State v. Hennessey

697 A.2d 930, 142 N.H. 149, 1997 N.H. LEXIS 68
CourtSupreme Court of New Hampshire
DecidedJuly 10, 1997
DocketNo. 94-850
StatusPublished
Cited by21 cases

This text of 697 A.2d 930 (State v. Hennessey) 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. Hennessey, 697 A.2d 930, 142 N.H. 149, 1997 N.H. LEXIS 68 (N.H. 1997).

Opinion

THAYER, j.

The defendant, Raymond F. Hennessey, appeals his conviction after a jury trial in Superior Court (Mohl, J.) on one indictment for aggravated felonious sexual assault on a child under thirteen years of age, RSA 632-A:2, 1(1) (1996), and three indictments for felonious sexual assault on a child other than his legal spouse who is thirteen years of age or older and under sixteen years of age, RSA 632-A:3, II (1996). We affirm.

■The victims are two brothers who regularly attended the defendant’s summer camp in Alton. The older brother began frequenting the camp in 1986, when he was eleven years old. The younger brother began visiting the camp approximately two years later, also when he was about eleven years old. The camp was on a lake, and the boys participated in various water sports such as swimming, water-skiing, and canoeing. They also performed .chores around the camp such as painting and landscaping. They spent most summer, weekends at the camp and occasionally visited during the school year. Meals were provided, and the boys testified that the defendant made beer available to them. They also testified that the defendant played movies for them, including sexually explicit videos. The older, brother described two of these videos. One, entitled “Innocence Lost,” involved several people having sexual intercourse in what appeared to be a playground setting. In the other, twq men engaged in sexual intercourse by a counter in a pizza restaurant. The younger brother described a “sex video” involving two men on a picnic table by a campfire. He testified that he saw “a lot” of such videos. Both brothers testified that they watched pornographic videos nearly every weekend they were at the camp.

The defendant was charged with committing six sexual assaults against the brothers at the defendant’s home in Dover. The older brother testified that on one occasion when he was thirteen he engaged in anal intercourse with the defendant in the defendant’s living room. He recounted that, in the presence of his younger brother, he anally penetrated the defendant with his penis and [153]*153ejaculated. The next two assaults occurred on a January day when school was cancelled on account of snow. A school administrator testified that the only snow day that occurred in January of 1989, 1990, or 1991, the possible years raised by the victims’ testimony, was in January 1990, the month alleged in the indictments. The boys’ mother corroborated the January 1990 date. On the day in question the younger brother was twelve years old. The defendant picked the boys up at their home and took them to clear snow from his walkway and driveway. Upon finishing this task, they went inside the defendant’s house, where each boy, in the other’s presence, performed anal sex on the defendant and ejaculated.

The next charged assault allegedly occurred in February 1990, when the younger brother went to the defendant’s house to change storm windows. The boy testified that he had anal intercourse with the defendant on his couch.

In March 1991, the brothers moved to California with their mother. The defendant or his employee arranged for the boys to return to New Hampshire for the summer. During this time, the younger brother went to the defendant’s house on two separate occasions to do chores, including painting a porch. He testified that while at the house he engaged in both anal and oral sex with the defendant in his brother’s presence.

The jury convicted the defendant on four of the six charges: the two sexual assaults on the brothers in January 1990 and the two on the younger brother in the summer of 1991. The jury acquitted the defendant on the charges involving the older brother when he was thirteen and the younger brother in February 1990. The defendant was sentenced to three-and-a-half to seven years in prison for each of the three felonious sexual assault convictions, see RSA 651:2, 11(b) (1996), to be served concurrently. For the aggravated felonious sexual assault on the younger brother in January 1990, the defendant was given an extended sentence of ten to thirty years, see RSA 651:6, 1(f), 11(a) (1996), consecutive to the other sentences.

On appeal, the defendant argues that the trial court erred by: (1) failing to sever the charges involving the two brothers; (2) allowing the jury to view portions of a sexually explicit videotape seized at the camp; (3) allowing the victims to testify that the defendant made alcohol available to them at camp; (4) allowing the State to introduce hearsay testimony; (5) failing to dismiss all charges at the conclusion of the State’s case; (6) failing to direct verdicts of not guilty; (7) failing to instruct the jury that the State must prove beyond a reasonable doubt the time frames alleged in the indictments; and (8) enhancing the defendant’s sentence based on the age of the victim, [154]*154when age had already been used as the aggravating circumstance justifying the charge of aggravated felonious sexual assault.

