State v. Pierce

319 A.3d 1282

2024 N.H. 12

The STATE of New Hampshire

v.Kierran PIERCE

Case No. 2022-0728

Supreme Court of New Hampshire.

Argued: January 3, 2024

Opinion Issued: March 26, 2024

Belknap

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Audriana Mekula, assistant attorney general, on the brief and orally), for the State.

Sisti Law Offices, of Chichester (Wade Harwood on the brief, and Mark L. Sisti orally), for the defendant.

MACDONALD, C.J.

[¶1] The defendant, Kierran Pierce, appeals his convictions, following a jury trial in Superior Court (Leonard, J.), of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, II (2016 & Supp. 2023), and attempted AFSA, see RSA 632-A:2, I(l) (2016 & Supp. 2023); RSA 629:1 (2016). The defendant argues that the trial court erred in denying his motions: (1) for a mistrial; (2) to dismiss the attempted AFSA charge at the close of the State’s case; and (3) for a view. We conclude that: (1) the trial court erred in denying the defendant’s request for a mistrial; and (2) there was sufficient evidence to prove guilt on the attempted AFSA charge. Accordingly, we reverse and remand.

I

[¶2] The jury could have found, or the record otherwise supports, the following facts. When the complainant was ten years old, she lived in a sixty-foot trailer home with her two siblings and her grandparents. In September 2016, the defendant, who is the complainant’s grandfather’s nephew, stayed with them for a few days.

[¶3] When the defendant arrived at the residence, he sat in the living room with the complainant and her younger sibling and tried to converse with them. The complainant’s grandmother was in the nearby kitchen and her grandfather was in his bedroom. The complainant testified that the defendant pulled her onto his lap. She stated that she sat on his lap sideways while he had his arms around her. This made her uncomfortable. She eventually got off his lap and went to her room.

[¶4] After a few hours, the defendant entered the complainant’s bedroom and sat on a reclining chair in the middle of the room. The complainant testified that the defendant pulled her onto his lap. She tried to get off his lap and he attempted to stop her. They struggled for a few minutes. She testified that he positioned her so that her back was on his lap and she was facing towards the ceiling. She testified that he pulled her pants down to her knees. She stated that he began touching her all over her body, including the outside of her vagina for a few seconds. She eventually pushed herself off of him and left the room.

[¶5] The complainant testified that later that weekend the defendant entered her room and sat in the chair a second time. He pulled her onto his lap again, and told her that "it was okay." She further testified that he began trying to touch her "all over" her body for a few minutes. She tried to get off his lap but the defendant kept pulling her back to him. She stated that he positioned her with her back on his lap facing the ceiling, pulled her pants down to her knees, and touched her vagina beneath her underwear with his hands. The complainant felt him try to put his fingers inside her vagina, though he was not successful. He then grabbed her by the waist and lifted her body toward him. As this happened, she saw his face get closer to her vagina. She was able to kick and push herself away from him before he touched her further. She pulled up her pants and ran to her grandparents' room.

[¶6] She told her grandparents what happened, but her grandfather did not believe her. She wrote a note explaining what happened and gave it to her grandfather. The grandfather testified that the note said that the defendant "touched her privates." Despite the complainant’s report and note, her grandfather did not contact law enforcement.

[¶7] In 2019, the complainant disclosed the defendant’s alleged conduct to a counselor who reported it to the New Hampshire Division for Children, Youth and Families (DCYF). The complainant’s grandfather produced the note to a police officer during an interview.

[¶8] The defendant was indicted on eight counts of sexual assault charges. Four of the counts alleged conduct against the complainant, and four alleged conduct against her younger sibling. Before trial, the trial court granted an assented-to motion to sever the four counts involving the complainant’s younger sibling.

[¶9] The defendant filed a pretrial motion requesting a view of the residence where the sexual assaults were alleged to have occurred. The trial court denied the motion. After jury selection, the court heard further argument on the motion. It did not change its prior ruling.

