a determination as to whether it was intrinsic to the underlying offenses. Like for when, when was this first mention to the alleged victim? So The, um, what the record reflects about that I is brief, but what it is is that about a week before trial, presumably in sort of final witness prep, the as mentioned this to the prosecutors and then they turned it over or to the defense, so about a week before trial. Um, and that's, and that's what, that's the end of what happened with respect to this before trial. Then it came up as, as the briefs, No pretrial litigation on it, no Pretrial litigation. So when the, uh, state was making its proffer, did they indicate what timeframe this occurred? No. And so it's another feature of this. I think that the, you know, is a problem for the state is that the record doesn't show when the, uh, wishlist was created. And as, as the court knows, there's sort, sort of this, the span of this case covered a relatively long period of time, including one long gap of where there about 17 months. There were no alleged assaults. And so there's this long period in which if the list was created during, you know, there may have been a long delay before the list was even graded for, for example, the state's arguments. I think that this is intertwined are two, and the court has to reject both of them. First. There is the assertion that this, um, explains the delay in disclosure. So this argument necessarily must refer to the Seawood apartments allegations that proceeded 17 month delay. But a asked, when she testified, gave a completely different reason why she didn't disclose the, uh, assaults that she says were happening to her. That reason having to do with maintaining the peace of in the family life. She didn't mention the wishlist as the reason why she didn't disclose this, um, earlier. And again, as pointed out, there's no evidence of one list was created. And so there may have been a, a considerable delay before it was even, you know, implemented the state's. Second point, I think about how this is, um, integral is that it it relates to the how the defendant or how why a s isolated herself from, from. The problem with that is that her act of isolation from him would be fully explained by the charged assaults. And indeed in a certain sense, if the idea is that her behavior of isolation tends to prove the assaults because she didn't want to get assaulted and therefore isolated herself from him, the list actually detracts from that explanation because it would give another reason why she would isolate from him that there's this creepy wishlist. Even he wasn't assaulting her at all. And so it doesn't sort of, it, the list neither contributes to any explanation for delay and disclosure, nor does it offer any useful information. And it's agreed that the defendant never acted on this list. I think the testimony was that, um, as testified that he bought one item of lingerie but otherwise didn't buy any of the things, the sexualized items on the list. Um, which gets me to harmless error. Before you move on, uh, you argue that we should adopt or apply a de novo standard. You are there, Are there any I think Cases you could point to that would suggest that's I, well, so I, you know, I often put that in my briefs because I think these evidence issues, um, frequently, there's sort of two ways to look at them. One is as an application of clearly established rules, in which case the review is not de novo. But the other way of looking at sometimes is what is meant by intrinsic The boundaries of what is Intrinsic. Yeah, boundaries of what that sort of, sort of, if you think of it as Venn diagram, there's other acts and some of them are under 4 0 4 B because they're not intrinsic and others are not under 4 0 4 B because they are intrinsic. And so to the extent that the court sort of construes what is meant by intrinsic, that would be a question of law that would be, um, not entitled to deference. As you turned to harmless error, you just said, well, you know, this, this, uh, evidence of the Amazon list really actually cuts against the state's case. So doesn't that cut against your harmless I don Error argument? I don't think so. It cuts against the purpose, nominal purpose for which the state argues, but it doesn't cut against the state's case. Here's the harm. I think, um, it's propensity. I think that's the thing we always worry about with other act evidence, whether it's 4 0 4 B or intrinsic, of course it's intrinsic. It comes in. What could happen here is that this evidence sort of bootstraps or is a, a bootstrapping function. If the jury thinks that the wishlist testimony is sort of more persuasive or credible and is less sure about the actual claimed allegations, it would think, well, if she's telling the truth about this, this evidence, that means he's, he's the kind of person who would create this wishlist. And so there's a propensity sort of a negative bad character inference. And so that's the danger I think. And let me point out a couple other features of this as it relates to harmless air, that the state has made no argument that this is cumulative. Nothing else like this is introduced in this trial and it, it was evidence I think that was especially salient because it's sort of unique and odd. So the only argument the state is making is that the other evidence of was overwhelming, not that this was cumulative. Well, in addition, as you point out, the state doesn't mention this in its closing, so it's not really referenced that much. It, it wasn't part a significant part of the state's case. So it it, it had no relevant piece in no relevant place in the state's case. But I think this is, this court has a line of, uh, a well stated line in of its opinions about when an elephant walks through a courtroom, the jury doesn't need a forceful reminder. And I think that applies here because this is so salient. And That's the chief's line, by the way. Yeah, no, it's, it's, it's one of my favorites. Um, but, and, and I think again, it's, um, so the concern here is the jury's not in a two day trial or the evidence evidentiary phase of this case was two days. So this is not a long trial. They're not gonna forget the Amazon wishlist and how are they going to think about it when they come to deliberations, when they haven't given any limiting instructions? 