State of New Hampshire v. Tailor Lemieux

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0343, State of New Hampshire v. Tailor
Lemieux, the court on September 15 , 2026, 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(3). The defendant, Tailor Lemieux, appeals his convictions,
following a jury trial in the Superior Court (Wageling, J.), on six counts of
second degree assault, see RSA 631:2, I(d), (f) (2016), one count of criminal
threatening, see RSA 631:4, I(d) (2016), and one count of endangering the
welfare of a child as a principal or accomplice, see RSA 639:3 (2016), 626:8
(2016). We affirm.

I. Background

The jury could have found the following facts. In 2017, the defendant
married a woman who had four minor children: daughters R, L, and M, and
son D. The family moved into a home in Newbury. R and L shared a bedroom
on the first floor, while D and M each had a room on the second floor. The
defendant and his wife locked the children inside their rooms each night such
that they could not exit their rooms until the parents unlocked the rooms in
the morning.

The defendant and his wife also restricted when the children could use
the bathroom. As a result, the children often had urinary accidents, which
angered the defendant. Consequently, at times, the defendant manually
choked R, L, and D. The defendant also once hit R’s head against a table. On
another occasion, the defendant threatened to cut D’s penis off with a
pocketknife.

At trial, the trial court dismissed a criminal threatening charge and a
second degree assault charge after the State rested its case. The jury convicted
the defendant on the charges described above and acquitted him on one count
of first degree assault and two counts of second degree assault. This appeal
followed.

II. Analysis

A. Hearsay Evidence

The defendant first argues that the trial court improperly admitted
testimony from a nurse that L, D, and M nodded in agreement when R
described to the nurse that the defendant assaulted the children. The
defendant argues that the testimony was inadmissible hearsay that prejudiced
his case because it “indicated that the other three children spontaneously
joined [R’s] accusation at a time when, it could seem, they had not yet had an
opportunity to coordinate a false allegation.” While we agree with the
defendant that the evidence was improperly admitted, we conclude that the
error was harmless beyond a reasonable doubt.

At trial, a pediatric nurse practitioner testified regarding a medical visit
during which she examined the children. She testified that R told her that the
defendant “would grab her by the throat and squeeze very hard and choke her,
and . . . would body slam her and throw [her] against the wall” and “the other
kids, too, as well.” The nurse testified that “the other kids did nod, and that
they agreed that it had happened to them as well.” The defendant moved to
strike the nurse’s testimony regarding the children’s head nods. The trial court
admitted this testimony under the present sense impression exception to the
hearsay rule. See N.H. R. Ev. 803(1).

We review the trial court’s ruling on the admissibility of evidence for an
unsustainable exercise of discretion, and will reverse only if it was clearly
untenable or unreasonable to the prejudice of the defendant’s case. State v.
Rouleau, 176 N.H. 400, 405 (2024), 2024 N.H. 2, ¶13. 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. “The defendant bears the burden of
demonstrating that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of his case.” State v. Noucas, 165 N.H. 146, 158
(2013).

Hearsay is a statement that “the declarant does not make while testifying
at the current trial or hearing” that “a party offers in evidence to prove the
truth of the matter asserted in the statement.” N.H. R. Ev. 801(c). Hearsay is
inadmissible unless it falls within one of the exceptions provided in the rules of
evidence. Simpkins v. Snow, 139 N.H. 735, 737 (1995). One such exception
relates to statements “describing or explaining an event or condition, made
while or immediately after the declarant perceived it.” N.H. R. Ev. 803(1). To
qualify for this exception, statements must be “essentially contemporaneous
with the event.” Simpkins, 139 N.H. at 738 (quotation omitted).

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To the extent that the children’s nodding amounted to statements
describing or explaining the defendant’s abuse, the statements were not
“contemporaneous with the event,” and thus were not admissible under Rule
803(1). See id. at 738-39. Accordingly, the trial court erred when it failed to
grant the defendant’s motion to strike the testimony. The State does not argue
that if the trial court erred that the error did not prejudice the defendant’s case
for the purposes of the unsustainable exercise of discretion standard.
Therefore, we turn to the State’s argument that any error was harmless beyond
a reasonable doubt.

