State of New Hampshire v. Christopher T. Dastrup

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0461, State of New Hampshire v.
Christopher T. Dastrup, the court on November 16, 2020, issued
the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
The defendant, Christopher T. Dastrup, appeals his conviction, following a jury
trial in Superior Court (Howard, J.), on four charges of indecent exposure and
lewdness for having exposed his genitals to children in a department store. See
RSA 645:1 (2016). On appeal, he argues that the trial court erred by: (1) not
suppressing, under the State and Federal Constitutions, identification
evidence; (2) excluding certain opinion testimony from a defense witness
concerning law enforcement identification procedures; (3) admitting edited
video surveillance footage from the store where the crimes occurred and
testimony from the person who created the edited video; and (4) determining
that the evidence was sufficient to support his conviction. We affirm.

We first address whether the trial court erred by denying the defendant’s
motion to suppress. We address his arguments under the State Constitution
first and rely on federal law only to aid our analysis. State v. Ball, 124 N.H.
226, 231-33 (1983). We will not overturn the trial court’s ruling on a motion to
suppress identification testimony unless it is contrary to the weight of the
evidence. State v. Perri, 164 N.H. 400, 404 (2013). We ask whether the
identification procedure used by the police was so unnecessarily suggestive
and conducive to irreparable misidentification that it denied the defendant due
process. Id. It is the defendant’s burden to establish that the identification
procedure was unnecessarily suggestive. Id. If the defendant satisfies this
burden, the State must demonstrate, by clear and convincing evidence, that
pursuant to the factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), the
procedure was not so suggestive as to have rendered the identification
unreliable. Perri, 164 N.H. at 404; State v. Whittey, 134 N.H. 310, 312 (1991).

The record from the suppression hearing establishes that the victims,
two children, were playing in a department store when the older child, who was
eleven years old, noticed a man staring at them, causing her discomfort. At
that time, the children were unaccompanied by an adult. The children left that
area of the store, deliberately walking past the man in order “to get a better
look at” him so that the older child might be able to describe him if necessary.
As the children walked past the man, his penis was exposed. After the children
left that area of the store, they went to the toy section of the store, where they
encountered the same man. The children left the toy area and encountered the
man a third time in the apparel section of the store, where he again exposed
his genitals. After the third encounter, the children found the older child’s
father and disclosed what they had seen. The father then followed the man
closely to the front of the store and reported the matter to customer service
personnel. The man left the store before store officials could confront him.

That same evening, the father and older child reported the matter to the
local police department. They described the man as a tall, white male wearing
a gray or white tee-shirt,1 a denim baseball cap, glasses, and plaid shorts. On
the following day, a detective contacted the store’s asset protection manager,
who reviewed the store’s surveillance video and identified a potential suspect.
However, the detective determined that the identified suspect did not match the
descriptions provided by the father and child because he was not wearing
glasses, his shorts and hat did not match the clothing described, and he was
pushing a shopping cart, a detail not included in the descriptions. Moreover,
the individual did not appear to be following anyone.

Subsequently, the asset protection manager and detective identified a
different, tall white man wearing a dark hat, white tee-shirt, plaid shorts, and
glasses (second suspect). The video showed the second suspect near the two
children on multiple occasions, at times looking in their direction, including
within areas of the store in which the children reported seeing the man who
had exposed himself. The video additionally showed the children speaking with
the older child’s father and appearing to identify the second suspect to the
father, and the father then following the second suspect through the store.
Finally, the video showed the second suspect in a self-checkout aisle looking
across the store at the customer service desk at the same time that the father
and children were at the customer service desk speaking with store personnel.
At the detective’s request, the asset protection manager sent a still photograph
of the second suspect to the older child’s father, who within hours confirmed
that the photograph depicted the same person that he had described. Without
instruction from the police to do so, the father showed the photograph to the
older child, who likewise confirmed that the man in the photograph was the
same man who had exposed himself.

