State v. Pierce

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap
Case No. 2022-0728
Citation: State v. Pierce, 2024 N.H. 12

THE STATE OF NEW HAMPSHIRE

v.

KIERRAN PIERCE

Argued: January 3, 2024
Opinion Issued: March 26, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Audriana Mekula, assistant attorney general, on the brief and orally),
for the State.

Sisti Law Offices, of Chichester (Wade Harwood on the brief, and Mark L.
Sisti orally), for the defendant.

MACDONALD, C.J.

¶1 The defendant, Kierran Pierce, appeals his convictions, following a
jury trial in Superior Court (Leonard, J.), of aggravated felonious sexual assault
(AFSA), see RSA 632-A:2, II (2016 & Supp. 2023), and attempted AFSA, see
RSA 632-A:2, I(l) (2016 & Supp. 2023); RSA 629:1 (2016). The defendant
argues that the trial court erred in denying his motions: (1) for a mistrial; (2) to
dismiss the attempted AFSA charge at the close of the State’s case; and (3) for
a view. We conclude that: (1) the trial court erred in denying the defendant’s
request for a mistrial; and (2) there was sufficient evidence to prove guilt on the
attempted AFSA charge. Accordingly, we reverse and remand.

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¶2 The jury could have found, or the record otherwise supports, the
following facts. When the complainant was ten years old, she lived in a sixty-
foot trailer home with her two siblings and her grandparents. In September
2016, the defendant, who is the complainant’s grandfather’s nephew, stayed
with them for a few days.

¶3 When the defendant arrived at the residence, he sat in the living
room with the complainant and her younger sibling and tried to converse with
them. The complainant’s grandmother was in the nearby kitchen and her
grandfather was in his bedroom. The complainant testified that the defendant
pulled her onto his lap. She stated that she sat on his lap sideways while he
had his arms around her. This made her uncomfortable. She eventually got
off his lap and went to her room.

¶4 After a few hours, the defendant entered the complainant’s bedroom
and sat on a reclining chair in the middle of the room. The complainant
testified that the defendant pulled her onto his lap. She tried to get off his lap
and he attempted to stop her. They struggled for a few minutes. She testified
that he positioned her so that her back was on his lap and she was facing
towards the ceiling. She testified that he pulled her pants down to her knees.
She stated that he began touching her all over her body, including the outside
of her vagina for a few seconds. She eventually pushed herself off of him and
left the room.

¶5 The complainant testified that later that weekend the defendant
entered her room and sat in the chair a second time. He pulled her onto his
lap again, and told her that “it was okay.” She further testified that he began
trying to touch her “all over” her body for a few minutes. She tried to get off his
lap but the defendant kept pulling her back to him. She stated that he
positioned her with her back on his lap facing the ceiling, pulled her pants
down to her knees, and touched her vagina beneath her underwear with his
hands. The complainant felt him try to put his fingers inside her vagina,
though he was not successful. He then grabbed her by the waist and lifted her
body toward him. As this happened, she saw his face get closer to her vagina.
She was able to kick and push herself away from him before he touched her
further. She pulled up her pants and ran to her grandparents’ room.

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 [¶6] She told her grandparents what happened, but her grandfather did
not believe her. She wrote a note explaining what happened and gave it to her
grandfather. The grandfather testified that the note said that the defendant
“touched her privates.” Despite the complainant’s report and note, her
grandfather did not contact law enforcement.

¶7 In 2019, the complainant disclosed the defendant’s alleged conduct
to a counselor who reported it to the New Hampshire Division for Children,
Youth and Families (DCYF). The complainant’s grandfather produced the note
to a police officer during an interview.

¶8 The defendant was indicted on eight counts of sexual assault
charges. Four of the counts alleged conduct against the complainant, and four
alleged conduct against her younger sibling. Before trial, the trial court
granted an assented-to motion to sever the four counts involving the
complainant’s younger sibling.

¶9 The defendant filed a pretrial motion requesting a view of the
residence where the sexual assaults were alleged to have occurred. The trial
court denied the motion. After jury selection, the court heard further argument
on the motion. It did not change its prior ruling.

¶10 The trial court conducted a two-day jury trial in November 2022.
At trial, a police officer involved with the investigation testified. She stated that
the complainant’s grandfather handed her a note in response to her
investigative questions. She testified that the note “stated something to the
effect of, Kierran touched me and . . . that the children had been touched
inappropriately.” The defendant objected to the testimony and requested a
mistrial, arguing that the witness’s reference to “children, plural” that “had
been touched inappropriately” was similar to State v. Kerwin, 144 N.H. 357,
361 (1999) (holding that a mistrial was warranted after a witness testified that
the defendant had sexually assaulted another individual). The trial court
denied the motion, stating that it recalled the witness saying that the
defendant “touched the children” and that “the testimony so far has been that
he was very touchy with the children and handsy and all that conduct.”

