THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2024-0505, State of New Hampshire v. Max Giroux, the court on September 1, 2026, issued the following order:
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(3). The defendant, Max Giroux, appeals his convictions on three counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I(l) (2007), following a jury trial in the Superior Court (St. Hilaire, J.). The defendant argues that the trial court erroneously admitted evidence concerning: (1) the defendant's prior acts; and (2) the complainant's forensic interview with the Child Advocacy Center (CAC). Because we conclude that any alleged error was harmless, we affirm. The jury could have found the following facts. The defendant began dating A.A.'s mother in 2008 when A.A. was about three years old. In 2009, A.A. and her mother moved in with the defendant, and in 2010, A.A.'s mother and the defendant had a son. A.A., her mother, and A.A.'s newborn brother lived with the defendant until August 2012, when A.A.'s mother moved out with the children. After moving out with their mother, A.A. and her brother continued to spend time with the defendant.
In the summer of 2013, when A.A. was seven years old, she and her younger brother would visit the defendant's home and often stay overnight. During one visit that summer, while A.A. and the defendant were sitting on a recliner in the defendant's living room, the defendant used his fingers to massage and insert his fingers into A.A.'s vagina. This happened twice more during subsequent visits to the defendant's home that summer; once when the defendant called A.A. into the bathroom as he was getting out of the shower, and once when the defendant climbed into bed with A.A. one night. Following this last incident, A.A.'s friend told her parents that she believed the defendant had touched A.A. A.A.'s mother learned what the friend had told her parents and then asked A.A. if the defendant had touched her, and A.A. denied that he had. Afterward, A.A.'s mother relayed this conversation to the defendant, and the defendant acknowledged that "now I feel like maybe I did do something wrong." He also suggested that he should "keep his distance" for a while and "lay low [until] this all . . . blew over." A.A.'s mother did not go to the police because she "wanted to believe [her] daughter"
that the allegations were not true.
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A.A. did not tell anybody that the defendant had assaulted her until 2021, when she told her best friend what had happened with the defendant. Several months later, A.A. disclosed the assaults to her mother, who then alerted the authorities.
The defendant was charged with three counts of AFSA. At trial, the jury heard testimony from A.A., who at that point was 18 years old. Over the defendant's objection, the jury also heard from another witness (A.W.), the significant other of the defendant's brother. A.W. testified that, late one evening in the summer of 2012, a year before the charged incidents, she was at the defendant's home socializing with the defendant, his brother, and the defendant's friend. A.W. observed the defendant bring A.A. into her room to put her to bed and close the door. A.W. began to worry because the defendant was with A.A. in her room for "a significant amount of time." According to A.W., the defendant's friend eventually opened the door to A.A.'s room, said that the defendant was "laying down with [A.A.]" and then shut the door. The jury also heard testimony from other witnesses, including a detective with the Pittsfield Police Department who, over the defendant's objection, described the general process of a CAC interview. The detective also testified that A.A. participated in an interview with the CAC, although he did not testify to the content of this interview. Following a two-day trial, the jury convicted the defendant on all three counts of AFSA. This appeal followed. The defendant argues we must reverse his convictions because the trial court erroneously allowed the State to introduce evidence that: (1) the defendant was seen in bed with A.A. approximately one year prior to the charged incidents; and (2) A.A. participated in a forensic CAC interview. Specifically, he argues that evidence that he was seen in bed with A.A. a year before the charged incidents was inadmissible other acts evidence and that he suffered prejudice as a result of its admission. See N.H. R. Ev. 404(b). He also argues that, although the jury did not hear any testimony regarding what A.A. said during her CAC interview, evidence that A.A. participated in a CAC interview at all was irrelevant and prejudicial because the jury would have inferred that the trained professionals participating in and observing the interview believed A.A.'s allegations, thereby bolstering her credibility. We need not decide whether the trial court erred by admitting any of this evidence, however, because even if we assume that it did, we conclude that any purported error was harmless beyond a reasonable doubt.
To establish harmless error, the State must prove beyond a reasonable doubt that the error did not affect the verdicts. State v. Boudreau, 176 N.H. 1, 11 (2023). This standard applies to both the erroneous admission and exclusion of evidence. Id. To determine whether the State has met its burden, we must evaluate the totality of the circumstances at trial. Id. at 11-12. In doing so, we consider the other evidence admitted at trial as well as the character of the erroneously admitted evidence itself. Id. at 11.
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The factors that we have considered in assessing whether an error did not affect the verdict include, but are not limited to: (1) the strength of the State's case; (2) whether the admitted or excluded evidence is cumulative or inconsequential in relation to the strength of the State's case; (3) the frequency of the error; (4) the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence; (5) the nature of the defense; (6) the circumstances in which the evidence was introduced at trial; (7) whether the court took any curative steps; (8) whether the evidence is of an inflammatory nature; and (9) whether the other evidence of the defendant's guilt is of an overwhelming nature. Id. at 12. No one factor is dispositive. Id. We may consider factors not listed above and not all factors may be implicated in a given case. Id.
