2004-334, STATE OF NH v. ROBERT GRIMES

game pieces with red and black colored shot glasses filled with alcohol. When checkers. Instead of using traditional checkers, the participants replaced the p.m., the victim, Lusher, and the defendant started playing a drinking game of 2003, Robert Lusher introduced the defendant to the vi ctim. Around 7:00 was a single mother living in Hillsborough. On the afternoon of February 7, The record supports the following facts. In February 2003, the victim

RSA 632 - A:2 (Supp. 2002). We affirm. Superior Court (Abramson, J.) of aggravated felonious sexual ass ault (AFSA). GALWAY, J. The defendant, Robert Grimes, appeals his conviction in the

and orally, for the defendant. Andrew Winters, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), f or the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

No. 2004 - 334 Hillsborough - nor thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the floor and vomit all over the room. The defendant was arrested the following with the defendant asleep in bed next to her. The victim found her clothing on The next thing the victim remembered was waking up around 6:30 a.m.

lying on her back unable to move, and then blacked out again. top of her and had finished ejaculating into her. The victim then remembered and penetrating her from behind. She next recalled that the defendant was on how she got into that position, and the defendant was holding her stomach up different position.” At one point, she woke up on her stomach, not knowing body up, and she kept “passing in and out . . . of consciousness waking up in a loud enough or push him away. The victim felt like she could not hold her weak. The defendant got on top of her. She told him to stop, but could not yell stroking her hair. She felt paralyzed from the neck down and very sick and defendant lying next to her. He was touching her breasts and face, and The victim woke up naked in her bed around 1 p. 2 2:30 a.m. with the

again. any longer and that she “couldn’t even feel [her] body.” She then blacked out came into the room. At that point, the victim felt like she could not stand up stood there naked by herself screaming for help. Lusher and the defendant continued to throw up and cry. Frantically, she ran into the living room and enough.” She managed to run downstairs into the bathroom where she but felt that she “couldn’t push hard enough” and “couldn’t scream loud she repeatedly lost and regained consciousness, she tried to push him away of her bed. She kept “blacking in and out” as she tried to push him away. As came off. The victim told him to stop, hyperventilated, and vomited on the side Lusher touching her breasts. She did not remember how or when her clothes The victim testified that she n ext remembered waking up naked with

and could barely make it to her bed. to hit the floor if [she] didn’t lay down soon.” She felt “sick to [her] stomach” “dizzy and nauseous,” like she was “going to pass out,” and that she was “going “needed to go lay down.” When the victim went to bed at 10:00 p.m., she felt needed to slow down. She said that she “wasn’t feeling very well at all” and Around 9:30 p.m., the victim told Lusher and the defendant that she

shots of alcohol and three bottles of Bacardi Silver, a malt beverage. being refilled. She believed that during the course of the game she drank six and you didn’t drink this yet.” The victim did not know whether the shots were an d the defendant said to her, “Oh, you didn’t take the shot, you walked away half - brother, who was visiting. Each time she returned to the table, Lusher After the game started, the victim frequently checked on her son and his

in the shot glass. a player obtained another’s piece, the opposing player had to drink the alcohol p. 3 3

the phrase “physically helpless to resist” means that at the time of the offense, We have previously approved, in d icta, the trial court’s instruction that

In the Matter of Blanchflower & Blanchflower, 150 N.H. 226, 227 (200 p. 3 3). undefined, we ascribe to those words their plain and ordinary meanings. See We decline to do so because when the legislature leaves a statutory term other reason is physically unable to communicate unwillingness to do an act.”). (“‘Physically helpless’ means a person who is unconscious, asleep, or for any to those statutory definitions. See, e.g., R.I. Gen. Laws § 11 - 37 - 1(6) (2002) “physically helpless” in statutes and asks us to adopt an interpre tation similar The defendant points to several other States that define the phrase

at ___, 627 A.2d at 41 p. 3 3. their terms and to promote justice.” RSA 625:3 (1996); see Hudson, 151 N.H. it. Id. We construe Criminal Code provisions “according to th e fair import of When a statute’s language is plain and unambiguous, we need not look beyond of the statute. State v. Hudson, 151 N.H.,, 867 A.2d 412, 413 (2005). elements. In matters of statutory interpret ation, we first examine the language decide whether the evidence at trial was sufficient to prove the required Resolution of this issue requires us to interpret the statute and then to

physical condition.” that the phrase should be defined as “unconscious, asleep, or an equivalent statute does not define “physically helpless to resist,” and the defendant argues resist the defendant showed that she was not physically helpless to resist. The The defendant contend s that the victim’s attempts to verbally and physically

