State of New Hampshire v. Richard Racette

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2020-0364

THE STATE OF NEW HAMPSHIRE

v.

RICHARD RACETTE

Argued: February 10, 2022
Opinion Issued: April 26, 2022

John M. Formella, attorney general (Zachary L. Higham, assistant attorney
general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief
and orally, for the defendant.

DONOVAN, J. The defendant, Richard Racette, appeals his convictions,
following a jury trial in the Superior Court (St. Hilaire, J.), on four pattern
counts of aggravated felonious sexual assault (AFSA). See RSA 632-A:2, III
(2016). He argues that the trial court erred by: (1) barring cross-examination
about a witness’s prior statement; and (2) failing to dismiss one of the
indictments for insufficient evidence. We conclude that the trial court erred by
barring cross-examination about the witness’s prior statement and that the
error was not harmless beyond a reasonable doubt. We further conclude that
the trial court committed plain error by failing to dismiss one of the
indictments for insufficient evidence. Accordingly, we reverse and remand.

I. Facts

The jury could have found the following facts. In September 2016, the
defendant began residing in an apartment with the complainant, who was
under the age of thirteen, and the complainant’s mother, whom he had known
for over a decade. The complainant’s mother asked the defendant to move into
the apartment to assist with the rental payments. The defendant occupied one
of the bedrooms, and the complainant and her mother shared another
bedroom. The defendant moved out of the apartment in February 2017, but
returned for the month of April 2017. Thereafter, the defendant moved to a
different residence in another town.

In July 2017, the defendant began encouraging the complainant’s
mother to move into his new residence with the complainant. The mother
agreed and informed the complainant of her plan to move. Shortly thereafter,
the complainant disclosed to the police that the defendant had repeatedly
sexually assaulted her while he resided at the apartment. The following week,
the complainant was interviewed at the Child Advocacy Center (CAC) about her
allegations. The defendant was subsequently indicted on four pattern counts
of AFSA. See RSA 632-A:2, III. The indictments alleged that the defendant
engaged in patterns of sexual assault by touching the complainant’s genitals,
breasts, and buttocks, and by attempting to engage in sexual penetration with
the complainant.

Prior to trial, the defendant moved for in camera review of certain
confidential counseling and DCYF records pertaining to the complainant’s
family. The trial court granted the motion with respect to the DCYF records,
but denied it with respect to a number of the family counseling records.
Thereafter, the court reviewed the DCYF records and ordered the disclosure of
some of the confidential records.

At trial, the complainant testified that, when the defendant resided at the
apartment, he repeatedly entered her bedroom while she was sleeping and
touched her breasts, buttocks, and genitals. The complainant testified that
this conduct began about a month after the defendant moved into the
apartment and occurred “on most nights.” According to the complainant, when
these assaults occurred, her mother was sleeping on the couch. The
complainant also testified that “[s]ometimes” the defendant attempted to
engage in sexual penetration with her. The complainant stated that, on those
occasions, she kicked and pushed the defendant until he left the room.

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 The State also called the complainant’s older sister as a witness. The
sister testified that, based upon her observations of the complainant’s
demeanor during the defendant’s residence at the apartment, she believed the
complainant “felt uncomfortable” and “didn’t like being around” the defendant.
The sister further stated that the defendant “would . . . go near [the
complainant] or put his hand on her, and she would brush it off . . . she didn’t
really like him being around.” The defendant attempted to impeach the sister’s
testimony by asking why she did not reveal this observation during her prior
interview with prosecutors. The sister responded that she did not mention it
because she “wasn’t asked that question.”

In response, the defendant sought to introduce the sister’s prior
statement from the same interview, during which she offered the following
explanation as to why she assumed custody of the complainant following the
disclosure of the sexual assault allegations:

I had a hard time believing that [the defendant] was capable of doing all
this when my mom was there, and for as long as it went on. I mean, I
don’t think she was - - I don’t think she was sober. I don’t think anybody
that would be sober would not know if their daughter was being raped. I
just - - I don’t believe it.

The defendant explained that he intended to use the sister’s prior
statement to impeach her testimony about the complainant’s demeanor and
her belief that the complainant felt uncomfortable around the defendant. The
defendant also stated that he intended to ask the sister whether the allegations
“came as a surprise” to her and, if the sister responded negatively, he intended
to use the sister’s statement that she “had a hard time believing that [the
defendant] was capable of doing all this” as further impeachment evidence.

