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State v. Flynn9/1/2004
Rockingham
Argued: July 15, 2004
The defendant, John Flynn, was convicted by a jury of two counts of aggravated felonious sexual assault, see RSA 632-A:2, I(i) (1996) (amended 2003). The defendant argues that the Trial Court (McHugh, J.) erred by: (1) not dismissing the indictments due to insufficient evidence; (2) not granting his motion to dismiss two indictments because they were multiplicitous; (3) not granting his motion to dismiss an indictment because it was not the result of a unanimous grand jury; (4) limiting his right to cross-examine the victim; and (5) not granting his motion for a new trial based upon ineffective assistance of counsel. We affirm.
The record reflects the following facts. In the late evening of April 11, 2002, the defendant, who had been drinking that night at a friend's house, went to the victim's home because he feared being stopped by the police if he continued to drive. The defendant was a friend of the victim's husband and knew the victim through this association. The defendant had been at the victim's home on occasions prior to that evening. The defendant drank one or two beers that he had brought with him and at some point, while her husband was in another room, asked the victim if she would perform oral sex on him. The victim declined, and soon thereafter, left the room to find her husband to get ready for bed. The victim and her husband decided to let the defendant stay so he would not have to risk driving while intoxicated.
The victim and her husband slept on an air mattress, covered with a sheet, positioned in the center of their living room. Adjacent to the mattress was a couch, on which the defendant was resting. The husband slept on the side of the mattress next to the couch, while the victim slept on the opposite side. The victim slept in a t-shirt under several layers of blankets. Prior to the defendant's arrival the victim had taken fifty milligrams of Trazodone, an anti-depressant, which she used to help her fall asleep. After talking with the defendant for a while, the victim and her husband fell asleep.
At approximately 4:00 a.m. the victim awoke because of an uncomfortable feeling in her genital area and found the defendant's head between her knees. She was on her back with her knees tilted sideways, separated by the defendant's right hand. She observed that the defendant's mouth and chin were wet, and that the defendant was dressed only in a shirt and boxer shorts. She also observed a wet spot on the defendant's boxer shorts. The defendant told the victim to stay quiet and not wake up her husband; however, the victim screamed and tried to wake up her husband, who had apparently slept through the entire incident.
After waking her husband, the victim discovered that she had a "large amount of fluid" on her vaginal area and demanded to know from the defendant what it was. The defendant claimed that he did not know, and that he must have drooled. The victim and her husband told the defendant to leave their home and then contemplated calling the police. However, because they had allowed the defendant, who was eighteen, to drink beer in their home, they feared calling the police; instead, they decided to preserve the evidence from the defendant's sexual assault themselves. The victim took toilet tissue paper and a Q-Tip and wiped up the bodily fluid that she had discovered on the outside of her vaginal area. She placed both in a plastic bag, which her husband then placed in the refrigerator or freezer. The victim then showered. Later, her husband observed a spot on the couch where the victim sat shortly after the assault and wiped it with a wet Q-Tip. He also observed a stain on the sheet cover
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