State of New Hampshire v. Charles Normil

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0429, State of New Hampshire v. Charles
Normil, the court on January 17, 2019, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. Following
a jury trial in Superior Court (Abramson, J.), the defendant, Charles Normil,
was convicted on four counts of aggravated felonious sexual assault (AFSA), see
RSA 632-A:2 (Supp. 2018), one count of attempted AFSA, see RSA 632-A:2;
RSA 629:1 (2016), two counts of first degree assault, see RSA 631:1 (Supp.
2018), two counts of second degree assault, see RSA 631:2 (Supp. 2018), one
count of burglary, see RSA 635:1 (2016), one count of conspiracy to commit
burglary, see RSA 635:1, I; RSA 629:3 (2016), and one count of falsifying
physical evidence, see RSA 641:6 (2016). On appeal, the defendant argues that
the trial court erred by admitting a witness’s testimony at trial regarding the
defendant’s request that the witness retain and destroy evidence. The
defendant challenges the trial court’s rulings that: (1) the evidence was
admissible because the defendant failed to include it in a pretrial motion in
limine; and (2) it was admissible as consciousness of guilt evidence. We affirm.

The jury could have found the following facts. The defendant’s
convictions arise out of events that occurred on November 24, 2012, when he
and his co-conspirator, Lamontagne, were driving around the Bedford area
using illicit drugs and the defendant informed Lamontagne that he intended to
commit a burglary. Lamontagne stopped the car and the defendant put on a
mask and gloves that he retrieved from the car. Lamontagne also put on gloves
and the two men approached the unoccupied home of E.Q. and his wife, S.V.
Lamontagne helped the defendant gain access to the house and then returned
to his car. As soon as Lamontagne got into his car, he saw another car pull
into the driveway. He alerted the defendant by calling his cell phone and then
drove around the neighborhood waiting for the defendant.

While the defendant was inside the house, E.Q. and S.V. returned to
their residence where they discovered the defendant, who demanded that they
provide him with the location of the safe or lockbox. When they told the
defendant that there was no safe or lockbox, the defendant took their cell
phones and told them to lie on the floor. The defendant then beat E.Q.,
stabbing him in the head with a screwdriver, until E.Q. lost consciousness.
The defendant then tied up S.V. and assaulted her, physically and sexually.
The defendant subsequently took E.Q.’s wallet, both victims’ watches and their
wedding bands, and fled the residence.

After waiting for approximately 15 to 20 minutes, Lamontagne picked up
the defendant as he came out of the woods near the victims’ residence. When
the defendant entered the car, his gloves were bloody and he described in detail
the nature and extent of his assaults of both victims.1 The defendant and
Lamontagne then began destroying or concealing the evidence of their crimes.
The defendant threw his bloody gloves out the car window in Amherst. He then
wiped any blood off of the car with socks that he found in the car, and threw
those socks over a guardrail in Amherst. They went back to Lamontagne’s
house where the defendant took off his bloody clothes, washed them with
bleach, and put them in a black plastic bag. Lamontagne and the defendant
then drove back to Amherst to dispose of the clothes. On one of the following
nights, Lamontagne and the defendant returned to the Amherst location,
retrieved the clothing, and drove to two different locations in Milford where the
defendant disposed of the evidence.

A few months later, the police obtained information linking Lamontagne
and the defendant to the Bedford home invasion. They questioned
Lamontagne, who gave an account of what happened that night in Bedford.
Lamontagne also brought the police to one location where they found E.Q’s
wallet, and a second location in Milford where they found a plastic bag with
bleached clothing. Based, in part, upon this evidence, the State indicted the
defendant for the assaults and burglary committed in Bedford and for falsifying
evidence.

Prior to trial, the defendant filed a motion in limine to exclude letters and
testimony by Lamontagne and another witness, Leblanc, regarding bags that
allegedly contained items from other burglaries or thefts unrelated to this case.
The trial court granted the motion, finding that “[i]t appears that at no point
did the bags contain items connected with the charged crimes,” and they do
not have probative value.

At trial, the State sought to introduce evidence through another witness,
Faucher, proffering that she would testify that she received a suitcase from the
defendant’s mother, who told her that it belonged to the defendant, and that he
wanted Faucher to hang onto it. The State further proffered that she would
testify that she placed the suitcase in a closet and then received a letter from
the defendant a few weeks later telling her to dispose of it because the police
were looking to raid the house. The State also proffered that Faucher would

1 Although E.Q. and S.V. survived the assault, they both suffered debilitating injuries. The nature
and extent of the vicious assaults and the severe injuries suffered by the victims were sufficient to
support each of the defendant’s convictions, but those facts are not germane to the issues raised
in this appeal and, thus, are not described in this order.

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testify that she disposed of the suitcase and never opened it or observed its
contents. The defendant challenged the admissibility of this evidence. The
trial court ruled that Faucher’s testimony was admissible because it was not
included in the motion in limine filed prior to trial and it was “offered to show
consciousness of guilt.”

