State of New Hampshire v. Dana Avery

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0641, State of New Hampshire v. Dana
Avery, the court on October 21, 2020, issued the following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, Dana Avery, appeals his convictions on two felony counts
of using computer services for a prohibited purpose. See RSA 649-B:4, I
(2016). On appeal, he argues that the Superior Court (Colburn, J.) erred by
denying his motions to dismiss the charges for due process and speedy trial
violations and by denying his motion for a directed verdict. We affirm.

I. Motions to Dismiss

The following facts are relevant to our review. The defendant was first
arrested for the charged conduct on July 21, 2017, and was indicted by the
grand jury on September 19. The original indictments alleged that, between
July 11 and 21, the defendant “knowingly used Craigslist, a computer online
service, in an attempt to solicit a person he believed to be a child to meet him”
so that they could engage in certain sexual activity.

The court held a dispositional conference on January 3, 2018, at which it
scheduled the final pre-trial conference for April 27 and jury selection for May
7. In March, the defendant’s original attorney withdrew from the case after the
defendant retained his current attorney. The defendant’s current attorney
entered an appearance on April 13 and filed a motion for a continuance. The
trial court granted the motion, but required the defendant to submit a waiver of
his speedy trial rights. The defendant did so on April 27. Thereafter, the court
held another dispositional conference on May 24, and rescheduled the final
pre-trial conference for October 18 and jury selection for October 29.

Six days before jury selection, the State entered a nolle prosequi on the
original indictments. On the indictments, the prosecutor wrote that nolle
prosequi was entered “due to defective indictment.” The State brought two new
indictments on November 20, and jury selection was rescheduled for June 17,
2019. The new indictments alleged that the defendant “knowingly used Yahoo
email service in an attempt to solicit ‘lizzynh13,’ a person he believed to be a
child under the age of 16, to commit sexual penetration” as defined by RSA
chapter 632-A.
 On April 15, 2019, the defendant moved to dismiss the new indictments,
arguing that the delay in bringing him to trial violated his speedy trial and due
process rights. On June 13, the trial court denied the defendant’s motion
without prejudice to his renewal of the motion following trial, if he was
convicted. The defendant’s jury trial took place on June 26 and 27, after which
the jury convicted him of both charges. The defendant subsequently renewed
his motion to dismiss.

The trial court denied the renewed motion. The court found that the
delay between the defendant’s July 21, 2017 arrest and June 17, 2019 jury
selection was presumptively prejudicial. Having found the delay to be
presumptively prejudicial, the court then examined the reason for the delay,
the defendant’s assertion of his right to a speedy trial, and the prejudice to the
defendant. After considering all of the relevant factors, the court concluded
that the defendant was not denied his right to a speedy trial. In addition, the
trial court found that the defendant’s due process claim lacked merit because
he had “failed to articulate any actual prejudice” from the delay in prosecution
in the case. This appeal followed.

We first consider whether the trial court erred by denying the defendant’s
motions on speedy trial grounds. We address his arguments under the State
Constitution, and cite federal opinions for guidance only. State v. Ball, 124
N.H. 226, 231-33 (1983). We defer to the trial court’s factual findings unless
those findings are clearly erroneous, and consider de novo the court’s
conclusions of law with respect to those factual findings. State v. Allen, 150
N.H. 290, 292 (2003).

To determine whether a defendant’s right to a speedy trial has been
violated under the State Constitution, we apply Barker v. Wingo, 407 U.S. 514,
530 (1972), which requires that we balance the following factors: (1) the length
of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his
right to a speedy trial; and (4) the prejudice to the defendant. State v. Brooks, 162 N.H. 570, 581 (2011). The length of the delay must be presumptively
prejudicial to trigger consideration of the other factors. Id.; see State v. Allen, 150 N.H. 290, 294 (2003) (stating that when defendant is charged with
misdemeanor and not jailed, pre-trial delay of six months is presumptively
prejudicial).

The threshold inquiry in the speedy trial analysis is the length of the
period of delay. Brooks, 162 N.H. at 581. Here, the parties agree and the trial
court found that the delay in this case was presumptively prejudicial. The
defendant contends that because the delay was presumptively prejudicial, the
trial court erred by denying his first motion to dismiss without prejudice
without considering the remaining Barker factors. We conclude that the trial
court did not err in this respect. “[M]ost speedy trial claims . . . are best
considered only after the relevant facts have been developed at trial.” United

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States v. MacDonald, 435 U.S. 850, 858 (1978). This is particularly so when,
as in the defendant’s first motion to dismiss, the defendant has not articulated
any specific prejudice from the delay in bringing him to trial. See id.

