State v. Boudreau
| Docket Number | 2021-0350 |
| Decision Date | 07 June 2023 |
| Parties | THE STATE OF NEW HAMPSHIRE v. IAN BOUDREAU |
| Court | New Hampshire Supreme Court |
Argued: February 9, 2023
John M. Formella, attorney general, and Anthony J. Galdieri solicitor general (Audriana Mekula, attorney, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord on the brief and orally, for the defendant.
The defendant, Ian Boudreau, appeals his convictions, following a jury trial before the Superior Court (Wageling, J.), on fourteen counts of aggravated felonious sexual assault (AFSA). See RSA 632-A:2 (Supp. 2022). He argues that the trial court erred by: (1) improperly responding to a jury question during its deliberation concerning the State's burden of proof; and (2) allowing the State to introduce evidence in its case-in-chief of the defendant's pre-arrest refusal to speak to the police. We conclude that the trial court sustainably exercised its discretion in responding to the jury question.
We further conclude that the trial court erred in admitting evidence of the defendant's pre-arrest silence in the State's case-in-chief, but that any error was harmless beyond a reasonable doubt. Accordingly, we affirm.
The jury could have found the following facts. The defendant has two children with his ex-wife, a daughter, E.B., and a son, T.B. After the couple divorced, the children lived with their mother and visited the defendant at his residence every other weekend. After his divorce, the defendant met and subsequently began a romantic relationship with P.C. Around 2007, the defendant moved into P.C.'s two-bedroom apartment with her two young daughters, A.P. and S.P. Approximately one year later, when A.P. was six years old and S.P. was three years old, the defendant, P.C., and the two girls moved into a different two-bedroom apartment. There, the defendant and P.C. shared one bedroom, and A.P. and S.P. shared the other bedroom. When E.B. visited the defendant at the apartment, she slept on the floor of the bedroom that A.P. and S.P. shared. In 2012, P.C. gave birth to a son, J.B., fathered by the defendant. After J.B.'s birth, he and T.B. (when present) shared the bedroom formerly occupied by the defendant and P.C., who then slept on a sofa in the living room.
On April 11, 2019, E.B. told her mother that the defendant had sexually assaulted her. Her mother informed the local police department of her daughter's disclosure and expressed concern for A.P. and S.P. Thereafter, the police spoke with P.C. and asked her if she believed that the defendant was sexually assaulting her daughters. P.C. responded that she believed it to be true and that "it wasn't the first time [she] had suspected it." The police then went to the apartment and spoke with S.P., who also disclosed that the defendant had sexually assaulted her. Following S.P.'s disclosure, A.P. disclosed that the defendant had sexually assaulted her as well.
On April 15, 2019, E.B., A.P., and S.P. were interviewed at a Child Advocacy Center (CAC). The following day, the police obtained an arrest warrant for the defendant, who later that day "showed up" in the police station lobby to collect some paperwork. Prior to informing the defendant of his arrest, two officers approached the defendant and asked him if he was willing to provide a statement. After the defendant "declined," the officers arrested him. Thereafter, a grand jury indicted the defendant on fourteen counts of AFSA committed against E.B., A.P., and S.P. Eight of the charges alleged pattern offenses, and six of the charges alleged single incidents of AFSA.[1] All three minor victims testified at trial. A.P. testified that the first sexual assault occurred when she was six years old and continued regularly thereafter for the next ten years until law enforcement became involved. She informed the jury that the defendant initiated the sexual assaults by asking her to "lay with" him, which A.P. understood to be the defendant's code word for sex, and that if she refused, he threatened to take away her phone. She testified that the sexual assaults generally occurred as often as four times a week and whenever she was alone at the apartment with the defendant. A.P. also testified that the assaults typically concluded with the defendant ejaculating onto her bedsheets. In addition, A.P. described sexual assaults that occurred while she was sleeping in the same bedroom with her sister, S.P., who was asleep.
