Ex-janitor looks to toss sex assault conviction because of prosecutor’s words to jurors

  • Robert Magoon leaves Merrimack County Superior Court on Wednesday, March 14, 2018 to attend a site visit at the Pines Community Center during the opening of his trial. GEOFF FORESTER / Monitor file

  • Robert Magoon, 75, of Tilton arrives for his sentencing hearing at Merrimack County Superior Court in Concord on Friday, July 28, 2017. ELIZABETH FRANTZ / Monitor file

  • Robert Magoon, 74, of Tilton was convicted Thursday May 11, 2017, of two counts of aggravated felonious sexual assault and is led away from the Merrimack County Superior Court. GEOFF FORESTER / Monitor file

Monitor staff
Published: 8/5/2018 11:27:01 PM

A convicted child molester is arguing before the state’s highest court that a county prosecutor jeopardized his right to a fair trial by telling jurors during closing arguments to “do the right thing.”

Robert Magoon, 75, of Tilton asserts in his appeal that Assistant Merrimack County Attorney Wayne Coull erred by expressing his “personal opinion.” As a result, Magoon maintains that his conviction for molesting an 8-year-old child at the Pines Community Center in Northfield where he worked shouldn’t stand.

Magoon, who previously worked as a police officer in Concord and Franklin, is serving 26 to 52 years in state prison after standing trial on three separate occasions on sexual assault charges in Merrimack County Superior Court. Jurors found that Magoon abused his position as a janitor at the Pines to sexually assault children in the before- and after-school program, and that, during his employment, he also sexually assaulted a disabled woman who uses a wheelchair.

The 8-year-old girl, who testified against Magoon in May 2017, was the first child to disclose abuse, and her disclosure led authorities to several other child victims between the ages of 6 and 13, prosecutors said.

Following his conviction that May, Magoon quickly appealed to the New Hampshire Supreme Court, in part, arguing that the court failed in denying his request for additional jury instruction after Coull told jurors to hold Magoon accountable.

That appeal was the first of three for Magoon; he is also contesting his convictions from the other two trials, the last of which wrapped up in March of this year.

Only the first case involving the 8-year-old girl has made it to the briefing stage of the appeal, a time when attorneys are required to file written legal arguments outlining their positions to the court. The justices will decide in the next couple of months whether to schedule the case for oral arguments or make a ruling based solely on the written filings and case record.

Magoon’s appellate attorney, Stephanie Hausman, wrote in her brief that Coull’s statement at the end of closing arguments was “improper.” She argues that it “deflected the jury’s attention from its true obligation to consider all the evidence, to follow the law, and to hold the State to its burden of proof.”

The state attorney general’s office is strongly contesting the notion, saying in its brief that the evidence against Magoon was “overwhelming,” and that Coull’s statement to the jury in the May 2017 trial was “harmless” when viewed in context.

Assistant Attorney General Elizabeth Woodcock wrote that Coull was responding to a defense attorney’s comment that the trial was about “innocent contact, an implausible story, and an influenced child.” She said those remarks incited Coull’s later statement.

The defense admitted that Magoon violated the “no contact, no touch” policy at the Pines by inviting children in the game room to sit on his lap to color, Woodcock wrote. However, she said, the defense couched his behavior by referring to it as “innocent contact” – a phrase that a public defender restated five times during closing arguments.

Presiding Judge John Kissinger Jr. ruled the statement from Coull was not improper in the context of closing arguments. He instructed jurors not to consider opening statements and closing arguments as evidence.

The Supreme Court will ultimately decide whether enough instruction was given to the jury and whether Coull’s statement influenced the outcome of the case.

As a decision looms, the defense is preparing to file its written legal brief next month in the appeal involving the adult victim. Magoon’s attorneys have raised questions about whether the woman was competent to testify and whether a judge erred in denying Magoon’s request to set aside guilty verdicts on two of the sexual assault charges.

If his convictions stand, Magoon won’t be eligible for parole until he is 100 years old.

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)

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