State of New Hampshire v. Christopher Viveney

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0356, State of New Hampshire v.
Christopher Viveney, the court on June 13, 2025, 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(3). The
defendant, Christopher Viveney, appeals his convictions on two alternative
counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I(b), I(i)
(Supp. 2024). On appeal, the defendant argues that the Superior Court
(Delker, J.) erred in barring the defense from introducing certain text messages
between two witnesses who testified at trial and by sustaining a hearsay
objection to certain testimony proffered by the defendant. The defendant also
posits that the trial court may have erred in not disclosing information
contained in records the trial court reviewed in camera. We need not decide
whether either of the trial court’s evidentiary rulings was erroneous, because
we conclude that any purported error was harmless beyond a reasonable
doubt. In addition, our review of the records reviewed by the trial court in
camera supports its decision not to disclose the records it withheld.
Accordingly, we affirm.

The jury could have found the following facts. In March 2020, the
defendant lived in Manchester where he had a girlfriend and a young son. He
was also a friend of Tyler Brooks, whom he had known since his childhood. At
that time, Brooks had been dating the victim, who had recently turned twenty-
one, for approximately one month.

On the evening of March 14, 2020, Brooks and his roommate, Billy
Preston, hosted a gathering at Brooks’ residence to celebrate a birthday of a
friend’s brother. The victim attended the gathering with a number of Brooks’
friends whom she had not previously met. After drinking at Brooks’ residence
for about an hour, the group of approximately ten people went to a Manchester
bar where they had reserved private VIP tables. The victim testified that she
drank three cocktails at the bar, which was “crowded” and very busy.

Later that night, the defendant, who was not part of the group, appeared
at the bar, where he ran into Brooks who introduced him to the victim. At
trial, witnesses’ descriptions of the interaction between the defendant and the
victim that night varied. Brooks testified that after introducing the defendant
to the victim, the victim walked away, and the defendant exclaimed, “dude,
she’s so hot. Like, how did you score that one?” Brooks testified that the
defendant also made a comment about having a threesome with the victim, but
Brooks testified that he laughed the comment off and said something to the
effect of “you wish.” According to the defendant, he made the threesome
comment in the victim’s presence, and he testified that the victim giggled and
appeared to be “intrigued” by his remark. In addition, the victim testified that
someone unknown to her slapped her buttocks at the bar, whereas the
defendant testified that Brooks grabbed his hand and “smacked her butt with
it.” According to the defendant, the victim responded by turning around and
giving him “the kinky eyes.” For his part, Brooks denied that he engaged in
any such act or that the victim told him any such thing had happened. The
defendant also testified that, within minutes of meeting him for the first time,
the victim gave him a “lap dance” and showed him nude and semi-nude
photographs of herself on a cell phone. At trial, the victim denied showing the
defendant any pictures of herself.

After drinking for a couple of hours, Preston left the bar with his
girlfriend and another friend who had been kicked out of the bar. They
returned to Brooks’ residence, and Preston and his girlfriend immediately went
to bed in Preston’s bedroom while their friend slept on a couch. At trial,
Preston testified that he did not hear or see anyone else return to the residence
that night. At some point after 11:00 p.m., Brooks and the victim left the bar
and returned to the residence with another friend. Brooks estimated that they
arrived at his residence “by midnight probably. He left the door to his
residence unlocked in the event another member of the group who remained at
the bar decided to spend the night there. When they arrived, the lights were off
and everyone was sleeping. After she threw up in the kitchen sink, the victim
and Brooks went to Brooks’ bedroom, shut the door and went to bed. Brooks
brought a bowl to the bedroom because the victim told him she might throw up
again. Brooks recalled that he fell asleep after observing the victim leaning
over the bowl, and the victim testified that she too fell asleep after vomiting in
the bowl a couple of times.

Security camera footage showed the defendant arriving at Brooks’
residence with a friend named Himanshu Sijapati and a bottle of Tito’s vodka
at 1:06 a.m. The defendant and Sijapati testified that Preston sent them text
messages inviting them back to the residence for an after-party. According to
the defendant and Sijapati, Preston was awake in the kitchen when they
arrived and made them a couple of drinks before going to bed. At trial, the
defendant testified that he then went to Brooks’ bedroom to wake him up,
where he found Brooks sleeping and the victim lying in bed watching the
television.

