Harmless Error, Cumulative Digital Evidence, and “Open-the-Door” Cures in AFSA Prosecutions: State v. Viveney (N.H. 2025)

Harmless Error, Cumulative Digital Evidence, and “Open-the-Door” Cures in AFSA Prosecutions: State v. Viveney (N.H. 2025)

Introduction

In State of New Hampshire v. Christopher Viveney, the Supreme Court of New Hampshire affirmed two convictions for aggravated felonious sexual assault (AFSA) under RSA 632-A:2, I(b), I(i). The defendant appealed on three fronts: (1) that the trial court erred by prohibiting the defense from introducing certain text messages between two State witnesses (Preston and Sijapati); (2) that the trial court erred by sustaining a hearsay objection to testimony that the complainant invited him to subscribe to her “OnlyFans” account; and (3) that the court may have erred in withholding portions of records reviewed in camera.

The Supreme Court resolved the appeal through an order under Supreme Court Rule 20(3) and declined to decide whether the evidentiary rulings were erroneous because, assuming error, each was harmless beyond a reasonable doubt. The Court also independently reviewed the confidential records and held that the trial court appropriately withheld the undisclosed materials.

Parties and posture:

  • Appellant: Christopher Viveney (defendant)
  • Appellee: State of New Hampshire
  • Court of original conviction: Superior Court (Delker, J.), jury trial
  • Result on appeal: Convictions affirmed; burglary acquittal left undisturbed
  • Decision date: June 13, 2025

Summary of the Opinion

The Court affirmed Viveney’s AFSA convictions, holding:

  • In-camera records: Upon the Court’s own review of the withheld and disclosed materials, the trial court correctly refused to disclose further portions of the records. No error.
  • Exclusion of text messages: Even assuming the trial court erred by excluding defense exhibits (text messages showing invitations to the bar and an after-party), any error was harmless beyond a reasonable doubt because (a) the messages were immaterial to the material disputes or cumulative of testimony already before the jury; and (b) the jury’s burglary acquittal indicated it did not find unlawful entry or criminal intent in entering the residence, reducing any possible prejudice.
  • “OnlyFans” testimony: Even assuming error in excluding the defendant’s claim that the victim invited him to subscribe to her “OnlyFans” account, any error was harmless because (a) the State’s cross-examination “opened the door,” leading the court to allow substantively similar testimony on re-direct (that the complainant showed defendant nude and semi-nude images from her OnlyFans); and (b) the State’s case was strong and supported by corroborated, contemporaneous texts and the defendant’s own damaging admissions, rendering any exclusion inconsequential.

Applying the totality-of-the-circumstances framework from State v. Boudreau, the Court concluded the State proved beyond a reasonable doubt that any assumed evidentiary errors did not affect the verdicts.

Analysis

Precedents and Authorities Cited

  • State v. Roy, 174 N.H. 622 (2021): Establishes the unsustainable exercise of discretion standard governing appellate review of evidentiary rulings. Although the Court acknowledged this standard, it resolved the appeal on harmless-error grounds, making it unnecessary to decide whether the trial court’s rulings were erroneous under Roy.
  • State v. Boudreau, 176 N.H. 1 (2023): Provides the controlling harmless-error framework. The Court reiterated that the State must prove beyond a reasonable doubt that any error did not affect the verdict. Relevant factors include:
    • Strength of the State’s case
    • Whether the evidence at issue was cumulative or inconsequential
    • Presence of corroborating or contradicting evidence
    • Curative measures by the trial court
    • Whether other evidence of guilt was overwhelming
    No single factor is dispositive. The Viveney Court applied this matrix to both alleged evidentiary errors.
  • State v. Edic, 169 N.H. 580 (2017): Supports the proposition that exclusion of evidence that is cumulative of other evidence is harmless. The Court used Edic to analogize: here, the excluded text messages were cumulative of testimony already before the jury and, therefore, inconsequential to the verdict.
  • State v. Lemieux, 136 N.H. 329 (1992): Demonstrates that even where evidence may have been erroneously admitted (or excluded), if the challenged item is cumulative to other evidence, its effect is inconsequential. The Court relied on Lemieux to underscore that the defendant’s re-direct testimony, admitted after the State “opened the door,” supplied the core substance the excluded “OnlyFans” testimony would have provided.

