State v. King

855 A.2d 510, 151 N.H. 59, 2004 N.H. LEXIS 89
CourtSupreme Court of New Hampshire
DecidedMay 17, 2004
DocketNo. 2003-512
StatusPublished
Cited by4 cases

This text of 855 A.2d 510 (State v. King) 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. King, 855 A.2d 510, 151 N.H. 59, 2004 N.H. LEXIS 89 (N.H. 2004).

Opinion

NADEAU, J.

The defendant, Joseph E. King, was indicted on four counts of aggravated felonious sexual assault, see RSA 682-A:2, I(1) (Supp. 2003); RSA 632-A:2, II (Supp. 2003). Following a jury trial in the Superior Court (Sullivan, J.), he was convicted on one count. On appeal, the defendant argues that there is insufficient evidence to support a guilty verdict, that the verdicts are inconsistent, and that the court’s failure to release exculpatory evidence violated his State and federal constitutional rights. We affirm.

The jury could have found the following facts. The defendant was married to Pamela King, the mother of the victim. In February 2002, the victim, the defendant and Pamela were living together in Alstead with other family members. Sometime in February, the victim, who was then under the age of thirteen, was practicing handstands in the living room near the couch. Every time she fell into the couch, the defendant flipped her over, “pushed aside [her] pants,” and touched her “privates.” The victim asked the defendant to stop, and he complied.

On another occasion, the defendant was folding clothes in the marital bedroom while the victim was watching. Again, she began practicing handstands, and the defendant put his mouth on her “privates.” When asked how she knew that he used his mouth, she replied, “Because it was wet.” The victim testified that another incident occurred in the bedroom and that, “pretty much the same thing happened as before.” She further testified that the defendant licked her “pee pee,” that he took off her pants and would not give them back to her, and that he put his fingers inside her.

During trial, the State used a picture of a naked girl as a demonstrative aid. When asked to explain the terms “privates,” “pee pee” and “crotch,” the victim drew a circle around the genital area and labeled it the “crotch” and “pee pee.” She also indicated that “crotch” and “pee pee” are the same and that “privates” includes that same area of the body, plus the chest. The victim reiterated that the defendant touched and put his mouth on her “crotch” and “pee pee” under her clothing.

After the incidents, Mary Russell, the victim’s grandmother, discovered a hand-written note from the victim. The note read: “Mom, Joe is Dad! You should never had [sic] merried [sic] him! He is grosse [sic]! Descusting [sic]! I hate him! We need to talk!” While her grandmother was reading the note, the victim grabbed it from her, tore it up, and threw it in the trash. At trial, when asked to explain her statement that, “Joe is Dad,” the victim testified, “Because my dad did pretty much the same thing to my sister.” Russell further clarified this statement by testifying that the victim’s natural father was convicted of sexually assaulting his other daughter, the victim’s half-sister. Concerning her other statements in the [61]*61note, the victim testified that the defendant was “gross and disgusting for what he did” to her.

The defendant was convicted on one count of aggravated felonious sexual assault. RSA 632-A:2, II. He was found not guilty on all remaining indictments.

On appeal, the defendant first contends that the evidence was insufficient to support the guilty verdict. He asserts that the victim’s testimony was vague and uncorroborated. Because the lines she drew on the demonstrative aid only indicated the general crotch area, the defendant argues that the evidence lacked the specificity necessary to find that the defendant touched her genitalia. We disagree.

In raising a sufficiency of the evidence claim, “the defendant carries the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” State v. Mason, 150 N.H. 53, 56 (2003). We examine each evidentiary item in the context of all the evidence, not in isolation. Id. Where the victim’s testimony is sufficient to establish a prima facie case, no corroborating evidence is needed. Id.; RSA 632-A:6, I (1996).

RSA 632-A:2, II provides: “A person is guilty of aggravated felonious sexual assault without penetration when he intentionally touches whether directly, through clothing, or otherwise, the genitalia of a person under the age of 13 under circumstances that can be reasonably construed as being for the purpose of sexual arousal or gratification.”

State v. Graham, 142 N.H. 357 (1997), and State v. Blackstock, 147 N.H. 791 (2002), are strikingly similar to this case. In Graham, the defendant appealed his convictions on one count of felonious sexual assault and three counts of aggravated felonious sexual assault. Graham, 142 N.H. at 359. The victim testified that the defendant “put[] his ‘privates’ in her mouth, and toueh[ed] her ‘privates.’” Id. The State also used a stuffed bunny as a demonstrative aid to support the inference that the victim’s use of the word “privates” signified her vagina. Id. at 360-61. The defendant argued there was insufficient evidence to uphold his conviction by asserting that the victim’s use of the word “privates” was not sufficiently specific to establish that he touched her genitalia. Id. at 359-60. We, however, concluded that the term “privates” was sufficiently clarified through additional testimony as well as the demonstrative evidence, so that the jury could reasonably infer that the word “privates” referred to the victim’s genitalia. Id. at 360-61.

In Blackstock, the defendant appealed his conviction for aggravated felonious sexual assault. Blackstock, 147 N.H. at 792. At trial, the victim testified that the defendant was tickling her when his hand went under her [62]*62clothes and touched her twice “between her legs.” Id. at 793 (quotation and brackets omitted). The victim also testified that the defendant touched her “private parts” and “private area.” Id. at 793-94. In arguing that there was insufficient evidence to sustain the conviction, the defendant contended that the phrases “between her legs,” “private parts,” and “private area” were insufficient to establish that he unlawfully touched her genitalia. Id. at 793. We determined that based upon use of the term “private parts,” combined with the fact that the victim identified the location of those parts as between her legs, the jury could have found beyond a reasonable doubt that the defendant touched her genitalia as charged in the indictment. Id. at 794-95.

The defendant here contends that the absence of physical evidence, eyewitnesses, or other corroborating evidence demonstrates that the evidence was insufficient to convict him. He relies heavily upon our decision in State v. O’Neill, 134 N.H. 182 (1991), to support his position. In O’Neill, we held that the victim’s use of the term “bum,” in conjunction with the act of pointing at a general area of his body, “did no more to indicate that he meant his anus, than that he meant his buttocks, and was not sufficient to permit a reasonable inference as to the penetration element of the criminal charge.” O’Neill, 134 N.H. at 187. O’Neill, however, is readily distinguishable from the instant case.

First, while we noted the paucity of corroborating evidence in O’Neill, id., we underscore that where, as here, the victim’s testimony itself is sufficient to establish a prima facie case, no corroborating evidence is needed. Mason, 150 N.H. at 56.

Second, in

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Bluebook (online)
855 A.2d 510, 151 N.H. 59, 2004 N.H. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-king-nh-2004.