State v. Ortiz

• Decision Date: 27 October 2011
• Docket Number: No. 2010–269.,2010–269.
• Citation: 34 A.3d 599,162 N.H. 585
• Parties: The STATE of New Hampshire v. Hector ORTIZ.
• Court: New Hampshire Supreme Court

162 N.H. 585

34 A.3d 599

The STATE of New Hampshire

v.Hector ORTIZ.

No. 2010–269.

Supreme Court of New Hampshire.

Argued: June 9, 2011.Opinion Issued: Oct. 27, 2011.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Dorothy E. Graham, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DALIANIS, C.J.

The defendant, Hector Ortiz, appeals his convictions by a jury on two counts of aggravated felonious sexual assault (AFSA), one of which alleged pattern AFSA, see RSA 632–A:2 (Supp.2010), one count of felonious sexual assault (FSA), see RSA 632–A:3 (Supp.2010), and one count of endangering the welfare of a child, see RSA 639:3 (2007). On appeal he argues that the Superior Court ( Groff, J.) erred by failing to dismiss the pattern AFSA indictment and making the sentence on the pattern AFSA charge consecutive to the sentence he received for the other AFSA charge after having initially informed him that the sentences would run concurrently. He also argues that the trial court committed plain error when it instructed the jury on the wrong mental state for the FSA charge and admitted certain lay testimony. We affirm.

I. Motion to Dismiss Pattern AFSA Charge

The defendant first argues that the trial court erred when it did not dismiss the pattern AFSA charge. At the close of the State's case, the defendant moved to dismiss this charge because the indictment failed to include the definition of a pattern, as set forth in RSA 632–A:1, I-c (2007). The State objected to the motion on the grounds that it was untimely, see Super. Ct. R. 98, and that, even if timely, the indictment adequately apprised the defendant of the crime with which he was charged. The trial court denied the motion, ruling that the indictment was not defective.

The defendant contends that the pattern indictment was defective under the State Constitution because it failed to contain all of the elements of the pattern variant of AFSA. See N.H. CONST. pt. I, art. 15. Part I, Article 15 of the State Constitution requires that an indictment describe the offense with sufficient specificity to ensure that the defendant can prepare for trial and avoid double jeopardy. State v. Ericson, 159 N.H. 379, 384, 986 A.2d 488 (2009). To be constitutional, the indictment must contain the elements of the offense and enough facts to notify the defendant of the specific charges. Id. “An indictment generally is sufficient if it recites the language of the relevant statute; it need not specify the means by which the crime was accomplished or other facts that are not essential to the elements of the crime.” Id.

The pattern variant of AFSA is set forth in RSA 632–A:2, III, which provides, in relevant part: “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.” Consistent with this statute, the pattern indictment alleged that on or between January 1, 1994, and May 19, 1996, the defendant committed AFSA “in that he knowingly engaged in a pattern of sexual assault with [the victim] ..., a juvenile female who was, at the time, less than thirteen years of age and not his legal spouse, by engaging in intercourse with her.”

The defendant argues that the indictment was defective because it did not also include the statutory definition of the word “pattern.” RSA 632–A:1, I-c defines a “pattern of sexual assault” as “committing more than one act under RSA 632–A:2 ... upon the same victim over a period of 2 months or more and within a period of 5 years.” The State counters that the defendant has waived or forfeited his challenge to the allegedly defective indictment because he did not timely raise the issue. See United States v. Lnu, 544 F.3d 361, 369 (1st Cir.2008) (“Because the defendant failed to raise the objection prior to trial, however, he has waived his right to argue defectiveness of the indictment on appeal.”). The defendant contends that the indictment's failure to allege an essential element of the charged offense deprived the trial court of subject matter jurisdiction and, therefore, he was free to raise it any time in the proceedings. See State v. Demesmin, 159 N.H. 595, 597, 992 A.2d 569 (2010); see also Com. v. Burns, 8 Mass.App.Ct. 194, 392 N.E.2d 865, 867 (1979). But see Com. v. Bell, 455 Mass. 408, 917 N.E.2d 740, 746 n. 6 (2009) (holding that because defendant did not bring pretrial motion contesting the indictment, his argument about its sufficiency was waived).

