State v. Wood

Decision Date23 August 1989
Docket NumberNo. 88-258,88-258
Citation132 N.H. 162,562 A.2d 1312
PartiesThe STATE of New Hampshire v. Michael WOOD.
CourtNew Hampshire Supreme Court

John P. Arnold, Atty. Gen. (Ellen F. McCauley, Concord, Atty., on the brief and orally), for the State.

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

BROCK, Chief Justice.

The defendant, Michael Wood, appeals from his conviction in the Superior Court (Goode, J.) for aggravated felonious sexual assault, RSA 632-A:2 (Supp.1988), contending that the trial court erred in giving instructions to the jury which suggested a step-by-step method by which the jury was to determine the defendant's guilt. We affirm.

The defendant shared a household with a live-in companion, her three children, and his companion's sister, her husband, and their four children. On March 8, 1987, the defendant was at home babysitting the seven children, including the victim, his companion's seven-year-old niece. While the other children watched television, the defendant took the victim into a bedroom, removed her underwear, and briefly inserted his finger into what she described at trial as her "private." When the victim's parents returned home, she told them of the incident. The next day, her parents had the victim examined by an advanced registered nurse practitioner specializing in pediatrics who determined that the victim had recently suffered trauma to her vaginal area.

In April, 1987, the defendant was indicted for committing aggravated felonious sexual assault by knowingly engaging in sexual penetration with a seven-year-old child. RSA 632-A:2, XI (Supp.1988); RSA 632-A:1, V(e) (Supp.1988). Both the victim and the nurse practitioner testified during the two-day jury trial. The court concluded a lengthy charge to the jury with the following statement:

"Now madam forelady I'm going to suggest to you that when you begin your deliberations, as a first order of business that you and the jury decide what of the evidence to believe and what of the evidence not to believe. And from that group of evidence which you choose not to believe, my suggestion is that you discard it, because if you don't believe it then it should play no role in your deliberations. And from the evidence you chose [sic] to believe, the evidence which you find credible, go back and ask yourself, ask yourselves the following question, does the jury unanimously find beyond a reasonable doubt that the defendant Michael Wood knowingly engaged in sexual penetration with a person who was less than 13 years of age? Bearing in mind that when we talk about knowingly, did he know what he was doing, was he aware of his conduct, and sexual penetration meaning intrusion however slight of any part of the actor's body into the genital opening of the victim's body. Let me just repeat that question again for you so that you'll have it firmly in mind. From the credible evidence, does the jury unanimously find beyond a reasonable doubt that the defendant Michael Wood knowingly engaged in sexual penetration with a person who was less than 13 years of age? If the answer to that question is unanimously yes, you should come in here with a guilty verdict. If the answer to that question is that some of you say yes and some of you say no, then you have not concluded your deliberations. Whatever the conclusion is it must be unanimous. If he's guilty, all twelve of you are going to have to say so. If he's not guilty, all 12 of you are going to have to say so. If it's evenly split or if it's split in some other fashion, some say yes and some say no, then you have not reached a verdict. Just continue your deliberations until you reach a unanimous verdict."

The defendant's counsel objected to that

"portion of the Judge's instruction to the jury.... where the Judge suggests the method by which the jury should go about their deliberations, specifically that he sugested [sic] that they first take the evidence and decide what to discard and keep and then suggests that they ask themselves a specific question and that is, do they unanimously agree that the defendant is guilty or not guilty, and then go on from there."

The defendant's attorney argued that the instruction "invaded the province of the jury" because "the jury has now been told how they should do their deliberations." The court overruled the objection, and the defendant brought this appeal.

The defendant contends that in its jury charge, the trial court suggested a specific, step-by-step method by which the jury was to determine the defendant's guilt, and that this instruction denied the defendant an impartial jury. See N.H. CONST. pt. I, art. 15. We disagree.

The scope and wording of jury instructions is generally within the sound discretion of the trial court. See State v. St. John, 129 N.H. 1, 3, 523 A.2d 26, 28 (1986). We will determine the propriety of disputed instructions by considering them in their entirety. State v. Saucier, 128 N.H. 291, 299, 512 A.2d 1120, 1126 (1986); State v. Bird, 122 N.H. 10, 15, 440 A.2d 441, 443 (1982). In State v. Surette, 130 N.H. 531, 544 A.2d 823 (1988), we held that the trial court abused its discretion in submitting a form of written special questions to the jury which included four yes or no questions...

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7 cases
  • State v. Smart
    • United States
    • New Hampshire Supreme Court
    • February 26, 1993
    ...As none of these grounds for objecting to the instruction was raised below, they will not be considered on appeal. State v. Wood, 132 N.H. 162, 165, 562 A.2d 1312, 1314 (1989). Moreover, the only ground raised below not having been briefed, it is deemed waived. State v. Field, 132 N.H. 760,......
  • State v. Alexander
    • United States
    • New Hampshire Supreme Court
    • December 23, 1998
    ...an impartial jury." State v. Surette , 130 N.H. 531, 535, 544 A.2d 823, 825 (1988) (emphasis added); cf. State v. Wood , 132 N.H. 162, 165, 562 A.2d 1312, 1314 (1989) (court did not improperly interfere with deliberative process by suggesting that jury discard evidence it did not believe be......
  • State v. Plante
    • United States
    • New Hampshire Supreme Court
    • July 24, 1991
    ...Where an alleged error involves a jury instruction, it is particularly appropriate that we follow this rule. See State v. Wood, 132 N.H. 162, 165, 562 A.2d 1312, 1314-15 (1989). The disputed instructions provided in pertinent "The defendant has raised the defense of insanity. Insanity is a ......
  • State v. W.J.T. Enterprises, Inc., 90-371
    • United States
    • New Hampshire Supreme Court
    • December 18, 1992
    ..." "The scope and wording of jury instructions is generally within the sound discretion of the trial court." State v. Wood, 132 N.H. 162, 164, 562 A.2d 1312, 1314 (1989). In determining the adequacy of jury instructions, this court has held on occasions too numerous to mention that "a single......
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