State of New Hampshire v. Jeramy Hodges

The Belknap County grand jury indicted the defendant with four counts of aggravated felonious sexual assault (AFSA), alleging that the defendant engaged in forced cunnilingus twice and forced vaginal penetration twice with the victim, contrary to RSA 632-A:2, I(j). T 1 6-8.

The grand jury also indicted the defendant with one pattern AFSA alleging that the defendant “subjected [the victim] to sexual contact and thereby caused her to suffer serious personal injury, to wit, [] severe mental anguish or trauma, ” for a period of two months or more and within five years, contrary to RSA 632-A:2, III. T 8. The victim was the defendant’s stepdaughter and was between 13 and 16 years old during the sexual assaults. T 6-8, 15. The individual sexual assaults occurred between September 1, 2019 and December 1, 2019. DA 7, 12, 18, 23. The pattern sexual assault occurred between December 22, 2017 and December 22, 2020. DA 28.

Following a two-day trial in November 2022, the jury convicted the defendant on all the charges. T 361-362. On January 26, 2023, the trial court (Leonard, J.) sentenced the defendant to twenty to forty years stand committed in the state prison, with two years of the minimum suspended upon completion of the sexual offender program in the state prison, on three of the single AFSA convictions. DA 3-18. The trial court also sentenced the defendant to ten to twenty years all suspended for ten years 1 Citations to the record are as follows: “DA_” refers to the defendant’s appendix to his brief and page number; “DB_” refers to the defendant’s brief and page number; and “T_” refers to the trial transcript and page number. upon release on the fourth single AFSA and the pattern AFSA convictions. DA 19-28. This appeal followed.

At the time of trial, the victim was seventeen years old and was living with her father, the victim’s stepmother, and the stepmother’s two children in Laconia, New Hampshire. T 40-41. Prior to living with her father, the victim lived with her mother, the defendant, the victim’s younger brother, and the victim’s two younger half-siblings in Laconia, New Hampshire. T 42-44. The victim’s father explained that in 2007, when the victim was three and her brother was an infant, he and the victim’s mother divorced, and the children lived primarily with their mother. T 134-36. The victim had known and lived with the defendant “forever, ” and had lived with him and her mother until approximately one year prior to trial, when she began living with her father. T 40-41, 44-45. When the victim was living with her mother and the defendant, she did not see her father often because “he was caught up in his own life, and he ended up going to prison for a year and afterwards lived too far for us to go see him, so we didn’t have like a great bond for a little while.” T 46. The victim’s father explained that in 2015 and 2016, he was incarcerated in the New Hampshire State Prison. T 136-37. When the victim was in high school, her father was released from prison. T 46, 137. Upon his release, the victim spent more time with her father and eventually spent every weekend or every other weekend with him. T 46-47. When the victim was in elementary and middle school, the defendant was “like [her] father because he was in [her] life more than [her] actual dad was.” T 47. While the victim lived with her mother and the defendant, her mother “always” worked “late shifts” that usually began around 4:00 p.m. and ended around 11:00 p.m. or midnight. T 48. While her mother was working, the defendant would watch the children, make them dinner, and get the children ready for bed. T 48-49.

When the victim was in middle school, the defendant began “touching [her] vagina and he would go down there and he would use his mouth” in the victim’s bedroom at night. T 49-50. The first time the victim remembered the defendant sexually assaulting her, the defendant entered her room while she was sleeping and he “use[d] his hands, and then he [] kiss[ed] [her].” T 50. Then, “after a little bit, ” the defendant left the victim’s bedroom. T 51. The victim explained that the defendant used his hands to touch her vagina under her clothes. T 51. She later explained that on a couple of occasions, the defendant touched her vagina over her clothes. T 92-93. She also explained that, once or twice, he made her touch his penis with her hand by putting her hand on his penis underneath his clothes so that she was touching the “skin of his penis.” T 51. These sexual assaults happened more than one time and occurred throughout the victim’s middle school years, and while she was a freshman and sophomore in high school. T 52, 55.

