State of New Hampshire v. Armando Lisasuain, 117 A.3d 1154

Victim (14) lived with her mother; defendant (46), a family friend, stayed at the home several nights a week.
On Oct. 23, defendant began with a foot rub, then sucked the victim’s toes, asked to “go lower,” pulled down her pants/underwear, performed cunnilingus, and digitally penetrated her; the victim testified she was in shock and did not verbally or physically resist.
The victim later disclosed the assaults to shelter staff and was interviewed at a Child Advocacy Center.
Defendant was tried and convicted of, inter alia, two counts of aggravated felonious sexual assault under RSA 632-A:2, I(m).
At trial, defendant moved for dismissal and later for JNOV arguing insufficient evidence of nonconsent because the victim never verbally or physically indicated lack of consent; both motions were denied.
Defendant also contested the scope of in camera disclosure of the victim’s records and the exclusion of cross-examination about the officer’s interview (nature/duration and alleged lack of admissions). The Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to prove lack of consent under RSA 632-A:2, I(m)	State: Victim’s inaction, failure to assist, and lack of participation constituted conduct indicating nonconsent	Lisasuain: Statute requires an affirmative verbal or physical indication of nonconsent; passive silence cannot satisfy it	Court: Evidence of totality of circumstances (age gap, relationship, victim’s nonparticipation/shock) sufficient; silence/inaction can indicate lack of consent
Scope of in camera review/disclosure of victim records	State: Trial court properly reviewed records and disclosed what was necessary	Lisasuain: Trial court should have disclosed more records as potentially material to defense	Court: No unsustainable exercise of discretion; trial court’s disclosure decisions were reasonable
Admissibility of testimony about officer’s interview (nature/duration) and defendant’s lack of admissions	State: Proffered testimony was hearsay or irrelevant; context would improperly suggest truth of nonadmissions	Lisasuain: Officer’s questioning and interview length show defendant didn’t admit; relevant impeachment/context evidence	Court: Excluding evidence of lack of admissions was proper; nonverbal conduct offered to prove truth is hearsay and was not admissible

State v. Kay, 162 N.H. 237 (2011) (standard of review for sufficiency of the evidence)
State v. Graham, 142 N.H. 357 (1997) (view evidence in light most favorable to State on sufficiency review)
State v. Thompson, 164 N.H. 447 (2012) (statutory interpretation reviewed de novo; plain meaning governs)
State v. Alwardt, 164 N.H. 52 (2012) (review of trial court withholding records under unsustainable exercise of discretion)
Desclos v. S. N.H. Med. Ctr., 153 N.H. 607 (2006) (discovery and admissibility rulings reviewed for unsustainable exercise of discretion)
State v. King, 162 N.H. 629 (2011) (defendant must show trial court rulings clearly untenable or prejudicial to prevail)
State v. Munroe, 161 N.H. 618 (2011) (deference to trial court on admissibility of evidence; hearsay definition and exclusions)