'cause it's come in as intrinsic, they're gonna think, you know, or it's certainly plausible that they would think that is sort of a telling detail that has a ring of truth. And if that he's that kind of a person, he's the kind of a person who would assault a child. And so it's got this propensity, which is not the nominal purpose. And that's of course why they can't say that in closing and didn't, but that's the danger is that, um, in a, in what is a close case, we have no police confession. We have no other eyewitness to the assaults. But didn't he make admissions himself To his wife? He denied committing the assaults. I mean, the state points out that there's, you know, he testified and he talked to the police before trial, and so there's a piece of the state's closing argument and the briefing. Did he make An admission to his wife when she first confronted him? If you tell the police, I've never seen my kids again. Yes, she, but again, I think that's different from a confession to the police when you have a recorded statement to the police. You know, I'm not sure that the defense sort of accepted, you know, belief, thought that the jury should believe the wife when she says that's what Rue said, um, by the time of trial, she certainly aligned against him. Um, so it doesn't have the power of a police confession, which is reported and it's a neutral disinterested witness. Um, and there's no physical evidence. And this court sometimes sees, you know, the bodily fluids on the bed or something. Um, this, so no other eyewitness, no police confession, no physical evidence. And those inconsistencies that the state points out in its brief, I think are consistent with the kind of the terror and innocent defendant when faced with charges like this would feel when they're trying to, in a way, prove a negative show that something didn't happen. These are not, you know, there's nothing in his testimony that, um, would, I think would strike a fair-minded jury as aha they got him that he, he, you know, his own testimony hangs him, even though nominally he's denying that this happened at all. So for those reasons, say it's not intrinsic evidence and, and because of its uniqueness in this case, the court must find that they can't show beyond a reasonable doubt. Can you just clarify for me, I I can't recall the specifics of the record. Did the defendant testify at all about this uh, list? I don't think so. I'm not, he, I don't recall that he was asked on direct. There may have been something on cross, but the, the, by far the largest part of this, I came on the state's direct of as Well. There, there was no like screenshots or anything. This is just, that's right. That's oral testimony about that this existed. That's Right, that's Right.

Thank you Attorney Woodcock. Thank you, your Honor. May it please the court, Elizabeth Woodcock for the State of New Hampshire. This is intrinsic evidence, your Honor. It is not propensity evidence because it's an entirely different act sep easily separated from the acts with which the defendant was charged. The timeframe that we're talking about for the most part in some of the indictments are, are from, uh, March, 2016 until the, uh, victim's birthday, which is in June of 2018. If you look at that time, that includes essentially three birthdays to Christmases so that during this time when she is being abused, uh, he is making her sit down and look at these toys which, or sex toys, which he is sort of threatening to give her as a present during This time more than once, or you're saying, or one of these birthdays or Christmases. I, I, we don't know. I think that her, her testimony was not exact, but she did say that the other children drew up regular old Amazon wishes. And so that gives you the impression that this wasn't just a one time thing. And the, the point of all of this is that it's, it's not exactly grooming because she's already involved in this situation. It, when I was thinking about it, I thought that it seemed almost more like gaslighting. That, that here she is, she is in a precarious situation and the precarious situation, it's made even more precarious by her terror that she will sit down on Christmas morning or on morning of her birthday and open up a present that is completely inappropriate and she will be humiliated and embarrassed. It's also a way of isolating her from the rest of the family because the other children are sitting down at Amazon and they're drawing up their wishlists and they're having a great time, but she's being forced to look at sexually explicit toys, inappropriate for a child that age, and all of a sudden she's isolated from what she perceives as being an otherwise happy family. And so you can imagine from that standpoint, that is intrinsic to the entire offense because part of what he's doing is he's counting on her never telling anyone. And we know that's true for countless sexual assault victims. I mean, that is an mo for, for children who are being abused. So I count on you never telling anyone, and this is a way of making darn sure she won't, you know, you can imagine what, how horrible experience it was for her to be given. He keeps telling her, I got you something from Amazon and she's afraid that she's going to open it in front of her friends and it's going to be this lollipop. And she, she's terrified. So I think when you look at it and you look at why this evidence is relevant, you know, it's not exactly gaslighting 'cause he's not trying to make her think that she's mad, but he is trying to isolate her in a way that he does not isolate the rest of the family. He, the, it is clearly not propensity evidence if, and it's not 4 0 4 B evidence. If he were buying, if he were doing this with the other kids, that might be 4 0 4 B evidence, you know, if he was saying to the other children but he wasn't abusing them, he's making 'em sit down and pick out these sexually explicit boys that that could be 4 0 4 B evidence. But that's not, this, this explains what the victim was thinking at the time. And I think that one of the questions that always comes up in these cases is why didn't the person say anything? And that is what the defense really said, and it's, it's, uh, opening statement. He says, this didn't happen, but the victim is doubling down so she's telling the same lie over and over again. Well, this evidence goes to explain what that silence, why the silence existed for the length of time that it did.