At that point, the police published the photograph on its Facebook page
and solicited the public’s assistance to identify the man. A member of the
public identified the person in the photograph as the defendant, and the
defendant subsequently admitted that he is the person in the photograph and
that he was in the store at the time of the incidents at issue.

1 When the child and father reported the matter on the evening that the incident had occurred,

both described the man as wearing a gray tee-shirt. At a forensic interview less than a week
later, the child described the tee-shirt as white.

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 The defendant moved to suppress, arguing that the act of showing the
photograph to the older child’s father amounted to a single person show-up.
The defendant suggested that the first person identified as a potential suspect
by the asset protection manager more accurately matched the descriptions
provided by the older child and her father. The State conceded that the
identification procedure was unnecessarily suggestive, but argued that the out-
of-court identifications were reliable pursuant to the Biggers factors. Following
a three-day suppression hearing, the trial court denied the motion.

Shortly before trial, the State showed portions of the surveillance video
footage to the older child in preparation for her trial testimony. The prosecutor
asked the child whether she saw anyone she recognized in the video, at which
point she pointed to the defendant and said, “yeah, that’s the guy who was
doing this.” The defendant argued that the prosecutor’s question constituted
an “out-of-court identification . . . covered by the suppression motion,” that the
child’s response was tainted by the photograph she had viewed at the outset of
the case, and that the child should not be allowed to view the video at trial and
testify that “that’s the person who exposed himself to us.” The defendant
acknowledged, however, that absent the allegedly defective identification
procedure involving the photograph, the State’s trial preparation with the child
would have been proper. The trial court rejected the defendant’s argument.

On appeal, the defendant argues that both the sending of the photograph
to the father and the State’s pretrial preparation of the older child constituted
impermissible single-person show-up identification procedures that necessarily
rendered the subsequent identifications of the defendant unreliable. The
defendant suggests that Biggers does not comport with “the evolution of our
scientific and legal systems’ understanding of the injustice caused by the
continued use of . . . defective and unreliable [identification] procedures,” and
invites us to construe the State Constitution as more protective of the
defendant’s rights than Biggers. The defendant further contends that the trial
court misapplied Biggers in finding the identifications reliable.

We have observed that a one-person show-up is inherently suggestive.
See State v. Leclair, 118 N.H. 214, 219 (1978); State v. Butler, 117 N.H. 888,
891 (1977). We have also recognized, however, that such a procedure may be
justified by exigent circumstances. See Leclair, 118 N.H. at 219. Assuming,
without deciding, that sending the photograph to the father constituted an
identification procedure, and that there were no exigent circumstances, we
conclude that the trial court reasonably found the identifications reliable.

The factors that the trial court must consider when evaluating the
reliability of an identification include: (1) the witness’s opportunity to view the
suspect; (2) the witness’s degree of attention; (3) the accuracy of the witness’s
prior description of the suspect; (4) the witness’s degree of certainty at the time
of the identification; and (5) the lapse of time between the crime and the

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identification. Perri, 164 N.H. at 404; see Biggers, 409 U.S. at 199-200. Here,
the trial court found that: (1) the child had ample opportunity to view the
defendant after seeing him multiple times within a short period and after
deliberately passing by him; (2) the father likewise had an opportunity to view
the defendant after the child described him and the father followed him
through the store; (3) the child’s degree of attention was significant as
evidenced by her decision to pass directly by the defendant to get a better view
of him and her description of several identifying features; (4) the father’s degree
of attention, after the child reported the defendant’s conduct, was likewise
focused on the defendant as he followed him through the store; (5) the
descriptions by the child and father were very accurate, consistent with each
other, and consistent with the defendant’s actual appearance; (6) both the child
and father were resolute and unequivocal in their levels of certainty; and (7) the
lapse of time between the crimes and the identifications was minimal. These
findings are supported by the record, and in turn support the trial court’s
determination that the identifications were reliable. Upon this record, the trial
court’s finding that the identifications based upon the photograph were reliable
was not contrary to the weight of the evidence. Perri, 164 N.H. at 404.

