State v. Chandler

• Docket Number: s. 2019-0314,2021-0314
• Decision Date: 21 November 2023
• Citation: 313 A.3d 677
• Parties: The STATE of New Hampshire v. Keith CHANDLER
• Court: New Hampshire Supreme Court

313 A.3d 677

The STATE of New Hampshire

v.Keith CHANDLER

Nos. 2019-0314

2021-0314

Supreme Court of New Hampshire.

Argued: October 18, 2022

Opinion Issued: October 25, 2023

Opinion Modified: November 21, 2023

Belknap

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Sam M. Gonyea, attorney, on the brief, and Audriana Mekula, attorney, orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

The defendant, Keith Chandler, appeals his convictions, following a jury trial in the Superior Court(O’Neill, J.), on five counts of aggravated felonious sexual assault, RSA 632-A:2, I(1), III (2016), two counts of attempted aggravated felonious sexual assault, RSA 632-A:2, I, (j)(1)(Supp. 2022), and two counts of felonious sexual assault, RSA 632-A:3, 111(a)(1)(Supp. 2022).The defendant argues that the trial court erred when it: (1) denied his motion in limine to preclude the admission of a printed image of electronically stored information; (2) denied his motion for a new trial based upon ineffective assistance of counsel; and (3) failed to disclose records following in camera review.We affirm in part, but remand for the trial court to review the confidential records in accordance with the standard set forth in State v. Girard, 173 N.H. 619, 247 A.3d 358(2020).

The record supports the following facts.The victim’s biological parents divorced when she was young and her mother then married the defendant.The victim lived with her mother and the defendant for most of her childhood.In late 2016, the victim told her boyfriend that the defendant had sexually assaulted her, but threatened to break up with him if he told anyone.After the victim and the boyfriend broke up for unrelated reasons, they continued to communicate on social media.The boyfriend encouraged the victim to tell the authorities about her allegations against the defendant, and gave her a deadline for doing so.When the deadline passed, the boyfriend told his therapist about the allegations, who reported the information to the New Hampshire Division for Children, Youth and Families(DCYF).When the police and DCYF social workers went to the family’s home to interview the victim, she initially told them, "I know why you’re here but it’s not true," but later told them the defendant had sexually assaulted her.In December 2016, the defendant was indicted on six counts of aggravated felonious sexual assault, two counts of attempted aggravated felonious sexual assault, and two counts of felonious sexual assault.During the trial, the Statenolle prossed one of the aggravated felonious sexual assault indictments.

Prior to trial, the defendant filed a motion in limine to preclude admission of a printed image of a screenshot of Facebook messages the victim allegedly sent to the boyfriend.The image was of a screenshot the victim took of an exchange between her and the defendant on Facebook Messenger.According to the motion, the victim sent this screenshot to the boyfriend, deleted it from her phone, and later asked the boyfriend to send it back to her.At the hearing on the motion, the defendant submitted the screenshot reflecting the following:

Dad: My dick is

Wanna see

Account owner: No

Dad: Liar

Account owner: No

Dad: Yup

Account owner: Please stop.

In a written order issued prior to trial, the trial court denied the defendant’s motion, stating, in part:

Upon review, the Court concludes that the State has offered sufficient evidence to support a finding that the evidence in question is what it claims to be.In support of authentication, the State proffered [that the victim] will testify that she received messages like this from defendant routinely, this is the way he communicated with her regularly, that he sent many messages to her from this account, the avatar on the messages is the photograph the defendant used for his Facebook account around the same time, and that she was the recipient of this message.[The victim] will also testify that she took a screen shot of these messages and sent it to [the boyfriend].[The boyfriend] will testify that he received this screenshot from [the victim] and that he still has this screen shot.The Court concludes that this is sufficient to support a finding that the messages are messages from the defendant, and the ultimate determination of the author of the messages is left to the jury.

A photograph of the screenshot was ultimately admitted into evidence at trial as State’s Exhibit 1.

