State v. Bussiere, s. 78-089
| Decision Date | 27 September 1978 |
| Docket Number | 78-091,Nos. 78-089,s. 78-089 |
| Citation | 392 A.2d 151,118 N.H. 659 |
| Parties | The STATE of New Hampshire v. Robert W. BUSSIERE. The STATE of New Hampshire v. Ronald G. DUPUIS. |
| Court | New Hampshire Supreme Court |
Thomas D. Rath, Atty. Gen. (John C. Boeckeler, Asst. Atty. Gen., orally), for the State.
Brown & Nixon, P. A., Manchester (David W. Hess, Concord, orally), for defendant Bussiere.
Sheehan, Phinney, Bass & Green, P. A., Manchester (Henry B. Stebbins, Manchester, orally), for defendant Dupuis.
Four indictments were entered against each of the two defendants. Defendant Bussiere moved to quash three of the indictments against him; defendant Dupuis moved to quash all four. The motions were denied by Flynn, J., who reserved and transferred all questions of law raised by the defendants' exceptions.
We first consider defendant Bussiere's motion to quash indictments. He initially excepts to the two indictments charging him with violations of RSA 632-A:2 (Supp.1977). One indictment alleges that on a specified date and at a specified place Bussiere:SU did purposely engage in sexual penetration in the form of sexual intercourse with (a named victim), not his spouse, when the victim . . . did submit to such sexual penetration by Robert W. Bussiere under circumstances involving kidnapping . . . .
The other RSA 632-A:2 (Supp.1977) indictment alleges that on a specified date and at a specified place Bussiere:
did purposely engage in sexual penetration by placing his penis into the mouth of (the named victim), not his spouse, when the victim . . . did submit to such sexual penetration by Robert W. Bussiere under circumstances involving kidnapping . . . .
Bussiere first argues that the indictments are duplicative because they both charge the commission of the same offense. He cites State v. Harlan, 116 N.H. 598, 364 A.2d 1254 (1976), for the proposition that duplicative indictments are impermissible. In that case we quashed certain indictments that alleged theft by deception. Those indictments charged the commission of the same crimes charged by other indictments. They differed only in their allegations of the means by which the crimes were committed. In the case at bar, however, Harlan is inapplicable, for the two indictments asserted to be duplicative charge Separate crimes.
In People v. Robinson, 80 Mich.App. 559, 264 N.W.2d 58 (1978), the court held that Michigan law defines intercourse and fellatio as being two separate sexual penetrations, and that: "A defendant may be convicted and punished for each act of sexual penetration." Id. at 62. RSA ch. 632-A is patterned after the Michigan criminal sexual conduct statutes, See N.H.H.R.Jour. 600 (1975), and we find Robinson persuasive. We therefore hold that a defendant may be separately indicted for and convicted of proscribed intercourse and fellatio, two separate offenses against the person.
Bussiere's second argument has more merit. He argues that the two RSA 632-A:2 (Supp.1977) indictments are insufficient because they fail to fully set forth the offenses charged. Although the indictments describe the offenses in the words of the statute, we have repeatedly held that this alone " 'does not always meet the constitutional requirements that a fair and full description of the offense must be alleged.' " State v. Bean, 117 N.H. 185, 187-88, 371 A.2d 1152, 1153 (1977), Quoting State v. Gilbert, 89 N.H. 134, 194 A. 728 (1937). An indictment is sufficient only if it "clearly sets out all of the necessary elements constituting the offense." State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 459 (1974); see N.H.Const. pt. I, art. 15; RSA 601:4. We hold that an indictment alleging that a victim submitted to sexual penetration under circumstances involving kidnapping must enumerate the facts establishing the necessary elements of the offense of kidnapping. See State v. Elkins, 216 Or. 509, 339 P.2d 715 (1959).
The State submits that: "Kidnapping has a generally understood meaning which is consistent with the criminal code definition of the crime" and therefore does not need to be delineated by the indictment. An indictment is not sufficient merely because the State deems a crime charged in an indictment to be generally understood; the necessary elements of the crime must be included in it. We would not sustain an indictment which only charges the substantive crime of kidnapping, without stating the facts constituting the necessary elements of the offense. Such an indictment neither informs the defendant of the particular charges against him nor enables him to "plead his conviction or acquittal as a bar to further prosecution for the same offense . . . ." 41 Am.Jur.2d Indictments and Informations § 93 (1968), Citing State v. Goodwin, 101 N.H. 252, 139 A.2d 630 (1958). We therefore quash the two RSA 632-A:2 (Supp.1977) indictments entered against defendant Bussiere. See Attorney General Law Enforcement Manual 117 (1970, as amended February 1, 1974).
The remaining claims raised by Bussiere relate to the indictment that charges him with being an accomplice to attempted murder. The indictment charges that on a specified date and at a specified place Bussiere
with the purpose of promoting or facilitating the commission of the offense of murder, did aid Ronald G. Dupuis in committing the said offense by striking the victim . . . about the head with a club in that Ronald G. Dupuis did with a purpose to commit the crime of murder, purposely commit the following acts which under the circumstances as he believed them to be constituted a substantial step toward the commission of the crime of murder in that Ronald G. Dupuis did purposely stab the said (victim) in the area of her neck after having been engaged in the commission of the crime of aggravated felonious sexual assault with the said victim . . . .
Bussiere first argues that the indictment is insufficient because it fails to charge that he acted purposely when he acted "with the purpose of promoting or facilitating the commission of the offense . . . ." We reject this argument. It is true that, under RSA 626:2 I, "A person is guilty of murder, a felony, or a misdemeanor only if he acts purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." RSA 626:2 I, however, further states that: " When the law defining an offense prescribes the kind of culpability that is sufficient for its commission, without distinguishing among the material elements thereof, such culpability shall apply to all the material elements . . . ." RSA 626:8 provides that a person is an accomplice if he aided the principal actor "with the purpose of promoting or facilitating the commission of the offense . . . ."...
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...Vaillancourt, 122 N.H. 1153, 1154, 453 A.2d 1327, 1328 (1982), and the necessary accompanying mental state, see State v. Bussiere, 118 N.H. 659, 663, 392 A.2d 151, 154 (1978). Under section III, the State has the burden of establishing that the accomplice acted with the purpose of promoting......
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...122 N.H. 498, 504, 446 A.2d 1162, 1165-66 (1982); State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778 (1981); State v. Bussiere, 118 N.H. 659, 661, 392 A.2d 151, 153 (1978). It must state the elements of the offense with enough specificity to permit the defendant to prepare for trial and ......
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...murder and manslaughter distinguished by difference between knowing and reckless state of mind). See generally State v. Bussiere, 118 N.H. 659, 664, 392 A.2d 151, 155 (1978). This is consistent with the fact that all of the variants have a common characteristic: they are states of mind that......
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Williams v. State
...deems a crime charged to be generally understood or that a particular word is defined in a lay dictionary. See State v. Bussiere, 118 N.H. 659, 662, 392 A.2d 151, 153 (1978). The most alarming aspect of the majority's second premise is that it gives the prosecutor license to omit essential ......