To the extent that the defendant argues that the State’s action in
showing the surveillance video to the child in preparation for her testimony
constituted an additional improper identification procedure, the defendant
acknowledged at trial that, but for his claim that sending the photograph was
an unconstitutional identification procedure that “polluted” the child’s memory,
the State’s pretrial preparation would have been permissible. Because we have
upheld the trial court’s determination that the identifications based upon the
photograph were reliable, we reject the argument that the State’s pretrial
preparation of the child amounted to an additional impermissible pretrial
identification procedure.

We next address the defendant’s evidentiary arguments. We review the
trial court’s evidentiary rulings for unsustainable exercises of its discretion.
State v. Colbath, 171 N.H. 626, 632 (2019). To establish that the trial court
unsustainably exercised its discretion, the defendant must demonstrate that
the trial court’s ruling was clearly untenable or unreasonable to the prejudice
of his case. Id. In applying this standard, we determine only whether the
record establishes an objective basis sufficient to sustain the trial court’s
discretionary judgments. Id.

The defendant first argues that the trial court erred by excluding opinion
testimony from his proffered expert concerning law enforcement identification
procedures. The defendant sought to introduce testimony at trial from a
former law enforcement officer that “one person or one photo showups are
overly suggestive,” that such procedures “are not necessarily, in and of
themselves, unreliable,” and that it is for the trial judge to determine whether
an identification resulting from a one-photo show-up is reliable. Additionally,

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the defendant proffered that the witness would testify as to proper procedures
that law enforcement officers are taught for procuring identifications. We note
that the defendant also offered such testimony, and that the trial court
considered it, within the context of the pretrial motion to suppress. The trial
court ruled that such testimony was not relevant at trial, and that it was
cumulative of testimony of the detective, who had acknowledged that a single-
photograph “show-up” identification procedure is “not a preferred” law
enforcement practice because it is “overly suggestive.”

We conclude that the trial court sustainably exercised its discretion.
Evidence is relevant only if the fact for which it is offered “is of consequence in
determining the action.” N.H. R. Ev. 401(b). Moreover, the trial court may
exclude relevant evidence “if its probative value is substantially outweighed by
a danger of . . . needlessly presenting cumulative evidence.” N.H. R. Ev. 403.
In this case, the State conceded that the act of sending a single photograph of
the defendant to the father was unnecessarily suggestive. The trial court,
however, determined that the resulting identifications were reliable. Under
these circumstances, the trial court reasonably could have determined that the
proffered testimony would not have established a fact that was of consequence
to the case, and that any probative value of the testimony was substantially
outweighed by the unnecessarily cumulative nature of it.

The defendant next argues that the trial court erred by admitting into
evidence edited surveillance video footage and testimony from the person who
created the edited footage. At trial, the State introduced as a full exhibit the
raw, unedited footage from the surveillance video preserved by the asset
protection manager, consisting of 23 separate video files captured by various
security cameras throughout the store. Those videos were played, in their
entirety, for the jury. In addition, both the father and the older child viewed
portions of the raw video files during their trial testimony, and identified the
defendant, the children, and the father in them. The defendant does not
challenge the admissibility of the raw video footage.

Additionally, the State introduced a “timeline compilation video,”
prepared from the raw video footage by a field photographer and forensic video
examiner for the Federal Bureau of Investigation (videographer). In preparing
the compilation, the videographer relied upon information from the police
describing the relevant parties and other relevant information. She then pieced
together all of the portions of the raw video files from the different cameras
containing footage of the people matching the descriptions provided to her into
a single video in chronological order so that it would appear “like you’re
watching somebody go through the store . . . as opposed to watching somebody
come through . . . the front camera, watching the whole front camera and then
watching the next thing they’re in and watching the whole footage of that.”
The videographer also added to the video, at points of the footage in which “it

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might be confusing as to who [was] who,” graphics consisting of a red circle
around the defendant and yellow circles around the children and father.

