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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Merrimack
No. 2017-0265


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  OWEN LABRIE

                           Argued: November 28, 2018
                          Opinion Issued: June 7, 2019

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      HANTZ MARCONI, J. The defendant, Owen Labrie, was convicted by a
jury on three counts of sexual assault, see RSA 632-A:4, I(c) (2016), one count
of endangering the welfare of a child, see RSA 639:3, I (2016), and one count of
using computer services for a prohibited purpose, see RSA 649-B:4, I(a) (2016)
(computer services use charge). State v. Labrie, 171 N.H. 475, 477 (2018). In
the instant appeal, the defendant challenges an order of the Superior Court
(Smukler, J.) denying his motion for a new trial based upon ineffective
assistance of counsel as to the computer services use charge. We affirm.
I. Pertinent Facts

      The facts underlying the defendant’s convictions are fully set forth in
Labrie. See id. at 478-81. We repeat only those facts necessary to decide the
instant matter. For the facts relevant to the defendant’s motion for a new trial,
we rely upon the trial court’s order denying that motion and the record
submitted in this appeal.

      A. Facts Underlying the Defendant’s Convictions

      In early 2014, the defendant was 18 years old and a senior at St. Paul’s
School (SPS), a private coeducational boarding school in Concord. Id. at 478.
At SPS, there was a prominent annual springtime tradition known as the
“senior salute,” which involved a senior sending a note (or a senior salute) to a
younger student on campus, inviting that younger student to spend time with
the senior before he or she graduated. Id. Often, these notes had sexual
connotations. Id. Although a senior salute could be an invitation simply to
meet up with someone on campus, it was widely understood among SPS
students that physical contact, at least in the form of a kiss, was almost always
expected. Id. It was not unusual for the invitation to imply more advanced
sexual contact as well, including sexual intercourse. Id.

      On May 28, the defendant sent the victim the following senior salute via
e-mail:

             [W]hile the thought of my name in your inbox makes me
      blush perhaps more than it should, there’s something [I] want to
      share with you and my evenings left to do it are growing fewer by
      the evening. [T]here’s a door here that’s been locked since before
      we were born, but in a moment of divine intervention the night
      before last, its hinges swung open in my hands. [I]f you want a
      definition of the word bittersweet, think of me spending three years
      trying to open it yet now only having three nights to remember the
      view. [I] want to invite you to come with me, to climb these hidden
      steps, and to bask in the nicest view [M]illville has ever had to
      offer. [I] hope you’re all right with heights.

             [I]f you’re not otherwise engaged, mull it over. [I] ask only
      that you let me know soon--these days they’re not making time
      quite like they used to.

Id. at 479 (quotation omitted). The victim replied to the defendant, stating:

      [W]hile the thought of your name in my inbox gives me a sense of
      [déjà vu], ([my sister] and I are very close sisters,) and although I
      would like to climb those hidden steps with you, I have to decline.


                                         2
      I would like to climb that, not the list of [freshmen] that have spent
      quality time with you.

Id. at 479-80 (quotation omitted). The defendant responded to the victim’s
e-mail, stating:

      [P]robably one of the sassier emails [I]’ve ever received, my sweet
      lord. . . . [I]’m afraid that list is slimmer than you might think.
      [P]retty much nonexistent this term, even. [B]ut do as you please,
      [ma chère]. [I]’d have taken you either way.

Id. at 480 (quotation omitted). The defendant concluded his response with
song lyrics in French, which translate as, “It’s 2:45, . . . it’s late and all the
boys are dancing for you to console you, . . . their queen.” Id. (quotation
omitted).

        Following this exchange, the defendant asked a freshman in his
dormitory to put in a good word for him with the victim. Id. After speaking
with the freshman, the victim e-mailed the defendant. Id. Translated from
French, the e-mail stated, “It’s true, . . . please forgive me. Yes, only if it’s our
little secret.” Id. (quotation omitted). The defendant interpreted this to mean
that the victim would meet him, but only if they kept it between themselves.
Id. The defendant responded, “[W]hat a golden change of heart. [Y]ou’ve saved
it until the very end — there’s not a lot of time but [I]’m sure we can figure
something out. [P.S.] [Y]our French is amazing. [N]ot a soul needs to know.”
Id. (quotation omitted). Subsequently, via Facebook Messenger, the two made
a plan to meet. Id.

      Before meeting the victim, as planned, on May 30, the defendant sent a
message to an SPS alumnus that stated, “I’m slaying [the victim].” Id. at 480-
81 (quotation omitted). Viewed in the light most favorable to the State, “slay”
was a word regularly used by students at SPS to refer to sexual penetration,
including digital penetration, oral sex, and sexual intercourse. Id. at 478 &
n.1.

       That evening, the victim met the defendant on campus, and the pair, at
the defendant’s suggestion, entered an SPS building. Id. at 481. The evidence,
viewed in the light most favorable to the State, indicates that the defendant
ultimately penetrated the victim digitally, with his tongue, and with his penis.
Id. Viewed in the light most favorable to the State, the evidence establishes
that on the evening of the encounter and throughout the weekend, the
defendant told various SPS students that he had had sexual intercourse with
the victim. Id. In a conversation with a friend, the friend asked, “How did it go
from no to bone?,” meaning how did it go from the victim declining the
defendant’s e-mail invitation to the victim and the defendant having sexual



                                           3
intercourse. Id. (quotation omitted). The defendant responded that he “just
pulled every trick in the book,” including oral sex. Id. (quotation omitted).

