2008-675, STATE OF NEW HAMPSHIRE v. RALPH C. FLODIN

The defendant, Ralph C. Flodin, was convicted in

Schulman on the brief and orally), for the defendant. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R.

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-675 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as facilitated were based upon using scriptures as a tool to assist people with

p. 2 assigned homework to them. He explained that all of the programs he

with them. questions,” and he would “help them through the scriptures” and often pray The defendant testified that he “let [the inmates] do the leading of the

forgiveness programs, the defendant distributed booklets to the inmates and the couples to complete together. Finally, in connection with the anger and “boundaries” for physical touching and disseminating workbook materials for

struggles, their religious and spiritual issues, and their church background.

facilitated meetings between husbands and wives, reminding them about the

discussions with inmates concerned their life challenges and everyday on average ten minutes, and at times up to twenty-five minutes. His “one-on-one counseling” and “spiritual counseling,” with each session lasting

they’re going through.” With respect to marriage seminars, the defendant thinking through the scripture that they would be able to get through what RSA chapter 330-A. and realize that there was someone else that could control their thoughts and

The defendant regularly met with inmates to conduct what he described as

referred to as “chaplain” but he was neither ordained nor part of “lay clergy.” and (3) conducting religious services and staff training. He was sometimes within SCHC, (2) administering to the spiritual needs of the inmates and staff,

formal religious studies or training. He was not an ordained member of any for someone else to grade. He showed the inmates videotapes of religious high school, the defendant never received any formal education or undertook Bibles and study materials to the inmates, and later collected their study work approximately six months of supplementary education immediately following scripture devotion, marriage, anger and forgiveness. The defendant distributed

and included (1) coordinating and overseeing religious and spiritual activities

and programs on forgiveness and anger management. Other than He conducted group sessions and seminars on different topics, including

and the New Hampshire State Prison. coordinator. His job responsibilities were similar to his tasks as a volunteer

meetings with inmates, including conducting Bible studies, marriage seminars,

Hampshire. The defendant pursued prison ministry by volunteering at SCHC In July 2006, SCHC hired him to serve as a part-time spiritual services

than ten years, during which he hosted and facilitated group and individual

in Pennsylvania for a year and a half, after which they returned to New oil business. In the early 1990s, he and his wife lived in an Amish community graduated from high school in 1956 and subsequently worked in the heating Correction (SCHC) at the time of the alleged incidents in this case. He part-time “spiritual services coordinator” at the Strafford County House of taking her medication because her behavior improved. p. 3 help and not hurt her. He testified that he could tell when she had resumed her medication. He told her on different occasions that the medicine would arising from the accident led to her confinement at SCHC. history. during her confinement at SCHC, the defendant had no knowledge of her

staff asked the defendant several times to encourage the alleged victim to take had been in a car accident that caused the death of a friend. In fact, charges feeling that you’re hurting very deeply.” She informed the defendant that she imaginary people. While she had exhibited troubled conduct and “act[ed] out” she was “very frail-looking and shaken.” He testified that he “told her, I got a

disorder and that “they [kept] changing” her diagnosis. She also told him that twenty-five times. and pray together. She informed the defendant that she had a bi-polar the car accident, her family, and life in jail. Sometimes, they would hold hands did not require the defendant to keep any records.

healthy” for her, and he responded that it was a “good thing.” SCHC medical She explained to the defendant that she thought her meditation was “really disorder.” She also had suffered delusions that included interactions with. . . studying witchcraft” and would do so when she felt “down and depressed.” talk to someone. At their first meeting together, the defendant discerned that

basis, usually weekly. In total, they met individually approximately twenty to he “really [did] care.” She began meeting with him individually on a regular about twenty-five percent of the time but they also discussed her feelings about training with respect to inmates with serious psychological problems. SCHC made her “feel good” to talk with the defendant because he made her feel that According to the alleged victim, their conversations involved religion of any inmate’s psychological or medical diagnoses, and he did not receive him to meet with a particular inmate. SCHC staff did not, however, advise him

The alleged victim had previously been diagnosed with a “schizo-affective defendant after a corrections officer saw her crying and asked if she wanted to

their initial meeting, they prayed together. According to the alleged victim, it

issue, . . . [he] would tell them . . . you’re just digging yourself a deeper hole.”

