State v. Nieuwkoop

• Docket Number: 2022-0503
• Decision Date: 28 December 2023
• Parties: State of New Hampshire v. Nicholas Nieuwkoop,
• Court: New Hampshire Supreme Court

1

State of New Hampshire
v.
Nicholas Nieuwkoop,

No. 2022-0503

Supreme Court of New Hampshire

December 28, 2023

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The defendant, Nicholas Nieuwkoop, appeals his conviction by a jury of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I(m) (2016), arising out of a sexual encounter with the victim when both were University of New Hampshire (UNH) students. The defendant was indicted, in relevant part, for "having sexual intercourse with [the victim] when, at the time of the sexual assault, [the victim] indicated by speech or conduct that there was not freely given consent to the performance of the sexual act." The defendant contends on appeal that the Superior Court (Howard, J.) erred by denying his motion to dismiss and his post-trial motion for judgment notwithstanding the verdict (JNOV), which included an alternative argument to set aside the verdict as against the weight of the evidence. We affirm.

I

The jury could have found or the record otherwise supports the following facts. In September 2020, the victim was a first-year student at UNH and lived in a dorm with her roommate, L.H. C.S., a hometown friend of the victim who also went to UNH, invited her to an off-campus party scheduled for September 19, 2020. Leading up to the party, the victim began drinking a "pretty big" bottle of vodka. The victim brought the vodka with her to the party and continued to drink it. The victim rode to the party with C.S. and some of his other friends, including the defendant. The victim did not know the defendant.

Once at the party, the victim almost finished the bottle of vodka, drank about one fourth of a bottle of wine, and "shotgunned" a beer. After drinking the beer, the victim testified that she "black[ed] out," meaning that she had no further memory of the evening aside from "a very few spurts of things." At the party, C.S. observed the victim become intoxicated. He testified that on a scale of one to ten, with ten being the most intoxicated he had ever seen someone, that the victim was at a "nine or ten" by the time they left the party. C.S. told men at the party, including the defendant, that the victim was "really drunk and not to try anything on my friend." C.S. decided to leave the party and bring the victim to his nearby apartment to get her "away from drinking."

2

The defendant eventually arrived at the apartment, where the victim continued to present as "really drunk" and could not speak coherently. The victim indicated that she might need to throw up, so C.S. and the defendant helped the victim to the bathroom because she could not manage on her own. C.S. attempted to get the victim a ride back to her dorm. The defendant volunteered to get an Uber to take the victim to her dorm as he was a Resident Assistant (RA) at a dorm neighboring the victim's dorm. The victim needed help from both C.S. and the defendant to make her way from C.S.'s apartment to the Uber as she was "too drunk."

A group of students who knew the victim saw the defendant help her exit the Uber outside the defendant's dorm. The group noticed that the victim was holding a trash bag in front of her and was walking unsteadily. The group observed the victim to be very intoxicated and that she had a strapless bra around her waist. The group observed the defendant help the victim walk towards the defendant's dorm. One student asked the defendant what he was doing but the defendant did not respond. The student physically directed the defendant and the victim towards the victim's dorm. The defendant eventually entered the victim's dorm with the victim at 12:48 a.m. Although the victim's phone was later found in the bathroom just past her dorm room, the victim never entered her dorm room that night. At 12:57 a.m., the defendant returned to the defendant's dorm with the victim.

At 1:00 a.m., the defendant began texting with L.H. The defendant said that the victim was in his room, was "really f**ked up," and could "barely walk." The defendant said that he wanted "her to sit down and sober up." The defendant informed L.H. that he was an RA and "promise[d] [the victim is] good" and that he would not "let anything happen to her." L.H. told the defendant that she did not know him and did not "want anything to happen to [the victim] at all . . . because [the victim] cannot make a decision like that right now." The defendant responded that he understood and that he was "not trying to do anything like that."

The victim awoke the next morning in the defendant's bed, wearing only a thong, with the defendant's arms around her. The victim immediately vomited into a nearby trash bin. She testified that she felt "terrible" and intoxicated. She said that certain memories from the evening came back to her after waking up. She recalled throwing herself into a bathroom stall in her dorm and that she had urinated herself. She remembered a brief instant of opening her eyes and feeling the defendant having sex with her at a time when it was still dark outside. She also remembered waking up and vomiting all over the bed when "it was transitioning into the morning."

After waking up, the victim noticed that the bed and windowsill, along with her body and hair, were covered in her vomit. When she put on her clothes, she noticed her "pants...