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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Cheshire
No. 2017-0512


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                 JASON WILBUR

                            Argued: June 14, 2018
                       Opinion Issued: October 25, 2018

      Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant
attorney general, on the brief and orally), for the State.


      David M. Rothstein, deputy director public defender, of Concord, on the
brief and orally, for the defendant.

       LYNN, C.J. The defendant, Jason Wilbur, appeals a decision of the
Superior Court (Ruoff, J.) denying his motion for a new trial based on
ineffective assistance of counsel. We reverse and remand.

I. Background

      We briefly summarize the evidence that was presented to the jury,
reserving for later a more detailed discussion of the specific evidence and
arguments that form the bases of the issues raised in the defendant’s appeal.
The defendant is the former stepfather of the alleged victim (child) in the case.
The child was born in 1997, and was five or six years old when the events
discussed herein allegedly occurred. The child’s mother met the defendant in
2002 and the couple married in 2003. The mother and the defendant had a
“love/hate relationship.” As a result of their tumultuous relationship, at times
the couple resided together, while at other times the mother lived with the
child’s father. Throughout this time, the father had primary custody of the
child, and the mother had visitation privileges every other weekend.

       In 2007, the child disclosed that she had been sexually assaulted by the
defendant. The defendant was subsequently indicted on charges of aggravated
felonious sexual assault (AFSA), but the State nol prossed the charges in April
2009. In 2010, the defendant was re-indicted on: (1) one count of AFSA
alleging a single act of digital penetration; (2) one count of AFSA alleging a
pattern of digital penetration; (3) one count of AFSA alleging a single act of
penile penetration; and (4) one count of AFSA alleging a pattern of penile
penetration. See RSA 632-A:2, I(l) (2016); RSA 632-A:2, III (2016).

       At trial, the child testified that the defendant began sexually assaulting
her while she was alone with him at his apartment in Jaffrey. She explained
that the first incident occurred after the defendant followed her into the
bathroom and asked if she wanted to play a game. When the child replied
“yes,” the defendant rubbed his finger “around [her] private area” (which she
later clarified to mean her vagina). The assault ended when the mother
returned to the apartment.

      The child stated that the defendant subsequently assaulted her in the
same manner “multiple times,” explaining that the assaults occurred
“practically . . . every time [she] came over.” According to the child, the
assaults escalated to digital penetration of her vagina and then to penile
penetration of her vagina. As to the penile penetration, the child indicated that
she did not see the defendant insert his penis into her vagina because the
defendant covered her eyes. She noted, however, that “it was different” from
the instances where the defendant inserted his finger because it felt “weird and
warm.” The child further explained that the assaults continued after the
defendant and the mother moved to Swanzey. She testified that the defendant
would sometimes wake her at night, ask her if she wanted to “play a game,”
and then sexually assault her.

       In May 2011, a jury found the defendant guilty on the two counts of
AFSA alleging digital penetration, and acquitted the defendant on the two
counts of penile penetration. We affirmed the defendant’s convictions on direct
appeal. See State v. Wilbur, No. 2011-0627 (N.H. Dec. 14, 2012). In June
2014, the defendant moved for a new trial, which the trial court denied
following an evidentiary hearing. This appeal followed.




                                         2
II. Analysis

       The defendant claims that his trial counsel (who is not counsel on
appeal) provided constitutionally deficient representation under Part I, Article
15 of the New Hampshire Constitution and the Sixth Amendment to the United
States Constitution. “The State and Federal Constitutions guarantee a
criminal defendant reasonably competent assistance of counsel.” State v.
Eschenbrenner, 164 N.H. 532, 539 (2013); see N.H. CONST. pt. I, art. 15; U.S.
CONST. amend. VI. “To demonstrate a violation of this right, the defendant
must show that his trial counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Eschenbrenner, 164 N.H. at 539 (quotation
omitted). “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 will examine the constitutional competency of
counsel’s performance under the State Constitution, and rely upon federal case
law only for guidance.” State v. Kepple, 155 N.H. 267, 269 (2007).