Statutes and rules referenced:

  • RSA 632-A:2, I(b), I(i) (Supp. 2024): AFSA statutory provisions under which the defendant was convicted.
  • RSA 632-A:6, II (Supp. 2024): New Hampshire’s rape-shield law. The Court declined to resolve whether the “OnlyFans” invitation evidence implicated the statute because harmless error resolved the claim.
  • N.H. R. Crim. P. 12(b)(2): Criminal discovery obligations; used by the trial court as the basis to exclude late-disclosed defense text-message exhibits. The Supreme Court did not reach whether exclusion was correct under this rule, instead affirming on harmless-error grounds.
  • Sup. Ct. R. 20(3): Permits disposition by order rather than a full opinion.

Legal Reasoning

1) In-camera review and nondisclosure

The Court independently reviewed records the trial court examined in camera and concluded the trial court acted within its discretion in withholding additional materials beyond those it disclosed. This signals adherence to a familiar two-step approach: (i) trial court screens materials in camera; (ii) appellate court, when properly invoked, performs an independent review for abuse of discretion or legal error. No error was found.

2) Exclusion of text messages between Preston and Sijapati

The defense sought to admit messages purportedly inviting the defendant and Sijapati first to a bar and later to an after-party at Brooks’s residence. The State objected due to late disclosure under Rule 12(b)(2), and the trial court excluded the messages as exhibits but allowed testimony about receiving them and their content.

On appeal, the Court assumed error arguendo and held the exclusion harmless, reasoning:

  • Immateriality as to the bar: Neither Brooks nor Preston was asked whether they invited the defendant to the bar, and the defendant’s presence there was not the material controversy; what mattered was the interaction at the bar and later events. The bar-invitation evidence was therefore immaterial.
  • Cumulative as to the after-party: Both the defendant and Sijapati testified that they received invitations to Brooks’s residence. Although Brooks and Preston denied inviting anyone, the jury acquitted the defendant of burglary—a charge predicated, in part, on unauthorized entry with criminal intent. That acquittal strongly suggests the jury believed there was an invitation or at least that the defendant lacked criminal intent upon entry. Thus, the excluded message exhibits were cumulative of already-admitted testimony and inconsequential to the AFSA counts.

This component of the decision offers an important analytical move: the Court looked to the jury’s acquittal on a related count (burglary) to gauge the likelihood that the excluded invitation texts affected the AFSA convictions. The acquittal functioned as a practical indicator that the jury credited the defense’s narrative on entry/privilege, rendering additional documentary proof cumulative.

3) Exclusion of testimony that the complainant invited the defendant to join her “OnlyFans”

The defendant argued that (i) the trial court erred in sustaining a hearsay objection because the purported invitation was not an assertion of fact; and (ii) the rape-shield statute did not apply because the invitation was not sexual activity or an invitation to sexual activity. The Supreme Court again assumed error but held the exclusion harmless beyond a reasonable doubt, based on two pillars:

  • Curative admission via “opening the door” (cumulativeness): The State’s cross-examination opened the door, and on re-direct the defendant was allowed to testify that the complainant showed him nude and semi-nude images from her OnlyFans and to explain what OnlyFans is. While he did not repeat the exact “invitation to subscribe,” the admitted testimony allowed the jury to infer that she wanted him to view (and perhaps subscribe to) her content—substantively overlapping with the excluded assertion. Hence, any exclusion was cumulative and inconsequential.
  • Strength of the State’s case: The complainant consistently denied consenting to intercourse; her account included specific details corroborated by near-contemporaneous text messages to a friend and to Brooks on the morning after the incident. Brooks observed conduct consistent with trauma shortly after waking. Against this, the defendant’s credibility was undermined by his own text admissions (apologies; “I was hammered,” “I f***ed up,” “I am an a**hole”) and by contradictions (including inconsistency with his later testimony about impairment). Given this evidentiary landscape, any error about the “OnlyFans” invitation was harmless in light of the totality of circumstances.

