State of New Hampshire v. Nicholas Nieuwkoop

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0503, State of New Hampshire v.
Nicholas Nieuwkoop, the court on December 28, 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, Nicholas Nieuwkoop, appeals his conviction by a jury of aggravated
felonious sexual assault (AFSA), see RSA 632-A:2, I(m) (2016), arising out of a
sexual encounter with the victim when both were University of New Hampshire
(UNH) students. The defendant was indicted, in relevant part, for “having
sexual intercourse with [the victim] when, at the time of the sexual assault,
[the victim] indicated by speech or conduct that there was not freely given
consent to the performance of the sexual act.” The defendant contends on
appeal that the Superior Court (Howard, J.) erred by denying his motion to
dismiss and his post-trial motion for judgment notwithstanding the verdict
(JNOV), which included an alternative argument to set aside the verdict as
against the weight of the evidence. We affirm.

I

The jury could have found or the record otherwise supports the following
facts. In September 2020, the victim was a first-year student at UNH and lived
in a dorm with her roommate, L.H. C.S., a hometown friend of the victim who
also went to UNH, invited her to an off-campus party scheduled for September
19, 2020. Leading up to the party, the victim began drinking a “pretty big”
bottle of vodka. The victim brought the vodka with her to the party and
continued to drink it. The victim rode to the party with C.S. and some of his
other friends, including the defendant. The victim did not know the defendant.

Once at the party, the victim almost finished the bottle of vodka, drank
about one fourth of a bottle of wine, and “shotgunned” a beer. After drinking
the beer, the victim testified that she “black[ed] out,” meaning that she had no
further memory of the evening aside from “a very few spurts of things.” At the
party, C.S. observed the victim become intoxicated. He testified that on a scale
of one to ten, with ten being the most intoxicated he had ever seen someone,
that the victim was at a “nine or ten” by the time they left the party. C.S. told
men at the party, including the defendant, that the victim was “really drunk
and not to try anything on my friend.” C.S. decided to leave the party and
bring the victim to his nearby apartment to get her “away from drinking.”
 The defendant eventually arrived at the apartment, where the victim
continued to present as “really drunk” and could not speak coherently. The
victim indicated that she might need to throw up, so C.S. and the defendant
helped the victim to the bathroom because she could not manage on her own.
C.S. attempted to get the victim a ride back to her dorm. The defendant
volunteered to get an Uber to take the victim to her dorm as he was a Resident
Assistant (RA) at a dorm neighboring the victim’s dorm. The victim needed
help from both C.S. and the defendant to make her way from C.S.’s apartment
to the Uber as she was “too drunk.”

A group of students who knew the victim saw the defendant help her exit
the Uber outside the defendant’s dorm. The group noticed that the victim was
holding a trash bag in front of her and was walking unsteadily. The group
observed the victim to be very intoxicated and that she had a strapless bra
around her waist. The group observed the defendant help the victim walk
towards the defendant’s dorm. One student asked the defendant what he was
doing but the defendant did not respond. The student physically directed the
defendant and the victim towards the victim’s dorm. The defendant eventually
entered the victim’s dorm with the victim at 12:48 a.m. Although the victim’s
phone was later found in the bathroom just past her dorm room, the victim
never entered her dorm room that night. At 12:57 a.m., the defendant
returned to the defendant’s dorm with the victim.

At 1:00 a.m., the defendant began texting with L.H. The defendant said
that the victim was in his room, was “really f**ked up,” and could “barely
walk.” The defendant said that he wanted “her to sit down and sober up.” The
defendant informed L.H. that he was an RA and “promise[d] [the victim is]
good” and that he would not “let anything happen to her.” L.H. told the
defendant that she did not know him and did not “want anything to happen to
[the victim] at all . . . because [the victim] cannot make a decision like that
right now.” The defendant responded that he understood and that he was “not
trying to do anything like that.”

