## Facts

- Armando Lisasuain, an adult family friend temporarily staying in a Manchester, New Hampshire home, sexually assaulted a 14-year-old girl.
- The victim was lying on a couch when Lisasuain approached and asked to rub her feet; she consented to the foot rub.
- Lisasuain then asked if the victim had ever had her toes sucked and began sucking her toes.
- He made sexual comments about her appearance and said he was “going to tear [her] up.”
- Lisasuain moved near the victim’s head and asked if he “could go lower.” The victim did not respond.
- Lisasuain removed the victim’s pants and underwear, positioned her legs, performed oral sex on her, and digitally penetrated her.
- The victim neither assisted nor spoke during the sexual acts, later describing that she was shocked and scared and did not want what was happening.
- The State charged Lisasuain with multiple offenses, including two counts of aggravated felonious sexual assault.
- A jury found Lisasuain guilty. After the verdict, he moved for judgment notwithstanding the verdict (JNOV), arguing the evidence was insufficient to prove lack of consent because the victim did not say “no” or physically resist.
- The trial court denied the JNOV motion, and Lisasuain appealed to the New Hampshire Supreme Court, arguing the ruling conflicted with the statute’s requirement that lack of consent be shown by the victim’s “words or conduct,” and also challenging certain trial rulings.

## Issues

1. Whether the evidence was sufficient for a rational jury to find beyond a reasonable doubt that the victim did not consent, where she did not verbally object or physically resist but was passive and nonresponsive during the assault.
2. Whether, under New Hampshire’s aggravated felonious sexual assault statute (RSA 632-A), a victim’s nonresponse, passivity, or lack of participation may qualify as “conduct” showing lack of consent.
3. Whether the trial court committed reversible error in jury instructions and evidentiary rulings, reviewed for an unsustainable exercise of discretion.

## Decision

- The New Hampshire Supreme Court affirmed Lisasuain’s convictions.
- The court held that the evidence permitted a rational jury to find lack of consent beyond a reasonable doubt.
- The court rejected the argument that the statute required an express verbal refusal or physical resistance; the victim’s demeanor, passivity, and nonparticipation could support a finding that her conduct showed nonconsent.
- The court upheld the challenged jury instructions and evidentiary rulings, concluding the trial court did not act outside its allowable discretion.

## Legal Principles

- In a sufficiency challenge, the reviewing court views the evidence and all reasonable inferences in the light most favorable to the State and asks whether any rational factfinder could find guilt beyond a reasonable doubt.
- Under RSA 632-A, lack of consent may be shown by the victim’s words or conduct; “conduct” is not limited to active resistance and may include passivity, nonparticipation, or a fearful nonresponse in context.
- New Hampshire law does not require proof of physical resistance to prove lack of consent in sexual-assault prosecutions.
- Trial courts receive substantial deference on evidentiary rulings; appellate reversal is warranted only for an unsustainable exercise of discretion.
- Jury instructions are reviewed as a whole to determine whether they fairly presented the applicable law and did not mislead the jury.

## Conclusion

State v. Lisasuain affirmed aggravated felonious sexual assault convictions where a 14-year-old victim did not verbally refuse or physically resist but remained passive and nonresponsive; the court held that such demeanor can constitute “conduct” indicating lack of consent under RSA 632-A and found no reversible error in the trial court’s post-verdict ruling, instructions, or evidentiary decisions.


State v. Lisasuain, 2015 WL 3538813 (2015)