State v. Bean

Decision Date25 April 2006
Docket NumberNo. 2004–455.,2004–455.
Citation897 A.2d 946,153 N.H. 380
CourtNew Hampshire Supreme Court
Parties The STATE of New Hampshire v. Gerard BEAN.

Kelly A. Ayotte, attorney general (Jeffrey S. Cahill, senior assistant attorney general, on the brief and orally), for the State.

Andrew Winters, assistant appellate defender, of Concord, on the brief, and Christopher M. Johnson, chief appellate defender, orally, for the defendant.

HICKS, J.

The defendant, Gerard Bean, appeals his conviction, following a jury trial in Superior Court (Nadeau, J.), of attempted kidnapping. See RSA 629:1 (Supp.2005) ; RSA 633:1 (Supp.2005). We affirm.

The jury could have found the following facts. On the evening of October 13, 2002, the victim, eight-year-old J.L., was at Park Place Lanes, a bowling alley in Windham, with her father, brother, sister, aunt and uncle. While the father bowled, the children were allowed to play right behind him or in the bowling alley's arcade.

The defendant was also at the bowling alley. At times he talked to children in the arcade, tapping them on the shoulder and leaning over to speak to them. One of the children he spoke to was the victim. He told her either that he was her uncle or a friend of her uncle and asked her if she wanted to go play cards. At one point, he asked her to go outside with him, and although she initially refused, he then said, "Let's go." The defendant stood up and walked out a glass door into the vestibule area of the bowling alley and the victim followed. As the defendant reached the bowling alley's outside door, he was confronted by James Quinn, who had become suspicious upon observing the defendant's interactions with the children in the arcade. Raymond Gosselin, the night manager at the bowling alley, called the police and the defendant was arrested for attempted kidnapping.

On appeal from his conviction, the defendant raises the following claims of error: (1) that the trial court's instructions to the jury impermissibly amended the indictment, which was itself insufficient; (2) that the court improperly permitted the State to refresh the victim's recollection, and admitted hearsay evidence, concerning the defendant's statements to the victim; and (3) that the trial court should have granted the defendant's motion for a directed verdict because there was insufficient evidence to convict. We will address each argument in turn.

The indictment charged in relevant part that on or about October 13, 2002, at Windham, in Rockingham County:

1. Gerard Bean,
2. with the purpose to commit the crime of kidnapping,
3. approached J.L. ... in the "Park Place Lanes" bowling alley, Bean talked to J.L. and asked J.L. to go outside with him, Bean also said words to the effect of "Let's go" to J.L., Bean began to exit "Park Place Lanes" with J.L. following behind him,
4. which, under the circumstances as he believed them to be, constituted a substantial step toward the commission of the crime.

The defendant moved to dismiss the indictment as insufficient because it failed to specify which statutory variant of kidnapping the defendant allegedly attempted to commit. Specifically, RSA 633:1 defines a number of ways in which the crime of kidnapping may be committed:

I. A person is guilty of kidnapping if he knowingly confines another under his control with a purpose to:
(a) Hold him for ransom or as a hostage; or
(b) Avoid apprehension by a law enforcement official; or
(c) Terrorize him or some other person; or
(d) Commit an offense against him.
I-a. A person is guilty of kidnapping if the person knowingly takes, entices away, detains, or conceals any child under the age of 18 and unrelated to the person by consanguinity, or causes such child to be taken, enticed away, detained, or concealed, with the intent to detain or conceal such child from a parent, guardian, or other person having lawful physical custody of such child.

The court denied the motion and instructed the jury on two of the variants in section I—purpose to terrorize the victim and purpose to commit an offense against the victim—and the variant in section I-a. The court further instructed the jury that they must unanimously agree upon which variant the defendant took a substantial step toward committing.

The defendant contends that these instructions impermissibly amended the indictment.

An impermissible amendment would be one that effects a change in the offense charged, or adds an offense. Because an element of the offense charged is automatically considered part of the substance of an indictment, instructing the jury on an element not charged by the grand jury substantively changes the offense and therefore is grounds for automatic reversal.

State v. Glanville, 145 N.H. 631, 633, 765 A.2d 173 (2000) (quotation omitted). The defendant argues that here, as in Glanville, the trial court's instructions on statutory variants that were not alleged in the indictment "supplied what was otherwise a legal insufficiency to the indictment." Id. at 634, 765 A.2d 173 (quotation omitted). We disagree.