      B. Jury Trial

     The defendant’s jury trial was in August 2015. He was represented
primarily by J.W. Carney, Jr. and Samir Zaganjori. Because neither attorney is
admitted to practice in New Hampshire, they retained local counsel, Jaye
Rancourt. Carney acted as lead counsel; Zaganjori acted as co-counsel; and
Rancourt was available to consult with the rest of the trial team and to act as
needed.

       In addition to the felony computer services use charge, the defendant
faced three counts of aggravated felonious sexual assault (AFSA), three counts
of misdemeanor sexual assault, two counts of endangering the welfare of a
child, and one count of misdemeanor simple assault. One of the AFSA charges
alleged that the defendant “utilize[d] the element of surprise” to cause
penetration. See RSA 632-A:2, I(i) (2016). The remaining two AFSA charges
alleged that he penetrated the victim when she indicated by speech and/or
conduct that she did not freely consent to that penetration. See RSA 632-A:2,
I(m) (2016). Six of the ten charges the defendant faced required the State to
prove sexual penetration beyond a reasonable doubt. After the close of the
State’s case, the trial court dismissed one of the endangering the welfare of a
child charges.

      In her opening statement, the prosecutor told the jury that the defendant
raped the victim. The prosecutor said that the evidence would show, beyond a
reasonable doubt, that the defendant “penetrated [the victim] digitally, that he
engaged in oral sex with her, that he penetrated her with his penis, [and] that
she indicated by speech or her actions that her consent was not given, that this
was against her will.” As to the computer services use charge, the prosecutor
said:

             The evidence is going to show you that the Defendant
      utilized the email server and Facebook, social network, to entice
      [the victim] to solicit, lure, or entice her to meet with him with a
      plan that he was going to have sex with her. And I encourage you
      to listen to that very carefully.

She told the jury that “[u]ltimately,” the case came “down to one thing: Do you
believe [the victim]? The State believes that you will.”

      In his opening statement, Carney began by telling the jury that if the jury
had a reasonable doubt about the victim’s testimony, “then the government
hasn’t proven its case.” He told the jury that the first issue for it to consider “is
what does the evidence show about whether [the victim] was willing or


                                         4
unwilling” during her encounter with the defendant. He suggested that the
“best evidence” of whether the victim was a willing or unwilling participant was
her “own words.” Carney then quoted each of the electronic messages that the
defendant and victim exchanged and invited the jury to infer that the victim’s
words in those messages were not the “the words of a rape victim.”

       Carney told the jury that the second issue for it to consider was whether
there was “penetration of the vagina by . . . a penis or a finger or a tongue.”
Carney informed the jury that the phrase “senior salute” refers to a “range of
activity,” that the defendant denied to the police and would deny at trial that he
ever penetrated the victim sexually, and that the evidence would show that the
defendant and the victim, in fact, “never did have sex.”

       The victim was the first witness to testify. On cross-examination, Carney
elicited the victim’s admission that the phrase “senior salute” could mean “to
just hang out with someone,” and did not necessarily refer to having sex. The
victim testified that, after she received the defendant’s senior salute, she
thought that he might want to kiss her, but that was “the extent [to which she]
thought it would go.” During his cross-examination of the victim, Carney
reviewed with her the electronic messages that she and the defendant
exchanged. Carney also asked the victim whether she had told her friend
before meeting up with the defendant, “I’ll probably let him finger me and . . .
at most I’ll blow him.” The victim testified that she had “no recollection” of
saying this.

       On the fourth day of trial, several of the defendant’s friends testified on
behalf of the State. Defense counsel cross-examined several of those friends
regarding the meaning of terms like “score,” “hook up,” and “slay,” words that
the defendant had used in electronic communications and conversations with
his friends. Counsel elicited testimony that those terms did not necessarily
refer to sexual intercourse.

      In addition, the defense team elicited testimony from both the
defendant’s friends and the victim’s friends that the term “senior salute” could
be an invitation to engage in any number of activities from walking around
campus to having sex. During his cross-examination of one of the defendant’s
friends, Zaganjori elicited testimony that the defendant never told that friend
that he planned or expected to have sexual intercourse with the victim. During
cross-examination, one of the victim’s friends testified that, before meeting up
with the defendant, the victim had said that she would probably let the
defendant “finger her” and that “[a]t most,” she would “blow him.”

      The defendant testified on the sixth day of trial. On direct examination,
he testified that the word “slay” could refer to “walking around the lake,” that
the word “bone” could refer to “kissing,” that the word “score” did not
necessarily refer to engaging in physical activity with a member of the opposite


                                         5
sex, and that the term “hook up” could refer to kissing or “dry-humping.” The
defendant testified that he sent a senior salute to the victim because he
“wanted to ask her out.” His plan, he said, was to take her to the chapel tower.
During his direct examination of the defendant, Carney reviewed with the
defendant the electronic messages that he and the victim had exchanged. In
testifying about the encounter with the victim, the defendant denied ever
putting his fingers, tongue, or penis under the victim’s underwear. He testified
that it had not “been [his] intention going into the night to have sex with [the
victim].”

