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State v. Ramos3/17/2003
ent or by the element of surprise, was able to cause sexual penetration with the other person before that person had the adequate chance to flee or resist.
The defendant's requested instruction, which the trial court denied, included the following language:
To prove lack of consent, the State must show that the victim resisted to the extent of her ability under the circumstances at the time. The victim is not required to risk serious personal injury that may be threatened or she may fear. An attempt to escape, an outcry or an attempt to resist would be evidence that the victim did not consent. The resistance must show a lack of consent. Resistance by mere words is not enough. Resistance must be by acts. However, the victim is not required to resist to the utmost of her physical strength if she reasonably believes that resistance would result in serious personal injury.
As an initial matter, this portion of the defendant's requested consent instruction does not correctly state the law and was properly excluded by the trial court. See Jackson, 141 N.H. at 154-55; see also State v. Ayer, 136 N.H. 191, 195 (1992). Indeed, our cases have expressly disapproved of similar blanket language relating to physical resistance. See, e.g., Jackson, 141 N.H. at 154. The question is only "whether a reasonable person in the circumstances would have understood that the victim did not consent." Id. (quotation omitted). The instruction is also misleading because there are circumstances, as in this case, where a victim makes no attempt at physical or verbal resistance, but the victim clearly does not consent to the assault. See id.
In contrast, viewing the trial court's entire charge to the jury, we find the trial court properly instructed the jurors on the elements of the offense charged. See RSA 632-A:2, I (i).
Finally, the trial court's failure to give the instruction was not reversible error because it caused no prejudice to the defendant. As the trial court correctly realized, if the jury found the State proved all elements of the charged variant of aggravated felonious sexual assault, it would have to find the victim did not consent. Likewise, if the jury found the State did not prove the element of concealment or surprise, the jury would be required to acquit the defendant.
Affirmed.
BROCK, C.J., and BRODERICK, DALIANIS and DUGGAN, JJ., concurred.
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