State of New Hampshire v. Xi Liu

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0229, State of New Hampshire v. Xi Liu,
the court on October 11, 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. The
defendant, Xi Liu, appeals his felony conviction by a jury in Superior Court
(Bornstein, J.) for utilizing, with the requisite mens rea,1 “a computer on-line
service . . . to seduce, solicit, lure, or entice . . . another person believed by the
[defendant] to be a child, to commit any . . . offense under RSA 632-A, relative
to sexual assault and related offenses.” RSA 649-B:4, I (2016). The defendant
argues that his conviction should be reversed because excerpts of certain
e-mails that he sent were improperly admitted into evidence at trial. Because
we find that any error in admitting the e-mails was harmless, we affirm.

The jury could have found the following facts. During August 2016, a
Lebanon police officer used a fictitious, male profile on the online chatting
application Grindr, with the name “Dakota.” Grindr users can communicate
with each other via text-message. Grindr’s terms of service require all users to
be age 18 or older; however, no age was provided in “Dakota’s” profile.

On August 16, the defendant used Grindr to send a text-message to
Dakota. On August 16 and 18, the defendant and Dakota texted each other
through Grindr, and discussed meeting to engage in sexual penetration. In
several messages, Dakota expressly stated that he was 15, and he never stated
or implied that he was any other age. Dakota also alluded to his age in other
ways. For instance, on seven occasions, he mentioned that he lived with his
mother, and he repeatedly emphasized that he would only be able to meet the
defendant while she was asleep. Dakota also stated that he could not drive
because of his age.

The August 16 conversation ended without the defendant and Dakota
agreeing to meet. On August 18, Dakota contacted the defendant by sending
another text-message using Grindr. The defendant asked Dakota to send a
picture. Eventually, Dakota sent a photo of a male showing his neck and face

1 Although the requisite mens rea is “knowingly,” RSA 649-B:4, I (2016); see State v. Moscone,

161 N.H. 355, 361 (2011), the defendant was charged with acting “purposely,” and the jury was
instructed accordingly. Because the requisite mens rea is not at issue on appeal, and we find that
the State proved, beyond a reasonable doubt, that the defendant acted purposely, we apply the
same mens rea as the trial court.
from the chin to just below the eyes. At trial, the parties stipulated that the
photo is of the officer’s then-26-year-old colleague.

The defendant was initially dissatisfied that the photo was “not a full face
pic,” and said he would not meet. However, less than ten minutes later, the
defendant asked Dakota, “What services u can offer?” Dakota responded, “I
was down for wat u liked.” The defendant then asked, “u can be a slave?”
Dakota responded, “Yup.” The defendant then asked, “What u can do as a
slave?” Dakota responded, “Not sure, no 1 else has asked me yet, but I’m
willing to try anything.” The defendant then said, “All right,” and the two
agreed to meet at a West Lebanon gas station. The defendant was arrested
upon his arrival.

On August 19, 22, and 25, the defendant sent three e-mails to a
prosecutor for the Lebanon police department. In his August 19 e-mail, the
defendant informed the prosecutor that he was contacting him because he had
been “told by one of the staffs in Lebanon Police Department to ask help from
you on correction of the mistake made by my Bail Commissioner last night.”
The defendant stated to the prosecutor that the bail commissioner had asked
him to sign the wrong “charge paper,” and the defendant asked for a time when
he and the prosecutor could “discuss . . . this issue.”

Prior to trial, the defendant filed a motion in limine to exclude these
e-mails in their entirety under Rules 401, 402, 403, 408, and 410 of the New
Hampshire Rules of Evidence. The trial court denied the motion as to Rules
408 and 410, but partially granted it as to Rules 401, 402, and 403, deeming
only portions of the e-mails to be admissible. On appeal, the defendant
challenges only the admission into evidence of partially-redacted versions of
the August 19 and 25 e-mails. The relevant, non-redacted portions of the
e-mails challenged on appeal are quoted below.

In the August 19 e-mail, the defendant stated, “My name is Xi Liu . . . I
was arrested last night . . . trying to meet a 15 year old boy via a cellphone app.
(It was actually set up by the police, not the real boy. And on the other hand, I
remember he said he was 16, instead of 15 on the first day.”

In the August 25 e-mail, the defendant stated:

First night . . . . I remembered clearly that he told me he is
16 years old . . . . I then asked many times “is it lawful?”, “Is it
lawful for a 16 year old boy to have sex with a 18 year old boy?”
But he never replied. . . .

Next night . . . . he sent me a face pic of one of the Lebanon
policemen. According to the face pic, I apparently can tell that the
age of the guy is over 25 years old. Then I agreed to meet.

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 Then I was arrested but the policemen said the guy I talked
to was 15 years old. If he ever said so in app, I really didn’t notice
that. . . .

. . . I’m so sorry about this mistake. But I’m really not
meant to let this happen. All happened because of 1. My ignorance
of his age . . . .

....

. . . I’m so sorry about this case which happened under my
ignorance of his age.