On appeal, the defendant argues that the trial court erred when it
admitted Faucher’s testimony regarding the suitcase because New Hampshire
Rule of Evidence 404(b) prohibits the admission of other acts evidence unless it
is relevant for a non-propensity purpose. He contends that the trial court
committed legal error when it: (1) overruled his “Rule 404(b) objection on the
ground that he did not seek to exclude it in a pretrial motion in limine”; and (2)
“ruled that the evidence was admissible because it showed [the defendant’s]
consciousness of guilt in ‘a case.’”

The State disputes that admission of this testimony was error, but
argues that even if it were, any error was harmless beyond a reasonable doubt.
The defendant counters that the State failed to sufficiently brief the issue of
harmless error regarding the character of the erroneously admitted evidence
itself, and, therefore, we should decline to consider it.

Although the State does not explicitly discuss the character of the
evidence in the context of its harmless error analysis, the State assesses the
inconsequential nature of this evidence when it addresses its prejudice as it
relates to the Rule 404(b) analysis. Thus, for the purposes of this appeal, we
assume, without deciding, that admitting Faucher’s testimony was erroneous,
and we agree with the State that any error was harmless beyond a reasonable
doubt. See State v. Cooper, 168 N.H. 161, 165 (2015); State v. Ramsey, 166
N.H. 45, 47-48 (2014) (applying harmless error review to admission of evidence
assumed to be in violation of New Hampshire Rules of Evidence and State and
Federal Confrontation Clauses).

The harmless-error doctrine recognizes the principle that the
central purpose of a criminal trial is to decide the factual question
of the defendant’s guilt or innocence, and promotes public respect
for the criminal process by focusing on the underlying fairness of
the trial rather than on the virtually inevitable presence of
immaterial error.

State v. Bazinet, 170 N.H. 680, 686 (2018) (quotation omitted).

To establish that an error was harmless, the State must prove beyond a
reasonable doubt that the error did not affect the verdict. Id. at 687. This
standard applies to both the erroneous admission and exclusion of evidence.
Id. An error may be harmless beyond a reasonable doubt if the other evidence
of the defendant’s guilt is of an overwhelming nature, quantity, or weight, and

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if the evidence that was improperly admitted or excluded is merely cumulative
or inconsequential in relation to the strength of the State’s evidence of guilt.
Id. In making this determination, we consider the other evidence presented at
trial as well as the character of the erroneously admitted evidence itself. Id.
Because Faucher’s testimony could have aided the jury in convicting the
defendant on all 12 counts, we review each one to determine whether there was
overwhelming alternative evidence of guilt.

The defendant was convicted on four counts of AFSA, one count of
attempted AFSA, two counts of first degree assault, two counts of second
degree assault, one count of burglary, one count of conspiracy to commit
burglary, and one count of falsifying physical evidence. In this case, evidence
of the defendant’s guilt for each of the 12 convictions was overwhelming and
Faucher’s testimony regarding the suitcase was merely cumulative in relation
to the other evidence introduced at trial.

To convict the defendant on the four counts of AFSA, the State had to
prove beyond a reasonable doubt that the defendant knowingly engaged in
sexual penetration of the victim when he, in two instances, “overc[ame] the
victim through the actual application of physical force, physical violence or
superior physical strength,” RSA 632-A:2, I(a), and in another two instances,
“coerce[d] the victim to submit by threatening to use physical violence or
superior physical strength on the victim, and the victim believe[d] that the
actor ha[d] the present ability to execute these threats,” RSA 632-A:2, I(c). To
convict the defendant of attempted AFSA, the State had to prove beyond a
reasonable doubt that the defendant: (1) acted purposely; (2) intended the
crime of AFSA be committed; and (3) took a substantial step toward the
commission of the crime. See RSA 632-A:2; RSA 629:1, I.

To convict the defendant on the two counts of first degree assault, the
State had to prove beyond a reasonable doubt that he knowingly caused bodily
injury to another by means of a deadly weapon. See RSA 631:1, I(b). To
convict the defendant on the two counts of second degree assault, the State
had to prove beyond a reasonable doubt that the defendant knowingly caused
serious bodily injury to another. See RSA 631:2, I.

The alternative evidence of the defendant’s guilt of these crimes was
overwhelming. The other evidence included, inter alia, the testimony of
Lamontagne, an inmate housed in the same jail facility as the defendant prior
to trial, E.Q., medical professionals, and police officers. Lamontagne’s
testimony outlined how the home invasion occurred on November 24. It also
included testimony that, after committing the burglary, the defendant returned
to the car with bloody gloves and the defendant described specific details of the
physical and sexual assaults of the victims. Other evidence included testimony
from an inmate who testified that the defendant made incriminating
statements to him, such as how the defendant had participated in a home

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invasion and stabbed “the guy” with a screwdriver. In addition, E.Q.’s
testimony, together with the testimony of medical professionals and police
officers, corroborated the testimony of both Lamontagne and the inmate
regarding the events of the home invasion and the attempted destruction of
evidence, and further demonstrated the extensive injuries to both E.Q. and
S.V.

