State of New Hampshire v. Tailor Lemieux

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0343, State of New Hampshire v. Tailor Lemieux, the court on September 15 , 2026, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, Tailor Lemieux, appeals his convictions, following a jury trial in the Superior Court (Wageling, J.), on six counts of second degree assault, see RSA 631:2, I(d), (f) (2016), one count of criminal threatening, see RSA 631:4, I(d) (2016), and one count of endangering the welfare of a child as a principal or accomplice, see RSA 639:3 (2016), 626:8 (2016). We affirm.

I. Background The jury could have found the following facts. In 2017, the defendant married a woman who had four minor children: daughters R, L, and M, and son D. The family moved into a home in Newbury. R and L shared a bedroom on the first floor, while D and M each had a room on the second floor. The defendant and his wife locked the children inside their rooms each night such that they could not exit their rooms until the parents unlocked the rooms in the morning.

The defendant and his wife also restricted when the children could use the bathroom. As a result, the children often had urinary accidents, which angered the defendant. Consequently, at times, the defendant manually choked R, L, and D. The defendant also once hit R's head against a table. On another occasion, the defendant threatened to cut D's penis off with a pocketknife.

At trial, the trial court dismissed a criminal threatening charge and a second degree assault charge after the State rested its case. The jury convicted the defendant on the charges described above and acquitted him on one count of first degree assault and two counts of second degree assault. This appeal followed.

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II. Analysis A. Hearsay Evidence The defendant first argues that the trial court improperly admitted testimony from a nurse that L, D, and M nodded in agreement when R described to the nurse that the defendant assaulted the children. The defendant argues that the testimony was inadmissible hearsay that prejudiced his case because it "indicated that the other three children spontaneously joined [R's] accusation at a time when, it could seem, they had not yet had an opportunity to coordinate a false allegation." While we agree with the defendant that the evidence was improperly admitted, we conclude that the error was harmless beyond a reasonable doubt.

At trial, a pediatric nurse practitioner testified regarding a medical visit during which she examined the children. She testified that R told her that the defendant "would grab her by the throat and squeeze very hard and choke her, and . . . would body slam her and throw [her] against the wall" and "the other kids, too, as well." The nurse testified that "the other kids did nod, and that they agreed that it had happened to them as well." The defendant moved to strike the nurse's testimony regarding the children's head nods. The trial court admitted this testimony under the present sense impression exception to the hearsay rule. See N.H. R. Ev. 803(1).

We review the trial court's ruling on the admissibility of evidence for an unsustainable exercise of discretion, and will reverse only if it was clearly untenable or unreasonable to the prejudice of the defendant's case. State v. Rouleau, 176 N.H. 400, 405 (2024), 2024 N.H. 2, ¶13. In applying our unsustainable exercise of discretion standard of review, we determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. Id. "The defendant bears the burden of demonstrating that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case." State v. Noucas, 165 N.H. 146, 158

(2013).

Hearsay is a statement that "the declarant does not make while testifying at the current trial or hearing" that "a party offers in evidence to prove the truth of the matter asserted in the statement." N.H. R. Ev. 801(c). Hearsay is inadmissible unless it falls within one of the exceptions provided in the rules of evidence. Simpkins v. Snow, 139 N.H. 735, 737 (1995). One such exception relates to statements "describing or explaining an event or condition, made while or immediately after the declarant perceived it." N.H. R. Ev. 803(1). To qualify for this exception, statements must be "essentially contemporaneous with the event." Simpkins, 139 N.H. at 738 (quotation omitted).

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To the extent that the children's nodding amounted to statements describing or explaining the defendant's abuse, the statements were not

"contemporaneous with the event," and thus were not admissible under Rule 803(1). See id. at 738-39. Accordingly, the trial court erred when it failed to grant the defendant's motion to strike the testimony. The State does not argue that if the trial court erred that the error did not prejudice the defendant's case for the purposes of the unsustainable exercise of discretion standard. Therefore, we turn to the State's argument that any 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 verdict. Rouleau, 176 N.H. at 407, 2024 N.H. 2, ¶20. This standard applies to both the erroneous admission and exclusion of evidence. Id. We consider the alternative evidence presented at trial as well as the character of the erroneously admitted evidence itself. Id. To determine whether the State has proven beyond a reasonable doubt that an error did not affect the verdict, we must evaluate the totality of the circumstances at trial. Id.

The factors that we consider 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., 2024 N.H. 2, ¶21. 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.

The challenged evidence here was both cumulative and inconsequential in relation to the strength of the State's case. The import of the testimony was that L, D, and M agreed with R that the defendant physically abused the children. Yet, the children's testimony at trial had already described the defendant's abuse. The challenged evidence added little to the State's case in light of the children's testimony. While it is true that the defendant's theory at trial was that the children fabricated the allegations and the defendant testified in his own defense denying the allegations, we cannot conclude that the challenged testimony caused the jury to believe the children rather than the defendant.

Each of the children provided detailed testimony regarding the defendant's conduct. See id. at 408, 2024 N.H. 2, ¶22 (finding harmless error, in part, because the victim provided detailed testimony about the defendant's

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assaults). Nodding to a medical provider is of scant evidentiary weight when compared to the explicit testimony of the same witnesses. The prosecution, moreover, corroborated aspects of the children's testimony by introducing other evidence at trial. See id. (finding harmless error, in part, because another witness "corroborated aspects of the victim's testimony"). For example, there was evidence of some of the children's physical injuries as well as evidence showing that the defendant and his wife locked the children inside their rooms. The challenged evidence also comprised a miniscule portion of the State's evidence at trial and was not mentioned in the State's closing argument. See id. at 409, 2024 N.H. 2, ¶26 (stating that the challenged evidence "comprised a small portion of the victim's testimony and was not mentioned in the State's closing argument"). Therefore, we conclude, based upon the totality of the circumstances, that the trial court's error in admitting the challenged evidence did not affect the verdicts and thus was harmless beyond a reasonable doubt. See id. at 410, 2024 N.H. 2, ¶26.