A three-day jury trial was held. The officer who used the “Dakota” profile
and the prosecutor who received the defendant’s e-mails testified for the State.
All of the Grindr text-messages were admitted into evidence, as were the e-mail
excerpts deemed admissible by the trial court. The jury convicted the
defendant. This appeal followed.

The defendant argues that the August 19 and 25 e-mails were
inadmissible in their entirety as statements “made during plea discussions.”
N.H. R. Ev. 410(a)(4) (providing that “a statement made during plea
discussions” is inadmissible against a defendant who participated in the
discussions, unless they resulted in a guilty plea that was not later withdrawn).
The State counters that the defendant’s e-mails are not statements “made
during plea discussions” within the meaning of the Rule because they are
merely “unconditioned admissions . . . not accompanied by any statement that
can be reasonably construed as a desire to bargain.” The State also argues
that, even if the e-mails are “plea discussions,” the conviction should be
affirmed because any error in admitting the e-mails was harmless. Because we
agree with the State that, even if the trial court erred in admitting the e-mails,
any error was harmless, we need not decide whether the defendant’s e-mails
were “plea discussions” within the meaning of Rule 410.

For an error to be harmless, “the State must prove beyond a reasonable
doubt that the error did not affect the verdict. An error may be harmless
beyond a reasonable doubt if the alternative evidence of the defendant’s guilt is
of an overwhelming nature, quantity, or weight, and if the inadmissible
evidence is merely cumulative or inconsequential in relation to the strength of
the State’s evidence of guilt.” State v. Dupont, 149 N.H. 70, 75 (2003)
(quotation and citation omitted).

In this case, to obtain a conviction, the State had to prove, beyond a
reasonable doubt, that the defendant (1) purposely, (2) utilized “a computer on-
line service,” (3) to “seduce, solicit, lure, or entice” another person to engage in
sexual penetration, (4) whom he believed to be a child. RSA 649-B:4, I (2016);

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RSA 632-A:4, I (2016), :2, I (Supp. 2018). Under the statute, a child is “any
person under the age of 16 years.” RSA 649-B:2 (2016).

Here, the evidence is overwhelming that the defendant purposely used
Grindr, a computer on-line service, to solicit and entice Dakota, a person he
believed to be younger than 16, into engaging in sexual penetration. During
the Grindr conversations, the defendant told Dakota that, when they met, he
wanted to “[g]et sucked and f**k.” The defendant also asked Dakota how many
men he had previously had sex with, where he had had sex, and whether he
had used condoms during these sexual encounters. As evidenced by his many
messages expressing his desire to perform sexual acts with Dakota, the
defendant purposely utilized Grindr to entice Dakota into engaging in sexual
penetration.

In addition, Dakota stated three times that he was 15. He also
emphasized that he lived with his mother, and that he would only be able to
meet the defendant while she was asleep. Dakota also stated that he could not
drive because of his age and made comments one would reasonably expect
from an underage user of a chatting platform, such as, “I’m still new to this,”
“It’s hard sometimes ya know, have to keep it . . . [s]ecret,” and “my mom will
kill me if she finds out.”

The defendant also manifested several times that he believed Dakota was
15. When Dakota informed the defendant that he was 15, the defendant
responded by questioning whether it would be lawful for him to have sex with a
15-year-old. Also after Dakota stated that he was 15, the defendant asked
whether it would be “dangerous” for the two of them to meet. Further, when
Dakota told the defendant that his mother typically woke up at 5:00 a.m., the
defendant accepted that he would need to return Dakota to his home by that
time. At no time, prior to his arrest, did the defendant suggest that he believed
Dakota was more than 15 years old. Thus, the Grindr conversations provided
the State with overwhelming evidence of the defendant’s guilt. State v. Beede, 156 N.H. 102, 110 (2007).

In relation to the strength of the evidence described above, the contested
e-mail excerpts are cumulative and inconsequential. To the extent that, in
those e-mails, the defendant stated that he had been arrested for sexually
soliciting a 15-year-old boy, the e-mails were cumulative. See State v.
Pennock, 168 N.H. 294, 306 (2015) (ruling that victim’s written statement was
cumulative because it only repeated victim’s properly-admitted oral statement).
To the extent that, in those e-mails, the defendant claimed to be innocent, and
asserted that he had believed that Dakota was 16 because Dakota had told him
so, the e-mails are inconsequential. Although the defendant’s false exculpatory
claims could have been considered circumstantial evidence of guilt, see State v.
Evans, 150 N.H. 416, 420 (2003), given the extent of the alternative evidence
that the defendant did, in fact, believe that Dakota was under 16, the State has

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shown beyond a reasonable doubt that the e-mail excerpts admitted into
evidence did not affect the verdict. See State v. Tabaldi, 165 N.H. 306, 320-21
(2013). Accordingly, we conclude that any error in admitting the e-mail
excerpts into evidence was harmless beyond a reasonable doubt.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Eileen Fox,
Clerk

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