To convict the defendant of AFSA as charged in the indictments, the State had to prove beyond a reasonable doubt that the defendant purposely engaged in sexual penetration by inserting his finger "into the genital opening of A.A." when A.A. was less than 13 years old, and that he did so on three separate occasions. See RSA 632-A:2, I(l). "Sexual penetration" is defined as
"[a]ny intrusion, however slight, of any part of the actor's body . . . into genital or anal openings of the victim's body." RSA 632-A:1, V(a)(5) (Supp. 2012). Here, there was overwhelming other evidence of the defendant's guilt, including A.A.'s direct, detailed testimony describing each of the three charged incidents involving the defendant. See State v. Rouleau, 176 N.H. 400, 408 (2024), 2024 N.H. 2, ¶23 (noting in harmless error analysis that State's case
"was not based on circumstantial evidence; instead, it was based on direct evidence from the victim's testimony"). For example, A.A. testified that during the first assault in the living room, she felt "frozen" when the defendant rubbed his hand over her shirt and chest and that she felt "pins and needles"
throughout her body as he touched her vagina. She then described feeling like
"something was tearing" when the defendant inserted his fingers into her vagina. She recalled the defendant's heavy breathing in her ear and that his fingers were wet because he had licked them, and that he kissed her on the forehead at the end of the incident. See State v. Lemieux, 136 N.H. 329, 331- 32 (1992) (concluding trial court's error was harmless where admission of opinion testimony that bolstered victim's credibility was "inconsequential"
when compared to victim's detailed description of defendant's sexual assaults). A.A. provided similarly detailed accounts of the subsequent assaults. She testified that, during the bathroom assault, the defendant told her that he had to check her for ticks because "on girls there's a lot of different places and crevices that they can hide," which made her feel "panicked" because of what had previously occurred. She described how the defendant "ripped" her pants and underwear down and put his fingers into her vagina again while he
"strok[ed] his penis over the towel" that was wrapped around his waist. She
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recalled feeling "pins and needles and being in pain" while this was happening and that the defendant stopped once he heard the screen door slam shut in the living room. Finally, A.A. described the bedroom assault in detail, including how when the defendant first entered the room, she asked to go home and the defendant told her that she could have a jar of lollipops if she stayed the night. Against the backdrop of A.A.'s detailed testimony of each assault, including how she felt during the assaults, what the defendant said, and how the defendant perpetrated the assaults, see State v. Thibedau, 142 N.H. 325, 329 (1997), the disputed testimony was "inconsequential in relation to the strength of the State's case," Boudreau, 176 N.H. at 12. We further conclude that, in comparison to A.A.'s detailed description of the assaults, none of the disputed evidence was inflammatory. See Lemieux, 136 N.H. at 331-32; cf. State v. Sleeper, 177 N.H. 665, 675 (2025), 2025 N.H. 52, ¶¶29-30 ("[A]s compared to evidence like the defendant's unchallenged admissions about stabbing the victim to death and his description of the amount of the victim's blood at the scene, the disputed evidence [of the defendant's recorded jail calls] was not inflammatory.").
Moreover, the State's case did not rest entirely on A.A.'s testimony; the State also presented testimony of an admission by the defendant that showed some consciousness of guilt. A.A.'s mother testified that, when she informed the defendant in 2013 that he had been accused of assaulting A.A., the defendant did not deny it, and instead told her "now I feel like maybe I did do something wrong." A.A.'s mother further testified that the defendant "said that maybe he should keep his distance from [the family] for a while, and lay low [until] this all . . . blew over." See Thibedau, 142 N.H. at 328-29 (concluding any error by trial court was harmless based on "overwhelming" other evidence of defendant's guilt, including testimony concerning admission by defendant that victim "could put him away, and when that happened, he would have to deal with it" (quotation omitted)).
The jury also heard evidence regarding A.A.'s disclosures to those closest to her. A.A. testified that she first disclosed what the defendant had done to her during a conversation with her best friend D.C. in 2021, which took place in D.C.'s car. A.A. recalled that she was crying during this conversation and that D.C. was "very shocked" after A.A. told her what had happened. Then, during D.C.'s testimony, D.C. recalled that A.A. "looked nervous" and "really grossed out" during this conversation and that A.A. "seemed very on edge" and
"her voice was shaking" and she was "trembling a little bit." D.C. testified that A.A. cried, which made D.C. cry "because she's my best friend." See Boudreau,
176 N.H. at 13-14 (describing how victim "became very emotional and began to shake" when she described sexual assaults to her friend and how, based on this and other corroborating evidence, inadmissible evidence challenged by defendant "was of little consequence"). A.A. also testified that six or seven
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months after this conversation, she had a conversation with her mother. A.A.'s mother testified that, during this conversation with A.A., she took A.A.'s keys and phone and told A.A. that she "didn't know why [A.A.] was acting like something so horrible had happened in her life; and if it did, [A.A.] needed to tell [her], and if not, [A.A.] needed to get over it and come talk to [her]." She testified that moments later, A.A. came out of her room "hysterical, crying, screaming her brother will hate her," that A.A. was "shaking, hysterically crying, [and] sobbing" as her mother held her and they "fell to the floor kind of crying." The evidence of A.A.'s separate emotional disclosures, several months apart from each other, made the disputed evidence of little consequence to the verdict. See id. at 13-14.
