Defendant has engaged in sexual contact with a person other than his legal spouse who is under 13 years of age. On this ground he was convicted by Rockingham Superior Court of felonious sexual assault under New Hampshire Criminal Code, Section 632-A:3, III.
The Superior Court affirmed the judgment of the initial trial court.
In order a defendant to be entitled to a lesser-included offense there must be satisfied following conditions: (a) lesser offense must be integral part of the greater offense and only include elements of crime peculiar to the latter; (b) the evidence of the lesser offense must have a rational basis for a finding of guilt ton this regard. The second condition has to do with a factual inquiry; “namely, whether the record contains evidence that would provide a rational basis for a conviction on the lesser offense rather than the greater offense. The trial judge is best suited to make this factual determination and an appellate court, therefore, reviews the second part for an unsustainable exercise of discretion”
Section 632-A:1, IV of the New Hampshire Criminal Code requires proof of malicious intent [mens rea] for the sexual assault to be felonious one where unprivileged physical contact may have occurred. But “unprivileged physical contact is not an element of felonious sexual assault by means of sexual contact with a victim under the age of thirteen. …simple assault is not embraced within this variant of felonious sexual assault because the elements of simple assault differ from the elements of felonious sexual assault by means of sexual contact with a victim under the age of thirteen”
Defendant brought an appeal contending that the trial court erred in denying his request for a lesser-included-offense as in New Hampshire Criminal Code, section 631:2-a, I (a).
The court held that the lesser offense was not integral part of the legal definition of the greater offense. The sexual intercourse proscribed in New Hampshire Criminal Code, Section 632-A:3, III, was felonious because the victim was under the age of thirteen and unprivileged because the act has been committed with a person who was not in marriage with defendant. “Simple assault was not embraced within the charged variant of felonious sexual assault because the elements of simple assault differed from the elements of felonious sexual assault by means of sexual contact with a victim under the age of thirteen”.