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State v. Fiske

Supreme Court of New Hampshire

September 21, 2017

THE STATE OF NEW HAMPSHIRE
v.
JEREMY M. FISKE

          Argued: May 11, 2017

          Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney general, on the brief and orally), for the State.

          Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          LYNN, J.

         Following his convictions on eight counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2 (2016), and one count of possession of child pornography, see RSA 649-A:3, I(a) (2016), the defendant, Jeremy M. Fiske, appeals, arguing that the Superior Court (Delker, J.) erred in: (1) denying his motion for in camera review of the counseling records of the victim; (2) allowing the State to present evidence that he admitted to having "perversion addictions"; (3) denying his motion to dismiss the child pornography indictment; and (4) informing the jury that certain indictments alleged alternative means of committing the same offense but then imposing separate sentences on each of the alternative charges. Finding no error, we affirm.

         I

         The pertinent facts are as follows. The victim was born in 1996. The victim's mother (the mother) married the defendant in 2005. Thereafter, the defendant, the mother, the victim, and the victim's brother lived together in a four-bedroom house in Raymond.

         The defendant had a son with the mother in November 2006. Shortly thereafter, the couple's marriage began to deteriorate. Around this time, the victim suffered from frequent chronic migraines, sometimes as many as three or four per week. When stricken, she would retreat to her bedroom. The defendant often followed her, bringing her medicine or ice packs. His visits gradually grew longer, and he began to give the victim massages. Eventually, the massages extended to her breasts and vagina.

         Several months after this behavior started, the defendant began forcing the victim to participate in sexual acts, usually three or four times per week. These forced acts, which continued for roughly two years, included inappropriate touching, masturbation, and fellatio. During this time, the defendant photographed the victim wearing lingerie, bathing suits, and other clothes -- some of which belonged to the mother -- that he had coerced her to wear. At least once, the defendant also photographed the victim with a dildo in her mouth. Occasionally, the defendant coerced the victim to watch videos depicting him engaging in sexual activity with the mother, while he compared the mother's and the victim's sexual performances. The assaults ended in 2010, when the victim was fourteen. By that time, the victim was "finally kind of able to have the courage to say no more" and minimized the time she spent with the defendant. However, the victim did not tell the mother of the assaults at that time, because the defendant told her "that no one would understand and that no one would believe [her]."

         In 2012, the mother began to suspect that the defendant was having an affair. After confirming the affair, she accessed the defendant's cell phone and discovered a picture of the victim that focused on her cleavage. The victim appeared to be between fourteen and sixteen years old at the time the picture was taken. The mother confronted the defendant by e-mail about the picture, asking him if he "fantasize[d]" about the victim or "tried to act on those fantasies." The defendant admitted that the victim had "nice cleavage" and that he "pick[ed] on her about [the cleavage] at time[s], " but denied that anything had happened between them. He admitted that it was inappropriate, but said that "its [sic] hard to not notice when you are the one talking about [the cleavage] too. I already admited [sic] I have perversion addictions." The mother asked the defendant numerous times whether he discussed the picture with his counselor; the defendant said that he had never done so.

         In December 2012, after she had become involved in a serious relationship with a boyfriend, the victim disclosed to him that she had been sexually assaulted by the defendant, but told him not to mention it to anyone else. In October 2014, after the defendant had moved out of the house in Raymond, the victim told the mother about the defendant's sexual assaults. The mother immediately reported the assaults to the police and informed the defendant that she had done so; he responded by asking whether the police were coming soon.

         In November, the police executed search warrants at the house in Raymond and at a house in Hampton where the defendant was then living. They obtained several items of women's clothing, including four dresses, a skirt, several shirts, two bathing suits, a bikini, and a thong bottom. The victim later identified these items as clothing that the defendant had made her wear.

         The police seized the defendant's laptop computer as well. Subsequent forensic examination of it revealed that "File Shredder, " a program designed to "destroy the remains of a deleted file" had been used only days before the search. Despite that, the police found approximately 100 thumbnail images, which were remnants of the full-size images that had been deleted. Several of the images depicted the victim lying in her backyard, and some focused on her buttocks.

         Two thumbnail images depicted the victim, when she was roughly eleven or twelve years old, with her "mouth around a dildo." Examination of the computer by the State's expert revealed that these two images had been "modified" on September 13, 2007. The expert testified that this was the last date when the images "got touched somehow" on the computer, but that he could not determine what occurred with respect to the images on that date. He explained that the date could reflect the date the images were loaded onto the computer, deleted from the computer, or changed in some way. The expert also testified that "[m]ost people have no idea" that for each full-size image file on a computer a separate thumbnail file also exists. The police also recovered a video of the defendant and the mother engaging in sexual activity.

         In April 2015, the defendant was charged with four counts of pattern AFSA, five counts of AFSA involving discrete acts, and one count of possession of child sexual abuse images. Prior to trial, the State moved in limine to admit the e-mail in which the defendant stated that he had "perversion addictions." After a hearing, and over the defendant's objection, the court granted the motion, finding that the e-mail exchange was relevant to show that the defendant acted "under circumstances that could reasonably be construed for purposes of sexual arousal or gratification, " and to corroborate the victim's testimony. The defendant moved for production of the victim's counseling records for in camera review, arguing that the records would reveal that the victim did not disclose the assaults to her counselor, which would be relevant to the case. The State objected, and the court denied the motion.

         The defendant also moved to dismiss the child pornography indictment on the ground that "simulated fellatio does not fall under the definition of simulated sexual intercourse" within the meaning of RSA 649-A:2, III, and thus, does not constitute "sexually explicit conduct, " an element of possession of child pornography under RSA 649-A:3. See RSA 649-A:3, I(a). The trial court denied the motion, finding that ...


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