State of New Hampshire v. Robert Letoile

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0239, State of New Hampshire v. Robert
Letoile, the court on June 27, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Robert Letoile, appeals his conviction,
following a bench trial in Superior Court (Attorri, J.), on charges of aggravated
felonious sexual assault and felonious sexual assault for conduct committed
between 2005 and 2010. See RSA 632-A:2 (2007 & Supp. 2009) (amended
2012, 2014, 2017, 2018, 2020); RSA 632-A:3 (Supp. 2009) (amended 2010,
2014, 2017, 2020). He argues that the trial court erred by: (1) not dismissing
the case under the double jeopardy clauses of the State and Federal
Constitutions; (2) finding that his prior felony convictions were admissible
under New Hampshire Rule of Evidence 609; and (3) not finding that his trial
counsel provided ineffective assistance under the State and Federal
Constitutions. We affirm.

We first address the defendant’s double jeopardy argument. The
defendant argues that the State was precluded from prosecuting him under the
criminal collateral estoppel doctrine because a jury’s acquittal of him on sexual
assault charges against a different alleged victim in 2011 means that the jury
necessarily determined that the conduct charged in this case “simply did not
occur.” We disagree.

We address the defendant’s argument first under the New Hampshire
Constitution. State v. Ball, 124 N.H. 226, 231-33 (1983). Under Part I, Article
16 of the New Hampshire Constitution, the criminal collateral estoppel doctrine
“mandates that an issue of ultimate fact that has been fully tried and
determined cannot again be litigated between the parties in a future
prosecution.” State v. Hutchins, 144 N.H. 669, 671 (2000). The subsequent
prosecution will be barred, however, only if “an essential element of the second
prosecution was necessarily determined in the defendant’s favor at the first
trial.” Id. (quotation omitted). The defendant bears the burden to establish
that an essential element of the charged offenses was necessarily resolved in
the prior case. Id. We conclude that the defendant has not met that burden.

The victim in this case is a different person than the alleged victim in the
2011 trial. As the Trial Court (Honigberg, J.) observed in denying the motion to
dismiss, the acts charged in the 2011 trial ― that the defendant touched the
alleged victim’s buttocks on multiple occasions ― were qualitatively different
than the acts for which he was convicted in this case ― that the defendant
intentionally touched the victim’s genital opening and used her hand to rub his
penis. Indeed, the defendant emphasized in his 2011 trial that the alleged
victim only claimed that the defendant had touched the alleged victim’s
buttocks, and did not claim that the defendant had touched the alleged victim’s
genitals or had exposed himself to the alleged victim. Moreover, the defendant
defended the charges in 2011 by claiming that incidents of touching the alleged
victim’s buttocks were innocent acts of “tickling” and “teasing” and, thus, that
he had not acted with the requisite state of mind. Under these circumstances,
we cannot conclude that the jury necessarily determined that the acts charged
in this case did not occur when it acquitted the defendant of touching a
different victim’s buttocks for the purpose of sexual gratification in 2011. See
id. at 671-72. Because the Federal Constitution provides the defendant no
greater protection than does the State Constitution under these circumstances,
see id. at 671; Ashe v. Swenson, 397 U.S. 436, 443-46 (1970), we reach the
same result under the Federal Constitution.

We next address whether the trial court erred by admitting the
defendant’s prior felony convictions under Rule 609. Under Rule 609, evidence
that a defendant in a criminal trial in which the defendant testifies was
previously convicted of a crime punishable by imprisonment for more than one
year generally must be admitted to impeach the defendant “if the probative
value of the evidence outweighs its prejudicial effect to that defendant.” N.H.
R. Ev. 609(a)(1)(B). We review the trial court’s decision to admit evidence of a
witness’s prior conviction under Rule 609 for an unsustainable exercise of
discretion. State v. Mayo, 167 N.H. 443, 457 (2015). To establish an
unsustainable exercise of discretion, the defendant must demonstrate that the
ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

In 2010, the defendant was originally charged with sexually assaulting
the victim. In 2011, however, the State entered nolle prosequi on the 2010
charges “due to concerns about the emotional impact it would have on [the
victim] to testify at trial,” and in 2012, the defendant was convicted on charges
of possessing child pornography. At the time of trial in this case, the defendant
remained incarcerated on the 2012 child pornography convictions. The State
filed a motion in limine seeking to admit evidence of the 2012 felony
convictions in the event that the defendant testified, stipulating that, because
the nature of the child pornography convictions was “similar to the charged
offenses and may appeal to a jury’s sympathies,” it would “only inquire . . .
whether [the defendant had] been convicted of felony offenses and [would] not
seek to introduce any information regarding the underlying offense[s],” and
that it would agree to a limiting instruction. The Trial Court (Honigberg, J.)
granted the motion, as limited by the State’s stipulation.

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 The defendant argues that, because the State would not have had the
benefit of the 2012 child pornography convictions had it proceeded to trial on
the original charges in 2011, it gained a “tactical advantage” by entering nolle
prosequi and recharging the defendant years later. Accordingly, the defendant
argues that the trial court unsustainably exercised its discretion by allowing
the State to impeach him with the 2012 child pornography convictions. As the
trial court observed, however, the purpose of Rule 609(a)(1)(B) is to ensure that
the defendant is provided a fair trial in which the trier of fact has relevant
information to evaluate the credibility of witnesses, not “to put us in the place
where we would have been had we tried the case right after [the criminal
conduct] happened.” The defendant cites no authority standing for the
proposition that a trial court cannot allow a defendant to be impeached under
Rule 609(a)(1)(B) if the State chooses not to prosecute the defendant at an
earlier time, and the defendant is then convicted on unrelated charges. Nor are
we aware of any such authority.

Here, by testifying that he did not engage in the sexual assaults
described by the victim, the defendant placed his credibility squarely at issue,
thereby making the probative value of the convictions high. See id. at 458-59.
Moreover, the State stipulated that it would not introduce evidence as to the
nature of the 2012 felony convictions and would agree to any limiting
instruction the court deemed appropriate, thus ensuring that the prejudicial
effect of the convictions would be minimal. See id. at 459. We note that the
defendant ultimately waived his right to a jury trial. On this record, we cannot
conclude that the trial court’s decision to grant the State’s motion in limine
was clearly untenable or unreasonable to the prejudice of the defendant’s case.
Id. at 457.

Finally, we address the defendant’s argument that his trial counsel
provided constitutionally deficient representation for purposes of the State and
Federal Constitutions. We note that the defendant has not filed a collateral
proceeding seeking to challenge his conviction based upon ineffective
assistance of counsel. See State v. Thompson, 161 N.H. 507, 524-28 (2011).

We agree with the State that, because the defendant did not raise this
issue in his notice of appeal, it is not preserved. See State v. Blackmer, 149
N.H. 47, 49 (2003). Even if the defendant had preserved his ineffective
assistance of counsel claims, however, we conclude that this is not the
“extraordinary case” in which the factual basis for the claims “appears
indisputably on the trial record.” Thompson, 161 N.H. at 527 (quotation
omitted). Under the circumstances, we decline to address the defendant’s
ineffective assistance of counsel claims as part of this direct appeal, without

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prejudice to the defendant raising the claims in a collateral proceeding in
superior court. See id.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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