State of New Hampshire v. Kevin Harrington

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0333, State of New Hampshire v. Kevin
Harrington, the court on February 24, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Kevin Harrington, appeals his conviction, following a jury trial in
the Superior Court (McNamara, J.), on two counts of aggravated felonious
sexual assault–domestic violence, RSA 632-A:2 (Supp. 2019) (amended 2020);
two counts of attempted felonious sexual assault, id.; RSA 629:1 (2016); one
count of burglary, RSA 635:1 (2016); five counts of simple assault–domestic
violence, RSA 631:2-b (Supp. 2019); and one count of false imprisonment, RSA
633:3 (2016). The defendant argues on appeal that the trial court erred by
admitting into evidence text messages that were not properly authenticated.
We conclude that, even if the trial court erred, any error did not affect the
verdict and was, therefore, harmless beyond a reasonable doubt. Accordingly,
we affirm.

The jury could have found the following facts. The victim met the
defendant, her neighbors’ son, in August 2019. Their relationship developed
rapidly. The defendant would visit the victim’s apartment every day, including
to watch her dog while she went on weekend trips. When the victim was away,
the defendant would text her “nonstop.” When she addressed the issue with
him, he would assure her that he would lessen his texting when she went
away, but then he did not.

In early September 2019, the victim went on a weekend trip while the
defendant stayed at the victim’s apartment and took care of her dog. While the
victim was away, the defendant repeatedly called and texted her. She
responded by text, asking him to stop, but he did not.

The victim returned home the evening of September 10. The defendant
was not at her home when she arrived. She texted him that she did not want
to see him, but he insisted on coming over. She texted him that she was going
to bed and did not want to see him, put her phone under her pillow, and went
to sleep.

The victim awoke to the defendant standing by her bed with his hands
over her throat and mouth. He digitally penetrated her, attempted to perform
cunnilingus, and thrust his body onto her. After physically assaulting the
victim, the defendant continued to act in a threatening and confrontational
manner, while the victim attempted to protect herself and deescalate the
situation. The defendant left only after the victim pretended to call the police.

Very early on the morning of September 11, the victim sent texts to her
boss and her sister to inform them about what happened. She spoke with her
sister on the phone and her boss in person, and both encouraged her to go to
the police. The victim’s sister drove from out of state to accompany the victim
to the police station because, according to her testimony, she “knew the
situation was critical.” At the police station, the victim told an officer what
happened. The officer went back to the apartment with the victim and took
photographs and collected evidence. The defendant continued to text and call
the victim “all day.”

The next day, the defendant was taken into custody and, in November,
the State obtained two indictments charging the defendant with aggravated
felonious sexual assault, two indictments charging him with attempted
aggravated felonious sexual assault–domestic violence, and one indictment
charging him with burglary. The defendant was also charged with five counts
of simple assault–domestic violence and one count of misdemeanor false
imprisonment.

A jury trial commenced in March 2020. During the victim’s testimony,
the State asked her about text messages that the defendant sent to her
following the assault, on September 11. Photographs of the texts, marked as
Exhibit 6, were entered into evidence. The State also elicited testimony about
text messages that she received from the defendant on September 10, the day
leading up to the incident, which the victim had deleted. In order to refresh
her recollection while she testified, she was provided a document containing
copies of the texts procured from the defendant’s phone carrier by an
investigator, marked as Exhibit 7. The texts themselves were not offered into
evidence during the victim’s testimony.

Later in the trial, during the testimony of the investigating officer, the
State attempted to elicit testimony about the deleted text messages contained
in Exhibit 7. Defense counsel objected that the text evidence should not be
admitted because there was no police report to document how the investigator
procured the texts and because the certification letter from a Verizon
representative that the State relied upon to authenticate them was insufficient.
The letter, marked as Exhibit 11, stated that the texts were “true and accurate
copies of the records created from the information maintained by Verizon in the
actual course of business.” Defense counsel argued that Exhibit 11 is not “a
properly certified record under the laws of the State of New Hampshire.”
Following argument from both parties, the trial court overruled the objection.

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The State continued its direct examination and moved to enter Exhibit 7 into
evidence, and the court admitted it “[s]ubject to the objections made
previously.”

The jury found the defendant guilty of all charges. This appeal followed.

On appeal, the defendant argues that the trial court erred “by admitting
[Exhibit 7] as self-authenticating.” The State argues that the defendant’s
objection and the trial court’s ruling actually addressed Exhibit 11, not Exhibit
7, which we interpret as an argument that the defendant’s authentication
argument is not preserved. The State also argues that the defense waived the
authentication issue because it failed to challenge the exhibit prior to trial and
because the defendant adopted the text messages in his own testimony. The
State also argues that the trial court’s decision to admit the texts was a
sustainable exercise of discretion, and that, even if the trial court did err, any
error did not affect the verdict and therefore was harmless. We need not
address the substance of the defendant’s evidentiary argument or the State’s
preservation and waiver arguments because we agree with the State that, even
if the trial court erred, any error was harmless.

