State v. Clark

STATE OF NEW HAMPSHIRE v. STEVEN M. CLARK

No. 2019-0682

Supreme Court of New Hampshire, Rockingham

October 22, 2021

Argued: September 14, 2021

Office of the Attorney General, (Zachary L. Higham, assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DONOVAN, J.

The defendant, Steven M. Clark, appeals his convictions following a jury trial in the Superior Court (Delker, J.), on five counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2 (2018), one count of attempted AFSA, see RSA 632-A:2, II; RSA 629:1 (2018), and one count of felonious sexual assault (FSA), see RSA 632-A:3, III (2018). The defendant argues that the trial court erred by admitting evidence of (1) a victim's change in gender identity after the sexual assaults were disclosed; and (2) the defendant's display of pornographic images to his minor nephews around the time of the sexual assaults. We conclude that the trial court properly addressed evidence of the victim's change in gender identity through voir dire and subsequent jury instructions. We also conclude that evidence that the defendant displayed pornographic images to his minor nephews was admissible to corroborate the victim's testimony. Further, given the evidence describing the nature of the assaults, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Lastly, the defendant asks this court to review the Superior Court's decision (Wageling, J.) to withhold some of the confidential records provided for in camera review. Because the trial court did not have the benefit of our decision in State v. Girard, 173 N.H. 619 (2020), when it conducted its in camera review, we remand for the limited purpose of reviewing the withheld confidential records in accordance with the standard set forth in Girard.

I. Facts

The jury could have found the following facts. Between 2012 and 2014, the two minor victims, along with their older sister, regularly visited their grandparents' house to be babysat. Multiple families lived in the home, with the grandparents residing on the main floor, and the defendant and his wife, who were the victims' aunt and uncle, living in a bedroom in the basement. When the victims were being babysat, they preferred to play with the toys in the basement playroom, while the defendant often played video games in the computer room of the basement, adjacent to the playroom.

During these visits, the defendant repeatedly sexually assaulted his two youngest nieces. At least once a week, the defendant isolated the victims in the computer room, played pornography on a computer, and engaged in numerous acts of sexual contact with both victims, including one instance of sexual penetration with one of the victims. In January 2014, the victims told their parents about the sexual assaults. The parents informed the New Hampshire Division for Children, Youth and Families (DCYF), and a criminal investigation followed.

More than four years later, the State charged the defendant with seven counts of AFSA, one count of attempted AFSA, and one count of FSA. After the sexual assaults were disclosed, the younger victim changed their gender identity from female to male, and began using male pronouns and a new gender-affirming name. Prior to trial, the defendant filed a motion in limine to preclude any reference to the younger victim's change in gender identity. The trial court denied the motion, but issued instructions to the venire panel and in its subsequent jury instructions to mitigate any potential prejudice.

At trial, the older victim testified but the younger victim did not. On direct examination, the older victim recounted an instance when the defendant told her that he tried to show his two minor nephews (the victims' cousins) "inappropriate videos and pictures," and that the younger nephew "freaked out." The defendant objected, citing New Hampshire Rule of Evidence 404(b). The court overruled the objection. The State later elicited corroborating testimony from the older nephew that on one occasion while visiting the grandparents' house, the defendant showed him and his brother several photographs of naked women on his tablet. By contrast, the younger nephew testified that he did not remember the defendant ever showing him or his brother pornographic images. The defendant testified and denied sexually assaulting the victims or sharing pornographic images with his nephews. During trial, the court dismissed two of the AFSA charges for insufficient evidence. The jury found the defendant guilty on the remaining seven charges. This appeal followed.

II. Standard of Review

We review the trial court's evidentiary rulings for an unsustainable exercise of discretion and reverse only if the court's decision was clearly untenable or unreasonable to the prejudice of the defendant's case. State v. Fiske, 170 N.H. 279, 286 (2017). We consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made. Id. The defendant bears the burden of demonstrating that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

III. Analysis

A. Motion to Exclude Evidence of Younger Victim's Transition

The defendant argues that the trial court erred by denying his motion in limine to preclude evidence of the younger victim's change in gender identity. Specifically, the defendant argues that the evidence is irrelevant, and therefore inadmissible, because the younger victim identified as female during the charged conduct and thus her subsequent gender transition had no tendency to make it more or less probable that the defendant committed the sexual assaults. See N.H. R. Ev. 401, 402. In addition, the defendant argues that admitting this evidence violated Rule 403 because the probative value of the gender transition, even if relevant, was substantially outweighed by the danger of unfair prejudice that the jury would misattribute the transition to past sexual trauma. See N.H. R. Ev. 403.

Under Rule 401, evidence is relevant if it has "any tendency to make a fact [of consequence in determining the action] more or less probable than it would be without the evidence." N.H. R. Ev. 401. Here, the trial court determined that the younger victim's gender transition was "relevant to the juror's assessment of witness credibility, even though there is no evidence [the transition] has anything to do with the alleged sexual assaults." We agree. The State relied exclusively upon the older victim's testimony to provide a firsthand account of the sexual assaults. Forcing the older victim to ignore the younger victim's change in gender identity when testifying about the younger victim at different points in time could have infected her testimony with a level of artificiality or hesitancy, potentially detracting from her credibility in the eyes of the jury. Considering that the defendant's case rested primarily on discrediting the older victim's testimony, it follows that any evidence affecting her credibility was highly relevant and likewise highly probative. See Fiske, 170 N.H. at 287 (concluding evidence affecting witness credibility meets the standard for relevance).

Next, we turn to the defendant's Rule 403 argument. Under the balancing test of Rule 403, we examine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Tabaldi, 165 N.H. 306, 322-23 (2013). When weighing the evidence, we consider: (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. Further, the trial court is in the best position to gauge the impact of prejudicial testimony and what steps to take to remedy that prejudice. Id. at 323. Thus, we give the trial court broad latitude when ruling on the admissibility of potentially unfairly prejudicial evidence. Id.

We find no error here. As explained above, the evidence was probative of witness credibility. The court mitigated the risk of unfair prejudice during jury selection and in its subsequent jury instructions. During voir dire, the trial court stated:

In this case, you will also likely hear evidence that one of the alleged victims identified as a female at the time of the alleged act, but now identifies as a male. Do you have any prejudices or strong feelings on the issue of gender identity which would affect your ability to be a fair and impartial juror if you're chosen as a juror on this case, based on this fact alone?

So in this case -- you will not hear any evidence in this case that the gender transition was caused by the Defendant's alleged conduct or otherwise had any connection to the allegations [against] the Defendant in this case. So if you're chosen as a juror in this case, the Court will instruct you that you are not allowed to use the gender transition as evidence against the Defendant, nor are you allowed to infer, assume, or conclude that that individual's gender transition was connected in any way to the accusations against the Defendant. Do you have any strong, moral, religious, or personal opinions that would prevent you from following these instructions that the Court would give to you if you were chosen as a juror in this case?

The lawyers and the witnesses in this case, when they refer to one of the alleged victims alternatively as [the younger victim's birth name and/or gender-affirming name], does anyone have any

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