One night, the victim was showering. T 58. After she finished, she walked back to her bedroom in a towel. Id. Before she made it to her bedroom, the defendant “came up from behind and pulled [her] into [her] mom’s room, ” locked the door, and brought her over to the bed. Id. Once the victim and the defendant were on the bed, the defendant took her towel off and used “his mouth” to lick her vagina. T 58-59, 63. Then, the defendant put his penis inside the victim’s vagina. T 63. When the defendant did that, the victim’s vagina hurt “a lot.” Id. When the defendant put his penis in her vagina, she was sitting on the side of the bed with her legs hanging off of the bed and the defendant was standing in front of her and in between her legs. T 63-64. While this sexual assault was occurring, the victim pushed herself away from him and towards the wall. T 64. Eventually, the defendant stopped, and the victim left the bedroom and went back into the shower. T 65. When she got into the shower, the victim saw that the inside of her vagina was bleeding. Id. While she showered, she was crying. Id. After she finished showering, she went to her bedroom, got dressed, put a pad in her underwear because she was bleeding, and went to bed. Id.

During this assault, the lights in the bedroom were off. T 64. The victim’s three siblings were home during this assault, but they were downstairs while the victim and the defendant were upstairs. Id. The victim explained that this single instance of sexual assault happened a second time in her mother’s bedroom at night. T 66-67. This time, the defendant used his mouth to lick her vagina and put his penis inside her vagina, which caused her to bleed from her vagina. T 66. She said that the defendant putting his penis in her vagina also hurt her vagina. Id. After this assault ended, she went into the bathroom, cried, and put a pad on to stop the bleeding. Id.

The victim explained that these two sexual assaults made the victim feel embarrassed and scared because it was the first time that she had engaged in sexual intercourse, and she had hoped that her “first time” would be with “someone special in [her] life. And it was just kind of taken.” T 67.

When the defendant sexually assaulted the victim in her bedroom, her younger sister was in her bedroom as well because the two shared a bedroom and slept in bunkbeds. T 51. Her younger sister slept in the top bunk while the victim slept in the bottom bunk. T 51-52. The victim’s younger sister did not wake up during the sexual assaults. T 52. When the defendant sexually assaulted the victim at night, she pretended to be asleep in the hopes that “nothing would happen.” T 55. When that did not make the assaults stop, the victim had her younger sister sleep in her bottom bunk with her. Id. On the occasions when the victim’s sister slept next to her, the defendant did not sexually assault the victim. T 55-56. Some nights, the victim’s sister did not sleep with her, which is when the defendant would sexually assault her. T 56. The victim explained that the defendant’s sexual assaults of her caused her nightmares and “trust issues” with people. T 72. She also explained that the defendant’s sexual abuse “mentally” hurt her. T 130. During the time frame that the defendant sexually assaulted her, the victim told a couple of her friends and her youngest sister, who lived with the victim’s father. T 57, 139. Her youngest sister told her school guidance counselor about the assaults and “someone from DCYF came to [the victim’s] school and talked to [her].” T 57. The victim denied any sexual abuse to the DCYF worker because her mother was “financially supporting [her] family, ” and she did not want to “mess anything up” or take away a parent from her household. Id. DCYF also contacted the victim’s father and notified him about “concerns about sexual abuse” regarding the victim. T 139.

The victim explained that after she spoke with DCYF, she did not tell anyone else about the sexual abuse because she was afraid, and did not “want to mess up what [her] family had and didn’t want them to go through, like, life without having a father.” T 67-68. Eventually, however, she told her close friend Jordan that the defendant had repeatedly sexually assaulted her in the past, and had continued to do so. T 68. The victim met Jordan, who lived in Wisconsin, on a “friend app thing.” Id. On January 7, 2021, Jordan told the victim’s stepmother that the defendant had sexually abused the victim, and the victim’s stepmother told the victim’s biological father. T 68, 186.

The victim’s father was “really upset” about what Jordan had told the victim’s stepmother and tried to talk to the victim about it. T 143-44. The victim did not disclose any sexual abuse to her father or her stepmother, so they made a multiple-choice questionnaire for the victim to fill out “to try to make things easier for her.” T 144-45. On January 15, 2021, they gave the victim the questionnaire to fill out “on her own.” T 145, 187. When they gave the victim the questionnaire, the victim began “hysterically crying, ” and ran into her room. T 187-88. The victim eventually filled it out alone and left it on her dresser in her room. Id. When her father found it, he talked to the victim on the phone about her answers and told her that he “had to do something about it.” Id. He reported the sexual abuse to the police a week after the victim filled out the questionnaire. T 146-46, 198-99. He waited a week to report the victim’s sexual abuse because the victim asked for that time to tell her mother about the sexual abuse before it was reported to the police. T 199. The victim did not tell her mother about the sexual abuse. T 127.