On this issue, the defendant suggested during closing argument that the jury should credit A.A.'s initial denials when she was seven years old that the defendant had assaulted her and discredit the disclosures she made as a teenager. We note, however, that the jury heard testimony that A.A.'s initial denials and subsequent delay in reporting were attributable to other factors. For example, A.A. testified that after the first assault, she thought the defendant would get in trouble if she told anyone what had occurred, and she worried how that would affect her younger brother, the defendant's biological son. She eventually confided in her best friend D.C., who A.A. testified is "the closest thing I have to a sister." See State v. Anctil, 134 N.H. 623, 625-26 (1991) (concluding erroneous admission of evidence did not affect verdict where there was evidence that victim's delay in reporting assaults "was attributable to other factors," including that victim eventually confided in cousin who "was someone [the victim] could trust that wouldn't tell the whole wide world," and noting that "the testimony that was most damning to the defendant was [the victim's] descriptive account of the sexual assaults, not her reasons for the delay in reporting them" (quotation omitted)).
As compared to the strength of this other evidence, the admission of which the defendant does not challenge on appeal, the challenged testimony was inconsequential. First, the record demonstrates that the testimony challenged by the defendant "comprised a small portion of the State's case-in- chief, as well as its closing argument," and that the disputed evidence was not
"lengthy, comprehensive, or directly linked to a determination of the guilt or innocence of the defendant." Boudreau, 176 N.H. at 14 (quotations omitted). The first portion of testimony challenged by the defendant — testimony that the defendant was seen in bed with A.A. approximately one year prior to the charged incidents — was provided by a single witness whose testimony consisted of a small portion of the State's case-in-chief, and during its closing argument, the State did not refer to this testimony at all. Compare Rouleau,
176 N.H. at 409, 2024 N.H. 2, ¶26 (noting that disputed evidence "comprised a small portion of the victim's testimony and was not mentioned in the State's closing argument," which supported that trial court's error in admitting
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disputed evidence was harmless), with State v. Zuzelo, 176 N.H. 499, 513 (2024), 2024 N.H. 14, ¶40 (concluding trial court's error in admitting disputed evidence was not harmless where three witnesses testified concerning disputed evidence, which "supported the complainant's credibility and therefore may have influenced the determination of guilt or innocence of the defendant," and State "repeatedly referenced this evidence in its closing argument"). As to the second portion of challenged testimony — concerning A.A.'s participation in a CAC interview and how these interviews are conducted generally — this evidence was also provided by a single witness whose testimony similarly comprised a small portion of the State's case-in-chief. See Boudreau, 176 N.H. at 14. During its closing argument, the State referenced A.A.'s interview with the CAC only twice. In the first instance, after the defense argued in closing that A.A. had a motive to fabricate her allegations during an argument with her mother, the State argued that A.A.'s mother was not present during the interview, "[s]o why is she lying to the CAC interviewer?" In the second instance, the State argued that A.A. "was consistent with what she told the CAC," at which point the defense objected and the trial court issued a curative instruction directing the jury that it had "heard no facts in evidence regarding what was said at the CAC" and that the jury was to disregard that statement. Because we assume that the jury follows the instructions given by the trial court, we conclude that the jury did not consider the State's references in closing to A.A.'s CAC interview as evidence that the assaults occurred. See State v. Wells, 166 N.H. 73, 83 (2014).
Lastly, the defendant argues that the disputed evidence was not harmless because after multiple hours of deliberation, the jury reported to the judge that it had reached an impasse, and only after the judge instructed the jury to attempt to reach a unanimous decision did the jury return a guilty verdict on all counts. According to the defendant, the reported impasse evinces that the jury was struggling whether to believe A.A.'s testimony, and the jury therefore could have resolved any doubts about the defendant's guilt by relying on the disputed evidence. This argument, however, rests upon the defendant's speculation about the reason for the impasse. Furthermore, the defendant has not directed us to, nor are we aware of any, instance where we have considered a jury's reported impasse in reaching a verdict as a factor in assessing whether a trial court's erroneous admission or exclusion of evidence was harmless. Nonetheless, even if we were to consider the jury's reported impasse as a factor in assessing harmless error, see Boudreau, 176 N.H. at 12, we conclude that, under the totality of the circumstances, this factor does not outweigh those discussed above.
Therefore, we conclude that, based upon the totality of the circumstances, any error in the trial court's admission of the disputed evidence did not affect the verdict and thus was harmless beyond a reasonable doubt. See id. at 11-12. Any issues the defendant raised in his notice of appeal but
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did not brief are deemed waived. See State v. Blackmer, 149 N.H. 47, 49
(2003).
Affirmed. DONOVAN, COUNTWAY, GOULD, and WILL, JJ., concurred; MACDONALD, C.J., sat for oral argument but did not participate in the final vote.
Timothy A. Gudas, Clerk