      “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.” State v. Collins, 166 N.H. 210,
212 (2014). “Both the performance and prejudice prongs of the ineffectiveness
inquiry are mixed questions of law and fact.” Eschenbrenner, 164 N.H. at 540.
“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.”
Collins, 166 N.H. at 213. A failure to establish either prong requires a finding
that counsel’s performance was not constitutionally defective. Id. at 212.

       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. To meet this prong of the test, the defendant
must show that counsel made such egregious errors that he failed to function
as the counsel the State Constitution guarantees. State v. Thompson, 161
N.H. 507, 529 (2011). We afford a high degree of deference to the strategic
decisions of trial counsel, bearing in mind the limitless variety of strategic and
tactical decisions that counsel must make. Id. “The defendant must overcome
the presumption that trial counsel reasonably adopted his trial strategy.” Id.
“Accordingly, a fair assessment of attorney performance requires 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.” Id. (quotation omitted).

      To satisfy the second prong, the defendant must demonstrate actual
prejudice by showing that there is a reasonable probability that the result of the


                                        3
proceeding would have been different had competent legal representation been
provided. Eschenbrenner, 164 N.H. at 539. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” State v. Brown,
160 N.H. 408, 413 (2010) (quotation omitted). The prejudice analysis considers
the totality of the evidence presented at trial. Kepple, 155 N.H. at 270.

      A. Counsel’s Performance

       On appeal, the defendant argues that his trial counsel’s performance was
constitutionally deficient in four respects: (1) failure to rebut the State’s
characterization of the defendant’s statement to the police; (2) lack of
preparation of the mother for her testimony; (3) introduction of evidence of a
prior sexual assault committed against the child by another person without a
reasonable strategy; and (4) failure to object to opinion testimony given by a
child protective services (CPS) worker. Because we agree with the defendant
with respect to claims (1) and (4), we find it unnecessary to examine claims (2)
and (3).

            (1) Defendant’s Statement to the Police

       In its opening statement, the State asserted that when the investigating
officer, Detective Stevens, interviewed the defendant concerning the allegations,
the defendant commented that his father had faced similar allegations in the
past. Specifically, the prosecutor described the conversation between the
defendant and Stevens as follows:

      And the Defendant comes down to the police station, spends a
      total of four or five minutes before he ends the conversation and
      moves on. [Stevens is] going to tell you how the Defendant told
      him, “Yeah, my father was accused of this but he was found – he
      was – got away with it, so I’m going to fight it.” That’s the end of
      the conversation.

       Stevens was the State’s first witness. After describing briefly how he
became involved in the case, Stevens began to explain the content of his
interview with the defendant. With respect to the interview, Stevens testified
that the defendant denied the allegations. However, the court sustained
defense counsel’s objection when Stevens attempted to read directly from the
transcript of the interview. The State then elicited the following testimony after
refreshing Stevens’s memory with the transcript:

      Q: Okay. Now do you remember – what do you recall the
      Defendant stating about his father?

      A: He told me that his dad had been accused of sexual assault
      about ten years ago and he beat that.


                                        4
     Q: Okay. And as a result of that what did he say he was going to
     do?

     A: That he was going to fight it in court.

     Q: Altogether, you said it’s a relatively short interview, how long
     did it last?

     A: I could estimate five minutes.

     Q: And did you end the interview or did he end the interview?

     A: My recollection is that he did.

During cross-examination, defense counsel and Stevens had the following
exchange:

     Q: And he denies ever touching her, not once, not twice, but
     probably four or five times in the course of that interview—

     A: Again—

     Q: —has never touched her?

     A: Again, I would say that – I testified that he denied it. I’m not
     going to sit here and tell you how many times because I don’t
     remember.

     Q: And in fact, he denies the allegations before ever mentioning
     anything about his dad?

     A: Correct.

