2009-741 The State of New Hampshire v. Joseph Michaud

After a jury trial in Superior Court (McHugh

under thirteen years of age at the time of the offenses. Her father, DM, and the The jury could have found the following facts. The victim, VM, was Stephanie Hausman

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We affirm. included offense instruction on simple assault. See RSA 631:2-a, I(a) (2007). defendant argues that the trial court erred in denying his request for a lesserassault. See RSA 632-A:3, III (2007) (amended 2010). On appeal, the defendant, Joseph Michaud, was convicted of four counts of felonious sexual

brief and orally, for the defendant.

general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as assault. We disagree. p. 2 court was required to give the lesser-included offense instruction for simple further argues that, given the testimony at trial about incidents of tickling, the simple assault is a lesser-included offense of felonious sexual assault. He the definition of the charged variant of felonious sexual assault and, thus, defendant argues that all of the elements of simple assault are embraced within felonious sexual assault is a question of first impression for this court. The Whether simple assault is a lesser-included offense of the charged variant of defendant’s request for a lesser-included offense instruction for simple assault. The only issue on appeal is whether the trial court erred in denying the

This appeal followed. lesser-included offense instruction for simple assault, which the court denied. of the charged variant of felonious sexual assault. The defendant requested a At the close of the trial, the court instructed the jury as to the elements

inappropriate manner.” thousand times.” However, he testified that he had “never touched [VM] in an that he told the police officer when questioned that he had tickled VM “a 2008 incident. He admitted that he had tickled VM in the past and testified four occasions, except for giving her a “high five” at the time of the September The defendant testified at trial. He denied touching VM on any of the

the defendant left, VM again told her mother about what had happened. over her shoulders, his hands down her shirt, and rubbed her breasts. After computer. The defendant came downstairs, stood behind VM, placed his arms to VM’s house to pick up his children. VM was in the basement sitting at a The final incident occurred in September 2008 when the defendant went

shirt and “kind of tickled her.” picked her up, VM told her mother that the defendant put his hands under her under the side of VM’s shirt and rubbed her breasts. When VM’s mother VM ate breakfast with the defendant in his living room. The defendant reached The third incident occurred during another sleepover in June 2007, while

put his hands under her shirt. told her parents that she did not like how the defendant tickled her and that he realized the touching did not feel like tickling. After the second incident, VM breasts. The first time, VM thought the defendant was tickling her but then living room, the defendant placed his hands under VM’s shirt and rubbed her defendant’s house during November 2006. Each morning, while sitting in the incidents of felonious sexual assault occurred when VM spent a weekend at the same age as VM and the two children were friends. The first and second defendant have been friends since childhood. The defendant has a child the physical contact to another . . . .” Thus, the elements of simple assault under p. 3 such person “[p]urposely or knowingly causes bodily injury or unprivileged RSA 631:2-a, I(a) provides that a person is guilty of simple assault if

touching,” the mens 632-A:1, IV (Supp. 2010). Because RSA 632-A:1, IV requires an “intentional construed as being for the purpose of sexual arousal or gratification.” RSA contact includes only that aforementioned conduct which can be reasonably parts, including emissions, tongue, anus, breasts, and buttocks. Sexual through clothing, or otherwise, of the victim’s or actor’s sexual or intimate thirteen. “‘Sexual contact’ means the intentional touching whether directly, as felonious sexual assault by means of sexual contact with a victim under thirteen. RSA 632-A:3, III. For purposes of our analysis, we will refer to this who is not the legal spouse of the actor; and (3) who is under the age of felonious sexual assault are: (1) engaging in sexual contact; (2) with a person legal spouse who is under thirteen years of age.” Thus, the elements of assault if such person “[e]ngages in sexual contact with a person other than his 3 RSA 632-A:3, III provides that a person is guilty of felonious sexual

sexual assault). 132 N.H. 472, 475 (1989) (finding that purposely is the mens rea for felonious sexual contact with a victim under thirteen is purposely. See State v. Pond,

the second part. we decide this case based upon the first part of this test, we need not address offense is embraced within the legal definition of the greater offense. Because begin our analysis with the first part of the test to determine whether the lesser exercise of discretion. See State v. Lambert, 147 N.H. 295, 296 (2001). We determination and we, therefore, review the second part for an unsustainable greater offense. Id. The trial judge is best suited to make this factual provide a rational basis for a conviction on the lesser offense rather than the factual inquiry; namely, whether the record contains evidence that would Therefore the first part is subject to de novo review. The second part is a charged offense. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). offense for which the instruction is sought is a lesser-included offense of the committed it in the process of committing the offense charged. State v. Mallar The first part requires us to consider a legal question; namely, whether the the lesser offense rather than the greater offense. Thomas, 154 N.H. at 192. evidence adduced at trial must provide a rational basis for a finding of guilt on elements of each offense without reference to the evidence. Id. Second, the Mallar, 127 N.H. at 820. This inquiry entails a comparison of the statutory include any elements that are different from the elements of the greater offense. Thomas, 154 N.H. 189, 192 (2006). In other words, the lesser offense must not must be embraced within the legal definition of the greater offense. State v. offense instruction turns upon two distinct inquiries: first, the lesser offense 127 N.H. 816, 820 (1986). Whether a defendant is entitled to a lesser-included

