State of New Hampshire v. Dennis Reed

II. Whether the trial court erred by rejecting the defendant’s argument that a “religious leader” cannot, as a matter of law, satisfy the “position of authority” element contained in RSA 632-A:2, I(k)(1).

III. Whether there was sufficient evidence for a rational jury to conclude that the defendant was in a “position of authority” over the victim in his role as a “father figure.”

IV. Whether there was sufficient evidence for a rational jury to conclude that the defendant was in a “position of authority” over the victim in his role as a “religious leader.”

The defendant, Dennis Reed, was charged with one count of the pattern variant of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, III, ten counts of the “position of authority” variant of AFSA, see RSA 632-A:2, I(k)(1), and eleven counts of the “position of authority” variant of sexual assault, see RSA 632-A:3, III(a)(2). See T at 3-14; Add. at 47. 1 The charges stemmed from the defendant’s “years-long abuse of” the victim, Add. at 47, and alleged numerous acts of sexual assault occurring between August 2004 and July 2007, T at 3-14. The defendant also faced one charge in Hillsborough County “stemming from his first alleged digital penetration of” the victim. Add. at 47. The defendant stood trial before a jury over the course of twelve- days in February 2023. See T at 1, 1673. According to the defendant, 2 the jury convicted him of nine counts of AFSA and eight counts of sexual assault. See DB at 9. The defendant was found not guilty of one count of AFSA and three counts of sexual assault. See id. The pattern AFSA charge

grew up in Auburn living with her mother, father, her older sister, Megan, and her younger sister, Katie. T at 318-19. E.L.’s parents divorced when she was nine years old, and her father moved to Michigan about a year later. T at 319, 323. E.L. had a good relationship with her father and struggled with her parents getting divorced. T at 324, 1027. E.L. and her father “grew distant” after he moved to Michigan and, eventually, the relationship between them faded into obscurity. T at 325. E.L. and her family were big into basketball. See T at 189, 320, 330. “When [E.L.] was younger, ” she and her family were constantly “traveling in the car, eating dinner and going to watch [Megan] play [basketball], ” and E.L. had a lot of fun doing that. T at 320-21. E.L. started playing basketball around second grade and, although she played other sports, she “mainly stuck to [ ] basketball, ” which she considered her “one and only sport.” T at 329. E.L.’s older sister played basketball at the collegiate level, and E.L. had dreams of doing the same. T at 320, 329-30. E.L. achieved that dream and played collegiate basketball at Colby- Sawyer College. T at 330, 684. Before that, E.L. played basketball at Manchester Memorial High School where she made the varsity team as a freshman. T at 672, 830-31, 839-40. E.L. also played basketball in middle school, and for traveling “AAU” teams. T at 329, 336, 431, 850. “AAU” is a “very advanced basketball league off season from high school, ” which is designed to keep players “honing their skills and practicing.” T at 187- 88. “[K]ids” in “AAU” are typically “going to play in college.” T at 188. E.L. first met the defendant “at an AAU basketball tryout” when she “was nine years old.” T at 330. Around the time she was fifteen or sixteen, E.L.’s relationship with the defendant, a man 45-years her elder, turned sexual. T at 331. That sexual relationship lasted until 2014, when E.L. was twenty-five and began dating her now-husband, Ben. T at 777-80. The defendant coached basketball at various levels, including high school and “AAU.” T at 336-37, 1297. The defendant also owned the SportsZone in Derry and offered private basketball lessons there. T at 337. E.L. started taking basketball lessons with the defendant when she was eleven with the goal of “get[ting] better so that [she] could play in college and in high school... because that was really all [she] cared about was playing basketball.” T at 337, 345. Initially, E.L. took lessons from the defendant “once or twice a month because he was pretty expensive, ” but as she “grew older, it became more and more often.” T at 337. E.L. took lessons from the time she was eleven all the way through college. T at 345. E.L.’s lessons with the defendant “were so enjoyable.” T at 339. The defendant was “super positive and upbeat and made basketball really fun.” Id. He was “loving” and gave E.L. “hugs, ” and “paid attention to” her. Id. E.L. “loved going to see” the defendant. Id. When E.L. turned fourteen or fifteen, she and the defendant “became more and more close” and their relationship “started to change.” T at 339-40. The defendant showered E.L. with gifts. See e.g., T at 399-400, 507- 13, 676-83. He was “nonjudgmental and very open to talking about anything” and paid attention to E.L. “if [she] had any issues, ” and E.L.

“really needed that because [she] didn’t have that at home.” Id. E.L. began talking to the defendant about her personal life, such as school and boys, and “started to lean on [the defendant] for... fatherly advice, because [she] didn’t have a relationship with [her] father.” T at 340, 342. The defendant “was like a dad to [E.L.] and a coach.” T at 332. E.L. “loved him” and she “trusted” the defendant “with [her] life.” T at 342-43. The defendant knew that E.L.’s father was not in her life, and that E.L. “wanted a father figure, ” because E.L. had told him as much. T at 364. Eventually, with the blessing of the defendant’s wife, Carol, E.L. started calling the defendant “Dad.” T at 398. E.L. frequently referred to the defendant as “Dad” in correspondence with him, in school projects, and even to her sister Katie, and the defendant reciprocated that sentiment. See T at 439, 446, 669, 674, 683, 700, 706, 710, 718, 1106. E.L. “never questioned” the defendant “because he would always say he’s always right, ” and E.L. was not in a position “to question an adult.” T at 571. When E.L. was fifteen, she asked the defendant if she could help around the SportsZone, and the defendant agreed. T at 348-51. By the time she was sixteen, E.L. was officially employed at the SportsZone and worked in the concession stand. T at 350, 1073. E.L. was hired by the defendant and Carol, and the defendant signed her paychecks. T at 352, 356. E.L. listed the defendant and Carol as her primary emergency contacts on her employment paperwork, with E.L.’s mother being listed as her secondary emergency contact. T at 359.