We first address the defendant's assertion that the indictment, which, for the purposes of this analysis, we assume was defective, deprived the trial court of subject matter jurisdiction. The United States Supreme Court has long held that defects in an indictment do not deprive a court of jurisdiction. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton, the Court expressly overruled its decision in Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), in which the court had held that a defective indictment deprived a court of jurisdiction. Id. The Court explained that jurisdiction refers to “the court's statutory or constitutional power to adjudicate the case.” Id. at 630, 122 S.Ct. 1781 (quotation omitted). “This latter concept of subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” Id. “[D]efects in an indictment,” by contrast, “do not deprive a court of its power to adjudicate a case.” Id. Rather, “the objection that the indictment does not charge a crime ... goes only to the merits of the case.” Id. at 631, 122 S.Ct. 1781 (quotation and brackets omitted).

Numerous state courts agree that defects in an indictment are not jurisdictional. See Ex parte Seymour, 946 So.2d 536, 538–39 (Ala.2006) (citing cases); see also State v. Spreadbury, 361 Mont. 253, 257 P.3d 392, 394 (2011). We also agree that a defective indictment does not deprive a trial court of its power to adjudicate a case. While a defect “may be error—or even constitutional error, ... the defect does not divest [a trial court] of the power to try the case.” Ex parte Seymour, 946 So.2d at 539 (citations omitted).

Having concluded any defect in the indictment did not deprive the trial court of subject matter jurisdiction, we next analyze whether the defendant challenged the indictment in a timely manner. Superior Court Rule 98(F) requires that all pretrial motions, other than discovery motions, be filed “not less than forty-five (45) calendar days prior to the scheduled jury selection date or within such other time in advance of trial as the Court may order for good cause shown or may provide for in a pretrial scheduling order.” The defendant's motion, brought in the middle of trial, after the State rested its case, was untimely under this rule. See United States v. Ramirez, 324 F.3d 1225, 1227 (11th Cir.2003) (per curiam) (challenges to defective indictment must be raised before trial or are deemed waived); Com. v. Lamont L., 438 Mass. 842, 784 N.E.2d 1119, 1122 (2003) (failing to object to defect in indictment before trial ordinarily waives any argument pertaining to defect); Fed.R.Crim.P. 12(b)(3)(B). We agree with numerous courts that the failure to raise this claim in a timely fashion does not preclude all appellate review, but rather confines our review to plain error. See United States v. Troy, 618 F.3d 27, 34 (1st Cir.2010); United States v. Sinks, 473 F.3d 1315, 1321 (10th Cir.2007); State v. Colon, 119 Ohio St.3d 204, 893 N.E.2d 169, 171 (2008), overruled on other grounds by State v. Horner, 126 Ohio St.3d 466, 935 N.E.2d 26 (2010).

The plain error rule allows us to consider errors not raised before the trial court. State v. Russell, 159 N.H. 475, 489, 986 A.2d 515 (2009). “A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court.” Sup.Ct. R. 16–A. “However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.” Russell, 159 N.H. at 489, 986 A.2d 515 (quotation omitted). To find plain error: “(1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation omitted). We have looked to federal plain error analysis for guidance in applying our plain error rule. Id. at 489–90, 986 A.2d 515.

We assume, for the purposes of this analysis, that the indictment was defective, and, thus, that the trial court erred. We hold, however, that because the second criterion of the plain error rule is not met, the defendant has failed to demonstrate that the trial court committed plain error by allowing the pattern indictment to stand.

“For the purposes of the plain error rule, an error is plain if it was or should have been obvious in the sense that the governing law was clearly settled to the contrary.” State v. Panarello, 157 N.H. 204, 209, 949 A.2d 732 (2008) (quotation omitted). “When the law is not clear at the time of trial and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.” Id. “ ‘Plain’ as used in the plain error rule is synonymous with clear or, equivalently, obvious.” Id. (quotation omitted).

The trial court's error in this matter could not have been “clear” or “unequivocally obvious” because this case presents an issue of first impression. See id. We have not been asked previously to decide whether a pattern indictment must specifically include the statutory definition of the word “pattern.” Accordingly, we find no plain error here.

II. Plain Error

We turn next to the defendant's...