State v. Lovely, s. 82-583

• Decision Date: 09 April 1984
• Docket Number: 83-344,Nos. 82-583,s. 82-583
• Parties: The STATE of New Hampshire v. Francis A. LOVELY.
• Court: New Hampshire Supreme Court

Page 847

480 A.2d 847

124 N.H. 690

The STATE of New Hampshire v. Francis A. LOVELY.

Nos. 82-583, 83-344.

Supreme Court of New Hampshire.

April 9, 1984.

Gregory H. Smith, Atty. Gen. (Amy L. Ignatius, Concord, on brief and orally), for the State.

Peter Karl Marsh, Concord, and Ronald Ian Segal, Everett, Mass. (Ronald Ian Segal on brief, and Peter Karl Marsh, on brief and orally), for defendant.

BATCHELDER, Justice.

The defendant appealed from a jury verdict finding him guilty of twelve counts of aggravated felonious sexual assault, RSA 632-A:2, IV (Supp.1983), and seven counts of sexual assault, RSA 632-A:4 (Supp.1983), in the Superior Court (Dunn, J.). We have consolidated that appeal with the defendant's later appeal from the denial of his motion to set aside the jury's verdict, made seven months after the trial. The allegations contained in the indictments which were the subject of the trial concern one victim who had been coerced into sexual activity by and with the defendant.

The defendant raises five claims of error and asks that we reverse his conviction. For the reasons which follow, we affirm.

The evidence adduced at trial establishes that the defendant managed a State liquor store in West Lebanon. According to the victim's testimony, the defendant, in September 1981, picked him up while he was hitchhiking. Some days later, the victim appeared at the liquor store to borrow some money from the defendant. The defendant lent the victim $10, and they discussed the possibility of employment at the liquor store.

On September 29, 1981, the defendant assisted the victim in completing an application for employment. Although the victim was initially told that the application would have to be processed through the Concord office, he was permitted to start work that afternoon. The victim testified that he had been living out of his car at this time, but that after starting work he, with the defendant's assistance, was able to rent a room. The defendant paid the rent ($30 weekly) for most of the ensuing three months, notwithstanding the fact that the victim actually resided in the defendant's home, along with the defendant's family. In addition, in October 1981, the defendant paid $60 to the Hanover Police as restitution for a theft committed by the victim.

The victim testified that from October 1981 to January 1982, he spent most of each day in the defendant's office at the liquor store, doing little work but receiving full pay. Typically, the defendant took the victim to lunch and on coffee breaks as his guest. The defendant also drove the victim to and from the liquor store each day.

The victim testified that, during this period, he had relationships with two women. The defendant expressed misgivings about those relationships and took steps to thwart them. One of these women testified at trial that the defendant had told her that he loved the victim, and that they were "bed buddies" and wished to spend all their time together.

The victim testified that the defendant took photographs of him while he was unclothed. Two photographs of the victim (one in which he was fully clothed and the other in which he was nude except for a towel around his waist) were found on the defendant's dresser by police during a search of the defendant's home. These photographs were introduced into evidence. The victim also testified that the defendant forced him to watch a film which depicted various homosexual acts, while admonishing the victim that he could be a good lover if he would only learn what to do. A police officer who searched the defendant's home testified that a film was found there which corresponded with the film described by the victim.

The indictments alleged twenty-three incidents during which the defendant coerced the victim into engaging in sexual acts, involving masturbation, sodomy or fellatio. The indictments alleged that the defendant threatened the victim with loss of his employment and housing, and further threatened to institute criminal charges against him if the victim did not submit. The victim testified concerning these incidents with the assistance of a sixty-five-page statement he had written while in the custody of the Lebanon police. During trial, three of the fifteen felony counts were dismissed due to insufficient evidence. On October 25, 1982, the jury returned guilty verdicts on the remaining twelve felony counts and on seven of the eight misdemeanor counts.

