CONCORD, N.H. — The state’s highest court has reversed the sex assault convictions of a man charged with raping a child at a Newmarket day care center, ruling he was effectively in custody when police questioned him as he walked around his property.

The New Hampshire Supreme Court, in its 3-2 ruling released Tuesday, reversed the six aggravated felonious sex assault convictions of Timothy McKenna, 43,who was charged with sexually assaulting the girl repeatedly from 1997 to 2002 at the center run by his then-girlfriend. Prosecutors say the assaults began when the girl was 5.

The majority ruled that McKenna was effectively in custody when two Newmarket police officers forbade him from walking toward a wooded area during an interview on his Errol property. Two justices dissented, calling that directive “wholly inadequate” to support reversal.

Assistant Attorney General Elizabeth Woodcock, who argued the case for the state, said she is disappointed in the ruling.

“I thought the state’s argument was persuasive, but it was one person short of being persuasive enough,” she said.

McKenna was convicted in 2012 and sentenced to 30 to 60 years in prison. The accuser was 20 and in college when she testified against McKenna.

McKenna was at the Errol campground and restaurant he owned when two Newmarket officers and a state trooper arrived in October 2010 to question him about a report of sexual assaults. They asked him to get into the cruiser to talk, but McKenna asked whether they could walk and talk instead.

The uniformed trooper remained in his cruiser as the two officers walked around asking him about the allegations. McKenna walked toward the woods, but the officers stopped him, saying they wanted to stay in the trooper’s line of sight. After about 75 minutes and several admissions by McKenna, police say, he was placed under arrest.

The majority said the officers’ insistence that McKenna not enter the woods and remain in view of the trooper was a “significant factor” in the court’s ruling that McKenna was in custody and should have been read his Miranda rights. The three justices said the officers’ polite manner and calm voices do not diminish the accusatory nature of their questions and their assertions that they thought he’d committed the sexual assaults.

Justice Robert Lynn, joined in his dissent by Chief Justice Linda Dalianis, accused the majority of putting their spin on the facts to reverse the convictions based on the instruction that McKenna not approach the woods.


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