State v. Cheney

• Decision Date: 07 November 2013
• Docket Number: No. 2011–465,2011–465
• Citation: 165 N.H. 677,82 A.3d 218
• Parties: The STATE of New Hampshire v. Michael G. CHENEY
• Court: New Hampshire Supreme Court

165 N.H. 677

82 A.3d 218

The STATE of New Hampshire

v.Michael G. CHENEY

No. 2011–465

Supreme Court of New Hampshire.

Argued: April 11, 2013

Opinion Issued: November 7, 2013

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

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

CONBOY, J.

Following a jury trial in Superior Court (Houran, J.), the defendant, Michael G. Cheney, was convicted of aggravated felonious sexual assault (AFSA), kidnapping, theft by unauthorized taking, aggravated driving while intoxicated, disobeying an officer, and reckless conduct. See RSA 632–A:2 (2007); RSA 633:1 (2007); RSA 637:3 (2007); RSA 265–A:3 (Supp.2007) ; RSA 265:4 (2004); RSA 631:3 (2007). The defendant's convictions arise from events occurring in late December 2008 when the defendant sexually assaulted the victim, tied her up and stole her car, and thereafter attempted to elude police officers in a high speed chase. On appeal, he argues that the trial court erroneously denied his motions to dismiss the AFSA and reckless conduct indictments. We affirm.

I. AFSA Indictments

The defendant first argues that the trial court erred by denying his motion to dismiss the AFSA indictments. The defendant was charged with three counts of AFSA pursuant to RSA 632–A:2, I(c) (coerced sexual penetration by threat of use of physical violence or superior physical strength). At the close of the State's case, the defendant moved to dismiss these indictments on the ground that they failed to sufficiently allege the element of threatening to use physical violence or superior physical strength. The State objected, arguing that the indictments sufficiently set forth all the elements of the crime. The trial court denied the motion, ruling that the indictments were not defective.

The defendant maintains on appeal that the AFSA indictments were defective under the State and Federal Constitutions because they failed to contain an essential element of the AFSA variant charged. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amend. XIV. The State argues that the defendant's motion, brought after the State rested its case, was untimely, and, therefore, our review of this claim is limited to plain error analysis. The State, however, did not raise this issue before the trial court; we, therefore, decline to consider it on appeal. See State v. Sterndale, 139 N.H. 445, 448, 656 A.2d 409 (1995).

Because the defendant raises a question of constitutional law and statutory interpretation, our review is de novo . State v. Marshall, 162 N.H. 657, 661, 34 A.3d 540 (2011). We first consider the defendant's argument under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Part I, Article 15 of the State Constitution provides that "[n]o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him." See also RSA 601:4 (2001) ("An indictment, information or complaint is sufficient if it sets forth the offense fully, plainly, substantially and formally, and it is not necessary to set forth therein the special statute, bylaw or ordinance on which it is founded."). To meet this constitutional standard, an indictment must inform a defendant of the offense with which he is charged with sufficient specificity to enable him to prepare for trial and at the same time protect him from being placed in jeopardy a second time for the same offense. See Marshall, 162 N.H. at 661, 34 A.3d 540. It is not enough merely to state the crime with which a defendant is being charged; the indictment must include the elements of the offense with sufficient allegations to identify the offense in fact. Id. ; see also State v. Shute, 122 N.H. 498, 504, 446 A.2d 1162 (1982). However, "an element need not be stated in precise statutory language, if the indictment as a whole may fairly be understood to charge it." State v. French, 146 N.H. 97, 103, 776 A.2d 1253 (2001) (quotation and brackets omitted). The question is not whether the indictment could have been more certain and comprehensive, but whether it contains the elements of the offense and enough facts to warn a defendant of the specific charges against him. State v. Bisbee, 165 N.H. 61, 64, 69 A.3d 95 (2013). An indictment that fails to allege all the elements of the offense cannot provide sufficient notice. See In re Alex C., 158 N.H. 525, 528, 969 A.2d 399 (2009).

