State of New Hampshire v. Joshua S. Martin

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0200, State of New Hampshire v. Joshua
S. Martin, the court on October 9, 2020, issued the following
order:

Having considered the briefs, memorandum of law, appellate record, and
oral arguments of the parties, the court concludes that a formal written opinion
is unnecessary in this case. We affirm.

The defendant, Joshua S. Martin, appeals his convictions, following a
jury trial, on eight counts of aggravated felonious sexual assault. See RSA
632-A:2 (Supp. 2019). He argues that the Superior Court (Ruoff, J.) erred in
denying his motion to dismiss and post-trial motion to set aside the verdict,
asserting that the evidence was insufficient to support the convictions and, in
the alternative, that the verdicts were against the weight of the evidence.

“To prevail upon a challenge to the sufficiency of the evidence, the
defendant must prove that no rational trier of fact, viewing all of the evidence
and all reasonable inferences from it in the light most favorable to the State,
could have found guilt beyond a reasonable doubt.” State v. Vincelette, 172
N.H. 350, 354 (2019). On a motion to set aside the verdict for insufficient
evidence, “the trial court cannot weigh the evidence or inquire into the
credibility of the witnesses, and if the evidence adduced at trial is conflicting,
or if several reasonable inferences may be drawn, the motion should be
denied.” State v. Spinale, 156 N.H. 465 (2007) (brackets and quotation
omitted).

The defendant first argues that the evidence was insufficient to support
the verdicts because, he asserts, the victim’s claims were contradictory and
physically impossible. In support of his argument, he notes that during the
victim’s July 1, 2016 forensic interview, when she was fourteen, she told the
interviewer that, during the assaults, which took place over a period of years,
the defendant touched her genitals and breasts with his hands but did not
sexually assault her in any other way. Ten days later, during a July 11, 2016
police interview, the victim told the interviewer that the defendant also
masturbated in her presence. Additionally, the victim testified at trial that,
during the last assault, the defendant touched her genitals and breasts, but
she also admitted that, during her pretrial deposition, she had testified that,
during the last assault, the defendant did not touch her genitals. The victim
testified at trial that the defendant placed his penis in her mouth; however, she
did not make that claim during the initial interviews. The victim also testified
at trial that, during the last assault, the defendant tied her hands and feet to
the bed. During her deposition, however, she testified that, during the last
assault, the defendant forced her to masturbate him, which, the defendant
contends, would have been impossible if her hands had been tied to the bed.

The defendant also notes that the victim’s testimony was contradicted by
that of the defense witnesses. The defendant lived with his parents, and the
victim would visit on weekends. The victim testified that the assaults occurred
in the grandparents’ home on Saturday evenings, when they left the house, and
that the last assault occurred when they were visiting her great grandparents
in Connecticut. The defendant’s parents testified, however, that the great
grandparents had died the previous year. The defendant’s parents also
testified that they did not typically go out on Saturday nights. In addition, they
testified that there was no lock on the bedroom door, contrary to the victim’s
testimony that the defendant would lock the bedroom door before the assaults.

The defendant also argues that the victim’s Facebook communications
showed that she was angry with him, and motivated to lie about the assaults,
because she believed that he had not wanted her to be born. Finally, he notes
that there was no corroborating testimony or forensic evidence to support the
victim’s testimony.

We find the evidence sufficient to support the convictions. The victim,
who was 17 years old at trial, testified that the defendant assaulted her
multiple times over a period of many years, in the same bedroom at her
grandparents’ house. She explained that, although she could not remember
specifically what happened when, the assaults occurred as she described them.
By way of example, when the victim was asked where her grandparents were
going on the night of the last assault, she stated only that she “assumed that
they were going to visit my grandfather’s parents in Connecticut.” In addition,
she explained that she did not provide the initial interviewer with all the details
because she felt embarrassed discussing these matters with a stranger. She
testified that although the defendant tied her hands to the bed, sometimes he
untied them. She testified that she had known the defendant wanted her
mother to have an abortion years before the angry Facebook conversation. We
conclude that this testimony is sufficient to support the convictions. See
Spinale, 156 N.H. at 464 (If the victim’s testimony establishes a prima facie
case, no corroborating evidence is needed.).

