THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No. 2013-0840, State of New Hampshire v. Timothy J. Beers, the court on February 23, 2015, issued the following order: The defendant, Timothy J. Beers, appeals his conviction, following a jury trial in Superior Court (Nicolosi, J.), on four counts of pattern aggravated felonious sexual assault. See RSA 632-A:2, III (2007). He argues that the trial court erred by not sustaining his objections to certain statements made by the prosecutor during closing arguments. We affirm. The defendant first argues that the trial court erred by overruling his objection to statements of the prosecutor that he claims introduced facts that were not in evidence. In examining claims of prosecutorial misconduct during closing argument, we face the delicate task of balancing a prosecutor s broad license to fashion argument with the need to ensure that a defendant s rights are not compromised in the process. State v. Gaudet, 166 N.H. 390, 398 (2014) (quotation omitted). 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 them to draw inferences of guilt from the evidence. Id. at 399 (quotation omitted). The prosecutor may not, however, invite the jury to base its decision upon facts that were not introduced at trial. State v. Glodgett, 148 N.H. 577, 582 (2002). In this case, the State introduced evidence that when the victim, who was twenty-four years old at the time of trial, was a child, he struggled with school work, and was picked on by classmates because he was in special education classes. Both the victim and his mother attributed these issues to a learning disability. When the victim attended college, he continued to struggle with his grades, and began to struggle with substance abuse. He attributed the substance abuse, in part, to the defendant. The State did not offer any expert testimony that these issues were consistent with having been sexually abused. The defendant began his closing argument by emphasizing the lack of testimony that anyone had suspected that the victim was being abused contemporaneously with the abuse: This is the only physical thing for you to really analyze in this case, and this is a small mobile home in a small community. Someone would have seen something, someone would have detected something or suspected something, but nobody did. Sometimes the
simplest interest is the truth. Nobody saw anything, nobody suspected anything, because nothing happened.... Don t you think that if the State had some proof, some witness, somebody to come forward and corroborate the story, they would have produced that person for you?... Not one single person came in and said yes, over the years I noticed something, [the victim] seemed troubled, his grades were falling, there was some signal that something wasn t right at home, but there was nothing, and there was nothing because [the defendant] is innocent. The State offered the following response to this theme: [The defendant s counsel] is half-right in some things she said when she began her closing statement.... You see the simplest answer that s in front of you when you look for signs. There s a lesson that they teach young doctors when they re going through medical school, there s a saying, and they tell young doctors,... When you [hear] hoof beats, think horses not zebras. So when someone comes into your office and they have sniffles and they have a fever,... they want you to diagnose this person with a common cold, they don t want you to right off the bat say well, it must be malaria because that s not the simplest explanation. So when [the victim s mother] saw all of these signs in her son,... like his struggles in school, any troubling grades, any problems he was having with other children..., she looked for the simplest answer, which was clearly [the victim s] learning disability. There were signs probably throughout [the victim s life] that weren t easily recognizable as sexual assault, and that no one would jump to the conclusion that my child s being [sexually] assaulted, especially someone who s in [the victim s] position, who had the difficulties that he had, that other children don t have to go through, other families don t have to deal with. There were signs. There were signs when he got to college and started drinking and abusing marijuana. Those are signs that you look to and you think, well, any kid who just turns 17-18, who s off on their own for the first time, that s something that they do. They didn t know that all of those things... were signs of something that was much deeper than just the everyday troubles 2
[that the victim] was going through. They didn t know that those were signs of what [the defendant] had done to him years before. At this point, the defendant objected, arguing that, because there was no expert testimony establishing that the victim s struggles were symptoms of sexual abuse, the State was improperly arguing facts that were not in evidence. The trial court overruled the objection. On appeal, the defendant argues that the trial court erred because there was no expert testimony attributing the victim s struggles to sexual abuse, or lay testimony from which the jury could reasonably have inferred that the struggles were signs of sexual abuse. We assume, without deciding, that each aspect of this argument is preserved for our review. In State v. Cressey, 137 N.H. 402, 412 (1993), we held that an expert witness may not opine that a particular child has, in fact, been sexually abused from evidence that the child engages in certain behaviors. Although we further held that the expert may explain the behavioral characteristics that are commonly found in child sexual abuse victims, see id., nothing in Cressey requires expert testimony before a jury may consider the child s behavior as evidence of abuse. Indeed, we expressly observed in Cressey