State v. Fortier

780 A.2d 1243, 146 N.H. 784, 2001 N.H. LEXIS 163
CourtSupreme Court of New Hampshire
DecidedSeptember 25, 2001
DocketNo. 98-718
StatusPublished
Cited by38 cases

This text of 780 A.2d 1243 (State v. Fortier) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fortier, 780 A.2d 1243, 146 N.H. 784, 2001 N.H. LEXIS 163 (N.H. 2001).

Opinions

BRODERICK, j.

The defendant, Roger A. Fortier, appeals his convictions on numerous sexual assault charges involving two young victims. He argues that the Superior Court (Mohl, J.) erred by failing to dismiss two indictments for aggravated felonious sexual assault (AFSA) alleging a “pattern” under RSA 632-A.-2, III (Supp. 2000) because they: (1) were duplicitous; (2) infringed upon his right to a unanimous jury verdict; and (3) violated the State and federal constitutional prohibitions against double jeopardy. He also asserts that the evidence was insufficient to support six other indictments for AFSA, which allege that he used his position of authority to coerce the victims to submit to certain other sexual assaults under RSA 632-A:2, I(k) (Supp. 2000). We affirm.

I

The following facts were adduced at trial. In 1991, the defendant began serving as a priest at a Roman Catholic Church in Farmington. He met both victims, J.K. and A.Y., through their involvement with the church.

In February 1991, when he was eleven years old, J.K. began taking classes with the defendant to become an altar server. In January 1992, J.K. and his family lived with the defendant at the church rectory for approximately two weeks when their home was destroyed by fire. The defendant maintained a friendship with J.K.’s family, often socializing with them at their home.

[786]*786J.K. frequently went to the rectory on Saturdays to help the defendant prepare the bulletins for mass. Eventually, the defendant asked him if he wanted to spend the night at the rectory. By January 1994, when he was fourteen years old, J.K. was spending two or three weekends a month at the rectory. The defendant took him out to dinner on weekends and occasionally during the week. He also bought him gifts, took him to the movies and gave him money.

The two would watch television together at the rectory and at times, the defendant would joke about his homosexual attractions. One evening in January 1994, while the defendant and J.K. were watching television, the defendant got up to go to bed and asked J.K. if he wanted a “blow job.” Receiving no response, the defendant angrily said, “I guess not” and went to bed. The following weekend the defendant offered J.K. an alcoholic drink, which he accepted. The defendant played a pornographic movie and at some point began rubbing J.K.’s leg and groin area over his clothes. He pulled J.K.’s pants down and performed fellatio on him. J.K. said nothing because he was “kind of scared” and “didn’t know what to think.” The defendant told him that he should not tell anyone.

J.K. testified that over the course of the next year, the defendant subjected him to fellatio one to three times per month. He recalled the sexual assaults occurring in the upstairs living room, the guest bedroom and the master bedroom. He also testified that on occasion, the defendant showed him pornographic movies with heterosexual or homosexual themes. The only movie about which J.K. could remember any detail was the one playing at the time of the first assault.

J.K. stopped going to the rectory in February 1995, at which time the sexual assaults essentially ended. He did not tell anyone about them at the time they were occurring as he was fearful that no one would believe him because “[the defendant] was a friend of the family’s [and was] a nice priest.”

A.Y. first met the defendant through the church in late 1992 or 1993 when he was nine years old, and the defendant helped him prepare to receive his first communion. At twelve, he became an altar server.

The defendant was close to A.Y.’s family and spent evenings at their home watching television, socialized with A.Y.’s mother, and attended family birthday celebrations. The defendant often took A.Y. and his older brother shopping, out to eat and to the movies. At some point, A.Y.’s older brother began spending occasional nights at the rectory. Envious of his older brother, A.Y. asked the defendant if he could stay at the rectory as well. The defendant agreed, and in [787]*787May 1997, when A.Y. was thirteen years old, he began spending every weekend at the rectory. The defendant bought A.Y. clothes and gifts, allowed him to watch cable television, and took him to the movies and to various recreational activities. A.Y.’s mother testified that she allowed her sons to spend time at the rectory because she believed the defendant needed help with various activities due to a heart problem.

