The defendant, Robert Dennis Luicha, appeals his conviction, following a jury trial in superior court, on a charge of aggravated felonious sexual assault by means of "the actual application of physical force, physical violence or superior physical strength." RSA 632-A:2, I(a) (Supp. 2013). He contends that "[t]he evidence was insufficient to show that [the victim] was overcome by physical force greater than that required to commit the act of anal penetration." We reverse this conviction and remand for sentencing on the alternate charge of anal penetration without consent. See RSA 632-A:2, I(m) (Supp. 2013).
To prevail in a challenge to the sufficiency of the evidence, the defendant bears the burden of establishing that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Kelley, 159 N.H. 449, 454-55 (2009). In reviewing the evidence, we examine each evidentiary item in the context of all the evidence, not in isolation. Id. at 455. Circumstantial evidence may be sufficient to support a finding of guilt beyond a reasonable doubt. Id. The trier of fact may draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom. Id.
To prevail on a sufficiency of the evidence challenge when the evidence as to one or more elements of the charged offense is solely circumstantial, the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt. State v. Germain, 165 N.H. 350, 361 (2013). The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded. Id. To sustain a sexual assault charge under RSA 632-A:2, I(a), the evidence must show that the actor applied some degree of force greater than that inherent in the sexual act itself. In re D.B., 164 N.H. 46, 49 (2012).
In this case, a review of the record shows that the evidence of physical force or violence in connection with the anal penetration was insufficient. The victim did not testify to, nor was she asked about, the defendant's use of force during the assault. See State v. Addison, 165 N.H. 381, 592 (2013) (State's burden to prove elements of crime beyond reasonable doubt). Viewing the evidence in the light most favorable to the State, the record reflects that, after the defendant pushed her out of the bathroom, she hit the bedside table, that she "crawled on the bed" when he ordered her to do so, and that during all the acts of sexual penetration she "pretty much just lay[ ] there." It also reflects that the anal penetration occurred after at least one act of vaginal penetration. The victim testified that the defendant discontinued anal penetration when she indicated that it hurt.
The State argues that the jury could have inferred that the defendant used force or violence to accomplish the assault. We note that the jury acquitted the defendant of vaginal penetration by means of the application of actual physical force. Furthermore, the circumstantial evidence regarding the defendant's actions on the bed supports more than one reasonable conclusion as to whether he accomplished the assault by overcoming the victim by the actual application of physical force, physical violence, or superior physical strength. Therefore, under the particular facts of this case, we conclude, as a matter of law, that the evidence was insufficient to convict the defendant of this variant of aggravated felonious sexual assault.
Reversed and remanded for resentencing.
HICKS, CONBOY, and BASSETT, JJ., ...