     Q: And it didn’t take you too long to realize during the course of
     this interview that Mr. Wilbur was going to stand on his denial and
     you weren’t going to get any further information? Do you recall—

     A: I—

     Q: —putting that in your—

     A: I would—

     Q: —report?

     A: I would agree with that.


                                          5
At no point during the cross-examination of Stevens did defense counsel utilize
the transcript of the interview, which she had access to during the trial.

      During closing argument, defense counsel reminded the jury that the
defendant denied the child’s allegations during his interview with Stevens,
explaining to the jurors that they “have at least that denial on the record so
that you know that has happened.” In its closing, the State responded as
follows:

      Defendant, Defense attorney points out to you, he denied it. Yeah,
      he denied it for about four minutes, ended the interview, and said,
      “You know what, my father got away with this so I’m going to fight
      it in court.” So here we are. That’s not a real denial.

      And consider that, if you’re accused of this, you’re going to do this
      for three minutes and then leave, or are you going to explain your
      story? Defense attorney wanted to point out how he denied it. You
      consider if that’s a real denial or that’s a go down and, “I’m not
      saying anything,” and going away.

Defense counsel did not object to this portion of the State’s closing argument
even though the State’s characterization of the interview varied substantially
from the actual contents of the interview.

       The defendant advances two arguments in support of his position that
his counsel’s handling of the description of his interview with Stevens was
constitutionally deficient. First, he complains that counsel did not utilize the
transcript during cross-examination to establish, in response to Stevens’s
testimony, that Stevens did not remember how many times the defendant
denied assaulting the child, and that the defendant denied the allegations at
least a dozen times. Second, the defendant faults counsel for not challenging
Stevens’s testimony, or the State’s opening and closing statements, in which
the defendant was characterized as having said that his father “beat” or “got
away with” a sexual assault and that he intended to do the same — assertions
that the prosecutor argued did not amount to a “real denial” of guilt.

       As the trial court recognized, “[t]he difference between what was actually
said in the transcript of the interview by the defendant and how the same
comments by the defendant were relayed to the jury by [Stevens] is stark.”
During the interview, in response to questioning, the defendant stated:

      Long, long time ago my dad had a case that was happening but it
      weren’t true. He proved it. It weren’t true. I went into the courts
      with him and doing the same thing I am now. I sat down and told
      him everything . . . but it got proved . . . [t]hat it didn’t happen.



                                        6
The defendant then went on to assert his innocence about a dozen times
throughout the rest of the interrogation, and only stated that he would “fight it”
in court in response to Stevens’s statement that he “would likely end up being
charged with a crime.” Moreover, the defendant never indicated to Stevens that
he was unwilling to answer further questions that the officer desired to ask.1

      The defendant contends that “[n]o reasonably competent trial attorney
would have permitted the State to assert that her client intended to ‘beat’ the
charge, or ‘get away’ with it, when what he said is that he would prove his
innocence.” He argues that by failing to directly challenge these
mischaracterizations, his counsel enabled the State to convey to the jury the
misleading impression that the statements were implied admissions rather
than fervent denials. While the trial court was troubled by the “undoubtedly
misleading” impression left by the State’s characterization of the defendant’s
statements, it ultimately ruled that defense counsel was not ineffective because
she “at least succeed[ed] in eliciting on cross-examination that the Defendant
professed his innocence . . . .” We do not agree with the trial court’s
assessment that counsel’s performance was minimally adequate.

       Stevens’s testimony, and the prosecutor’s argument, that the defendant
told the detective that he, like his father, would “get away with” or “beat” the
charges in court, effectively conveyed to the jury that the defendant was
implying his guilt. See State v. Gomez, 172 P.3d 1140, 1145 (Idaho Ct. App.
2007) (explaining that the defendant’s statement that “he would beat the
charge and had done so before” was an “implicit admission”). This implication
stands in stark contrast to the defendant’s actual statements, which conveyed
his consistent assertions of his innocence. But defense counsel, who was
armed with the interview transcript at trial, did not object to this testimony,
nor did she attempt to neutralize the characterization. Cf. State v. Cable, 168
N.H. 673, 687 (2016) (holding that trial counsel was not ineffective because
“[t]he decision to neutralize the testimony rather than to object was a
reasonable tactical choice” (quotation omitted)).

