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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough – northern judicial district

No. 2014-071

THE STATE OF NEW HAMPSHIRE

v.

ARMANDO LISASUAIN

Argued: March 5, 2015

Opinion Issued: June 5, 2015

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant 

attorney general, on the brief and orally), for the State.

Sarah E. Newhall, assistant appellate defender, of Concord, on the brief 

and orally, for the defendant.

CONBOY, J. Following a jury trial in Superior Court (Garfunkel, J.), the 

defendant, Armando Lisasuain, was convicted of, among other offenses, two 

counts of aggravated felonious sexual assault, RSA 632-A:2, I(m) (2007). On 

appeal, the defendant argues that the trial court: (1) erred by finding that the 

State presented sufficient evidence to prove lack of consent by the victim on the 

aggravated felonious sexual assault charges; (2) may have erred by not 

disclosing more documents from its in camera review of certain of the victim’s 

records; and (3) erred by not allowing cross-examination of a police officer as to

the nature and duration of his interrogation of the defendant. We affirm.
2

The following facts are supported by the record. In October 2010, the 

14-year-old victim was living with her mother and her siblings in Manchester. 

The 46-year-old defendant, a family friend, had been staying at the home a few

nights each week after he had to move out of his cousin’s apartment.

On October 23, the victim returned home from serving a school 

detention. No one was home and the victim lay down on the couch to watch 

television. The defendant arrived at the home and went over to the couch. The 

victim moved her feet so he could sit and then he said she could put her feet 

back. The defendant asked her if she liked foot rubs and she stated, “Yeah. 

My nanna gives them to me all the time.” The defendant started rubbing her 

feet. The victim “didn’t know what to think” when the defendant started giving 

her a foot rub, but “since [her] nanna gave them to [her] all the time, [she] 

didn’t really think anything weird because . . . he was [her] dad’s best friend

[and] . . . [she] didn’t look at him as a complete stranger.” The defendant then

asked if she ever got her toes sucked. She responded, “No.” The victim 

thought the defendant’s inquiry “was weird.” When the defendant started 

sucking on her toes, the victim “was in shock.”

The defendant told the victim that she was “dangerously beautiful,” to 

which she did not respond because that scared her. The defendant told her 

that “he was going to tear [her] up,” which the victim thought was “a sexual 

term,” although she “didn’t know exactly what he meant by it.” The defendant 

had moved off the couch and he was “on his knees” below where the victim’s 

head was on the couch. The defendant asked her “if he could go lower.” The 

victim “assumed that he was talking about [her] vagina,” but she didn’t answer 

him because she “couldn’t believe what was going on.” The defendant then 

pulled her pants and underwear down and “moved [her] legs . . . on his 

shoulders or above his shoulders.” The victim did nothing to help him and did 

not say anything. The defendant performed cunnilingus on her and penetrated 

her vagina with his fingers. He stopped when he got a telephone call and then

he left.

The victim had been frequently skipping school and staying out all night.

On November 2 she was placed by court order at Antrim Girls Shelter. After 

approximately two weeks, she told staff members and her mother that she had 

been sexually assaulted. The victim was subsequently transferred to Webster 

House, a long-term placement facility, and was interviewed at the Child 

Advocacy Center about the assaults.

At trial, following the close of the State’s case, the defendant moved to 

dismiss the aggravated felonious sexual assault charges based upon alleged 

insufficiency of the evidence. He argued that because the victim did not testify 

that she pushed the defendant away or told him to stop or took any other kind 

of affirmative action to express that consent was not freely given, no reasonable 

jury could find that those charges were proven beyond a reasonable doubt. 
3

The trial court denied the motion, ruling that, based upon the facts and 

circumstances presented, a reasonable jury could find a lack of consent. The 

court reasoned that the defendant

was clearly the initiator. He engaged in all the activities. She was 

not in any way indicating that she was a willing participant in this 

and, plus, the age difference and the family relationship, all of 

those factors [come] into play that she was obviously surprised and 

– by this conduct from someone who she knew to be a friend of the 

family. All of that – all of those factors can be taken into 

consideration by the jury. And under those circumstances, I think 

a reasonable jury could find that her conduct, that is her – in 

essence, her lack of conduct . . . indicated that consent was not 

freely given.

Following the jury verdict, the defendant moved for judgment 

notwithstanding the verdict (JNOV), again challenging the sufficiency of the 

evidence of the victim’s lack of consent. After a hearing, the trial court denied 

the motion, finding that “a rational jury could conclude beyond a reasonable 

doubt that the victim did not consent to the defendant’s sexual conduct.”

