State v. Melcher

678 A.2d 146, 140 N.H. 823, 1996 N.H. LEXIS 37
CourtSupreme Court of New Hampshire
DecidedMay 8, 1996
DocketNo. 95-369
StatusPublished
Cited by40 cases

This text of 678 A.2d 146 (State v. Melcher) 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. Melcher, 678 A.2d 146, 140 N.H. 823, 1996 N.H. LEXIS 37 (N.H. 1996).

Opinions

BRODERICK, j.

After a jury trial, the defendant, John Melcher, was convicted of one count of aggravated felonious sexual assault. See RSA 632-A:2 (1986). In this appeal, the defendant argues that the Superior Court (Mohl, J.) erred in its instructions to the jury regarding the elements of the offense, and in admitting evidence of other bad acts in the State’s case in chief under New Hampshire Rule of Evidence 404(b). We reverse and remand.

I

At trial, the State alleged the following facts. In 1986, the victim lived with her sister, her mother, and the defendant, her mother’s boyfriend. When the victim was thirteen years old and her mother was out, the defendant entered the victim’s bedroom and exposed himself. He told her he was going to teach her about oral sex and told her to kiss his penis. She refused, and the defendant grabbed her by the hair and pulled her to him until she kissed his penis.

[825]*825The defendant first argues on appeal that the trial court erroneously defined “fellatio” in its jury instructions. The indictment against the defendant alleges that he “knowingly engage[d] in . . . sexual penetration of another” by having “engage[d] in fellatio . . . with a female juvenile.” At the close of the State’s case, the defendant moved to dismiss based upon insufficient evidence of penetration. The trial court denied this motion and ultimately instructed the jury that

[t]he State must prove that the defendant engaged in sexual penetration. For purposes of this case, sexual penetration includes the act of fellatio. I will tell you that fellatio is the oral stimulation of the penis. The act of fellatio does not require the penetration of the penis in the oral cavity and there is no requirement for ejaculation.

The defendant challenges this instruction.

“Sexual penetration is a material element of any aggravated felonious sexual assault offense under RSA 632-A:2.” State v. Chamberlain, 137 N.H. 414, 416, 628 A.2d 704, 705 (1993). The legislature has defined “sexual penetration” as, among other things, “Sexual intercourse; or . . . Cunnilingus; or . . . Fellatio; or . . . Anal intercourse . . . .” RSA 632-A:l, V (1986). “Fellatio” is not defined in the statute. In the defendant’s view, because “fellatio” is a subset of “sexual penetration,” any definition of fellatio must include “penetration,” which the defendant defines as “passing through or into.” We disagree.

At the outset, we reject the defendant’s assertion that our decision in State v. St. John, 120 N.H. 61, 410 A.2d 1126 (1980), should control. In St. John, the defendant alleged that the State failed to present sufficient evidence at trial to prove beyond a reasonable doubt penetration in the form of fellatio. See id. at 63, 410 A.2d at 1127. On appeal, the parties agreed that proof of penetration was required, and we reviewed only the sufficiency of the evidence offered to prove penetration. Id. at 64, 410 A.2d at 1127. Whether fellatio requires actual penetration as a matter of law thus was not before the court; consequently, our ruling in St. John is not dispositive.

“[T]his court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.” State v. Arris, 139 N.H. 469, 471, 656 A.2d 828, 829 (1995) (quotation omitted). RSA 625:3 (1986) requires that we construe provisions of [826]*826the Criminal Code “according to the fair import of their terms, and to promote justice.”

Though the legislature has not defined “fellatio,” it has supplied the definitions of “sexual penetration” to be used in construing RSA 632-A:2, see RSA 632-A:l, V, and “fellatio” is one of these definitions. “It is a basic precept of statutory construction that the definition of a term in a statute controls its meaning.” Appeal of Rehab. Assoc’s of N.E., 131 N.H. 560, 565, 556 A.2d 1183, 1186 (1989). Whatever its commonly accepted meaning, then, fellatio is “sexual penetration” for purposes of the statute, whether or not it involves actual penetration in the sense of “passing through or into.” Because this statutory language is clear and unambiguous, “its meaning is not subject to modification by judicial construction.” State v. Dushame, 136 N.H. 309, 314, 616 A.2d 469, 472 (1992) (quotation omitted).

A trial court’s instructions serve “to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case.” State v. Cegelis, 138 N.H. 249, 252, 638 A.2d 783, 785 (1994). In this case, the trial court instructed the jury that fellatio is “oral stimulation of the penis,” and that “[t]he act of fellatio does not require the penetration of the penis in[to] the oral cavity.” This definition accords with the common understanding of fellatio as “the practice of obtaining sexual satisfaction by oral stimulation of the penis.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 836 (unabridged ed. 1961). The trial court’s instruction explained to the jury in clear and intelligible language the law applicable to the case. There was no error.

Ill

The defendant next argues that the trial court improperly admitted evidence of prior bad acts under New Hampshire Rule of Evidence 404(b). Before trial, the defendant sought to prevent the introduction of evidence that within three or four years of the charged offense, the defendant had “tickled” and fondled the victim; that the defendant later, and on several occasions, had fondled the victim’s breasts and genitals while she was shaving her legs; and that the defendant once had the victim sit naked on a couch between him and her mother so that she would “feel better about [her] body.” The State did not seek indictments in connection with these allegations. See RSA 632-A:3, III (1986) (prohibiting sexual'contact with person under thirteen years old). The trial court agreed with the State that these prior bad acts demonstrated a plan by the defendant to condition the victim through an escalating series of [827]*827assaults, and that the evidence was also relevant to show the relationship between the victim and the defendant.

This court recognizes that sexual assault is an emotionally and physically damaging crime, uniquely so when the victim is a minor. The allegations of prior sexual assault in this case involved unseemly and revolting acts. Nonetheless, we must determine whether these incidents are admissible under our rules of evidence without eviscerating the prohibition against the admission of evidence to demonstrate character or propensity. This task is not always clear or easy, particularly when prior acts concern sexual assault on a minor.

We begin with Rule 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.

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Bluebook (online)
678 A.2d 146, 140 N.H. 823, 1996 N.H. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-melcher-nh-1996.