2011-546, State of New Hampshire v. Joseph Bakunczyk

After a jury trial, the defendant, Joseph Bakunczyk, was

Adam Bernstein ___________________________ on the brief, and Mr. Chadwick orally), for the defendant. Bernstein, Mello & Chadwick, PLLC and THE SUPREME COURT OF NEW HAMPSHIRE

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

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as aggravated felonious sexual assault without penetration, see p. 2 First, unlike the act proscribed for commission of the more serious offense of Several features of this statute lead us to reject the defendant’s argument.

or gratification.

construed as being for the purpose of sexual arousal

different things. Fischer v. Hooper that aforementioned conduct which can be reasonably and that when the legislature uses two different words, it generally means two breasts, and buttocks. Sexual contact includes only

legislature is presumed not to use words that are superfluous or redundant, or intimate parts, including emissions, tongue, anus,

construction that all words of a statute are to be given effect, that the clothing, or otherwise, of the victim’s or actor’s sexual a construction runs afoul of the well-recognized principles of statutory the intentional touching whether directly, through intended no differentiation between “sexual parts” and “intimate parts.” Such private or discreet”). RSA 632-A:1, IV defines “sexual contact” as: kept private and discreet. See “sexual parts,” to mean parts of the body that are deeply personal and usually

make it duplicative of the word “sexual,” thus suggesting that the legislature relating to, or befitting deeply personal . . . matters or matters usu[ally] kept

or intimate part” as defined by RSA 632-A:1, IV (Supp. 2011). We conclude that the legislature intended “intimate parts,” as distinguished from Gingras, 162 N.H. 633, 639 (2011). Giving effect to these principles, we system; esp, 143 N.H. 585, 588 (1999); see State v.

limited to touching of the “genitalia.” Compare

“engaged in or marked by sexual relations”), construing it in this fashion would connotation, see Webster’s, supra at 1184 (definition of “intimate” includes Second, although the word “intimate” can have a directly sexual argues, however, that the upper thigh between the legs is not a “sexual

: the external genital organs”).

946 (unabridged ed. 2002) (“genitalia” means “the organs of the reproductive A:3, III and RSA 632-A:1, IV; see Webster’s Third New International Dictionary

(2007), sexual contact in violation of the felonious sexual assault statute is not

upper thigh between her legs in close proximity to her genitals. He sufficient to support a finding that he touched the six-year-old victim’s her clothing . . . .” The defendant does not dispute that the evidence was

sexual contact with [the victim] . . . by touching her genital area under challenges his conviction on the indictment alleging that he “engaged in p. 3 IV. See

“intimate part” of her body within the meaning of that term in RSA 632-A:1, A f f i r m e d concluding that the victim’s inside upper thigh adjacent to her genitals was an Applying this standard to the facts of this case, we have no difficulty in verdict on the indictment at issue. touching an “intimate part.”). Accordingly, there is no basis to upset the jury’s defendant placing his hand on the victim’s upper inner thigh area constituted

an objectively reasonable sense of personal dignity, privacy, and modesty.

proximity to the primary erogenous areas” are intimate parts and that the

protection from improper touching.”); State v. Harstad – whether clothed or unclothed – a body part that our law views as requiring DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

body the touching of which, for sexual arousal or gratification, is offensive to We, therefore, conclude that an “intimate part” means any part of the (Wash. Ct. App. 2009) (A jury may determine that “parts of the body in close items specifically listed”)., 218 P.3d 624, 628-29

‘inner thigh’ is, under our contemporary views of personal integrity and privacy Com. v. Lavigne, 676 N.E.2d 1170, 1173 (Mass. App. Ct. 1997) (“The question are similar in character to the enumerated ones. See

exhaustive,” but items covered are limited to “those of the same type as the 150 N.H. 1, 5-6 (2003) (“term ‘including’ indicates that the factors listed are not 160 N.H. 445, 450 (2010); Conservation Law Found. v. N.H. Wetlands Council,

areas of the body beyond the specific parts enumerated, provided the areas in the genitals and indicates that the proscribed conduct can involve touching of “including” both confirms that “sexual contact” is not confined to touching of of the reproductive system (e.g., tongue, anus, buttocks) preceded by the word Finally, the statute’s specific listing of parts of the body that are not part