On appeal, the defendant first argues that the trial court erred by finding 

that the State presented sufficient evidence to show lack of consent by the 

victim on the charges of aggravated felonious sexual assault. According to the 

defendant, the trial court’s ruling “conflicts with the plain language of the 

statute, which specifically requires that lack of consent be indicated by the 

victim either through words or conduct.” Because the victim “neither said nor 

did anything at any point from the time [he] rubbed her feet until he completed 

performing cunnilingus and digital penetration,” the defendant asserts that 

“there was no evidence of any speech or conduct by which the jury could find 

that she indicated lack of consent.” The State contends that this argument is 

not preserved for appellate review, and even if it is, the evidence that the victim 

“did not answer the defendant’s request for consent, did not assist him in 

getting her pants and underwear down and positioning her legs, and did not 

respond to, or actively participate in, the sexual acts was sufficient.” We will 

assume, without deciding, that the defendant has preserved this issue for our 

review.

Because a challenge to the sufficiency of the evidence raises a claim of 

legal error, our standard of review is de novo. State v. Kay, 162 N.H. 237, 243 

(2011). In reviewing a sufficiency of the evidence claim, we view the evidence 

presented at trial, and all reasonable inferences drawn therefrom, in the light 

most favorable to the State, and uphold the jury’s verdict unless no rational 

trier of fact could have found guilt beyond a reasonable doubt. State v. 

Graham, 142 N.H. 357, 360 (1997).
4

RSA 632-A:2, I(m) provides:

 I. A person is guilty of the felony of aggravated felonious sexual 

assault if such person engages in sexual penetration with another 

person under any of the following circumstances:

. . . .

 (m) When at the time of the sexual assault, the victim indicates 

by speech or conduct that there is not freely given consent to 

performance of the sexual act. 

RSA 632-A:2, I(m). The defendant argues that the legislature “has chosen only

to criminalize sexual penetration where there is an affirmative statement of 

non-consent, rather than criminalizing sexual penetration unless there is an 

affirmative statement of consent.” He asserts that the statute “requires that 

the State prove that the victim somehow, through verbal or physical action, 

communicate her lack of consent,” and that the “legislature did not enact a 

statute that makes passive silence stand for lack of consent.” The State 

counters that the terms “conduct” and “indicates” are broad and that “under 

the plain language of the statute, a jury could reasonably conclude that [the 

victim] engaged in ‘conduct’ that ‘indicated’ that she was not consenting” when 

she did not answer his request for consent when he asked “if he could go 

lower,” did not assist with getting her pants down and positioning her legs, and 

did not respond to, or actively participate in, the sexual acts.

Resolution of this issue requires that we engage in statutory 

interpretation. The interpretation of a statute is a question of law, which we 

review de novo. State v. Thompson, 164 N.H. 447, 448 (2012). In matters of 

statutory interpretation, we are the final arbiters of the intent of the legislature 

as expressed in the words of a statute considered as a whole. Id. When 

examining the language of the statute, we ascribe the plain and ordinary 

meaning to the words used. Id. We interpret legislative intent from the statute 

as written and will not consider what the legislature might have said or add 

language that the legislature did not see fit to include. Id. We construe the 

Criminal Code “according to the fair import of [its] terms and to promote 

justice.” RSA 625:3 (2007).

Black’s Law Dictionary defines “conduct” to mean “[p]ersonal behavior, 

whether by action or inaction, verbal or nonverbal; the manner in which a 

person behaves; collectively, a person’s deeds.” Black’s Law Dictionary 358 

(10th ed. 2014) (emphasis added). In this context, Webster’s Third New 

International Dictionary defines “indicate” as meaning “to show the probable 

presence or existence . . . of : give fair evidence of : be a fairly certain sign or 

symptom of : reveal in a fairly clear way.” Webster’s Third New International 

Dictionary 1150 (unabridged ed. 2002).
5

As the trial court found:

Here, the 14-year-old victim’s non-participation in the sexual 

acts performed on her by the 46-year-old defendant provides 

sufficient evidence of non-consent. When the defendant began to 

suck her toes; the victim did nothing. She did not give the 

defendant permission to suck her toes or help him to do so in any 

manner. The victim testified that she was too shocked by the 

defendant’s action to say or do anything[.]

Next, when the defendant asked if he could “go lower,” the 

victim again did nothing. The victim did not take off her pants or 

underwear, she did not spread her legs open, she did not turn her 

body on the couch, and she did not put her legs on his shoulders. 

Instead, it was the defendant that physically did each of these acts 

to the victim without her aid.

Finally, the victim did not respond to the defendant in a way 

that an intimate partner might respond. The victim did not 

discuss the sexual activity with the defendant, she did not make 

any verbal sounds suggesting she was participating in the activity, 

she did not touch the defendant or physically respond to him in 

any way. 