The victim awoke the next morning in the defendant’s bed, wearing only
a thong, with the defendant’s arms around her. The victim immediately
vomited into a nearby trash bin. She testified that she felt “terrible” and
intoxicated. She said that certain memories from the evening came back to her
after waking up. She recalled throwing herself into a bathroom stall in her
dorm and that she had urinated herself. She remembered a brief instant of
opening her eyes and feeling the defendant having sex with her at a time when
it was still dark outside. She also remembered waking up and vomiting all over
the bed when “it was transitioning into the morning.”

After waking up, the victim noticed that the bed and windowsill, along
with her body and hair, were covered in her vomit. When she put on her
clothes, she noticed her “pants were covered in urine.” She left the room and

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went to her dorm. Once there, she retrieved her phone from another resident
who had found it in a bathroom stall in the victim’s dorm. Through Snapchat,
she asked the defendant if they had sex and if they used protection. The
defendant answered yes to both questions. The victim subsequently reported
the sexual encounter to UNH health officials, and, ultimately, the police.

At trial, following the close of the State’s case, the defendant moved to
dismiss the indictment for insufficiency of the evidence. The defendant argued
that the indictment required evidence of affirmative speech or conduct
communicating a lack of consent and that the evidence showed neither. The
State argued that because the defendant acknowledged the victim was severely
intoxicated at 1:00 a.m., and the sex occurred sometime between 1:00 a.m.
and dawn, that “reason and common sense would lead any rational juror to
find that . . . that situation is not going to change so significantly . . . after 1
a.m.” The State argued that the statute does not require affirmative action and
that the victim’s conduct implied “that she does not consent because she can’t
consent at that stage because she is too intoxicated.” The trial court denied
the motion. The jury returned a verdict of guilty on the “consent not freely
given” AFSA charge.

Following the jury verdict, the defendant moved for JNOV, and
alternatively, to set aside the verdict as against the weight of the evidence,
again challenging the sufficiency of the evidence of the victim’s lack of consent.
The trial court denied the motion, finding that “[t]he jury could have concluded,
beyond a reasonable doubt, that the defendant knew that the victim’s level of
intoxication, as demonstrated by her conduct, rendered her unable to exercise
a reasonable judgment as to the sexual act.” This appeal followed.

II

On appeal, the defendant first argues that the evidence was insufficient
because: (1) the window of time during which the sexual intercourse could have
occurred was too long for the jury to rule out the rational conclusion that by
the time it occurred, the defendant was not subjectively aware that the victim
was incapable of freely giving consent; and (2) the State presented no evidence
of conduct at the time of the sexual intercourse indicating lack of ability to
freely consent.

When considering a challenge to the sufficiency of the evidence, we
objectively review the record to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State. State v. Saintil-Brown, 172 N.H. 110, 117
(2019). The trier of fact may draw reasonable inferences from facts proved as
well as from facts found as the result of other inferences, provided they can be
reasonably drawn therefrom. Id. We examine each evidentiary item in the

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context of all the evidence, and not in isolation. Id. Because a challenge to the
sufficiency of the evidence raises a claim of legal error, our standard of review
is de novo. Id.

The defendant has the burden of demonstrating that the evidence was
insufficient to prove guilt. Id. When, as in this case, the evidence as to one or
more elements of the charged offense is solely circumstantial, a defendant
challenging sufficiency must establish that the evidence does not exclude all
reasonable conclusions except guilt. Id. The proper analysis is not whether
every possible conclusion consistent with innocence has been excluded, but,
rather, whether all reasonable conclusions based upon the evidence have been
excluded. Id.

RSA 632-A:2, I(m) provides:

I. A person is guilty of the felony of aggravated felonious sexual assault if
such person engages in sexual penetration with another person under
any of the following circumstances:
...
(m) When at the time of the sexual assault, the victim indicates by
speech or conduct that there is not freely given consent to performance
of the sexual act.

