State v. Rouleau

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
Case No. 2021-0310
Citation: State v. Rouleau, 2024 N.H. 2

THE STATE OF NEW HAMPSHIRE

v.

TIMMY J. ROULEAU

Argued: September 14, 2023
Opinion Issued: January 19, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Elizabeth C. Woodcock, senior 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.

MACDONALD, C.J.

¶1 The defendant, Timmy J. Rouleau, appeals his convictions, following
a jury trial in Superior Court (Howard, J.), on two counts of pattern aggravated
felonious sexual assault (AFSA), see RSA 632-A:1, I-c (2016), one count of
AFSA, see RSA 632-A:2, I(j)(1) (2016 & Supp. 2022), one count of attempted
AFSA, see RSA 632-A:2, I(j)(1); RSA 629:1 (2016), two counts of felonious
sexual assault, see RSA 632-A:3, III(a)(1) (2016 & Supp. 2022), and two counts
of sexual assault, see RSA 632-A:4, I(b) (2016 & Supp. 2022). The charges
allege that the defendant sexually assaulted the victim several times when she
was between the ages of ten and thirteen. At issue in this appeal is the trial
court’s admission of evidence about an Amazon “wish list” containing sexually
oriented items. The defendant argues that the trial court erred in admitting
the evidence because it was not intrinsic to the charged crimes. The State
counters that the evidence was intrinsic to the charged crimes but that, if the
trial court erred, any error in the admission of the evidence was harmless. We
conclude that the evidence was not intrinsic, and thus was admitted in error,
but the error was harmless beyond a reasonable doubt. Therefore, we affirm.

I

¶2 The jury could have found or the record otherwise supports the
following facts. The victim was born in June 2005 and has three younger half-
siblings on her mother’s side. The defendant is not the victim’s father. In early
2016, the victim’s mother was in a relationship with the defendant. In March
2016, when the victim was ten years old and in fifth grade, the victim’s mother
and her children moved to an apartment building in another town in order to
be closer to the defendant. The defendant lived in the same building on the
same floor in another unit. The victim and her family primarily spent time at
the defendant’s apartment during this period.

¶3 Approximately one to two months after moving, the victim was asked
by the defendant to cuddle with him on the living room couch. At the time, no
one else was present in the room. While cuddling, the defendant put his hand
under the victim’s shirt, touching her breasts. The defendant then moved his
hand into her shorts, inside her underwear, and digitally penetrated her
vagina. The same assaults subsequently occurred “quite frequently.” At first,
the assaults occurred “almost every day.” Later, they would occur between
“every day” and “every other day,” when others in the household were absent.
The victim estimated that the assaults occurred “a few hundred” times. The
victim testified that the assaults always occurred around the same time of day,
in the late afternoon after she arrived home from school and before the
defendant would leave for work.

¶4 The victim recalled two specific incidents that varied from the rest.
The first occurred in late 2016 when she stayed home sick from school and the
defendant suggested they watch Netflix in his bed. Once in bed, the defendant
began assaulting the victim as he had on previous occasions. The defendant
then lifted the victim’s shirt and put his mouth on her breasts. The defendant
also grabbed the victim’s wrist and “moved [her] hand up and down on his
penis.” The second incident occurred in sixth or seventh grade when, while

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digitally penetrating the victim’s vagina, the defendant asked the victim if she
liked what he was doing to her. She replied that she did not, but he “didn’t
stop.” The victim testified that this incident was noteworthy as it was “out of
character” for the defendant to say something while assaulting her.

¶5 The assaults stopped sometime during seventh grade when the
victim began isolating herself from the defendant by staying in her room,
staying after school for activities, and spending time with friends outside the
apartment. During this period, the victim’s mother noticed that the victim
became more withdrawn and spent more time in her bedroom. The victim did
not want to be home if her mother was not present. If the victim’s mother went
somewhere, the victim would want to go with her, which upset the defendant.
The victim testified that during this period, the defendant frequently asked her
to join him on the couch and she rejected his offers. The defendant got upset
at the rejections and tried to make the victim feel guilty.