     In his closing argument, Carney again focused upon the electronic
messages that the defendant and the victim exchanged. He told the jury:

             Now one of the most important piece[s] of evidence of all is
      what the e-mails and chats were between [the victim] and [the
      defendant]. In particular, the ones after they got together, not just
      in the next hour, not through the remainder of the day, not into
      the next day, into the next week between the two of them. Please
      read those e-mails and chats and decide is this someone who was
      unwilling in what happened in the attic. Was this the
      conversations at [the victim’s] end by a rape victim, because that’s
      what the government says she was, as soon as she left the Lindsey
      Building, she was a rape victim. That’s the government’s view.

             Take a look at what was said before there was any
      prosecution, see the words [the victim] used. I’ll read some of [the
      victim’s] lines. You will be able to put them in context. You will be
      able to see where in the conversation they fit, but when I talk
      about someone who is the victim of a violent sexual assault, that
      as the Prosecutor described in her opening, would that person
      [m]ake the following responses to her rapist?

             [The defendant] that said “You’re an angel,” and [the victim]
      replies “You’re quite an angel yourself.”

           [The defendant] says something, and she replies in French,
      “Thank you, my good man.”

             [The defendant] pays the victim a compliment about
      something, [the victim] says “You’re not so bad yourself.” They’re
      talking about what happened on the top of the Lindsey Building.
      Would a victim begin telling her assailant “I lost my earring up
      there, ha, ha.”?

            I mean, ladies and gentlemen, you come to this trial [with]
      an incredibly valuable asset, and that’s your common sense that


                                        6
      you have developed from your life experience. You may have been
      teenagers once, but you’re not teenagers anymore.

            Would a victim of sexual assault say to her assailant a day
      or two later, “Ha, ha, ha, the prose of French.” How about in
      response to a compliment by [the defendant] that “You’re
      incredible.” She responds “As are you. (French spoken).”

            At another point, she thanks him, “(French spoken).” And at
      the end of one conversation a few days later, he says “Happy
      dreams.” And she replied “And you, too.”

            There were e-mails even about birth control, condom, [the
      defendant] responded to those. As [the defendant] told you
      yesterday, he was puzzled by why [the victim] was doing this, but
      wanted to reassure her that in his view, he knew she could never
      be pregnant, and just went along with it so she could be reassured,
      and in the end, she was.

            ....

             So I respectfully submit that the evidence of the entire
      encounter between [the defendant] and [the victim], not just based
      on the physical evidence, not just based on the doctor visits that
      I’ve just described, not just based on the statements [the victim]
      made coming out of Lindsey Building to her friend, . . . to her
      housemate, . . . and to her closest friend, . . . and also on her
      statements to Detective Curtin about what she thought [the
      defendant] would have realized, but above all, above all, the
      e-mails between [the defendant] and [the victim] beginning minutes
      -- well, let’s say 20 minutes, after they got back to their dorms, and
      starting at that point going up to several days later, I submit that
      when you look at those words of [the victim], herself, it would be
      impossible to conclude that those were the words, these were the
      statements, and that these were the actions of a person, who
      during that encounter was not consenting and was not willing, and
      so on.

He also told the jury:

             Every indictment that alleges that [the defendant] had some
      kind of contact of whatever nature with [the victim] and did so
      either without her consent or with her surprise, every single one of
      those indictments, you don’t even have to reach the point of
      whether you have a reasonable doubt because the evidence is



                                        7
      overwhelming on those indictments that [the defendant] is not
      guilty.

And, he concluded by saying:

             Members of the jury, it’s not about that [the defendant] had
      excellent academics or was a terrific athlete. I’m not saying he is a
      saint, he’s not a saint, he’s a teenager, but I submit he told you the
      truth from that stand, and at the end of the day if you cannot say I
      believe everything [the victim] said beyond a reasonable doubt,
      then the Prosecutor has not met her burden on any of the charges
      and the Defendant is entitled to be found by you not guilty.

      Thereafter, the trial court instructed the jury with regard to the computer
services use charge as follows:

            Indictment 973494C accuses the Defendant of prohibited
      uses of computer equipment. The definition of this offense has
      three parts or elements. The State must prove each element
      beyond a reasonable doubt.

             Thus, the State must prove first, the Defendant utilized a
      computer online service, and/or internet service to seduce, solicit,
      lure, or entice another person to engage in an act of sexual
      penetration . . . ; second, the Defendant actually believed that the
      person he was attempting to seduce, solicit, lure, or entice, was
      under the age of 16; and third, the Defendant acted knowingly.

            The first element of the crime of prohibited uses of computer
      equipment requires the State to prove that the Defendant utilized
      the computer -- a computer online service and/or an internet
      service, to seduce, solicit, lure, or entice another person to engage
      in sexual penetration.

            ....

            The definition of sexual penetration includes sexual
      intercourse and cunnilingus. Sexual penetration also includes any
      intrusion, however slight, by any part of the Defendant’s body into
      the genital opening of the other person’s body. . . .

            The second element involving the other person’s age is self-
      explanatory. No further definition is required.

