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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough – northern judicial district
No. 2014-071


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                              ARMANDO LISASUAIN

                             Argued: March 5, 2015
                          Opinion Issued: June 5, 2015

      Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant
attorney general, on the brief and orally), for the State.


      Sarah E. Newhall, assistant appellate defender, of Concord, on the brief
and orally, for the defendant.

      CONBOY, J. Following a jury trial in Superior Court (Garfunkel, J.), the
defendant, Armando Lisasuain, was convicted of, among other offenses, two
counts of aggravated felonious sexual assault, RSA 632-A:2, I(m) (2007). On
appeal, the defendant argues that the trial court: (1) erred by finding that the
State presented sufficient evidence to prove lack of consent by the victim on the
aggravated felonious sexual assault charges; (2) may have erred by not
disclosing more documents from its in camera review of certain of the victim’s
records; and (3) erred by not allowing cross-examination of a police officer as to
the nature and duration of his interrogation of the defendant. We affirm.
      The following facts are supported by the record. In October 2010, the
14-year-old victim was living with her mother and her siblings in Manchester.
The 46-year-old defendant, a family friend, had been staying at the home a few
nights each week after he had to move out of his cousin’s apartment.

       On October 23, the victim returned home from serving a school
detention. No one was home and the victim lay down on the couch to watch
television. The defendant arrived at the home and went over to the couch. The
victim moved her feet so he could sit and then he said she could put her feet
back. The defendant asked her if she liked foot rubs and she stated, “Yeah.
My nanna gives them to me all the time.” The defendant started rubbing her
feet. The victim “didn’t know what to think” when the defendant started giving
her a foot rub, but “since [her] nanna gave them to [her] all the time, [she]
didn’t really think anything weird because . . . he was [her] dad’s best friend
[and] . . . [she] didn’t look at him as a complete stranger.” The defendant then
asked if she ever got her toes sucked. She responded, “No.” The victim
thought the defendant’s inquiry “was weird.” When the defendant started
sucking on her toes, the victim “was in shock.”

       The defendant told the victim that she was “dangerously beautiful,” to
which she did not respond because that scared her. The defendant told her
that “he was going to tear [her] up,” which the victim thought was “a sexual
term,” although she “didn’t know exactly what he meant by it.” The defendant
had moved off the couch and he was “on his knees” below where the victim’s
head was on the couch. The defendant asked her “if he could go lower.” The
victim “assumed that he was talking about [her] vagina,” but she didn’t answer
him because she “couldn’t believe what was going on.” The defendant then
pulled her pants and underwear down and “moved [her] legs . . . on his
shoulders or above his shoulders.” The victim did nothing to help him and did
not say anything. The defendant performed cunnilingus on her and penetrated
her vagina with his fingers. He stopped when he got a telephone call and then
he left.

      The victim had been frequently skipping school and staying out all night.
On November 2 she was placed by court order at Antrim Girls Shelter. After
approximately two weeks, she told staff members and her mother that she had
been sexually assaulted. The victim was subsequently transferred to Webster
House, a long-term placement facility, and was interviewed at the Child
Advocacy Center about the assaults.

        At trial, following the close of the State’s case, the defendant moved to
dismiss the aggravated felonious sexual assault charges based upon alleged
insufficiency of the evidence. He argued that because the victim did not testify
that she pushed the defendant away or told him to stop or took any other kind
of affirmative action to express that consent was not freely given, no reasonable
jury could find that those charges were proven beyond a reasonable doubt.


                                       2
The trial court denied the motion, ruling that, based upon the facts and
circumstances presented, a reasonable jury could find a lack of consent. The
court reasoned that the defendant

      was clearly the initiator. He engaged in all the activities. She was
      not in any way indicating that she was a willing participant in this
      and, plus, the age difference and the family relationship, all of
      those factors [come] into play that she was obviously surprised and
      – by this conduct from someone who she knew to be a friend of the
      family. All of that – all of those factors can be taken into
      consideration by the jury. And under those circumstances, I think
      a reasonable jury could find that her conduct, that is her – in
      essence, her lack of conduct . . . indicated that consent was not
      freely given.

      Following the jury verdict, the defendant moved for judgment
notwithstanding the verdict (JNOV), again challenging the sufficiency of the
evidence of the victim’s lack of consent. After a hearing, the trial court denied
the motion, finding that “a rational jury could conclude beyond a reasonable
doubt that the victim did not consent to the defendant’s sexual conduct.”

