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State v. Dukette

Supreme Court of New Hampshire

February 6, 2013

State of New Hampshire
v.
David Dukette

The defendant, David Dukette, appeals his convictions for aggravated felonious sexual assault, witness tampering and contempt. He argues that the trial court erred in: (1) denying his motion to dismiss the contempt charges; (2) allowing a nurse to testify about the frequency of normal findings in sexual assault examinations when she was not offered as an expert; and (3) finding sufficient evidence of the time period element of the pattern charge. We reverse the defendant's convictions for contempt and affirm his convictions for aggravated felonious sexual assault and witness tampering.

We briefly set forth the facts in this case. The defendant was indicted on sixteen counts of aggravated felonious sexual assault and six counts of witness tampering and charged by information with four counts of contempt. The defendant was arrested and held on a bail order that contained several conditions of release, including a no-contact order with the victim or members of her family.

The defendant never posted bail and remained incarcerated prior to trial. During that time he wrote more than a hundred letters to the victim and her family. At the close of the State's case, the trial court dismissed nine of the aggravated felonious sexual assault charges. The defendant was convicted on the remaining charges.

The defendant first argues that the trial court erred in denying his motion to dismiss the contempt charges. We agree. We note also that the State concedes that the trial court should have dismissed the contempt charges. The contempt informations charged that the defendant was ordered to have no contact with the victim and members of her family "as a condition of the pretrial order for release" and that he violated the order by communicating with them. As the defendant argues, the pretrial order for release imposed the no-contact order as a condition to his release. Because he was never released, the no-contact order did not take effect. Accordingly, we vacate the defendant's convictions for contempt.

The defendant next argues that the trial court erred in allowing a nurse to testify about the frequency of "normal findings" in sexual assault examinations because she was not offered as an expert. At trial, the State called as a witness a sexual assault nurse examiner (nurse). The defendant cites her testimony about what she expected to find during her examination of the victim. In response to the State's question asking her what in her experience she had found "with respect to discovery of injuries in the genital area, " she testified that "the majority of the time we don't really find any injury. And that's primarily because of the way the genitalia and . . . ." At this point, defense counsel objected. After a lengthy colloquy at the bench, the trial court ruled that the nurse could not offer a medical opinion without having been qualified as an expert but that she could testify about her observations during other examinations. A review of the record indicates that her testimony was limited and when describing her past observations, focused on injuries to the genital area. At the close of the State's case, the trial court dismissed all of the charges that alleged an act that could have caused an injury to the victim's genitalia. Accordingly, we agree with the State that to the extent admission of the nurse's testimony was error, it was harmless. See, e.g., State v. McDonald, 163 N.H. 115, 123 (2011) (error is harmless if alternative evidence of defendant's guilt is of an overwhelming nature, quantity or weight and if inadmissible evidence is merely cumulative or inconsequential in relation to strength of State's evidence of guilt). In this case, the challenged testimony was not relevant to the charges that remained before the jury when it deliberated. See id. (in determining whether error is harmless, supreme court considers alternative evidence presented at trial as well as character of inadmissible evidence).

The defendant's final argument is that the trial court erred in denying his motion to dismiss the pattern charge because no reasonable juror could have concluded that the assaults occurred over a period of two or more months. See RSA 632-A:1-c (Supp. 2012) (pattern of sexual assault requires proscribed acts be committed over a period of two or more months); State v. Alwardt, 164 N.H. 52, 55 (2012) (to prevail on sufficiency claim, defendant must establish no rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in light most favorable to State, could have found guilt beyond a reasonable doubt).

In support of his argument, the defendant cites the trial testimony of the victim that she was born in July 2000 and that the assaults occurred only when she was eight. The defendant was incarcerated in early October 2008. As the State points out, however, the victim also testified that the assaults related to the pattern charge took place in August 2008, July 2008, and before school ended for summer vacation in 2008. That her testimony may have had internal inconsistencies was an issue to be considered by the jury as it observed her demeanor. See, e.g., State v. Alwardt, 164 N.H. at 57. This is not a case where the victim testified inconsistently about whether the charged assaults took place, but, rather, one where she exhibited confusion about interrelated dates. Accordingly, we find inapposite the defendant's argument that the principles underlying the destructive contradictions doctrine support reversal of his pattern assault convictions. See, e.g., Pittman v. Atlantic Realty Co., 745 A.2d 1030, 1047 (Md. 2000) (explaining destructive contradictions doctrine).

Affirmed in part; reversed in part. ...


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