           The third element requires the State to prove the Defendant’s
      mental state. Here, that he acted knowingly. This means that the


                                        8
      State must prove that the Defendant was aware that his acts
      would cause the prohibited result.

             The State does not have to prove that the Defendant
      specifically intended or desired a particular result. What the State
      must prove is that the Defendant was aware or knew that his
      conduct would cause the result.

            Whether the Defendant acted knowingly is a question of fact
      for you to decide. Keep in mind that there is often no direct
      evidence of intent because there is no way of examining the
      operation of a person’s mind. You should consider all the facts
      and circumstances in evidence in deciding whether or not the State
      has proved that the Defendant acted knowingly.

On the first day of trial, the court had instructed the jury that “[t]he opening
and closing statements of the attorneys are not evidence.”

      The jury returned not guilty verdicts on all of the AFSA charges and the
misdemeanor simple assault charge. The jury found the defendant guilty of the
felony computer services use charge, three misdemeanor sexual assault
charges, and the misdemeanor endangering the welfare of a child charge.

      C. Motion for Ineffective Assistance of Counsel

       Shortly after the jury returned its verdicts on August 28, 2015, the
defendant moved to set aside the verdict on the computer services use charge,
asserting that his conviction was “inconsistent with the overall purpose of the
Criminal Code” and that it “violate[d] his rights under the State and Federal
Constitutions.” Alternatively, the defendant asked to be relieved of the
obligation to register with the sex offender registry. The trial court ruled that
the motion was untimely, but denied it on its merits nevertheless. In doing so,
the trial court found that the evidence was “legally sufficient to support the
jury’s verdict of guilty on the computer [services use] indictment.”

       Thereafter, the defendant appealed his convictions to this court. See
Labrie, 171 N.H. at 477. As to the computer services use charge, the defendant
argued that the evidence was insufficient to establish that “when he
communicated with the victim over a computer network, he intended to
‘seduce, solicit, lure, or entice’ [her], with the belief that she was under the age
of 16, to engage in an act of sexual penetration.” Id. at 482; see RSA 649-B:4,
I(a).

      While the defendant’s direct appeal of his convictions was pending, he
moved for a new trial based upon ineffective assistance of trial counsel.
Processing of his direct appeal of his convictions was stayed.


                                         9
      The trial court held a three-day evidentiary hearing on the defendant’s
motion for a new trial. Carney and Zaganjori testified that the defendant
consistently denied all the charges against him. As a result, their trial strategy
was to defend the charges by arguing that the defendant did not penetrate the
victim sexually.

         The defense strategy with respect to the computer services use charge
was, in Zaganjori’s words, “encompassed in [the] general theory of the case,”
which was that, on the night in question, the defendant “didn’t meet up with
[the victim] . . . to engage in sexual intercourse, but just to have a romantic
special evening.” He explained: “[O]ur theory of the case was that he met up
with [the victim] that evening . . . with romantic ideas, but not to engage in
sexual intercourse, and our defense was that no intercourse had occurred
. . . .” Zaganjori opined that this theory was “consistent . . . with not being
responsible under the computer [services use] statute because the question
would be, obviously, what was his intent when he sent those particular
messages, and we . . . [went] to great lengths to illustrate that his intent at that
time was not to have sex.” Zaganjori testified that to illustrate the defendant’s
intent, defense counsel “cross-examined several of [the victim’s] friends, as well
as several of [the defendant’s] friends and . . . elicited from them that some of
the terminology that was used [in the messages] . . . , that those terms didn’t
necessarily mean sexual intercourse.” In addition, he testified that defense
counsel “challenged whether sexual intercourse had actually occurred,” and
that the defendant testified that “his intent was not to go there to have sex.”
Zaganjori testified that the defense theory was that if defense counsel were able
“to show that sexual intercourse did not, in fact, occur, then a jury [would be]
less likely to believe that that was his intent originally.” Zaganjori testified that
he “knew that [the defendant] could be convicted of the computer [services use]
charge based on the misdemeanor sex offenses.” He also agreed that the
defendant could be found not guilty “on all the sexual assault charges, [both]
misdemeanor and felony, and still be found guilty of the computer [services
use] charge.” Zaganjori believed that this result — that the defendant would be
acquitted of the AFSAs and the misdemeanor sexual assault charges, but
convicted of the computer services use charge — “was probably unlikely.”

       Carney testified that the defense team pursued three defenses to the
computer services use charge: (1) to challenge, at trial, the State’s contention
that the defendant penetrated the victim; (2) to argue, post-trial, if the
defendant were convicted of the computer services use charge and the
misdemeanor sexual assaults, but not of the AFSAs, that it was contrary to
legislative intent to apply the computer services use statute to him; and (3) to
argue, post-trial, if the defendant were convicted of the computer services use
charge and the misdemeanor sexual assaults, but not of the AFSAs, that the
penalty under the computer services use statute constituted cruel and unusual
punishment. See State v. Serpa, 170 N.H. 781 (2018) (ruling upon similar
arguments). With respect to the defense team’s trial strategy, Carney testified


                                         10
that the team “tried to very zealously contest the government’s allegation that
[the defendant] had engaged in any type of sexual activity with [the victim] that
involved penetration. So we contested whether it had been forcible and we
contested whether it had even occurred at all.” His “view was that if [the
defendant] were acquitted of the forcible charges and . . . the consensual
charges, then it was highly likely, if not almost certain, that the jury would
acquit him on the computer charge, as well.” He explained:

      If [the defendant] had forcibly raped [the victim], then I felt
      someone could infer that that was his intent in communicating
      with her to set up the meeting.

