State v. Rouleau

313 A.3d 814

2024 N.H. 2

The STATE of New Hampshire

v.Timmy J. ROULEAU

Case No. 2021-0310

Supreme Court of New Hampshire.

Argued: September 14, 2023

Opinion Issued: January 19, 2024

Strafford

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

MACDONALD, C.J.

[¶1] The defendant, Timmy J. Rouleau, appeals his convictions, following a jury trial in Superior Court (Howard, J.), on two counts of pattern aggravated felonious sexual assault (AFSA), see RSA 632-A:1, I-c (2016), one count of AFSA, see RSA 632-A:2, I(j)(1) (2016 & Supp. 2022), one count of attempted AFSA, see RSA 632-A:2, I(j)(1); RSA 629:1 (2016), two counts of felonious sexual assault, see RSA 632-A:3, III(a)(1) (2016 & Supp. 2022), and two counts of sexual assault, see RSA 632-A:4, I(b) (2016 & Supp. 2022). The charges allege that the defendant sexually assaulted the victim several times when she was between the ages of ten and thirteen. At issue in this appeal is the trial court’s admission of evidence about an Amazon "wish list" containing sexually oriented items. The defendant argues that the trial court erred in admitting the evidence because it was not intrinsic to the charged crimes. The State counters that the evidence was intrinsic to the charged crimes but that, if the trial court erred, any error in the admission of the evidence was harm- less. We conclude that the evidence was not intrinsic, and thus was admitted in error, but the error was harmless beyond a reasonable doubt. Therefore, we affirm.

I

[¶2] The jury could have found or the record otherwise supports the following facts. The victim was born in June 2005 and has three younger half-siblings on her mother’s side. The defendant is not the victim’s father. In early 2016, the victim’s mother was in a relationship with the defendant. In March 2016, when the victim was ten years old and in fifth grade, the victim’s mother and her children moved to an apartment building in another town in order to be closer to the defendant. The defendant lived in the same building on the same floor in another unit. The victim and her family primarily spent time at the defendant’s apartment during this period.

[¶3] Approximately one to two months after moving, the victim was asked by the defendant to cuddle with him on the living room couch. At the time, no one else was present in the room. While cuddling, the defendant put his hand under the victim’s shirt, touching her breasts. The defendant then moved his hand into her shorts, inside her underwear, and digitally penetrated her vagina. The same assaults subsequently occurred "quite frequently." At first, the assaults occurred "almost every day." Later, they would occur between "every day" and "every other day," when others in the household were absent. The victim estimated that the assaults occurred "a few hundred" times. The victim testified that the assaults always occurred around the same time of day, in the late afternoon after she arrived home from school and before the defendant would leave for work.

[¶4] The victim recalled two specific incidents that varied from the rest. The first occurred in late 2016 when she stayed home sick from school and the defendant suggested they watch Netflix in his bed. Once in bed, the defendant began assaulting the victim as he had on previous occasions. The defendant then lifted the victim’s shirt and put his mouth on her breasts. The defendant also grabbed the victim’s wrist and "moved [her] hand up and down on his penis." The second incident occurred in sixth or seventh grade when, while digitally penetrating the victim’s vagina, the defendant asked the victim if she liked what he was doing to her. She replied that she did not, but he "didn’t stop." The victim testified that this incident was noteworthy as it was "out of character" for the defendant to say something while assaulting her.

[¶5] The assaults stopped sometime during seventh grade when the victim began isolating herself from the defendant by staying in her room, staying after school for activities, and spending time with friends outside the apartment. During this period, the victim’s mother noticed that the victim became more withdrawn and spent more time in her bedroom. The victim did not want to be home if her mother was not present. If the victim’s mother went somewhere, the victim would want to go with her, which upset the defendant. The victim testified that during this period, the defendant frequently asked her to join him on the couch and she rejected his offers. The defendant got upset at the rejections and tried to make the victim feel guilty.

[¶6] In November 2017, the victim’s family and the defendant moved into a three-bedroom apartment together. The victim testified that after this move, no abuse occurred at the apartment until the morning of April 3, 2019.