On appeal, the defendant argues that the trial court erred by admitting
the compilation video into evidence because: (1) it was allegedly based upon
“unreliable information and hearsay”; (2) the videographer “was not certified as
an expert and had no part in the investigations of the case”; and (3) the
videographer’s testimony “constituted improper or impermissible lay or expert
testimony, which invaded the fact-finding province of the jury.” We disagree.

The mere fact that the videographer relied upon information provided to
her by the police in order to identify the relevant portions of the raw footage
and to place graphics consisting of colored circles around the relevant parties
does not render the video inadmissible hearsay. Hearsay is an out-of-court
statement offered in evidence to prove the truth of the matter asserted in the
statement. See N.H. R. Ev. 801(c). The compilation video itself was not an out-
of-court “statement,” and although out-of-court statements may have been
used in its creation, as the State observes, the video was not offered to prove
the truth of those statements or to identify the defendant. To the contrary, at
the time that the compilation timeline video was introduced into evidence, the
older child and her father had already identified for the jury the defendant, the
children, and the father in portions of the raw video footage.

Nor does it matter that the videographer was not certified as an expert
and was not involved in investigating the case. The videographer did not
provide opinion testimony. Nor did she provide testimony regarding the
criminal investigation. Rather, her testimony was introduced solely to
authenticate and lay the necessary foundation to admit the compilation video
into evidence. See N.H. R. Ev. 901. Having created the compilation video, the
videographer had the requisite personal knowledge to testify concerning what it
was and how she created it in order to authenticate it. See N.H. R. Ev. 602,
901. Once the State established that the compilation video was what it was
purported to be, it was for the jury to evaluate its weight and credibility, and
we reject the defendant’s suggestion that merely by adding circles around the
parties whom the videographer was following in the video, the videographer
“invaded the fact-finding province of the jury.” See State v. Alwardt, 164 N.H.
52, 57 (2012) (stating that witness credibility and weight to be given evidence
are matters for the jury to evaluate); State v. Reid, 135 N.H. 376, 383 (1992)
(observing that State need only establish prima facie case on authentication,
and that once admitted, “the rest is up to the jury” (Quotation omitted.));
Saavedra v. State, 225 A.3d 364, 381 (Del. 2020) (rejecting argument that
placing red circle around individual in video whom detective identified as
defendant was improper, observing that the circle “merely direct[ed] the viewer
to the place on the video that was the subject of the witness’s testimony,” and
that “it remained . . . for the jury to decide what and whom could be seen
within the red circle”). We note that in evaluating the weight and credibility of

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the compilation video, the jury had at its disposal both the raw video footage
and the testimony of the older child and father identifying the relevant parties,
including the defendant, within the raw footage.

The defendant’s only argument on appeal for why the information
provided to the videographer was “unreliable” is that it included “possible
tattoos” as a descriptor, when neither the older child nor her father had
conveyed this descriptor in their original descriptions. As noted above,
however, the police were able to identify the defendant in the surveillance video
based upon the original descriptions by the father and child, and the defendant
does not claim that he lacks any visible tattoos, or that the police otherwise
had no basis to convey this descriptor to the videographer following their
determination that the person they had identified in the video was in fact the
defendant. Moreover, the videographer testified that the presence of tattoos
“was probably the least thing [she] was looking at because” tattoos were not
always noticeable in the video footage. Although the jury was free to consider
the discrepancy between the original descriptions of the defendant and the
information provided by the police to the videographer in evaluating the weight
and credibility of the compilation video, see Alwardt, 164 N.H. at 57, the
defendant cites no authority standing for the proposition that such a
discrepancy necessarily rendered the video compilation inadmissible.

The defendant raises no other evidentiary objection to the admissibility of
the compilation video. Upon this record, we cannot say that the trial court’s
decision to admit the compilation video into evidence was clearly untenable or
unreasonable to the prejudice of his case. Colbath, 171 N.H. at 632.

