State v. Seymour

707 A.2d 130, 142 N.H. 620, 1998 N.H. LEXIS 9
CourtSupreme Court of New Hampshire
DecidedFebruary 27, 1998
DocketNo. 96-381
StatusPublished
Cited by11 cases

This text of 707 A.2d 130 (State v. Seymour) 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. Seymour, 707 A.2d 130, 142 N.H. 620, 1998 N.H. LEXIS 9 (N.H. 1998).

Opinion

BRODERICK, J.

After a jury trial in Superior Court (Fitzgerald, J.), the defendant, Jason Seymour, was convicted of aggravated felonious sexual assault. See RSA 632-A:2 (1996). On appeal, he argues that the trial court erred in refusing to give the jury either a time-based defense instruction under State v. Williams, 137 N.H. 343, 629 A.2d 83 (1993), (Williams instruction) or an alibi instruction. We affirm.

The defendant was indicted for an aggravated felonious sexual assault that occurred “on or about” May 2, 1995. He timely filed a notice of alibi, claiming that he was in Mohawk, New York, at the time of the charged assault.

At trial, the State presented the following evidence. The defendant had a brief relationship with the victim’s mother and lived with her and her two children at their apartment in Rochester, New [622]*622Hampshire, for a couple of months in 1995. The defendant often babysat the six-year-old victim and her younger brother. The victim testified that the defendant babysat her after school on “Jump Rope for Heart Day,” a fund-raising event for the American Heart Association, and assaulted her. A school employee testified that the fund-raising event occurred on May 2, 1995.

Defense witnesses testified that the defendant arrived in Mohawk, New York, on April 28 or 29, and left to return to New Hampshire on the evening of May 2. On cross-examination, the prosecution challenged the recollection of the defense witnesses as to whether the defendant returned to New Hampshire on May 1 or May 2.

At the close of the evidence, defense counsel submitted an alibi instruction, among others. The trial court questioned the propriety of the alibi instruction on the apparent basis that the date of the alleged assault was not an element of the offense because the defendant had not requested and secured a bill of particulars. Counsel moved for a bill of particulars, which the trial court denied. A request for a Williams instruction followed, and it, too, was denied. The court reasoned that “on or about” May 2, 1995, did not constitute a “time frame” under Williams and that the defendant failed to demonstrate a “lack of opportunity” to commit the assault, assuming a time frame was alleged. See Williams, 137 N.H. at 346, 629 A.2d at 85. This appeal followed.

In assessing the defendant’s appeal, we are mindful that “[t]he trial court has discretion to determine whether or not a particular instruction is necessary to assist the jury in reaching a verdict.” State v. Dedrick, 135 N.H. 502, 505, 607 A.2d 127, 129 (1992). A trial court’s denial of a proposed jury instruction is reviewed in the context of the entire charge and all of the evidence presented at trial. Id.

As a general rule, “[t]he exact date of [an] assault is not an element of aggravated felonious sexual assault,” State v. Demond, 136 N.H. 233, 234, 614 A.2d 1342, 1342-43 (1992) (quotation omitted), and the State is not required to prove that an assault occurred at the time alleged in the indictment, see State v. Stearns, 130 N.H. 475, 489, 547 A.2d 672, 680 (1988). Rather, the State must only prove that the crime occurred before the indictment was returned and within the statute of limitations. State v. Perkins, 70 N.H. 330, 332, 47 A. 268, 269 (1900).

There are, however, two exceptions to the general rule. First, if the State furnishes a bill.of particulars that identifies a specific date or time frame for the charged offense, then it must prove the [623]*623temporal detail beyond a reasonable doubt. State v. Boire, 124 N.H. 622, 624-25, 474 A.2d 568, 569-70 (1984). Second, if the State alleges the crime occurred within a time frame in the indictment or complaint and the defendant asserts a lack of opportunity defense for the entire period, then the State must establish the time frame as part of its proof. Williams, 137 N.H. at 346, 629 A.2d at 85. The defendant does not challenge the trial court’s denial of his motion for a bill of particulars; accordingly, we address whether the trial court erred in refusing to give a Williams instruction.

The defendant argues that he was entitled to a Williams instruction because the State alleged a time frame in the indictment. Because we hold that the indictment did not allege a Williams time frame, the trial court did not err in refusing to give the requested instruction.

We interpret Williams to apply only when an indictment brackets criminal conduct within an extended time period, and a defendant asserts lack of opportunity to commit the crime. See id. We created the Williams exception to strike a balance between the difficulties the State encounters “in fixing a precise date for a sexual assault, particularly when the victim is a young child who cannot easily relate the time of the offense to school vacations or other outside events,” and the burden an extended time frame imposes on a defendant in preparing a defense because “persons can rarely find alibi witnesses for each day of a long time period.” Id.

In Williams, the defendant was charged with sexually assaulting a child while babysitting him “between January 1, 1988 and December 31, 1989.” Id. at 345, 629 A.2d at 84. The defendant presented evidence establishing that he was last alone with the child in December 1987. Id. at 347, 629 A.2d at 85-86. Because of the extended time period asserted in the indictment and the defendant’s claim that he lacked opportunity to assault the victim during that period, we held that it was the State’s burden to prove the assault occurred during the two-year period alleged. Id. at 346, 629 A.2d at 85. Here, however, the State did not charge the defendant with committing an assault during an extended period of time, but rather asserted that he sexually assaulted the young victim “on or about” May 2, 1995. Such a narrow focus did not interfere with the defendant’s ability to establish an alibi defense, see State v. Fennell, 133 N.H. 402, 411, 578 A.2d 329, 334 (1990), and thus the concerns underlying Williams are not implicated. See Williams, 137 N.H. at 346, 629 A.2d at 85. Accordingly, a Williams instruction was not required because the indictment did not allege a time frame.

[624]*624The defendant also asserts that the trial court committed reversible error in refusing to give the requested model alibi instruction because his alibi defense was supported by “some evidence.” State v. Plante, 134 N.H. 456, 460, 594 A.2d 1279, 1282 (1991) (requested charge on theory of insanity defense must be given if theory supported by some evidence). Unlike a Williams instruction, the alibi instruction requested by the defendant does not require the State to prove that the assault occurred within a particular time frame.

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Bluebook (online)
707 A.2d 130, 142 N.H. 620, 1998 N.H. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-seymour-nh-1998.