The alleged victim in this case was an inmate at SCHC. She met the

Often, inmates initiated sessions with the defendant during his posted

treat inmates for disorders or diagnose them, but that if “it was a behavioral their problems. He testified, however, that he “wouldn’t even know how” to standard, however, we still consider the evidence in the light most

p. 4 This appeal followed.

must exclude all rational conclusions except guilt. Under this

convicted the defendant on two AFSA counts and two misdemeanor SA counts. 4 evidence, he renewed his motion to dismiss, which was denied. The jury behalf and recanted the admissions he made to the police. At the close of the

reasonable doubt. When the evidence is solely circumstantial, it purposes which are not professionally recognized as ethical or acceptable.” most favorable to the State, could have found guilt beyond a of the evidence and all reasonable inferences from it in the light

under RSA 632-A:2, I(g) is unconstitutionally vague. that the evidence was insufficient to support them. He testified on his own reach his counseling meetings with the alleged victim, then the therapy variant

provided “therapy” to the alleged victim or that he acted “in a manner or for the defendant must prove that no rational trier of fact, viewing all To prevail upon his challenge to the sufficiency of the evidence,

to dismiss based upon the sufficiency of the evidence is well established: Our standard for review of the trial court’s denial of a defendant’s motion

“therapeutic in nature.” interview with the police, he described his role at the jail as “counseling” and case, the defendant moved unsuccessfully to dismiss the charges on the basis RSA 632-A:1, VI. He further argues that if the statute can be construed to

The defendant argues that the evidence was insufficient to prove that he

and acknowledged to authorities that what he did was “wrong.” During his motion, as well as his motion for reconsideration. At trial, following the State’s variant was unconstitutionally vague. The Trial Court (Houran, J.) denied his

See RSA 632-A:1, VI. Alternatively, he argued that the therapy

the charges, arguing that he did not provide “therapy” within the meaning of A:2, I(g)(1); RSA 632-A:4, I. Before trial, the defendant filed a motion to dismiss and tell him no.” when the actor provides therapy to the victim (therapy variant). See RSA 632that way because she “felt like it wasn’t right” and yet did not want to “be rude to the statutory variant that proscribes sexual penetration and sexual contact defendant she was “okay” with the sexual touching, she did “not really” feel The defendant was indicted on multiple counts of AFSA and SA pursuant

that he and the alleged victim had engaged in sexual acts with one another, 2007, the police conducted two interviews with the defendant. He admitted After authorities learned of the purported sexual conduct in late April

engaged in sexual conduct. She explained that while she had told the The alleged victim testified that during the course of their meetings, they acceptable.” p. 5 manner or for purposes that are not “professionally recognized as ethical or

provided “therapy” to her; third, the charged sexual conduct occurred during unambiguous, we need not look beyond it for further engaged in sexual penetration or sexual contact with the victim; second, he RSA 625:3 (2007)]. When a statute’s language is plain and case, the State had the burden to establish the following: first, the defendant import of their terms and to promote justice” [as required by sexual assault statute. our first opportunity to examine the meaning of “therapy” as defined under the assault convictions were based upon the same therapy variant, except that the insufficient to establish that he provided therapy to the alleged victim. This is We turn first to the defendant’s argument that the evidence was

recognized as ethical or acceptable.

another person . . . [w]hen the actor provides

632-A:4, I(a). Accordingly, to convict the defendant of AFSA and SA in this construe the Criminal Code provisions “according to the fair actus reus was “sexual contact,” rather than “sexual penetration.” See RSA provides: RSA 632-A:2, I(g)(1) (emphasis added). The defendant’s misdemeanor sexual

in a manner or for purposes which are not professionally course of that therapeutic or treating relationship . . . [a]cts medical treatment or examination of the victim and in the

assault if such person engages in sexual penetration with A person is guilty of the felony of aggravated felonious sexual words of a statute considered as a whole. Our task is to

The therapy variant for AFSA under which the defendant was convicted

State v. Foss, 148 N.H. 209, 211 (2002) (citations omitted).

arbiter of the intent of the legislature as expressed in the On questions of statutory interpretation, we are the final

variant under RSA 632-A:2, I(g)(1). Dodds, 159 N.H. at ___. This appeal involves the meaning of the therapy

context, not in isolation. favorable to the State and examine each evidentiary item in p. 6 Finally, it emphasizes that the defendant recognized her to be a “very confused

“agent” and “method.” purposes today, we need not consider the difference, if any, between the terms in order to cure, remove, counteract, relieve, or abate that disorder. For our diagnosis, feelings about her family, and incidents that occurred at the jail.