The victim testified that she woke up when the bedroom door opened,
saw the defendant enter the bedroom, and heard him say that he had nowhere
else to sleep as he walked toward the victim’s side of the bed. At the time, the

2
victim was lying on her side, face to face with Brooks. The victim then heard
the defendant spit onto his hand and felt his wet hand touching her before she
fell back asleep. At trial, the victim explained that she was “pretty . . . out of it
from drinking, so [she] had fallen back asleep again.” Later, the victim woke
up again and felt the defendant, who was positioned behind her, having vaginal
intercourse with her. The victim testified that she attempted to squeeze
Brooks’ wrist to wake him up, but she felt “[t]errified” and “stuck” and could
not move. She also testified that she was “in and out of it the whole time” and
fell back to sleep until she was awakened when the defendant pulled her
underwear up and left the room.

At trial, the defendant painted a very different picture. Essentially, he
claimed that the victim permitted him to share the bed and that they were
watching a movie when the victim initiated sexual contact by grabbing his
shorts. According to the defendant, he engaged in consensual digital
penetration with the victim until he had an “epiphany” and started “thinking
about [his] girlfriend and [his] one-year old at home. And I was like . . . I can’t
do this. Like, I can’t be here.” The defendant testified that he then helped the
victim pull her underwear back up, apologized to her and left the room. After
realizing that Sijapati had left without him, the defendant called an Uber for a
ride home. Security camera footage showed the defendant leaving the
residence at 1:39 a.m.

At approximately 6:30 a.m. on March 15, the victim woke up and texted
a friend from Brooks’ bedroom. In the text message, the victim informed her
friend that one of Brooks’ friends came into the bedroom and that when she
woke up, Brooks’ friend “was having sex with [her], and that [she] froze, and . .
. couldn’t do anything to stop it.” She also told her friend that she tried to grab
Brooks’ wrist, but he did not wake up and that she was scared. When Brooks
woke up, he noticed that the victim “was definitely [acting] very like weird” and
she “wanted to leave like as soon as we both woke up.” The victim did not
initially inform Brooks about what happened earlier that morning, but ten
minutes after her departure she called Brooks and told him that she had been
sexually assaulted. The victim also texted Brooks with more details, informing
him that one of his friends came into his bedroom and that she woke up to his
friend having sex with her. In the text message, the victim also explained that
she tried to squeeze Brooks’ wrist to wake him up, but he did not wake up and
she “couldn’t do anything about it.”

That same morning, Brooks texted the defendant: “why [did] you come
into my room last night and f***k with that girl? Do you want to die?” In a
responding text message, the defendant stated: “Yo, what? You was laughing
earlier in the night when I was joking about a threesome . . . I was hammered.
I don’t even know what I was doing.” During this text conversation, the
defendant apologized to Brooks, but Brooks informed him that the victim “was
scared for her life last night. She didn’t know what was going on,” to which the

3
defendant responded, “I was blacked out, too. I’m not saying what I did was
right at all.” In another text message to Brooks, the defendant stated: “I
apologize to you, her, and my girlfriend. I am an a**hole. I f***ked up. . . . I’m
sorry, bro. I don’t know what I was doing. I would never do anything to try to
hurt you.” However, later that day, Brooks called the defendant’s girlfriend and
reported the victim’s accusation. In response, the defendant texted Brooks:
“Did you really run to my girl saying I raped her? That’s funny because she
was rubbing up on me last night, and I went with it.”

The victim did not seek medical attention until after she reported the
sexual assault to the police about a week later. Following an investigation, the
defendant was indicted on two alternative AFSA charges and a burglary charge
alleging, in part, that he knowingly entered Brooks’ residence at night for the
purpose of committing an AFSA. The defendant stood trial over four days in
April 2023. During that proceeding, the State introduced multiple exhibits,
including the security camera footage and text messages described above. The
jury convicted the defendant on both AFSA charges and found him not guilty of
the burglary charge. This appeal followed.

On appeal, the defendant posits that the trial court may have erred by
failing to disclose information it reviewed in camera. With respect to this
argument, we have reviewed the records withheld and those disclosed by the
trial court and conclude that the court did not err by not disclosing the
remaining records that it reviewed in camera.

