Argued: November 28, 2018
J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord,
on the brief and orally, for the defendant.
defendant, Owen Labrie, was convicted by a jury 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) (computer services use charge).
State v. Labrie, 171 N.H. 475, 477 (2018). In the
instant appeal, the defendant challenges an order of the
Superior Court (Smukler, J.) denying his motion for
a new trial based upon ineffective assistance of counsel as
to the computer services use charge. We affirm.
facts underlying the defendant's convictions are fully
set forth in Labrie. See id. at 478-81. We
repeat only those facts necessary to decide the instant
matter. For the facts relevant to the defendant's motion
for a new trial, we rely upon the trial court's order
denying that motion and the record submitted in this appeal.
Facts Underlying the Defendant's Convictions
early 2014, the defendant was 18 years old and a senior at
St. Paul's School (SPS), a private coeducational boarding
school in Concord. Id. at 478. At SPS, there was a
prominent annual springtime tradition known 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. Id. Often, these notes
had sexual connotations. Id. 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. Id. It was not unusual for the
invitation to imply more advanced sexual contact as well,
including sexual intercourse. Id.
28, the defendant sent the victim the following senior salute
[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.
Id. at 479 (quotation omitted). 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
at 479-80 (quotation omitted). 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.
Id. at 480 (quotation omitted). 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 you to console you, . . . their
queen." Id. (quotation omitted).
this exchange, the defendant asked a freshman in his
dormitory to put in a good word for him with the victim.
Id. After speaking with the freshman, the victim
e-mailed the defendant. Id. Translated from French,
the e-mail stated, "It's true, . . . please forgive
me. Yes, only if it's our little secret."
Id. (quotation omitted). The defendant interpreted
this to mean that the victim would meet him, but only if they
kept it between themselves. Id. The defendant
responded, "[W]hat a golden change of heart.
[Y]ou've saved it until the very end - there's not a
lot of time but [I]'m sure we can figure something out.
[P.S.] [Y]our French is amazing. [N]ot a soul needs to
know." Id. (quotation omitted). Subsequently,
via Facebook Messenger, the two made a plan to meet.
meeting the victim, as planned, on May 30, the defendant sent
a message to an SPS alumnus that stated, "I'm
slaying [the victim]." Id. at 480-81 (quotation
omitted). Viewed in the light most favorable to the State,
"slay" was a word regularly used by students at SPS
to refer to sexual penetration, including digital
penetration, oral sex, and sexual intercourse. Id.
at 478 & n.1.
evening, the victim met the defendant on campus, and the
pair, at the defendant's suggestion, entered an SPS
building. Id. at 481. The evidence, viewed in the
light most favorable to the State, indicates that the
defendant ultimately penetrated the victim digitally, with
his tongue, and with his penis. Id. Viewed in the
light most favorable to the State, the evidence establishes
that on the evening of the encounter and throughout the
weekend, the defendant told various SPS students that he had
had sexual intercourse with the victim. Id. In a
conversation with a friend, the friend asked, "How did
it go from no to bone?," meaning how did it go from the
victim declining the defendant's e-mail invitation to the
victim and the defendant having sexual intercourse.
Id. (quotation omitted). The defendant responded
that he "just pulled every trick in the book,"
including oral sex. Id. (quotation omitted).
defendant's jury trial was in August 2015. He was
represented primarily by J.W. Carney, Jr. and Samir
Zaganjori. Because neither attorney is admitted to practice
in New Hampshire, they retained local counsel, Jaye Rancourt.
Carney acted as lead counsel; Zaganjori acted as co-counsel;
and Rancourt was available to consult with the rest of the
trial team and to act as needed.
addition to the felony computer services use charge, the
defendant faced three counts of aggravated felonious sexual
assault (AFSA), three counts of misdemeanor sexual assault,
two counts of endangering the welfare of a child, and one
count of misdemeanor simple assault. One of the AFSA charges
alleged that the defendant "utilize[d] the element of
surprise" to cause penetration. See RSA
632-A:2, I(i) (2016). The remaining two AFSA charges alleged
that he penetrated the victim when she indicated by speech
and/or conduct that she did not freely consent to that
penetration. See RSA 632-A:2, I(m) (2016). Six of
the ten charges the defendant faced required the State to
prove sexual penetration beyond a reasonable doubt. After the
close of the State's case, the trial court dismissed one
of the endangering the welfare of a child charges.
opening statement, the prosecutor told the jury that the
defendant raped the victim. The prosecutor said that the
evidence would show, beyond a reasonable doubt, that the
defendant "penetrated [the victim] digitally, that he
engaged in oral sex with her, that he penetrated her with his
penis, [and] that she indicated by speech or her actions that
her consent was not given, that this was against her
will." As to the computer services use charge, the
The evidence is going to show you that the Defendant utilized
the email server and Facebook, social network, to entice [the
victim] to solicit, lure, or entice her to meet with him with
a plan that he was going to have sex with her. And I
encourage you to listen to that very carefully.