On one occasion, E.L. emailed the defendant and asked what he thought kids at school meant when they said “mwah, ” and the defendant replied that he would “show [her] tomorrow.” T at 417. The next day, while E.L. was working at the SportsZone, the defendant told E.L. to “meet [him] in the upstairs hallway in 10 minutes.” T at 412. When E.L. arrived in the dark hallway, she “went up to” the “shadow” she saw “against the wall” and the defendant “pulled [E.L.] into him and started to kiss [her], French kiss [her].” T at 412-13. The defendant then hugged E.L. and instructed her to wait ten minutes before going “back down the same way that [she] came upstairs, ” and E.L. “said okay.” T at 416. On another occasion, the defendant “leaned over the concession stand while [E.L.] was working and asked [her] if [she] had ever masturbated.” T at 417. Another time, at “the end of one of [E.L.’s] shifts, ” the defendant came into the concession stand, hugged E.L., and “put his hand down [her] pants onto her bare butt.” T at 417. These encounters confused E.L. T at 419. But E.L. knew “how much [the defendant] cared about [her]” and she still thought of the defendant as a father figure. Id. She even tried to rationalize the events, thinking that such behavior “between a father and daughter” might be “normal, ” and she “didn’t really have a father” to show her otherwise. T at 419. E.L. testified that the first time the defendant penetrated her vagina was with his finger when he was giving her a ride from Manchester Memorial High School to the SportsZone for a basketball lesson. T at 420, 871. This occurred during the “fall or the spring” of E.L.’s “freshman year, ” at which time she would have been fifteen. T at 423, 831. The defendant first had sex with E.L. in “the utility room” of the SportsZone when E.L. was sixteen and while she was working. T at 573-78. As he had on a previous occasion, the defendant instructed E.L. where to meet him and, after he was finished, told her to wait ten minutes before going back downstairs. T at 578-79.

E.L. had never had sex before that. T at 582. Afterward, however, E.L. had sex with the defendant “hundreds” of times, including at the SportsZone, in a movie theater, in the defendant’s home and car, in a hotel, and in E.L.’s college dorm room. T at 582-85, 591-98, 1340-41. Sexual interactions between E.L. and the defendant included vaginal and anal intercourse, “blow jobs, hand jobs, ” other “oral stuff, ” and digital penetration. T at 593.

In E.L.’s mind, when this sexual relationship started, she “was just doing what the adult told [her] to.” T at 571. Even when the defendant told E.L. that their sexual relationship was sinful, E.L. “basically took [the defendant’s] word over God[’s]” and allowed it to continue at the defendant’s behest. Id. The defendant told E.L. that if anyone found out, the defendant’s family and career would be ruined, people “wouldn’t like” E.L., and it “wouldn’t go well with [her] family.” T at 590-91. When E.L. was sixteen or seventeen, she began attending church with the defendant and Carol. T at 453. One day, after a basketball camp, the defendant took E.L. to the church he attended, and E.L. was baptized. T at 458. The defendant often provided E.L. with religious literature and would occasionally discuss the readings with her. T at 524-25. E.L.’s parents “were not happy” that she was baptized in the defendant’s church because E.L. did so without her mother’s knowledge and E.L. had been baptized into the Catholic church by her parents. T at 460. When E.L.’s mother found out that she referred to the defendant “as dad, ” she “discouraged” it, but “didn’t have any control over that.” T at 1050. E.L. “kind of idolized” the defendant such that “[e]verything that he said, kind of became gospel, which [was] a little difficult” for E.L’s mother. T at 1050-52. If E.L.’s mother “said the sky was blue, ” E.L. would “say, no, ” the defendant “says it’s not blue.” T at 1051-52. E.L.’s mother believed that E.L. “was being pulled from [her] family toward” the defendant, and that the defendant “had too much control over [E.L.’s] thoughts and what she did.” T at 1062-63.

E.L.’s sister Katie similarly testified that E.L.’s relationship with the defendant “seemed unnatural” and “too close.” T at 1093-94. E.L. was “in constant communication” with the defendant and referred to him as her “dad.” T at 1105-06. E.L. “didn’t make decisions without [the defendant’s] approval.” T at 1094. Like her mother, Katie believed that E.L. “seemed to be pulling away from [her] family” and “prioritizing time with [the defendant] over time with family.” T at 1103-04. E.L.’s sexual relationship with the defendant ended when E.L. began dating her now-husband, Ben, who she met working at the SportsZone. T at 776-80. The defendant was also something of a father figure to Ben and was closely involved in Ben’s relationship with E.L. T at 778-80, 1491. Indeed, the defendant was closely involved with all E.L.’s intimate relationships throughout the years — he even intimidated two of E.L.’s boyfriends for being intimate with her. See T at 1000-1015; 1162-1171. The defendant and Carol provided Ben and E.L. with marriage counseling in the time leading up to their wedding day. T at 782, 1478-79. E.L. wanted the defendant to walk her down the aisle at her wedding because “he was [her] dad, ” but she changed her mind because it would make her family “angry.” T at 792. Nevertheless, after E.L. danced with her biological father, she engaged in “a father-daughter dance” with the defendant, “which created a [ ] fury” amongst her family. T at 1068; see T at 793. The defendant’s omnipotent presence in the victim’s life would not last forever, though, and his abuse of her would eventually be exposed. The defendant’s relationship with E.L. was almost exposed when E.L. was in high school and wrote a note to a friend seeking advice about a sexual relationship with an older man. T at 87, 627-28. The note was eventually brought to the attention of the police, who then went to E.L.’s home to speak to her about it. T at 1056. Accordingly, E.L.’s mother dismissed her from school and brought her home to talk to the police. T at 633. In turn, E.L. notified the defendant, who also showed up at E.L.’s home. T at 633-34, 1060.