The defendant next challenges two of the trial court’s evidentiary rulings
barring the introduction of text messages sent by Preston to Sijapati and
sustaining the State’s hearsay objection to the defendant’s testimony that the
victim invited him to subscribe to an “Only Fans” website account allegedly
maintained by the victim. Generally, we review such challenges under our
unsustainable exercise of discretion standard. See State v. Roy, 174 N.H. 622,
627 (2021). However, the State maintains that, to the extent the trial court
erred, any error associated with its evidentiary rulings was harmless beyond a
reasonable doubt. We agree.

To establish harmless error, the State must prove beyond a reasonable
doubt that any purported error did not affect the jury’s verdicts. 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 at trial, as well as the character of the erroneously admitted or
excluded 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. The factors we
have considered when assessing a harmless error claim 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; (3) the presence or

4
absence of evidence corroborating or contradicting the erroneously admitted or
excluded evidence; (4) whether the trial court took any curative measures; and
(5) whether the other evidence of the defendant’s guilt is of an overwhelming
nature. Id. at 12. No one factor is dispositive. Id.

The defendant first argues that the trial court erred by prohibiting him
from introducing text messages between Sijapati and Preston in which Preston
invited Sijapati and the defendant first to the bar where Brooks, Preston and
their friends were celebrating a birthday and next, to an after-party at Brooks’
residence. After the first day of trial, the defense informed the State of its
intention to introduce these text messages, which defense counsel had just
obtained from Sijapati. The State objected to the evidence based upon its late
disclosure, citing New Hampshire Rule of Criminal Procedure 12(b)(2).
Ultimately, the trial court agreed with the State and barred the introduction of
copies of the text messages, but permitted Sijapati to testify about receiving the
messages and their content.

On appeal, the defendant maintains that these invitations to the bar and
Brooks’ residence were a “crucial dispute at trial,” because both Brooks and
Preston denied inviting the defendant or Sijapati to either the bar or an after-
party. We disagree with the defendant’s interpretation of the record.

First, neither Brooks nor Preston was questioned about inviting the
defendant or Sijapati to the bar. Consequently, they did not deny extending
any such invitation, and we fail to understand how an invitation to the
birthday party at the bar was material to either the State’s prosecution or the
defendant’s case. Rather, our review of the record indicates that the
interaction between the defendant, the victim, and to some extent, Brooks,
after the defendant arrived at the bar was significant to the defendant’s case.
Accordingly, we conclude that how or why the defendant and Sijapati appeared
at the bar was immaterial, and the exclusion of text messages supporting the
defendant’s position was inconsequential.

Second, Sijapati and the defendant both testified that Brooks and
Preston sent them text messages inviting them back to Brooks’ residence for an
after-party. Although both Brooks and Preston denied inviting anyone back to
the residence for an after-party, the jury acquitted the defendant of committing
a burglary by entering the residence without license or privilege with the
criminal intent of committing an AFSA. Accordingly, the jury apparently
determined that the defendant was invited back to Brooks’ residence or that he
entered the residence with the noncriminal intent of joining an after-party.
Therefore, the text messages to Sijapati were cumulative of the testimony
offered by Sijapati and corroborated by the defendant, and they were
inconsequential. See State v. Edic, 169 N.H. 580, 590-91 (2017) (excluded
evidence of a recorded telephone call for the purpose of attacking a prison
witness’ motives for testifying was cumulative of other admitted evidence that

5
the witness was motivated by a desire to get out of prison). For the foregoing
reasons, we conclude that the exclusion of the copies of Preston’s text
messages, to which both the defendant and Sijapati testified, did not affect the
jury’s verdicts and that the State has established that any purported error was
harmless beyond a reasonable doubt. See id. at 592 (concluding that the
exclusion of testimony from prison officers was inconsequential in light of other
evidence, including a cooperation agreement, bearing on a witness’ motives to
testify against the defendant).