¶6 In November 2017, the victim’s family and the defendant moved into
a three-bedroom apartment together. The victim testified that after this move,
no abuse occurred at the apartment until the morning of April 3, 2019.

¶7 On April 3, 2019, at around 2:00 a.m., the victim arrived home with
her mother, returning from a school trip. The defendant was sleeping on the
couch in the living room. Because the victim was exhausted and her bed had
folded laundry on it, the victim’s mother told the victim “to come sleep in my
room with me.” The victim fell asleep in her clothes with her mother in her
mother’s bed.

¶8 The victim awoke to the defendant being in the bed and holding her
from behind. The defendant touched her breasts and digitally penetrated her
vagina. The victim attempted to get her mother’s attention but was unable to
do so. The defendant moved the victim’s shorts and put his penis between her
legs, moving it back and forth. The victim testified that “[i]t felt like he was
trying to put it into my vagina,” “it felt like the tip of the penis had gone in, but
not the whole thing,” and “it hurt” while it was happening. The victim
estimated that the assault went on for twenty or thirty minutes until she began
crying and her mother awoke. The defendant turned over “as if nothing was
happening.” The victim’s mother brought the victim downstairs and asked her
what happened. The victim’s mother testified that the victim told her “that [the
defendant] had touched her boob, and that his penis was in between her legs.”
The victim’s mother testified that the victim was very upset while describing
what the defendant had done.

¶9 The victim’s mother returned back to her room and confronted the
defendant with what the victim had told her. She asked him what had
happened and he said “he didn’t remember,” “[h]e didn’t know, and that he
wouldn’t do anything to hurt the kids.”

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 [¶10] The trial court conducted a two-day jury trial in June 2021. At
trial, the victim and the victim’s mother, among others, testified for the State.
The defendant testified in his own defense, denying the allegations. The jury
returned verdicts of guilty on all counts. This appeal followed.

II

¶11 The challenged testimony occurred during the victim’s direct
examination on the first day of trial. After the victim testified about the abuse
that transpired beginning in the spring of 2016, the State asked whether there
were “other times during this timeframe when [the defendant] would make any
kind of sexual reference to you?” Defense counsel asked to approach the
bench. At the bench, defense counsel noted that the State had not filed a
pretrial motion in limine seeking to introduce evidence under New Hampshire
Rule of Evidence 404(b) and asked for a proffer of what the State intended to
elicit. The State proffered that the victim would describe that the defendant
had given her an Amazon wish list and asked her to rank the items, including
sexually oriented items, and that “[i]t happened in the midst of this timeframe.”
The State argued that the evidence was “intrinsic to the sexual assault.” The
State argued that it was more probative than prejudicial “because it [went] to
the fact that the defendant had a sexual relationship with [the victim] and was
making these kinds of sexual references to her even when he wasn’t molesting
her, and it’s no more prejudicial than pretty much any of the other things that
we’ve gone into thus far.” The defendant argued that the wish list evidence
“seem[ed] like . . . a grooming-type behavior” that “squarely” fell under Rule
404(b) and that it was “highly prejudicial.” The trial court overruled the
defendant’s objection, finding that the evidence was not Rule 404(b) evidence
and that it “[was] intrinsic, and it [was] inextricably intertwined with” the
charged conduct.

¶12 The victim then testified that when she and her siblings made their
Christmas lists, she would have to use an Amazon wish list rather than write
out what she wanted like the other children. The defendant added items to the
list for her to sort through to determine if she wanted them. Many of the items
added by the defendant were sexually oriented, including sex toys, lingerie, a
chocolate lollipop in the shape of a penis, and other similar items. She was not
allowed to delete any of the items from the list and instead had to rank them by
her preference. The victim testified that she was particularly scared that the
defendant would purchase the lollipop for either Christmas or her birthday,
though he did not. The victim did not say when the list was created or
discussed.