To establish harmless error, the State must prove beyond a reasonable
doubt that the error did not affect the verdict. Rouleau, 176 N.H. at 407, 2024
N.H. 2, ¶20. 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 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.

The factors that we consider in assessing whether an error did not affect
the verdict 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
in relation to the strength of the State’s case; (3) the frequency of the error; (4)
the presence or absence of evidence corroborating or contradicting the
erroneously admitted or excluded evidence; (5) the nature of the defense; (6)
the circumstances in which the evidence was introduced at trial; (7) whether
the court took any curative steps; (8) whether the evidence is of an
inflammatory nature; and (9) whether the other evidence of the defendant’s
guilt is of an overwhelming nature. Id., 2024 N.H. 2, ¶21. No one factor is
dispositive. Id. We may consider factors not listed above, and not all factors
may be implicated in a given case. Id.

The challenged evidence here was both cumulative and inconsequential
in relation to the strength of the State’s case. The import of the testimony was
that L, D, and M agreed with R that the defendant physically abused the
children. Yet, the children’s testimony at trial had already described the
defendant’s abuse. The challenged evidence added little to the State’s case in
light of the children’s testimony. While it is true that the defendant’s theory at
trial was that the children fabricated the allegations and the defendant testified
in his own defense denying the allegations, we cannot conclude that the
challenged testimony caused the jury to believe the children rather than the
defendant.

Each of the children provided detailed testimony regarding the
defendant’s conduct. See id. at 408, 2024 N.H. 2, ¶22 (finding harmless error,
in part, because the victim provided detailed testimony about the defendant’s

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assaults). Nodding to a medical provider is of scant evidentiary weight when
compared to the explicit testimony of the same witnesses. The prosecution,
moreover, corroborated aspects of the children’s testimony by introducing other
evidence at trial. See id. (finding harmless error, in part, because another
witness “corroborated aspects of the victim’s testimony”). For example, there
was evidence of some of the children’s physical injuries as well as evidence
showing that the defendant and his wife locked the children inside their rooms.
The challenged evidence also comprised a miniscule portion of the State’s
evidence at trial and was not mentioned in the State’s closing argument. See
id. at 409, 2024 N.H. 2, ¶26 (stating that the challenged evidence “comprised a
small portion of the victim’s testimony and was not mentioned in the State’s
closing argument”). Therefore, we conclude, based upon the totality of the
circumstances, that the trial court’s error in admitting the challenged evidence
did not affect the verdicts and thus was harmless beyond a reasonable doubt.
See id. at 410, 2024 N.H. 2, ¶26.

B. Sufficiency of the Evidence

The defendant next argues that the State introduced insufficient evidence
to convict him of child endangerment for, along with his wife, locking the
children inside their bedrooms at night. The defendant asserts that there was
insufficient evidence to prove that a nighttime emergency would arise or that, if
one arose, the parents would not be capable of responding. The defendant also
argues that there was “no evidence” that he “knew or intended that, by
confining the children to their rooms, he endangered them in this way.” We
conclude that there was sufficient evidence to convict the defendant beyond a
reasonable doubt.

A challenge to the sufficiency of the evidence raises a question of law,
which we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). When
considering such challenges, we objectively review the entire record to
determine whether any rational trier of fact could have found guilt beyond a
reasonable doubt, considering the evidence, and all reasonable inferences
drawn therefrom, in the light most favorable to the State. Id. We examine each
item of evidence in the context of the entire case, and not in isolation. Id. 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. The defendant bears the burden of proving that the
evidence was insufficient to prove guilt. Id.

The defendant was charged with:

acting in concert with and aided by [his wife], knowingly
endanger[ing] the welfare of four children under the age of 18 years
by purposely violating a duty of care, protection and support he
owes to such children as their stepfather by restraining the

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children in their bedrooms for multiple hours at night by using a
tether implement around the door knob and wrapped around nails
so that they were restrained in their rooms with no means of a safe
escape.

