State v. Ericson
| Decision Date | 17 November 2009 |
| Docket Number | No. 2008–751.,2008–751. |
| Citation | 986 A.2d 488,159 N.H. 379 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Nathaniel ERICSON. |
Orville B. Fitch, II, acting attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.
Sisti Law Offices, of Chichester (Mark L. Sisti, on the brief and orally), for the defendant.
The defendant, Nathaniel Ericson, appeals his conviction by a jury of three counts of aggravated felonious sexual assault (AFSA).
See RSA 632–A:2 (Supp.2000) (amended 2003, 2008). On appeal he argues that the Superior Court (McGuire, J.) erred by: (1) denying his motion to dismiss an indictment charging the pattern variant of AFSA; (2) denying his motion to dismiss based upon sufficiency of the evidence; (3) allowing the then thirteen-year-old victim to hold Silly Putty in her hands while testifying; and (4) denying his motion in limine to exclude evidence that he owned pornographic videos and rubber body parts and showed them to the victim. We affirm.
Viewing the evidence in the light most favorable to the State, the jury could have found the following facts. The victim was born in October 1994. In the late 1990s, she and her sister spent a great deal of time with her mother's half-sister, Rose, and her husband, the defendant, at their cottage on a lake in Hillsborough and at their townhouse at Loon Mountain. During the summer of 1999, the girls stayed with the defendant and Rose for weeks at a time. Until the summer of 2001, they visited the defendant and Rose at least twice monthly.
The defendant began to assault the victim sexually in the summer of 1999, before she knew how to tie her shoes well. These first assaults took place at the lake house. When she and the defendant were alone, he would ask her if she would like to play a game, would bring her into his bedroom, and would take off her clothes and his own. When they were both naked, the defendant would then penetrate the victim's vagina with his tongue and fingers. All told, more than three but fewer than ten incidents of sexual penetration occurred at the lake house. In addition to these incidents, the defendant once attempted to put his penis into the victim's vagina. The victim said that the defendant's penis felt "kind of stiff" and that its skin was "peely." Also at the lake house, the defendant sometimes put the victim in a swing, which she knew was a "sex swing" because she had seen them in the pornography that he had forced her to watch.
The victim alleged that, at the Loon Mountain townhouse, the defendant assaulted her by inserting his fingers and tongue into her vagina after taking her to his bedroom, putting on a strobe light, knocking her to the bed and removing her clothes and his. She also alleged that he put rubber body parts on her, such as rubber breasts and buttocks, and watched pornography with her.
Although the victim told her sister about the assaults, she did not tell any adults because the defendant forbade her from doing so. The victim was afraid to report the assaults because the defendant told her that if she told anyone about them, she would regret it. In 2004, when the victim was in the fourth grade, she told her father that the defendant was a "child molester," but that she did not want to talk about what he had done to her because she was afraid that he would kill her. She told her father that she was left alone in the lake house with the defendant and showed him where the defendant had touched her. She also told him that the defendant had talked about putting his "boy parts" in her mouth and "girl parts" and about putting his fingers inside her. The victim's father informed the victim's mother about what the victim had told him. The victim's mother did not take her to the police until February 2006 when the victim was finally ready to talk with them.
When interviewed by the police, the defendant told them that he showered with the victim and helped her to clean her bottom after she defecated. He also admitted that the victim may have touched his penis while they were showering and that he had no problem with the victim and her sister seeing him naked. He told the police in the recorded interview: He admitted that he kept dildos in a bedroom drawer and that the victim may have found them. He also admitted to owning adult movies, and having a strobe light in his bedroom and a swing at the lake house. He stated that the victim masturbated. Less than an hour after the interview ended, the defendant called the police station and said that if the victim had reported seeing naked pictures, they must have been in a "Grey's Anatomy " textbook.