To convict the defendant of burglary, the jury was instructed that the
State had to prove beyond a reasonable doubt that the defendant, acting
purposely, entered a building or occupied structure at night with the purpose
to commit the crime of theft inside, and he was not licensed or privileged to
enter the occupied structure. See RSA 635:1, II. To convict the defendant of
conspiracy to commit burglary, the jury was instructed that the State had to
prove beyond a reasonable doubt that the defendant, with the purpose of
committing the crime of burglary, agreed with another person to commit the
underlying crime of burglary, and during the existence of this conspiracy, one
of the members committed an overt act in furtherance of the conspiracy. See
RSA 635: I; RSA 629:3, I.

The alternative evidence of guilt of these crimes was also overwhelming.
In addition to the evidence previously discussed, the State presented testimony
by an FBI agent from the Bureau’s cellular analysis survey team that placed
the defendant and Lamontagne’s cell phones near the victims’ home on
November 24, 2012, and near other relevant locations, including where the
police recovered E.Q.’s wallet. As further evidence of the defendant’s
whereabouts, Lamontagne’s landlord testified that Lamontagne and the
defendant had left her home around 9:00 p.m. that night, returned shortly
after 10:15 p.m., and then left again.

Other alternative evidence included testimony from Lamontagne and
police officers. Lamontagne testified that he had been driving with the
defendant when the defendant announced that he intended to commit a
burglary and decided to enter E.Q. and S.V.’s home. Lamontagne also testified
that he helped the defendant enter the home before leaving him and returning
approximately 20 minutes later to pick him up and then help him conceal
evidence of the home invasion. The police testified that during their
investigation of the scene of the home invasion, they discovered a footprint that
was consistent with the type of footwear that Lamontagne testified the
defendant wore the night of the burglary. In addition, an officer testified that
E.Q. reported a missing wallet and watch. Lamontagne testified that after the
defendant fled E.Q. and S.V.’s home he possessed several items, including
wallets and watches. Lamontagne’s testimony was corroborated by testimony
from police officers who described Lamontagne bringing them to a location
where they retrieved E.Q.’s wallet.

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 To convict the defendant of falsifying physical evidence, the jury was
instructed that the State had to prove beyond a reasonable doubt that the
defendant, acting in concert with and aided by another, believing that an
official investigation was about to be instituted, and with a purpose to impair
the verity or availability of the physical evidence in the investigation, concealed
physical evidence. See RSA 641:6.

The alternative evidence of guilt for this crime was overwhelming. It
included testimony by Lamontagne that after the burglary, he and the
defendant returned to Lamontagne’s home, where the defendant took off his
clothes and washed them with bleach. Lamontagne also testified that they put
the clothes in a bag and disposed of the bag in Amherst. A few days later, they
retrieved the clothing, divided it into different bags, and then disposed of the
evidence in different locations in Milford. Officers testified that they recovered
a bag in Milford containing clothing, including pants that appeared to have a
bleach stain.

In sum, Faucher’s testimony was inconsequential in light of the other
evidence introduced at trial. Its impact was minimal considering the ample
evidence placing the defendant at the victims’ home on the night of the home
invasion and demonstrating that he sought to conceal or destroy evidence
related to this crime. In addition to the evidence discussed above, other
evidence demonstrating the defendant’s consciousness of guilt included
testimony that he had discussed his whereabouts with a witness in advance of
her second interview with the police because the detectives were asking her
about the defendant’s activities on the night of the home invasion. It also
included testimony from a witness who had known the defendant for years,
who testified that around December 12th, the defendant appeared at her home
and burned a duffle bag filled with bloody clothes and shoes. The witness also
testified that the defendant gave her a set of watches he claimed were valued at
ten to twenty thousand dollars. The witness explained that the defendant
suggested that she should tell the police that he had been with her on the night
of the burglary.

The defendant maintains that the trial court’s ruling was prejudicial
because it placed him in a “‘no-win’ situation.” He contends that the “only way
to explain his instruction to Faucher to dispose of the suitcase was to
introduce evidence that he committed a different burglary in Massachusetts,”
which would have been highly prejudicial evidence in and of itself. While we
agree that the defendant had a limited recourse to challenge the relevance of
the testimony, we conclude that it did not prejudice his defense. The jury had
no knowledge of the contents of the suitcase and there was no evidence
submitted at trial to demonstrate or imply that the defendant had committed
other unrelated crimes. Any assumption that the jury may have made
concerning whether the suitcase contained evidence of the charged crimes
would have been cumulative to the other evidence presented to the jury that

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was probative of the defendant’s consciousness of guilt and, specifically, the
defendant’s determination to destroy evidence.

There was ample alternative evidence to establish the defendant’s guilt of
each of the crimes of which he was convicted. Therefore, given the
overwhelming nature of the alternative evidence of the defendant’s guilt, and
the cumulative and inconsequential nature of Faucher’s testimony regarding
the suitcase in relation to the strength of the State’s evidence of guilt, we
conclude, beyond a reasonable doubt, that the testimony did not affect the
verdict. Thus, any error was harmless.

Finally, any issues that the defendant raised in his notice of appeal, but
did not brief, are deemed waived. See Bazinet, 170 N.H. at 688.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

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