E.L. denied her relationship with the defendant because she was “afraid that [she] was going to ruin his life” and “lose him as a father.” T at 634. The police closed the investigation based on the information they gathered at E.L.’s home. T at 157. As the police and the defendant were leaving, E.L. “peered through the curtain of the window” and the defendant “winked at [her] and smiled and then drove off.” T at 634. In the years following the conclusion of E.L.’s sexual relationship with the defendant, E.L. developed anxiety and depression. See T at 269, 801. One day, E.L. had a panic attack while she was on a motorcycle ride with her uncle, who already suspected something inappropriate between E.L. and the defendant. T at 195-96, 801-02. Her uncle pulled over to ask what was wrong and whether anything inappropriate was going on between E.L. and the defendant, and he demanded that E.L. tell the truth. T at 208- 210. In response, E.L. broke down crying and told her uncle everything that had happened between her and the defendant. T at 209-10, 801-02. Although she was terrified to do so, E.L. also told her husband, her therapist, and slowly told other members of her family. T at 801-03. Shortly thereafter, E.L. told the police what the defendant had done to her, and E.L. did not have any further contact with the defendant. T at 804, 812-13. E.L. reported because she had come to realize that what the defendant had done to her “was wrong.” T at 814. E.L. told the police that the defendant did not force her to have sex with him. T at 814. However, E.L. realized that, through “the grooming and whatnot that had been done, ” the defendant had coerced her into a sexual relationship that seemed consensual, but was not. T at 814-15, 817.

Accordingly, defense counsel filed a motion to “disallow ‘father figure’ to be used as a position of authority.” App. at 3 (cleaned up). The defendant argued that a “position of authority, ” as that phrase is used in RSA 632-A:2, I(k)(1), is “one in which the authority figure can give orders and expect those under his or her authority to obey.” App. at 4. The defendant also contended that a “father figure” typically refers to a male who resides with the child in question. App. at 5. The defendant averred that, in this case, the defendant had no “quasi or surrogate parental relationship” with E.L. and “had no financial or disciplinary control over her.” App. at 3. Accordingly, the defendant argued that he “was not in a position of authority over [E.L.]” as a “father figure.” Id. The State filed an objection, arguing that whether the defendant was in a “position of authority” over E.L. was a factual question for the jury, and the State intended on “submitting ample evidence of the ways in which this Defendant’s role as a father figure constituted a position of authority.” App. at 9. Further, the State asserted that this Court has never interpreted the phrase “position of authority” to contemplate a closed list of “positions.” App. at 8-9. The State argued that the court should not invade the province of the jury by declaring that a “father figure” could not, as a matter of law, be a “position of authority.” App. at 9-10. Defense counsel clarified her argument during a hearing on the motion. Defense counsel “suppose[d] [that] evidence could be established to establish that a father figure could be a position of authority” and that the State could argue as much in closing depending on how the evidence came in at trial. H 3 at 30-31. However, defense counsel asserted that a “father figure” is not “inherently[] a position of authority” and she wanted “to make sure” that the parties were not going into trial with the impression that a “father figure” is an “established... position of authority, like an employer or something like that.” H3 at 31. Defense counsel raised a similar objection related to the State characterizing the defendant as a “spiritual leader.” H3 at 35-37.

