State v. Johnson, 87-010

• Decision Date: 08 July 1988
• Docket Number: No. 87-010,87-010
• Parties: The STATE of New Hampshire v. Milan JOHNSON, Jr.
• Court: New Hampshire Supreme Court

Page 213

547 A.2d 213

130 N.H. 578

The STATE of New Hampshire v. Milan JOHNSON, Jr.

No. 87-010.

Supreme Court of New Hampshire.

July 8, 1988.

Stephen E. Merrill, Atty. Gen. (John S. Davis, Asst. Atty. Gen., on the brief, and Tina Schneider, Asst. Atty. Gen., orally), for the State.

Joanne Green, Asst. Appellate Defender, Concord by brief and orally, for defendant.

THAYER, Justice.

In this appeal from his conviction for aggravated felonious sexual assault, RSA 632-A:2, IV, the defendant, Milan Johnson, Jr., argues that: (1) the Trial Court (Contas, J.) erred in admitting evidence of prior sexual acts with his minor stepdaughter because it was not relevant to or probative of coercive behavior on the date specified in the bill of particulars; (2) the trial court's supplemental charge to the jury impermissibly amended the indictment; (3) the trial court failed to fully instruct the jury during the supplemental instruction by focusing only on the victim's state of mind and not the defendant's actions; and (4) the State failed to prove the required element of coercion beyond a reasonable doubt. We find no error and affirm.

All of the issues raised by the defendant which we consider on the merits rest on the supposition that when an indictment alleges an express threat on a specific date, he cannot be found guilty under RSA 632-A:2, IV on evidence and a jury charge of implied threats. Thus, to place the defendant's issues in proper context we will first construe the terms "coercion" and "threaten" as required by RSA 632-A:2, IV, which reads:

"A person is guilty of a class A felony if he engages in sexual penetration with another person under any of the following circumstances:

....

When the actor coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim believes that the actor has the ability to execute these threats in the future."

Since neither the term "threat" nor the term "coercion" is defined in the statute, this court will use the words' common and approved meanings. RSA 21:2. "Coercion" is defined as being either "actual, direct or positive, as where physical force is used to compel act against one's will, or implied, legal or constructive, as where one party is constrained by subjugation to other to do what [her] free will would refuse." BLACK'S LAW DICTIONARY 234 (5th ed. 1979). "Threat" is defined 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." Id. at 1327. Furthermore, a threat can be verbal or nonverbal, i.e., "something that by its very nature or relation to another threatens the welfare of the latter...." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2382 (1961).

In State v. O'Flynn, 126 N.H. 706, 496 A.2d 348 (1985), the defendant was indicted and convicted of an extortionate course of conduct. O'Flynn argued that the evidence was legally insufficient to establish that he threatened the deputies, although his deputies consistently testified that the defendant expressly and impliedly indicated that their job security was predicated upon contributions to his political campaign. In answer to the defendant's contention, we stated there that "[t]o be extortionate, a threat need not be express ... [but] may be implied in words or conduct." Id. at 709, 496 A.2d at 351. Thus, by the plain meaning of the terms and by analogy to our construction of similar terms in the extortion context, we hold that retaliatory threats, within the meaning of RSA 632-A:2, IV, are not required to be express.

Now we turn to the defendant's contention in his first argument that the trial court abused its discretion in allowing evidence of prior sexual acts between the defendant and the alleged victim. The defendant argues that the evidence of prior sexual acts and threats should be inadmissible because these prior acts were irrelevant to the date in question and prejudicial to the defendant.

Conversely, the State argues that the evidence was admissible to prove coercion because, though the defendant did not expressly state a threat to retaliate on the specified date, the coercion was due, rather, to an on-going course of conduct involving retaliatory acts.

The defendant filed a motion in limine to exclude at trial "any mention of alleged sexual activity between [the victim and himself] other than that which is stated in the indictment." The defendant contended that the prejudicial impact of the evidence of his unindicted sexual activities with the victim would outweigh its probative value and, also, that the evidence would constitute character evidence introduced to prove intent.

