Argued: March 5, 2015
Hillsborough – northern judicial district
Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Sarah E. Newhall, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial in Superior Court (Garfunkel, J.), the defendant, Armando Lisasuain, was convicted of, among other offenses, two counts of aggravated felonious sexual assault, RSA 632-A:2, I(m) (2007). On appeal, the defendant argues that the trial court: (1) erred by finding that the State presented sufficient evidence to prove lack of consent by the victim on the aggravated felonious sexual assault charges; (2) may have erred by not disclosing more documents from its in camera review of certain of the victim's records; and (3) erred by not allowing cross-examination of a police officer as to the nature and duration of his interrogation of the defendant. We affirm.
The following facts are supported by the record. In October 2010, the 14-year-old victim was living with her mother and her siblings in Manchester. The 46-year-old defendant, a family friend, had been staying at the home a few nights each week after he had to move out of his cousin's apartment.
On October 23, the victim returned home from serving a school detention. No one was home and the victim lay down on the couch to watch television. The defendant arrived at the home and went over to the couch. The victim moved her feet so he could sit and then he said she could put her feet back. The defendant asked her if she liked foot rubs and she stated, "Yeah. My nanna gives them to me all the time." The defendant started rubbing her feet. The victim "didn't know what to think" when the defendant started giving her a foot rub, but "since [her] nanna gave them to [her] all the time, [she] didn't really think anything weird because . . . he was [her] dad's best friend [and] . . . [she] didn't look at him as a complete stranger." The defendant then asked if she ever got her toes sucked. She responded, "No." The victim thought the defendant's inquiry "was weird." When the defendant started sucking on her toes, the victim "was in shock."
The defendant told the victim that she was "dangerously beautiful, " to which she did not respond because that scared her. The defendant told her that "he was going to tear [her] up, " which the victim thought was "a sexual term, " although she "didn't know exactly what he meant by it." The defendant had moved off the couch and he was "on his knees" below where the victim's head was on the couch. The defendant asked her "if he could go lower." The victim "assumed that he was talking about [her] vagina, " but she didn't answer him because she "couldn't believe what was going on." The defendant then pulled her pants and underwear down and "moved [her] legs . . . on his shoulders or above his shoulders." The victim did nothing to help him and did not say anything. The defendant performed cunnilingus on her and penetrated her vagina with his fingers. He stopped when he got a telephone call and then he left.
The victim had been frequently skipping school and staying out all night. On November 2 she was placed by court order at Antrim Girls Shelter. After approximately two weeks, she told staff members and her mother that she had been sexually assaulted. The victim was subsequently transferred to Webster House, a long-term placement facility, and was interviewed at the Child Advocacy Center about the assaults.
At trial, following the close of the State's case, the defendant moved to dismiss the aggravated felonious sexual assault charges based upon alleged insufficiency of the evidence. He argued that because the victim did not testify that she pushed the defendant away or told him to stop or took any other kind of affirmative action to express that consent was not freely given, no reasonable jury could find that those charges were proven beyond a reasonable doubt. The trial court denied the motion, ruling that, based upon the facts and circumstances presented, a reasonable jury could find a lack of consent. The court reasoned that the defendant
was clearly the initiator. He engaged in all the activities. She was not in any way indicating that she was a willing participant in this and, plus, the age difference and the family relationship, all of those factors [come] into play that she was obviously surprised and – by this conduct from someone who she knew to be a friend of the family. All of that – all of those factors can be taken into consideration by the jury. And under those circumstances, I think a reasonable jury could find that her conduct, that is her – in essence, her lack of conduct . . . indicated that consent was not freely given.
Following the jury verdict, the defendant moved for judgment notwithstanding the verdict (JNOV), again challenging the sufficiency of the evidence of the victim's lack of consent. After a hearing, the trial court denied the motion, finding that "a rational jury could conclude beyond a reasonable doubt that the victim did not consent to the defendant's sexual conduct."
On appeal, the defendant first argues that the trial court erred by finding that the State presented sufficient evidence to show lack of consent by the victim on the charges of aggravated felonious sexual assault. According to the defendant, the trial court's ruling "conflicts with the plain language of the statute, which specifically requires that lack of consent be indicated by the victim either through words or conduct." Because the victim "neither said nor did anything at any point from the time [he] rubbed her feet until he completed performing cunnilingus and digital penetration, " the defendant asserts that "there was no evidence of any speech or conduct by which the jury could find that she indicated lack of consent." The State contends that this argument is not preserved for appellate review, and even if it is, the evidence that the victim "did not answer the defendant's request for consent, did not assist him in ...