The State called four witnesses at trial—the victim, the boyfriend, and two of the investigating officers.The victim testified that the defendant regularly sexually abused her from the age of 11 or 12 until she was approximately 16.She estimated that the defendant forcibly had sexual intercourse with her 30 times, forced her to perform oral sex on him 25 times, and forcibly performed oral sex on her 10 times.She testified that she mentioned the abuse to her mother when she was 12 or 13 years old and her mother asked her "what [she] wanted to do."The victim testified that her mother told her that "[the defendant] has a lot of health issues" and "that’s why he would do something like that."The victim also testified that as a consequence of that conversation, she was "scared" to report the abuse to any figure of authority, because if "her mom doesn’t do anything about it, why would anybody else."In addition to the sexual abuse, the victim testified that she communicated with the defendant on Facebook "multiple times a day," and that he would "send [her] pictures of pornography, video links to different pornography sites, [and] messages relating to him wanting to have sex."The victim also testified that because the defendant had her username and password, he was able to delete the messages after she read them.

According to the testimony of one of the investigating officers, the victim had informed the police that she received messages or images via text message or through Facebook Messenger, that she did not have any of the phones that she received messages on, and that she did not keep any of the ’messages on Facebook Messenger that she had received from the defendant.When the investigating officer was asked on cross-examination whether he knew that it was possible to get photos and messages that have been deleted, he explained, "not from Facebook Messenger.Facebook does not hold on to that.So once somebody deletes something from their Facebook account, it’s gone."

The victim testified that she eventually told the boyfriend about the sexual abuse and sent him a screenshot of messages the defendant had sent to her on Facebook.She identified State’s Exhibit 1 as "the message [the defendant] had sent [her]" and as the "screenshot that [she] had sent [the boyfriend]."She testified that she knew from the screenshot that the defendant sent the messages because of "the photo icon next to each message that [the defendant] had sent."The photo icon was the "profile picture of the [defendant’s] Facebook profile," and was a "picture taken of [the victim], [her]mother, and [the defendant] at a Halloween party."

The boyfriend testified at trial regarding an incident that occurred while he and the victim, who were dating at the time, were watching a movie at her home.He and the victim were sitting together on the couch when a notification appeared on her phone containing a pornographic picture of two people having sex.When the victim opened her phone, he"could see it was from [the defendant]."He asked about the picture, but the victim "just shut [him] down and dismissed all [his] questions," and told him to "just leave it alone."Several months later, however, the victim "broke down and told [him] that [the defendant] had raped her."The boyfriend also testified that he received a screenshot of a message thread, and that the cell phone pictured in State’s Exhibit 1, the screen of which depicted the screenshot the victim sent him, was a photograph of his cell phone.He stated that he recognized the avatar next to the messages sent by the defendant as the defendant’s "profile picture," which was a picture of the victim, her mother, and the defendant on Halloween.He recognized the picture because "[he] was with them on Halloween" and might have taken the picture himself.

The defense did not call any witnesses at trial, but challenged the victim’s credibility on cross-examination.In doing so, counsel established that the victim had numerous opportunities to report the abuse, but did not do so, that the victim had alleged that the defendant’s cousin had sexually assaulted her, and that the cousin was tried and had been acquitted.Defense counsel also asserted that the victim had accused the boyfriend of rape, and confronted her with messages in which she appeared to allege that the boyfriend had raped her.In addition, defense counsel cross-examined the victim about a specific incident the victim had discussed during her Child Advocacy Center interview.She had reported during the interview that she was on a couch watching a movie and was seated between her mother and the defendant when the defendant put his hands down her pants and moved them toward her crotch area.The victim reported that she tried to pull away, but the defendant held her down and put his fingers in her vagina.During cross-examination, defense counsel pointed out that the victim’s mother was "sitting right next to [her]" while this was happening, and somehow "didn’t know it was happening."

The jury convicted the defendant on nine charges, and the defendant appealed.While the appeal was pending, the defendant filed a motion for a new trial in superior court, and the direct appeal was stayed pending the superior court’s resolution of the motion.The superior court subsequently denied the motion for a new trial, and the defendant filed a discretionary appeal,...