Ultimately, the trial court found the statement to be inadmissible lay
opinion evidence. The court reasoned that the defendant wants “the statement
to come out so the jury believes that this witness doesn’t believe her sister.”
Thus, the court found that the statement was “a backdoor way” of allowing the
sister to opine upon the complainant’s credibility. As a result, the trial court
precluded the defendant from introducing the sister’s prior statement for
impeachment purposes. The jury found the defendant guilty on all four
counts. This appeal followed.

II. Analysis

A. Exclusion of the Sister’s Prior Statement

The defendant first argues that the trial court erred by excluding the
sister’s prior statement as impermissible lay witness opinion evidence. We
review the trial court’s evidentiary rulings for an unsustainable exercise of

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discretion and reverse only if the court’s decision was clearly untenable or
unreasonable to the prejudice of the defendant’s case. State v. Fiske, 170 N.H.
279, 286 (2017). We consider whether the record establishes an objective basis
sufficient to sustain the discretionary decision made. Id. The defendant bears
the burden of demonstrating that the trial court’s ruling was clearly untenable
or unreasonable to the prejudice of his case. Id.

A witness need not qualify as an expert to give testimony in the form of
an opinion. See N.H. R. Ev. 701; see also State v. McDonald, 163 N.H. 115,
121 (2011). The trial court may permit lay opinion testimony as long as the
witness’s opinion is “rationally based on the witness’s perception,” helpful to
the trier of fact, and “not based on scientific, technical, or other specialized
knowledge.” N.H. R. Ev. 701. However, it is the province and obligation of the
jury alone to determine the credibility of witnesses. McDonald, 163 N.H. at
121. Therefore, although witnesses may give lay opinion testimony on a variety
of topics, they are not permitted to give lay opinion testimony regarding the
credibility of another witness. Id.; see also State v. Lopez, 156 N.H. 416, 423-
24 (2007) (establishing “a broad prohibition on questions requiring a witness to
comment upon the credibility of other witnesses”). This prohibition applies to
testimony that explicitly comments upon credibility, as well as testimony that
indirectly comments upon credibility. McDonald, 163 N.H. at 123.

Here, the parties dispute whether, in her prior statement, the sister
commented upon the complainant’s credibility. The defendant argues that he
“did not proffer the line of cross-examination for the purpose of eliciting [the
sister’s] opinion on [the complainant’s] credibility.” Instead, he argues, the
prior statement impeached the sister’s credibility because it was inconsistent
with her testimony about the complainant’s demeanor around the defendant.
The State, on the other hand, argues that “the defendant intended to use” the
sister’s prior statement “to show the jury that [the sister] doubted the truth of
[the complainant’s] allegations.” In the State’s view, the prior statement is
impermissible impeachment evidence because it amounts to a comment upon
the complainant’s credibility.

We disagree. Contrary to the State’s argument, the sister’s prior
statement is not “equivalent to [the sister] stating that the [complainant] was
lying or mistaken.” The statement indicates the sister’s surprise that the
defendant “was capable of” sexually assaulting the complainant “when [her]
mom was there.” That the sister was surprised about the complainant’s
allegations against the defendant does not mean that the sister doubted the
complainant’s credibility or the veracity of her allegations.

Moreover, the defendant sought to use this statement to impeach the
credibility of the sister, not the complainant. Specifically, the defendant sought
to draw the jury’s attention to the inconsistency between the sister’s prior

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statement and her testimony about the complainant’s demeanor and her belief
that the complainant felt uncomfortable around the defendant. The defendant
did not propose to ask the sister whether “other witnesses had lied to the jury.”
Lopez, 156 N.H. at 423; cf. State v. Parker, 160 N.H. 203, 212-13 (2010)
(concluding that the court erred by “allowing the prosecutor to ask the
defendant whether his son had lied”). Nor did the proffered line of inquiry
implicitly seek an opinion as to the complainant’s credibility. Cf. McDonald,
163 N.H. at 122-23 (holding that comments characterizing the defendant’s
emotions as “feigned” and body language as “over-exaggerated” impermissibly
commented indirectly upon the credibility of another witness (quotation
omitted)). Thus, allowing the defendant’s proposed line of inquiry would not
have invaded “the province and obligation of the jury to determine” the
credibility of witnesses. Id. at 123.

