Argued: June 27, 2018
J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein
on the brief and orally), for the defendant.
State appeals an order of the Superior Court
(Nicolosi, J.) granting the defendant, Foad Afshar,
a new trial following his convictions on one count of simple
assault, see RSA 631:2-a (2016), two counts of
unlawful mental health practice, see RSA 330-A:23
(2017), and one count of aggravated felonious sexual assault,
see RSA 632-A:2, II (Supp. 2017). On appeal, the
State argues that the trial court unsustainably exercised its
discretion when, during a post-verdict hearing on the
defendant's motion for a new trial, it failed to apply
the proper legal analysis in evaluating the potential biases
of two jurors. We affirm and remand.
following facts are derived from the record. The defendant
was convicted by a jury of simple assault and aggravated
felonious sexual assault based on charges that he touched the
genitals of his 12-year-old client during a therapy session.
The defendant was also convicted on two counts of unlawful
mental health practice based on charges that he had failed to
renew his mental health counselor's license at the time
he was treating the victim.
his convictions, an attorney representing the defendant
post-trial learned that two of the jurors at his trial,
Jurors 6 and 14, had failed to disclose on their juror
questionnaires or during jury selection that they had been
child victims of sexual assault. The defendant moved for a
new trial, contending that he was denied his right to a fair
and impartial jury because Jurors 6 and 14 would have been
excused during voir dire had their experiences been
revealed to the court. The trial court held a hearing on the
defendant's motion, at which Jurors 6 and 14 testified.
After the hearing, the trial court issued an order granting
the defendant a new trial. The State moved for
reconsideration, which the trial court denied, and this
to jury selection, the potential jurors filled out
questionnaires that included the following question:
"Have you or has any member of your family been the
victim of a crime?" Both Jurors 6 and 14 answered,
"No." The trial court began jury selection by
informing the jury pool of the charges against the defendant.
The court next instructed that it would be reading a list of
questions, and that if a potential juror's name was
selected and that individual answered "yes" to any
of the questions asked by the court, that person would need
to come up to the bench to discuss his or her response. The
trial court explained that the microphones at the bench would
be turned off, and that if there was a sensitive matter that
an individual did not want to discuss in the presence of the
lawyers and the defendant, a request to speak privately with
the judge would be obliged.
reading its list of questions, the trial court asked:
Have you or a close member of your family or a close friend
ever been a victim of a crime?
court elaborated: "And when I ask that question, I
don't mean whether somebody has been prosecuted or
identified or charged, I just mean have you ever been
victimized." When their names were called, Jurors 6 and
14 stated that they had not answered "yes" to any
of the voir dire questions, and said that they could
be fair and impartial. They were then seated on the jury.
the parties' presentation of the evidence, the jury began
its deliberations. While deliberating, a young male juror
expressed concern about his ability to determine whether the
defendant was capable of committing the offenses charged. In
response, Juror 14 shared her view that there was no profile
of an offender, and that she herself had been a victim of
childhood sexual assault. Juror 6, who had been elected as
the foreperson of the jury, then revealed that he also had
been sexually assaulted as a child. The jury thereafter
returned a guilty verdict.
post-verdict hearing on the defendant's motion for a new
trial, Juror 6 confirmed that he had been sexually assaulted
by a babysitter when he was approximately five or six years
old. The incident ended when the babysitter's mother
returned home. While Juror 6 did not immediately tell anyone
about the incident, he asked his mother not to send him to
that babysitter again and she granted his request. Juror 6
testified that he had not remembered the sexual assault until
approximately 50 years later when the perpetrator came into
his business establishment. Upon seeing the perpetrator,
Juror 6 recalled the event and became disabled to the point
that he lost his ability to breathe. He could not function
for several days after the encounter. When ...