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State v. Hilton12/16/1999
The defendant, Mark J. Hilton, was convicted of kidnapping, see RSA 633:1 (1996), and aggravated felonious sexual assault, see RSA 632-A:2 (1996) (amended 1998). On appeal, he challenges orders of the Superior Court (Mohl, J.), which denied his motions: (1) to depose the victim and the investigating police officers pursuant to RSA 517:13, II(b)(1997); (2) for a bill of particulars; and (3) to allow access to the victim's therapy records. The defendant also argues that, even if the records were properly withheld from trial counsel, they should have been disclosed to appellate counsel. We affirm.
Viewed most favorably to the State, the evidence at trial supports the following facts. On April 4, 1996, at approximately 7:00 p.m., the victim left work and walked to her car. As she neared her car, the defendant walked toward her, placed himself directly behind her, and braced himself against her. The victim asked what he wanted; he replied, "What do you want?" The victim opened the car door slightly, but the defendant pulled the door all the way open. Confining the victim between the door and the car body, the defendant placed one hand across her breast, reached under her coat, up her skirt, and grabbed her crotch with the other hand. He then penetrated her vagina through her nylons with his finger, which he moved "back and forth." After the defendant threatened the victim, he forced her into the car.
The defendant crawled into the passenger's seat and ordered the victim to drive him to Portsmouth. When she refused, he ordered her to drop him off at "the pike." Fearing for her safety, she pulled into a gas station, jumped from the car and screamed for help. The defendant then ran from the scene. Later that night, the victim gave a written statement to police but did not mention that she had been digitally penetrated. She did, however, make clear that the defendant touched her breast and grabbed her crotch. In the ensuing months, she identified the defendant as her assailant, and he was indicted for kidnapping. The defendant sought a bill of particulars because the indictment, which alleged that he confined the victim "with the purpose of committing a sexual assault or other act of lewdness," failed to identify the specific offense he intended to commit. He also sought to depose the victim regarding her identification, and her description of his unprivileged sexual contact. The trial court denied both motions.
In two interviews subsequent to her initial statement to the police, the victim revealed that the defendant had digitally penetrated her. She first disclosed the penetration during an interview with her employer's workers' compensation carrier. In February 1997, she gave a more detailed statement to the prosecutor. Based on her statements, the defendant was indicted for aggravated felonious sexual assault. See RSA 632-A:2. He renewed his motion to depose the victim and also sought to depose the police officers who initially interviewed her. He argued that the depositions were necessary to investigate the circumstances surrounding the delayed disclosure of digital penetration and to explore whether the police investigation should have elicited such conduct. The trial court denied the motion, ruling that the victim had not given inconsistent statements and that the State had immediately notified the defendant of the penetration allegation and turned over all discovery material concerning it.
At trial, the defendant argued that any sexual penetration was incidental to the struggle, and therefore he lacked the requisite intent for aggravated felonious sexual assault. The victim, however, testified that the defendant's fingers partially penetrated her vagina, and moved in a
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