Argued: September 10, 2015
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial in Superior Court (Nicolosi, J.), the defendant, Christopher M. Palermo, was convicted on one count of aggravated felonious sexual assault, see RSA 632-A:2, I(i) (2007), one count of criminal trespass, see RSA 635:2 (Supp. 2014), and two counts of simple assault, see RSA 631:2-a (2007). On appeal, he argues that the trial court erred by: (1) ruling that the State sufficiently authenticated certain Facebook messages; (2) admitting evidence of his prior incarceration, parole status, and civil lawsuit against the New Hampshire State Prison; and (3) allowing the State to introduce a photograph of him. We affirm.
The jury could have found the following facts. In 2011, the defendant and the victim's brother were inmates in the New Hampshire State Prison. Through her brother, the victim learned that the defendant needed assistance with a civil lawsuit he had filed against the New Hampshire Department of Corrections and the State of New Hampshire. The victim agreed to provide such assistance. Between October 2011 and January 2012, while the defendant was incarcerated, he and the victim spoke on the telephone about the lawsuit and "got to know each other."
On January 27, 2012, the defendant was released from prison and went to live with the victim and her family. That same day, the victim's son, D.L., age 16, created a Facebook account for the defendant and showed him how to send messages on the family's iPad from the Facebook application. D.L. also took a photograph of the defendant and "posted" it on the defendant's account. The defendant was allowed to use the iPad whenever one of the victim's other sons was at school or "in bed."
On the evening of February 3, 2012, while the victim's husband was at work, the victim, D.L., and the defendant were playing cards. The victim had a headache, and to help relieve it, the defendant began rubbing the victim's neck. The defendant's "hands got a little 'roamy'" and the victim told him to "[w]atch" them. The defendant then moved both of his hands down the front of the victim's tank top, and put them on her breasts. She pushed him away and when she pulled up her tank top the defendant's hands went down the back of her pants onto her buttocks. The victim stood up, pushed him away, and "told him to cut it out." She and D.L. then went into her bedroom and locked the door.
Shortly thereafter, the defendant "popped the lock" on the victim's bedroom door and asked if he could watch television with them. The victim agreed. The victim asked the defendant to pass her a box of candy. The defendant took a candy from the box, ran it up the victim's arm and down her chest, and then "shoved it, along with his fingers, in [her] mouth." The victim bit the defendant's fingers. He got upset and "demanded the iPad." The victim gave it to him and told him to leave the room. The defendant left and she locked the bedroom door again.
A short while later, the defendant went back to the victim's bedroom, again "popped the lock" on the door, and asked for the telephone. The victim gave it to him and told him to "[g]et out." The defendant "popped the lock" on the bedroom door two more times, looking for the keys to the victim's Ford Explorer, but the victim refused to give them to him.
Soon thereafter, the defendant left the house "with some type of tool in his hand, " entered the Ford Explorer and, for a period of time, was "underneath the driver's seat with the door open." The defendant came back into the house shortly after 12:00 a.m. on February 4. At some point the victim fell asleep.
Between 1:45 and 2:00 a.m., the victim began to awaken when she "felt rubbing" on her back and buttocks, and then felt hands go inside her sweatpants. She felt the hands go from her "backside to [her] front side and down to [her] crotch area, " and inside her vagina. When the victim rolled over, she realized that it was the defendant who was touching her.
The victim's husband, who had returned from work, was in the bathroom when he heard a noise that "sounded like the door opening, almost like a pop or a cracking type noise." He went to the bathroom doorway and saw the defendant sitting on the bed next to the victim. From his vantage point, it appeared that the defendant "had his hands underneath the covers touching [the victim's] buttocks, groin; just about anything he could get his hands on." The victim's husband asked, "[W]hat are you doing in my room?" After a short pause the defendant left the room.
At about 8:00 a.m., the defendant told the victim that he was leaving. As the victim gave him a bag to use, he stated, "Last night was terrible and I was hoping that you would give me a pass, I'm really sorry." The victim's husband heard the defendant ask the victim for "a pass because he . . . felt that what he did the night before was out of line." Shortly thereafter, the defendant left the house.
Later that morning, D.L. opened the Facebook application on the family's iPad and the defendant's Facebook account appeared, indicating he had not signed out. The screen showed a message that had been sent by the defendant that day, stating: "Hey, how do you crack a Ford Explorer. I'm going to kill someone in a minute." D.L. showed the message to the victim. The victim then discovered other Facebook messages sent by the defendant that day. She testified that the messages stated: "I almost did the landlord's wife. Her husband walked in"; "she's trying to play hard to get, Bro, I'm gonna get mines"; "He came home from work and walked right in"; "Kids want iPad . . . don't got much time left. . . . Give her my number . . . tell to call"; and "I'm headed to Gloucester today, I'll be back later, love you, Bro."
The jury found the defendant guilty of aggravated felonious sexual assault, criminal trespass, and two counts of ...