The defendant, Eli Bunnell, appeals his conviction for aggravated felonious sexual assault. He argues that the trial court erred in denying his motion to dismiss. We affirm.
We briefly summarize the case before us. The assaults occurred in August 2008. The victim's mother had asked the defendant to allow the victim to stay at his house overnight during a storm because the victim's mother was working and the victim, who was fourteen at that time, did not want to be at home alone if power was lost. The defendant was the father of the victim's cousin and a family friend; he had previously babysat for the victim and her siblings. At some point in the night, the victim awoke to find someone in bed next to her. She felt his hand inside her clothing touching her buttocks. As she pretended to be asleep, he rolled her over and removed her clothing and sexually penetrated her. During the course of the assaults, the victim determined that it was the defendant.
At the close of the State's case, the defendant moved to dismiss the aggravated felonious sexual assault charge, arguing that the State had failed to present sufficient evidence that penetration occurred before the victim had an adequate chance to flee or resist. The trial court denied the motion, ruling in relevant part: "[A reasonable finder of fact] could find that the escalation from the hand touching the buttocks to vaginal penetration with a penis was sufficiently sudden, concealed, that is, performed by concealment or element of surprise without an adequate chance to flee or resist on the facts taken in the light most favorable to the State."
To prevail upon a challenge to the sufficiency of the evidence, the defendant 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. Trebian, 164 N.H. 629, 632 (2013). We examine each evidentiary item in context, not in isolation. Id.
The indictment alleging that the defendant committed aggravated felonious sexual assault included the following language: "he knowingly engaged in sexual penetration with another through concealment or by the element of surprise in that he inserted his penis into the vaginal opening of [the victim before she] had adequate chance to flee or resist." See RSA 632-A:2, I(i) (2007).
The defendant concedes that the record contains sufficient evidence of penetration. He argues, however, that there was "insufficient evidence of the concealment/surprise element which elevated this offense to an AFSA." The State contends that the sufficiency challenge to this charge that the defendant raised at trial was limited to whether the victim had an opportunity to flee or resist. We will assume without deciding that the trial court considered the issue now argued before us on appeal. Cf., e.g., State v. Town, 163 N.H. 790, 792-93 (2012) (finding issue preserved where record indicated that trial court understood defendant's objection and had an opportunity to address alleged error).
As both parties observe, we have previously "characterized the RSA 632-A:2, I(i) analysis as focusing on the actions of the defendant." State v. Kepple, 155 N.H. 267, 272 (2007) (quotation and brackets omitted). The defendant notes, however, that in Kepple, we "also considered the victim's awareness of and reaction to the defendant's actions relevant to the analysis."
Assuming without deciding that the victim's awareness of, and reaction to, the defendant's actions are relevant to our analysis, we conclude that the evidence viewed in the light most favorable to the State is sufficient. The victim's age, the defendant's long-term relationship with her and her family and the fact that she awakened to find the assault in progress would have allowed a rational trier of fact to find beyond a reasonable doubt that the defendant committed the penetration by the element of surprise before the victim had an adequate chance to flee or resist.
HICKS, CONBOY and LYNN, JJ., ...