State v. Flynn
| Decision Date | 01 September 2004 |
| Docket Number | No. 2003–470.,2003–470. |
| Citation | 855 A.2d 1254,151 N.H. 378 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. John FLYNN. |
Kelly A. Ayotte, attorney general (Jeffrey S. Cahill, senior assistant attorney general, on the brief and orally), for the State.
Nixon Peabody, L.L.P., of Manchester (David A. Vicinanzo and Courtney Worcester, on the brief, and Mr. Vicinanzo orally), for the defendant.
The defendant, John Flynn, was convicted by a jury of two counts of aggravated felonious sexual assault, see RSA 632–A:2, I(i) (1996) (amended 2003). The defendant argues that the Trial Court (McHugh , J.) erred by: (1) not dismissing the indictments due to insufficient evidence; (2) not granting his motion to dismiss two indictments because they were multiplicitous; (3) not granting his motion to dismiss an indictment because it was not the result of a unanimous grand jury; (4) limiting his right to cross-examine the victim; and (5) not granting his motion for a new trial based upon ineffective assistance of counsel. We affirm.
The record reflects the following facts. In the late evening of April 11, 2002, the defendant, who had been drinking that night at a friend's house, went to the victim's home because he feared being stopped by the police if he continued to drive. The defendant was a friend of the victim's husband and knew the victim through this association. The defendant had been at the victim's home on occasions prior to that evening. The defendant drank one or two beers that he had brought with him and at some point, while her husband was in another room, asked the victim if she would perform oral sex on him. The victim declined, and soon thereafter, left the room to find her husband to get ready for bed. The victim and her husband decided to let the defendant stay so he would not have to risk driving while intoxicated.
The victim and her husband slept on an air mattress, covered with a sheet, positioned in the center of their living room. Adjacent to the mattress was a couch, on which the defendant was resting. The husband slept on the side of the mattress next to the couch, while the victim slept on the opposite side. The victim slept in a t-shirt under several layers of blankets. Prior to the defendant's arrival the victim had taken fifty milligrams of Trazodone
, an anti-depressant, which she used to help her fall asleep. After talking with the defendant for a while, the victim and her husband fell asleep.
At approximately 4:00 a.m. the victim awoke because of an uncomfortable feeling in her genital area and found the defendant's head between her knees. She was on her back with her knees tilted sideways, separated by the defendant's right hand. She observed that the defendant's mouth and chin were wet, and that the defendant was dressed only in a shirt and boxer shorts. She also observed a wet spot on the defendant's boxer shorts. The defendant told the victim to stay quiet and not wake up her husband; however, the victim screamed and tried to wake up her husband, who had apparently slept through the entire incident.
After waking her husband, the victim discovered that she had a "large amount of fluid" on her vaginal area and demanded to know from the defendant what it was. The defendant claimed that he did not know, and that he must have drooled. The victim and her husband told the defendant to leave their home and then contemplated calling the police. However, because they had allowed the defendant, who was eighteen, to drink beer in their home, they feared calling the police; instead, they decided to preserve the evidence from the defendant's sexual assault themselves. The victim took toilet tissue paper and a Q–Tip and wiped up the bodily fluid that she had discovered on the outside of her vaginal area. She placed both in a plastic bag, which her husband then placed in the refrigerator or freezer. The victim then showered. Later, her husband observed a spot on the couch where the victim sat shortly after the assault and wiped it with a wet Q–Tip. He also observed a stain on the sheet covering the air mattress, and he cut that section out. At around 11:00 a.m., both the victim and her husband decided that they should report the attack, so they went to the police station. They brought the evidence with them and described the incident to a detective. After they were interviewed, the victim underwent a sexual assault examination. Tests on a vaginal swab taken of the inside of the victim's vagina during the examination revealed the presence of one of the defendant's sperm.
