State of New Hampshire v. Kierran Pierce

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0540, State of New Hampshire v. Kierran
Pierce, the court on March 18, 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, Kierran Pierce, appeals his convictions, following a jury trial in
Superior Court (Leonard, J.), on two counts of aggravated felonious sexual
assault, see RSA 632-A:2, I(l) (2016), and one count of felonious sexual assault,
see RSA 632-A:3, III (2016) (amended 2020). We affirm.

The jury could have found the following facts. When the victim was
seven or eight years old, he lived, along with his sister and brother, with their
grandparents in a mobile home. In September 2016, the defendant, who is the
victim’s grandfather’s nephew, visited the victim’s family for a few days at that
home.

During that visit, the defendant approached the victim in the living room
and asked the victim to go with him to the victim’s sister’s room. Once there,
the defendant sat in a reclining chair in the middle of the room and asked the
victim to pull down the defendant’s pants. The victim testified that, because
the defendant asked him to do so, he used his “hands to thrust [the
defendant’s] penis.” At some point after that, the victim and the defendant
changed positions and, with the victim in the chair, the defendant pulled down
the victim’s pants and performed fellatio on him. The victim testified that the
bedroom door was open during these assaults.

The next day, the victim approached the defendant, who was in the
bathroom with the door open, and asked if he could use the defendant’s phone
to play a game. The victim testified that the defendant said that he would let
the victim use the phone if the victim “let [the defendant] do what he did.”
The defendant put his hands down the victim’s underwear and touched the
victim’s penis. The defendant then pulled down the victim’s pants and
performed fellatio on him.

Before the defendant’s visit ended, the victim told his sister that the
defendant had touched his privates. The victim’s sister wrote a note to their
grandfather indicating that the defendant had touched the victim’s privates,
and gave the note to the grandfather on the day the defendant left. The
grandfather did not contact the police at that time, but kept the note and gave
it to the police three years later, after the victim had disclosed the assaults to a
therapist.

The defendant was charged with two counts of aggravated felonious
sexual assault and one count of felonious sexual assault. Following trial, the
jury returned guilty verdicts on all counts. This appeal followed.

The defendant first argues that the trial court erred in denying his
motion for a view. “[T]he decision whether to allow a view is within the
discretion of the trial court” and “[w]e will not disturb the court’s decision
absent an unsustainable exercise of discretion.” State v. Pierce, 176 N.H. 487,
494 (2024), 2024 N.H. 12, ¶25. “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.” Id. To the extent the defendant contends that a different standard of
review should apply because he asserts that he had a constitutional right to a
view in accordance with his state constitutional right to produce all proofs
favorable, see N.H. CONST. pt. I, art. 15, and his due process rights under both
the State and Federal Constitutions, see id.; U.S. CONST. amend. XIV, he has
not persuaded us to overturn our established precedent.

The defendant contends that because no other evidence “could
accurately show how close . . . others would have been during the alleged
assault,” and, thus, whether the assaults could have been committed “unseen
or unheard,” a view was necessary to allow the jury to assess the plausibility of
the victim’s claims. He argues that the trial court erred in denying his motion
for a view because it failed to consider whether the proposed evidence was
relevant, helpful to the defendant, or necessary for him to receive a fair trial,
but instead, “based its ruling on the privacy interests of the people currently
living in the residence.” We disagree. While the trial court did express concern
about the privacy interests of the property’s current residents, we agree with
the State that the court denied the motion because it “did not have a sufficient
record upon which to grant the defendant a view.” At the hearing on the
motion, the trial court noted that the “Defense hasn’t obtained any additional
information that might assist the Court in providing the relief that the Defense
wants” — not only information about the current residents’ amenability to a
view, but also whether the property looked the same as it had at the time of the
assaults.

“In this State a view is evidence.” State v. Booton, 114 N.H. 750, 757
(1974). As the proponent of that evidence, the defendant had the burden to
demonstrate its admissibility. See State v. Hammell, 155 N.H. 47, 49 (2007).
Here, although the defendant speculates that “[t]here is no reason to think that
interior walls have been added or taken out such that the sight lines into the
[victim’s sister’s] room or the acoustics of the residence have changed,” he
made no effort to establish, or even make an offer of proof, that the current

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condition of the property was such that a view would be helpful, and not
misleading, to the jury. See RSA 519:21 (2021); N.H. R. Ev. 403. Accordingly,
the trial court did not unsustainably exercise its discretion in denying the
defendant’s motion for a view.

