LACONIA — A former homeless man from Concord who was recently convicted by a jury of two felony counts of exposing himself at Opechee Park on Labor Day in 2014 has asked a Belknap County Superior Court judge to set aside the verdict.
A jury found Daniel King, 53, guilty of two counts of indecent exposure in February after a five-day trial that saw four juveniles, multiple Laconia Police officers, and an Internet technician testify against him.
In his motion to set aside the verdict, King argues the judge sits as the "thirteenth juror" and decides whether the prosecution has carried its burden of persuasion has been met. He said the trial judge has more discretion than the jury and, according to the N.H. Supreme Court, the weight of evidence "is not determined by mathematics (or the amount of evidence) but depends on the effect of inducing belief."
King said the facts presented to the jury did not support a conviction. He noted three of the four juveniles picked different men out of a photo array and all provided different descriptions of where they were that day and what exactly they saw.
He noted the state's key witness said she took off running after she saw the man and later described him to police as wearing a black jacket, having glasses on his head, and a scar or piercing on his face. King said the grainy video shots taken from the school do not show a man with a black coat or glasses. The defense said King doesn't have a scar or piercings on his face.
He said the middle school technician said there were no issues with the camera that day and a police officer testified that he kept all of the video that showed "movement" that day.
King also argues the positions of the tapes do not sustain the complaints made by the children and one of the Laconia Police officers said the surveillance video was not sufficiently detailed and, more importantly, was not synchronized in time with the incident.
He noted that the first girl who saw him called her mother at 4:10 p.m. before she called 911. But the man who was headed toward the correct path was spotted on the camera at 4:10:52 and would have had to have been in a different place to expose himself to her before she called her mother.
Additionally, he said police had the names of 10 additional children at the beach that day but the investigating detective didn't reach out to them until Sept. 23, meaning the kids all had time to discuss what they saw before being interviewed by police. King also points out that two of the children reported an indecent exposure later that evening at the same spot.
King also said that his decision to leave the state was not evidence as to his guilt and the judge gave those same instructions to the jury. During his interviews with police, he denied all of the accusations.
"Certainly Mr. King's actions and statements alone cannot lead one to conclude beyond a reasonable doubt that he was the man seen by the kids on Sept. 1," wrote King's attorney, Eric Wolpin. "Even placing those actions and statements in the broader picture presented at trial, the inability of police or lay witness to definitively identify Mr. King as the man who was on the video or definitively identify Mr. King in the photographic lineup as the man that exposed himself, doubt remains."
"The jury failed to give the evidence its proper weight and the court should set aside the verdicts in this case," he concluded.
In her objection, Assistant Belknap County Attorney Carley Ahern said the state presented four of the eight children who were walking as a group when King walked in front of them and exposed himself. Two said he was touching or rubbing himself.
She said two of four picked him out of a police photo array and the two who didn't said one only saw his profile and one didn't see him. One of the two who didn't pick him out wears glasses and the other said he wasn't looking at the man's face. She said the girl who identified King from the line up also identified him at court.
Ahern said the state disagrees that the footage was "grainy and insufficient" and that it was shown to the jury both normal size and enlarged. She also noted that during deliberations, the jury spent extra time reviewing the footage.
She said the camera footage noted the placement of King's car and it noted there is no tire on the back of it and there is no tire on the back of the car he used to own. She said the camera noted King running to his car, which explains why there were no children videoed in this place. She said the video footage noted the size, shape and appearance of the man and the jury viewed him both at trial and on the video.
She noted that only one officer responded, and after speaking with the children and noting where they said they saw him run, he went in that direction in "hot pursuit." He didn't have the time to take names of the witnesses at that moment.
Ahern said when King was told by police they had video of him and his car, he ditched the car in Maryland and took buses, eventually taking him to Hotsprings, Arkansas. where he was arrested by U.S. Marshals.
She said that he had initially offered an alibi defense whose testimony "really fell apart" during the trial.
Legally she argues that a jury verdict must "be unreasonable" for the trial court to set it aside and the court should not set aside a jury's verdict unless the failed to give the evidence its proper weight.
She said the New Hampshire Supreme Court will uphold the decision because the trial judge is in a better position to observe the proceedings that it will be.
She said the children were credible because their testimony was candid, their appearance led the jury to find them credible, that they didn't exaggerate or embellish, that they were consistent with regard to the exposure, and there was no reason for them to lie or make up the incident.
"..it is clear that the jury correctly weighed the evidence in this case such that its 'guilty' verdicts were not a miscarriage of justice, and should be allowed to stand."
The court will hear oral arguments on the motion on Tuesday at 9 a.m.