The State countered that “there are no positions in the State of New Hampshire that are recognized as, per se, positions of authority under the law.” H3 at 31-32. The State argued that nothing prohibited it from arguing which “positions this Defendant used in this case to establish... authority and to coerce [E.L.] to submit” and that any such limitation was “not at all supported by the law.” H3 at 32. Similarly, the State contended that nothing prevented it from offering evidence to prove that the defendant was in a “position of authority” over E.L. as a “spiritual advisor.” H3 at 35. The court (St. Hilaire, J.) denied the defendant’s motion. Add. at 32. The court agreed with the State that “whether Defendant’s role as E.L.’s father figure placed him in a position of authority for purposes of RSA 632-A: 2 [was] a question of fact that should be evaluated by the jury.” Add. at 33. The court agreed with defense counsel that “father figure” was “not inherently a position of authority, ” but concluded that it would be “inappropriate” for the court to conclude pre-trial that the defendant’s “role as E.L.’s father figure did not carry requirements of subservience and obedience, ” which was a question “best left to the jury.” Add. at 33-34. Similarly, the court stated that the evidence proffered by the State “amply demonstrate[d] that religious content [was] relevant to the Defendant’s allegedly coercive use of an authority position, and that the probative value of the evidence [was] not outweighed by a danger of unfair prejudice.” Add at 42-43. Accordingly, the court denied the defendant’s motion to exclude evidence related to the defendant’s religious beliefs and his role as a spiritual advisor to E.L. Add. at 41-43. After the State rested its case at trial, defense counsel moved for “a judgment of acquittal” with respect to “every charge” alleging that the defendant “used a position of authority to coerce” E.L. into having sex with him. T at 1548. Counsel argued that E.L. testified that she had consensual sex with the defendant and did not testify that her sexual relationship with the defendant was predicated on the defendant being her father figure, employer, spiritual adviser, or coach. T at 1548. Counsel concluded that, to find that the defendant used a position of authority to coerce E.L. into having sex with him, the jury would have to “abandon reason.” T at 1548. The State argued that the evidence in this case showed that the defendant’s “coercion” of E.L. “was subtle. It was slow. It was purposeful. And it took the form of the different authority positions that he held over her.” T at 1550. As the defendant’s role in E.L.’s life grew more prominent, his authority over E.L. grew too. T at 1550. Further, E.L. told the defendant that her father was not in her life, “that she was devastated by that loss, ” that “she wanted a father figure in her life, ” and “that she wanted that father figure to be [the defendant].” T at 1550-51. The defendant “was aware of [E.L.’s] vulnerability” and “he exploited it.” T at 1551. Given the sufficiency standard and the evidence adduced at trial, the court denied the defendant’s motion. T at 1555. The court heard testimony that the defendant was “all encompassing on the victim’s life as a coach, as a father figure, ” as an “[e]mployer, ” and as “a religious mentor.” T at 1555. While those roles might be discussed individually, the “reality [was], all four of those things were going on at the same time” and a “reasonable jury could find that there was some sort of undue influence” and “that the Defendant was aware of that purposefully or knowingly.” T at 1555. 2. “Manchester Conduct” Before trial, the defendant filed a motion in limine to exclude any evidence or testimony referring to the defendant digitally penetrating E.L. in Manchester when she was fifteen. App. at 27. The defendant contended that the Manchester conduct had been charged in Hillsborough County and that the Rockingham County Superior Court did not have jurisdiction “to hear the allegations.” App. at 28. The defendant also argued that the Manchester conduct was not relevant to the charges before the court. App. at 28. Further, the defendant asserted that any evidence of the Manchester conduct should be excluded under New Hampshire Rules of Evidence 403 and 404(b). App. at 28.

The State filed an objection. App. at 30-40. The State observed that the digital penetration was the first instance of penetrative sexual assault perpetrated by the defendant, and it occurred in the defendant’s car when he picked E.L. up from Manchester Memorial High School to take her to the SportsZone for a basketball lesson. App. at 33. Thus, the State argued, the Manchester conduct was intrinsic to the charged crimes and was not barred by Rule 404(b). App. at 36-39.

The State argued that, as the first act of penetrative assault, the Manchester conduct was inextricably intertwined with the charged conduct because it was a prelude to the charged acts of sexual assault that followed it. App. at 37. E.L.’s decision not to report the Manchester conduct allowed the defendant to commit further sexual assaults and, therefore, there was a causal connection between the Manchester conduct and the charged conduct. App. at 37. Further, the Manchester conduct was related to the charged conduct temporally and spatially in that the charged conduct occurred shortly after the Manchester conduct and much of the charged conduct occurred at the SportsZone, which is where the defendant was taking E.L. the first time he digitally penetrated her. App. at 37-38. Additionally, since the defendant’s abuse of E.L. escalated gradually, evidence of the first instance of penetration would allow the jury to contextually understand the sexual assaults that followed and E.L.’s reactions to them. App. at 38.

The State also argued that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. App. at 38-39. On one hand, the State contended that the “first incident of sexual assault in a trial detailing years of abuse [was] highly probative” and “necessary to complete the story of abuse.” App. at 39. On the other hand, the jury was going to “hear about years of sexual assaults perpetrated against E.L.” and the first instance of digital penetration would be “no more prejudicial than the testimony... regarding the charged conduct.” App. at 39. Following a hearing, see H1 at 1-46, the court issued a written order finding that the Manchester conduct was “highly relevant to the State’s case” because it detailed the defendant’s first act of penetrative sexual assault upon E.L. Add. at 48. Further, the court found that “evidence of the first digital penetration in a long series of sexual assaults” was “inextricably intertwined with the charged conduct, regardless of the fact that it occurred in another county.” Add. at 50.

The court found that the Manchester conduct and the charged conduct had “a causal, temporal, and spatial” connection, and that the former “was a prelude” to the latter. Add. at 50. The court explained that the Manchester conduct was the precipitating event for all the sexual abuse that followed it, thereby giving it a causal and temporal connection to the charged conduct. Add. at 50. Additionally, the Manchester conduct occurred when the defendant and E.L. were traveling to the SportsZone, where much of the charged conduct took place, which provided a spatial connection between the two. Add. at 50. Finally, the Manchester conduct would allow the jury to evaluate the charged conduct in the context of “a complete story.” Add. at 50.

