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State v. Ramos3/17/2003
reversible error because he offered evidence to support that defense by his own testimony at trial. The defendant is correct that consent is a theory of defense under our Criminal Code, see RSA 626:6 (1996), and that a requested jury instruction on a defendant's theory of defense must be given if it is supported by some evidence, see State v. Aubert, 120 N.H. 634, 635 (1980). It appears in this case, however, that the defendant has mistakenly characterized his theory of the case as a theory of defense. See, e.g., State v. Bruneau, 131 N.H. 104, 117-18 (1988).
To use consent as a theory of defense, the defendant had to present evidence admitting the substance of the allegations against him, but pointing to facts which otherwise excused, exonerated or justified his actions, precluding criminal liability. See id. at 117. In other words, the defendant had to present evidence showing a different legal significance for the facts alleged against him, in order to use consent as his theory of defense. See id. at 118. In contrast, to have presented consent as his theory of the case, the defendant only had to present evidence of a different factual scenario than that presented by the State, and then argue how the facts and evidence should be evaluated or interpreted by the jury. See id. This is what happened here.
The defendant's consent theory admitted to sexually penetrating the victim. However, it addressed no other substantive facts alleged in the indictment. In fact, the defendant's consent theory specifically denied the element of penetration caused by his concealment or surprise by arguing he was invited into the home to engage in consensual sex. This theory presented an entirely different factual scenario for the jury to evaluate and turned the trial into a credibility contest between the defendant and the victim, which is not a legal defense to any charge. See State v. Guaraldi, 124 N.H. 93, 97 (1983).
The trial court may give an instruction on a defendant's theory of the case whenever it is necessary to assist the jury in resolving the legal issues in a case and reaching a verdict. See Bruneau, 131 N.H. at 118. Whether an instruction is necessary in a particular case, however, is an issue reserved to the trial court's sound discretion. See State v. Seymour, 140 N.H. 736, 744, cert. denied, 519 U.S. 853 (1996). On appeal, we review the trial court's jury charge in its entirety to determine if it fairly covers the issues and law in a case. See State v. Jackson, 141 N.H. 152, 154 (1996). We will only reverse a jury verdict for a trial court's failure to charge a particular instruction if that failure was an unsustainable exercise of discretion. See id.; see also State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).
Assuming without deciding that the defendant was entitled to a jury instruction on consent, we find the trial court's decision not to give the defendant's requested instruction on that theory was sustainable. The trial court charged the jury on the elements of aggravated felonious sexual assault by concealment or surprise by instructing:
The defendant is charged with aggravated felonious sexual assault. The definition of aggravated felonious sexual assault has three parts. The State must prove each part of this definition beyond a reasonable doubt. Thus, the State must prove: One, that the defendant acted knowingly; two, that the defendant had sexual penetration with another person. Sexual penetration means any intrusion, however slight, by any part of the defendant's body or any object used by the defendant into the genital opening of the victim's body. And, three, that the defendant, through concealm
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