When Jordan told her stepmother, the victim was “angry, because [she] didn’t want any of it to come out.” T 68-69. The victim was also angry and upset that her father reported the sexual abuse to the police. T 192. In January 2021, after her father reported the defendant’s sexual abuse to the police, the victim moved in with her father. T 69, 136. She was also interviewed twice at the Child Advocacy Center (CAC). T 69. At the first interview in January 2021, she did not disclose any sexual abuse. T 69. The victim did tell the interviewer that the defendant did not live with her mother. T 74-75. However, she explained that she said this because her mother was “on housing” and had not put the defendant on her lease, so she was trying to protect her mother from losing her housing. T 75-76. During this interview, the victim’s demeanor was withdrawn, and she spoke very quietly. T 206.

After this interview, the victim’s father did not pressure the victim to make any disclosures and “gave her space, ” by telling her that she had not done anything wrong, and that he was there to support her. T 150-51. In April 2021, the victim told him that she “was ready to explain what happened.” T 153. When the victim returned for her second interview, she disclosed the charged conduct. T 69. During this interview, the victim spoke quietly and cried at different points. T 215-16. She also “curled herself up into a ball” for part of the interview. T 216. Following the April 2021 interview, Detective Kendra Neri tried to interview the defendant and the victim’s mother. T 217-19. She tried calling both individuals numerous times and was unable to leave a voicemail for them either because their voicemail boxes were full, or they were not set up. Id. The detective also tried to speak to the defendant at the victim’s mother’s home, but when she went there and knocked on the door, nobody answered the door. T 218-19. The detective also scheduled a CAC for the victim’s younger sister who had slept in the top bunk during the sexual assaults, but on the day of the interview, the victim’s mother did not bring the victim’s younger sister to the CAC. T 220-21.

After the State rested, the defendant moved to dismiss all the charges, arguing that the State presented insufficient evidence of all of the charges. T 244-46. Relative to the pattern AFSA, the defendant argued that the State had not established that the assaults that happened in the victim’s bedroom for more than two months and less than five years. T 245. Relative to the four individual AFSAs, the defendant argued that the victim’s testimony was too broad and inconsistent to be sufficient evidence of those charges, even when considered in the light most favorable to the State. T 245-46.

The State objected, arguing that the victim “testified about numerous acts of sexual abuse, ” and did so credibly. T 246. The State argued that, relative to the pattern AFSA, the victim testified that the sexual assaults in her bedroom began in middle school and continued into tenth grade, which is a period of two months or more and less than five years, as the State pointed out. T 246-47. She also testified that these assaults occurred more than twice. T 247. The State also contended that the victim did testify specifically about the charged conduct supporting the four individual AFSAs. Id.

The trial court denied the defendant’s motion to dismiss, finding that the State “set forth a prima facie case that can be permitted to proceed to the jury” when viewing the evidence “in the light most favorable to the State.” Id.

Kristin Amadon, the victim’s mother’s friend, testified that she had known the defendant for fourteen or fifteen years. T 250-51. She explained that she and her daughter had spent a considerable amount of time hanging out with the defendant, the victim’s mother, the victim, and the victim’s three siblings. T 251. Between 2015 and 2018, Amadon lived in the same apartment complex as the defendant and the victim’s mother. T 251-52. Amadon admitted that she and the defendant were in an intimate relationship, and so on weekdays, while the victim’s mother was working until 10:30 p.m., Amadon would go to the defendant’s house to see him. T 253-54. She usually arrived at 8:00 p.m. or 8:30 p.m., after the children were in bed, and stayed until approximately 10:00 p.m. T 254. She said she started consistently going over to see the defendant between 2017 and 2018, and stopped seeing him at his house in June 2021. T 255. When Amadon would spend time with the defendant at night, he never left her alone, and she did not see the defendant interact with the victim. T 256. In 2019 or 2020, the victim’s mother and the defendant moved out of the apartment complex because the victim’s mother found out about Amadon’s and the defendant’s relationship. T 256, 265. After the move, Amadon saw the defendant three or four nights a week at the same time as before the move. T 256, 267. Amadon said she did not see the defendant on Fridays, but that she did see him the rest of the week. T 256-57. After the move, Amadon did not spend any time with the children. T 266. At the time of trial, Amadon was still dating the defendant, and she “strongly believe[d]” that he was not guilty. T 257, 269.