Impact and Practical Implications

  • Harmless error in the exclusion of digital communications: Viveney reinforces that excluding late-disclosed digital messages (texts) can be harmless where their substance is covered by testimony at trial or where an acquittal on a related count demonstrates that the jury accepted the defense’s position on the point those messages were offered to prove.
  • “Open-the-door” doctrine as a practical cure: Even if a piece of defense evidence is excluded at first, if the State’s cross-examination opens the door to similar content, the defense can obtain functional admission on re-direct. When such a cure occurs, appellate courts may treat the initial exclusion as harmless because the jury ultimately heard the core substance.
  • Cumulative evidence analysis is dispositive in close evidentiary appeals: Viveney shows that courts will closely examine whether excluded or admitted evidence is cumulative of other evidence, especially where witnesses have already testified to the same facts. Practitioners should build a record demonstrating why a specific piece of evidence uniquely affects the case, beyond what the jury has already heard.
  • Acquittal on a related count can undermine prejudice: The Court’s reliance on the burglary acquittal to show lack of prejudice is a significant signal: outcomes on related charges can be a datapoint in the harmless-error analysis for evidentiary issues on remaining counts.
  • In-camera review standards remain robust but deferential: The Court’s independent review and affirmance of nondisclosure underscores the continuity of New Hampshire practice: trial courts will be affirmed where withheld records do not materially bear on the contested issues or do not meet the applicable disclosure thresholds.
  • Discovery compliance matters, but prejudice must be shown: Although the Supreme Court did not reach whether exclusion for late disclosure under Rule 12(b)(2) was correct, the case illustrates a recurring reality: even arguable discovery errors will not warrant reversal without a concrete showing that the evidentiary ruling affected the verdict.

Complex Concepts Simplified

  • Harmless error (beyond a reasonable doubt): Even if the trial court made a mistake, an appellate court will not reverse if the State proves the error did not influence the verdict. Factors include the strength of the overall case, whether other evidence says the same thing (cumulative), and whether there were corrective steps during trial.
  • Cumulative evidence: Evidence is “cumulative” if it repeats points already established by other admitted evidence. Excluding cumulative evidence usually does not prejudice the defendant because the jury already heard the substance.
  • “Opening the door”: When one side introduces a topic, it may allow the other side to introduce otherwise inadmissible evidence to respond or complete the picture. It functions as a fairness doctrine to prevent a skewed impression.
  • In-camera review: A judge privately reviews sensitive records (e.g., counseling, medical, or other protected documents) to decide whether any part must be disclosed to the parties. Appellate courts can review this determination to ensure the right balance was struck.
  • Rape-shield statute (RSA 632-A:6, II): Limits evidence about a complainant’s past sexual behavior or predisposition, subject to exceptions. The Court did not decide whether the “OnlyFans” invitation implicated the statute, resolving the case instead on harmless error grounds.
  • Unsustainable exercise of discretion: New Hampshire’s deferential standard for reviewing trial-level evidentiary rulings. The Supreme Court bypassed this step by assuming error and finding it harmless.

Conclusion

State v. Viveney is a clear reaffirmation of New Hampshire’s rigorous harmless-error doctrine in evidentiary appeals. The decision emphasizes that:

  • Excluding digital-message exhibits can be harmless where the same facts are before the jury via testimony or where the verdicts themselves (e.g., an acquittal on a related count) show the jury was not misled.
  • When the State’s cross-examination opens the door, defense evidence of similar substance admitted on re-direct can render prior exclusions harmless as cumulative.
  • Strong, corroborated complainant testimony, contemporaneous corroborating communications, and a defendant’s damaging admissions weigh heavily in the totality-of-the-circumstances analysis.
  • In-camera nondisclosure rulings will be affirmed where independent appellate review shows no material exculpatory content was withheld.

Practically, Viveney teaches defense counsel to: (1) meet discovery obligations to avoid exclusion; (2) develop a record on why proffered evidence is uniquely probative beyond what the jury already has; and (3) capitalize on “opening the door” opportunities to cure earlier exclusions. For prosecutors, the case underscores that a carefully constructed evidentiary record—especially contemporaneous corroboration and the defendant’s own statements—can sustain a verdict even in the face of assumed evidentiary error. In the broader legal context, the decision incrementally clarifies how cumulative evidence, related-count outcomes, and curative measures interact within New Hampshire’s harmless-error framework.

Panel: MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred. Decided by order per Sup. Ct. R. 20(3). Clerk: Timothy A. Gudas.

Case Details

Year: 2025
Court: Supreme Court of New Hampshire

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