The defendant first argues that the trial court erred by failing to sever the charges. A trial court’s decision to consolidate charges will not be disturbed on appeal absent an abuse of discretion. State v. Bergmann, 135 N.H. 97, 101, 599 A.2d 502, 505 (1991). Consolidation is likely appropriate when the charges are related or apparently part of a common scheme. See State v. Manna, 130 N.H. 306, 310, 539 A.2d 284, 286 (1988). In reviewing the trial court’s determination, “we must ask whether the evidence in support of each offense was brief, simple and unlikely to confuse a jury, and easily referable to each crime.” State v. Cote, 129 N.H. 358, 367, 530 A.2d 775, 780 (1987). The critical inquiry is whether “the defendant’s right to a fair trial was jeopardized by non-severance.” State v. Winders, 127 N.H. 471, 473, 503 A.2d 798, 799 (1985).

The evidence in support of the charges was brief and simple. In all, the State presented only five witnesses and the defendant four. Cf. Cote, 129 N.H. at 367, 530 A.2d at 780 (consolidation upheld where State called ten witnesses and defense eleven). The evidence consisted mainly of direct testimony by the victims concerning both their relationship with the defendant and the specific assaults, along with testimony by investigating police officers. See id. The boys testified separately and distinctly about each of the six charged assaults. Although at times they expressed confusion as to the dates of the assaults, their testimony was easily referable to each offense charged in the indictments. The facts the State had to prove to establish each separate offense were not complicated and were unlikely to confuse the jury. Moreover, the charges themselves were closely related, with much of the same evidence tied to assaults on both brothers. See Manna, 130 N.H. at 310, 539 A.2d at 286. The January 1990 assaults occurred in the same place at the same time, with both victims present. The brothers corroborated each other’s testimony regarding these assaults as well as their experiences at camp and their relationship with the defendant. Testimony from the boys’ mother and the school administrator also corroborated the accounts of both victims on important points.

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

Related

State v. Botelho
83 A.3d 814 (Supreme Court of New Hampshire, 2013)
State v. Addison
165 N.H. 381 (Supreme Court of New Hampshire, 2013)
State v. Quintero
34 A.3d 612 (Supreme Court of New Hampshire, 2011)
State v. Costello
977 A.2d 454 (Supreme Court of New Hampshire, 2009)
State v. Rix
834 A.2d 273 (Supreme Court of New Hampshire, 2003)
State v. Pelletier
818 A.2d 292 (Supreme Court of New Hampshire, 2003)
State v. Ramos
818 A.2d 1228 (Supreme Court of New Hampshire, 2003)
State v. Enderson
804 A.2d 448 (Supreme Court of New Hampshire, 2002)
State v. Cole
788 A.2d 248 (Supreme Court of New Hampshire, 2001)
State v. Decosta
772 A.2d 340 (Supreme Court of New Hampshire, 2001)
State v. Pelkey
756 A.2d 598 (Supreme Court of New Hampshire, 2000)
State v. Glodgett
749 A.2d 283 (Supreme Court of New Hampshire, 2000)
In re Brittany L.
737 A.2d 670 (Supreme Court of New Hampshire, 1999)
State v. Hodgdon
725 A.2d 660 (Supreme Court of New Hampshire, 1999)
State v. Fischer
725 A.2d 1 (Supreme Court of New Hampshire, 1999)
State v. Monroe
711 A.2d 878 (Supreme Court of New Hampshire, 1998)
State v. Haines
709 A.2d 762 (Supreme Court of New Hampshire, 1998)
State v. Williams
708 A.2d 55 (Supreme Court of New Hampshire, 1998)
State v. Thibedau
702 A.2d 299 (Supreme Court of New Hampshire, 1997)
State v. Ringuette
697 A.2d 507 (Supreme Court of New Hampshire, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
697 A.2d 930, 142 N.H. 149, 1997 N.H. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hennessey-nh-1997.