We have defined “indicate” in this context to mean “to show the probable
presence or existence . . . of: give fair evidence of: be a fairly certain sign or
symptom of: reveal in a fairly clear way.” State v. Lisasuain, 167 N.H. 719, 723
(2015) (quotations omitted). We have defined “conduct” in this context to mean
“personal behavior, whether by action or inaction, verbal or nonverbal; the
manner in which a person behaves; collectively, a person’s deeds.” Id.
(quotations and emphasis omitted). Therefore, to convict the defendant of this
AFSA variant, the State needed to prove that at the time of the sexual act, the
victim revealed in a fairly clear way behavior demonstrating that consent to
performance of the act was not freely given.

The defendant points out that there was an approximately eight-hour
window for the sexual intercourse to occur in this case, between around 1:00
a.m. when the victim and the defendant arrived at his dorm room and around
9:00 a.m. when they awoke. The defendant suggests this window of time is
limited by the victim’s testimony that the sex occurred while it was still dark,
shortening the window by a couple of hours. From this, the defendant
concludes that the evidence fails to rule out the “reasonable conclusion that
[the defendant] did not know that [the victim] was still incapable of exercising
reasonable judgment” at the time of intercourse. Relatedly, the defendant also
argues that “[t]here was absolutely no evidence of [the victim] manifesting any
conduct at the time of the intercourse indicating her inability to consent due to
continuing alcohol intoxication.”

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 Although there was no direct evidence at trial that at the time of the
intercourse the victim demonstrated by her conduct that she could not freely
consent, there was overwhelming circumstantial evidence on this point. As
described above, the victim’s severe intoxication was evident throughout the
night, and notably, was directly observed by the defendant on multiple
occasions. Indeed, the defendant confirmed by text messages beginning at
1:00 a.m. that the victim was severely intoxicated such that she could “barely
walk” while she was with him in his dorm room. The victim testified that upon
waking up the next morning, she felt intoxicated and immediately vomited.
Her lack of memory of the night’s events further indicates her severe
intoxication over the course of the night. When the evidence is viewed in the
light most favorable to the State, it is not reasonable to conclude that the
victim had sobered to a point where she could freely give consent at the time
the defendant had sex with her. Accordingly, we conclude the defendant has
failed to meet his burden to demonstrate that the evidence was insufficient to
prove guilt.

The defendant next challenges the trial court’s denial of his motion to set
aside the verdict as against the weight of the evidence. Although a verdict may
be supported by sufficient evidence, a trial court may nevertheless conclude
that the judgment is against the weight of the evidence. State v. Spinale, 156
N.H. 456, 465 (2007). The weight of the evidence is its weight in probative
value, not the quantity or amount of evidence. Id. It is basically a
determination of the trier of fact that a greater amount of credible evidence
supports one side of an issue or cause than the other. Id.

We review a trial court’s denial of a motion to set aside the verdict as
against the weight of the evidence under our unsustainable exercise of
discretion standard. State v. Durgin, 165 N.H. 725, 734 (2013). In so doing,
we give deference to the trial court’s decision. Id. “After all, the trial judge
conducts the trial, observes the witnesses and the jury, and is in a better
position than we are to evaluate the whole atmosphere of a trial, much of
which cannot be gleaned from that portion of the proceedings that is reducible
to a cold record.” Id. (quotation omitted). “Whether we, sitting as trial judges,
would have reached the same or a different result is immaterial.” Id. (quotation
omitted). “In the doubtful cases, we should defer to the trial court’s
judgment.” Id. (quotation and brackets omitted).

Having reviewed the record, we conclude that it establishes an objective
basis to support the trial court’s decision denying the defendant’s motion to set
aside the verdict. Accordingly, we will not disturb that decision. See id. at
735. “This is not one of those exceptional cases where the jury failed to give
the evidence its proper weight. Rather this was a classic jury case, in which
the jury examined and properly weighed the conflicting evidence to conclude”
that the defendant committed the AFSA for which he was convicted. See id.
(quotations omitted). Any issues that the defendant raised in his notice of

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appeal, but did not brief, are deemed waived. See State v. Bazinet, 170 N.H.
680, 688 (2018).

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Timothy A. Gudas,
Clerk

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