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In Re D.B.

August 14, 2012

IN RE D.B.


The opinion of the court was delivered by: Conboy, J.

Manchester Family Division

Argued: January 18, 2012 Resubmitted: July 20, 2012

The juvenile, D.B., appeals the Manchester Family Division's (Emery, J.) finding of delinquency based upon a petition alleging misdemeanor sexual assault. See RSA 632-A:4, I (Supp. 2011). He argues that there was insufficient evidence for the trial court to find that he committed sexual assault against the complainant pursuant to the variant charged. See RSA 632-A:2, I(a) (2007). We reverse.

The record supports the following facts. In May 2010, the juvenile and the complainant, also a juvenile, regularly rode the school bus together. On May 19, the juvenile sat next to the complainant on the bus ride home. The complainant testified that during the ride, the juvenile put his hand down her shirt and touched her breasts. She further stated that he put his hand down her pants and "ran it" down to her ankle. The complainant repeatedly told the juvenile to stop, but he did not. She testified that, immediately after the incident, the juvenile told her, "[I]f you tell anyone, I'll rape you every single month til we get pregnant and I'll hurt your little brother."

A week later, the complainant reported the incident to a guidance counselor. The juvenile was charged with misdemeanor sexual assault, see RSA 632-A:4, I(a), and witness tampering, see RSA 641:5 (2007). The sexual assault petition alleged that the juvenile "[d]id commit the crime of sexual assault in that he purposefully subjected [the complainant] (15 years old) to sexual contact without her consent by squeezing her breasts and touching her nipples with his hand by overcoming the victim through the actual application of physical force."

The complainant wrote a statement describing the incident and provided it to the police. Although the statement was not admitted into evidence at trial, the complainant agreed, in response to questioning, that in the statement she wrote that when the juvenile reached underneath her clothes, he "squeezed and rubbed" her breasts, and "touched [her] privates and . . . rubbed them." She also agreed that in her statement, she described the juvenile's conduct as "hurting" her and being "rough."

In addition to the complainant's testimony, the State presented at trial a surveillance video of the May 19 bus ride. The complainant testified that she did not alert other students on the bus at the time of the incident because she "did not want to get in trouble," "did not want other people to know," and "was in shock."

At the close of the State's case, and at the end of the trial, the juvenile moved to dismiss the sexual assault charge for lack of sufficient evidence. Subsequently, the trial court found the juvenile delinquent on both charges. On appeal, the juvenile challenges only the sexual assault delinquency finding.

The juvenile argues that "[t]he evidence did not justify a rational trier of fact in finding beyond a reasonable doubt that [he] sexually assaulted" the complainant because it failed to demonstrate that he "overcame" her "through the actual application of physical force." He further argues that "[t]he evidence . . . failed to prove that he acted with the purpose of sexual arousal or gratification."

In challenging the sufficiency of the evidence, the juvenile must "prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. Oakes, 161 N.H. 270, 275 (2010) (quotation omitted). We will consider the entire trial record because the juvenile chose to present a case after unsuccessfully moving to dismiss the petitions. Id. at 276.

The juvenile first argues that the State failed "to prove that [he] overcame [the complainant] with the actual application of physical force." He contends that the State was required to prove that he exerted physical force apart from that inherent in the sexual contact itself. His argument focuses on the phrase "overcomes the victim through the actual application of physical force," RSA 632-A:2, I(a), and, more specifically, on the term "overcomes" as used in the statute. The State argues that the statute does not require application of force greater than that inherent in the act itself. In the alternative, the State contends that the juvenile used more force than that involved in the act itself, thereby satisfying either construction of the statute.

When construing a statute, "we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." In re Alex C., 161 N.H. 231, 235 (2010) (quotation omitted). "We first examine the language of the statute, and, where possible, we apply the plain and ordinary meanings to the words used." Id. (quotation omitted). We review matters of statutory construction de novo and consider the words and phrases of the statute within the context of the statute as a whole. Id. "We construe provisions of the Criminal Code 'according to the fair import of their terms and to promote justice.'" Id. (quoting RSA 625:3 (2007)).

Under the charged variant of misdemeanor sexual assault, a person is guilty when he "subjects another person who is 13 years of age or older to sexual contact" and "overcomes the victim through the actual application of physical force, physical violence or superior physical strength." RSA 632-A:4, I(a); RSA 632-A:2, I(a). "Sexual contact" is defined as "the intentional touching whether directly, through clothing, or otherwise, of the victim's or actor's sexual or intimate parts, including emissions, tongue, anus, breasts, and buttocks," and includes only the "aforementioned conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification." RSA 632-A:1, IV (Supp. 2011).

The statute does not set forth the degree of force required to demonstrate that a person "overcomes the victim through the actual application of physical force." RSA 632-A:2, I(a). Neither does it define the term "overcomes." The general meaning of the term is twofold: it can either mean "to get the better of: SURMOUNT, CONQUER, SUBDUE," Webster's Third New International Dictionary 1607 (unabridged ed. 2002), or "to affect or influence so strongly as to make physically helpless or emotionally distraught . . . OVERPOWER, OVERWHELM." Id. Both understandings of the word thus share the connotation "to defeat." As to either understanding of the word, under the plain language of the statutory variant charged here, the actor must "overcome[] the victim through the actual application of physical force, physical ...


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