State v. Taylor

• Decision Date: 12 June 1981
• Docket Number: No. 80-155,80-155
• Citation: 431 A.2d 775,121 N.H. 489
• Parties: The STATE of New Hampshire v. Francis N. TAYLOR, Jr.
• Court: New Hampshire Supreme Court

Page 775

431 A.2d 775

121 N.H. 489

The STATE of New Hampshire v. Francis N. TAYLOR, Jr.

No. 80-155.

Supreme Court of New Hampshire.

June 12, 1981.

Gregory H. Smith, Acting Atty. Gen. (Martha V. Gordon, Asst. Atty. Gen., on the brief and orally), for the State.

Eaton, Solms & Mills, Manchester (Douglas A. McIninch, Manchester, on the brief and orally), for defendant.

BROCK, Justice.

The defendant was indicted on charges of aggravated felonious sexual assault for having engaged in "sexual penetration of (the prosecutrix) under circumstances involving ... kidnapping ...." (RSA 632-A:2 V (Supp. 1979)) and of kidnapping (RSA 633:1), for having "knowingly confined (the prosecutrix) under his control with a purpose to terrorize her." Trial by jury in the Superior Court (Randall, J.) resulted in a guilty verdict on the aggravated felonious sexual assault charge and an acquittal on the kidnapping charge, but the jury returned a verdict of guilty on the lesser included offense of false imprisonment, RSA 633:3. On appeal, the defendant alleges that RSA 632-A:2 V (Supp. 1979) is unconstitutionally vague, that the indictment is defective, that the court erred in its instructions to the jury and that the evidence presented at trial was insufficient to support his convictions. We affirm.

We have held that, in reviewing a trial court's refusal to set aside a verdict based on the insufficiency of the evidence, "this court must consider the evidence in the light most favorable to the State, which is entitled to all reasonable inferences that arise from the evidence (citations omitted)." State v. Goodwin, 118 N.H. 862, 866, 395 A.2d 1234, 1236 (1978); State v. Berry, 117 N.H. 352, 355, 373 A.2d 355, 358 (1977). While conflicting evidence was given at trial by the defendant and the prosecutrix, the jury could have found the following facts. The defendant and his friend, Alvah Goodwin, spent February 1, 1977, "joyriding" around Southern New Hampshire, drinking beer and looking for some girls that they could "pick up." Late in the afternoon, the pair arrived in Manchester, where they purchased a road map for the purpose of helping them "trick" a girl into coming over to their car.

They spotted a seventeen-year-old high school girl walking home from school and the defendant pulled his car up next to her. He asked the girl for directions to Massachusetts and, getting out of the car, spread the map on the hood. Once the girl approached the car, the defendant then shoved the girl, who was kicking and screaming, into the car.

The victim testified that once in the car she was placed in the middle of the front seat with the defendant on one side and his friend on the other. She started to cry and asked to be taken home. They ignored this request. The defendant drove the car out of Manchester and stopped at a small country store to buy beer and cigarettes. When the defendant left the car, he told his friend not to let the girl go, and the friend then held on to the girl's right knee and warned her "don't go anywhere, because there's no place to go."

When the defendant returned to the car, he drove toward Concord along some isolated back roads where he stopped on two occasions. On one of these occasions, he attempted to sexually assault the girl but her resistance was sufficient to discourage him and he decided to take her to his apartment in Hillsborough.

Once there, the defendant bolted the door, pulled down the shades, told the girl "don't try to yell, because no one will hear you," and ordered her to take her clothes off or else he would take them off for her. Although she continued to protest and requested that she be taken home, the defendant persisted in his demands that she remove her clothes. Once undressed, the defendant told her that "if you resist, it will hurt more," and the defendant then proceeded to engage in sexual intercourse with her.

The defendant's version of the episode was quite different from that of the victim. He testified that the girl consented to getting into the car and consented to the act of intercourse. The jury obviously found that much of the testimony given by the defendant at trial was not credible.

We conclude that, on all the evidence and the reasonable inferences drawn therefrom, reasonable jurors could find beyond a reasonable doubt that the victim did not consent either to her confinement or to sexual intercourse and that the defendant was guilty of violations of RSA 632-A:2 V (Supp. 1979) and RSA 633:3. The trial court, therefore, did not err in denying defendant's motion to set aside the convictions due to the insufficiency of the evidence. See State v. Hardy, 120 N.H. 552, 554, 419 A.2d 398, 399-400 (1980); accord, State v. Goodwin, 118 N.H. 862, 867, 395 A.2d 1234, 1237 (1978); cf. Jackson v. Virginia, 443 U.S. 307, 312-13, 324, 99 S.Ct. 2781, 2785-86, 61 L.Ed.2d 560 (1979).

