2003-0284 STATE OF NH V. EDWARD HANNON

were violated. Further, with respect to his convictions for other “pattern” jeopardy and to due process under both the State and Federal Constitutions under the foregoing indictment scheme, his r ights to be free from double The defendant contends that as a result of being charged and prosecuted type of sexual act, but also common locations and overlapping time frames. two discrete s exual assault indictments involved not only the same victim and appeals three of his convictions on the basis that one “pattern” indictment and against a juvenile, who was eight years old when the assaults began. He defendant, Edward Hannon, was convicted of numerous sexual assaults BRODERICK, C.J. Following a jury trial in Superior Co urt (Groff, J.), the

Mr. Rothstein orally), for the defendant. Minton, assistant appellate defender, of Concord (Ms. Minton on the brief, and David Rothstein, deputy chief appellate defender, and Dawnangela

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

No. 2003 - 284 Hillsborough - sou thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

AFSA. This appeal followed. “patterns” of AFSA, eight discrete counts of AFSA and one count of attempted convicted the defendant on all remaining charges, which consisted of five dismiss one “pattern” AFSA indictment and one AFSA indictment. The jury following the close of evidence, the court granted the defendant’s motion to Before trial, the State nol prossed two of the AFSA indictments, and

N.H. 784 ( p. 2 2001)].” The trial court denied both of the defendant’s motion s. require the additional protections not found necessary in [State v. Fortier, 146 :3 for acts perpetrated against the same victim during a common period of time’ assault under RSA 632 - A:2, III and for sexual assaults under RSA 632 - A:2 or State may attempt to ‘simultaneously pursue convictions for a pattern sexual quash, the defendant further argued that “the special circumstances where the his right to be free from dou ble jeopardy. In an addendum to his motion to serve as the underlying offenses for certain “pattern” indictments in violation of indictments; and (3) three indictments charging discrete acts of AFSA could the number o f times he allegedly assaulted the victim, were not included in the notice of the offense with which he was charged because certain facts, such as “patterns”; (2) the six “pattern” indictments failed to provide him sufficient include any allegations pertaining to the predicate assaults comprising the failed to establish the offense of a “pattern” of AFSA because the Stat e did not He also moved to quash nine indictments, contending that: (1) six indictments “pattern” indictments in violation of his right to be free from double jeopardy. alleging discrete acts of AFSA could serve as predica te offenses for certain predicate assaults comprising the “patterns”; and (3) several of the indictments ensure jury unanimity because they contained no allegations regarding the AFSA and prepare an adequate defense; (2) the “pattern” indictments did not indictments such that he could not differentiate between the various counts of particulars, arguing that: (1) the offenses were only minimally described in the dismiss the indict ments or, alternatively, to require the State to provide a bill of see RSA 632 - A:2; RSA 629:1 (1996). Prior to trial, the defendant moved to “patterns,” see RSA 632 - A:2, III (1996), and one allegation of attempted AFSA, assault (AFSA), see RSA 632 - A:2 (Supp. 2004), six allegations of AFSA defendant, consisting of eleven allegations of aggravated fel onious sexual In August 2001, the State obtained eighteen indictments against the

allege any predicate offenses. We affirm. unanimity were violated because the trial court did not require the State to offenses, he argues that his State and federal constitutional rights to jur y p. 3 3

discrete assaults to find one or more of the predicate offenses necessary to indictment scheme improperly allowed jurors to use evidence of the charged during overlapping periods of time in common locations. He argues that this “pattern” indictment; they were against the same victim; and they occurred alleged discrete sexual assaults were of the same type as those alleged in the simultaneously pursue convictions for these three offenses because the two The defendant contends that the trial court erred in allowing the State to

victim] had locked . . . . having gained entry into the bathroom through a door which [the of age at the time, by inserting his penis into her mouth, after [the victim], a juvenile female who w as less than thirteen (1 p. 3 3) years [AFSA] in that he knowingly engaged in sexual penetration with while in a bathroom at 53 Anvil Drive . . . did commit the crime of

between September 1, 1994, and October 16, 1996, the defendant, The other discrete AFSA indictment (the bathroom ind ictment) alleged that

of age at the time, by inserting his penis into her mouth . . . . [the victim], a juvenile female who was less than thirteen (1 p. 3 3) years [AFSA] in that he knowingly engaged in sexual penetration with while in a bedroom at 53 Anvil Drive . . . did commit the crime of

alleged that between October 17, 1994, and October 16, 1995, the defendant, One of the challenged discrete AFSA indictments (the bedroom indictment)

mouth . . . . years of age, by knowingly inserting his penis into [the victim’s] penetration against [the victim] who was less than thirteen (1 p. 3 3) committed more than one (1) act of sexual assault, to wit: sexual sixteen (16) years of age, to wit: the said Edward J. Hannon, Jr. against another person, not his legal spouse, w ho was less than [AFSA] in that he knowingly engaged in a pattern of sexual assault in various rooms at 53 Anvil Drive . . . did commit the crime of

and October 16, 1996, the defendant, The “pattern” indictment alleg ed that on or between January 1, 1995,

