State v. Koski

• Decision Date: 14 February 1980
• Docket Number: No. 79-246,79-246
• Citation: 120 N.H. 112,411 A.2d 1122
• Parties: The STATE of New Hampshire, v. Norma KOSKI.
• Court: New Hampshire Supreme Court

Page 1122

411 A.2d 1122

120 N.H. 112

The STATE of New Hampshire, v. Norma KOSKI.

No. 79-246.

Supreme Court of New Hampshire.

Feb. 14, 1980.

Thomas D. Rath, Atty. Gen. (Peter W. Heed, Asst. Atty. Gen., orally), for the State.

Benjamin Hiller, Cambridge, Mass., by brief and orally, for defendant Norma Koski.

BOIS, Justice.

The defendant appeals from a conviction for criminal trespass in connection with the May 1, 1977, occupation of the Seabrook Nuclear Power Plant site. We affirm.

The defendant was arrested along with a large number of other demonstrators for occupying land at the site of the Seabrook Nuclear Power Plant. Prior to her arrest, she and the other demonstrators had allegedly been repeatedly warned by State police that they would face charges of criminal trespass if they did not vacate the premises. The defendant was later charged and convicted of criminal trespass in violation of RSA 635:2. She was fined $100 and sentenced to fifteen days in the Brentwood House of Correction with "13 days credit for time served." Following a de novo trial in superior court on appeal, the defendant was convicted by jury for criminal trespass. She was then fined $200 and sentenced to six months in the Rockingham County House of Correction with three months suspended. The defendant's exceptions to certain rulings and the sentence were reserved and transferred by the Trial Court (Bean, J.).

The defendant first argues that the court erred in its charge to the jury because it permitted conviction without proof that the defendant remained on the property "knowing that she was not licensed or privileged to do so," thereby eliminating an element of criminal trespass from the jury's consideration.

RSA 635:2 provides in part: "A person is guilty of criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place." The court read this statute verbatim in its charge to the jury. The court also stated that the definition of "knowingly" was that "the person is aware of his conduct, that the person knows what he is doing."

We do not find that the court's charge was erroneous. We hold that the charge considered as a whole made the requirement of knowledge of lack of privilege or license sufficiently clear, and that it is improbable that the jury could have been misled. State v. Wentworth, 118 N.H. 832, 841, 395 A.2d 858, 864 (1978).

The defendant next argues that the charge and ruling by the court that a defense of competing harms under RSA 627:3 was not available constituted a denial of due process. This court has previously held that a competing harms defense under RSA 627:3 was not available to a defendant charged with criminal trespass of a nuclear power site. State v. Dorsey, 118 N.H. 844, 845-46, 395 A.2d 855, 856 (1978). We find Dorsey controlling, and are not persuaded by the defendant's arguments that a different result should be reached in this case. In reaching this conclusion, we note that the defendant was allowed to read RSA 627:3 to the jury, and stated in her closing argument that she could not be convicted of criminal trespass because she believed she had a license or privilege to be on the nuclear power site under the competing harms statute. Although competing harms was not available as an affirmative defense to the defendant, there was evidence before the jury regarding the competing harms statute as it related to her knowledge that she was not licensed or privileged to remain on the site. She has, therefore, no cause to complain.

The defendant next argues that the court erred in refusing to allow the defendant's mother to testify as to statements made to her by the defendant explaining "what I was doing and why" before going onto the site of the nuclear plant. The defendant contends that the court concluded that such testimony was hearsay and erred by not allowing it to come in under the "state of mind" exception to the hearsay rule.

We cannot be certain of the basis for the trial court's refusal to allow the mother's testimony because no grounds were stated when the objection was made and the defendant made no offer of proof. Even if we were to assume that the defendant's contentions are correct, however, we would not find reversible error because the evidence that the defendant was attempting to introduce regarding her belief that she had a license or privilege to be on the site of the nuclear plant was fully conveyed to the jury through her own testimony. See Chapman v. California, 386 U.S. 18 (1966). Prior consistent statements are not admissible in the absence of evidence of prior inconsistent statements. Lynch v. Sprague, 95 N.H. 485, 488, 66 A.2d 697, 700 (1949); see State v. Ballentine, 116 N.H. 120, 121, 352 A.2d 403, 404 (1976); Twardosky v. Company, 95 N.H. 279, 284, 62 A.2d 723, 727 (1948).

The defendant finally argues that her sentence of three months violated her constitutional rights. She first contends that the sentence received is a disproportionate punishment prohibited by the eighth amendment, and that the sentence violates equal protection and freedom of speech because it was based upon the court's antagonism toward civil disobedience and due process because it was a significantly harsher sentence following de novo trial and was intended to discourage appeals by other co-defendants.

The contention that the defendant's sentence is a disproportionate punishment is without merit. We discussed this issue at length in State v. Wentworth, supra at 841-43, 395 A.2d at 863-66, and are not persuaded by the defendant's arguments that our reasoning was incorrect. Nor do we find it necessary to reiterate our analysis in this...