      On appeal, the defendant first argues that the trial court erred by finding
that the State presented sufficient evidence to show lack of consent by the
victim on the charges of aggravated felonious sexual assault. According to the
defendant, the trial court’s ruling “conflicts with the plain language of the
statute, which specifically requires that lack of consent be indicated by the
victim either through words or conduct.” Because the victim “neither said nor
did anything at any point from the time [he] rubbed her feet until he completed
performing cunnilingus and digital penetration,” the defendant asserts that
“there was no evidence of any speech or conduct by which the jury could find
that she indicated lack of consent.” The State contends that this argument is
not preserved for appellate review, and even if it is, the evidence that the victim
“did not answer the defendant’s request for consent, did not assist him in
getting her pants and underwear down and positioning her legs, and did not
respond to, or actively participate in, the sexual acts was sufficient.” We will
assume, without deciding, that the defendant has preserved this issue for our
review.

       Because a challenge to the sufficiency of the evidence raises a claim of
legal error, our standard of review is de novo. State v. Kay, 162 N.H. 237, 243
(2011). In reviewing a sufficiency of the evidence claim, we view the evidence
presented at trial, and all reasonable inferences drawn therefrom, in the light
most favorable to the State, and uphold the jury’s verdict unless no rational
trier of fact could have found guilt beyond a reasonable doubt. State v.
Graham, 142 N.H. 357, 360 (1997).



                                         3
      RSA 632-A:2, I(m) provides:

        I. A person is guilty of the felony of aggravated felonious sexual
      assault if such person engages in sexual penetration with another
      person under any of the following circumstances:

      ....

        (m) When at the time of the sexual assault, the victim indicates
      by speech or conduct that there is not freely given consent to
      performance of the sexual act.

RSA 632-A:2, I(m). The defendant argues that the legislature “has chosen only
to criminalize sexual penetration where there is an affirmative statement of
non-consent, rather than criminalizing sexual penetration unless there is an
affirmative statement of consent.” He asserts that the statute “requires that
the State prove that the victim somehow, through verbal or physical action,
communicate her lack of consent,” and that the “legislature did not enact a
statute that makes passive silence stand for lack of consent.” The State
counters that the terms “conduct” and “indicates” are broad and that “under
the plain language of the statute, a jury could reasonably conclude that [the
victim] engaged in ‘conduct’ that ‘indicated’ that she was not consenting” when
she did not answer his request for consent when he asked “if he could go
lower,” did not assist with getting her pants down and positioning her legs, and
did not respond to, or actively participate in, the sexual acts.

       Resolution of this issue requires that we engage in statutory
interpretation. The interpretation of a statute is a question of law, which we
review de novo. State v. Thompson, 164 N.H. 447, 448 (2012). In matters of
statutory interpretation, we are the final arbiters of the intent of the legislature
as expressed in the words of a statute considered as a whole. Id. When
examining the language of the statute, we ascribe the plain and ordinary
meaning to the words used. Id. 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. Id. We construe the
Criminal Code “according to the fair import of [its] terms and to promote
justice.” RSA 625:3 (2007).

      Black’s Law Dictionary defines “conduct” to mean “[p]ersonal behavior,
whether by action or inaction, verbal or nonverbal; the manner in which a
person behaves; collectively, a person’s deeds.” Black’s Law Dictionary 358
(10th ed. 2014) (emphasis added). In this context, Webster’s Third New
International Dictionary defines “indicate” as meaning “to show the probable
presence or existence . . . of : give fair evidence of : be a fairly certain sign or
symptom of : reveal in a fairly clear way.” Webster’s Third New International
Dictionary 1150 (unabridged ed. 2002).


                                         4
      As the trial court found:

          Here, the 14-year-old victim’s non-participation in the sexual
      acts performed on her by the 46-year-old defendant provides
      sufficient evidence of non-consent. When the defendant began to
      suck her toes; the victim did nothing. She did not give the
      defendant permission to suck her toes or help him to do so in any
      manner. The victim testified that she was too shocked by the
      defendant’s action to say or do anything[.]

          Next, when the defendant asked if he could “go lower,” the
      victim again did nothing. The victim did not take off her pants or
      underwear, she did not spread her legs open, she did not turn her
      body on the couch, and she did not put her legs on his shoulders.
      Instead, it was the defendant that physically did each of these acts
      to the victim without her aid.

          Finally, the victim did not respond to the defendant in a way
      that an intimate partner might respond. The victim did not
      discuss the sexual activity with the defendant, she did not make
      any verbal sounds suggesting she was participating in the activity,
      she did not touch the defendant or physically respond to him in
      any way.