The defendant first argues that the threats to which the victim testified do not, as a matter of law, constitute threats of retaliation within the meaning of RSA 632-A:2, IV (Supp.1983). This statute prohibits sexual penetration "[w]hen 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." Id.; see RSA 632-A:4 (Supp.1983) (making it a misdemeanor for any person to subject another "to sexual contact under any of the circumstances named in RSA 632-A:2"). The defendant raised this contention at trial through motions to quash the indictments, to dismiss and to set aside the verdict.

The defendant maintains that the threats of retaliation envisioned by the legislature when it enacted the statute do not include the threats of financial retribution which the indictments alleged and to which the victim testified. Rather, the defendant argues, RSA 632-A:2, IV (Supp.1983) prohibits the coercive use of threats of violence. Consequently, reasons the defendant, since neither the indictments nor the evidence alleged the types of personally endangering threats proscribed by the statute, the defendant's conviction cannot stand.

The victim testified at great length about the circumstances attending his encounters with the defendant. The following passage from the record fairly summarizes the type of threats that constituted the coercion to which he was subjected:

"Q. Now, Mr. [victim], in all these incidents that you have been discussing here in court for the past two days, was it just one thing that you were fearful of that Mr. Lovely might do or was it a combination of things?

A. Three or four things, combination.

Q. What were, ... what was the combination of things that you were fearful of?

A. Loss of the job, the housing, and being taken to court for money I had owed him.

Q. Was there anything else?

A. And that he was protecting me, keeping me out of trouble with the law."

The State contends that the threats summarized above fall within the definition of "retaliation" and, therefore, their use to procure sexual penetration and contact is prohibited by RSA 632-A:2 and :4 (Supp.1983).

Retaliation is defined to mean "threats of future physical or mental punishment, kidnapping, false imprisonment, extortion or public humiliation or disgrace." RSA 632-A:1, II (Supp.1983). In the light of these specific types of retaliatory threats proscribed by the Code, we cannot agree with the defendant's contention that the Code applies only to violent or personally endangering threats. Threats of mental punishment, extortion (as defined by RSA 637:5, II to include threats of economic reprisal) or public humiliation or disgrace clearly extend beyond threats of physical violence to reach acts that undermine consent through the use of non-violent coercion. See generally ALI Model Penal Code and Commentaries § 213.1, at 312 (1980).

Examining the defendant's testimony in the light most favorable to the State, we conclude as a matter of law that the threats directed at the victim amounted to threats of retaliation within the meaning of RSA 632-A:1, II and :2, IV (Supp.1983). Consequently, the ultimate question of guilt on the crimes charged remained with the jury.

The second issue raised by the defendant on this appeal concerns his claim that he was deprived of the effective assistance of counsel because his trial counsel failed to preserve an adequate record of certain conferences between counsel and the court at the bench during trial. The defendant argues that the failure to insure that all bench conferences are recorded prevents meaningful appellate review, by depriving the appellate court of the substance of the conference, along with any rulings, together with the reasons therefor, made by the trial judge during the conference.

The defendant points to only two instances where his trial counsel failed to record bench conferences to his pejudice. Our reading of the record before and after the point where the unrecorded bench conferences are indicated fails to disclose any possible prejudice redounding to the defendant from not having these conferences recorded. Cf. State v. Staples, 121 N.H. 959, 964, 437 A.2d 266, 268 (1981). Viewing the record as a whole, we hold that the defendant was not deprived of the effective assistance of counsel at his trial. See State v. Guaraldi, 124 N.H. 93, 99, 467 A.2d 233, 237 (1983).

The defendant's third claim of error concerns the prosecutor's statement during his closing argument that the defendant had failed to produce any witnesses to testify to the defendant's good character:

"Now, the defendant's case revolved around certain people who did not know Mr. Lovely and who came in here and only knew [the victim]. I think this is very interesting and very revealing as to who they called as versus who they did not call. Where were all the witnesses to come in here and say what a great guy Mr. Lovely is? Where were all of Mr. Lovely's neighbors? Where were all of Mr. Lovely's co-workers?"

Behind this statement, argues the defendant, is the adverse inference that the defendant was of such bad character that no such witnesses could be produced. The defendant maintains that with this comment the prosecution improperly injected the defendant's character into the trial and burdened the defendant's right to remain silent and not to produce any evidence. See N.H....