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State v. Magoon

Supreme Court of New Hampshire

October 31, 2018

State of New Hampshire
v.
Robert Magoon

         The defendant, Robert Magoon, appeals his conviction, following a jury trial in Superior Court (Nicolosi, J.), on charges of aggravated felonious sexual assault for engaging in patterns of sexual assault with an eight-year-old child. See RSA 632-A:2, III (2016). He argues that the trial court erred by overruling his objection to the State's closing argument. We assume, without deciding, that this argument is preserved, and affirm.

         The defendant was the maintenance supervisor of a community center that provided before-school programming for children. He frequently greeted the children as they arrived each morning and colored with them. During this time, children would often sit on the defendant's lap. The assaults occurred when the victim would sit on the defendant's lap and color. The room in which the assaults occurred had a security camera and windows, and a person responsible for signing the children in would be present at the door of the room.

         The trial court instructed the jury at the commencement of trial to follow all of its instructions, and to reach a fair and just verdict based solely upon the evidence and its instructions. The trial court further instructed the jury that the closing arguments of counsel were not evidence, and that the jury's obligations included weighing evidence and evaluating the credibility of witnesses.

         During his closing argument, the defendant asserted that the victim's account of the assaults was not plausible, and was improperly influenced by the victim's parents. In response, the State emphasized that the jury was entitled to evaluate the victim's credibility, and argued extensively why the victim's testimony was trustworthy, and why the victim's account was both credible and plausible. The State concluded its closing argument as follows:

Ladies and gentlemen, trust. Misplaced trust, abused trust, blind trust. And the consequences to a child. We can't go back and change what happened, you can't go back and wave the red flag a little more. You get to make a decision, though. And that decision is to trust [the victim]. That decision is to listen to [the victim].
[The victim] didn't say anything for a long time. [The victim] was scared, . . . afraid [that the victim had done] something wrong, that [the victim] would be in trouble. And [the victim] came into this Court and told you what [the defendant] did to [the victim].
It's now everyone's turn to trust you to do the right thing, to listen to [the victim], and to hold [the defendant] accountable for what he did. And you do that by finding him guilty. Thank you.

         The defendant objected to the statement urging the jury to "do the right thing and hold the defendant accountable." Specifically, he argued that the State had improperly "insinuate[d] that the only way that [the jury] would be doing the right thing . . . would be to find the defendant guilty." "The right thing for [the jury] to do," according to the defendant, was "to evaluate the evidence as they heard it, make a decision on what the facts are, apply the law as they're instructed, and then to render a fair and just verdict as a result of that evaluation process." The defendant requested that the trial court instruct the jury that "the right thing is to consider the evidence and then render a fair and just verdict based on the facts as they find them and the law."

         The trial court disagreed that the closing argument was improper, noting that the State's argument "throughout was that the proper verdict in this case, whether you characterize it as the right thing or the proper verdict, a fair and a just verdict . . . in the State's view is a finding of guilty." Nevertheless, the court stated that it would "reinstruct [the jury] . . . on the burden of proof beyond a reasonable doubt and [that the jury's] verdict has to be based on the evidence and the law as . . . provide[d] . . . to them." The trial court then instructed the jury as to the burden of proof and the jury's obligation to follow its instructions and render a fair and just verdict, after weighing all of the evidence, based solely upon the evidence. The trial court further reminded the jury to follow all of the instructions that it had provided during the course of the trial, and provided the jury with a copy of its instructions.

         On appeal, the defendant argues that by urging the jury "to do the right thing, to listen to [the victim], and to hold [the defendant] accountable . . . . by finding him guilty," the prosecutor had improperly opined as to the justness of the cause, see N.H. R. Prof. Conduct 3.4(e), thus entitling him to an immediate curative instruction in the nature of the instruction he requested. In assessing whether the State has advanced an improper argument, we consider the challenged statement within the context of the case. State v. Addison (Capital Murder), 165 N.H. 381, 548 (2013). We will not overturn the trial court's ruling as to whether improper prosecutorial remarks warrant remedial action absent an unsustainable exercise of discretion. Id. at 549. To establish an unsustainable exercise of discretion, the defendant must demonstrate that the trial court's decision was clearly untenable or unreasonable to the prejudice of his case." Id.

         The prosecutor "is granted great latitude in closing argument, both to summarize and discuss the evidence presented to the jury and to urge the jury to draw inferences of guilt from the evidence." State v. Scognamiglio, 150 N.H. 534, 538 (2004) (quotation omitted). Although we "discourage prosecutors from equating 'justice' with a 'guilty' verdict," id., when considered in context, we agree with the State that the statement urging the jury to "do the right thing" did not amount to an improper expression of personal opinion as to the justness of the cause. The defendant's closing argument had directly impugned the victim's credibility and the plausibility of the victim's account. The State's response reminded the jury, as the trial court had already instructed, that it was entitled to evaluate the victim's credibility, and argued why the victim's testimony in fact was credible and why the account was plausible. The phrase immediately following the prosecutor's urging to "do the right thing" was not to find the defendant guilty, but to "listen to" the victim. In context, therefore, the remarks did not amount to an improper statement of the prosecutor's personal opinion as to the justness of the cause. See State v. Hearns, 151 N.H. 226, 233 (2004) (observing that the prosecutor's closing argument had "simply urged the jury to do its job - determine whether the victim was credible and, therefore, whether the defendant was guilty").

         Moreover, the trial court did, in fact, instruct the jury, after the State's closing argument, to weigh all of the evidence and to render a fair and just verdict based solely upon the evidence and the court's instructions as to the law. Accordingly, we conclude that the trial court's determination that a curative instruction was not necessary was neither clearly untenable nor unreasonable to the prejudice of the defendant's case. Addison, 165 N.H. at 549.

         Affirmed.

          HICKS, BASSETT, and ...


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