She told the jury that "[u]ltimately," the case
came "down to one thing: Do you believe [the victim]?
The State believes that you will."
opening statement, Carney began by telling the jury that if
the jury had a reasonable doubt about the victim's
testimony, "then the government hasn't proven its
case." He told the jury that the first issue for it to
consider "is what does the evidence show about whether
[the victim] was willing or unwilling" during her
encounter with the defendant. He suggested that the
"best evidence" of whether the victim was a willing
or unwilling participant was her "own words."
Carney then quoted each of the electronic messages that the
defendant and victim exchanged and invited the jury to infer
that the victim's words in those messages were not the
"the words of a rape victim."
told the jury that the second issue for it to consider was
whether there was "penetration of the vagina by . . . a
penis or a finger or a tongue." Carney informed the jury
that the phrase "senior salute" refers to a
"range of activity," that the defendant denied to
the police and would deny at trial that he ever penetrated
the victim sexually, and that the evidence would show that
the defendant and the victim, in fact, "never did have
victim was the first witness to testify. On
cross-examination, Carney elicited the victim's admission
that the phrase "senior salute" could mean "to
just hang out with someone," and did not necessarily
refer to having sex. The victim testified that, after she
received the defendant's senior salute, she thought that
he might want to kiss her, but that was "the extent [to
which she] thought it would go." During his
cross-examination of the victim, Carney reviewed with her the
electronic messages that she and the defendant exchanged.
Carney also asked the victim whether she had told her friend
before meeting up with the defendant, "I'll probably
let him finger me and . . . at most I'll blow him."
The victim testified that she had "no recollection"
of saying this.
fourth day of trial, several of the defendant's friends
testified on behalf of the State. Defense counsel
cross-examined several of those friends regarding the meaning
of terms like "score," "hook up," and
"slay," words that the defendant had used in
electronic communications and conversations with his friends.
Counsel elicited testimony that those terms did not
necessarily refer to sexual intercourse.
addition, the defense team elicited testimony from both the
defendant's friends and the victim's friends that the
term "senior salute" could be an invitation to
engage in any number of activities from walking around campus
to having sex. During his cross-examination of one of the
defendant's friends, Zaganjori elicited testimony that
the defendant never told that friend that he planned or
expected to have sexual intercourse with the victim. During
cross-examination, one of the victim's friends testified
that, before meeting up with the defendant, the victim had
said that she would probably let the defendant "finger
her" and that "[a]t most," she would
defendant testified on the sixth day of trial. On direct
examination, he testified that the word "slay"
could refer to "walking around the lake," that the
word "bone" could refer to "kissing,"
that the word "score" did not necessarily refer to
engaging in physical activity with a member of the opposite
sex, and that the term "hook up" could refer to
kissing or "dry-humping." The defendant testified
that he sent a senior salute to the victim because he
"wanted to ask her out." His plan, he said, was to
take her to the chapel tower. During his direct examination
of the defendant, Carney reviewed with the defendant the
electronic messages that he and the victim had exchanged. In
testifying about the encounter with the victim, the defendant
denied ever putting his fingers, tongue, or penis under the
victim's underwear. He testified that it had not
"been [his] intention going into the night to have sex
with [the victim]."
closing argument, Carney again focused upon the electronic
messages that the defendant and the victim exchanged. He told
Now one of the most important piece[s] of evidence of all is
what the e-mails and chats were between [the victim] and [the
defendant]. In particular, the ones after they got together,
not just in the next hour, not through the remainder of the
day, not into the next day, into the next week between the
two of them. Please read those e-mails and chats and decide
is this someone who was unwilling in what happened in the
attic. Was this the conversations at [the victim's] end
by a rape victim, because that's what ...