       The mischaracterization of the substance of the defendant’s statements
to Stevens was compounded during the prosecutor’s opening and closing
arguments. As the trial court recognized, “[t]he State’s choice of words,” was “a
calculated effort to mislead the jury.” The State highlighted the potential use of
this tactic during its opening, but defense counsel did virtually nothing to
counteract or otherwise correct this misimpression during the course of trial.
Instead, by failing to take any corrective course of action, counsel permitted the
State to fabricate a misleading narrative to suggest that the defendant
implicitly admitted guilt. Cf. State v. Vandebogart, 139 N.H. 145, 160 (1994)

1When Stevens proposed that the defendant take a lie detector test, the defendant responded that
he would not do so until he talked to his lawyer. We do not suggest that defense counsel should
have elicited this information at trial.


                                               7
(“A prosecutor may draw reasonable inferences from the facts proven, and has
great latitude in closing argument to both summarize and discuss the evidence
presented to the jury and to urge the jury to draw inferences of guilt from the
evidence.” (quotation omitted)); Zapata v. Vasquez, 788 F.3d 1106, 1115-16
(9th Cir. 2015) (holding that trial counsel was ineffective by failing to object to
the prosecutor’s “remarks” that were “fabricated from whole cloth”).

       The State is correct that defense counsel did present evidence that the
defendant denied the charges. However, the evidence presented in this regard
was far too little, given that counsel did not fully elicit the manner of the
defendant’s denial or the number of times that the defendant denied the
charges, and, more importantly, permitted the State to effectively paint these
denials as disingenuous. In practical effect, defense counsel permitted the
State to convey to the jury that the defendant implicitly admitted to being guilty
of committing the crimes charged. See Gomez, 172 P.3d at 1145; cf., e.g.,
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (noting that “the defendant’s
own confession is probably the most probative and damaging evidence that can
be admitted against him” (quotation omitted)); State v. Anaya, 134 N.H. 346,
352 (1991) (noting that cases “in which the defendant’s attorney tells the jury
the defendant is guilty of the charged offense” tend to be viewed by reviewing
courts “as warranting automatic reversal”); State v. Wiplinger, 343 N.W.2d 858,
860 (Minn. 1984) (explaining “the basic principle that a criminal defense
attorney cannot admit his client’s guilt to the jury without first obtaining the
client’s consent to this strategy”). This failure to rebut the State’s
mischaracterization was objectively unreasonable. See Collins, 166 N.H. at
213. Accordingly, we hold that defense counsel’s representation was
constitutionally deficient.

            (2) Failure to Object to Improper Expert Testimony

      Next, the defendant argues that his counsel was deficient by failing to
object to certain testimony of the CPS worker who interviewed the child. The
CPS worker was the State’s final witness. On direct examination, the CPS
worker testified that:

      [The child] was sexually reactive, and she acted out on other
      children when she had an opportunity. She had a really hard time
      mentally just dealing with this. It had been going on for so long
      that she started to identify with the perpetrators, with the people
      who she alleged abused her. And those are typical of children that
      have been abused.

       The trial court ruled, and the State does not dispute on appeal, that the
CPS worker’s testimony “appears to have crossed into the realm of expert
testimony.” Rather, the State advances the trial court’s ultimate conclusion
that “trial counsel could have made a reasonable tactical decision to not object


                                         8
so as to avoid bringing further attention to” the comment. “We recognize that
experienced trial counsel learn that objections to each potentially objectionable
event could actually act to their party’s detriment,” and, therefore, “[l]earned
counsel use objections in a tactical manner.” Thompson, 161 N.H. at 529
(quotation omitted). Accordingly, “any single failure to object usually cannot be
said to have been error unless the evidence sought is so prejudicial to a client
that failure to object essentially defaults the case to the state.” Lundgren v.
Mitchell, 440 F.3d 754, 774 (6th Cir. 2006).

