Argued February 20, 2014.
Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Getman, Schulthess & Steere, P.A., of Manchester ( Andrew R. Schulman on the brief and orally), for the defendant.
DALIANIS, C.J. HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.
[166 N.H. 211] Dalianis, C.J.
The defendant, Gregory Collins, appeals an order of the Superior Court ( Kissinger, J.) denying his motion for a new trial on three counts of pattern aggravated felonious sexual assault (AFSA), four counts of AFSA by individual acts, and one count of misdemeanor sexual assault, based upon the court's conclusion that his trial attorney's performance was not constitutionally deficient. See RSA 632-A:2, I(j), III (2007), :4 (2007) (amended 2008 & 2010). We reverse and remand.
The record establishes the following facts. The complainant is the defendant's daughter. She alleged that the defendant began " doing stuff that was not appropriate" in April 2007, when she was fourteen years old. She alleged that the inappropriate behavior occurred on Monday evenings, when her mother took one of her siblings to gymnastics. The complainant testified that on some of those evenings, the defendant would " put in a video" for her younger siblings to watch and would then " pull [her] into the bedroom." On other occasions, the complainant would already be in her bedroom. On those occasions, because the complainant's bedroom door would not lock, the defendant would put a book under it so that her siblings would not enter.
[166 N.H. 212] The complainant testified that the first time the defendant took her into her bedroom, he asked her to undress, and when she refused, forcibly undressed her. Once she was undressed, the defendant " straddled" her and " play[ed]" with her breasts. He then " started moving down toward [her] vagina and ... started licking around there, too." The complainant testified that a similar incident occurred a few weeks later and that similar assaults occurred " probably almost every week" until November 2007.
The complainant testified that other assaults occurred during this time period, including one in which the defendant told her that he was going to " fix" her back and, while she was undressed, on her hands and knees, he penetrated her anus with his finger and then with a pencil. The complainant also described two occasions when the defendant penetrated her vagina with his finger.
After a jury convicted the defendant, and we upheld his convictions on appeal, he filed a motion for new trial on the ground that he did not receive effective assistance of counsel as guaranteed by the State and Federal Constitutions. See N.H. Const. pt. I, art. 15; U.S. Const. amends. VI, XIV. The trial court found that the defendant's trial counsel's performance fell below an objective standard of reasonableness in several respects, but that ...