             If [the defendant’s] intent were to have a sexual experience
      with [the victim] that included penetration, then it would be
      possible to conclude that that was his intent in sending a
      communication, setting up the meeting with her.

            So the jury’s verdicts on those two sets of charges would be
      very much an indication of what the jury thought [the defendant’s]
      intention was in setting up the meeting with [the victim].

            So if we focus on what actually happened during the
      meeting, then the computer charge would follow along.

            So that was how to attack that charge during the trial. And I
      think we went very vigorously the entire trial rebutting the
      evidence of forcible sexual activity and with [the defendant’s]
      testimony in particular any type of sexual activity that involved
      penetration.

       The defendant argued that his trial counsel rendered ineffective
assistance in part because they “failed to challenge the application of the
[computer services use] statute during trial.” He observed that his trial counsel
“made no argument to the jury regarding [the computer services use] offense
either in the opening statement, closing argument, or through cross-
examination of witnesses” and that counsel failed to challenge the sufficiency of
the evidence on that charge at trial. The trial court noted that the defendant
brought a sufficiency argument in his motion to set aside the verdict and that
the court had rejected that argument on the merits, finding the evidence
“legally sufficient” to support the defendant’s conviction on the computer
services use charge. The court concluded, therefore, that because the
assertion of a claim of insufficiency during trial would not have changed the
outcome of the case, counsel’s performance was not constitutionally infirm.

       Subsequently, the defendant timely filed the instant appeal, contesting
the trial court’s denial of his motion for a new trial based upon ineffective


                                       11
assistance of counsel. After this appeal was accepted, processing of the
defendant’s direct appeal continued, and in November 2018, we affirmed his
convictions. See Labrie, 171 N.H. at 475, 477. As to the computer services use
charge, we held that regardless of whether we analyzed each pre-encounter
communication individually, or considered them collectively, “[t]here was ample
evidence of the defendant’s intent to ‘solicit, seduce, lure, or entice’ the victim
to engage in sexual penetration throughout early 2014.” Id. at 485.
Accordingly, we found the evidence sufficient to support his conviction on the
computer services use charge. Id.

II. The Defendant’s Appellate Arguments

       On appeal, the defendant argues that his trial counsel rendered
ineffective assistance in challenging the computer services use charge, in
violation of the State and Federal Constitutions. See N.H. CONST. pt. I, art.
15; U.S. CONST. amends. VI, XIV. Specifically, he contends that his trial
counsel was ineffective “in failing to contest the mens rea element” of the
computer services use charge and “in failing to contest the actus reus element
of use of the internet or an on-line service.” With regard to the mens rea
element, he argues that trial counsel was ineffective because “counsel never
mentioned [the computer services use] charge or [the defendant’s] defense to it
to the jury, either in opening statement, closing argument or otherwise.” As to
the actus reus element, he argues that his trial counsel was ineffective because
counsel “did not consider the possibility of” or advance “a defense based on the
intranet character of the [SPS] network.” (Emphasis omitted.)

      “Part I, Article 15 of the State Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution guarantee a criminal defendant
reasonably competent assistance of counsel.” State v. Brown, 160 N.H. 408,
412 (2010) (quotation omitted); see Strickland v. Washington, 466 U.S. 668,
685-86 (1984). We first address the defendant’s claims of ineffective assistance
of counsel under the State Constitution, citing federal opinions for guidance
only. State v. Ball, 124 N.H. 226, 231-33 (1983).

       To prevail upon a claim of ineffective assistance of counsel, the defendant
must demonstrate, “first, that counsel’s representation was constitutionally
deficient and, second, that counsel’s deficient performance actually prejudiced
the outcome of the case.” Brown, 160 N.H. at 412 (quotation omitted). “To
satisfy the first prong of the test, the performance prong, the defendant must
show that counsel’s representation fell below an objective standard of
reasonableness.” Id. (quotation omitted). We judge the reasonableness of
counsel’s conduct based upon the facts and circumstances of that particular
case, viewed at the time of that conduct. Id. As we have previously stated:

            Judicial scrutiny of counsel’s performance must be highly
      deferential. A fair assessment of attorney performance requires


                                        12
      that every effort be made to eliminate the distorting effects of
      hindsight, to reconstruct the circumstances of counsel’s
      challenged conduct, and to evaluate the conduct from counsel’s
      perspective at the time. Because of the difficulties inherent in
      making the evaluation, a court must indulge a strong presumption
      that counsel’s conduct falls within the wide range of reasonable
      professional assistance; that is, the defendant must overcome the
      presumption that, under the circumstances, the challenged action
      might be considered sound trial strategy.

Id. at 412-13 (quotation omitted); see Strickland, 466 U.S. at 689. Strategic or
tactical decisions, made after a thorough investigation of the law and facts, “are
virtually unchallengeable” in an ineffective assistance claim. Strickland, 466
U.S. at 690. When reviewing an ineffective assistance of counsel claim, we are
mindful that the State and Federal Constitutions guarantee “reasonable
competence, not perfect advocacy judged with the benefit of hindsight.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam).