       Here, the CPS worker explained that the child’s behavior resulted from
conduct that “had been going on for so long.” This statement directly
associates the defendant with the child’s behavior because the child had stated
that the sexual assaults committed by the defendant occurred over a period of
time. In contrast, the jury had already heard testimony that while the child
had been sexually assaulted by a man other than the defendant, that assault
only occurred once, years earlier. The CPS worker also explained that the
child’s behaviors were “typical of children that have been abused.” This
improperly implies that, in her opinion, the child was sexually abused. See
State v. Cressey, 137 N.H. 402, 412 (1993) (holding that “expert testimony may
not be offered to prove that a particular child has been sexually abused . . . .”).
The CPS worker’s testimony offered nothing to rebut or explain the defendant’s
claim that the child had fabricated the allegations or was otherwise untruthful.
See State v. Chamberlain, 137 N.H. 414, 417-18 (1993) (noting that an expert
may testify to “commonly observed behaviors includ[ing] the delayed reporting
of abuse, inconsistent recountings of the abuse, and recantation of the initial
disclosure” to rebut the inference that the victim is lying). Rather, “it is directly
linked to a determination of the guilt or innocence of the defendant . . . .” State
v. MacRae, 141 N.H. 106, 109 (1996) (quotation and citation omitted).

       We reject the State’s contention that the fact that the prosecutor did not
follow up on the CPS worker’s statement establishes that trial counsel “could
have made a tactical decision to not object so as to avoid bringing further
attention to the brief comment.” During closing argument, the prosecutor
explained to the jury that the CPS worker was “[s]pecially trained to do this.”
The prosecutor’s comment attached the “aura of importance” typically
associated with expert testimony. State v. Campbell, 127 N.H. 112, 116 (1985);
cf. Cressey, 137 N.H. at 405 (explaining that expert “testimony involves the
potential risks that a jury may disproportionately defer to the statements of an
expert” and “may attach extra importance to an expert’s opinion simply
because it is given with the air of authority that commonly accompanies an
expert’s testimony”). This argument further reinforced the CPS worker’s
improper testimony. Yet counsel did not object at this point either. Because
our case law is clear on this issue, we hold that defense counsel’s failure “to
object cannot reasonably have been said to have been part of a trial strategy or
tactical choice.” Collins, 166 N.H. at 214 (quotation omitted).



                                         9
      B. Prejudice

       Having concluded that defense counsel’s performance was
constitutionally deficient, we must next decide whether the defendant was
prejudiced as a result of these errors. The trial court explained that “even if
the first prong [of Strickland] had been satisfied,” the defendant failed to
establish prejudice because the child’s “testimony was powerful in that it was
both detailed and graphic” and “there were only fleeting instances of
inadmissible testimony and the evidence mischaracterized by the State
regarding the interrogation had minimal inculpatory impact.” The trial judge
who decided the defendant’s motion for new trial did not preside over the
defendant’s trial. The trial court did not, therefore, observe the child on the
witness stand, and instead drew its conclusion from the trial transcript. Thus,
we are in the same position as the trial court to assess the trial record. See
Masse v. Commercial Union Ins. Co., 136 N.H. 628, 631-32 (1993) (“Because
the trial judge decided the case on the record and therefore could not have
observed the demeanor and credibility of the witnesses, the standard of review
should be broadened.” (quotation and brackets omitted)); Commonwealth v.
Haley, 604 N.E.2d 682, 684 (Mass. 1992) (“When a motion judge has not
presided at the trial, we defer only to the judge’s assessment of the credibility of
witnesses at the evidentiary hearing on the new trial motion, but we consider
ourselves in as good a position as the motion judge to assess the trial record.”).
Based on our review of the record, we do not share the trial court’s view that
the child’s testimony was sufficiently compelling as to render harmless the
evidence and argument improperly placed before the jury as the result of
defense counsel’s deficient performance detailed above.