RSA 632–A:2, I(c) provides that a person commits "aggravated felonious sexual assault if such person engages in sexual penetration with another person" by coercing "the victim to submit by threatening to use physical violence or superior physical strength on the victim, and the victim believes that the actor has the present ability to execute these threats." Here, the indictments alleged that the defendant knowingly engaged in sexual penetration with the victim

by coercing her to submit to [a particular act of penetration] by showing her a knife, grabbing her, and/or threatening to slash her face, cut her, or drag her down the stairs if she refused, and [the victim] believed that [the defendant] had the present ability to execute one or more of those threats.

(Emphasis added.)

The defendant argues that, because the indictments did not include the statutory language "threatening to use physical violence or superior physical strength on the victim," RSA 632–A:2, I(c), but instead charged "that element by specifying a number of implicit and explicit threats" that are linked together by the term "and/or," in order for the indictments to properly charge him, each threat alone must satisfy that element. The defendant does not dispute that "showing [the victim] a knife" and "threatening to slash her face, cut her, or drag her down the stairs" constitute threats of physical violence or superior physical strength under the statute. Rather, he contends that the act of "grabbing," standing alone, fails to satisfy the element of "threatening to use physical violence or superior physical strength on the victim," id. , because "[o]ne need not have or use ‘superior physical strength’ to grab another" and "the act of grabbing does not inflict physical violence."

RSA 632–A:2, I(c), however, does not require the actor to actually inflict physical violence or use superior physical strength on the victim. Rather, the statute requires that the actor coerce the victim to submit by "threatening to use physical violence or superior physical strength on the victim." Id. (emphasis added); see State v. Kulikowski, 132 N.H. 281, 285, 564 A.2d 439 (1989). We have defined "threat" for purposes of RSA 632–A:2 as "any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from her acts that free and voluntary action which alone constitutes consent." State v. Johnson, 130 N.H. 578, 581, 547 A.2d 213 (1988) (quotation and brackets omitted) (construing former RSA 632–A:2, IV). Regardless of whether it is verbal or nonverbal, the required threat is "something that by its very nature or relation to another threatens the welfare of the latter." Id. (quotation and ellipsis omitted).

Here, the indictments alleged that the defendant threatened to use physical violence or superior physical strength on the victim by, among other things, "grabbing her." The plain meaning of the word "grab" includes "to take or take hold of by a sudden motion or grasp: SEIZE, CLUTCH." Webster's Third New International Dictionary 983 (unabridged ed.2002). Taking the plain meaning of the word "grab" together with the meaning we have ascribed to "threat" for purposes of RSA 632–A:2, the act of "grabbing"—even standing alone—can satisfy the element of "threatening to use physical violence or superior physical strength on the victim" under RSA 632–A:2, I(c). Accordingly, we conclude that the AFSA indictments were not insufficient under the State Constitution. See Shute, 122 N.H. at 504, 446 A.2d 1162.

As the Federal Constitution offers the defendant no greater protection with respect to the sufficiency of an indictment, we reach the same result under the Federal Constitution as we do under the State Constitution. See Bisbee, 165 N.H. at 67, 69 A.3d 95 ; Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

II. Reckless Conduct Indictments

The defendant next argues that the trial court erred in denying his motion to dismiss the reckless conduct indictments. The defendant was charged with three counts of reckless conduct pursuant to RSA 631:3, alleging that he engaged in conduct which placed or may have placed another in danger of serious bodily injury by use of a deadly weapon as defined in RSA 625:11, V (2007), to wit, a motor vehicle.

Before trial, the defendant moved to dismiss these indictments, arguing that RSA 265:79 (Supp.2007) (Reckless Driving) prohibits prosecution under RSA 631:3 (Reckless Conduct) "for reckless driving upon a way." The State objected, contending that "the elements of RSA 265:79 are different from the elements of the reckless conduct criminal charge" under RSA 631:3 and, therefore, RSA 265:79 does not prohibit prosecution under RSA 631:3. The trial court denied the defendant's motion.

On appeal, the defendant presses the same argument he made to the trial court—that RSA 265:79, which pertains to reckless driving, precludes the State from charging him with reckless conduct under RSA 631:3. We disagree.

To resolve this issue, we examine the language of the relevant statutes. RSA 265:79, contained within the New Hampshire Motor Vehicle Code, provides:

Whoever upon any way drives a vehicle recklessly, or causes a vehicle to be driven recklessly, as defined in RSA 626:2, II(c), or so that the lives or safety of the public shall be endangered, or upon a bet, wager,

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