¶13 On appeal, the defendant argues that the trial court erred in
admitting the evidence because it was not intrinsic to the charged crimes. We
review the trial court’s ruling on the admissibility of evidence for an
unsustainable exercise of discretion, and will reverse only if it was clearly

4
untenable or unreasonable to the prejudice of the defendant’s case. State v.
Papillon, 173 N.H. 13, 24 (2020). In applying our unsustainable exercise of
discretion standard of review, we determine only whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made. State v. Letarte, 169 N.H. 455, 461 (2016).

¶14 The proper test to apply in deciding the admissibility of “similar
acts” or “other acts” evidence depends upon whether the evidence in question
is “intrinsic” or “extrinsic” evidence. Papillon, 173 N.H. at 24 (quotations
omitted). Rule 404(b)(1) provides: “Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that the
person acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” N.H. R. Ev. 404(b)(1).
The rule, by its very terms, excludes only extrinsic evidence — evidence of
other crimes, wrongs, or acts — whose probative value exclusively depends
upon a forbidden inference of criminal propensity. Papillon, 173 N.H. at 24.

¶15 “Other act” evidence is “intrinsic,” and therefore not subject to Rule
404(b), when the evidence of the other act and the evidence of the crime
charged are “inextricably intertwined,” both acts are part of a “single criminal
episode,” or the other acts were “necessary preliminaries” to the crime charged.
Id. at 24-25 (quotations omitted). “Intrinsic” or “inextricably intertwined”
evidence will have a causal, temporal, or spatial connection with the charged
crime. Id. at 25 (quotations omitted). Typically, such evidence is a prelude to
the charged offense, is directly probative of the charged offense, arises from the
same events as the charged offense, forms an integral part of a witness’s
testimony, or completes the story of the charged offense. Id. This type of
evidence is admissible under the rationale that events do not occur in a
vacuum, and the jury has a right to hear what occurred immediately prior to
and subsequent to the commission of the charged act so that it may
realistically evaluate the evidence. Id.

¶16 Because the trial court made its ruling at the bench conference, we
consider only the evidence presented until that point in the trial as well as the
State’s proffer. We so limit our review to avoid the pitfall of justifying the
court’s ruling upon the defendant’s response at trial to the evidence. See State
v. Nightingale, 160 N.H. 569, 573 (2010).

¶17 We conclude that any connection between the wish list evidence
and the charged offenses is too attenuated to render the evidence intrinsic to
the charged offenses. See Papillon, 173 N.H. at 25. There was no evidence
before the trial court that the wish list was connected to the commission of the
charged acts. The victim did not mention the wish list evidence when she
testified about the assaults. At the bench conference, the State did not
articulate a specific connection between the evidence and the charged assaults.

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Therefore, the evidence was not inextricably intertwined with the charged
crimes and was not part of a single criminal episode. Cf. State v. Wells, 166
N.H. 73, 78 (2014) (reasoning that the challenged testimony “described an act
that was inextricably intertwined with the charged offense because the acts
were ‘part of a single criminal episode,’” and the evidence “was necessary to
complete the story of the charged sexual intercourse” (citation omitted));
Nightingale, 160 N.H. at 574 (emphasizing that the challenged conversations
and the charged offense were “part of a single criminal episode” in concluding
that Rule 404(b) did not apply (quotations and emphasis omitted)). The
evidence was not necessary to complete the story of the defendant’s sexual
assaults. See Papillon, 173 N.H. at 25. Prior to the challenged testimony, the
victim had already completed her testimony about the abuse that took place
between March 2016 and November 2017. Further, the wish list evidence was
not directly probative of the charged assaults as it shed no light on whether the
assaults occurred. See id.

¶18 Although evidence that “forms an integral part of a witness’s
testimony” about the charged offenses may also suggest that the evidence is
intrinsic to the charged crimes, here the wish list evidence falls short of
forming an integral part of the victim’s testimony that the defendant sexually
assaulted her. See id. at 26 (quotation omitted). We are not persuaded that
excluding it would render the victim’s testimony regarding the charged crimes
unintelligible or create a vacuum in the story. See id. The evidence was not
necessary or essential to enable the jury to “realistically evaluate her
testimony” about the charged crimes. See id. (quotation omitted).

