State v. O'Leary , 128 N.H. 661 ( 1986 )

Batchelder, J., with whom Brock, J.,

joins with respect to the jury instruction issues, concurring in the result: Under State law, the trial court erred in instructing the jury not to concern itself with the issue of penetration because the defendant had admitted penetration. This court compounds that error by holding that the trial court properly predicated its instruction on defendant’s admission.

Sexual penetration is an element of the crime of aggravated felonious sexual assault, and the State must prove each element of the offense beyond a reasonable doubt. RSA 625:10. The defendant has a “right to have the jury determine whether the State met its burden of proof on all the elements required to support a conviction.” State v. Goodwin, 118 N.H. 862, 869, 395 A.2d 1234, 1238 (1978); see also State v. LeClair, 118 N.H. 214, 221, 385 A.2d 831, 835 (1978). Under our State Constitution, fact-finding is the domain of the jury, not the judge. See N.H. CONST. pt. I, art. 15; State v. Sands, 123 N.H. 570, 618, 467 A.2d 202, 33 (1983) (Batchelder, J., dissenting). It is worth noting that in United States v. Terry, 446 F.2d 579 (9th Cir.), cert. denied, 404 U.S. 946 (1971), relied on by the court, the trial judge “reminded the jury that they were the sole and exclusive judges of the facts and that they had a right to disregard appellant’s testimony if they so desired” immediately after commenting on the evidence. Id. at 582. In the present case, the trial court’s comments were improper. New Hampshire courts should not indulge in the practice of commenting upon the evidence in the charge to the jury in criminal cases, see generally, R. McNamara, 2 New Hampshire Practice, Criminal Practice and Procedure § 821 (1980), not even when the defendant has admitted facts.

However, I concur in the result today because I find that the trial court’s error was harmless. In the context of a criminal case, error requires reversal unless it appears beyond a reasonable doubt that the error was harmless. State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976). In this case, in addition to the uncontroverted admission of penetration by the defendant, the victim’s testimony and physical evidence indicated that there had been penetration.

I do not reach the issue dealing with the withdrawal of the plea bargain offer because I do not believe that it has been preserved.