A grand jury in Hillsborough County indicted the defendant on four counts of AFSA. See RSA 632–A:2. One indictment alleged that he committed the pattern variant of AFSA between May 1999 and April 2000. See RSA 632–A:2, III. The remaining three indictments alleged that, between May 2000 and November 2000, he digitally penetrated or performed cunnilingus on the victim, a child less than thirteen years old. See RSA 632–A:2, I(a)(1). One of the three non-pattern indictments was dismissed before trial. A Grafton County grand jury indicted the defendant on one count of felonious sexual assault and two counts of AFSA for the assaults that allegedly occurred at the Loon Mountain townhouse between September 1998 and September 2001. The Hillsborough and Grafton County indictments were joined for trial. Whether joinder was proper is not an issue in this appeal.
At trial, the defendant blamed the victim for their sexual contacts, telling the jury, for instance, that when the victim would try to climb on his lap, she repeatedly reached down to touch his penis through his clothes. He admitted that this kind of contact did not make him feel uncomfortable. He testified also that the victim took his finger and put it down the waistband of her underwear and on her clitoris, at which point he told her that masturbation was nothing to be ashamed of and that both her mother and his wife masturbated. He claimed that he never told anyone about this incident because the victim asked him not to do so. The defendant denied that he ever penetrated the victim and that he ever had any sexual intent.
The jury convicted the defendant on the pattern indictment and on the remaining two non-pattern Hillsborough County indictments. One of the Grafton County indictments was dismissed at the close of the State's case, and the jury was unable to reach a verdict on the remaining two Grafton County indictments.
The defendant first argues that the pattern indictment failed to allege the offense with the requisite specificity to enable him to prepare a defense. See N.H. CONST. pt. I, art. 15. Part I, Article 15 of the State Constitution requires that an indictment describe the offense with sufficient specificity to ensure that the defendant can prepare for trial and avoid double jeopardy. State v. Davis, 149 N.H. 698, 704, 828 A.2d 293 (2003). To be constitutional, the indictment must contain the elements of the offense and enough facts to notify the defendant of the specific charges. Id. An indictment generally is sufficient if it recites the language of the relevant statute; it need not specify the means by which the crime was accomplished or other facts that are not essential to the elements of the crime. Id.
The pattern variant of AFSA is set forth in RSA 632–A:2, III, which provides, in relevant part: "A person is guilty of [AFSA] when such person engages in a pattern of sexual assault against another person ... who is less than 16 years of age." A "pattern of sexual assault" means "committing more than one act under RSA 632–A:2 ... upon the same victim over a period of 2 months or more and within a period of 5 years." RSA 632–A:1, I-c (2007). Consistent with these statutes, the pattern indictment alleged that "on or about May 1999 through and including April 2000 at Hillsborough, New Hampshire," the defendant committed AFSA in that "he did knowingly engage in a pattern of sexual assault on [the victim], a child under the age of 16, by committing more than one act of [AFSA] or felonious sexual assault or both over a period of two months or more and within a period of five years."
The pattern indictment alleged the elements of the offense, as well as facts sufficient to allow the defendant to prepare a defense. See State v. Hannon, 151 N.H. 708, 718, 867 A.2d 426 (2005). It specified a location for the alleged conduct-Hillsborough, a time period in which it was alleged to have occurred-May 1999 through April 2000, and the identity and age of the victim. It also specified the conduct against which the defendant was required to defend: a "pattern" of sexual assault, defined as committing more than one act of AFSA or felonious sexual assault or both, upon the same victim, over a period of two months or more and within a period of five years. See id. ; RSA 632–A:2, III; RSA 632–A:1, I-c. The indictment, therefore, informed the defendant of the offense with which he was charged with sufficient specificity to enable him to prepare for trial. See Davis, 149 N.H. at 704, 828 A.2d 293.
The defendant argues that the indictment was insufficient because it failed to allege the predicate acts comprising the pattern of sexual assault. Contrary to his assertions, the individual acts of sexual contact underlying the pattern do not constitute elements of the pattern crime, and, therefore, need not be alleged. See State v. Fortier, 146 N.H. 784, 791, 780 A.2d 1243 (2001). Our legislature created RSA 632–A:2, III "to respond to the legitimate concern that many young victims, who have been subject to repeated, numerous incidents of sexual assault over a period of time by the same...
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