However, the court was unable to decide whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Add. at 50-51. It was unclear to the court “precisely where in the timeline of alleged abuse the Manchester conduct [fell], or what aspects of the charged conduct occurred before and after.” Add. at 51. The court noted that the jury would “hear evidence of a years-long pattern of sexual abuse by Defendant” and “additional details of conduct that occurred in a neighboring county” would have “minimal prejudicial effect... beyond the prejudice caused by similar evidence underling the several dozen charges before [the] Court.” Add. at 52. Nevertheless, without a complete picture of the timeline, the court could not fully assess the probative value of the evidence and deferred ruling on the motion. Add. at 52. After a further hearing, see H2 at 1-91, the court denied the defendant’s motion to exclude evidence of the Manchester conduct. Add. at 54-55. During that hearing, it was clarified for the court that the Manchester conduct was the first instance of sexual assault involving penetration in the entire timeline of events. H2 at 84-86. The court noted during the hearing that it is “just human nature” to remember one’s first experience with something better than subsequent experiences with the same thing. H2 at 88. Having had that point clarified, the court determined that “the Manchester Conduct’s probative value outweigh[ed] its prejudicial effect.” Add. at 54-55.

The defendant’s argument that a “father figure” and a “religious leader” cannot, as a matter of law, be a “position of authority” under RSA 632-A:2, I(k)(1) should not be considered by this Court because the defendant abandoned that argument in the trial court. Even if this Court does consider that argument, however, the argument fails. Whether the defendant occupied a “position of authority” over E.L. was a factual question for the jury to decide and, contrary to the defendant’s argument, neither the statute’s plain language nor this Court’s precedents limit that phrase to a closed list of inherently authoritative official positions. The jury had overwhelming evidence from which to conclude that the defendant was in a “position of authority” over E.L. in his role as a father figure. E.L. referred to the defendant as her “Dad” and he referred to her as his daughter. E.L. sought guidance from the defendant and she never questioned him. When the defendant instructed E.L. to do something, she did it. If anybody could expect obedience from E.L., it was the defendant. The jury also had sufficient evidence to conclude that the defendant was in a “position of authority” over E.L. in his role as a spiritual mentor. At the defendant’s behest, E.L. attended church with the defendant and was even baptized there without her mother’s knowledge, despite the fact that E.L.’s parents had her baptized into the Catholic church. The defendant supplied E.L. with religious literature, which he also discussed with her, and told E.L. to pray that God forgive the sexual relationship E.L. had with the defendant, which she dutifully did. See T at 570-71.

The trial court did not err in admitting E.L.’s testimony about the Manchester conduct because it was inextricably intertwined with the charged conduct. The Manchester conduct was a prelude to all the charged conduct, thereby giving it a causal connection to the same. It had a temporal connection to the charged conduct because it preceded the same by only a few months, which is temporally close in a years-long pattern of sexual assaults. And it had a spatial connection with the charged conduct because much of the charged conduct occurred at the SportsZone, which is where the defendant was taking E.L. when the Manchester conduct occurred. Further, the Manchester conduct was the first instance of digital penetration, which made it an integral part of E.L.’s testimony and allowed the jury to contextually understand the hundreds of instances of penetrative sexual assault that followed it.

Even if the trial court did err, however, the error was harmless beyond a reasonable doubt. The evidence in this case was overwhelming. E.L. provided five days and 660 transcribed pages of detailed testimony, which was corroborated by many hundreds more pages of testimony from over a dozen other witnesses. Additionally, the State submitted a significant number of exhibits that corroborated E.L.’s testimony and evidenced the position of authority that the defendant held over E.L. Further, testimony about the Manchester conduct covered only four of the 1, 789 pages of trial transcripts and was not mentioned by the State in closing. Accordingly, it can be said beyond a reasonable doubt that the evidence of the Manchester conduct did not affect the jury’s verdict.

The defendant argues that the trial court erred by allowing the State to argue that the defendant was in a “position of authority” over E.L. in his roles as a “father figure” and a “religious leader.” DB at 12. The defendant argues that, under this Court’s case law, the phrase “position of authority, ” as it appears in RSA 632-A:2, I(k)(1), contemplates only positions such as “assistant manager, parish priest, correctional officer; teacher/school employee.” DB at 14. The defendant contends that his role as “father figure” and “religious leader” did not imbue him with authority over E.L. such that he could expect obedience from her. DB at 13-15. This Court should reject the defendant’s argument for at least three reasons. First, this Court should not consider this argument because the defendant abandoned it in the trial court. During the hearing on the defendant’s motion regarding this issue, defense counsel conceded that evidence could be adduced at trial “to establish that a father figure could be a position of authority.” H3 at 30-31. Defense counsel only sought to establish that a “father figure” is not “inherently[] a position of authority” like an “employer or something like that.” H3 at 31. The State and the court agreed with that position, see H3 at 31-32; Add. at 33-34, and defense counsel achieved her objective of “mak[ing] sure” that the parties and the court did not go into trial with the impression that a “father figure” is an “established... position of authority.” H3 at 31.

Accordingly, the defendant abandoned this argument in the trial court and should not be permitted to reclaim it on appeal.

Second, the defendant’s argument is mistaken. Under RSA 632-A:2, I(k)(1), it is a felony to engage in sexual penetration with another person “[w]hen the victim is 13 years of age or older and under 18 years of age and the actor is in a position of authority over the victim and is more than 4 years older than the victim.” The statute does not define “position of authority.” However, in interpreting that phrase, this Court has “previously construed the term ‘authority’ to mean: ‘power to require and receive submission: the right to expect obedience: superiority derived from a status that carries with it the right to command and give final decisions.’” State v. Cossette, 151 N.H. 355, 360 (2004) (citing State v. Fortier, 146 N.H. 784, 794 (2001)).