The police learned that the defendant was attempting to contact the victim, and they arranged for the victim to telephone the defendant and tape-record the conversation without his knowledge. During the conversation the defendant claimed to have little recollection of the prior evening and repeatedly apologized for anything he may have done. The defendant also stated, "To come right out and be blunt, just to save us all a bunch of bulls–––, to be honest, I think if I would have done anything it probably wouldn't be much more than like, I don't know, probably like a finger, you know what I mean?"
The defendant was indicted on three counts of aggravated felonious sexual assault. The indictments alleged that he committed sexual penetration, by surprise: (1) by intercourse; (2) using his penis, finger or manipulating any object to cause an intrusion, however slight, into the genital opening of the victim's body; and (3) through cunnilingus. The defendant was acquitted of engaging in sexual penetration by sexual intercourse, but convicted of the other two charges. As to the second count, the trial court polled the jury. All twelve jurors stated that they believed the defendant committed digital penetration.
As noted, the defendant argues on appeal that: (1) the evidence was insufficient to support a finding that either cunnilingus or digital penetration occurred; (2) the court should have granted his motion to dismiss the indictments for sexual penetration by sexual intercourse and sexual penetration by using his penis, finger, or manipulating any object because they are multiplicitous of each other; (3) the trial court should have granted his motion to dismiss the indictment alleging sexual penetration by using his penis, finger or manipulating any object because the indictment violated his right to be tried only on a charge returned by at least twelve members of a grand jury; (4) the trial court erred in limiting his cross-examination of the victim; and (5) he is entitled to have his conviction vacated due to ineffective assistance of counsel.
We first address the defendant's argument that the trial court erred in refusing to dismiss the indictments because the evidence was insufficient for the jury to have found him guilty of either cunnilingus or digital penetration. In an appeal challenging the sufficiency of the evidence, the defendant carries the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Mason, 150 N.H. 53, 56, 834 A.2d 339 (2003). In reviewing the sufficiency of the evidence, we examine each evidentiary item in the context of all the evidence, not in isolation. Id. It is well settled that the jury has substantial latitude in determining the credibility of witnesses. Id. In determining witness credibility, the jury may accept some parts and reject other parts of testimony, and adopt one or another inconsistent statements by witnesses. Id.
The defendant in this case was convicted of two counts of aggravated felonious sexual assault by surprise. See RSA 632–A:2, I(i). RSA 632–A:2, I(i) provides that:
We will examine the defendant's convictions for cunnilingus and digital penetration in turn. "Sexual penetration" is defined to include "[c]unnilingus." RSA 632–A:1, V(b) (1996). "Cunnilingus is commonly understood to mean stimulation of the vulva or clitoris with the lips or tongue."
Mason, 150 N.H. at 57, 834 A.2d 339 (quotation omitted). The defendant argues that the conviction for sexual penetration by cunnilingus must be reversed because the State failed to prove that "actual contact ... between the defendant's lips or tongue and the [victim's] vagina [occurred]." See State v. Zeta Chi Fraternity, 142 N.H. 16, 23–24, 696 A.2d 530 (1997) (). We disagree.
While there was no direct testimony that anyone observed the defendant contact the victim's vagina with his lips or tongue, the State did present circumstantial evidence of that contact. Because the evidence in this case was circumstantial, it must exclude all rational conclusions except guilt in order to be sufficient to convict. State v. Smith, 127 N.H. 433, 436, 503 A.2d 774 (1985). The proper analysis is not whether every possible conclusion has been excluded, but rather whether other rational conclusions based upon the evidence have been excluded. State v. Cobb, 143 N.H. 638, 658, 732 A.2d 425 (1999).
Here, the victim testified to awakening to find the defendant's head between her knees, and that his mouth and chin were wet. She also testified that her vagina was wet, and that there was a large amount of fluid on her. Additionally, a serologist testified that the tissue used to wipe the fluid from her genital area tested positive for saliva and the defendant's semen, as did at least one of the...
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