       Because the proper measure of attorney performance is reasonableness
under prevailing professional norms, to establish that his trial attorney’s
performance fell below this standard, the defendant has to show that “no
competent lawyer” would have engaged in the challenged conduct. State v.
Cable, 168 N.H. 673, 680-81 (2016) (quotation omitted). Thus, in the instant
case, to prevail on the first prong, the defendant must show that “no competent
lawyer” would have failed to: (1) mention the computer services use charge in
opening statement or closing argument; and/or (2) consider or mount a specific
defense to the computer services use charge by arguing that the computer
services use statute did not apply to the defendant’s e-mails to the victim
because SPS’s computer network is an intranet network. Id.

      To satisfy the second prong, the prejudice prong, the defendant must
establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Brown, 160 N.H. at 413 (quotation omitted); see Strickland, 466 U.S. at 694. A
reasonable probability is “a probability sufficient to undermine confidence in
the outcome.” Brown, 160 N.H. at 413 (quotation omitted). In making this
determination, we consider “the totality of the evidence presented at trial.” Id.
(quotation omitted).

       Both the performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact. Id. Therefore, we will not disturb
the trial court’s factual findings unless they are not supported by the evidence
or are erroneous as a matter of law, and we review the ultimate determination
of whether each prong is met de novo. Id. “On appeal, when we determine that
a defendant has failed to meet either prong of the test, we need not consider
the other one.” Cable, 168 N.H. at 681 (quotation omitted).


                                       13
      A. Mens Rea Defense

       The defendant first maintains that his trial counsel was ineffective for
failing to mention in opening statement or closing argument or otherwise the
computer services use charge or the defense that he did not intend to engage in
sexual penetration with the victim when he sent the e-mails and Facebook
messages at issue. He argues that counsel “should plainly have told the jury
that it could only convict if it could find, beyond a reasonable doubt, that [the
defendant] intended, when he sent the messages, to lure [the victim] to engage
in sexual penetration.”

       The right to effective assistance extends to opening statements and
closing arguments. See Yarborough, 540 U.S. at 5 (referring to closing
arguments); Bruce v. Kramer, No. CV 05-867GAF(JC), 2010 WL 466156, at *17
(C.D. Cal. Jan. 27, 2010) (referring to opening statements). “Nonetheless,
counsel has wide latitude in deciding how best to represent a client, and
deference to counsel’s tactical decisions” in opening and closing presentations
“is particularly important because of the broad range of legitimate defense
strategy” at those stages. Yarborough, 540 U.S. at 5-6. Opening statements
and closing arguments “should sharpen and clarify the issues for resolution by
the trier of fact, but which issues to sharpen and how best to clarify them are
questions with many reasonable answers.” Id. at 6 (quotation and citation
omitted).

      Judicial review of a defense counsel’s opening statement and closing
argument is, thus, highly deferential. See id. “Courts are . . . hesitant to find
that an attorney’s decision to leave out reference to particular aspects of the
case” in opening statement or closing argument “constitutes ineffective
assistance.” Knight v. Spencer, 447 F.3d 6, 18 (1st Cir. 2006). “When counsel
focuses on some issues to the exclusion of others, there is a strong
presumption that he did so for tactical reasons rather than through sheer
neglect.” Yarborough, 540 U.S. at 8. Indeed, “[b]ecause the decision to make
an argument or assert a specific defense is at the heart of trial strategy,
defendants face considerable difficulty in showing that counsel’s tactics were
unreasonable.” John M. Burkoff & Nancy M. Burkoff, Ineffective Assistance of
Counsel § 7.1, at 342 (2017 ed.). Counsel’s opening statement and closing
argument “must . . . be viewed in the context of the entire proceeding.” Knight,
447 F.3d at 18.

       Here, the prosecutor told the jury that the critical issue in the case was
the victim’s credibility. Thus, defense counsel’s opening statement and closing
argument centered upon attacking that credibility. Consistent with defense
counsel’s overall theory of the case, counsel focused particularly upon the
victim’s credibility related to consent and penetration.




                                       14
      In his opening statement, Carney used the electronic messages that the
defendant and victim had exchanged as evidence that the victim’s claim of rape
was a lie. He asked the jury to focus upon whether, in light of the victim’s
words in her e-mail messages to the defendant, she “appears to have been
unwilling during her date.” After quoting those messages in their entirety,
Carney asked the jury: “Does this sound like texting where she was unwilling
that night, where the prosecutor is going to be able to show by these words
that very night that these are the words of a rape victim? He ended that part of
his opening statement by saying:

      Her own words, no force, no compulsion. She’s in her room. He’s
      in his room. She’s typing all of these words. That will be, I
      submit, the most important evidence on that issue about whether
      she was an unwilling participant in what happened that night. In
      other words, whether she was a rape victim or whether she was a
      willing participant.

       Similarly, in his closing argument, Carney intimated that the victim’s
words in her electronic messages to the defendant were not those of a rape
victim, and that she had lied about the rape because she was worried about
disappointing her sister and parents and about her reputation on campus. He
reminded the jury that, although the victim’s friend had testified that, before
meeting the defendant on May 30, the victim had said, “I’ll probably let him
finger me and I’ll probably blow him,” the victim claimed not to have
remembered saying that. (Quotation omitted.) Carney invited the jury to find
that in so saying, the victim had lied. He then told the jury:

      The Prosecutor said something during her opening, she said

            “In order to prove the government’s case, you have to believe
            [the victim].”