After reviewing the record we hold that, taking into account the totality of the
circumstances, the evidence was sufficient for a rational trier of fact to have
found beyond a reasonable doubt that the victim’s conduct, in failing to
respond in any way, indicated that she did not consent to the sexual assaults
by the defendant. See also RSA 632-A:6, III (“[a] jury is not required to infer
consent from a victim’s failure to physically resist a sexual assault”).
Accordingly, we affirm the trial court’s denial of the defendant’s motion for
JNOV based upon alleged insufficiency of the evidence.

      The defendant next argues that the trial court may have erred in not
disclosing more documents from the in camera review. Prior to trial, the
defendant moved for in camera review of the victim’s records from her school,
the New Hampshire Department for Children, Youth and Families, and the
Antrim Girls Shelter, as well as any juvenile, probation, and counseling
records. He argued that any previous statements the victim made about the
assaults, and any conduct probative of her truthfulness, was discoverable.
Following a hearing, the trial court granted the motion in part, agreeing to
review everything except the school records. Thereafter, the court ordered the
disclosure of certain records that it concluded contained “information which
[might] be regarded as essential and reasonably necessary to the defendant in
preparing his defense to the . . . charges.” The trial court subsequently also
reviewed in camera documents provided by Webster House, Manchester Mental


                                        5
Health, Easter Seals, and NFI-North Country Shelter, and ordered disclosure of
certain additional documents.

       The defendant does not appeal the trial court’s refusal to review the
school records, but he challenges “the scope of the release of documents,”
seeking to have this court review the other records to determine whether they
contain information that would entitle him to a new trial. We review the trial
court’s decision to withhold records under the unsustainable exercise of
discretion standard. See State v. Alwardt, 164 N.H. 52, 58 (2012); see also
Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 610 (2006) (trial court’s decisions
on the management of discovery and the admissibility of evidence is reviewed
under unsustainable exercise of discretion standard). “To prevail, the
defendant must show the trial court’s rulings were clearly untenable or
unreasonable to the prejudice of his case.” State v. King, 162 N.H. 629, 631
(2011). Having reviewed all of the records reviewed by the trial court, we
conclude that it did not unsustainably exercise its discretion in determining
that those records not be disclosed. Accordingly, we hold that there was no
error.

       Finally, the defendant argues that the trial court erred by not allowing
cross-examination of Officer Tremblay about the nature and duration of
Tremblay’s interview with him. At trial, the State questioned the officer on
direct examination for the sole purpose of establishing the defendant’s date of
birth. When defense counsel attempted to cross-examine the officer, the State
objected. Defense counsel made an offer of proof that when the officer
challenged the defendant as to his knowledge of the victim’s age, the defendant
made no admissions. He asserted that the officer “used his skills and
experience in interviewing suspects to tell [the defendant] in several different
ways that having sex with a 16-year-old was legal,” and that “he got no
admissions.” Defense counsel argued that the defendant’s lack of an
admission was admissible and that the officer’s statements were not being
offered for their truth. Defense counsel also sought to admit testimony about
the length of the interview. The State argued that the defendant’s lack of
admissions were hearsay because his nonverbal conduct was being offered for
the truth of whether there were no admissions. The State also argued that the
length of the interview was not relevant because it was being introduced only to
suggest that the defendant was cooperative or that he did not make any
admissions. The trial court ruled that the lack of admissions was “excludable
hearsay” because it was “nonverbal conduct and conveyed as an assertion of
the truth.”

      We accord the trial court considerable deference in determining the
admissibility of evidence, and we will not disturb its decision absent an
unsustainable exercise of discretion. State v. Munroe, 161 N.H. 618, 626
(2011). “To demonstrate an unsustainable exercise of discretion, the defendant



                                       6
must show that the trial court’s ruling was clearly untenable or unreasonable
to the prejudice of his case.” Id.

       “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” N.H. R. Ev. 801(c). “A ‘statement’ is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as
an assertion.” N.H. R. Ev. 801(a). Unless it falls within an exception, hearsay
evidence is generally inadmissible. See Munroe, 161 N.H. at 626.

       We agree with the State that the nature and duration of the defendant’s
interview with the officer were relevant only to provide context for the lack of
admissions. Because the relevance of the evidence proffered by the defendant
was dependent upon its truth – that the defendant’s nonverbal conduct was
intended as an assertion by him that he did not commit the sexual assaults –
we hold that the trial court did not err in excluding evidence of the lack of
admissions as inadmissible hearsay.

                                                  Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




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