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State v. Ramos3/17/2003
Grafton
Argued: January 8, 2003
The defendant, Jerry Lee Ramos, appeals his convictions for burglary, see RSA 635:1 (1996), and aggravated felonious sexual assault through concealment or the element of surprise, see RSA 632-A:2, I(i) (Supp. 2002), following a jury trial in the Superior Court (Smith, J.). On appeal, he argues the trial court erred when it refused to give the jury an instruction on his theory of defense, which was consent. We affirm.
The jury was presented with the following testimony at trial. In June 1999, the defendant and the victim lived in neighboring apartment buildings in Lebanon. The victim was a single mother, who, at the time of the assault, was taking medication for a sleeping disorder.
According to the victim's account of events, around midnight on June 2, 1999, after putting her children to bed and doing some household chores, she went outside her apartment to sit on the front steps and have a cigarette. While the victim was smoking, the defendant walked by, called her "gorgeous" or "beautiful" and asked her " hat was doing out so late." The victim, having had uncomfortable interactions with the defendant in the past, immediately went back inside her building. Once inside, she shut the doors to her apartment, turned out the lights and went to bed.
Because the night was hot and there was a window fan in the victim's bedroom, her children were already sleeping in her bed. She explained that she had taken a sleeping pill, may have had a drink, and had gone to sleep in the bedroom with her children. She awoke to find a man lying on top of her and penetrating her vagina as he engaged in sexual intercourse. After the assault the man left the apartment, but the victim chose not to call the police because she did not want to alarm the children and her neighbors. She notified the police the following day, when her friend and a person at a women's crisis center encouraged her to do so.
According to the defendant's account of events, when he spoke with the victim outside her apartment, she invited him inside for a smoke. Once inside, the defendant and the victim smoked marijuana together, and the victim invited him into her bedroom where they engaged in consensual sexual intercourse. The defendant said that, when the police asked him about the alleged assault, he denied the encounter because he did not want his wife to learn of his infidelity.
Prior to trial, the defendant gave the State notice of his consent defense and, at the close of the evidence at trial, he requested a jury instruction on consent. The trial court denied the request, ruling that the variant of aggravated felonious sexual assault under which the defendant was charged, penetrating the victim through concealment or the element of surprise, negated the need for a consent instruction.
The trial court reasoned that for the jury to find that penetration occurred only through the defendant's concealment or by surprise, it necessarily would have to find the victim did not consent to such penetration. This is because, if the jury found penetration occurred in any other manner, it would have to find the defendant not guilty of the variant charged. Similarly, the burglary offense was contingent upon this specific variant of aggravated felonious sexual assault through concealment or by surprise. The trial court, therefore, instructed the jury on the elements of both burglary and aggravated felonious sexual assault through concealment or surprise, and the jury returned guilty verdicts on each charge. This appeal followed.
The defendant contends the trial court's failure to instruct the jury on his consent defense is
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