State v. Jeremy M. Fiske, 170 N.H. 279

Background

Victim (born 1996) alleged repeated sexual assaults by stepfather Jeremy Fiske from ages ~11–14, including forced touching, fellatio, photos, and coerced wearing of the mother’s clothing; assaults ceased when victim was 14.
In 2012 mother discovered a photo of the victim on defendant’s phone; defendant admitted he had "perversion addictions" in an e-mail to the mother.
Police later seized the defendant’s laptop; forensic exam recovered thumbnail images and two images (modified 9/13/2007) showing the victim (age ~11–12) with a dildo in her mouth; a file-shredder program had been used days before seizure.
Defendant was charged with pattern and discrete counts of aggravated felonious sexual assault (AFSA) and one count of possession of child pornography; trial court admitted the "perversion addictions" e-mail, denied an in camera review of counseling records, and denied motions to dismiss the child-pornography count.
Jury convicted the defendant on multiple counts; trial court imposed sentences on each conviction. Defendant appealed, raising four primary claims; the Supreme Court of New Hampshire affirmed.

Issues

Issue	State's Argument	Fiske's Argument	Held
1) In camera review of victim’s counseling records	No need — victim did not disclose abuse to counselor and statutory reporting obligations make undisclosed reports unlikely; defendant already knew of non-disclosure	Records could show victim never told counselor (no mandated report), which would support defense that abuse never occurred and warrant in camera review	Trial court did not abuse discretion — defendant failed to show a reasonable probability the records would yield material, exculpatory information beyond what he already knew (Gagne standard)
2) Admission of defendant’s e-mail admitting he had “perversion addictions”	Probative — shows sexual interest in victim and corroborates victim’s testimony; probative value not substantially outweighed by prejudice	Highly prejudicial and minimally probative under RSA 403 — amounted to character evidence of being a "pervert"	No abuse of discretion — admission relevant to issue of sexual interest and victim credibility; compared to graphic trial testimony, the e-mail posed minimal additional unfair prejudice
3a) Sufficiency / statute of limitations re: child pornography count	Circumstantial evidence (modified date, ongoing sexual interest, recent file-shredder use) supports inference defendant knowingly possessed images within six-year limitations	Modified date (9/13/2007) is outside limitations; expert could not exclude deletion then, so State failed to prove knowing possession within six years	Evidence sufficient for a rational jury to infer defendant possessed/deleted images within limitations; denial of dismissal affirmed
3b) Whether simulated fellatio qualifies as “sexually explicit conduct”	Definition of "simulated sexual intercourse" includes acts that give appearance of consummation; simulated fellatio with dildo qualifies as simulated intercourse and thus sexually explicit conduct	"Sexual intercourse" limited to penile-vaginal penetration; simulated fellatio is not simulated intercourse and therefore not covered	Statutory interpretation: simulated fellatio can fall within "simulated sexual intercourse" and thus within definition of "sexually explicit conduct" in RSA chapter 649-A; conviction stands
4) Jury instruction that pattern and discrete AFSA counts were alternative charges and could result in only one sentence per alternative	Instruction correctly informed jury that some charges were alternative ways of alleging same conduct; sentencing consequence explained	Instruction was legally incorrect and prejudicial because it minimized potential penalties and affected jury reasoning; claimed plain error on appeal	No plain error. Although instruction was erroneous, defendant failed to show it affected substantial rights or fairness of proceedings given overall instructions and presumption jurors follow instructions

Key Cases Cited

State v. Gagne, 136 N.H. 101 (1992) (standards for in camera review of privileged/confidential records)
State v. Eaton, 162 N.H. 190 (2011) (applying Gagne; defendant’s burden to show reasonable probability of materiality)
State v. Tabaldi, 165 N.H. 306 (2013) (standard of review for evidentiary rulings and Rule 403 analysis)
State v. Kim, 153 N.H. 322 (2006) (factors for weighing probative value against prejudice under Rule 403)
State v. Pelkey, 145 N.H. 133 (2000) (example where admission of more severe statements posed extreme risk of unfair prejudice)
State v. Cable, 168 N.H. 673 (2016) (standard for sufficiency review; circumstantial evidence may suffice)
State v. Craig, 167 N.H. 361 (2015) (permissible inferences from proven facts in criminal cases)
State v. Guay, 162 N.H. 375 (2011) (statutory interpretation principles reviewed de novo)
State v. Breest, 167 N.H. 210 (2014) (constructions of Criminal Code to promote justice; avoid absurd literal readings)
In the Matter of Blanchflower & Blanchflower, 150 N.H. 226 (2003) (definition of "sexual intercourse" in different statutory context)
State v. Beede, 128 N.H. 713 (1986) (comments on jury instructions and sentencing implications)
State v. Houghton, 168 N.H. 269 (2015) (plain error standard)