By preventing the children from being able to leave their rooms when necessary
during the night, while the defendant and his wife were asleep and therefore
not alert, the defendant put them at risk in case of fire or other emergency.
The jury could infer that adults are aware that confining anyone in a room
overnight without reasonable egress endangers that person’s safety. The jury
could further infer that this risk of harm is exacerbated when it is a child —
whose judgment and composure are not yet mature — who is subject to such
confinement. From these inferences the jury could reasonably conclude that
the defendant was aware of the risk he was creating to the children’s welfare
and engaged in the charged conduct nonetheless. After review of all of the
evidence considered in the light most favorable to the State, we conclude that
the evidence was sufficient to support a finding by the jury beyond a
reasonable doubt that the defendant purposely violated a duty of care to the
children, thereby knowingly endangering their health or safety.

C. In Camera Review

Finally, the defendant contends that the trial court may have erroneously
failed to disclose to him some of the records that it reviewed in camera. Prior
to trial, the defendant filed several motions seeking production of the children’s
privileged records for in camera review by the trial court. The trial court
granted the motions in part and, following its review, disclosed certain records
to the parties and withheld others. Some of the records reviewed by the trial
court were held by public entities and others were held by private entities. The
defendant requests that we review all the records to determine whether the trial
court erroneously failed to disclose any additional records to the parties.

We review a trial court’s ruling on the management of discovery to
determine whether its decision is sustainable. State v. Girard, 173 N.H. 619,
627 (2020). When a defendant argues on appeal that a trial court’s ruling
regarding the disclosure of privileged records is unsustainable, we will
generally review the same records and determine whether the ruling was
clearly unreasonable or untenable to the prejudice of his case. See State v.
Warren, 177 N.H. 196, 210 (2025), 2025 N.H. 5, ¶46.

We recently extended our privilege-piercing jurisprudence to the
disclosure of records held by private organizations that are privileged under
RSA 329-B:26 and RSA 330-A:32, holding that a defendant must establish an
essential need for the records sought. State v. Zarella, 177 N.H. 328, 341
(2025), 2025 N.H. 20, ¶36. Given that our decision in Zarella was not issued
until after the trial court’s orders in this case, the trial court did not have the

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benefit of that opinion and did not apply the standards set forth in Zarella for
review of privately held records. Consistent with Girard, the trial court
determined whether “material and relevant evidence is in fact contained in the
records.” Girard, 173 N.H. at 628 (quotation and emphasis omitted); see also
N.H. R. Ev. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action.”).

We conclude, based on our review of the records in the government’s
possession, that the trial court did not unsustainably exercise its discretion
with respect to those records. As to the privately held records, the State, citing
Zarella, argues that the defendant has “not established that there is an
essential need for this Court to review those records.” The State goes on to
assert that “[i]f this Court chooses to review the records on appeal, it should
first provide the children with notice and an opportunity to be heard regarding
whether they object to a further review of their privileged records held by
private organizations.” The defendant filed no reply to rebut these arguments.
The defendant has asked us to review medical records reviewed by the trial
court without the protections prescribed by Zarella. In these circumstances,
we can neither disregard Zarella, nor determine in the first instance whether a
review of the children’s privately held records is proper under Zarella.
Accordingly, we have not reviewed the privately held records and decline to
address the defendant’s argument as it relates to them. See State v. Blackmer, 149 N.H. 47, 49 (2003) (declining to address arguments that “were not
sufficiently developed for appellate review”). Because the defendant has not
adequately briefed the question of whether we must remand to the trial court
for the parties to litigate the threshold issues related to those records under
Zarella, we decline to remand. Accordingly, we affirm the trial court’s decisions
regarding these privileged records.

Affirmed.

DONOVAN, COUNTWAY, and GOULD, JJ., concurred; MACDONALD, C.J.,
did not participate in the final vote.

Timothy A. Gudas,
Clerk

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