LACONIA — A trial for a retired New Hampton firefighter and registered nurse accused of prohibited uses of a computer for soliciting a child over the Internet for sexual purposes ended abruptly in a mistrial yesterday in Belknap County Superior Court.
The mistrial in the case against Robert Joseph Jr., 66, was triggered by a statement made by Joseph's ex-wife Kimmilee Reynart, who was the prosecution's first witness and she almost immediately blurted out that she went to a domestic violence shelter after she separated from the defendant in 2012.
Joseph's lawyer, Steve Mirkin, jumped to his feet and objected. Judge James O'Neill brought him and Belknap County Attorney Melissa Guldbrandsen to his bench for a private discussion.
O'Neill ordered the jury to disregard Reynart's statements, but later in O'Neill's private chambers, Mirkin successfully argued that her utterance was far to prejudicial to Joseph to allow this jury to continue.
In open court, Mirkin argued that prior bad acts are not allowed as testimony -referring to her utterance about domestic violence - and in Joseph's case, there were no prior bad acts. New Hampton Police confirmed yesterday they had never arrested Joseph for anything nor had they ever responded to his home for a domestic violence complaint between him and his ex-wife.
Guldbrandsen offered no objection to the mistrial declaration.
During opening arguments, both sides presented the jury with their theories of the case.
Guldbransen said that Joseph, in violation of RSA 649-B:4, knowingly used a computer to entice someone he "believed" to be 13-years-old to commit a sexual act or indecent exposure.
She said she could prove he "believed" the unknown person on the other end of a computer e-mail was 13 and that he acted knowingly. She repeated told the jury that her job was to prove to them that Joseph believed he was communicating with a 13-year-old and not his ex-wife or an agent from the Department of Homeland Security.
In his opening statement, Mirkin said Joseph was the victim of entrapment — first by a vindictive ex-wife and then by an over-zealous Homeland Security agent who did everything they could to entice Joseph to cross state lines to meet a fictitious 13-year-old girl and that they encouraged him to commit do something he would not ordinarily do.
Both attorneys characterized the Internet chat as often lurid and specific. Guldbransen says he was committing a crime while Mirkin said he had no idea who was on the other end of the e-mails and that he was engaging in a Internet fantasy upon which he never intended to act.
The case against Joseph falls under a relatively new state statute that went into effect in 2009 that addressed the criminal solicitation of children through the Internet for sexual purposes.
According to both the prosecution and the defense, about 10 years ago — and before he met his now ex-wife, Joseph had set up an Internet account identifying himself as a lonely older man under the identification "sooperlooper122146" who was looking to meet a younger woman for sex — someone was who was legal but under the age of 40.
Reynart testified yesterday that she found the account during the time she was married to him but the two separated in 2012. They are now divorced.
Both attorneys agreed that in September of 2013, Reynart, who was living in Pennsylvania, set up a false account under the name "Sweet Sara 18" and contacted Joseph's private paid account for some dirty talk.
Gradually, said Mirkin, "Sweet Sara 18" became "Sweet Sara 16" and then "Sweet Sara 13." He said Joseph's site was a pay site that charged by the e-mail — or by a monthly fee — and it was logical to assume the anonymous person on the other side was old enough to possess a credit card.
Mirkin said Reynart eventually told Joseph that she was 13 but "likes sex all the time".
Mirkin said Joseph never believed for a minute the correspondent was 13 but it was his chance to live out a virtually fantasy. What he didn't know was that his ex-wife was playing the other role.
"Sweet Sara 13" and Joseph never phoned each other, they never Skyped each other and Mirkin said there was no evidence that physical attempts to meet were ever made.
Mirkin said that Reynart contacted Homeland Security once she began conversing with Jospeh as a pretend 13-year-old and told them she had "got(ten) my ex set up and he wants to have sex with a 13-year-old."
Three weeks after Reynart's contacts stopped, Homeland Security Agent Jonathan Posthumus assumed the persona of "Sweet Sara 13" contacted Joseph. "Sweet Sara 13" told Joseph she had moved to Kittery, Maine and was living with her aunt.
"Sweet Sara 13" wanted Joseph to meet her at a Days Inn in Kittery. She also told him she liked strawberry wine coolers and wanted an iPad. She (Agent Posthumus) set a date for November 10, 2013.
According to Mirkin's statements, Joseph didn't keep the date. He made no effort to contact Days Inn and there were no credit card charges related to Days Inn.
Mirkin and Guldbransen both agreed that Johnson sent an e-mail to "Sweet Sara 13" telling her that he wasn't going to the hotel and that he was concerned with the legal issues. "You are only 13. I'm not a child predator," he writes.
Guldbransen said Joseph contacted "Sweet Sara 13" once or twice more in December and January saying he was home, lonely and that he wanted her.
The contact stopped and in February of 2014, Joseph was indicted for two counts of enticing a person under 16 to have sex using a computer.
With yesterday's mistrial, Guldbrandsen can retry Joseph after a different jury has been seated. The date of a possible retrial is not known.