The second Barker factor requires that we assess why the delay
occurred, which party is responsible for it, and how much weight to give the
delay. The defendant does not challenge the trial court’s finding that 14
months of the delay between his arrest and the jury selection is not
attributable to the State (eight months is not attributable to either side and six
months is attributable to the defendant’s decision to seek new counsel and
move for a continuance).

The trial court also found that the 28-day delay between the State’s entry
of nolle prosequi on the first set of indictments and the defendant’s re-
indictment was not counted for the purposes of the second Barker factor. The
trial court determined that, although some of the delay between the
defendant’s re-indictment in November 2018 and the jury selection in June
2019 was attributable to the State’s decision not to prosecute the original
indictments, most of it was attributable “to the typical scheduling practice of
the court system.” In light of that finding and because the court did not find
that the State acted in bad faith, the court did not weigh the delay between the
defendant’s re-indictment and the jury selection heavily against the State.

The defendant does not challenge the trial court’s finding that most of
the delay between his re-indictment and the jury selection was attributable to
the court system. Rather, he asserts, in effect, that the record compels a
finding that the State acted in bad faith and, therefore, that the delay should
have weighed heavily against the State. We disagree.

The power to enter a nolle prosequi exists in the prosecuting officer; the
court has no right to interfere in its exercise. Allen, 150 N.H. at 293. “The
State’s discretion, however, is not unlimited, for the trial courts are empowered
to curb that discretion where it is used to inflict confusion, harassment, or
other unfair prejudice upon a defendant.” Id. In the absence of bad faith on
the part of the State in entering nolle prosequi, we have held that the period of
time between the entry of nolle prosequi and the institution of new criminal
charges is excluded when calculating the length of the delay. Id.

Here, the trial court credited the State’s assertion that the original
indictments were defective in that they would not match the available proof at
trial. Such a defect is a permissible reason for entering a nolle prosequi. Id.
(“The State may enter a nolle prosequi for various reasons, and we have found
it permissible to nolle pross a case where the evidence will not sustain the
charge as alleged.”). The trial court specifically found no evidence that the
State entered the nolle prosequi so as to gain an improper tactical advantage
over the defendant or to harass him or inflict confusion. Under these

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circumstances, the trial court’s finding that the State did not act in bad faith
was not clearly erroneous, and we reject the defendant’s argument that the
record compelled a contrary finding. Accordingly, we find no error in the trial
court’s decision not to include the 28 days between the entry of nolle prosequi
on the original indictments and the defendant’s re-indictment in its analysis.
See id.

Nor do we find any error in the trial court’s decision to weigh the delay
between the defendant’s re-indictment and the jury selection only slightly
against the State. The defendant does not dispute that most of that delay is
attributable to the court and, as previously discussed, the record supports the
trial court’s finding that the State did not act in bad faith.

We put substantial emphasis on the final two Barker factors. Brooks,
162 N.H. at 582. The third factor — the strength of the defendant’s assertion
to his right to a speedy trial — “is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.” Id.
(quotation omitted). The trial court found that while the original indictments
were pending, the defendant “never raised his speedy trial rights,” and, indeed,
“explicitly waived his right to a speedy trial” when his current counsel moved
for a continuance. The court determined that, although the new indictments
were brought in November 2018, the defendant did not raise his right to a
speedy trial until April 2019. Before April 2019, the defendant did not request
an expedited trial or “even mention[] his right to speedy trial.” The defendant
does not challenge these findings on appeal.

The final Barker factor “requires us to determine whether and to what
extent the defendant suffered prejudice, including whether the delay resulted
in an oppressive pretrial incarceration, anxiety, or an impaired defense.”
Brooks, 162 N.H. at 583. The trial court found that the defendant failed to
articulate any actual prejudice from the delay. “He has not claimed that any
witnesses were unavailable as a result of the delay, that any memories had
faded, or that any evidence was lost.” Rather, the defendant claimed only that
the delay had caused him “to live his life in a state of uncertainty.” The court
found that the defendant’s understandable anxiety “only factors minimally in
the prejudice analysis, particularly where [he] remained free on bail while both
sets of indictments were pending,” and “he was brought to trial within two
years of his arrest.”