The motion was heard by DiClerico, J., at the hearing during which the State contended that it must be allowed to show the course of the relationship between the victim and her stepfather in order to prove its case. The State said, "The element of coercion that exists in this case did not occur specifically on September 13, 1985, but rather [was] the result of a long-term relationship...." The State acknowledged that there was no express coercion on that date but argues that the coercion rather was "something [the victim] had learned over the course of a couple of years," and emphasized that unless the State could show this course of conduct, it could "not show the element of coercion." The State also pointed out that the court could limit prejudicial effects of the evidence by carefully instructing the jury.

The court denied the defendant's motion, finding that "evidence of coercion under some circumstances is the result of a prolonged series of events between two individuals," and that such evidence would be admissible to prove only "coercion by threatening" and the method of operation. The court ordered a pre-trial hearing pursuant to State v. Barker, 117 N.H. 543, 374 A.2d 1179 (1977) to determine if "the proof that the acts in question were committed by the defendant [was] clear, and [if] the probative value of the evidence outweigh[ed] the danger of prejudice...."

A "Barker" hearing was held prior to the jury trial. The victim was the sole witness. She testified that the defendant began to "touch" her sexually when she was seven or eight years old. If she told him to desist, he would become angry. Though he never hit her, the victim testified that if she resisted she would get in trouble at home and "he wouldn't let [her] do things after [she] grew up...." The victim further testified that at age eleven or twelve, the defendant began to have oral sex with her and made her reciprocate, and that when she started high school, the defendant began to have intercourse with her. According to her testimony, any rebuffs on her part were met with anger and retaliatory behavior. She also testified that she felt coerced into having sexual intercourse on the day of the offense because she had a special school activity the next day and knew that if she did not do what the defendant expected she "wouldn't be able to [attend] and ... [would] be grounded for the weekend...."

Based on the victim's testimony, the Trial Judge (Contas, J.) ruled that "the State ha[d] proven by clear and convincing evidence that other alleged sexual activity between the defendant and the alleged victim [was] admissible to prove one of the elements of the offense charged, to wit, coercion by threatening and the method of operation used by the defendant in coercing the alleged victim." The court went on to find "that proof that the acts in question were committed by the defendant [was] clear and that the probative value of the evidence outweigh[ed] the danger of prejudice to the defendant."

At trial, the court instructed the jury prior to the victim's testimony that the "[e]vidence of other acts is not admissible to prove the character of a person in order to show that that person acted in conformity therewith." He further cautioned the jury that the "testimony will be introduced for the single purpose of showing what [the victim's] state of mind may have been on September 13, 1985.... You may only consider this testimony when deciding if the state has proved the element of threat of retaliation or coercion by proof beyond a reasonable doubt." He also stated to the jury:

"[I]f you should find that there was prior sexual contact between ... the defendant ... and [the victim] in the past, you may not consider this in deciding if there was sexual contact at the time [in question]. Evidence of prior sexual acts between the defendant and the ... victim may be considered by you only on the issue of whether and how any threats or elements of coercion occurred."

The victim then testified about the night in question. She repeated the substance of her pretrial testimony and added that on this night the defendant told her to get into his bed. When he found that she had not yet removed her nightgown, he "yelled" at her. The defendant then had intercourse with her. The victim also stated that, although the defendant did not expressly threaten her, she nonetheless felt there was a threat.

The use of coercion is an element of the charged offense. See RSA 632-A:2, IV. The prosecution must, therefore, present evidence of force or coercion in support of the charged crime. See RSA 625:10. Under New Hampshire Rule of Evidence 404(b) and our case law, evidence of similar acts is not admissible to show the defendant's character or propensity for crime, but is admissible to prove an element of the crime, a system of criminal activity, identity, motive, or the context in which a crime took place. State v. Parker, 127 N.H. 525, 532, 503 A.2d 809, 813 (1985); State v. Avery, 126 N.H. 208, 213, 490 A.2d 1350, 1354 (1985); State v. Barker, 117 N.H. at 546, 374 A.2d at 1180.

The trial court's "decision to admit evidence of a prior bad act will constitute an abuse of discretion only if...