[¶7] On April 3, 2019, at around 2:00 a.m., the victim arrived home with her mother, returning from a school trip. The defendant was sleeping on the couch in the living room. Because the victim was exhausted and her bed had folded laundry on it, the victim’s mother told the victim "to come sleep in my room with me." The victim fell asleep in her clothes with her mother in her mother’s bed.

[¶8] The victim awoke to the defendant being in the bed and holding her from behind. The defendant touched her breasts and digitally penetrated her vagina. The victim attempted to get her mother’s attention but was unable to do so. The defendant moved the victim’s shorts and put his penis between her legs, moving it back and forth. The victim testified that "[i]t felt like he was trying to put it into my vagina," "it felt like the tip of the penis had gone in, but not the whole thing," and "it hurt" while it was happening. The victim estimated that the assault went on for twenty or thirty minutes until she began crying and her mother awoke. The defendant turned over "as if nothing was happening." The victim’s mother brought the victim downstairs and asked her what happened. The victim’s mother testified that the victim told her "that [the defendant] had touched her boob, and that his penis was in between her legs." The victim’s mother testified that the victim was very upset while describing what the defendant had done.

[¶9] The victim’s mother returned back to her room and confronted the defendant with what the victim had told her. She asked him what had happened and he said "he didn’t remember," "[h]e didn’t know, and that he wouldn’t do anything to hurt the kids."

[¶10] The trial court conducted a two-day jury trial in June 2021. At trial, the victim and the victim’s mother, among others, testified for the State. The defendant testified in his own defense, denying the allegations. The jury returned verdicts of guilty on all counts. This appeal followed.

II

[¶11] The challenged testimony occurred during the victim’s direct examination on the first day of trial. After the victim testified about the abuse that transpired beginning in the spring of 2016, the State asked whether there were "other times during this timeframe when [the defendant] would make any kind of sexual reference to you?" Defense counsel asked to approach the bench. At the bench, defense counsel noted that the State had not filed a pretrial motion in limine seeking to introduce evidence under New Hampshire Rule of Evidence 404(b) and asked for a proffer of what the State intended to elicit. The State proffered that the victim would describe that the defendant had given her an Amazon wish list and asked her to rank the items, including sexually oriented items, and that "[i]t happened in the midst of this timeframe." The State argued that the evidence was "intrinsic to the sexual assault." The State argued that it was more probative than prejudicial "because it [went] to the fact that the defendant had a sexual relationship with [the victim] and was making these kinds of sexual references to her even when he wasn’t molesting her, and it’s no more prejudicial than pretty much any of the other things that we’ve gone into thus far." The defendant argued that the wish list evidence "seem[ed] like ... a grooming-type behavior" that "squarely" fell under Rule 404(b) and that it was "highly prejudicial." The trial court overruled the defendant’s objection, finding that the evidence was not Rule 404(b) evidence and that it "[was] intrinsic, and it [was] inextricably intertwined with" the charged conduct.

[¶12] The victim then testified that when she and her siblings made their Christmas lists, she would have to use an Amazon wish list rather than write out what she wanted like the other children. The defendant added items to the list for her to sort through to determine if she wanted them. Many of the items added by the defendant were sexually oriented, including sex toys, lingerie, a chocolate lollipop in the shape of a penis, and other similar items. She was not allowed to delete any of the items from the list and instead had to rank them by her preference. The victim testified that she was particularly scared that the defendant would purchase the lollipop for either Christmas or her birthday, though he did not. The victim did not say when the list was created or discussed.

[1,2] [¶3] On appeal, the defendant argues that the trial court erred in admitting the evidence because it was not intrinsic to the charged crimes. We review the trial court’s ruling on the admissibility of evidence for an unsustainable exercise of discretion, and will reverse only if it was clearly untenable or unreasonable to the prejudice of the defendant’s case. State v. Papillon, 173 N.H. 13, 24, 236 A.3d 839 (2020). In applying our unsustainable exercise of discretion standard of review, we determine only whether the record...