The defendant sexually assaulted A.Y. for the first time during one of his early overnight visits. While A.Y. was scratching his foot, the defendant suggested that he go to the master bedroom so the defendant could treat it with a spray or lotion. Once in the bedroom, the defendant applied lotion and began tickling A.Y. At some point, he briefly touched A.Y.’s “private area” over his clothes and said, “feels good, [doesn’t] it?” He then kissed A.Y. on his lips. A.Y. said nothing because he felt scared, trapped and helpless. At some point, the defendant instructed A.Y. to remove his clothes, and A.Y., feeling obligated, complied. The defendant then performed fellatio on him and played a pornographic movie depicting homosexual activities.

The defendant subjected A.Y. to the same type of activity on every subsequent weekend throughout the summer and into the fall of 1997. A.Y. remembered that some assaults occurred in the master bedroom while a pornographic movie was playing, and he was able to describe the substance of several different movies. He also recalled assaults occurring in the guest bedroom of the rectory in early October, and on two occasions, on the couch in the upstairs living room. The last assaults occurred just prior to Halloween in October 1997 when the defendant, while showering with A.Y., performed fellatio on him and digitally penetrated his rectum.

A.Y. first disclosed the sexual assaults to his parents on October 26, 1997. The defendant was arrested, and once the allegations became public, J.K. disclosed to the police the past sexual assaults inflicted on him. The defendant was later indicted on sixteen counts of sexual assault, including: (1) two counts of AFSA alleging that he engaged in a pattern of sexual assault on each victim, see RSA 632-A:2, III; (2) six counts of AFSA alleging that he used his position of authority to coerce the victims to submit to sexual penetration, see RSA 632-A:2, I(k); and (3) eight counts of felonious sexual assault (FSA) alleging that he inflicted sexual penetration on persons who were thirteen years of age or older and under sixteen, see RSA 632-A:3, II (Supp. 2000).

The parties stipulated to a finding of guilt on six FSA counts, on the condition that the jury find the defendant guilty of the six [788]*788coercion AFSA counts because the latter counts encompassed the former. Following a five-day trial, the jury returned guilty verdicts on the two pattern counts, the six AFSA counts and the two FSA counts not encompassed by the AFSA counts. Stipulated findings of guilt were entered on the six remaining FSA counts. Only the defendant’s convictions for the pattern AFSA and the coercion AFSA indictments are on appeal. During oral argument, the defendant sought relief for his FSA convictions as well. We, however, decline to review the FSA convictions because he challenged only the pattern and coercion indictments before the trial court and in his notice of appeal. In re Estate of Cass, 143 N.H.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Reed
2025 N.H. 34 (Supreme Court of New Hampshire, 2025)
State of New Hampshire v. Michael S. Twamley
Supreme Court of New Hampshire, 2019
State v. David Martinko
194 A.3d 69 (Supreme Court of New Hampshire, 2018)
King v. Commonwealth
554 S.W.3d 343 (Missouri Court of Appeals, 2018)
State of New Hampshire v. Peggy Starr
165 A.3d 716 (Supreme Court of New Hampshire, 2017)
State v. Rodric R. Reinholz
140 A.3d 509 (Supreme Court of New Hampshire, 2016)
State of Tennessee v. Jimmy Dale Qualls
482 S.W.3d 1 (Tennessee Supreme Court, 2016)
State of New Hampshire v. Steven P. Collins
168 N.H. 1 (Supreme Court of New Hampshire, 2015)
State of New Hampshire v. Justin L. Roy
167 N.H. 276 (Supreme Court of New Hampshire, 2015)
Baker v. State
948 N.E.2d 1169 (Indiana Supreme Court, 2011)
Haniffy v. NHSP Warden
2010 DNH 090 (D. New Hampshire, 2010)
State v. Tarasuik
999 A.2d 409 (Supreme Court of New Hampshire, 2010)
Williams v. State
305 S.W.3d 886 (Court of Appeals of Texas, 2010)
George Henry Williams, Jr. v. State
Court of Appeals of Texas, 2010
State v. Ericson
986 A.2d 488 (Supreme Court of New Hampshire, 2009)
State v. Kelly
986 A.2d 575 (Supreme Court of New Hampshire, 2009)
State v. Gardner
118 Ohio St. 3d 420 (Ohio Supreme Court, 2008)
State v. Jennings
929 A.2d 982 (Supreme Court of New Hampshire, 2007)
State v. Beltran
904 A.2d 709 (Supreme Court of New Hampshire, 2006)
State v. Hannon
867 A.2d 426 (Supreme Court of New Hampshire, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
780 A.2d 1243, 146 N.H. 784, 2001 N.H. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fortier-nh-2001.