We further conclude that the sister’s prior statement was admissible as a
prior inconsistent statement. New Hampshire Rule of Evidence 613 provides:
“Extrinsic evidence of a witness’s prior inconsistent statement is admissible
only if the witness is given an opportunity to explain or deny the statement and
an adverse party is given an opportunity to examine the witness about it, or if
justice so requires.” N.H. R. Ev. 613(b). Here, the parties dispute whether the
sister’s prior statement was actually inconsistent with her testimony. See
United States v. Young, 248 F.3d 260, 267 (4th Cir. 2001) (explaining that,
under Federal Rule of Evidence 613(b), admissibility “first requires that a prior
statement be inconsistent”).

“A prior statement is inconsistent if it, taken as a whole, either by what it
says or by what it omits to say affords some indication that the fact was
different from the testimony of the witness whom it sought to contradict.”
United States v. Barile, 286 F.3d 749, 755 (4th Cir. 2002) (quotation omitted)
(construing identical federal rule of evidence); see 4 Mark S. Brodin et al.,
Weinstein’s Federal Evidence § 613.04[1], at 613-18 (2d ed. 2021) (“Any
statement is inconsistent if under any rational theory it might lead to any
relevant conclusion different from any other relevant conclusion resulting from
anything the witness said.”). Here, the sister’s prior statement, demonstrating
her surprise, contrasted with her testimony about the complainant’s demeanor
when in the defendant’s presence. One rational theory supporting the
admission of the sister’s prior statement was that, if she had previously made
her professed observations of the complainant’s demeanor, then she would
have been less likely to express surprise when the complainant disclosed the
alleged abuse. Indeed, her initial reaction to the complainant’s disclosure
offers “some indication that the fact was different from” the inference drawn
from her testimony regarding the complainant’s demeanor as being consistent
with someone suffering from sexual abuse. Barile, 286 F.3d at 755.
Accordingly, the sister’s prior statement was admissible as a prior inconsistent
statement, and the trial court erred by barring its admission.

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 The State argues, in the alternative, that any error was harmless beyond
a reasonable doubt. We take this opportunity to clarify our harmless error
standard. To establish harmless error, the State must prove beyond a
reasonable doubt that the error did not affect the verdict. See State v. Papillon, 173 N.H. 13, 28 (2020). 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; State v. Dellorfano, 128 N.H. 628,
637 (1986), 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, State v. Peters, 162 N.H. 30, 36-38 (2011). We review these
factors to determine whether an error affected a verdict. Either factor can be a
basis supporting a finding of harmless error beyond a reasonable doubt. See
State v. Pelkey, 145 N.H. 133, 137-38 (2000) (concluding error was not
harmless where alternative evidence was not overwhelming and erroneously
admitted evidence “was not inconsequential”).

Here, the State does not argue that the evidence of the defendant’s guilt
was overwhelming. Accordingly, we confine our review to whether the excluded
evidence was cumulative or inconsequential. The State argues that the
improperly excluded evidence was merely cumulative because the defendant
had previously impeached the sister’s testimony upon this point by asking why
she did not mention her observations of the complainant’s demeanor towards
the defendant in her prior interview with prosecutors. In addition, the State
argues that the improperly excluded evidence was inconsequential because the
sister’s prior statement was amenable to varying interpretations and, thus, “it
would have served as poor impeachment material.”

We are unpersuaded. Although the defendant previously attempted to
impeach the sister’s testimony about her observations of the complainant’s
demeanor, the sister effectively rebutted the inquiry by responding that she
“wasn’t asked that question” during her prior interview. Further, as we
previously concluded, the sister’s prior statement was admissible as a prior
inconsistent statement given that at least one rational theory supported its
admission on that basis. Whether the prior inconsistent statement constituted
“poor impeachment material” or could have been interpreted in a variety of
ways was for the jury to determine. As an appellate court, we cannot
hypothesize how this evidence would have developed in the absence of the trial
court’s error.