that the relevance of such evidence is within the competence of the average juror, and that a jury may draw its own conclusions from such evidence. See id. at 411. In this case, it was the defendant who invited the jury to infer that the victim was not abused because no one had noticed something, [the victim] seemed troubled, his grades were falling, there was some signal that something wasn t right at home. Regardless of whether the victim or his mother attributed his struggles to sexual abuse, the prosecutor was well within his great latitude to invite the jury to draw the contrary inference that his struggles were, in fact, the signal[s] that no one had noticed. Gaudet, 166 N.H. at 399. We note that the victim did attribute his substance abuse, at least in part, to the defendant. The defendant next argues that the trial court erred by overruling his objection to the State s argument which, he claims, impermissibly shifted the burden of proof. A defendant s decision not to testify or present evidence in his own defense can provide no basis for an adverse comment by the prosecutor. State v. Fowler, 132 N.H. 540, 545 (1989). At trial, the defendant impeached the victim multiple times with prior testimony from an earlier trial and a deposition. During his closing argument, the defendant argued that the victim was lying, describing him as uncomfortable when I brought up some of his prior testimony, prior sworn statements with big material differences, and stating that the victim provided details and facts that contradicted his prior sworn testimony. The defendant acknowledged, however, that he could not establish the victim s motive to lie: 3
Maybe you can think of a time in your life when somebody told a lie or spread a rumor about you or somebody you cared about. I want you to take a second to think about that, if that ever happened to you. You might have wondered in that circumstance why they were telling that lie. You wanted to know what s motivating that person to do this to me, but you can t figure it out, you can t get in their head, you just don t know, and unfortunately, we can t provide you with any answer for why [the victim] is lying, we don t know.... When you re back in the jury room, you re going to wonder to yourselves why would [the victim] lie about something so serious, something so big, and you might have guesses and you might not be able to come up with the answer, and as I told you before, I really wish I could give you an answer, and I just don t know. All I can do is point to the facts. In response, the State argued: The second reason I m going to give you folks that you should believe [the victim], and I want to be very clear about this because it s a matter of well, it s a matter of his credibility, really. Defense made a big point in opening and closing, I m saying a couple times, but we can t give you an answer as to why [he] would be lying about this, which, when assessing [the victim s] credibility, I think is [an] awfully damning statement. They ve had multiple opportunities to figure out why [the victim] would be lying about this. Now they had a deposition where they had a chance to ask him questions themselves to figure out why [the victim] would be lying about this. They ve had a previous hearing under oath, they had his testimony The defendant objected, arguing that the State had improperly shifted the burden of proof to him to establish a motive to lie. The State countered that it was merely responding to the defendant s argument. Although the trial court warned the State that it was running close to the edge in saying that they have an obligation to find motive, it observed that the State could talk about the fact that the victim s been under oath twice. The defendant then requested a reinstruction on the burden of proof. Following the State s closing argument, the trial court instructed,... I want to remind you... that it s the State s burden to prove its case beyond a reasonable doubt, the Defense has no obligation to prove anything. The Defendant is innocent unless and 4
until the State has proven his guilt beyond a reasonable doubt by proving each and every element of the crime charged. On appeal, the defendant argues that the State improperly told the jury that he should have figured out why [the victim] was lying and presented evidence to that effect. He asserts that, under the three-part test for analyzing whether prejudicial comments by a prosecutor require a mistrial, see, e.g., State v. Ellsworth, 151 N.H. 152, 155 (2004), reversal of his conviction is necessary. We assume, without deciding, that this test applies in the absence of a request for a mistrial. Because we agree with the State, however, that the prosecutor s statements did not amount to an adverse comment on the defendant s decision not to present evidence in his own defense, see id. at 155; Fowler, 132 N.H. at 545, we conclude that the comments were not improper. In an effort to call into question the victim s credibility, the defendant highlighted the victim s prior testimony, but then conceded that he did not know why, and could not provide [the jury] with any answer for why, the victim would lie. The prosecutor s response that the defendant indeed had had two prior opportunities to examine the victim under oath and determine why he might be lying simply highlighted evidence that was before the jury, and underscored the weakness in the defendant s theory established by the evidence and acknowledged by the defendant himself. Nothing in the prosecutor s comments suggested that the defendant was obligated to prove the victim s motive to lie. We conclude that the prosecutor s comments constituted a permissible evidencebased response to the defendant s closing argument. Gaudet, 166 N.H. at 401. HICKS, LYNN, and BASSETT, JJ., concurred. Affirmed. Eileen Fox, Clerk 5