Amadon had known the victim since the victim was two years old. T 252. Amadon said that the victim would confide in her and that they had a close relationship. Id. When she was around the defendant and the victim, she did not notice any inappropriate behavior between them. T 253. The defendant testified that he worked during the day, from approximately 6:00 a.m. to 4:30 p.m. or 5:00 p.m., and that the victim’s mother worked Monday through Friday night and Saturday mornings. T 281-82. When the defendant watched the children at night, they took showers at 7:00 p.m., went to their bedrooms at 8:30 p.m., and turned their televisions and lights off by 9:00 p.m. T 283. Because the victim was the oldest, she took the last shower and stayed up later than the other children. T 300. The defendant also claimed that every Monday through Thursday night, Amadon came over to see him. T 304-05.

The defendant said that he and the victim had “a really, really good relationship, until all these allegations came up.” T 288. The defendant denied ever sexually assaulting the victim. T 293. On cross-examination, the defendant admitted that he would lie, or deny an accusation, to “keep [his] family together.” T 298.

After the defense rested, the defendant did not move to dismiss the charges. T 311.

On November 14, 2022, the day of jury selection, the parties learned that the victim

There was sufficient evidence to convict the defendant of pattern AFSA. On appeal, the defendant argues, for the first time, that the State did not present sufficient evidence to establish that the defendant caused the victim serious personal injury by causing her extreme mental anguish or trauma. This argument was not preserved for appellate review, however, because it was not presented to the trial court when the defendant moved to dismiss the charges after the State rested its case. As such, the trial court could not address the merits of this argument, and make a record regarding it, before this Court consider its. Additionally, the defendant has not preserved this argument for appellate review because he did not move to dismiss the charges against him after the close of evidence, which in this case occurred after the defendant presented his evidence. As such, this argument is not preserved for appellate review. If this court reviews this argument, it must do so under plain error.

The trial court did not plainly err in denying the defendant’s motion to dismiss because the State presented sufficient evidence of the victim’s extreme mental anguish or trauma. This determination, like serious bodily injury, is fact-based and is left for the fact-finder to conclude based on all of the evidence at trial, and based on the plain and ordinary meaning of extreme, anguish, and trauma. Here, the victim testified to the mental harm and trauma that the defendant caused her, including nightmares, trust issues, and mental harm. The nature of the victim’s assault also established that what she experienced could cause a child extreme mental anguish or trauma. Likewise, the victim’s demeanor at and before trial when The State takes no position on whether the trial court erred in its nondisclosure of certain records, as the State is not permitted to review the victim’s confidential records on appeal. Thus, when this Court reviews the

this Court should do so under the sustainable exercise of discretion standard, and only release additional records if the trial court’s decision to withhold those records “was clearly unreasonable or untenable to the prejudice of [the defendant’s] case.” Gallo v. Traina, 166 N.H. 737, 740 (2014). If this Court determines that additional records should have been released, this Court should remand this case and those records to the trial court and instruct the trial court to release those records to the parties. This Court should also instruct the trial court to determine whether a new trial is warranted, or whether the failure to release the records prior to trial was harmless beyond a reasonable doubt.

Accordingly, this Court should affirm the defendant’s pattern AFSA conviction below.

This Court generally does “not consider issues raised on appeal that were not presented to the trial court.” State v. Batista-Silva, 171 N.H. 818, 822 (2019). This requirement “reflects the general policy that trial forums should have the opportunity to rule on issues and to correct errors before they are presented to the appellate court.” Id. “The defendant, as the appealing party, bears the burden of demonstrating that he specifically raised the arguments articulated in his appellate brief before the trial court.” Id. When deciding preservation issues, this Court considers “whether the failure to raise the argument to the trial court results in an insufficiently developed factual or legal record to guide [the Court’s] analysis.” Id. at 823.

Here, during the motion to dismiss after the close of the State’s case, the defendant only argued that the State did not present sufficient evidence that the pattern offenses occurred for at least two months and within five years. T 245. He did not argue, as he does on appeal, that the State did not establish sufficient evidence that the defendant caused the victim serious personal injury. “To allow a direct appeal of a sufficiency claim without first providing the trial court the opportunity to rule on a motion to dismiss or other appropriate motion would place this [C]ourt in a position of exercising its original jurisdiction, ” which is not this Court’s role in reviewing a Rule 7 mandatory appeal. State v. McAdams, 134 N.H. 445, 447 (1991). As such, the defendant has waived this issue on appeal. See State v. Robinson, 170 N.H. 52, 61 (2017) (holding that the waiver doctrine “serves judicial economy by forcing parties to raise issues whose resolution might spare the court and parties later rounds of remands and appeals.”) citation and quotations omitted)).