(198 p. 3 3). and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231 - 33 sexual assault. We first address his arguments under the State Constitution, three indictments, one i nvolving a “pattern” and two involving discrete acts of The defendant raises several double jeopardy arguments with respect to

convictions and punishments. Id. when the charges comprise the same offense and the State seeks multiple precludes the State from pursuing multiple charges in a single prosecution case, the Double Jeopar dy Clause of the New Hampshire Constitution N.H. 673, 676 (2000). With respect to the first scenario, which applies to this underlying conduct previously prosecuted by the State. State v. Nickles, 1 p. 4 44 o ffense; and (2) the subsequent prosecution of a charge involving the same include: (1) the simultaneous prosecution of multiple charges for the same concerns may arise in a variety of circumstances, the most common of which see N.H. CONST. pt. I, art. 16; U.S. CONST. amend. V. Double jeopardy convicted for the same offense. State v. Gos selin, 117 N.H. 115, 118 (1977); the New Hampshire Constitution protect an accused from twice being tried and The Double Jeopardy Clauses of both the United States Constitution and

State v. Fortier, 1 p. 4 46 N.H. 784, 790 (2001) (citations omitted).

conduct category of offenses. Code, does not remove the pattern statute from the course of such acts would be unlawful under other sections of the Criminal are required for a “pattern” to occur under the statute, and that within a defined time frame. That indivi dual acts of sexual assault two acts of sexual assault as described under 632 - A:2 or 632 - A:3 a “pattern of sexual assault,” which is the commission of at least Accordingly, the pattern statute penalizes a person for engaging in

within a period of 5 years.” RSA 632 - A:1, I - c (Supp. 200 p. 4 4). FSA], or both, upon the same victim over a period of 2 months or more and RSA 632 - A:2 [AFSA] or RSA 632 - A:3 [felonious sexual assault, hereinafter “Pattern of sexua l assault” is defined as “committing more than one act under

in a pattern of sexual assault. assault need not be shown with respect to the element of engaging age. The mental state applicable to the underlying acts of sexual person, not the actor’s legal spouse, who is less than 16 years of such person engages in a pattern of sexual assault against an other A person is guilty of aggravated felonious sexual assault when

RSA 632 - A:2, III provides:

charges. Finally, he contends that the trial court erred by sentencing him on all three predicate offenses necessary to convict him on the “pattern” indictment. direct the jurors not to use evidence of the discrete acts of AFSA to find that the trial court erred in instructing the jury because it failed to specifically convict him of the conduct charged in the “pa ttern” indictment. He also argues p. 5 5

time, and not the specific assaults comprising the pattern.” Id. Thus, we itself, that is, the occurrence of more than one sexual assault over a period of at 791. To that end, “the essential culpable act, the actus reus, is the pattern continuing course of sexual assaults, not isolated instances.” Fortier, 146 N.H. In Fortier, we explained that the pattern statute criminalizes “a

conviction for either the bedroom or bathroom assault. g uilty verdict on the “pattern” charge would not necessarily sustain a conviction for the “pattern” offense. Moreover, the evidence needed to obtain a the same reason, evidence of the bathroom assault alone could not sustain a offense because a “pattern,” by definition, consists of multiple assaults. For the bedroom assault alone could not sustain a conviction for the “pattern” conviction on the bedroom assault was required. In other words, evidence of the “pattern” offense, more than just the evidence necessary to sustain a However, it is clear that f or a jury to have found the defendant guilty of

and in common locations. of time that overlapped the period of time alleged in the “pattern” indictment, 632 - A:2, I(l). Those indictments alleged that the acts occurred during periods the defendant inserted his penis int o the victim’s mouth in violation of RSA RSA 632 - A:2, I(l). The bedroom and bathroom indictments also alleged that mouth as alleged in the “pattern” indictment is an act of sexual assault under mouth more tha n once. The defendant’s insertion of his penis into the victim’s October 16, 1996, the defendant knowingly inserted his penis into the victim’s unanimous jury, among other things, that between January 1, 199 p. 5 5, and conviction for the “pattern” offense in this case, the State had to prove to a years.” RSA 632 - A:1, I - c; see Fortier, 146 N.H. at 791. Thus, to obtain a the acts occurred “over a period of two months or more and within a period of 5 in more than one prohibited act under RSA 632 - A:2 or 632 - A:3; and (2) that obtain a conviction for a “pattern” offens e are: (1) that the defendant engaged Among the elements that the State must prove to a unanimous jury to