¶11 After the State rested, the defendant moved to dismiss all four
charges against him. The State did not object to the dismissal of two of the
charges, which alleged digital penetration, for lack of evidence. The court
denied the defendant’s motion as to the remaining charges, which alleged that
the defendant touched the complainant’s vagina and attempted to put his
mouth on her vagina. The jury convicted the defendant on those charges. This
appeal followed.

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 II

¶12 We first address the defendant’s argument that the trial court erred
in denying his motion for a mistrial. The defendant contends that a mistrial
was required because the jury heard that the note indicated that the defendant
touched the intimate parts of both the complainant and her younger sibling
and because “[t]his clearly and unambiguously put before the jury that [the
defendant] was accused of nearly identical conduct against a second victim,
[the complainant’s younger sibling].” We conclude that the trial court erred.

¶13 A mistrial is appropriate when the circumstances indicate that
justice may not be done if the trial continues to a verdict. State v. Turcotte, 173 N.H. 401, 402 (2020). To justify a mistrial, the conduct must be more
than merely prejudicial; a mistrial based on the introduction of inadmissible
evidence is warranted only when the challenged evidence causes irreparable
injustice that cannot be cured by jury instructions. Id. at 402, 404-05. In this
context, when deciding whether a defendant suffered irreparable injustice, we
examine whether the inadmissible testimony unambiguously conveyed to the
jury that the defendant had committed an act which was criminal in nature.
Id. at 405.

¶14 We recognize that the trial court is in the best position to gauge the
prejudicial nature of the conduct at issue and has broad discretion to decide
whether a mistrial is appropriate. Id. at 403. We will not overturn the trial
court’s decision on whether a mistrial or other remedial action is necessary
absent an unsustainable exercise of discretion. Id.

¶15 We hold that the statement that “the children had been touched
inappropriately” was highly prejudicial and warranted a mistrial. See Kerwin,
144 N.H. at 360 (“It is well-settled that an incurable prejudice may result when
the testimony of a witness conveys to a jury the fact of a defendant’s prior
criminal offense. The infusion of such evidence into a trial is probably only
equalled by a confession in its prejudicial impact upon a jury.” (quotation
omitted)).

¶16 The State, and the trial court, acknowledged the prejudicial nature
of such evidence when the court granted the assented-to motion to sever the
charges involving the younger sibling. The motion stated that the defendant
“would suffer unfair prejudice if a single jury were to hear about two alleged
victims.” The prejudicial nature of the statement in this case is akin to other
cases in which we have held a mistrial to be warranted. See, e.g., id. at 361
(holding that “statement that ‘that man raped some girl’ was highly prejudicial
and warranted a mistrial”); State v. Woodbury, 124 N.H. 218, 221 (1983)
(holding that a mistrial was warranted where the testimony “explicitly revealed
to the jury inadmissible evidence of an identical charge which had been
previously filed against the defendant”); State v. LaBranche, 118 N.H. 176, 179

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(1978) (holding that testimony relating to a pending AFSA charge warranted a
new trial when “the jury could easily discern that the defendant was allegedly
culpable for other instances of criminal conduct closely related to the charge
before it”).

¶17 Here, given the complainant’s prior testimony about writing a note
explaining what had happened, the police officer’s testimony about the gist of
the note unambiguously conveyed to the jury that the defendant had allegedly
committed a sexual assault against another child, conduct similar to the
charged crimes. See Turcotte, 173 N.H. at 405 (“The justification for a mistrial
increases when the prior act identified is similar to the charged crime.”
(quotation omitted)). Accordingly, we hold that the trial court’s denial of the
request for a mistrial was an unsustainable exercise of discretion. Therefore,
the defendant’s convictions in this case are reversed and the case remanded.

¶18 We next address the defendant’s argument that the trial court erred
in denying his motion to dismiss the attempted AFSA charge because the
evidence was legally insufficient to convict. If the defendant were to prevail on
this argument, the Double Jeopardy Clauses of the State and Federal
Constitutions would bar a second trial on the attempted AFSA charge. See
State v. Ojo, 166 N.H. 95, 98 (2014) (“A determination, either at trial or on
appeal, that the prosecution has presented insufficient evidence on a given
charge necessarily amounts to an acquittal — and, thus, termination of
jeopardy — on that charge.”); Burks v. United States, 437 U.S. 1, 18 (1978)
(“the Double Jeopardy Clause precludes a second trial once the reviewing court
has found the evidence legally insufficient”). 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 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.