B. Sufficiency of the Evidence

The defendant next argues that the State introduced insufficient evidence to convict him of child endangerment for, along with his wife, locking the children inside their bedrooms at night. The defendant asserts that there was insufficient evidence to prove that a nighttime emergency would arise or that, if one arose, the parents would not be capable of responding. The defendant also argues that there was "no evidence" that he "knew or intended that, by confining the children to their rooms, he endangered them in this way." We conclude that there was sufficient evidence to convict the defendant beyond a reasonable doubt.

A challenge to the sufficiency of the evidence raises a question of law, which we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). When considering such challenges, we objectively review the entire record to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt, considering the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the State. Id. We examine each item of evidence in the context of the entire case, and not in isolation. Id. The trier of fact may draw reasonable inferences from facts proved as well as from facts found as the result of other inferences, provided they can be reasonably drawn therefrom. Id. The defendant bears the burden of proving that the evidence was insufficient to prove guilt. Id.

The defendant was charged with:

acting in concert with and aided by [his wife], knowingly endanger[ing] the welfare of four children under the age of 18 years by purposely violating a duty of care, protection and support he owes to such children as their stepfather by restraining the

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children in their bedrooms for multiple hours at night by using a tether implement around the door knob and wrapped around nails so that they were restrained in their rooms with no means of a safe escape.

By preventing the children from being able to leave their rooms when necessary during the night, while the defendant and his wife were asleep and therefore not alert, the defendant put them at risk in case of fire or other emergency. The jury could infer that adults are aware that confining anyone in a room overnight without reasonable egress endangers that person's safety. The jury could further infer that this risk of harm is exacerbated when it is a child — whose judgment and composure are not yet mature — who is subject to such confinement. From these inferences the jury could reasonably conclude that the defendant was aware of the risk he was creating to the children's welfare and engaged in the charged conduct nonetheless. After review of all of the evidence considered in the light most favorable to the State, we conclude that the evidence was sufficient to support a finding by the jury beyond a reasonable doubt that the defendant purposely violated a duty of care to the children, thereby knowingly endangering their health or safety. C. In Camera Review

Finally, the defendant contends that the trial court may have erroneously failed to disclose to him some of the records that it reviewed in camera. Prior to trial, the defendant filed several motions seeking production of the children's privileged records for in camera review by the trial court. The trial court granted the motions in part and, following its review, disclosed certain records to the parties and withheld others. Some of the records reviewed by the trial court were held by public entities and others were held by private entities. The defendant requests that we review all the records to determine whether the trial court erroneously failed to disclose any additional records to the parties. We review a trial court's ruling on the management of discovery to determine whether its decision is sustainable. State v. Girard, 173 N.H. 619, 627 (2020). When a defendant argues on appeal that a trial court's ruling regarding the disclosure of privileged records is unsustainable, we will generally review the same records and determine whether the ruling was clearly unreasonable or untenable to the prejudice of his case. See State v. Warren, 177 N.H. 196, 210 (2025), 2025 N.H. 5, ¶46.

We recently extended our privilege-piercing jurisprudence to the disclosure of records held by private organizations that are privileged under RSA 329-B:26 and RSA 330-A:32, holding that a defendant must establish an essential need for the records sought. State v. Zarella, 177 N.H. 328, 341 (2025), 2025 N.H. 20, ¶36. Given that our decision in Zarella was not issued until after the trial court's orders in this case, the trial court did not have the

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benefit of that opinion and did not apply the standards set forth in Zarella for review of privately held records. Consistent with Girard, the trial court determined whether "material and relevant evidence is in fact contained in the records." Girard, 173 N.H. at 628 (quotation and emphasis omitted); see also N.H. R. Ev. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.").

We conclude, based on our review of the records in the government's possession, that the trial court did not unsustainably exercise its discretion with respect to those records. As to the privately held records, the State, citing Zarella, argues that the defendant has "not established that there is an essential need for this Court to review those records." The State goes on to assert that "[i]f this Court chooses to review the records on appeal, it should first provide the children with notice and an opportunity to be heard regarding whether they object to a further review of their privileged records held by private organizations." The defendant filed no reply to rebut these arguments. The defendant has asked us to review medical records reviewed by the trial court without the protections prescribed by Zarella. In these circumstances, we can neither disregard Zarella, nor determine in the first instance whether a review of the children's privately held records is proper under Zarella. Accordingly, we have not reviewed the privately held records and decline to address the defendant's argument as it relates to them. See State v. Blackmer,

149 N.H. 47, 49 (2003) (declining to address arguments that "were not sufficiently developed for appellate review"). Because the defendant has not adequately briefed the question of whether we must remand to the trial court for the parties to litigate the threshold issues related to those records under Zarella, we decline to remand. Accordingly, we affirm the trial court's decisions regarding these privileged records.

Affirmed.

DONOVAN, COUNTWAY, and GOULD, JJ., concurred; MACDONALD, C.J., did not participate in the final vote.

Timothy A. Gudas, Clerk