In State v. Johnson, 144 N.H. 175, 178, 738 A.2d 1284 (1999), we noted that "[t]he attempt statute requires the State to identify the intended offense, but does not require the State to plead and prove the elements of the intended offense." In Johnson, the defendant was convicted of attempted aggravated felonious sexual assault. Id. at 176, 738 A.2d 1284. On appeal, he argued that the indictment failed to allege the elements of the charged offense because, among other things, it failed "to allege the circumstances under which penetration would have been accomplished by identifying the appropriate subsection or subsections of RSA 632–A:2, I." Id. at 177, 738 A.2d 1284. We disagreed, reasoning that "[s]ince an attempted crime is by definition a crime not completed, the State could not plead, factually identify, and prove the elements of the intended offense as if it had been carried out." Id. at 178, 738 A.2d 1284. We therefore held that the State was not required to allege in the indictment a statutory subsection of the attempted offense. Id.

The defendant acknowledges Johnson, but argues that this case is more like Glanville, which, he asserts, "seems to at least partly conflict" with Johnson. In Glanville, the defendant was charged with attempted armed robbery. See RSA 636:1 (1996). The indictment alleged, in part, that the defendant was armed with a BB gun, "which reasonably appeared to be a deadly weapon." Glanville, 145 N.H. at 632, 765 A.2d 173 (quotation omitted). It was "undisputed that the State intended for the indictment to charge the defendant with [the attempt of] a violation of paragraph (b) of RSA 636:1, III." Id. at 634, 765 A.2d 173. Paragraph (b) of the statute, however, required that the defendant "[r]easonably appeared to the victim to be armed with a deadly weapon." RSA 636:1, III(b) (emphasis added). We determined that the words "to the victim" were essential to paragraph (b) and therefore held that when the court instructed the jury that it could find the defendant guilty if it found that he had the specific intent to use an instrumentality which would reasonably appear to the victim to be a deadly weapon, it impermissibly amended the indictment.

Glanville, 145 N.H. at 634, 765 A.2d 173.

The defendant argues that "[i]f this Court fails to reconcile Glanville with Johnson, it should find that [Glanville] significantly modifies Johnson, or overrules it altogether." Because we find this case readily distinguishable from Glanville, we need not consider the defendant's invitation to reexamine Johnson. In Glanville, the State, although not required to do so under Johnson, attempted to charge the defendant with a specific variant of the crime allegedly attempted, but failed to accurately set forth that variant in the indictment. In this case, the State made no attempt to specify a variant of the underlying crime of kidnapping in the attempt indictment, as it was entitled to do under Johnson. Thus, because the indictment was sufficient, see Johnson, 144 N.H. at 179, 738 A.2d 1284, the trial court's instructions did not "suppl[y] what was otherwise a legal insufficiency to the indictment," Glanville, 145 N.H. at 634, 765 A.2d 173 (quotation omitted).

The defendant next argues that the trial court erred in permitting the State to refresh the victim's recollection about the defendant's statements to her. During the victim's direct testimony, the prosecutor asked if the defendant had "suggest[ed] at any time that he might be somebody." The victim stated that she did not remember. The prosecutor then confirmed that the victim could read and had her read to herself a portion of her testimony from a prior trial of this case that had ended in a mistrial. The prosecutor then asked, "Now, after reading that, does that help you to remember?" The victim said, "Yes." She then testified that the defendant "said something about friends of my uncle's."

The defendant argues that the State failed to lay a proper foundation for allowing the victim to refresh her recollection because "she was never asked, and never testified, that reading the transcript would actually refresh her recollection." The defendant, however, failed to object on this specific ground. Rather, he objected generally that "the witness has to testify as to what she remembers." After the prosecutor clarified for the court that he intended to refresh the victim's recollection, and the court stated, "That's fine," defense counsel merely asked the court to note his objection. Counsel never raised a specific objection as to foundation. Accordingly, this issue has not been preserved for appellate review. See State v. Brinkman, 136 N.H. 716, 718, 621 A.2d 932 (1993).

The defendant next challenges the admission of hearsay in the following instances. First, Marylene Ruiz spoke to the victim after the incident. At trial, Ruiz testified that she asked the victim "if she knew who the guy...

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