The defendant appears to argue that, because the State acted in bad
faith, he need not show actual prejudice. Cf. State v. Locke, 149 N.H. 1, 8
(2002) (“[W]hen a defendant does not — or cannot — articulate the particular
harm caused by delay, we inquire whether the length and reason for the delay
weigh so heavily in the defendant’s favor that prejudice need not be specifically
demonstrated.” (quotation omitted.) Given that the trial court did not find that

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the State acted in bad faith and that we have upheld that finding, we reject the
defendant’s apparent argument.

Upon this record, after balancing the requisite factors, we conclude that
the defendant was not denied his right to a speedy trial. See Brooks, 162 N.H.
at 581. Because the Federal Constitution is no more protective of the
defendant’s rights than the State Constitution under these circumstances, see
id. at 584, we reach the same conclusion under the Federal Constitution.

We next consider whether the trial court erred by denying the
defendant’s motion to dismiss on due process grounds. We construe the
defendant’s appellate argument to be that the State’s decision to enter nolle
prosequi on the first set of indictments and to re-indict him 28 days later
amounted to a fundamentally unfair adjudicatory procedure in violation of his
state and federal rights to due process. See State v. Adams, 133 N.H. 818, 824
(1991). To prevail on such a claim, the defendant had to demonstrate that the
State’s actions resulted in actual prejudice. See id. To the extent that the
defendant suggests that it was enough for him to establish that the State
engaged in an “unfair adjudicatory procedure” without having to show
prejudice, he is incorrect. See State v. Goodale, 144 N.H. 224, 229-30 (1999)
(affirming the defendant’s conviction, despite finding that he had been
subjected to an unfair adjudicatory procedure, because he failed to
demonstrate that he was prejudiced by the procedure).

Even if we were to assume without deciding that the State’s actions in
entering nolle prosequi and re-indicting the defendant constituted an
“adjudicatory procedure,” the defendant has not established actual prejudice to
his defense. The defendant has made no showing of actual prejudice, and,
thus, the trial court did not err by denying his motion to dismiss on due
process grounds. As the Federal Due Process Clause offers the defendant no
greater protection than does Part I, Article 15 of the State Constitution under
these circumstances, see United States v. Marion, 404 U.S. 307, 325-26
(1971); Adams, 133 N.H. at 824, we reach the same result under both
constitutions.

To the extent the defendant argues that the delay between the State’s
entry of nolle prosequi and his subsequent re-indictment violated his due
process rights, that argument is insufficiently developed in light of our
precedent, which establishes that “a challenged delay between original and
subsequent indictments will be analyzed under speedy trial principles.” State
v. Dery, 134 N.H. 370, 374 (1993).

II. Motion for a Directed Verdict

The defendant argues that the evidence at trial was insufficient to
support his conviction. Because a challenge to the sufficiency of the evidence

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raises a claim of legal error, our standard of review is de novo. State v. Labrie, 171 N.H. 475, 482 (2018). In reviewing a sufficiency of the evidence claim, we
view the evidence presented at trial, and all reasonable inferences drawn
therefrom, in the light most favorable to the State, and uphold the jury’s verdict
unless no rational trier of fact could have found guilt beyond a reasonable
doubt. Id. In doing so, we examine each evidentiary item in the context of all
the evidence, not in isolation. Id. The defendant bears the burden of
demonstrating that the evidence was insufficient to prove guilt. Id.

In this case, to obtain a conviction, the State had to prove, beyond a
reasonable doubt, among other elements, that the defendant believed that the
person with whom he communicated was a child. RSA 649-B:4, I; RSA 632-
A:4, I (2016), :2, I (Supp. 2019). Under the statute, a child is “any person
under the age of 16 years.” RSA 649-B:2 (2016).

The defendant argues that the evidence was insufficient to prove that he
believed the person with whom he communicated, “Lizzy,” was under the age of
16. We disagree.

The defendant exchanged more than 1,000 email messages with “Lizzy”
between July 11, 2017, and July 20, 2017. In the first email exchange on July
11, 2017, the defendant told “Lizzy” that, in his Craigslist listing, he was
looking for a person who was “[c]lose to being legal.” “Lizzy” responded that
she was “a little younger, 14,” to which the defendant answered, “Want a
friend? I would spoil you silly. Want a mentor? XO.” He told “Lizzy” that he
wanted to “[m]entor [her] to be a great person (for [him]),” and said that she
“would need to like older guys.” In another email exchange on the same day,
the defendant said, “If you were 18, I would marry you!” “Lizzy” responded,
“Yeah. Sucks that I’m only 14. The boys in my grade are so immature.” Later
that day, the defendant sent an email saying, “If I make love to you, I could go
to jail for 30 years.” Another email message from the defendant said, “The law
sees it different . . . I will marry you when you turn 18.”