The defendant next argues that the trial court erred in denying his
motion to set aside the verdicts as against the weight of the evidence. “[A]
verdict conclusively against the weight of the evidence is one no reasonable
jury could return . . . .” State v. Spinale, 156 N.H. 456, 465 (2007) (emphasis
and quotation omitted). “Because the trial court has greater discretion when
ruling upon a motion to set aside the verdict as against the weight of the
evidence [than upon a motion challenging the sufficiency of the evidence], our
scope of review of such a decision is narrower.” Id. at 466. “We will uphold the
trial court’s decision unless it was made without evidence or constituted an
unsustainable exercise of discretion.” Id.

The defendant argues that the verdicts were against the weight of the
evidence because the victim’s testimony was not credible. He contends that the
first assault could not have occurred when the victim’s grandfather was at
work, as the victim had stated in his interview at the Child Advocacy Center,
because the grandfather’s testimony established that the defendant had been
with the grandfather for the entire time he was at work. The defendant also
notes that the victim testified that the second assault happened the day after
the first, but not on the day the defendant left, and argues that this testimony
was “clearly contradictory” because the only day he “was present at the trailer
after the first alleged assault was also the day that he left.”

The State counters that the way the jury resolved “the victim’s confusion
about who was home during the sexual assaults, or about [the] date [on which]
the assault occurred . . . does not render the verdicts against the weight of the
evidence, especially considering the victim consistently testified about the
sexual assaults themselves.” We agree. “Inconsistencies in testimony and
failure to remember aspects of some observed or experienced event present
questions of veracity reserved for the jury.” State v. Sargent, 148 N.H. 571,
577 (2002). “[T]he jury has substantial latitude in determining the credibility
of witnesses.” State v. Gubitosi, 152 N.H. 673, 680 (2005). It “may accept
some parts and reject other parts of testimony, and adopt one or the other of
inconsistent statements by witnesses.” Id. The minor inconsistencies in
testimony cited by the defendant do not render the verdicts in this case “one[s]
no reasonable jury could return.” Spinale, 156 N.H. at 465 (emphasis and
quotation omitted).

Finally, the defendant argues that the trial court may have erred in its in
camera review of the victim’s counseling records. He contends that because
our decision in State v. Girard, 173 N.H. 619 (2020), “was published less than
a month before the trial court made its disclosure determinations, . . . it is

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unclear if the trial court applied the standard as clarified by this Court” in
Girard. Although the defendant did not request clarification or reconsideration
from the trial court, we assume this issue is properly preserved.

After reviewing the victim’s counseling records, the Trial Court (O’Neill,
J.) released, subject to a protective order, certain records that it determined
were “discoverable under the applicable standards.” The court’s order is dated
November 13, 2020 — 28 days after Girard was issued. Absent some evidence
to the contrary, we presume that the trial court was aware of Girard, and,
accordingly, we conclude that by “applicable standards,” the court meant the
standard announced in State v. Gagne, 136 N.H. 101 (1992), as clarified by
Girard. See State v. Hodges, 176 N.H. 752, 755-57 (2024), 2024 N.H. 44,
¶¶14, 17 (2024) (finding unpersuasive the defendant’s argument that the trial
court applied the wrong standard in its in camera review of confidential records
when the trial court stated that it had applied the applicable standards).

We now consider whether the trial court erred in failing to disclose more
of the counseling records it reviewed in camera. “We review a trial court’s
ruling on the management of discovery to determine whether its decision is
sustainable.” Id. at 757, 2024 N.H. 44 at ¶18. “When a defendant argues on
appeal that a trial court’s ruling regarding the disclosure of privileged records
is unsustainable, we must review the same records and determine whether the
ruling was clearly unreasonable or untenable to the prejudice of his case.” Id.
After reviewing the records that were examined by the trial court, we conclude
that none of the undisclosed records meets the standard for disclosure as
clarified in Girard. Accordingly, we find no error.

Affirmed.

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

Timothy A. Gudas,
Clerk

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