Moreover, after the defendant presented evidence and closed his case, he did not move to dismiss a second time, at the close of the evidence. When evaluating the sufficiency of the evidence, this Court reviews “the entire trial record because, even though the defendant is not required to present a case, if he chooses to do so, he takes the chance that evidence presented in his case may assist in proving the State’s case.” State v. Pittera, 139 N.H. 257, 260 (1994). Consequently, “[i]t is well settled that to preserve an argument that the evidence was insufficient to support a criminal conviction, the defendant generally must challenge the sufficiency of the evidence to support the conviction by appropriate motion at the close of the evidence.” State v. Bou-Nassif, 2023 N.H. LEXIS 227, *1-2 (Nov. 30, 2023) (unpublished) (emphasis added) (citing McAdams, 134 N.H. at 446-47; State v. Wood, 150 N.H. 223, 236 (2003)). If this Court chooses to review the defendant’s argument on appeal despite its lack of preservation, then it must review the trial court’s denial of the defendant’s motion to dismiss under plain error. To find plain error, “(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” State v. Pinault, 168 N.H. 28, 33 (2015) (quotations and citation omitted). “If all three of these conditions are met, [this Court] may then exercise [its] discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 33-34 (quotations and citation omitted).

As argued in Argument Section III(B) below, the trial court did not commit plain error because there was not a clear or obvious error in allowing the jury to determine whether there was sufficient evidence that the defendant caused the victim serious personal injury, an essential element of the pattern AFSA charge. Likewise, any error in allowing the jury to determine whether there was sufficient evidence to prove that the defendant caused the victim serious personal injury was not clear or plain because a determination of serious personal injury is purely a fact-based determination best left for the jury. Moreover, this Court has yet to explicitly define what “extreme mental anguish or trauma” means as it appears in the AFSA statute. As such, any error in allowing the pattern AFSA charge to reach the jury cannot have been plain, given that this issue is one of first impression for this Court. See State v. Panarello, 157 N.H. 204, 209 (2008) (“[w]hen the law is not clear at the time of trial and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.”).

“When considering a challenge to the sufficiency of the evidence, ‘[this Court] objectively review[s] the record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt … considering all the evidence and all reasonable inferences therefrom in the light most favorable to the state.’”

State v. Saunders, 164 N.H. 342, 351 (2012) (quotations and citation omitted). “The defendant bears the burden of proving that the evidence was insufficient to prove the guilt.” State v. Seibel, 174 N.H. 440, 445 (2021) (citing State v. Saintil-Brown, 172 N.H. 110, 117 (2019)). When the evidence presented at trial includes both direct and circumstantial evidence, this Court will “uphold the verdict unless no rational trier of fact could have found guilt beyond a reasonable doubt.” Seibel, 174. N.H. at 445. “Further, the trier 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.” State v. Sanborn, 168 N.H. 400, 412-13 (2015) (quotation omitted). This Court reviews a challenge to the sufficiency of the evidence de novo because it raises a claim of legal error. Saintil-Brown, 172 N.H. at 117. In reviewing the evidence, this Court assesses “each evidentiary item in the context of all the evidence, and not in isolation.” Id. (citing State v. Craig, 167 N.H. 361, 369 (2015)).