We next address the defendant’s claim that the trial court erred by
sustaining the State’s hearsay objection to the defendant’s testimony that the
victim invited him to join her “Only Fans” account during their interaction at
the bar. The defendant argues that the proffered testimony was not hearsay
because the victim’s alleged question or invitation were not assertions of fact.
He also maintains that the trial court erroneously found that the evidence
violated the rape shield law set forth in RSA 632-A:6, II (Supp. 2024), because
the alleged invitation or question did not constitute sexual activity or constitute
an invitation to engage in sexual activity. The defendant further argues that
the exclusion of this evidence prejudiced him because the trial “pitted the
credibility of [the defendant] against the credibility of [the victim]” and evidence
that the victim invited the defendant to “join her Only Fans site would tend to
support [the defendant’s] claim that she expressed interest” in him.

However, we conclude that any error by the trial court was harmless
beyond a reasonable doubt. First, the evidence the defendant claims was
erroneously excluded was cumulative of the other evidence presented at trial.
After the trial court sustained the State’s objection to the defendant’s testimony
that the victim invited him to join her “Only Fans” account, the court
subsequently ruled that the State had opened the door to the same type of
testimony during its cross-examination of the defendant. As a result of the
court’s curative step, on re-direct the defendant was permitted to testify that
the victim, while at the bar, showed him nude and semi-nude photographs of
her from her “Only Fans” site. He also explained that “Only Fans” is “a
subscription service for people to put [or] elicit photos and videos on there, and
people can subscribe for a monthly fee.” Although the defendant did not
explicitly testify that the victim invited him to subscribe to her “Only Fans” site,
his testimony, if credited by the jury, would have created an inference that the
victim wanted the defendant to see and review her account and, by implication,
that she wanted him to subscribe to it. Accordingly, we conclude that the
defendant’s testimony on re-direct supported his claim that the victim
“expressed interest” in him and, as such, the excluded evidence of the alleged
invitation was cumulative of the evidence presented at trial and
inconsequential. See State v. Lemieux, 136 N.H. 329, 331 (1992) (concluding
that testimony was “merely cumulative” because “even if the testimony at issue
had been excluded, the jury would nonetheless have had the witness’s opinion
before it”).

6
 Second, in contrast to the cumulative and relatively inconsequential
nature of the excluded evidence, our review of the record indicates that the
evidence of the defendant’s guilt was powerful. The victim consistently testified
that she did not consent to having sexual intercourse with the defendant. In
particular, the most damaging evidence against the defendant was the victim’s
detailed description of the assault. Many of these specific details were
corroborated by text messages she sent to her friend and Brooks shortly after
waking up and leaving the residence on March 15. See id. at 331-32 (when
viewed next to “the victim’s description, in vivid detail, of the various sexual
acts that the defendant forced her to perform” the improperly admitted
evidence was inconsequential). The victim’s testimony was also corroborated
by the State’s other witnesses. For example, Brooks’ observation that the
victim “was definitely [acting] very like weird” that morning and that she
“wanted to leave like as soon as we both woke up” was consistent with the
victim’s account as to what had transpired.

Compared to the strength of the State’s case, the defendant’s case was
hampered by the need to explain away and contradict numerous admissions of
wrongdoing. The defendant was confronted with his own words in numerous
text messages between himself and Brooks which established that the
defendant had engaged in conduct that required apologies, explanations and
excuses. Although the defendant denied raping the victim, he admitted to
making a mistake, acknowledged that he “f**ked up” and was “an a***hole” and
apologized to Brooks at least three times. Indeed, by his own account, the
defendant admitted that he apologized to the victim before leaving the bedroom
despite claiming that they had just engaged in consensual sexual activity.

The record also demonstrates that, when compared to the State’s
evidence, the defendant’s case lacked credibility. The defendant contradicted
himself by testifying inconsistently with his own text messages regarding his
level of impairment that night. The defendant’s credibility was also damaged
by the testimony of multiple State witnesses who flatly contradicted his
description of his interaction with the victim at the bar. We conclude that,
under the totality of the circumstances at trial, the State has established that
any purported error did not affect the jury’s verdicts and was harmless beyond
a reasonable doubt. Boudreau, 176 N.H. at 13-14.

For the foregoing reasons, we conclude that the trial court did not err in
declining to disclose all of the records it reviewed in camera. We also conclude

7
that, to the extent the trial court’s evidentiary rulings were erroneous, any
such error was harmless beyond a reasonable doubt. Accordingly, we affirm.

Affirmed.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

8