¶19 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.

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 [¶20] The attempted AFSA indictment alleged that the defendant “took a
substantial step toward the commission of the crime of [AFSA], in that he
pulled [the complainant’s] pants down and tried to put his mouth on her
vagina” and that he “acted purposely.” (Bolding omitted.) RSA 629:1, I, defines
“attempt” as follows:

A person is guilty of an attempt to commit a crime if, with a purpose that
a crime be committed, he does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission
constituting a substantial step toward the commission of the crime.

A “substantial step” is defined as “conduct that is strongly corroborative of the
actor’s criminal purpose.” RSA 629:1, II. “A person is guilty of the felony of
aggravated felonious sexual assault if such person engages in sexual
penetration with another person . . . [w]hen the victim is less than 13 years of
age.” RSA 632-A:2, I(l). “Sexual penetration” includes “[c]unnilingus.” RSA
632-A:1, V(a)(2).

¶21 The defendant argues that although the complainant testified that
he brought her vagina closer to his face, it was reasonable to conclude that he
either wanted a closer look at her genitals or wanted to smell her genitals. The
defendant asserts that because these conclusions are consistent with the
defendant not attempting cunnilingus, the evidence was legally insufficient to
sustain a conviction. The State counters that these explanations are not
rational conclusions and that, given the defendant’s actions throughout the
encounter, “[t]he only rational conclusion a jury could draw from this evidence
was that the defendant was next attempting to penetrate the [complainant’s]
vagina with his mouth.” We agree with the State.

¶22 Although the conclusions consistent with innocence put forward by
the defendant are possible, they are not reasonable based upon the evidence.
See State v. Folley, 172 N.H. 760, 769 (2020) (concluding “that the alternative
explanation suggested by the defendants cannot be reasonably drawn from the
evidence presented at trial”). We hold that the defendant has not met his
burden of demonstrating that the evidence was insufficient to prove guilt.
Accordingly, we affirm the trial court’s denial of the defendant’s motion to
dismiss the attempted AFSA charge.

¶23 Finally, because the issue may reoccur on remand, we discuss the
trial court’s denial of the defendant’s motion for a view. See State v.
Woodburn, 175 N.H. 645, 654 (2023). The defendant argues that the trial
court violated his right to present all proofs that may be favorable to himself,
N.H. CONST. pt. I, art. 15, and his right to due process, U.S. CONST. amend.
XIV and N.H. CONST. pt. I, art. 15. The State argues that the trial court
sustainably denied the defendant’s motion for a view, but even if it was error
for the trial court to do so, the error was harmless.

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 [¶24] In denying the motion for a view, the trial court stated that “[t]he
request for a view is denied given that the State, the defendant and the victim
have no control over the residence.” After jury selection, the court heard the
defendant further on his motion for a view. It then ruled that it would not
change its order denying the motion for a view. The court found “that these
third parties have a privacy interest, and for the Court to be coming in with 15
jurors, as well as the State of New Hampshire and people for the Defendant,
including the defendant, given the information that’s available to the Court, the
Court does not find that appropriate.” The court also concurred “with the State
that because it’s unknown as to what the condition is as compared to when the
alleged assaults occurred, the Court is concerned that it might create some
confusion with the jury.”

¶25 RSA 519:21 (2021) provides, in part: “In the trial of actions . . . in
which the examination of places or objects may aid the jury in understanding
the testimony, the court, on motion of either party, may, in their discretion,
direct a view of the premises by the jury, under such rules as they may
prescribe.” Accordingly, the decision whether to allow a view is within the
discretion of the trial court. Kallgren v. Chadwick, 134 N.H. 110, 115 (1991).
We will not disturb the court’s decision absent an unsustainable exercise of
discretion. See State v. Booton, 114 N.H. 750, 757 (1974) (holding that,
although “the basic layout might have been gleaned from photographs and
testimony, we cannot say it was an abuse of discretion for the trial court to
allow the view”). 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).

¶26 Here, neither the State nor defense counsel had seen the interior of
the trailer prior to trial. According to defense counsel, there were no pictures
taken of the interior. Further, neither the State nor the defendant knew who
the owners of the trailer were and thus did not determine if they would object
to a view being conducted. In short, the record is silent as to the state of the
interior of the trailer at the time of trial and the present owners’ willingness to
make the trailer available for a view. On remand, should a view be requested,
the parties may wish to develop these facts to assist the trial court in
determining whether a view should be granted.

Reversed and remanded.

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

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