            His Honor will tell you that you have to believe in the
      government’s case beyond a reasonable doubt. If you can’t say I
      can believe [the victim] beyond a reasonable doubt, after this
      blatant lie to you, then you’ve got to return a verdict of not guilty.

      Viewing defense counsel’s opening statement and closing argument in
the context of the entire proceeding, see Knight, 447 F.3d at 18, we conclude
that the defendant “ha[s] failed to rebut the presumption of adequate
assistance,” Yarborough, 540 U.S. at 9. We cannot say that defense counsel’s
strategic use of the electronic messages to attack the victim’s credibility,
instead of to prove the defendant’s intent, “fell below an objective standard of
reasonableness.” Brown, 160 N.H. at 412 (quotation omitted).




                                        15
      Nor can we fault defense counsel for choosing to defend against all of the
charges the defendant faced by focusing upon whether penetration occurred
and whether the victim consented. Given the number of charges that required
proof of penetration and the number of felony charges that required proof of
lack of consent, this was a reasonable strategy. “This is precisely the sort of
calculated risk that lies at the heart of an advocate’s discretion.” Yarborough,
540 U.S. at 9.

       Although the defendant argues that his trial counsel “ignored the
computer felony charge because they believed that no conviction on that charge
would be legally proper if the defense prevailed on the other charges,” our
review of Zaganjori’s testimony, in particular, does not demonstrate that
counsel misunderstood the applicable law. Zaganjori specifically testified that
he understood that the defendant could be found not guilty of all but the
computer services use charge. Indeed, he agreed that the computer services
use statute does not require that the perpetrator ever have any physical
contact with the recipient of the communication and that “[t]he offense is
complete as soon as the communication is sent.” Zaganjori’s belief that this
result — acquittal on all of the charges except the computer services use
charge — was unlikely is not unreasonable. Also reasonable is trial counsel’s
belief that if the jury had found that no sexual penetration occurred, it would
also likely find that the defendant lacked the intent to sexually penetrate when
he sent the victim electronic messages in the days leading up to their
encounter. In addition, although counsel did not specifically refer to the
computer services use charge in his opening statement or closing argument, it
was reasonable for him to count on the court’s jury instructions to remind the
jury of the elements of that charge. See id. at 10. We likewise find reasonable
trial counsel’s strategy of waiting until after the verdict to argue that applying
the computer services use statute to the defendant, even though the jury found
him not guilty of the other felony charges, was inconsistent with the purpose of
the statute and with the Eighth Amendment to the Federal Constitution.

       Contrary to the defendant’s assertions, although defense counsel did not
explicitly tell the jury that the defendant lacked the requisite intent for
conviction on the computer services use charge, throughout the trial, the
defense attacked the State’s circumstantial evidence of that intent. For
instance, through cross-examination of the defendant’s friends, defense
counsel elicited testimony that the defendant never expressed a plan to engage
in sexual penetration with the victim or had an expectation that he would do
so. Indeed, defense counsel elicited testimony from most of the SPS witnesses
that the terms that the defendant used in his electronic messages to his friends
could describe a range of activities, not just sexual contact. Defense counsel
also elicited testimony from the defendant, during his direct examination, that
“it hadn’t been [his] intention going into the night to have sex with [the victim].”




                                        16
      Even if telling the jury explicitly that the defendant lacked the intent
necessary to convict him of the computer services use charge “would
unquestionably have supported the defense, it does not follow that counsel was
incompetent for failing” to say that. Id. at 7. An advocate “is not required to
summarize or comment upon all the facts, opinions, inferences, and law
involved in a case.” Id. at 8 (quotation omitted). Indeed, “judicious selection of
arguments” for opening statement and summation “is a core exercise of defense
counsel’s discretion.” Id.

       Counsel’s decision to focus his opening statement and closing argument
on attacking the victim’s credibility and to defend all of the charges the
defendant faced by focusing on penetration and consent are tactical decisions
that fall within the wide range of reasonable professional assistance. “Given
the wide latitude of discretion available to defense counsel to conduct the
defense in the manner of his or her own choosing,” Knight, 447 F.3d at 18, the
opening statement and closing argument and defense mounted by the
defendant’s trial counsel cannot be deemed ineffective assistance of counsel.
Accordingly, we hold that trial counsel’s failure to mention a specific defense to
the computer services use charge in his opening statement and closing
argument did not violate the defendant’s state constitutional right to effective
assistance of counsel. See Brown, 160 N.H. at 415. Because the standard for
determining whether a defendant has received ineffective assistance of counsel
is the same under both the State and Federal Constitutions, we necessarily
reach the same result under the Federal Constitution as we do under the State
Constitution. Id. at 418.