systematic cause or measure, procedure, or technique or particular approach defendant about her car accident, her thoughts of suicide, her bipolar nonreligious matters. It also points to evidence that the alleged victim told the forgiveness programs, marriage seminars, and discussion of both religious and

person’s “bodily, mental, or behavioral” disorder by affording him or her some

counseling, one-on-one and group counseling, anger management and

encompass activity whereby an actor implements a planned action for another

problems of truth or knowledge.” population generally and to the alleged victim in particular: spiritual and “a derangement of function : an abnormal physical or mental condition.” treatment techniques or procedures that the defendant applied to the inmate marked by lack of order, system, regularity, predictability, or dependability” Turning to the record before us, the State has identified certain certain result.” certain effect : an active or efficient cause : a force effecting or facilitating a

techniques or actions customarily applied in a specified situation.” action or manner of dealing with something often in a specified way”; and “the party”; “subjection of something to the action of an agent or process”; “the together, we conclude that the legislature intended the term “therapy” to

set of rules employed in philosophical inquiry : a particular approach to process for attaining an object . . . as . . . a systematic procedure, technique, or RSA 632-A:1, VI. The common meaning of “disorder” includes “a condition Id. at 40. Finally, a “method” encompasses “a procedure or

1920. An “agent” is “something that produces or is capable of producing a a disease or of an evil.” Webster’s Third New International Dictionary, supra at “affording a remedy : intended for a remedy or for the removal or abatement of methods.” RSA 632-A:1, VI. The term “remedial” is commonly understood as The statute also requires that the treatment be “by remedial agents or

action or manner of treating: as . . . conduct or behavior towards another Webster’s Third New International Dictionary, supra at 652.

VI. We examine the common definition of some of the pivotal terms. treatment must be directed towards “bodily, mental, or behavioral disorders.” toward the subject or object of that action. Further, under the statute, the this term connotes that the actor engaged in an intentional or planned action Third New International Dictionary 2435 (unabridged ed. 2002). Accordingly,

considering the plain meaning of statutory terms). “Treatment” includes: “the v. Kelley, 153 N.H. 481, 483 (2006) (court consulted dictionary when

mental, or behavioral disorders by remedial agents or methods.” RSA 632-A:1, The legislature defined “therapy” to mean “the treatment of bodily, with prayer time. p. 7 mental health or behavioral history. Occasionally, he ended their meetings because it would help her, even though he lacked any information about her

or behavioral disorders.” cure, remove, counteract, relieve, or abate the alleged victim’s “bodily, mental,

the request of SCHC, he encouraged the alleged victim to take her medication

cause or measure, procedure, technique or any particular approach in order to

inmates that misbehavior resulted in “digging . . . a deeper hole.” Further, at

disorder through the use of remedial agents or methods. conclusion that the defendant engaged in a planned action or a systematic their regular discussion time into treatment of a bodily, mental, or behavioral his encouragement for her to take prescribed medication does not transform

meditation as a coping tool. Additionally, he testified that he generally told one occasion, he affirmed that it was a “good thing” that she was using ameliorate her struggles and perhaps to help her cope better behaviorally. On 7

generate encouraging and helpful discussions does not give rise to a rational However, having regular meetings centered on different topics which ultimately suicide, his characterization of her as confused, troubled and disturbed, and their meetings, as if “there [were] some people out there [who] really [did] care.”

At times, he offered her spiritual or practical advice or guidance in order to

defendant’s awareness of the alleged victim’s bipolar diagnosis and thoughts of proved to be a valuable exercise for her. She testified that she “fe[lt] good” after somehow satisfies the statutorily defined dimensions of therapy. Moreover, the characterization of his work as “counseling sessions” or therapeutic in nature We reject the State’s contention that the defendant’s own led or guided discussions about her emotional, family and daily life struggles. during which time he asked her about her church and family background, and found that the defendant conducted regular meetings with the alleged victim

her personal difficulties and disclose sensitive information about herself, attentive and empathetic audience, and in encouraging her to freely talk about It appears that the defendant’s conduct in affording the alleged victim an

alleged victim within the meaning of the statute. At most, the jury could have

her.” [her] problems, there would have been no need for him to discuss them with defendant not trying to help [the alleged victim] remedy all (or even some) of

not support a rational conclusion that the defendant provided therapy to the inferences taken from it, viewed in the light most favorable to the State, does We conclude that the evidence in this case, as well as all reasonable

“fe[lt] good” after talking to him. In the end, the State contends: “Were the and disturbed” person, who was “troubled” and “very depressed” and that she p. 8 8

statutory argument or his constitutional claim.

definition of “therapy,” we need not address the defendant’s alternative convictions. Because we reverse the convictions based upon the statutory within the context of a “therapy” relationship. Accordingly, we reverse the

the sexual conduct may have been, the charged sexual acts did not occur

behavioral disorders by remedial agents or methods,” however inappropriate the defendant provided “treatment of [the alleged victim’s] bodily, mental, or DALIANIS, DUGGAN and HICKS, JJ., concurred. relationship. Because the evidence does not support a rational conclusion that

152 N.H. 1 p. 8 85, 191 (2005).

unlawful sexual contact and penetration within the confines of a therapy The State charged the defendant under the single statutory variant for