       The State argues that the defendant cannot establish prejudice because
he was acquitted on some of the charges. Other courts recognize that acquittal
on certain charges may weigh against a finding of prejudice. E.g., Walker v.
Martel, 709 F.3d 925, 930 (9th Cir. 2013) (upholding the state court’s ruling
that defendant was not prejudiced, in part, because the jury acquitted
defendant on some of the charges); McGlothlin v. State, 791 S.E.2d 645, 649
(Ga. Ct. App. 2016) (holding that defendant was not prejudiced where the jury
acquitted him of the most serious charge); Giles v. State, 675 P.2d 441, 442-43
(Okla. Crim. App. 1984) (rejecting defendant’s ineffective assistance claim
where he was acquitted of one charge). In those cases, however, the evidence
of guilt “was robust.” Walker, 709 F.3d at 943; Giles, 675 P.2d at 442 (noting
the “overwhelming evidence of the [defendant’s] guilt”). Here, as is the
situation in many child sexual assault cases, the case turned on the child’s
credibility. See Collins, 166 N.H. at 214-15. “However, because of defense
counsel’s errors, that credibility was impermissibly bolstered,” id. at 214, all
while permitting the State to mischaracterize the defendant’s statements as an
implicit admission of guilt. The fact that the defendant was acquitted of the
charges related to penile penetration shows that the State’s case was, in part,
rejected by the jury. Cf. Strickland v. Washington, 466 U.S. 668, 695 (1984)


                                        10
(“Some of the factual findings will have been unaffected by the errors, and
factual findings that were affected will have been affected in different ways.”).
We cannot say with confidence that the jury would not have rejected more, or
perhaps all, of the charges had his counsel performed competently.

       The State further asserts that the defendant cannot be prejudiced by
defense counsel’s failure to object to the prosecutor’s closing because the jury
was instructed that the opening and closing arguments are not evidence. The
State is correct in its assertion that the jury is presumed to have followed the
court’s instructions. See State v. Cooper, 168 N.H. 161, 170-71 (2015).
However, here the prosecutor’s comments highlighted evidence that was
erroneously admitted by virtue of defense counsel’s deficient performance,
which cut directly to the essential issue at trial — credibility. Cf. State v. Lake,
125 N.H. 820, 823-24 (1984) (reversing a conviction based on conclusion that
error was not harmless where a prosecutor’s “improper comment went directly
to” credibility and “[i]t would be virtually impossible to determine the degree to
which the jury may have been influenced by” it). We do not view the
statements made during closing arguments in isolation. Rather, the closing
arguments simply served as the mechanism by which the State highlighted
prejudicial evidence that was improperly allowed to be admitted due to defense
counsel’s constitutionally deficient performance. We therefore cannot conclude
that the jury instructions in this case remedied this prejudice.

      In sum, the cumulative impact of defense counsel’s errors is such that
the defendant was prejudiced in this instance. See Dugas v. Coplan, 428 F.3d
317, 335 (1st Cir. 2005) (looking to the cumulative impact of counsel’s errors in
determining prejudice); United States v. Munoz, 605 F.3d 359, 377 (6th Cir.
2010) (“When determining prejudice, a court must consider the errors of
counsel in total, against the totality of the evidence in the case.” (quotation and
bracket omitted)). Defense counsel’s errors permitted the State to argue that
the defendant impliedly confessed to the crime, while contemporaneously
allowing the State to bolster the child’s credibility through the testimony of the
CPS worker. Given that the child’s credibility was a central issue in the case,
Collins, 166 N.H. at 214-15, we conclude that there is a reasonable probability
that the result of the proceeding would have been different had competent legal
representation been provided, Eschenbrenner, 164 N.H. at 539. The
defendant, therefore, is entitled to a new trial. Because the defendant prevails
under the State Constitution, we do not address his federal claim. Collins, 166
N.H. at 215.

                                                   Reversed and remanded.

      HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.




                                        11