Finally, we address the defendant’s argument that the evidence was
insufficient to support his conviction. The defendant argues that the evidence
was insufficient because the older child “could not remember or provide details
of the actual crimes alleged without being prompted and led by the prosecutor.”
According to the defendant, the surveillance video “provided nothing close to
proof beyond a reasonable doubt that he exposed himself to these girls.” The
defendant claims that the video was, in fact, exculpatory. We disagree.

To prevail on his challenge to the sufficiency of the evidence, the
defendant must demonstrate that no rational trier of fact, viewing all 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. Papillon, 173 N.H. 13, 30 (2020)). A challenge to the sufficiency of the evidence raises a
claim of legal error, which we review de novo. Id. Matters such as weighing
the evidence, evaluating witness credibility, and resolving conflicts in testimony
are for the jury to resolve. State v. Woodbury, 172 N.H. 358, 364 (2019).

To convict the defendant of two of the charges in this case, the State was
required to prove that, with respect to each child, he (1) purposely, (2) exposed,

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his genitals, (3) knowing that a child under the age of sixteen was present, (4)
under circumstances that may reasonably be construed as having been for the
purpose of sexual gratification or arousal. See RSA 645:1, II(a). To convict him
of the remaining two charges, the State was required to prove that, as to each
child, he (1) purposely, (2) performed an act of sexual contact on himself, (3)
when a child under the age of sixteen was present. See RSA 645:1, II(b).

The evidence at trial establishes that, on September 28, 2017, when the
older child was eleven years old and the younger child was five, the older child
noticed a man staring at both children when they were unaccompanied by an
adult in a department store. This conduct caused the older child to feel
uncomfortable, prompting her to leave that area of the store with the younger
child. The older child testified that when the children passed by the man, she
saw that his “private area,” which she described as his “PP” or the part of the
body that a boy uses to “pee,” was exposed. The older child testified that she
held the younger child’s hand and “made sure [that the younger child did not]
see anything,” and continued to walk to the toy section of the store. While the
children were in the toy section, the older child noticed that the same man had
followed them and was again staring at them. At that point, the older child
testified that the children left the toy area to search for her father. While
looking for her father, the older child testified that the children encountered
the man a third time in the apparel section of the store, that the man was
again staring at them, that the man had again exposed his “private area,” and
that this time he was touching his “private area” with his hand.

The children then saw the older child’s father, ran to him, and according
to the father, the older child said that a man was “following [her] around” the
store and “had his penis out.” The older child pointed the man out to the
father, and the father then followed him from a distance of fifteen to twenty feet
through the store to the checkout area, where the father reported the matter to
store personnel at the customer service desk. Both the older child and the
father identified the man in the store’s security footage. Additionally, the father
identified the man in a photograph produced from the security footage. Other
evidence introduced at trial, including the photograph, testimony identifying
the man in the photograph as the defendant, and items seized upon the
execution of a search warrant of the defendant’s apartment, establish that the
man in the security footage was, in fact, the defendant. The security footage
itself shows the defendant following the children through the store, staring at
the children, placing his hand in the area of his crotch while in the children’s
vicinity, retreating once the father approached him, being followed by the father
and children through the store to the checkout area, and peering across the
store in the direction of the father and children as they were at the customer
service desk speaking with store personnel.

Although the prosecutor may have led the older child in portions of her
testimony, and although no portion of the security footage specifically shows

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the defendant’s exposed genitals, these were matters for the jury to evaluate in
weighing the evidence. Woodbury, 172 N.H. at 364. We conclude that when
viewed in the light most favorable to the State, the evidence was sufficient for a
rational jury to have found, beyond a reasonable doubt, that the defendant
committed the charged crimes. Papillon, 173 N.H. at 30.

The defendant’s remaining arguments are either insufficiently developed,
see State v. Blackmer, 149 N.H. 47, 49 (2003), or otherwise do not warrant
further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993). Arguments
raised for the first time in the defendant’s reply brief are waived. See Panas v.
Harakis & K-Mart Corp., 129 N.H. 591, 617-18 (1987).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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