State v. Hannon, No. 2003-284 (NH 2/22/2005)
| Decision Date | 22 February 2005 |
| Docket Number | No. 2003-284,2003-284 |
| Parties | THE STATE OF NEW HAMPSHIRE v. EDWARD HANNON |
| Court | New Hampshire Supreme Court |
Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
David Rothstein, deputy chief appellate defender, and Dawnangela Minton, assistant appellate defender, of Concord (Ms. Minton on the brief, and Mr. Rothstein orally), for the defendant.
Following a jury trial in Superior Court (Groff, J.), the defendant, Edward Hannon, was convicted of numerous sexual assaults against a juvenile, who was eight years old when the assaults began. He appeals three of his convictions on the basis that one "pattern" indictment and two discrete sexual assault indictments involved not only the same victim and type of sexual act, but also common locations and overlapping time frames. The defendant contends that as a result of being charged and prosecuted under the foregoing indictment scheme, his rights to be free from double jeopardy and to due process under both the State and Federal Constitutions were violated. Further, with respect to his convictions for other "pattern" offenses, he argues that his State and federal constitutional rights to jury unanimity were violated because the trial court did not require the State to allege any predicate offenses. We affirm.
In August 2001, the State obtained eighteen indictments against the defendant, consisting of eleven allegations of aggravated felonious sexual assault (AFSA), see RSA 632-A:2 (Supp. 2004), six allegations of AFSA "patterns," see RSA 632-A:2, III (1996), and one allegation of attempted AFSA, see RSA 632-A:2; RSA 629:1 (1996). Prior to trial, the defendant moved to dismiss the indictments or, alternatively, to require the State to provide a bill of particulars, arguing that: (1) the offenses were only minimally described in the indictments such that he could not differentiate between the various counts of AFSA and prepare an adequate defense; (2) the "pattern" indictments did not ensure jury unanimity because they contained no allegations regarding the predicate assaults comprising the "patterns"; and (3) several of the indictments alleging discrete acts of AFSA could serve as predicate offenses for certain "pattern" indictments in violation of his right to be free from double jeopardy. He also moved to quash nine indictments, contending that: (1) six indictments failed to establish the offense of a "pattern" of AFSA because the State did not include any allegations pertaining to the predicate assaults comprising the "patterns"; (2) the six "pattern" indictments failed to provide him sufficient notice of the offense with which he was charged because certain facts, such as the number of times he allegedly assaulted the victim, were not included in the indictments; and (3) three indictments charging discrete acts of AFSA could serve as the underlying offenses for certain "pattern" indictments in violation of his right to be free from double jeopardy. In an addendum to his motion to quash, the defendant further argued that "the special circumstances where the State may attempt to `simultaneously pursue convictions for a pattern sexual assault under RSA 632-A:2, III and for sexual assaults under RSA 632-A:2 or :3 for acts perpetrated against the same victim during a common period of time' require the additional protections not found necessary in [State v. Fortier, 146 N.H. 784 (2001)]." The trial court denied both of the defendant's motions.
Before trial, the State nol prossed two of the AFSA indictments, and following the close of evidence, the court granted the defendant's motion to dismiss one "pattern" AFSA indictment and one AFSA indictment. The jury convicted the defendant on all remaining charges, which consisted of five "patterns" of AFSA, eight discrete counts of AFSA and one count of attempted AFSA. This appeal followed.
The defendant raises several double jeopardy arguments with respect to three indictments, one involving a "pattern" and two involving discrete acts of sexual assault. We first address his arguments under the State Constitution, and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983).
The "pattern" indictment alleged that on or between January 1, 1995, and October 16, 1996, the defendant,
in various rooms at 53 Anvil Drive . . . did commit the crime of [AFSA] in that he knowingly engaged in a pattern of sexual assault against another person, not his legal spouse, who was less than sixteen (16) years of age, to wit: the said Edward J. Hannon, Jr. committed more than one (1) act of sexual assault, to wit: sexual penetration against [the victim] who was less than thirteen (13) years of age, by knowingly inserting his penis into [the victim's] mouth . . . .