After reviewing the record we hold that, taking into account the totality of the 

circumstances, the evidence was sufficient for a rational trier of fact to have 

found beyond a reasonable doubt that the victim’s conduct, in failing to 

respond in any way, indicated that she did not consent to the sexual assaults

by the defendant. See also RSA 632-A:6, III (“[a] jury is not required to infer 

consent from a victim’s failure to physically resist a sexual assault”). 

Accordingly, we affirm the trial court’s denial of the defendant’s motion for 

JNOV based upon alleged insufficiency of the evidence.

The defendant next argues that the trial court may have erred in not 

disclosing more documents from the in camera review. Prior to trial, the 

defendant moved for in camera review of the victim’s records from her school,

the New Hampshire Department for Children, Youth and Families, and the

Antrim Girls Shelter, as well as any juvenile, probation, and counseling 

records. He argued that any previous statements the victim made about the 

assaults, and any conduct probative of her truthfulness, was discoverable. 

Following a hearing, the trial court granted the motion in part, agreeing to 

review everything except the school records. Thereafter, the court ordered the 

disclosure of certain records that it concluded contained “information which 

[might] be regarded as essential and reasonably necessary to the defendant in 

preparing his defense to the . . . charges.” The trial court subsequently also

reviewed in camera documents provided by Webster House, Manchester Mental 
6

Health, Easter Seals, and NFI-North Country Shelter, and ordered disclosure of 

certain additional documents.

The defendant does not appeal the trial court’s refusal to review the 

school records, but he challenges “the scope of the release of documents,” 

seeking to have this court review the other records to determine whether they

contain information that would entitle him to a new trial. We review the trial 

court’s decision to withhold records under the unsustainable exercise of 

discretion standard. See State v. Alwardt, 164 N.H. 52, 58 (2012); see also

Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 610 (2006) (trial court’s decisions

on the management of discovery and the admissibility of evidence is reviewed 

under unsustainable exercise of discretion standard). “To prevail, the 

defendant must show the trial court’s rulings were clearly untenable or 

unreasonable to the prejudice of his case.” State v. King, 162 N.H. 629, 631 

(2011). Having reviewed all of the records reviewed by the trial court, we 

conclude that it did not unsustainably exercise its discretion in determining 

that those records not be disclosed. Accordingly, we hold that there was no 

error.

Finally, the defendant argues that the trial court erred by not allowing 

cross-examination of Officer Tremblay about the nature and duration of 

Tremblay’s interview with him. At trial, the State questioned the officer on 

direct examination for the sole purpose of establishing the defendant’s date of 

birth. When defense counsel attempted to cross-examine the officer, the State 

objected. Defense counsel made an offer of proof that when the officer

challenged the defendant as to his knowledge of the victim’s age, the defendant

made no admissions. He asserted that the officer “used his skills and 

experience in interviewing suspects to tell [the defendant] in several different 

ways that having sex with a 16-year-old was legal,” and that “he got no 

admissions.” Defense counsel argued that the defendant’s lack of an 

admission was admissible and that the officer’s statements were not being 

offered for their truth. Defense counsel also sought to admit testimony about 

the length of the interview. The State argued that the defendant’s lack of 

admissions were hearsay because his nonverbal conduct was being offered for 

the truth of whether there were no admissions. The State also argued that the 

length of the interview was not relevant because it was being introduced only to 

suggest that the defendant was cooperative or that he did not make any 

admissions. The trial court ruled that the lack of admissions was “excludable 

hearsay” because it was “nonverbal conduct and conveyed as an assertion of 

the truth.”

We accord the trial court considerable deference in determining the 

admissibility of evidence, and we will not disturb its decision absent an 

unsustainable exercise of discretion. State v. Munroe, 161 N.H. 618, 626 

(2011). “To demonstrate an unsustainable exercise of discretion, the defendant 
7

must show that the trial court’s ruling was clearly untenable or unreasonable 

to the prejudice of his case.” Id.

“‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted.” N.H. R. Ev. 801(c). “A ‘statement’ is (1) an oral or written 

assertion or (2) nonverbal conduct of a person, if it is intended by the person as 

an assertion.” N.H. R. Ev. 801(a). Unless it falls within an exception, hearsay 

evidence is generally inadmissible. See Munroe, 161 N.H. at 626.

We agree with the State that the nature and duration of the defendant’s 

interview with the officer were relevant only to provide context for the lack of 

admissions. Because the relevance of the evidence proffered by the defendant 

was dependent upon its truth – that the defendant’s nonverbal conduct was 

intended as an assertion by him that he did not commit the sexual assaults –

we hold that the trial court did not err in excluding evidence of the lack of 

admissions as inadmissible hearsay.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.