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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Merrimack No. 2009-345

THE STATE OF NEW HAMPSHIRE v. JEROME THOMPSON Argued: June 17, 2010 Opinion Issued: February 25, 2011 Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, Jerome Thompson, appeals his conviction by a jury of one count of aggravated felonious sexual assault. See RSA 632A:2, II (2007). On appeal, he argues that the Superior Court (Sullivan, J.) erred by denying his motion to dismiss based upon the weight of the evidence and by admitting certain hearsay evidence. He also, for the first time on appeal, argues that we should reverse his conviction and grant him a new trial because his trial counsel was ineffective. While we have previously declined to review ineffective assistance of counsel claims on direct appeal, we hold, based upon the indisputable and egregious errors of trial counsel, which are apparent from

the trial record, that the defendant was provided ineffective assistance of counsel. Accordingly, we reverse and remand. The record supports the following facts. Six-year-old D.K. lived in North Woodstock with her mother, her mother's boyfriend and her two younger siblings. During the weekend of October 5-7, 2007, D.K.'s father brought D.K. and her siblings to Concord to visit his cousin, Andrea Zbink, who lived with the defendant. At one point that weekend, D.K. spent approximately one hour sitting with Thompson at the computer desk in Thompson's and Zbink's bedroom. D.K.'s father returned the children to their mother at the end of the weekend. On October 11, 2007, D.K. first told her babysitter, and then later that evening her mother, that the defendant had shown her pornographic movies on his computer. She also told the babysitter, but not her mother, that the defendant put his hand on her "private parts." D.K. later repeated these allegations during an interview at a Child Advocacy Center, which was observed by Detective Sean Dougherty of the Concord Police Department. During the trial, the only substantive evidence of the defendant's guilt consisted of unobjected-to hearsay testimony by the babysitter and the mother describing the statements D.K. made to them, and unobjected-to hearsay testimony by Dougherty regarding statements made by D.K. during her Child Advocacy Center interview. While at trial D.K. acknowledged that the defendant showed her movies that made her feel "icky," she denied that he had touched her. The defendant argues that his trial counsel, who is not counsel on appeal, rendered ineffective assistance of counsel by: (1) failing to object to inadmissible hearsay; (2) failing to object during the State's closing argument when the State referenced evidence that had previously been ruled inadmissible; and (3) simultaneously representing the defendant's parents, whose interests conflicted with the defendant's interests. We set forth the testimony and facts from trial in significant detail to evaluate the basis for the defendant's claims. The State used much of its opening statement to appeal to the emotions of the jury, and began by questioning how anyone could touch a small child for his own sexual gratification. The prosecutor emphasized to the jury that he could not explain to them why any human being would be so brazen and so bold as to touch a child for their sexual gratification, particularly an eight year old. Why anyone would violate the innocence of a child for that purpose is something that as human beings, you may grapple with to try to

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put your mind around, but you know, unfortunately, in this day and age . . . it happens. It's outrageous. At times in your life you've heard maybe from a friend or family member about things like this that happened, or you've read in the paper stories, scout masters, clergy abusing students . . . . It happens. It's insidious and brazen in its nature. What makes it so insidious and so brazen is that sometimes it can happen seemingly right under the eyes of the people who should be watching for that child's safety. That's the sort of case that you're going to be hearing about. The prosecutor then continued by outlining some of the likely testimony from the State's witnesses. Specifically, he told the jury that they would "hear an eight-year-old girl talk to [them] about things no eight year old should ever see." He reminded them that the victim was "very shy," and implored them to have patience and to listen carefully to her testimony. He also told the jury to expect testimony from the babysitter, who would tell them "ever [sic] babysitter's nightmare, which is the child that you love and care for disclosing abuse," and the mother, who would disclose "what it's like to be the parent in every parent's nightmare . . . actually of learning that your child is the victim of sexual abuse." The prosecutor, however, made no mention of D.K.'s Child Advocacy Center interview. He concluded with another emotional plea: When you see [D.K.] on the stand, you may wish for all

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