An offense is lesser-included if a person must necessarily have p. 4 In support of his argument, the defendant cites Dukette v. Perrin

age of thirteen. See prove the act was unprivileged but only that it was against a victim under the under the age of thirteen is there any mention of privilege. The State need not defining felonious sexual assault by means of sexual contact with a victim because it is unprivileged. In fact, nowhere in the section of the statute 4 because the victim is under the age of thirteen. The contact is not proscribed age of thirteen. The sexual contact that RSA 632-A:3, III proscribes is illegal felonious sexual assault by means of sexual contact with a victim under the 1534, 1536. Unlike in Dukette, felonious sexual assault by means of sexual convicted. Specifically, “unprivileged physical contact” is not an element of the absence of consent, as an element. See Dukette, 564 F. Supp. at 1533, within the variant of felonious sexual assault of which the defendant was aggravated felonious sexual assault included unprivileged physical contact, i.e., We disagree. Not all of the elements of simple assault are contained 632-A:3, III. The victim in Dukette was an adult and the charged variant of sexual assault by means of sexual contact with a victim under thirteen, RSA application of physical force, RSA 632-A:2, I(a) (Supp. 2010), and felonious important distinction between aggravated felonious sexual assault by means of sexual assault by means of application of physical force. There is, however, an under New Hampshire law, is a lesser-included offense of aggravated felonious Supp. 1530, 1536 (D.N.H. 1983), in which the court ruled that simple assault,

sexual contact with a victim under the age of thirteen. simple assault differ from the elements of felonious sexual assault by means of within the charged variant of felonious sexual assault because the elements of State v. Burke RSA 632-A:3, III. Thus, simple assault is not embraced simple assault, “includes all physical contact not justified by law or consent.” under the age of thirteen. “Unprivileged physical contact,” as it pertains to definition of felonious sexual assault by means of sexual contact with a victim contained within the definition of simple assault is embraced within the The defendant argues that the element of “unprivileged physical contact”

physical contact.” to such contact, the felonious sexual assault statute embraces unprivileged occurs in daily living and by proscribing contact of a person unable to consent Thus, the defendant argues, “By proscribing contact outside what normally to consent to sexual contact due to immaturity, see, e.g., RSA 626:6, III (2007). current of life,” State v. Smith, 127 N.H. 433, 439 (1985), are generally unable to consent to ordinary contacts which are reasonably necessary to the common the defendant’s argument turns on the fact that children, although “assumed thirteen prohibits contact that is not justified by law or consent. The crux of sexual assault by means of sexual contact with a victim under the age of

, 153 N.H. 361, 364 (2006). The defendant argues that felonious

(2) causing unprivileged physical contact to another. RSA 631:2-a, I(a), for the purposes of this case, are (1) purposely or knowingly consent or will of the child [i]s irrelevant. p. 5 We agree, instead, with the reasoning of the Iowa Supreme Court in State

Court of Appeals in United States v. Williams not a lesser included offense when the victim [i]s a child and the The defendant further relies upon the reasoning of the Eleventh Circuit act by force or against the will of the other participant, assault [is] the third degree when that violation involved commission of a sex while assault may be a lesser included offense of sexual abuse in

force and against the child’s will.” Id. at 475. The court disagreed, stating that defendant herein, urging that “any sex act with a child must necessarily be by The defendant in Constable offered an argument similar to that of the offenses of sexual abuse in the second degree. Constable, 505 N.W.2d at 477. and assault with intent to commit sexual abuse were not lesser-included v. Constable, 505 N.W.2d 473 (Iowa 1993). The court held that simple assault

Eleventh Circuit’s approach. included an element of intent to do bodily harm. Id includes the element of lack of consent or unprivileged physical contact. See. We decline to adopt the consent. Rather, the court focused upon whether abusive sexual contact cases are all distinguishable, because each involved a charged offense which its analysis the court did not address the significance of the element of lack of The defendant also cites several cases from other jurisdictions. Those greater offense does not include lack of consent as an element. Id. However, in Williams, 197 F.3d 1091, 1096 (11th Cir. 1999). Like RSA 632-A:3, III, the abusive sexual contact with a child under the age of twelve. United States v. including offensive touching as an element, is a lesser-included offense of In Williams, the Eleventh Circuit found that assault, defined as battery and

victim”). that “[t]he sexual contact [was] accomplished without the consent of the required a finding that “force or coercion [was] used to accomplish the act” or 315138, at *3 (Tenn. Crim. App. 2004) (conviction for offense of sexual battery to engage in the sexual act or sexual conduct”); State v. Ogundiya, 2004 WL should have known that he or she did not have the complainant’s permission misdemeanor sexual abuse required a finding “that the defendant knew or United States, 772 A.2d 240, 244-45, 246 (D.C. 2001) (conviction for offense of “[t]hat the sexual contact was without the victim’s permission”); Mungo v. (conviction for offense of abusive sexual contact required a finding by the jury United States v. Mays, 514 F. Supp. 2d 1298, 1300, 1301 (M.D. Fla. 2007)

offense of felonious sexual assault under RSA p. 6 632-A:3, III. assault by means of application of physical force, is not a lesser-included although perhaps a lesser-included offense of aggravated felonious sexual physical contact as an element. RSA 632-A:3, III. Thus, simple assault, contact with a victim under the age of thirteen does not include unprivileged 6

Affirmed

DALIANIS, C.J., and DUGGAN, CONBOY and LYNN, JJ., concurred.

for an instruction on simple assault. Accordingly, the trial court did not err in denying the defendant’s request

Id. at 47 p. 6 6.