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State v. Labrie

Supreme Court of New Hampshire, Merrimack

November 6, 2018


          Argued: September 13, 2018

          Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

          Brennan, Lenehan, Iacopinio & Hickey, of Manchester (Jaye L. Rancourt and Jenna M. Bergeron on the brief, and Ms. Rancourt orally), for the defendant.

          LYNN, C.J.

         The defendant, Owen Labrie, appeals his convictions following a jury trial in the Superior Court (Smukler, J.) on three counts of sexual assault, see RSA 632-A:4, I(c) (2016), one count of endangering the welfare of a child, see RSA 639:3, I (2016), and one count of using computer services for a prohibited purpose, see RSA 649-B:4, I(a) (2016). On appeal, the defendant challenges: (1) the sufficiency of the evidence to support his conviction under RSA 649-B:4, I(a); (2) the trial court's decision not to allow certain cross-examination by the defendant of a State's witness; and (3) the trial court's failure to sua sponte correct statements made by the prosecutor in closing argument. We affirm.


         The jury could have found the following facts.[1] In early 2014, the defendant was 18 years old and a senior at St. Paul's School (SPS), a private coeducational boarding school in Concord. The defendant was a prefect at SPS, meaning that he served as a leader, as well as a liaison between the students and the faculty, in his dormitory. As a prefect, the defendant had received training on the school's sexual intimacy policy, which included information regarding the New Hampshire laws concerning statutory rape. At SPS, there was a prominent annual springtime tradition known by the students as the "senior salute," which involved a senior sending a note (or a senior salute) to a younger student on campus, inviting that younger student to spend time with the senior before he or she graduated. Often, these notes had sexual connotations. Although a senior salute could be an invitation simply to meet up with someone on campus, it was widely understood among SPS students that physical contact, at least in the form of a kiss, was almost always expected. It was not unusual for the invitation to imply more advanced sexual contact as well, including sexual intercourse.

         The defendant was an active participant in the senior salute tradition during his final year at SPS. On March 23, 2014, the defendant sent the following e-mail to a friend, another male senior at SPS, with the subject line, "The coming months of slaypril and slay": "If you ever find yourself without a tether, enjoy it while you have it. Slaypril is approaching, and the list is starting to come into existence."

         At trial, "slaypril" and "slay," as used in the subject line of the defendant's e-mail, were explained as references to the months of April and May, which marked the beginning of the senior salute season. "Slay" was a word regularly used by students at SPS to refer to sexual penetration, including digital penetration, oral sex, and sexual intercourse. The "list" referenced a compilation of potential female SPS students whom the defendant and his friend, the recipient of the e-mail, hoped to "spend time with" before the end of the year. The defendant included the victim, a 15-year-old freshman at SPS, on the list. Unlike the other names listed, he put the victim's name in all capital letters.

         Earlier in the year, on January 29, the defendant indicated to an SPS alumnus via Facebook messenger that he wanted to "pork" the victim "more than anyone," meaning that he desired to engage in sexual penetration with her, to which his friend pointed out that the victim was "really young" and inquired about her physical maturity. On March 24, 2014, the same friend asked the defendant through Facebook messenger whether he had "slain" the victim yet. On May 8, the defendant updated the list he compiled with his other friend and sent it again via e-mail. The first line in the e-mail stated "Still at large" and the updated list included, once again, the victim's name in capital letters.

         On May 28, the defendant sent the victim the following senior salute via e-mail:

[W]hile the thought of my name in your inbox makes me blush perhaps more than it should, there's something [I] want to share with you and my evenings left to do it are growing fewer by the evening. [T]here's a door here that's been locked since before we were born, but in a moment of divine intervention the night before last, its hinges swung open in my hands. [I]f you want a definition of the word bittersweet, think of me spending three years trying to open it yet now only having three nights to remember the view. [I] want to invite you to come with me, to climb these hidden steps, and to bask in the nicest view [M]illville has ever had to offer. [I] hope you're all right with heights.
[I]f you're not otherwise engaged, mull it over. [I] ask only that you let me know soon--these days they're not making time quite like they used to.

         The victim was familiar with the defendant prior to receiving this e-mail. The defendant had dated her older sister, also a senior at SPS, for about a week, and the victim and the defendant saw each other often on campus. They had danced together at school dances, and there were pictures of them together on Facebook. The defendant's roommate testified at trial that he was aware that the defendant "always had a kind of crush" on the victim.

         After discussing the e-mail with her friends and her older sister, the victim decided to decline the defendant's invitation because she thought his "intentions were really, really wrong." She viewed the e-mail as "a classic senior salute letter" that the defendant had likely sent to other people, and believed that the defendant wanted to "kiss [her] or something." The victim had also heard rumors around campus, confirmed by another SPS freshman, that the defendant was involved in a competition with other senior boys to see who could rack up "numbers" and "senior salute the most girls."

         The victim replied to the defendant, stating:

[W]hile the thought of your name in my inbox gives me a sense of [déjà vu], ([my sister] and I are very close sisters, ) and although I would like to climb those hidden steps with you, I have to decline. I would like to climb that, not the list of [freshmen] that have spent quality time with you.

         The defendant responded to the victim's e-mail, stating:

[P]robably one of the sassier emails [I]'ve ever received, my sweet lord. . . . [I]'m afraid that list is slimmer than you might think. [P]retty much nonexistent this term, even. [B]ut do as you please, [ma chère]. [I]'d have taken you either way.

         The defendant concluded his response with song lyrics in French, which translate as "It's 2:45, . . . it's late and all the boys are dancing for ...

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