Moreover, the improperly excluded evidence was not cumulative or
inconsequential “in relation to the strength of the State’s evidence of guilt.”
Papillon, 173 N.H. at 29 (emphasis added). At trial, no other person testified to
witnessing the assault and no physical evidence corroborated the
complainant’s testimony. Nor did the State introduce evidence of an
inculpatory statement by the defendant. Significantly, the mother testified that

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she observed nothing “out of the ordinary” with respect to the defendant’s
behavior towards the complainant throughout his residency at the apartment.
Therefore, as in many sexual assault cases, the trial centered upon the
credibility of the complainant. See State v. Reynolds, 136 N.H. 325, 329 (1992)
(holding that erroneous admission of evidence was not harmless because “the
case was ultimately and essentially a credibility contest between the
[complainant] and the defendant” and “the [complainant’s] credibility had been
attacked by the defense with some success”). Indeed, in its closing, the State
repeatedly emphasized that the jury’s verdict depended upon whether the jury
believed the complainant’s testimony.

At numerous points during the trial, the defendant challenged the
complainant’s credibility. Foremost, the complainant admitted to lying during
her CAC interview by claiming that the defendant “beat” her during the sexual
assaults. When asked why she lied, the complainant responded that she
“wanted to get him more in trouble.” Furthermore, during his cross-
examination of the complainant, the defendant drew attention to the
complainant’s inconsistent statements concerning the timing of the assaults.

Additionally, during his cross-examination of the complainant, the
defendant called into question a number of the complainant’s prior statements,
including statements in which she alleged that: (1) she observed the defendant
try to touch her mother “the same way” that the defendant touched her; and (2)
the defendant would frequently “run around the house naked at night” in her
mother’s presence. However, the mother denied that either of those events
occurred. Against this backdrop, the sister’s testimony describing her prior
observations of the complainant’s behavior, consistent with a child suffering
from sexual abuse, provided the only support for the complainant’s testimony.
Although we recognize that a sexual assault complainant’s testimony requires
no corroboration, see RSA 632-A:6, I (2016), on the record before us, we cannot
conclude that barring the proposed line of cross-examination — aimed at
impeaching the sister’s testimony — was inconsequential or cumulative and by
extension did not affect the jury’s verdict.

B. Plain Error Review for Sufficiency of the Evidence

The defendant next argues that the evidence was insufficient to prove a
pattern of attempted sexual intercourse. To convict the defendant of “a pattern
of sexual assault,” RSA 632-A:2, III, the State had to prove beyond a
reasonable doubt that, among other things, the defendant committed “more
than one act under RSA 632-A:2 . . . upon the same victim over a period of 2
months or more and within a period of 5 years,” RSA 632-A:1, I-c. The
defendant argues that the evidence was insufficient to prove that the defendant
“attempted [sexual] intercourse more than once” and that “any second such act
occurred at least two months after a first act.”

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 The defendant concedes that he failed to preserve this issue for appeal.
Therefore, our review is for plain error. Under the plain error rule, we may
consider errors not raised before the trial court. State v. Hanes, 171 N.H. 173,
182 (2018). To find plain error: (1) there must be error; (2) the error must be
plain; (3) the error must affect substantial rights; and (4) the error must
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. See id. The plain error rule is used sparingly, however, and is
limited to those circumstances in which a miscarriage of justice would
otherwise result. Id.

With respect to the first prong of plain error review — whether there was
error — we review the evidence to determine whether it was sufficient to prove
the essential elements of a pattern of attempted sexual intercourse charge
beyond a reasonable doubt. See State v. Guay, 162 N.H. 375, 381 (2011); see
also State v. Houghton, 168 N.H. 269, 273-74 (2015). A challenge to the
sufficiency of the evidence presents a question of law; therefore, our standard
of review is de novo. See State v. Stanin, 170 N.H. 644, 648 (2018). 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 drawn therefrom in the light most favorable to the State, could have
found the essential elements of the crime beyond a reasonable doubt. Id.; see
Houghton, 168 N.H. at 271.

