State v. Foss
| Decision Date | 16 August 2002 |
| Docket Number | No. 2001–223.,2001–223. |
| Citation | 804 A.2d 462,148 N.H. 209 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Duane B. FOSS. |
Philip T. McLaughlin, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Getman, Stacey, Tamposi, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the defendant.
After a jury trial in superior court, the defendant, Duane B. Foss, was convicted of one count of aggravated felonious sexual assault. See RSA 632–A:2, I(n) (Supp.2001). On appeal, he argues that: (1) RSA 632–A:2, I(n) requires proof of actual coercion; (2) the evidence was insufficient to prove that he used his position of authority to coerce the complainant to submit; and (3) the trial court erred in denying his motion for a bill of particulars. We reverse.
The defendant worked as a correctional officer in the house of corrections, where, in July 1999, the complainant was detained. During the complainant's three-week detention, she and the defendant became friends and flirted with each other, and the defendant frequently went into her cell to talk with her and her cellmates. The complainant began exhibiting sexually-explicit behavior towards the defendant. On one occasion, she touched the defendant's genitals, lifted her shirt and dropped her underpants, and asked him to have sex. The defendant then digitally penetrated the complainant. Although the complainant testified that she was experiencing drug withdrawal at the time, she admitted that she voluntarily engaged in the conduct. The complainant also testified that the defendant had given her three cigarettes one each for herself and her two cellmates and delivered her wedding ring to her husband in the jail parking lot. After the complainant was transferred to the State prison, the defendant sent her two or three letters and forty dollars.
Prior to trial, the defendant moved for a bill of particulars specifying the specific acts that he used to coerce the complainant to submit to sexual penetration. During a hearing on the motion in Superior Court (Mohl , J.), the State took the position that, under RSA 632–A:2, I(n), coercion is not an element of the offense, but rather is implied from the relationship between the two parties, i.e. , correctional officer and inmate. The court denied the defendant's motion, finding that the State's interpretation is supported by the statute's language prohibiting the use of consent as a defense.
In its opening statement, the State conceded that the complainant willingly participated in the sexual conduct with the defendant. Based upon this, the defendant moved to dismiss, arguing that the State failed to allege a prima facie case. The State countered that its case was not defeated by the fact that the complainant was a willing participant because "it's enough for someone in a position of authority to use that authority to enter the cell and engage in these relations." The Superior Court (T. Nadeau , J.) denied the motion to dismiss, stating that although the State must demonstrate that the defendant used his position of authority to coerce, coercion can come in many forms.
At the close of the evidence, the defendant again moved to dismiss on the grounds that insufficient evidence had been introduced on the elements of coercion and submission. The trial court denied the motion. In its instructions to the jury, the court stated the elements of the offense, including "that the defendant used [his] authority to coerce the alleged victim to submit to sexual penetration." After the jury returned its guilty verdict, the defendant moved for judgment notwithstanding the verdict, which was also denied. This appeal followed.
We first turn to whether the statute requires the State to prove that the defendant coerced the complainant to submit. On questions of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. State v. Sullivan, 144 N.H. 541, 543, 744 A.2d 1121 (1999). Our task is to construe the Criminal Code provisions "according to the fair import of their terms and to promote justice." RSA 625:3 (1996); cf . State v. Glidden, 122 N.H. 41, 45, 441 A.2d 728 (1982) (). When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent. State v. Comeau, 142 N.H. 84, 86, 697 A.2d 497 (1997).
(Emphasis added.)
The State construes RSA 632–A:2, I(n) as criminalizing any sexual penetration by a correctional officer with an inmate. It contends that coercion is implied by virtue of the positions of the two parties because the inmate-officer relationship is inherently coercive. Under the State's theory, the element of coercion can be proven simply by a showing that the defendant was a corrections officer and the victim an inmate under the defendant's supervisory authority.
We conclude that the State's interpretation is not supported by the language of the statute. A plain reading of the statute clearly indicates that coercion is an element of the offense. RSA 632–A:2, I(n) prohibits a person from engaging in sexual penetration "[w]hen the actor is in a position of authority over the victim and uses this authority to coerce the victim to submit ." (Emphasis added.) The emphasized phrase implies some affirmative act on the part of the defendant. Subparagraphs (1) and (2) specify under what circumstances a person is prohibited from using his or her authority to coerce another to engage in sexual penetration: (1) where the actor acquires the position of authority by virtue of the victim's incarceration; or (2) where the victim is on probation or parole and the actor is a probation or parole officer with supervisory power over the victim. Nothing in the statute indicates that either of these circumstances replaces the element of coercion.
The State argues that this construction of the statute is undermined by the language barring the use of consent as a defense. Absent a more clearly manifested legislative intent as indicated by the fair import of the statute's terms, we cannot construe RSA 632–A:2, I(n) as the State urges.
Under RSA 626:6, I (1996), consent of the victim "is a defense if such consent negatives an element of the offense or precludes the harm sought to be prevented by the law defining the offense." Once the defendant raises the defense of consent, the burden shifts to the State to disprove consent beyond a reasonable doubt. RSA 626:6, :7, I(a) (1996). Put simply, when consent is raised as a defense, the State must prove all of the elements of the offense—including coercion in this case—in addition to the lack of consent. The issue of consent involves the victim's objective manifestations of her unwillingness to engage in the conduct and thus concerns the victim's demonstrative and verbal conduct. State v. Jackson, 141 N.H. 152, 154, 679 A.2d 572 (1996).
Consent focuses primarily on the conduct of the victim, whereas coercion focuses primarily on the conduct of the defendant. By barring consent as a defense, RSA 632–A:2, I(n) does not relieve the State of its burden of proving that the defendant used his position of authority to coerce the victim to submit. Rather, it prohibits the defendant from arguing that the victim's consent is a complete defense to coercion and permits a jury to find that the State has proven coercion even though...
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