State v. Kulikowski

• Decision Date: 06 October 1989
• Docket Number: No. 88-383,88-383
• Citation: 564 A.2d 439,132 N.H. 281
• Parties: The STATE of New Hampshire v. Leonard KULIKOWSKI, Jr.
• Court: New Hampshire Supreme Court

Page 439

564 A.2d 439

132 N.H. 281

The STATE of New Hampshire v. Leonard KULIKOWSKI, Jr.

No. 88-383.

Supreme Court of New Hampshire.

Oct. 6, 1989.

John P. Arnold, Atty. Gen. (Monica A. Ciolfi, Asst. Atty. Gen., on the brief and orally), for the State.

Gormley & Kaklamanos, P.C., Nashua (Arthur O. Gormley, III, on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant, Leonard Kulikowski, Jr., was convicted of three counts of aggravated felonious sexual assault, RSA 632-A:2, III, and one count of incest, RSA 639:2, following a jury trial. On appeal, he contends that the trial court erred: (1) in ruling that the indictments alleging aggravated felonious sexual assault were constitutionally sufficient to apprise the defendant of the offense so that he could prepare for trial, and that the bill of particulars cured any lack of specificity in those indictments; (2) in finding that the indictments alleging aggravated felonious sexual assault were not barred by the applicable statute of limitations; (3) in admitting testimony of prior bad acts; and (4) in denying the defendant's motion to dismiss based on the insufficiency of the evidence at the completion of the State's case. We find no error and affirm.

The facts are briefly as follows. In 1966, the defendant and the victim's mother were married. The victim was then age three. The three of them lived in the upstairs apartment of the defendant's parents' home in Nashua until 1968, when the victim's mother died. Following her death, the defendant and the victim moved downstairs with the defendant's parents, who assumed legal custody of the victim and the primary responsibility for her upbringing. In 1975, when the victim was twelve years old, her stepgrandfather died.

The victim testified to the following facts. After her stepgrandfather's death, her stepfather took over as primary caretaker. He refused to allow her to attend social functions and required her to dress in a particular manner. As she got older, he became more violent, slapping her when she argued with him, accusing her of having sex with boys at school, and beating her when she denied his accusations. From the time she was seventeen, the defendant would frequently wake her in the middle of the night with a flashlight and interrogate her about sex.

She testified as to a particular incident which occurred in 1980, when she was seventeen years old, which began when the defendant accused her of having sex with a boy at school. When she denied the accusation, the defendant started to beat her. He then tore off her clothes and continued to beat her. He then took her out into the woods, where he ran the blade of a knife down her chest saying, "I'm going to cut you open," and that he would leave her there to die. Two days later, he again accused her of having sex. This time, according to her testimony, the defendant told her to take off her clothes and lie in a chair. He then took a carving fork, ran it along her stomach, and told her that he was going to "rip" her up.

The victim testified that in the years following these two occurrences she and the defendant had sexual relations a number of times. In October, 1986, according to the victim's testimony, she and the defendant had a fight, during which she sustained a black eye. A co-worker later noticed the victim's black eye, and with the encouragement of the co-worker and their employer, the victim reported the abuses to the Nashua Police Department.

The defendant was indicted on seven counts of aggravated felonious sexual assault and two counts of incest. In February 1987, the defendant filed a motion to quash or dismiss the indictments for aggravated felonious sexual assault on the ground that the indictments were constitutionally deficient in that they failed to allege that the defendant had "threaten[ed] to use physical violence or superior strength on the victim", which is an element of the crime charged, see RSA 632-A:2, III, or to enumerate the facts necessary to establish the elements of the offense. The defendant further argued that the indictments were barred by the applicable statute of limitations, RSA 625:8, because they relied on threats which occurred more than six years prior to the defendant's arrest. Following a hearing, the Court (Murphy, J.) denied the defendant's motion, but ruled that the defendant was entitled to a bill of particulars.

In November 1987, both the defendant and the State filed motions in limine. The Court (Dalianis, J.) denied the defendant's motion, which requested an order prohibiting the State from introducing evidence of the knife and carving fork incidents described above. Regarding the State's motion, the Court (Dalianis, J.) ruled that it would permit the introduction of evidence "as to so-called threats or coercive behavior whether criminal or not," but would not allow the introduction of evidence of "other sexual acts which remain unindicted, unless it becomes apparent to the Court that the issues of 'intent, motives, state of mind and continuous course of conduct' are actually in serious dispute...."

A jury trial was held in July 1988. At the trial, the victim testified to the alleged sexual assaults. Following the close of the State's case, the defendant's counsel made a motion to dismiss for insufficient evidence, which was denied. The defendant then testified on his own behalf, denying that any abuse or sexual contact had occurred between the defendant and victim. On the third day of deliberation, the jury returned a verdict of guilty as to three counts of aggravated felonious sexual assault and one count of incest. This appeal followed.

We first address the defendant's claim that the indictments alleging aggravated felonious sexual assault were constitutionally insufficient, see N.H. CONST. pt. I, art. 15, and that the bill of particulars failed to cure the insufficiency. Part I, article 15 of the New Hampshire Constitution provides that "[n]o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him...." Two of the indictments for aggravated felonious sexual assault on which the defendant was convicted were identical except for the specific date and specific act of sexual penetration. Each provided "... on or [between a particular date or dates] at Nashua ... [the defendant] ... did, purposely engage in sexual penetration, to wit: [a particular act] with [the victim] (DOB 3-6-63), not his legal spouse, when having coerced the victim to submit to his sexual demands or else be subject to physical violence on numerous previous occasions, he again coerced the victim to submit by demanding that she [submit or engage in the particular act] and she believed that he had the present ability to execute the threat of physical violence at this time."

The third indictment stated that the defendant, on or between a particular date, did purposely engage in sexual penetration with the victim,

"... when the defendant coerced [the victim] to submit, having threatened to use physical force against her on numerous previous occasions, and having used physical force on [the victim] in the past if she did not submit to sexual demands, he demanded that she perform [a sexual act] upon him, and [the victim] believed that [the defendant] had the present ability to execute those threats."

The defendant argues that these indictments failed to allege the element of coercion by present threats, in that the first two indictments alleged only "coercion by demanding" and the third indictment alleged coercion by "past threats and past physical force." We disagree.

RSA 632-A:2, III provides that a person is guilty of aggravated felonious sexual assault if he engages in sexual penetration with another person "[w]hen [he] coerces the victim to submit by threatening to use physical violence or superior physical strength on the victim, and the victim believes that the actor has the present ability to execute these threats." Although we agree with the defendant that under RSA 632-A:2, III the threat and sexual penetration must be close in time, the present threat need not be explicit. See State v. Johnson, 130 N.H. 578, 581-82, 547 A.2d 213, 215 (1988). The threat may be implicit, arising from earlier incidents. See id. at 582, 547 A.2d at 215. The three indictments in the instant case clearly alleged present coercion occasioned by repeated prior threats. The indictments thus clearly alleged the element of coercion "by threatening." See State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 459 (1974).

The defendant also argues that the indictments were insufficient because they failed to enumerate the facts and circumstances establishing the element of coercion by threatening. He contends that he did not know whether he had to prepare to meet overt, implicit, past or present threats. However, we have already...