The defendant next argues that RSA 632-A:2 V (Supp. 1979) is unconstitutionally vague and therefore violates due process. The statute provides that a person is guilty of aggravated felonious sexual assault, a Class A felony, if he engages in sexual penetration "(w)hen the victim submits under circumstances involving false imprisonment, kidnapping or extortion." (Emphasis added.) The defendant contends that the use of the word "involving" in the statute, in some fashion, renders the statute unconstitutionally ambiguous or vague. We disagree.

"A criminal statute violates the constitutional requirement of definiteness if it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." State v. Hewitt, 116 N.H 711, 712, 366 A.2d 487, 488 (1976), citing Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); see Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 243, 46 L.Ed.2d 185 (1975). Because the statute challenged here does not effect the exercise of a fundamental right, this is not a case justifying a facial attack. Rose v. Locke, supra at 50 n.3, 96 S.Ct. at 244 n.3; State v. Hewitt, supra at 713, 366 A.2d at 489.

The issue before us is whether the statute afforded the defendant sufficient warning that the conduct he engaged in was forbidden, see Rose v. Locke, supra at 50, 96 S.Ct. at 244, and we therefore consider the statute "in light of the conduct to which it is applied." State v. Hewitt, supra at 713, 366 A.2d at 489, citing United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963); State v. Piper, 117 N.H. 64, 65, 369 A.2d 199, 200 (1977). In applying the statute to the facts of this case, we are mindful of the fact that a statute is not unconstitutionally vague merely because the "reviewing court believes (it) could have ... drafted (the statute) with greater precision." Rose v. Locke, supra, at 49, 96 S.Ct. at 243.

Webster's Third New International Dictionary (Unabridged 1961) defines "involve" as follows: "5 a: to have within or as part of itself: Contain, Include ...." Id. at 1191. It is readily apparent that RSA 632-A:2 V (Supp. 1979) forbids a person from engaging in sexual penetration of another "(w)hen the victim submits under circumstances ... (which include) false imprisonment, kidnapping or extortion."

Having reviewed the transcript of the evidence presented at trial, we conclude that RSA 632-A:2 V (Supp. 1979) gave fair warning to the defendant that the conduct with which he was charged, sexual penetration of a victim whom he had kidnapped or falsely imprisoned, was forbidden, and we therefore reject the defendant's argument that the statute is void for vagueness. See State v. DeGrenier, 120 N.H. ---, ---, 424 A.2d 412, 413 (1980).

The defendant next contends that the indictment charging him with aggravated felonious sexual assault, RSA 632-A:2 V (Supp. 1979), should have been quashed because it did not specify the facts or circumstances of the underlying kidnapping or false imprisonment. See State v. Bussiere, 118 N.H. 659, 661, 392 A.2d 151, 153 (1978).

The indictment reads:

"(T)hat Francis N. Taylor, Jr. ... on the 1st day of February in the year of our Lord one thousand nine hundred and seventy-seven at Hillsboro ... did purposely engage in sexual penetration in the form of sexual intercourse with (the prosecutrix) ... (that the prosecutrix) did submit under circumstances involving kidnapping, said kidnapping occurring when Francis N. Taylor, Jr., did knowingly confine (the prosecutrix) a person, under his control, with a purpose to terrorize the said (prosecutrix)...."

(Emphasis added.) The language of this indictment is similar to that which we considered in State v. Bussiere, 118 N.H. 659, 660-61, 392 A.2d 151, 153 (1978), with the exception that the language in the underscored portion of the indictment presently before us above did not appear in the Bussiere indictment. In other words, the indictment here goes on to describe the offense of kidnapping in the words of the kidnapping statute, RSA 633:1(c), whereas the indictment in Bussiere did not. Generally, "an indictment is sufficient if it uses the words of the proper section of the applicable statute." State v. Meloon, 119 N.H. 76, 77, 397 A.2d 1041, 1042 (1979) (quoting State v. Panichas, 107 N.H. 359, 362, 222 A.2d 211, 213 (1966)).

The defendant, however, argues that the indictment in this case is insufficient because Bussiere requires that when a person is charged under RSA 632-A:2 V (Supp. 1979), the indictment "must enumerate the facts establishing the necessary elements of the...