But, but, uh, Mr. Johnson makes the point that the, uh, state of the record is that the best information about the timeframe is that it's in the midst of the timeframe, and it could have, there's no reason to believe that it happened during the two years that you were talking about. It could have been, this list could have been in the year interlude. Is that, is that factually correct? Well, I think it is factually incorrect because as he was making that argument, I was trying quickly to read the indictments on page four, five and six of the transcript. And I can't say that I can read that fast, but, um, the timeframe that includes her birthday are the length of times from March until June 15th. The other, one of the other indictments, I think is in April. So there would be no point when they, and that's alleging specific, uh, assaults. So there would be no point for a wishlist at that point. The wishlist has to come at a time when it's either her birthday or Christmas. But there's a one year gap, isn't there? Pardon me? No, there's a one year gap, Not quite. And I, as I say, I was reading this very quickly. The, the, uh, stretch of indictments goes from June, from May, March, 2016 to June, 2018. And then there the next indictment is April, 2019. So that's 10 months later. It's not quite a year, but that you wouldn't be drawing up the wi wishlist if your birthday was June 15th in April. In all likelihood, you'd be drawing up closer to that time. And that's why I think when I'm reading the record, I I will admit that it could be a little bit clearer, but when you look at the charges, the ones that make the most sense are the ones that have that block of time. Um, it Can you, can you address harmless error? Pardon Me? Can you speak to harmless error? Well, I think it is, if it was error, and I don't think it was your Honor, but if it was error, I think it's harmless because the evidence in this case is very strong. There are very few times, and the court is well aware of this, that you actually have another person who is essentially a witness to the assault and the mother didn't actually see it happen, but the last assault happens when they're all in bed together. And the reaction of, of the victim and the reaction of the defendant, because even though, uh, Mr. Johnson says he didn't really say anything, well, when she confronted him, he started to cry and then he told her that he would go to prison and he would never see the children again. So there was, there, there were statements that he made to her that would have led her to believe. Then she, she delayed in reporting it to the police. 'cause she thought, well, maybe this is just a mistake. He didn't realize he, he wasn't sort of half asleep and he reached out and it becomes clear that it wasn't a mistake because then the victim says, no, this has happened to me over and over again. Now were there, were there any other allegations of penetration other than the attempt of penetration in April of 2019? Um, I can't remember exactly what she testified to. She testified to a lot of sexual contact, Right. Contact that wouldn't result in any physical evidence. Right. I'm, I'm not a hundred percent sure of that. Justice Dunna, she did say that these assaults took place every day and then they moved to like every other day. So it was really a constant Pattern. But I get the sense she was talking about sexual contact there as opposed to actual penetration. Uh, yeah, maybe digital penetration. I think she talked about that, perhaps not the other. Um, but in any event, I think that his reaction, it speaks volumes because it isn't, Hey, wait, no, what are you talking about? It's, uh, gee, I guess I'll go to prison for a long time. I'll never see the kids again. And that's a very different reaction than then when he got, when he talked to the police, of course he gave some conflicting responses and he was even conflicting when he was, when he was being, uh, giving direct cross-examination. Te testimony was inconsistent. You know, I, I heard that she had been crying as opposed to I saw her crying. Uh, those kinds of things would have undermined his credibility. Uh, and that combined with the fact that this, the description of this particular assault is so vivid. I mean, they come back from this, this trick and the everybody agrees that the clothes that the, the sibling has put all the clothes on, the folded all the clothes, and they're all on her bed and she can't go to sleep there. So she goes to bed with the mother, the defendant is down, sitting on the couch, and then when they wake up in the morning, all three of them are in bed together. That's pretty strong evidence to support the victim's account of what happened while they were in bed. You know, even setting aside his responses when he's confronted, confronted by the wife, Do you agree that the proper analytical framework for this is whether or not it's intrinsic evidence and that we shouldn't think about it under 4 0 4 B? Uh, uh, it, it's, it isn't 4 0 4 B, your Honor. It's, it's relevant evidence. It's the prejudicial impact does not outweigh the probative value. It should be analyzed for its, uh, admissibility as relevant would affect this in contest. And the fact that is in contest here is what the defendant actually assaulted the victim over the course of this time and whether he assaulted her that day. If the court has no further questions for me,

I will yield the podium to, uh, Mr. Johnson. Thank you, Attorney Woodcock. Just very briefly to clarify the timeframe. So, um, attorney Woodcock is correct. The indictments alleged a period of the pattern indictments from March of 2016 to June of 2018. But the testimony came in very clearly that the family moved to the second apartment, the Darby Field Commons in November of 2017. There were no assaults there. So you have an initial period, I think 20 months from March of 2016 to November of 2017, and then you have a period of 17 months from November of 2017 to the beginning of April, 2019. And so that's, um, and, and there's no sense of when in that 37 month period this, this was created. And it's your view that because of the state of the evidence that it's in the midst of the timeframe that, that, that, uh, this, um, Amazon list could easily have come within the 17 months. And that would be the Right, I mean, there's birthdays and Christmases in there for sure as well. Thank you. Thank you, counsel. What's adjourn all.