For her part, S.P. testified to substantially similar conduct by the defendant. S.P. testified that the sexual assaults began when she was nine, and increased in frequency until the defendant's arrest. She testified that the assaults occurred "every other day" when she was alone with the defendant in the apartment, with the last sexual assault occurring two days prior to her disclosure to the police. She revealed that, in one instance, the sexual assault ended with the defendant ejaculating onto her bedsheets. She also described the defendant telling her that she needed to "lay with" him, a reference she understood to mean "having sex with him," either to receive gifts or to avoid punishments.
E.B. testified that the first sexual assault occurred when she was six and continued about every other time she visited the apartment from fourth grade until her eighth grade school year. Generally, the sexual assaults occurred at night after E.B. went to bed, either when she was sleeping in the bedroom alone, or when both A.P. and S.P. were sleeping in the bedroom with her.
One of E.B.'s friends and E.B.'s boyfriend also testified at trial. The friend testified that, when E.B. was approximately eleven or twelve years old, she disclosed that the defendant "was touching inappropriate areas" and that E.B. was scared to visit the apartment. Later, about six or seven months prior to her disclosure to her mother, E.B. told the friend that her "dad has been raping [her]." In response, the friend told E.B. to threaten the defendant and E.B. sent a message to the defendant telling him that if he ever touched her again, she would tell her mother. After this message, the defendant's sexual advances stopped for a "long time," until the defendant asked E.B. to "lay down with me" as a birthday present, but she refused to do so. E.B. testified that when the defendant asked her to "lay with" him she understood that he was asking for sexual intercourse, which he often attached to gifts. Two days prior to her disclosure to her mother, E.B. informed her boyfriend of the sexual assaults. The boyfriend told E.B. to tell her mother right away, or else he would do so.
Each victim testified that she never observed the defendant sexually assaulting the other victims. However, the defendant's son, T.B., testified that, on one occasion in 2019 during a visit to the apartment, he left his room at night and witnessed A.P. and the defendant engaging in sexual intercourse.
During the course of the investigation of the victims' allegations, the police collected bedding from the apartment. At trial, a serologist employed by the New Hampshire State Police Forensic Laboratory testified that bedding taken from S.P.'s bed contained semen stains with a rare DNA profile matching the defendant's DNA profile within a statistical probability of "1 in 390 billion people."
At trial, the defendant testified and denied sexually assaulting the three victims. The defendant explained that his relationship with P.C. at the time of the victims' disclosures was "[n]ot good at all" and that P.C. would regularly accuse him of being a "pedophile in front of [his] kids." He also testified that he often slept in the children's beds when tired from his irregular working hours, and that sometimes he became sexually aroused while sleeping. In its closing, the defense hypothesized that the defendant may have "had an emission in his sleep," which explained the semen on one of the victim's bedsheets. The defense also focused on the defendant's denial of the underlying conduct throughout the criminal investigation, argued that P.C.'s accusations may have planted the idea in the victims' heads leading to their contrived allegations, and stressed the implausibility of the separate victims never observing the defendant's conduct, despite their testimony that the defendant often committed sexual assaults against one victim while the other victims were asleep in the same room.
Following the nine-day trial, the jury convicted the defendant on all fourteen AFSA counts. The court sentenced the defendant to cumulative stand-committed terms totaling 60 to 120 years. This appeal followed.
The defendant first argues that the trial court erred in answering a question posed by the jury during its deliberation. The jury sent the judge two questions relevant to this appeal. The first question asked, "Please define [r]easonable doubt to non[-]legal people and somehow quantify reasonable doubt?" The court responded by providing its original jury instruction defining reasonable doubt and directing the jury to consider that definition. The court added that this court has "provided [trial courts] with this definition of the term 'reasonable doubt' with instruction to not veer from it when instructing a jury." However, the judge clarified "that there is no number or percentage to be assigned to the concept of 'reasonable doubt.'"
Thereafter the jury followed up with another question concerning the State's burden of proof: "If you believe it's more than likely then [sic] not that the Defendent [sic] commited [sic] accused crimes, Is that worthy of a Guilty verdict?" Overruling the defendant's request for a direct answer, the court responded that ...
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