“Direct evidence is evidence which, if accepted as true, directly proves the fact for which it is offered, without the need for the factfinder to draw any inferences.” State v. Kelley, 159 N.H. 449, 454 (2009) (quotations and citation omitted). Direct evidence includes “the testimony of a person who claims to have personal knowledge of facts about the crime charged such as an eyewitness.” State v. Newcomb, 140 N.H. 72, 80 (1995). At trial, the State had to prove beyond a reasonable doubt that the defendant knowingly “engaged in a pattern of sexual assaults against [the victim]” when the defendant, “on two or more occasions [] subjected [the victim] to sexual contact and thereby caused her to suffer serious personal injury, to wit: severe mental anguish or trauma.” T 355. The State also had to prove that the acts of sexual contact occurred for more than two months and within five years, that the victim was over thirteen years old and under sixteen years old, that she was not married to the defendant, and that she and the defendant were members of the same household. Id. On appeal, the defendant only argues that the State failed to sufficiently prove that the defendant inflicted serious personal injury on the victim because it did not establish that the victim experienced extreme mental anguish or trauma. DB. 29. Relevant to this appeal, the trial court instructed the jury that serious personal injury meant “extensive bodily injury or disfigurement, extreme mental anguish or trauma, disease, or loss or impairment of a sexual or reproductive organ, ” which is consistent with the statutory definition. T 356; RSA 632-A:1, III. This Court has yet to explicitly define what “extreme mental anguish or trauma” means as it appears in the AFSA statute. This Court has held that, when a defendant is charged with causing an individual serious bodily injury, that serious bodily injury can include mental anguish. State v. Goodwin, 118 N.H. 862, 868 (1978). This Court further provided, however, that if the State is relying on mental anguish as the injury establishing serious bodily injury, the State must prove that the mental anguish was “severe, permanent, or protracted in nature, ” as is required by the statutory definition of serious bodily injury.” Id. at 869; RSA 625:11, VI. Here, despite the defendant’s arguments to the contrary in his brief, the facts in Goodwin are not instructive in determining whether the State presented sufficient evidence establishing extreme mental anguish or trauma. In Goodwin, the defendant was charged with kidnapping the victim, and was specifically charged with causing serious bodily injury to her during the kidnapping. Goodwin, 118 N.H. at 867. As such, this Court analyzed whether the evidence of the victim’s mental anguish was evidence that the jury could consider in determining whether the defendant caused the victim serious bodily injury. Id. at 868-69. This Court did not analyze in Goodwin whether certain evidence was sufficient to establish that the victim experienced serious personal injury or extreme mental anguish or trauma, as the Court is being asked to determine here. This Court did, however, hold that “whether a rape victim suffered serious physical or psychological injury” is a “matter of fact” for the fact-finder to determine based on the presented evidence, as it would “any other element of the crime.” Id. at 869.

The same is true for State v. Gordon, 148 N.H. 710 (2002), which the defendant also cites as supporting his argument on appeal. DB 30-33. In Gordon, the defendant was charged with kidnapping the victims and was specifically charged with causing them serious bodily injury during the kidnapping. Gordon, 148 N.H. at 721. This Court found that the State presented sufficient evidence establishing that the victims suffered extreme mental anguish within the context of establishing serious bodily injury. Id. at 722. This Court did not hold in Gordon what facts would be necessary to establish extreme mental anguish or trauma in the context of serious personal injury in RSA 632-A.

Thus, at trial, the State needed only to establish that the defendant caused the victim serious personal injury by causing her extreme mental anguish or trauma, based on the plain and ordinary meaning of extreme, anguish, and trauma. See State v. Proctor, 171 N.H. 800, 805 (2019) (when interpreting a statute, this Court “first looks to the language of the statute itself and, if possible, construes that language according to its plain and ordinary meaning.”).

Extreme is defined as “existing in the highest or greatest possible degree.” W

(unabridged ed. 2002). Anguish is defined as “extreme pain either of body or mind” or “excruciating distress.” Id. at 84. Trauma is defined as “a physiological or emotional stress or blow that may produce disordered feelings or behavior.” Id. at 2, 432.

At trial, the State presented sufficient evidence that the victim experienced extreme mental anguish or trauma due to the defendant’s sexual abuse. The victim testified that the defendant, who was like a father to her, repeatedly sexually assaulted her at night from middle school through tenth grade. From this testimony, a rational fact-finder could infer that the nature of the sexual assault traumatized the victim. The victim also testified that the defendant’s abuse caused her nightmares and “trust issues” with other people in her life. T 72. She explained that the defendant’s sexual abuse mentally hurt her. T 130. This testimony was direct evidence that the defendant was the cause of the victim’s extreme mental anguish or trauma. She also said that she did not report the defendant’s abuse to DCYF when they interviewed her because she did not want to “mess up” her family situation and cause any hardship for her mother, or take the defendant away from her younger siblings. T 57. From this, a rational fact- finder could infer that the victim suffered long-term sexual abuse from the defendant for the sake of her mother and her siblings. A rational fact-finder could also infer that the defendant’s sexual abuse required the victim, who was only twelve years old when the abuse began, to treat her mental and physical well-being as subservient to the needs of her family members, which caused the victim to inflict greater emotional distress on herself by not disclosing the defendant’s charged conduct.