¶19 In analyzing the applicability of the intrinsic evidence exception to
Rule 404(b), we remain mindful of the purpose of Rule 404(b), which is to
“ensure that the defendant is tried on the merits of the crime as charged and to
prevent a conviction based upon evidence of other crimes or wrongs.” Id. at 28
(quotation omitted). The intrinsic evidence exception cannot serve as a
backdoor to circumvent this purpose. Id. Here, in deciding whether to convict
the defendant for sexually assaulting the victim, the jury was permitted to
consider evidence that the defendant created an Amazon wish list with sexually
oriented items and required the victim to review and rank the list. Because
this evidence of other acts was not intrinsic to the charged offenses, and thus
not an exception to Rule 404(b), Rule 404(b) governs the evidence’s
admissibility, and therefore we determine that the trial court unsustainably
exercised its discretion in concluding otherwise. See id. Nonetheless, we agree
with the State that any error in admitting the evidence was harmless beyond a
reasonable doubt.

¶20 To establish harmless error, the State must prove beyond a
reasonable doubt that the error did not affect the verdict. State v. Boudreau, 176 N.H. 1, 11 (2023). This standard applies to both the erroneous admission
and exclusion of evidence. Id. We consider the alternative evidence presented

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at trial as well as the character of the erroneously admitted evidence itself. Id.
To determine whether the State has proven beyond a reasonable doubt that an
error did not affect the verdict, we must evaluate the totality of the
circumstances at trial. Id. at 11-12.

¶21 The factors that we consider in assessing whether an error did not
affect the verdict include, but are not limited to: (1) the strength of the State’s
case; (2) whether the admitted or excluded evidence is cumulative or
inconsequential in relation to the strength of the State’s case; (3) the frequency
of the error; (4) the presence or absence of evidence corroborating or
contradicting the erroneously admitted or excluded evidence; (5) the nature of
the defense; (6) the circumstances in which the evidence was introduced at
trial; (7) whether the court took any curative steps; (8) whether the evidence is
of an inflammatory nature; and (9) whether the other evidence of the
defendant’s guilt is of an overwhelming nature. Id. at 12. No one factor is
dispositive. Id. We may consider factors not listed above, and not all factors
may be implicated in a given case. Id.

¶22 Here, the other evidence of the defendant’s guilt was overwhelming.
As set forth above, the victim provided direct testimony of the defendant’s
repeated sexual assaults spanning approximately nineteen months, including
detailed testimony about two particular assaults that occurred during that
period, as well as a thorough account of the final assault that prompted the
investigation. See RSA 632-A:6, I (2016) (“The testimony of the victim shall not
be required to be corroborated in prosecutions under this chapter.”). Further,
the victim’s mother corroborated aspects of the victim’s testimony, including
observing that the victim began avoiding the defendant beginning at age twelve
or thirteen. She also provided an account of the events immediately following
the April 3 assault.

¶23 To be sure, the wish list evidence may have suggested to the jury
that the defendant was more likely to have engaged in sex-related misconduct.
But, the most damaging evidence against the defendant was the victim’s
detailed descriptions of the assaults. See State v. Lemieux, 136 N.H. 329, 331-
32 (1992) (explaining that “the evidence most damaging to the defendant was
the victim’s description, in vivid detail, of the various sexual acts that the
defendant forced her to perform on a regular basis”); see also State v. Anctil, 134 N.H. 623, 626 (1991) (reasoning that “the testimony that was most
damning to the defendant was [the victim’s] descriptive account of the sexual
assaults”); State v. Thibedau, 142 N.H. 325, 329 (1997) (finding other evidence
overwhelming in part because it “includes the victim’s detailed testimony of the
assault, including what she was wearing, what the defendant said, and how
the defendant perpetrated the assault”). Further, the State’s case was not
based on circumstantial evidence; instead, it was based on direct evidence from
the victim’s testimony. Cf. State v. Woodbury, 124 N.H. 218, 222 (1983)

7
(finding no harmless error where inadmissible statements were admitted and
the other evidence in the case was circumstantial).