As the defendant observes, see DB at 12-17, this Court has decided several cases alleging various “positions of authority.” See Cossette, 151 N.H. at 360 (assistant manager); Fortier, 146 N.H. at 785 (priest); State v. Mclellan, 146 N.H. 108, 109 (2001) (step-father); State v. Marti, 140 N.H. 692, 693-94 (biological father); State v. Carter, 140 N.H. 114, 116 (1995) (school teacher); State v. Chase, 135 N.H. 209, 210 (1991) (mother’s boyfriend); State v. Collins, 129 N.H. 488, 489 (1987) (school “psychometrist”).

Notably, this Court has never held, or even suggested, that the phrase “position of authority” is limited to a closed list of specific “positions.” That is because whether a defendant is in a “position of authority” over his or her victim is a factual determination for a jury to make, aided by the definition of “authority” that this Court has previously applied, which the jury was supplied with in this case. See T at 1769; Cf. Cossette, 151 N.H. at 359-60 (holding that “a rational jury could have” concluded “that the defendant held a position of authority over the victim” in his role as assistant manager of Subway); Fortier, 146 N.H. 794 (holding that “the jury had ample evidence” to conclude “that the defendant was in a position of authority over the victims” in his role as a priest). The defendant appears to interpret RSA 632-A:2, I(k)(1) to apply only to official positions that inherently carry some level of institutional authority, such as “assistant manager[s], parish priest[s], correctional officer[s]; teacher/school employee[s].” DB at 14. However, the sorts of positions which the defendant appears to contemplate — those that are inherently imbued with supervisory authority by an institution — are explicitly provided for by RSA 632-A:2, I(n)(1) (prohibiting sexual intercourse when the defendant “is in a position of authority over the victim” by virtue of having “direct supervisory, disciplinary, or other authority authorized by law...”). The plain language of RSA 632-A:2, I(k)(1), is not so narrow and, therefore, covers a broader range of “position[s] of authority.”

Third, even if the defendant’s argument were correct, it would not change the outcome of this case. The State presented evidence at trial, and argued in closing, that the defendant was in a position of authority over E.L. in his roles as a coach, employer, father figure, and spiritual leader. See T at 1723-24. Assuming, as the defendant argues, that RSA 632-A:2, I(k)(1) only contemplates positions of “inherent authority, ” the defendant conceded in the trial court that an “employer” was such a position. H3 at 31. The State presented evidence that the defendant was E.L.’s employer and that the defendant engaged in sexual activity with E.L. at the SportsZone while she was on the clock.

Additionally, the defendant did not challenge the State’s argument that the defendant was in a “position of authority” over E.L. in his role as a basketball coach and does not do so on appeal. Thus, if the State were precluded from arguing that the defendant was in a “position of authority” over E.L. as a “father figure” and “religious leader” because those are not positions of “inherent authority, ” the State simply would have argued that the defendant was in a “position of authority” over E.L. in his roles as her employer and basketball coach. Accordingly, to the extent that the conclusion of the defendant’s argument on this point is that his convictions should be reversed, his argument is a non-sequitur.

The defendant argues that there was insufficient evidence for the jury to conclude that the defendant was in a position of authority3 over E.L in his roles as a “father figure” and a “religious leader.” DB at 17-20. At the outset, the State notes that this argument is a non-sequitur for the same reason stated above — even if the defendant is correct, there was ample evidence for the jury to conclude that the defendant held a position of authority over E.L. in his roles as E.L.’s employer and basketball coach. Additionally, as the trial court observed, the defendant filled the roles of coach, father figure, employer, and spiritual leader all at the same time, T at 1555, and the jury could have rationally concluded that, in combination, those roles placed the defendant in a position of authority over E.L. Setting those observations aside, the State addresses the defendant’s contentions in turn. “To succeed on a sufficiency of the evidence claim, a defendant must show that, viewing the evidence in the light most favorable to the State, no rational trier of fact could have found guilt beyond a reasonable doubt.” Cossette, 151 N.H. at 359 (2004). “All reasonable inferences derived from the evidence are drawn in the light most favorable to the State.” Id.

The assertion that the evidence was insufficient to establish that the defendant was in a position of authority over E.L. in his role as a father figure can be easily dismissed. With the blessing of the defendant’s wife, and to the ire of her mother and her sister, E.L. referred to the defendant as “Dad.” Reciprocally, the defendant would refer to himself as “Dad” in correspondence with E.L. and refer to her as his “daughter.” See T at 683, 700, 750-51. Indeed, the defendant introduced E.L. to people as “his daughter.” T at 399.

If E.L.’s mother “said the sky was blue, ” but the defendant said that it was not, E.L. would “say, no, ” the defendant “says it’s not blue.” T at 1051-52. When the defendant told E.L. that their sexual relationship contravened the word of God, but persisted in having sex with E.L. anyway, E.L. “basically took [the defendant’s] word over God[’s]” and allowed the relationship to continue. T at 571. E.L. “loved” the defendant and “trusted” him “with [her] life.” T at 342-43. E.L. “never questioned” the defendant out of fear that, if she did, the defendant “would leave, just like [her] father did when [she] was younger, ” and then E.L. “wouldn’t have a father figure or someone who loved [her].” T at 571-72. Accordingly, when the defendant told E.L. to meet him on the upper floor of the SportZone to have sex, she did it. When he told her to wait ten minutes before going back downstairs, and instructed her what route to take, she faithfully complied. If E.L. engaged in sexual activity with a boy her own age against the defendant’s wishes, the defendant criticized E.L. and verbally intimidated the boys. When it was time for E.L. to find a husband, the defendant played matchmaker. When it was time to celebrate E.L.’s wedding, E.L. went against the wishes of her family and engaged in a father-daughter dance with the defendant.