The defendant next argues that even if the victim’s testimony was
sufficient to support the convictions, the verdicts were contrary to the weight of
the evidence. “Although a verdict may be supported by sufficient evidence, a
trial court may nevertheless conclude that the judgment is against the weight
of the evidence.” Spinale, 156 N.H. at 465 (quotation omitted). In ruling on a
motion to set aside the verdict as against the weight of the evidence, the trial

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court sits as a “thirteenth juror” and agrees or disagrees with the jury’s
resolution of the conflicting testimony. Id. “Thus, a motion addressed to the
weight of the evidence primarily presents a question of fact for the trial court.”
Id. “Because the trial court has greater discretion when ruling upon a motion
to set aside the verdict as against the weight of the evidence, our scope of
review of such a decision is narrower.” Id. at 466. We review the trial court’s
decision under our unsustainable exercise of discretion standard. State v.
Durgin, 165 N.H. 725, 734 (2013).

In support of his argument that the verdicts were against the weight of
the evidence, the defendant relies upon the same inconsistencies identified in
his sufficiency challenge. Assessing this evidence, the trial court noted that
“[t]hough [the victim] was questioned about inconsistent statements she had
previously given, [she] did not retract any of her statements, did not admit to
being mistaken, and . . . did not waver in stating that all of the events she
described happened but that she could not remember specifically what
happened when.” In response to the grandparents’ testimony that they could
not have been visiting their parents on the night of the last assault, the trial
court found that “where the grandparents went, or whether [the victim]
remembered accurately where they went, has no effect in inducing belief in her
testimony.” With respect to the defendant’s evidence indicating that there was
no lock on the bedroom door, we note that during her trial testimony the victim
did not mention a lock on the bedroom door; she testified only that the
defendant would lock the downstairs, exterior door prior to each assault. In
response to this evidence, the trial court stated that it did “not find that [the
victim’s] inaccurate description of the bedroom door effectively impeache[d] her
descriptive and unwavering testimony of being sexually assaulted for years.” In
conclusion, the court found that, “[i]n weighing the evidence, the probative
value of these items pales in comparison to [the victim’s] testimony.”

The defendant also argues that the trial court, in accounting for the
inconsistencies in the victim’s testimony, relied upon evidence that was not in
the record. In its order, the trial court stated that the forensic interviewer
“testified that a minor’s disclosure of sexual assault is characterized as a
process, according to her experience and training, often taking time for the
minor to fully discuss all details of abuse.” It is undisputed that the
interviewer did not make this statement, or any similar statement, in her
testimony. When the trial court denies a motion for a new trial, it should be
given the opportunity to correct any errors in its order. Prime Financial Group
v. Masters, 141 N.H. 33, 35 (1996). However, the defendant did not bring this
error to the trial court’s attention in a motion for reconsideration. N.H. Dep’t of
Corrections v. Butland, 147 N.H. 676, 679 (2002). Generally, we do not
consider issues raised on appeal that were not presented to the trial court.
State v. Batista-Salva, 171 N.H. 818, 822 (2019). In this case, however, we
waive the preservation requirement because we conclude that the trial court
denied the defendant’s request for a new trial based upon the weight of the

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victim’s testimony, without relying upon the cited testimony mistakenly
attributed to the forensic interviewer. See id. at 823 (noting our discretion to
waive preservation); State v. Kay, 162 N.H. 237, 242 (2011) (noting that our
interpretation of a trial court’s order presents a question of law). The trial
court noted that the victim “herself testified that she intentionally withheld
some information initially because she was not ready to divulge it, and that she
had trouble keeping each incident of sexual assault separate because there had
been so many and for so many years.” The court found this explanation to be
“highly persuasive” and concluded that “the verdict is not against the weight of
the evidence . . . because [the victim] articulated persuasive explanations” for
the inconsistencies in her testimony.

Based upon this record, we conclude that the trial court sustainably
exercised its discretion in denying the defendant’s motion to set aside the
verdicts. See Durgin, 165 N.H. at 734.

Affirmed.

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

Timothy A. Gudas,
Clerk

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