In addition to this testimony, the victim’s demeanor during her CAC interviews and during her trial testimony established her extreme mental anguish or trauma. At trial, the victim needed to take a break when testifying about the defendant’s sexual abuse of her in her mother’s bedroom. T 59. She also testified that she did not want “to have to come here and testify and talk about this in front of people.” T 73. During the victim’s first CAC interview, when she was asked to talk about “difficult” subject matter, she “duck[ed] her head, ” became withdrawn and soft-spoken, and she took long pauses while answering questions. T 206. She also focused on playing with a bracelet she was wearing and did not look at the interviewer. T 206-07. During the second interview, particularly during her disclosure of the defendant’s sexual abuse, she looked down and did not make eye contact with the interviewer, was soft-spoken, was very emotional, cried at some points, and “made herself very small” by “curl[ing] herself up into a ball [] in the chair that she was sitting in.” T 215-16. Her stepmother said that when she gave the victim a questionnaire to fill out, after learning from the victim’s friend of the defendant’s abuse, the victim “became hysterical” and began “hysterically crying.” T 187.

From this evidence, a rational fact-finder could infer that the victim experienced either extreme mental anguish or trauma caused by the defendant’s sexual abuse. Here, the victim testified that she was mentally harmed by the defendant, that she had nightmares, and that she had “trust issues” because of the defendant’s sexual abuse. While this testimony was not lengthy, it is not the quantity of evidence that the jury is instructed to consider in determining whether the State has met its burden of proof, but the quality. See T 347 (“Now, in reviewing the evidence, you should consider the quality of the evidence and not the quantity. It is not the number of witnesses or quantity of evidence that is important. What is important is the quality of the evidence.”); State v. White, 145 N.H. 544, 551 (2000) (“While the quantity of evidence may be of some value, it is the quality of that evidence that is paramount.”).

Likewise, a reasonable fact-finder could infer from the victim’s demeanor when discussing the defendant’s sexual abuse at and before trial, coupled with her testimony about how the defendant’s abuse affected her, and the abuse itself, that she was extremely mentally anguished or traumatized by it. While this victim did not have the same experience as the victims in Gordon, who were kidnapped by the defendant at gunpoint, forced to undress, forced to fellate the defendant, and who were then either forcefully vaginally or anally raped by the defendant, 148 N.H. at 711-12, the victim testified that the defendant routinely sexually assaulted her by touching her vagina under her clothes with his hands, while she pretended to be asleep to convince the defendant to stop, when she was in middle school through tenth grade. She also felt that she had to not only keep this sexual abuse from her family, but also continue to be sexually assaulted for years, to protect her mother from losing the defendant, and to protect her siblings from losing their father, a decision that a rational fact-finder could infer was difficult for the young victim, considering she testified that she was scared and angry when her father reported the defendant’s sexual abuse to the police. Additionally, like the victims in Gordon, who were visibly distraught and upset by the defendant’s rape of them, Id. at 722, the victim here was also visibly upset and distraught by the defendant’s sexual abuse every time she discussed it at or before trial.

While the defendant contends that to prove that the defendant caused the victim extreme mental anguish or trauma, the State had to prove the “duration, degree, severity, or frequency” of her anguish or trauma, this is not the case. DB 33. Unlike serious bodily injury, which requires proof of a prolonged or protracted injury, serious personal injury does not. RSA 625:11, VI. Indeed, in defining serious personal injury, RSA 632-A:1, III requires no kind of temporal evidence relative to the injury. Even if it did, a rational fact-finder could infer from the victim’s repeated reactions to discussing the defendant’s sexual abuse of her that she was experiencing extreme mental anguish or trauma months after the abuse stopped. Moreover, the victim did not describe her nightmares, trust issues, and mental harm as “ordinary thoughts or feelings” as the defendant argues. DB 33. She testified that the defendant’s sexual abuse caused her nightmares, trust issues, and mental harm, from which a rational fact-finder could infer that the victim was not simply experiencing these symptoms of extreme mental anguish or trauma without knowing the root of their cause. The defendant also contends that because no third parties described the victim’s “psychological state and how it manifested, ” the State has not presented sufficient evidence that the victim experienced extreme mental anguish or trauma. DB 33-34. However, this Court has held that, in proving the fact-based element of serious bodily injury, expert witnesses or third party witnesses are not required for the State to meet its burden. See State v. Dorrance, 165 N.H. 162, 165 (2013) (finding that the State presented sufficient evidence that the victim suffered serious bodily injury when the victim testified to the nature of his injuries, including consistently impaired vision for 19 days, and intermittent vision impairment that required medical attention after that); State v. Plaut, 124 N.H. 813, 814 (1984) (holding that the victim’s testimony regarding his injuries, including slipping in and out of consciousness, blood in his urine, feeling dizzy, and an inability to walk steadily, was sufficient evidence of serious bodily injury, without the testimony of a third party or an expert witness); State v. Ciampa, 2023 N.H. LEXIS 234, No. at *1-3, 6-7 (Nov. 9, 2023) (finding that it was harmless error for the trial court to permit the victim to testify regarding his own injuries, specifically that the defendant had broken his nose, without having an expert witness testify regarding this diagnosis, because there was overwhelming evidence from the victim’s testimony that the defendant caused him serious bodily injury, given that the victim described the injuries, the pain he experienced, and the follow-up medical appointments he attended). Thus, the State was not required to present any evidence from expert witnesses or third parties regarding the victim’s extreme mental anguish or trauma to prove this element beyond a reasonable doubt. Accordingly, the State presented sufficient evidence that the defendant caused the victim extreme mental anguish or trauma. As such, this Court should affirm the defendant’s conviction below.

