State v. Boire, 83-068

• Decision Date: 28 March 1984
• Docket Number: No. 83-068,83-068
• Parties: The STATE of New Hampshire v. Richard L. BOIRE.
• Court: New Hampshire Supreme Court

Page 568

474 A.2d 568

124 N.H. 622

The STATE of New Hampshire v. Richard L. BOIRE.

No. 83-068.

Supreme Court of New Hampshire.

March 28, 1984.

Gregory H. Smith, Atty. Gen. (Edna M. Conway, Concord, Attorney, on brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

PER CURIAM.

The defendant was indicted under RSA 632-A:2, XI (Supp.1983) for aggravated felonious sexual assault upon a resident of the Dover Children's Home. The indictment charged that the defendant committed the offense on September 25, 1981. The defendant moved for a bill of particulars with respect to date, time, and place. The defendant based his request on the possibility of an alibi defense.

The county attorney did not question the defendant's entitlement to a bill of particulars. Instead, he responded to the motion by representing that September 25 was the date of the offense. The trial court noted that the motion for the bill of particulars had been withdrawn in reliance upon that representation. Later, the county attorney's administrative assistant confirmed in writing that according to the State's records the assault occurred at the defendant's house on September 25 between certain evening hours.

At the close of the State's evidence, the defendant moved for dismissal for failure to present evidence from which the jury could find beyond a reasonable doubt that the act alleged occurred on the evening of September 25. The Trial Court (Nadeau, J.) denied the motion, and he also denied the defendant's later motion to set aside the verdict on that same ground, among others. We must sustain the defendant's exceptions to the denial of these motions.

Our reasoning begins with a consideration of the general rule that "the State is not necessarily bound by a date specified in an indictment when time is not an element of the crime charged and proof that the event happened on the precise day named in the indictment is not required." State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 117 (1978). The statute now before us does not define the offense so as to make proof of exact date essential. In such a case, the State may not be required over objection to furnish a bill of particulars specifying an exact date and time for the commission of the offense, unless this can be shown to be necessary for the preparation of a defense or to preclude a later unconstitutional prosecution. State v. Littlefield, 219 A.2d 755 (Me.1966); 2 C. Torcia, Wharton's Criminal Procedure § 355 (12th ed. 1975).

Whether the bill of particulars could have been required over objection in this case is not, however, before us. The county attorney did not contest the defendant's right to it, once he had raised the possibility of an alibi defense. Instead, the county attorney responded with a representation that was a bill of particulars as to place, date, and time. With one exception not relevant here, this representation was understood and treated as a bill of particulars by the county attorney, by defense counsel, and by the trial judge.

Though subject to amendment, the terms of a bill of particulars are exact allegations that must be proved as elements of the offense charged. A bill of particulars limits proof to what it specifies and requires proof of what it specifies. State v. Bonney, 351 A.2d 107 (Me.1976); State v. Littlefield supra; Commonwealth v. American News Co., Inc., 333 Mass. 74, 127 N.E.2d 661 (1955); 2 C. Torcia supra.

Since the State in effect did furnish the bill of particulars, it therefore became obligated to prove beyond a reasonable doubt that the offense alleged occurred on the date specified by the county attorney, September 25, 1981. In support of his motions to dismiss and to set aside the verdict, the defendant claimed that the State had not met this burden.

His exceptions to the denial of these motions require us to determine whether on all the evidence, and all reasonable inferences from it, considered in the light most favorable to the State, any rational trier of fact could have concluded beyond a reasonable doubt that the offense occurred on September 25. State v. Reardon, 121 N.H. 604, 431 A.2d 796 (1981). We conclude that no rational trier of fact could have so found.

The evidence bearing on proof of the date indicated that the defendant and his wife often entertained children from the home by bringing them to stay overnight at their own house to enjoy recreational activities with their own children. In September 1981, the named victim spent the night at the defendant's house before attending the Rochester Fair the next day. The crime is alleged to have occurred that night.

The victim did not testify about the date of his visit to the defendant's house. The only witnesses who did testify directly as to the date of the visit in question were the defendant, his wife, and the victim's house parent at the Children's Home, Todd Henry.

They agreed on some facts. They agreed that Henry had given permission for the victim to go camping with the defendant and his family in early September of 1981. They agreed that on the Friday the victim was supposed to leave, Henry had withdrawn that permission as a penalty to the victim for fighting with another...