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State v. Wilbur

Supreme Court of New Hampshire

October 25, 2018


          Argued: June 14, 2018

          Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief and orally), for the State.

          David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

          LYNN, C.J.

         The defendant, Jason Wilbur, appeals a decision of the Superior Court (Ruoff, J.) denying his motion for a new trial based on ineffective assistance of counsel. We reverse and remand.

         I. Background

         We briefly summarize the evidence that was presented to the jury, reserving for later a more detailed discussion of the specific evidence and arguments that form the bases of the issues raised in the defendant's appeal. The defendant is the former stepfather of the alleged victim (child) in the case. The child was born in 1997, and was five or six years old when the events discussed herein allegedly occurred. The child's mother met the defendant in 2002 and the couple married in 2003. The mother and the defendant had a "love/hate relationship." As a result of their tumultuous relationship, at times the couple resided together, while at other times the mother lived with the child's father. Throughout this time, the father had primary custody of the child, and the mother had visitation privileges every other weekend.

         In 2007, the child disclosed that she had been sexually assaulted by the defendant. The defendant was subsequently indicted on charges of aggravated felonious sexual assault (AFSA), but the State nol prossed the charges in April 2009. In 2010, the defendant was re-indicted on: (1) one count of AFSA alleging a single act of digital penetration; (2) one count of AFSA alleging a pattern of digital penetration; (3) one count of AFSA alleging a single act of penile penetration; and (4) one count of AFSA alleging a pattern of penile penetration. See RSA 632-A:2, I(l) (2016); RSA 632-A:2, III (2016).

         At trial, the child testified that the defendant began sexually assaulting her while she was alone with him at his apartment in Jaffrey. She explained that the first incident occurred after the defendant followed her into the bathroom and asked if she wanted to play a game. When the child replied "yes," the defendant rubbed his finger "around [her] private area" (which she later clarified to mean her vagina). The assault ended when the mother returned to the apartment.

         The child stated that the defendant subsequently assaulted her in the same manner "multiple times," explaining that the assaults occurred "practically . . . every time [she] came over." According to the child, the assaults escalated to digital penetration of her vagina and then to penile penetration of her vagina. As to the penile penetration, the child indicated that she did not see the defendant insert his penis into her vagina because the defendant covered her eyes. She noted, however, that "it was different" from the instances where the defendant inserted his finger because it felt "weird and warm." The child further explained that the assaults continued after the defendant and the mother moved to Swanzey. She testified that the defendant would sometimes wake her at night, ask her if she wanted to "play a game," and then sexually assault her.

         In May 2011, a jury found the defendant guilty on the two counts of AFSA alleging digital penetration, and acquitted the defendant on the two counts of penile penetration. We affirmed the defendant's convictions on direct appeal. See State v. Wilbur, No. 2011-0627 (N.H. Dec. 14, 2012). In June 2014, the defendant moved for a new trial, which the trial court denied following an evidentiary hearing. This appeal followed.

         II. Analysis

         The defendant claims that his trial counsel (who is not counsel on appeal) provided constitutionally deficient representation under Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution. "The State and Federal Constitutions guarantee a criminal defendant reasonably competent assistance of counsel." State v. Eschenbrenner, 164 N.H. 532, 539 (2013); see N.H. CONST. pt. I, art. 15; U.S. CONST. amend. VI. "To demonstrate a violation of this right, the defendant must show that his trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Eschenbrenner, 164 N.H. at 539 (quotation omitted). "Because the standard for determining whether a defendant has received ineffective assistance of counsel is the same under both the State and Federal Constitutions, we will examine the constitutional competency of counsel's performance under the State Constitution, and rely upon federal case law only for guidance." State v. Kepple, 155 N.H. 267, 269 (2007).

         "To prevail upon a claim of ineffective assistance of counsel, the defendant must demonstrate, first, that counsel's representation was constitutionally deficient and, second, that counsel's deficient performance actually prejudiced the outcome of the case." State v. Collins, 166 N.H. 210, 212 (2014). "Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact." Eschenbrenner, 164 N.H. at 540. "Therefore, we will not disturb the trial court's factual findings unless they are not supported by the evidence or are erroneous as a matter of law, and we review the ultimate determination of whether each prong is met de novo." Collins, 166 N.H. at 213. A failure to establish either prong requires a finding that counsel's performance was not constitutionally defective. Id. at 212.

         To satisfy the first prong of the test, the performance prong, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To meet this prong of the test, the defendant must show that counsel made such egregious errors that he failed to function as the counsel the State Constitution guarantees. State v. Thompson, 161 N.H. 507, 529 (2011). We afford a high degree of deference to the strategic decisions of trial counsel, bearing in mind the limitless variety of strategic and tactical decisions that counsel must make. Id. "The defendant must overcome the presumption that trial counsel reasonably adopted his trial strategy." Id. "Accordingly, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. (quotation omitted).

         To satisfy the second prong, the defendant must demonstrate actual prejudice by showing that there is a reasonable probability that the result of the proceeding would have been different had competent legal representation been provided. Eschenbrenner, 164 N.H. at 539. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Brown, 160 N.H. 408, 413 (2010) (quotation omitted). The prejudice analysis considers the totality of the evidence presented at trial. Kepple, 155 N.H. at 270.

         A. Counsel's Performance

         On appeal, the defendant argues that his trial counsel's performance was constitutionally deficient in four respects: (1) failure to rebut the State's characterization of the defendant's statement to the police; (2) lack of preparation of the mother for her testimony; (3) introduction of evidence of a prior sexual assault committed against the child by another person without a reasonable strategy; and (4) failure to object to opinion testimony given by a child protective services (CPS) worker. Because we agree with the defendant with respect to claims (1) and (4), we find it unnecessary to examine claims (2) and (3).

         (1) Defendant's Statement to the Police

         In its opening statement, the State asserted that when the investigating officer, Detective Stevens, interviewed the defendant concerning the allegations, the defendant commented that his father had faced similar allegations in the past. Specifically, the prosecutor described the conversation between the defendant and Stevens as follows:

And the Defendant comes down to the police station, spends a total of four or five minutes before he ends the conversation and moves on. [Stevens is] going to tell you how the Defendant told him, "Yeah, my father was accused of this but he was found - he was - got away with it, so I'm ...

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