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The defendant’s first argument is rooted in the The defendant concludes from these two orders that, because the trial court did not explicitly identify the Girard standard, it must not have considered Girard’s clarification of the Gagne standard it in reviewing the victim’s . DB 19-21.

This argument fails because Girard clarified the Gagne standard, and courts and practitioners frequently refer to this standard as just the Gagne standard. Even this Court has referred to the in camera review standard post-Girard generally as the Gagne standard. See State v. Gorman, 2023 N.H. LEXIS 186, at 5-6 (N.H. Oct. 25, 2023) (holding that this Court “conclude[d] that the defendant has met the Gagne standard as a matter of law with respect to the victim’s, ” while citing Girard, State v. Graham, 142 N.H. 3578 (1997), State v. Hoag, 145 N.H. 47 (2000), and State v. Eaton, 162 N.H. 190 (2011), in reaching that conclusion). Thus, this Court cannot conclude that the trial court applied the incorrect standard during its review of the victim’s counseling records merely from the trial court’s use of the phrase The State takes no position on the defendant’s second argument that the records must have contained relevant and material information based on the State’s pattern AFSA indictment because the State has not reviewed the victim’s prior to filing this brief. As is this Court’s practice, when a party appeals the disclosure or non-disclosure of in camera review records, the records reviewed by the trial court are not provided to the parties on appeal for review. Instead, the records are transferred to this Court for independent review to determine whether the trial court erred in its disclosure or nondisclosure of records. As such, the State cannot take a position on whether the trial court erred in its decision not to disclose the victim’s The same is true for the defendant’s argument that the trial court erred in not disclosing more of the victim’s than it did prior to trial. Indeed, even the defendant argues only that the trial court “may have erred” in not releasing the victim’s following an in camera review, because neither he nor the State has reviewed the undisclosed. DB 26-27. As such, the State is unable to take a position on whether the trial court erred in not disclosing more of the victim’s prior to trial.

If, after this Court’s review of the records, this Court determines that some of the records should have been released, this Court should remand this case and those records to the trial court and instruct the trial court to release those records to the parties with any necessary protective order pursuant to Part I, Article 2-b of the New Hampshire Constitution and the Victim’s Bill of Rights. RSA 21-M:8-k. This Court should also instruct the trial court to provide the parties with an opportunity to make arguments as to whether a new trial is warranted, or if the failure to release the records prior to trial was harmless beyond a reasonable doubt.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the defendant’s conviction below. The State requests a 15-minute oral argument delivered by Audriana Mekula, Esq.

Respectfull y Submitted, THE S

By Its Att orneys,

February 1 6, 2024 /s/ Audriana Mekula Audriana Mekula, Bar No. 270164 Assistant Attorney General Office of the Solicitor General New Hampshire Department of Justice 1 Granite Place South Concord, NH 03301

I, Audriana Mekula, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 8, 345 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.

February 16, 2024 /s/ Audriana Mekula Audriana Mekula

I, Audriana Mekula, hereby certify that a copy of the State’s brief shall be served on Jason Novak, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system. February 1 6, 2024 /s/ Audriana Mekula Audriana Mekula