We conclude that the evidence was insufficient to support the
defendant’s conviction on the pattern of sexual intercourse indictment. At
trial, the complainant testified that “[s]ometimes his pee pee would touch, he’d
try to . . . put it in my vagina.” There was no further testimony about when or
how often such attempted intercourse occurred during the defendant’s four to
five month residence at the apartment. Even construing the word
“[s]ometimes” — in the light most favorable to the State — as establishing that
such conduct occurred more than once, the complainant’s testimony does not
demonstrate the frequency of the conduct, nor does it establish a temporal
connection between discrete acts of attempted sexual intercourse. Therefore,
viewing this testimony in the light most favorable to the State, no rational juror
could have found, based upon this testimony alone, and without making
assumptions of facts not in evidence, that the defendant attempted to engage
in sexual intercourse with the complainant more than once “over a period of 2
months or more.” RSA 632-A:1, I-c.

To support its argument that the evidence was sufficient, the State
points to the complainant’s testimony that the defendant touched the intimate
parts of her body “on most nights.” Indeed, at trial, the complainant testified
that the defendant touched her breasts, her buttocks, and her vagina “on most
nights” and that such touching began about one month after the defendant
moved into the apartment and continued throughout his occupancy there.
Contrary to the State’s argument, however, this testimony does not establish,

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by implication or otherwise, that the defendant also attempted sexual
intercourse “on most nights.” Nothing in the complainant’s testimony
suggested that the instances of attempted sexual intercourse occurred with the
same frequency as the instances of touching the intimate parts of her body.
The complainant testified about each act of touching separately, and at no
point during that testimony did she mention attempted intercourse.

Consequently, the only evidence demonstrating the frequency of the
attempted sexual intercourse is the complainant’s testimony that “[s]ometimes
his pee pee would touch, he’d try to . . . put it in my vagina.” Because this
testimony was insufficient to establish that the defendant attempted sexual
intercourse more than once “over a period of 2 months or more,” we conclude
that the State failed to prove the essential elements of this pattern offense
beyond a reasonable doubt. Therefore, the trial court erred by failing to
dismiss the indictment on that basis. See RSA 632-A:1, I-c; Houghton, 168
N.H. at 273-74 (holding that because the evidence was insufficient with respect
to an essential element on some of the charges “it was error to submit those
charges to the jury”).

We must next address whether the error was plain. See Hanes, 171 N.H.
at 182. An error is plain when it was clear or obvious. See State v. Mueller, 166 N.H. 65, 69 (2014). We conclude that the error was plain because the
evidence was insufficient to establish that the attempted sexual intercourse
occurred more than once “over a period of 2 months or more,” an essential
element of the crime. See RSA 632-A:1, I-c; see also RSA 632-A:2, III. Further,
we conclude that the error affected the defendant’s substantial rights because
the trial court’s failure to dismiss the indictment resulted in the defendant’s
conviction. See Guay, 162 N.H. at 384. Finally, because the jury convicted the
defendant based upon insufficient evidence of guilt, allowing the defendant’s
conviction to stand would seriously affect the fairness and integrity of judicial
proceedings. See id. Accordingly, the trial court committed plain error, and we
reverse the defendant’s conviction on the pattern of attempted sexual
intercourse charge.

C. Review of Confidential Records

Finally, the defendant asks this court to review the confidential records
to determine whether, following in camera review, the trial court improperly
withheld certain of those records. On November 4, 2021, we ordered the trial
court to reconsider the confidential records in accordance with the standard
set forth in State v. Girard, 173 N.H. 619, 628-29 (2020). Thereafter, the trial
court concluded that it erred by failing to disclose one page of confidential
records, but that this error was harmless. The court declined to release the
remaining records, noting that the bulk of those records did not pertain to this
case.

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 We review the trial court’s decision on this issue for an unsustainable
exercise of discretion. Id. at 627. Based upon our review of the records, we
affirm the trial court’s determination that only one page of the records should
have been released. Because we reverse and remand on other grounds, we
need not address whether the court’s failure to release that page was harmless.
On remand, if the State decides to retry the defendant on the remaining
charges, the court should disclose that page to the parties. We offer no opinion
as to the admissibility of that document in the first instance.

IV. Conclusion

For the foregoing reasons, we reverse and remand. Any issues that the
defendant raised in his notice of appeal, but did not brief, are deemed waived.
State v. Bazinet, 170 N.H. 680, 688 (2018).

Reversed and remanded.

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

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