(b) When the victim is physically helpless to resist. . . . under any of the following circumstances: assault if he engages in sexual penetration with another person I. A person is guilty of the felony of aggravated felonious sexual

RSA 6 p. 3 32 - A:2, I(b) provides:

viewed in the light most favorable to the State. Id. p. 3 355, 359 (2004). All reasonable inferences derived from the evidence are could have found guilt beyond a reasonable doubt. State v. Cossette, 151 N.H. the evidence in the light most favorable to the State, no rational trier of f act on a sufficiency of the evidence claim, the defendant must show that, viewing the jury to find that the victim was “physically helpless to resist.” To succeed On appeal, the defendant argues that there was insuffi cient evidence for

was “physically helpless to resist.” RSA 6 p. 3 32 - A:2, I(b). afternoon, and subsequently indicted for AFSA on the theory that the victim p. 4 4

the subsections of RSA 632 - A:2, I. We disagree. definition of “physically helpless to resist” to give independent meaning to all of 217 (2002). Hence, the defendant argues, we should adopt his proposed unnecessa ry and duplicative provisions. See State v. Gifford, 1 p. 4 48 N.H. 215, defendant contends, we must presume that the legislature does not enact committing AFSA under RSA 632 - A:2, I. When interpreting a statute, the I(b) would make the provision redundant in light of the thirteen other ways of Finally, the defendant argues that a broad interpr etation of RSA 632 - A:2,

helpless to resist the defendant. unable to hold her body up, further demonstrating that she was physically found that those efforts failed due to the fact that she felt ill, weak and at times attempted, in vain, to physically push the defendant off, the jury co uld have physically resist the defendant’s sexual penetration. Although the victim the defendant’s sexual penetration does not mean that she had the ability to Here, the fact that the victim had the cogniza nce and ability to verbally resist the presence of one condition does not always imply the other. Id. at 155. “physically helpless to resist” and “unable to exercise reasonable judgment,” previously concluded that while intoxication may cause a victim to be both unwillingness to the defendant when she yelled at him to stop, we have resist. See id. Further, although the victim was able to communicate her intoxication at the time of the offense” to be rendered physically helpless to is not necessary for the victim to be “unconscious or in any particula r state of Although the victim was conscious at certain times during the incident, it

disagree. negates the State’s claim that she was physically helpless to resist. We the incident and communicated her unwillingness to be sexually penetrated The defendant argues that the fact that the victim was conscious during

back unable to move. into her. She also testified after the incident that she remembered lying on her stomach up. Finally, she remembered the defendan t on top of her ejaculating she woke up on her stomach with the defendant behind her holding her and out . . . of consciousness waking up in a different position.” At one point to stop,” but she wa s unable to push him off. Further, she “kept passing in “couldn’t hold her body up.” She “tried pushing him away . . . and telling him in bed next to her. After the defendant got on top of her, she felt like she paralyzed from the neck down and very sick and weak when the defendant was the defendant. See id. In the present case, the victim testified that she fe lt resist when the victim is physically incapable of resisting sexual penetration by meaning of the statute, we now hold that a victim is physically helpless to defendant.” State v. Jackson, 1 p. 4 41 N.H. 1 p. 5 52, 153 (1996). Based on the plain the victim was “physically incapable of resisting sexual penetration by the 5

NADEAU, DALIANIS and DUGGAN, JJ., concurred.

plain reading of “physically helpless to resist.” helpless to resist the defendant. We find no redundancy resulting from our however, focuses on the condition of the victim where the victim is physically has the chance to flee or resist, se e RSA 632 - A:2, I(i). RSA 632 - A:2, I(b), defendant penetrates the victim by the element of surprise before the victim coerces the victim to submit by threat of violence, see RSA 632 - A:2, I(c); or a application of superior physical strength, see RSA 632 - A:2, I(a); a defendant defendant, such as when a defendant overcomes the victim through the actual of AFSA through different circumstances which focus on the actions of the Under the other subsections of RSA 632 - A:2, I, a defendant may be guilty