We recently clarified our harmless error analysis in State v. Racette, 175
N.H. 132, 137 (2022). The defendant argues that we should not apply the
harmless error standard announced in Racette, asserting that the standard
announced in Racette was merely dicta. We disagree.

To establish harmless error, the State must prove beyond a reasonable
doubt that the error did not affect the verdict. Id. This standard applies to
both the erroneous admission and the exclusion of evidence. Id. An error may
be harmless beyond a reasonable doubt if: (1) the other evidence of the
defendant’s guilt is of an overwhelming nature, quantity, or weight; or (2) 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.
We review these factors to determine whether an error affected a verdict. Id.
Either factor can be a basis supporting a finding of harmless error beyond a
reasonable doubt. Id.

Exhibit 7 contains hundreds of texts from the days leading up to the
incident, September 7 through September 10, and from the day after,
September 11. As an initial matter, we note that many of the texts in Exhibit 7
were admitted into evidence as part of Exhibit 6 without objection and are,
therefore, cumulative. See id. As for the remaining texts, the State argues that
any error in admitting them was harmless because “there was overwhelming
evidence of the defendant’s guilt given the victim’s direct testimony regarding
the assaults and the corroborative evidence offered by other witnesses and
exhibits.” We agree.

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 The victim in this case was credible — at no point was she impeached,
nor was her credibility otherwise effectively attacked. Cf. State v. Reynolds, 136 N.H. 325, 329 (1992) (holding that erroneous admission of evidence was
not harmless because “the [complainant’s] credibility had been attacked by the
defense with some success”). She provided a detailed and consistent account
of the night of the assault. And, unlike many sexual assault cases, this case
did not turn on the victim’s credibility alone. See Racette, 175 N.H. at 138.
Her testimony was bolstered by physical evidence, including photographs of
injuries on her vagina and face; the testimony of the investigating police officer,
who described evidence uncovered at the victim’s apartment that supported the
victim’s claims; and the testimony of witnesses who interacted with her after
the assault, who described the victim’s emotional reaction. Additionally,
details of the victim’s account were corroborated by texts from the defendant
that were admitted as part of Exhibit 6. For example, he texted “id tel the
world that id staod nakd,” which matched the victim’s testimony that she woke
up to him standing naked by her bed before forcing himself on her. The victim
also stated that, after the defendant unsuccessfully attempted to have sex with
her, he “flung [her] off the bed” by lifting the mattress, which is corroborated by
his text, “So sad 4 making u slde of bd.”

The defendant argues that admission of Exhibit 7 was harmful because it
contains texts sent on September 10, in which the defendant repeatedly texted
the victim despite her requests that he stop. The defendant argues that this
corroborates the victim’s testimony that the defendant “texted her repeatedly
while she was away and ignored her requests to stop.” However, as the State
notes, other evidence corroborated that fact, including texts entered into
evidence as part of Exhibit 6. For example, on September 11, the defendant
wrote, “Boy u rite beautiful grl like u i dnt deserve u ever ever Kris i just thougt
u didnt want me mt txt n but a strng cntrl guy im sory . . . .” (Emphasis
added.) Another Exhibit 6 text from September 11 says, “Wish i never txt u an
listend,” which matched the victim’s testimony that she told the defendant she
was annoyed because he “d[idn’t] listen” to her requests that he stop texting
her. Accordingly, the September 10 texts were cumulative and inconsequential
in relation to the strength of the State’s evidence of guilt.

The defendant also argues that entering Exhibit 7 was harmful because
it corroborates the victim’s “claim that [the defendant] attempted to insert his
penis in her vagina, but couldn’t get an erection.” However, this specific
conduct was not alleged in any of the charging instruments. Rather, the
relevant indictment alleged that he “got on top of [the victim] . . . while naked
laying in bed.” The trial court cited this alleged act in instructing the jury.
This conduct was supported by the victim’s credible testimony that the
defendant tried to have sex with her by “thrusting his body onto [her],” which
was corroborated by texts admitted as part of Exhibit 6. For instance, the
defendant texted the victim that “wrestling is wiat i did to show i cn b that if

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thats wiat u wantd i thougt i was losing u becuase i was to nice.” Therefore,
insofar as the Exhibit 7 texts corroborate the victim’s claims, they, too, are
cumulative and inconsequential in relation to the State’s evidence of guilt.

Because the other evidence of the defendant’s guilt was of an
overwhelming nature, and the evidence set forth in Exhibit 7 was cumulative
and inconsequential in relation to the strength of the State’s evidence of guilt,
we are persuaded, beyond a reasonable doubt, that the texts contained in
Exhibit 7 that were not otherwise before the jury did not affect the verdict.
Accordingly, we conclude that any error in admitting the texts was harmless.
See Racette, 175 N.H. at 137.
Affirmed.

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

Timothy A. Gudas,
Clerk

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