The evidence is unmistakably clear that, in his position as a father figure, the defendant’s authority over E.L. was second to none. In other words, if anybody could expect obedience from E.L., it was the defendant. Accordingly, there was sufficient evidence for the jury to decide that the defendant was in a position of authority over E.L. in his role as her father figure.

The evidence was also sufficient for the jury to find that the defendant was in a position of authority over E.L. in his role as a spiritual mentor. The defendant persuaded E.L. to attend church with him and supplied her with religious literature and instruction. The defendant brought E.L. to be baptized in his church without the knowledge of her mother, even though E.L. was baptized into the Catholic church by her parents. The defendant told E.L. that their sexual relationship was contrary to the teachings of God but then persisted in it anyway, and E.L. allowed it to continue, thereby submitting to the defendant’s actions over the word of God. Still, the defendant instructed E.L. that she must pray for God to forgive her sexual relationship with him, and she dutifully did so. See T at 570-71.

In short, under the sway of the defendant’s authority, E.L. rediscovered religion, was baptized into the defendant’s church behind her mother’s back, violated the tenets of her new church at the defendant’s behest, and then, in accordance with the defendant’s instruction, prayed for forgiveness. On the surface, that series of actions seems internally contradictive, but they make sense in the context of the authority that the defendant held over E.L. in his role as a spiritual mentor. Accordingly, there was sufficient evidence for the jury to rationally conclude that the defendant was in a position of authority over E.L. in his role as a religious mentor.

The trial court permitted E.L. to testify that, when she was fifteen, the defendant digitally penetrated her for the first time while he was driving her from Manchester Memorial High School to the SportsZone for a basketball lesson. The court ruled that the testimony was intrinsic to the crimes charged and, therefore, was not barred by Rule 404(b). The defendant contends that the court erred in its ruling. DB at 21-27. This Court reviews a trial court’s evidentiary rulings for an unsustainable exercise of discretion and will reverse only if the trial court’s ruling was clearly untenable or unreasonable to the prejudice of the defendant’s case. State v. Papillon, 173 N.H. 13, 24 (2020).

“‘Other act’ evidence 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. at 24-25. “‘Intrinsic’ or ‘inextricably intertwined’ evidence will have a causal, temporal, or spatial connection with the charged crime.” Id. at 25. “Typically, 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 the witness’s testimony, or completes the story of the charged offense.” Id. “This type of 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.

In this case, the trial court correctly concluded that the Manchester conduct was inextricably intertwined with the charged conduct. Even though the Manchester conduct and the charged conduct occurred in different counties, there is a causal connection between the two because the Manchester conduct precipitated all the penetrative sexual assaults that followed it. In that sense, the Manchester conduct was the first scene in a much longer episode of sexual assaults, which involved all the charged conduct, and was necessary to contextually understanding the entire episode. See State v. Cyrus, 664 S.E.2d 99, 104 (W. Va. 2018) (“the evidence that the appellant sexually assaulted and abused the victims in McDowell County was inextricably intertwined with the alleged offenses in Mercer county... [t]he sexual abuse was a continuing act that occurred in both counties and was impossible for the victims to segregate.”); State v. Lee, 934 N.W.2d 145, 160-61 (Neb. 2019); McGee v. State, 19 So.3d 1074, 1078-79 (Fla. Dist. Ct. App. 2009).

In the same vein, the Manchester conduct had a temporal connection to the charged conduct because it occurred only a couple of months prior. While that may be an attenuated temporal connection in some cases, it is a close temporal connection in a case that alleges a years-long pattern of sexually assaultive conduct. Further, there was a spatial connection in that much of the charged conduct, including the first instance of vaginal sex, occurred at the SportsZone, and that is where the defendant was taking E.L. when the Manchester conduct occurred.

In sum, the Manchester conduct was a prelude to the charged conduct and was probative of the authority that the defendant had already established over E.L. when he committed the charged conduct. The defendant’s ability to commit the Manchester conduct and have it go undetected arose from the same events that the charged conduct did. And the Manchester conduct was an integral part of the victim’s testimony and allowed the jury to contextually understand the hundreds of instances of penetrative sexual assault that followed it. Thus, the Manchester conduct was intrinsic to the charged conduct.

Intrinsic evidence is not barred by Rule 404(b), but it must sill satisfy the balancing test set forth in Rule 403. State v. Wells, 166 N.H. 73, 79 (2014). Evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id. “Unfair prejudice is not, of course, mere detriment to the defendant from the tendency of the evidence to prove guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial.” Id. at 79- 80. “Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.” Id. Among the factors this Court considers in weighing the evidence are: (1) whether the evidence would have a great emotional impact upon a jury; (2) its potential for appealing to a juror’s sense of resentment or outrage; and (3) the extent to which the issue upon which it is offered is established by other evidence, stipulation or inference.” Id.