      B. Intranet Defense to Computer Services Use Charge

        The defendant next asserts that his trial counsel was ineffective because
counsel did not consider or advance a defense to the computer services use
charge by arguing that use of SPS’s intranet network did not constitute
computer services use within the meaning of RSA 649-B:4, I. To address this
argument, we interpret the computer services use statute, RSA 649-B:4, I. The
interpretation of a statute is a question of law, which we review de novo.
Serpa, 170 N.H. at 784. In matters of statutory interpretation, we are the final
arbiter of the intent of the legislature as expressed in the words of a statute
considered as a whole. Id. We first look to the language of the statute itself.
Id. “We will follow common and approved usage except where it is apparent
that a technical term is used in a technical sense.” Appeal of Public Serv. Co.
of N.H., 125 N.H. 46, 52 (1984); see RSA 21:2 (2012). We interpret legislative
intent from the statute as written and will not consider what the legislature
might have said or add language that the legislature did not see fit to include.
Serpa, 170 N.H. at 784. However, we will not interpret statutory language in a
literal manner when such a reading would lead to an absurd result. Id.
Moreover, we do not strictly construe Criminal Code provisions, but rather



                                        17
construe them “according to the fair import of their terms and to promote
justice.” RSA 625:3 (2016).

      RSA 649-B:4, I, provides:

             No person shall knowingly utilize a computer on-line service,
      internet service, or local bulletin board service to seduce, solicit,
      lure, or entice a child or another person believed by the person to
      be a child, to commit any of the following:

            (a) Any offense under RSA 632-A, relative to sexual assault
      and related offenses.

               ....

            (c) Endangering a child as defined in RSA 639:3, III.

The defendant contends that his use of the SPS intranet network to send
e-mails to the victim does not constitute using a “computer on-line service,” an
“internet service,” or a “local bulletin board.” Thus, he asserts that his trial
counsel was ineffective for failing to consider or present a defense to the
computer services use charge on that ground.

      When, as in RSA 649-B:4, I, the legislature has used “technical words
and phrases” that “have acquired a peculiar and appropriate meaning in law,”
we construe those words and phrases “according to such peculiar and
appropriate meaning.” RSA 21:2. Based upon the technical meaning of the
statutory terms, we conclude that SPS’s intranet network constitutes an
“internet service” within the meaning of RSA 649-B:4, I.

      The word “internet” refers to “a worldwide system of interconnected
computer networks, communicating by means of TCP/IP and associated
protocols.” McGraw-Hill Dictionary of Scientific and Technical Terms 1101 (6th
ed. 2003); see The American Heritage Dictionary of the English Language 916
(5th ed. 2011) (defining the word “internet” as “a “publicly accessible system of
networks that connects computers around the world via the VCP/IP protocol”).
As one author has described it:

              The Internet or “Net” is a system of linked computer
      networks, international in scope and decentralized by design, that
      facilitates communication among computers connected to it. It
      allows computers to transparently “talk to one another” and share
      services throughout much of the world. It does this by finding a
      path to route tiny packets of data from one computer to another,
      based on a standard called the Internet Protocol or “IP.” . . .



                                       18
            Many services use the Internet as their transport medium.
      These include Internet e-mail, file transfer (ftp), network news
      (non-interactive message-oriented discussion groups), interactive
      chat, video conferencing, Internet telephony, streaming media
      (audio and video), and the World Wide Web, among many others.
      The World Wide Web may be the most visible, but it is just one of
      many services built on top of the Internet.

Joseph Kershenbaum, The Unillustrated Guide to Cyberspace, 25 Vt. B.J. 11,
11 (1999).

       An “intranet” is a “private network, based on Internet protocols, that is
accessible only within an organization.” McGraw-Hill Dictionary of Scientific
and Technical Terms, supra at 1106. Put another way, an “intranet is a private
network of linked computer networks that uses the same kinds of software
used on the Internet, but that is only for internal use.” Kershenbaum, supra at
12. “An intranet commonly includes connections through one or more gateway
computers to the outside Internet.” Id. Thus, “[m]any observers have
accurately described an intranet as a ‘private Internet.’” M. Sean Fosmire,
Intranets and Extranets—The Extension of Web Technology to the Distribution
of Private Information, 77 Mich. B.J. 412, 412 (1998).

       Based upon the technical meaning of the terms “intranet” and “internet,”
we hold that use of SPS’s intranet network constitutes use of an “internet
service” within the meaning of RSA 649-B:4, I. We decline the defendant’s
invitation to examine the statute’s legislative history because “we find nothing
ambiguous about the statutory language.” Sutton v. Town of Gilford, 160 N.H.
43, 55 (2010). Because we have interpreted the statute according to its plain
language, we also do not invoke the rule of lenity, despite the defendant’s
urging that we do so. See Labrie, 171 N.H. at 484 n.3; see also State v. Brooks,
164 N.H. 272, 292 (2012) (stating that the “rule of lenity serves as a guide for
interpreting criminal statutes where the legislature failed to articulate its intent
unambiguously” (quotation omitted)).

       Having rejected the defendant’s construction of the computer services
use statute, we hold that he has not demonstrated actual prejudice from his
trial counsel’s failure to mount an intranet defense to the computer services
use charge, and, thus, has not established under the State Constitution that
his trial counsel rendered ineffective assistance of counsel. See Brown, 160
N.H. at 412. We reach the same result under the Federal Constitution because
the standard for determining whether a defendant has received ineffective
assistance of counsel is the same under both constitutions. See id. at 418.

                                                  Affirmed.

      LYNN, C.J., and DONOVAN, J., concurred.


                                        19