¶24 In addition, at no point during its cross-examination of the victim
did the defense impeach the victim’s credibility with prior inconsistent
statements related to the charges. See Boudreau, 176 N.H. at 13 (“At no point
during its cross-examination of the victims did the defense impeach the
victims’ credibility with prior inconsistent statements related to the alleged
AFSA charges.”); cf. State v. Reynolds, 136 N.H. 325, 329 (1992) (“Given that
the case was ultimately and essentially a credibility contest between the victim
and the defendant, and that the victim’s credibility had been attacked by the
defense with some success, we are not convinced beyond a reasonable doubt
that the erroneously admitted lay testimony did not influence the jury’s
determination to believe the victim over the defendant.”).

¶25 In contrast, the State impeached the defendant on a few occasions
during its cross-examination of the defendant. During his direct testimony, the
defendant maintained that despite having a drink of bourbon, he was not
intoxicated on the night of April 2, 2019. On cross-examination, however, the
defendant admitted that, in addition to the bourbon, he had also taken a
sleeping pill and a tramadol pain pill before sleeping that night. The State
confronted the defendant with a recorded statement he made to police where
he stated that on the morning of April 3, 2019, he awoke to the victim’s mother
screaming at him “and I’m like, I’m still freaking drugged out of my head from
the freaking tramadol.” Further, the State later confronted the defendant with
another recorded statement to police where he said, “tramadol makes you lose
consciousness. Makes you dizzy. You don’t know what the hell’s going on.
You can actually sleepwalk.” The defendant responded that he did not “recall
saying that whatsoever, to be honest.” When confronted with the transcript,
the defendant testified, “[t]hat’s something I would not say.” The jury could
have found that these instances of impeachment damaged the defendant’s
credibility, calling into question his testimony denying that the charged
conduct occurred. Against this record, the admission of the wish list evidence
was of little consequence. See Boudreau, 176 N.H. at 13.

¶26 There are additional reasons to believe the error in this case was
harmless beyond a reasonable doubt. First, the wish list evidence comprised a
small portion of the victim’s testimony and was not mentioned in the State’s
closing argument. Put another way, the evidence was not “lengthy,
comprehensive, or directly linked to a determination of the guilt or innocence of
the defendant.” Thibedau, 142 N.H. at 330 (quotation omitted). Second, the
evidence did not work to directly bolster the victim’s credibility. See Lemieux,
136 N.H. at 331 (reasoning that the challenged testimony “was not directed to
a specific inconsistency in the victim’s testimony in an effort to explain it”).
Third, the evidence was not used to corroborate the victim’s testimony
regarding the charged conduct. Cf. State v. Cooper, 168 N.H. 161, 167 (2015)

8
(finding harmless error where, although the challenged evidence corroborated a
key witness’s testimony, other evidence in the case also corroborated the
testimony). Finally, while the wish list evidence is, as defense counsel
described it at oral argument, “unique and odd,” we cannot say that it is
inflammatory. Cf. State v. Whittaker, 138 N.H. 524, 530 (1994) (holding that
erroneously admitting “graphic” testimony that the defendant committed a
“brutal and sadistic assault” to be error that was not harmless); State v.
Richardson, 138 N.H. 162, 169 (1993) (“[T]he defendant’s graphic boasting
about killing a police officer was so inflammatory that we cannot say beyond a
reasonable doubt that it had no effect on the jury’s verdict.”). Therefore, we
hold that, based upon the totality of the circumstances, the trial court’s error
in admitting the wish list evidence did not affect the verdicts and thus was
harmless beyond a reasonable doubt. See Boudreau, 176 N.H. at 14.

Affirmed.

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

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