[¶10] The trial court conducted a two-day jury trial in November 2022. At trial, a police officer involved with the investigation testified. She stated that the complainant’s grandfather handed her a note in response to her investigative questions. She testified that the note "stated something to the effect of, Kierran touched me and … that the children had been touched inappropriately." The defendant objected to the testimony and requested a mistrial, arguing that the witness’s reference to "children, plural" that "had been touched inappropriately" was similar to State v. Kerwin, 144 N.H. 357, 361, 742 A.2d 527 (1999) (holding that a mistrial was warranted after a witness testified that the defendant had sexually assaulted another individual). The trial court denied the motion, stating that it recalled the witness saying that the defendant "touched the children" and that "the testimony so far has been that he was very touchy with the children and handsy and all that conduct."

[¶11] After the State rested, the defendant moved to dismiss all four charges against him. The State did not object to the dismissal of two of the charges, which alleged digital penetration, for lack of evidence. The court denied the defendant’s motion as to the remaining charges, which alleged that the defendant touched the complainant’s vagina and attempted to put his mouth on her vagina. The jury convicted the defendant on those charges. This appeal followed.

II

[¶12] We first address the defendant’s argument that the trial court erred in denying his motion for a mistrial. The defendant contends that a mistrial was required because the jury heard that the note indicated that the defendant touched the intimate parts of both the complainant and her younger sibling and because "[t]his clearly and unambiguously put before the jury that [the defendant] was accused of nearly identical conduct against a second victim, [the complainant’s younger sibling]." We conclude that the trial court erred.

[1–4] [¶13] A mistrial is appropriate when the circumstances indicate that justice may not be done if the trial continues to a verdict. State v. Turcotte, 173 N.H. 401, 402, 239 A.3d 909 (2020). To justify a mistrial, the conduct must be more than merely prejudicial; a mistrial based on the introduction of inadmissible evidence is warranted only when the challenged evidence causes irreparable injustice that cannot be cured by jury instructions. Id. at 402, 404-05, 239 A.3d 909. In this context, when deciding whether a defendant suffered irreparable injustice, we examine whether the inadmissible testimony unambiguously conveyed to the jury that the defendant had committed an act which was criminal in nature. Id. at 405, 239 A.3d 909.

[5, 6] [¶14] We recognize that the trial court is in the best position to gauge the prejudicial nature of the conduct at issue and has broad discretion to decide whether a mistrial is appropriate. Id. at 403, 239 A.3d 909. We will not overturn the trial court’s decision on whether a mistrial or other remedial action is necessary absent an unsustainable exercise of discretion. Id.

[7] [¶15] We hold that the statement that "the children had been touched inappropriately" was highly prejudicial and warranted a mistrial. See Kerwin, 144 N.H. at 360, 742 A.2d 527 ("It is well-settled that an incurable prejudice may result when the testimony of a witness conveys to a jury the fact of a defendant’s prior criminal offense. The infusion of such evidence into a trial is probably only equalled by a confession in its prejudicial impact upon a jury." (quotation omitted)).

[¶16] The State, and the trial court, acknowledged the prejudicial nature of such evidence when the court granted the assented-to motion to sever the charges involving the younger sibling. The motion stated that the defendant "would suffer unfair prejudice if a single jury were to hear about two alleged victims." The prejudicial nature of the statement in this case is akin to other cases in which we have held a mistrial to be warranted. See, e.g., id. at 361, 742 A.2d 527 (holding that "statement that ‘that man raped some girl’ was highly prejudicial and warranted a mistrial"); State v. Woodbury, 124 N.H. 218, 221, 469 A.2d 1302 (1983) (holding that a mistrial was warranted where the testimony "explicitly revealed to the jury inadmissible evidence of an identical charge which had been previously filed against the defendant"); State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108 (1978) (holding that testimony relating to a pending AFSA charge warranted a new trial when "the jury could easily discern that the defendant was allegedly culpable for other instances of criminal conduct closely related to the charge before it").

[¶17] Here, given the complainant’s prior testimony about writing a note explaining what had happened, the police officer’s testimony about the gist of the note unambiguously conveyed to the jury that the defendant had allegedly committed a sexual assault against another child, conduct similar to the charged crimes. See Turcotte, 173 N.H. at 405, 239 A.3d 909 ("The justification for a mistrial increases when the prior act identified is similar to the charged crime." (quotation omitted)). Accordingly, we hold that the trial court’s denial of the...