The next day, July 12, “Lizzy” again told the defendant that she was
“only 14,” and asked him whether she was “too young” for him. The defendant
responded, “I want to eventually marry you and spoil you. . . . so will you be
MY little girl ? Daddy / Daughter relationship . . . until you are 18 and I can
marry you!” Later that day, “Lizzy” again told the defendant that she was “only
14” and lacked experience in the sexual activities he was suggesting. The
defendant told “Lizzy” that she needed to “keep this a secret forever,” even after
they married because, otherwise, he would “go to jail for 30 years.”

The following day, “Lizzy” told the defendant that because she was “only
14,” she did not have any tattoos. The defendant responded, “good girl . . . I
want to keep you pure forever . . . ALL MINE!!!!!!!” The defendant told “Lizzy”
that when they married “in a few years,” her mother “might find out” about

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their email exchanges, and that, “as long as she does not call the police,” he
would be “fine.” In another email that day, the defendant told “Lizzy” that it
was “not illegal for [them] to talk,” but that he could “not take [her] out of State
or touch [her]” because “that would be illegal.” He told “Lizzy” that as long as
she could “keep a secret,” they could continue to send email messages, and
that she had to marry him when she graduated high school. The defendant
said that he “want[ed] to watch [her] go from a little girl to a beautiful lady.”

On July 20, “Lizzy” and the defendant exchanged email messages about
meeting in person. The defendant told “Lizzy” that her “mom will call the police
if she ever found out.” The defendant said, “I just read that a NH state rep was
caught with a 14 year old and is in trouble looking at a 20 year sentence for
sex with a minor.” He told “Lizzy” that “after reading about the NH state rep,”
he “[got] nervous,” because of his career and his father.

In response to the defendant’s question about whether she looked old or
young for her age, “Lizzy” responded that she looked like she is 14. She told
the defendant, “no im deff 14,” to which he responded, “I just [do] not want to
appear pushy or a filthy old man.” The defendant told “Lizzy” that she had to
be 18 before they could marry, to which Lizzy responded, “well we have like 4
years until then.”

Later that evening, the defendant emailed “Lizzy,” “I’ve been reading nh
law. I am already bad by just emailing ( is that crazy or what? ), we will have
breakfast and meet . . . go from there. I wish you were 18.” When “Lizzy” said,
“its whatever you want. I guess im not what you were looking for. that’s ok.,”
the defendant said, “that is not it at all. I DO WANT YOU ! it is the age thing
. . . honestly I am scared as hell I will go to jail . . . .” In one of their last email
exchanges, the defendant told “Lizzy,” “think if you were in my shoes . . . now
you are 48 and I am 14.”

In these messages, “Lizzy” repeatedly told the defendant that she was
“only 14”; the defendant repeatedly acknowledged that “Lizzy” was 14 and that
he could not marry her for another four years when she turned 18; and the
defendant also repeatedly acknowledged that, because “Lizzy” was not of age, it
was illegal for him to touch her or to take her over State lines and that if
anyone discovered their email correspondence, he could face jail time.

The defendant argues that evidence of his statements to the police when
he was interviewed, the testimony of the interviewing detective about the
defendant’s responses to his questions, and the fact that one must be at least
18 years old to use Craigslist were sufficient create a reasonable doubt as to
whether he believed “Lizzy” was younger than 16. However, when, as in this
case, “the proof involves both direct and circumstantial evidence, a sufficiency
challenge must fail if the evidence, including the jury’s credibility
determinations, is such that a rational trier of fact could find guilt beyond a

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reasonable doubt, even if the evidence would support a rational conclusion
other than guilt if the jury had resolved credibility issues differently.” State v.
Saunders, 164 N.H. 342, 351 (2012). Viewing all of the evidence and its
reasonable inferences in the light most favorable to the State, we conclude that
it was sufficient for a rational trier of fact to have found, beyond a reasonable
doubt, that the defendant believed “Lizzy” to be younger than 16 years of age.

Affirmed.

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

Timothy A. Gudas,
Clerk

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