Argued: February 16, 2017
A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the defendant.
Czekalski, the defendant, filed a supplemental brief with
permission of the court.
defendant, Jason Czekalski, appeals his convictions on two
counts of aggravated felonious sexual assault (AFSA),
see RSA 632-A:2, I(1) (1996) (amended 2003), II
(1996) (amended 1999), and one count of pattern AFSA,
see RSA 632-A:2, III (2016), following a jury trial
in Superior Court (Kissinger, J.). On appeal, he
argues that the trial court erred by denying his motion to
suppress evidence related to a January 2013 telephone call
between the defendant and the victim, recorded by the police
with the victim's consent. See RSA 570-A:6
(2001), :7 (Supp. 2014) (amended 2015), :9, IX (2001). He
asserts that suppression was warranted because the recording
was not "done in such way as [would] protect the
recording from editing or other alterations." RSA
570-A:9, VII(a) (2001); see RSA 570-A:6 (providing
that "[w]henever any telecommunication or oral
communication has been intercepted, no part of the contents
of such communication and no evidence derived therefrom may
be received in evidence in any trial . . . if the disclosure
of that information would be in violation of this
supplemental brief filed with court permission, the defendant
argues that the trial court also erred when it denied his
motion to continue the trial. The defendant further argues,
under our plain error rule, see Sup. Ct. R. 16-A,
that the trial court should have dismissed two of his
indictments because they were defective and the trial court
erred when it allowed a juror to be seated who allegedly
failed to complete a juror questionnaire. We affirm.
Recorded Telephone Call
January 2013, the State Police recorded a telephone
conversation between the defendant and the adult victim.
Before doing so, the police obtained authorization from the
Office of the New Hampshire Attorney General to record the
call. The police recorded the call pursuant to that
authorization and with the victim's consent.
recorded call, the defendant and the victim discussed his
conduct when the victim was a child. The victim told the
defendant that she had begun to see a counselor to talk about
"[w]hat [the defendant] did to [the victim] when [she]
was growing up." During the conversation, the defendant
admitted that, when the victim was a child, he once digitally
penetrated her, twice touched her "privates, " and
touched her breasts. The defendant told the victim that he
did not know why he engaged in this conduct. He said, "I
still can't come up with any kind of explanation that
makes sense . . . [o]ther [than] I was weak and I let evil
rule me till I found a counselor who would do things
anonymously so he did not have to report me." The
defendant told the victim that he was "so sorry."
the defendant was arrested. In his subsequent police
interview, the defendant admitted that he once digitally
penetrated the victim, touched her pubic hair, partially
removed her underwear, and "probably" touched her
breasts "probably . . . in the same time period"
during which he partially removed her underwear.
Cheshire County grand jury indicted the defendant on several
charges, including: (1) a charge alleging that he had
committed AFSA when he purposely penetrated the victim
digitally when she was younger than 13 years old; (2) a
charge alleging that he had committed AFSA when he
intentionally touched the victim's genitalia without
penetration when she was younger than 13 years old; and (3) a
charge alleging that the defendant had engaged in a pattern
of AFSA when he touched the victim's breasts on more than
one occasion in 1995, when she was younger than 13 years old,
"under circumstances that can reasonably be construed as
being for purposes of sexual arousal or gratification."
See RSA 632-A:2, I(1), II, III.
trial, the defendant moved to suppress evidence from the
recorded telephone call and "any evidence obtained as
fruit of the poisonous tree" on the ground that the
recording was not "done in such way as will protect [it]
from editing or other alterations." RSA 570-A:9, VII(a).
The State objected to the motion, arguing that the statutory
language upon which the defendant relied did not apply to the
recorded communication in this case. The trial court agreed
with the State.
trial, the victim, who was born in 1983, testified that the
defendant "molested [her] while [she] was growing up,
" including when she was 11 and 12 years old. The victim
testified that, when she was asleep, the defendant
"would come into [her] room and would remove parts of
[her] clothing and he would rub [her] breasts and [her]
vagina, and he stuck his fingers inside of [her]
sometimes." The victim testified that "every time
he was done[, ] he would whisper into [her] ear, 'It was
just a dream, just a sweet, sweet dream, ' and then he
would leave the room." The victim testified that she
"would pretend that [she] was sleeping because [she] was
so scared." The victim estimated that the defendant