The Manchester conduct was highly probative for reasons already discussed — it was the first instance of penetrative sexual assault precipitating all the charged conduct and afforded the jury a contextually complete understanding of the years-long pattern of sexual assault. In turn, the jury was able to fully evaluate whether the defendant was in a position of authority over E.L. during the charged conduct, all of which followed the Manchester conduct.

On the other hand, the evidence was not unfairly prejudicial. In this case, there was little risk that the jury would convict the defendant of dozens of sexual assault indictments alleging conduct more serious than digital penetration based on brief testimony about the Manchester conduct. Indeed, the jury acquitted the defendant of some of the charges, which shows that the jury carefully considered the evidence and each indictment. Additionally, as the trial court observed, the Manchester conduct was no more likely to evoke an emotional response than the evidence of the charged conduct. Further, there was no other evidence, stipulation, or inference that the jury had about the first instance of penetrative sexual assault that would allow them to contextually understand all the charged instances of sexual assault.

Accordingly, the trial court’s conclusion that the Manchester conduct was intrinsic to the charged conduct and that its probative value was not substantially outweighed by the danger of unfair prejudice was not unreasonable or untenable to the prejudice of the defendant’s case.

Even if the trial court erred in admitting evidence of the Manchester conduct, any such error was harmless beyond a reasonable doubt. To establish harmless error, the State must prove beyond a reasonable doubt that the error did not affect the verdict. State v. Boudreau, 175 N.H. 806, 816 (2023). In conducting a harmless error analysis, this Court evaluates the totality of the circumstances at trial. Id. The factors that this Court considers include, but are not limited to: (1) the strength of the State’s case; (2) whether the admitted or excluded evidence is cumulative or inconsequential in relation to the strength of the State’s case; (3) the frequency of the error; (4) the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence; (5) the nature of the defense; (6) the circumstances in which the evidence was introduced at trial; (7) whether the court took any curative steps; (8) whether the evidence is of an inflammatory nature; and (9) whether the other evidence of the defendant’s guilt is of an overwhelming nature. Id. at 817. No one factor is dispositive, not all factors may be implicated in a given case, and this Court may consider factors that are not listed above. Id.

Over the course of a twelve-day trial consisting of twenty witnesses and spanning 1, 789 transcribed pages — E.L.’s testimony alone covered five days and 660 transcribed pages, see T at 315-975 — E.L.’s testimony about the Manchester conduct consumed four of those pages. T at 420-24. The State did not reference the Manchester conduct in its closing and no other witness was asked about it. Accordingly, the frequency of the error in this case was infinitesimal to the point that it was virtually undetectable, and the testimony was not cumulative of any other evidence. To the extent that the Manchester conduct was inflammatory, it was less inflammatory than much of the evidence about the charged conduct. Additionally, the Manchester conduct did not undercut the theory of defense, which was consent. In fact, E.L. testified that she was “sure” that, during the Manchester conduct, she “smiled at [the defendant] because it felt good.” T at 422.

Moreover, the evidence in this case was overwhelming. Given the theory of defense, there was no dispute that the defendant engaged E.L. in all the manners of sexual intercourse that were alleged. Indeed, the jury heard that the defendant admitted as much when responding to interrogatories in the civil case against him. See T at 1336-1343. Beyond sexual penetration, the State needed to prove that the victim was between the ages of thirteen and eighteen, that the defendant was more than four years older than her, and that he was in a position of authority over her. See RSA 632-A:2, I(k)(1).

Nobody disputed that E.L. was between the ages of thirteen and eighteen during the period in question or that the defendant was more than four years older than her. Further, the evidence of the defendant’s authority over E.L. was overwhelming. Amongst that evidence was E.L.’s detailed testimony, which was corroborated by the testimony of acquaintances and friends such as Katie Garrett, T at 73-112, David Hedge, T at 124-136, Stephen Tewskbury, T at 975-1000, Erika Richardson, Tat 1121-1140, Joe Goodwin, T at 1198-1284, and Magdala Johnson, T at 1292-1309. E.L.’s testimony was corroborated by the testimony of police officers, see T at 136-179, 1309-1435, 1686-1690, her therapist, T at 266- 315, her mother, T at 1020-1088, her sister, T at 1088-1121, two ex- boyfriends, T at 1140-1198, and her husband, T at 1435-1507. Indeed, E.L.’s testimony was even corroborated by witnesses called by the defense, including the defendant’s wife. See T at 1607-1658; see also T at 1559- 1584, 1584-1607.

Furthermore, the State entered a significant number of exhibits into evidence. Those exhibits included, but were not limited to, gifts (including sex toys) that the defendant gave to E.L., email correspondence between the defendant and E.L., greeting cards to and from them both, school assignments E.L. had completed, notes that E.L. wrote in high school, religious and other literature that the defendant gave to E.L., and pictures of the defendant and E.L. together. See T at 72, 264, 380-82, 608-09, 722-23, 897, 1099, 1290-91, 1511-1512.

In short, it is highly unlikely that E.L.’s relatively brief testimony about the Manchester conduct affected the verdicts in this case. Accordingly, even if the trial court erred in admitting that testimony, the error was harmless beyond a reasonable doubt.

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

The State requests a fifteen-minute oral argument.

I, Sam M. Gonyea, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 9, 086 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.

September 10, 2024 /s/ Sam M. Gonyea Sam M. Gonyea

I, Sam M. Gonyea, hereby certify that a copy of the State’s brief shall be served on Michael Iacopino, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

September 10, 2024 /s/ Sam M. Gonyea Sam M. Gonyea