One of the challenged discrete AFSA indictments (the bedroom indictment) alleged that between October 17, 1994, and October 16, 1995, the defendant,
while in a bedroom at 53 Anvil Drive . . . did commit the crime of [AFSA] in that he knowingly engaged in sexual penetration with [the victim], a juvenile female who was less than thirteen (13) years of age at the time, by inserting his penis into her mouth . . . .
The other discrete AFSA indictment (the bathroom indictment) alleged that between September 1, 1994, and October 16, 1996, the defendant,
while in a bathroom at 53 Anvil Drive . . . did commit the crime of [AFSA] in that he knowingly engaged in sexual penetration with [the victim], a juvenile female who was less than thirteen (13) years of age at the time, by inserting his penis into her mouth, after having gained entry into the bathroom through a door which [the victim] had locked . . . .
The defendant contends that the trial court erred in allowing the State to simultaneously pursue convictions for these three offenses because the two alleged discrete sexual assaults were of the same type as those alleged in the "pattern" indictment; they were against the same victim; and they occurred during overlapping periods of time in common locations. He argues that this indictment scheme improperly allowed jurors to use evidence of the charged discrete assaults to find one or more of the predicate offenses necessary to convict him of the conduct charged in the "pattern" indictment. He also argues that the trial court erred in instructing the jury because it failed to specifically direct the jurors not to use evidence of the discrete acts of AFSA to find predicate offenses necessary to convict him on the "pattern" indictment. Finally, he contends that the trial court erred by sentencing him on all three charges.
RSA 632-A:2, III provides:
A person is guilty of aggravated felonious sexual assault when such person engages in a pattern of sexual assault against another person, not the actor's legal spouse, who is less than 16 years of age. The mental state applicable to the underlying acts of sexual assault need not be shown with respect to the element of engaging in a pattern of sexual assault.
"Pattern of sexual assault" is defined as "committing more than one act under RSA 632-A:2 [AFSA] or RSA 632-A:3 [felonious sexual assault, hereinafter FSA], or both, upon the same victim over a period of 2 months or more and within a period of 5 years." RSA 632-A:1, I-c (Supp. 2004).
Accordingly, the pattern statute penalizes a person for engaging in a "pattern of sexual assault," which is the commission of at least two acts of sexual assault as described under 632-A:2 or 632-A:3 within a defined time frame. That individual acts of sexual assault are required for a "pattern" to occur under the statute, and that such acts would be unlawful under other sections of the Criminal Code, does not remove the pattern statute from the course of conduct category of offenses.
State v. Fortier, 146 N.H. 784, 790 (2001) (citations omitted).
The Double Jeopardy Clauses of both the United States Constitution and the New Hampshire Constitution protect an accused from twice being tried and convicted for the same offense. State v. Gosselin, 117 N.H. 115, 118 (1977); see N.H. CONST. pt. I, art. 16; U.S. CONST. amend. V. Double jeopardy concerns may arise in a variety of circumstances, the most common of which include: (1) the simultaneous prosecution of multiple charges for the same offense; and (2) the subsequent prosecution of a charge involving the same underlying conduct previously prosecuted by the State. State v. Nickles, 144 N.H. 673, 676 (2000). With respect to the first scenario, which applies to this case, the Double Jeopardy Clause of the New Hampshire Constitution precludes the State from pursuing multiple charges in a single prosecution when the charges comprise the same offense and the State seeks multiple convictions and punishments. Id.
The standard for determining whether multiple charges constitute the "same offense" for double jeopardy purposes is identical regardless of the particular scenario in which a double jeopardy challenge is raised. Two offenses will be considered the same unless each requires proof of an element that the other does not. The essential inquiry on this point is whether proof of the elements of the crimes as charged will in actuality require a difference in evidence. In making this inquiry, we review and compare the statutory elements of the charged offenses in light of the actual allegations contained in the indictments.
Id. at 677 (brackets, quotations and citations omitted).
Among the elements that the State must prove to a unanimous jury to obtain a conviction for a "pattern" offense are: (1) that the defendant engaged in more than one prohibited act under RSA 632-A:2 or 632-A:3; and (2) that the acts occurred "over a period of two months or more and within a period of 5 years." RSA 632-A:1, I-c; see Fortier, 146 N.H. at 791. Thus, to obtain a conviction...
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