Argued: December 6, 2017
J. MacDonald, attorney general (Sean R. Locke, 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.
a jury trial, the defendant, Kevin Drown, was convicted on
three counts of aggravated felonious sexual assault,
see RSA 632-A:2 (1988), and one count of felonious
sexual assault, see RSA 632-A:3 (1988). On appeal,
he argues that the Trial Court (Bornstein, J.) erred
by permitting the prosecutor to: (1) argue that it was
difficult for the victim to testify, and because she did so,
she must be credible; (2) ask the defendant for his opinion
about the victim's credibility; and (3) argue that the
defendant's opinions about the victim's credibility
were inculpatory and contradicted his counsel's argument.
He requests that, to the extent that we conclude that his
arguments have not been preserved for appellate review, we
consider them under our plain error rule. See Sup. Ct.
R. 16-A. We affirm.
jury heard the following evidence. The defendant was charged
with sexually assaulting the victim on multiple occasions
between August 1988 and August 1990 when she was under the
age of thirteen. At the time of the alleged assaults, the
defendant's family and the victim's family lived in
the same apartment building.
Fiske testified that she contacted the victim in 2014 after
learning information that led her to suspect that the victim
might have been sexually assaulted by the defendant. When
asked, the victim confirmed Fiske's suspicion. Fiske
asked her whether she would be willing to be interviewed.
Although she did not initially agree to an interview, the
victim eventually did when Fiske telephoned again a week
later. Following Fiske's testimony, the trial judge
instructed the jury that her testimony could be considered
"only for the purpose of providing background of the
investigation. You may consider the fact that the
conversation occurred, but the content of that conversation
should not be considered by you for the truth of the words
spoken during the conversation."
victim was the next witness. She testified that, when she was
seven years old, the defendant engaged in an escalating
series of sexual assaults against her over the course of
several visits to his apartment, culminating with him
inserting the handle of a hairbrush into her vagina on two
separate occasions. Each assault occurred when they were
alone inside one of the apartment's bedrooms. The victim
notified her mother of the assaults at one point, but her
mother took no action and told her not to tell anyone.
months after the defendant assaulted her for the final time,
the victim and her family moved to a new residence. When she
was a teenager, the victim told her sister that she had been
sexually assaulted. Several years later, she also disclosed
to her future spouse that she had been sexually assaulted by
the defendant. The victim's sister and husband also
testified at trial. They each confirmed that the victim had
disclosed to them years earlier that she had been sexually
the State rested, the defendant took the stand and denied
that he had sexually assaulted the victim. He explained that
he had asked to meet with Lieutenant Mitchell, one of the
investigating officers, "[b]ecause I heard these
allegations through members of my family." Mitchell
conducted two interviews with the defendant approximately one
month apart; both interviews were recorded. The State played
redacted video recordings of the interviews at trial and
provided the jury with the associated transcript. During both
interviews, the defendant denied sexually assaulting the
victim and asserted that he did not know why she would make
these allegations against him.
jury found the defendant guilty on all four sexual assault
charges. This appeal followed.
defendant first argues that several statements made by the
prosecutor during her closing argument were not supported by
the record. He identifies the following statements: (1) that
the victim "didn't want to come into this courtroom
and tell strangers about" the assaults; (2) that it was
"really, really, hard [for the victim] to come and tell
14 strangers about what [the defendant] did to her"; (3)
that the victim knew prior to trial that "it was going
to be really, really hard"; (4) that the victim was
"embarrass[ed]" about testifying and that she
"didn't want to say it"; and (5) that, as a
result of the trial, the victim's husband and her sister
learned the details of the assaults.
reviewed the record of the State's closing argument, we
have found no objection made by defense counsel that can be
construed to alert the trial court that the cited statements
were allegedly not supported by the record. See,
e.g., State v. Whittaker, 158 N.H. 762, 767
(2009) (concluding that alternative arguments supporting
claim of error are not preserved if not first raised in trial
court). Accordingly, we consider this argument under our
plain error rule. See, e.g., State v.
Pinault, 168 N.H. 28, 33 (2015) (failure to raise claim
of error in timely fashion does not preclude all appellate
review, but rather confines review to plain error).
plain error rule allows us to exercise our discretion to
correct errors not raised before the trial court. State
v. Euliano, 161 N.H. 601, 605 (2011); see Sup. Ct.
R. 16-A. The rule, however, should be used sparingly,
its use limited to those circumstances in which a miscarriage
of justice would otherwise result. State v. Guay,
164 N.H. 696, 704 (2013). For us to find plain error: (1)
there must be an error; (2) the error must be plain; (3) the
error must affect substantial rights; and (4) the error must
seriously affect the fairness, integrity or public reputation
of judicial proceedings. State v. Pennock, 168 N.H.
294, 310 (2015). For the following reasons, we conclude that
the defendant has failed to establish that the challenged
statements constituted error.
prosecutor may draw reasonable inferences from the evidence
presented and has great latitude in closing argument to both
summarize and discuss the evidence and to urge the jury to
draw inferences of guilt from the evidence. State v.
Cable, 168 N.H. 673, 688 (2016). The victim testified
that, although she had told her husband and sister about the
assaults years earlier, she had not disclosed the details.
She also testified that, until she was contacted by Fiske,
she had not disclosed the details to anyone and had not
intended to report them to the police: "I was trying to
be happy and I just put it away." She testified that she
felt sick when first contacted by Fiske, and that she was
crying and emotional during her subsequent interview. At one
point during the victim's testimony, the prosecutor asked
permission from the court to approach and told the victim:
"There's tissues up there if you need a break or
upon the evidence in the record, we conclude that the
prosecutor's remarks were not improper. Rather, the
prosecutor was drawing inferences from the evidence presented
and the demeanor of the victim during trial, which would have
been readily apparent to the jury. See id.
Accordingly, the defendant has failed to establish that the
cited statements were not supported by the evidence.
defendant also argues that the prosecutor's argument was
improper because, according to the defendant, the prosecutor
argued that the victim was credible "because she chose
to testify despite the difficulty and embarrassment of doing
so." The State contends that the defendant did not make
this specific argument before the trial court and has,
therefore, failed to preserve it.
her closing, the prosecutor argued: "Why would [the
victim] come here and tell you that if it wasn't
true?" The defendant objected:
I'm going to object to the argument that she must be
telling the truth otherwise why would she have made the
decision to testify and prosecute this case? I think that
that is an inappropriate argument to make to say that she
must be truthful because she's made the decision to do
these things and I rely on the case of Commonwealth versus
[Dirgo]. It's a Massachusetts case. It was decided in
June of this year.
See Commonwealth v. Dirgo, 52 N.E.3d 160 (Mass.
2016). When the trial court asked for clarification, defense
counsel stated: "[T]he prosecutor repeatedly argued that
the alleged victim must be telling the truth because she
would not have otherwise chosen to prosecute, testify, and be
cross-examined. [The Dirgo Court] found that such
statements were inappropriate." The trial court
overruled the objection, stating:
At least, the way it's worded, I'm going to overrule
the objection. It's posed in the form of a question.
It's not an affirmative -- a statement of opinion by the
prosecutor as to the credibility of the witness or that she
said telling the truth. It's not an expression of a
personal opinion. It's posed as the form of a rhetorical
question for the jury to draw their own inferences; saying
that it does -- I mean, ultimately, it's the alleged
victim's credibility is the center point of this case.
The Defense is arguing that she's not credible and
that's a lie. The State can carefully, albeit, but at
least so far it isn't -- the State can address that
contention and ask the jury to conclude and make rational
inferences about whether the alleged victim's testimony
is truthful based on the evidence presented and the