Id. at 677 (brackets, quotations and citations omitted).

the actual allegations contained in the indictments. compare the statutory elements of t he charged offenses in light of difference in evidence. In making this inquiry, we review and elements of the crimes as charged will in actuality require a not. The essential inquiry on this point is whether proof of the same unless each requires proof of a n element that the other does jeopardy challenge is raised. Two offenses will be considered the identical regardless of the particular scenario in which a double constitute the “same offense” for double jeopardy purposes is The standard for determining whether multiple charges p. 6 6

simultaneous prosecution of these offenses, however, we need not address this double jeopardy violation based on the State’s indictment scheme and bathroom and “pattern” convictions. Having concluded that there was no jeopardy was violated when the trial court sentenced him on the bedroom, The defendant further contends that his right to be free from double

State v. Goodale, 144 N.H. 224, 227 (1999). into which he led the trial court, whether inten tionally or unintentionally. instructions because the defendant cannot now avail himself of the very error instructions were necessary, we find no error in the trial court’s jury defendant objected. Thus, assuming, without deciding, that special charges separately from evidence pertaining to the “pattern” charge, the trial court would have directed the jury to consider evidence of the discrete However, when the State requested jury instructions pursuant to which the

a conviction on [the “pattern.”] bathroom indictments] as proof of the predicate acts necessary for for [the “pattern.”] The jury could have used [the bedroom and indictments] when deciding if the State proved the predicate acts evidence other t han that alleged in [the bedroom and bathroom As charged, the jury did not need to consider any different

jury because: The defendant also argues that the trial court erred in instructing the

discretion in doing so. not, as the defendant contends, engage in an unsustainable exercise of Thus, the trial court properly denied the defendant’s pretrial motions and did (recognizing violation of double jeopardy based on State’s indictment scheme). Hampshire Constitution. Cf. State v. Currier, 148 N.H. 203, 20 p. 6 6 - 07 (2002) not violate the defendant’s right to be free from double jeopar dy under the New simultaneous prosecution of the “pattern,” bedroom and bathroom offenses did Accordingly, we hold that the State’s indictment scheme and

sustain a co nviction on either the bedroom or bathroom charge. Therefore, the State’s evidence of the “pattern” offense would not necessarily unanimously agreed that the defendant committed the bathroom assault. committed the bedroom assault. Similarly, the jury would not necessarily have the jury would not necessarily have unanimously agreed that the defendant jury agreed that the defendant in this case was guilty of the “pattern” offense, occurred during the statutory time period.” Id. Consequently, if a unanimous p. 6 632 - A:2 and :3 . . . provided that th ey find the requisite number of acts defendant engaged in more than one act of sexual assault as described in RSA comprising a “pattern” offense, but need only unanimously agree “that a concluded that a jury need not be unanimous on the underlying acts p. 7 7

opinions for guidance only. Ball, 124 N.H. at 231 - 33. address the d efendant’s claims under the State Constitution, and cite federal arguments with respect to the bedroom, bathroom and “pattern” charges. We Finally, the defendant raises several State and federal due process

Federal Constitutions). case. See Sleeper, 150 N.H. at p. 7 728 - 31 (resolving issue under both State and defendant’s rights to jury unanimity and due process were not violated in this N.H. 725 (2004). In accordance with our holding in Sleeper, we conclude the however, that this is the same issue as was presented in State v. Sleeper, 150 under both the State and Federal Constitutions. The defend ant concedes, offenses, his convictions violated his rights to jury unanimity and due process commission of two assaults that satisfied the statutory criteria for “pattern” the defendant argues that unless the jury agreed unanimously upon his Next, with respect to his remaining five convictions for “pattern” offenses,

we need not decide that matter today. “pattern” time frame or unless other offenses charged as alternatives). Thus, involving same victim, unless other sexual offense s occurred outside of simultaneous prosecution of “pattern” offenses and other sexual offenses 948.025(3) (2003 - 2004) (all containing express prohibitions against 288.5(c) (Supp. 2004); N.Y. P ENAL L AW § 130. p. 7 75(2) (2004); W IS. S TAT. § legislature’s purpose in creating “pattern” statute); cf. C AL. P ENAL C ODE § and overlapping time frames. See Fortier, 146 N.H. at 790 - 91 (discussing where, as here, the discrete acts and the “pattern” involved the same victim simultaneously prosecute discrete acts of molestation an d a “pattern” of abuse creating the “pattern” statute, intended that the State be permitted to The defendant does not raise the issue of whether the legislature, in

Constitution as we do under the State Constitution. N.H. at 6 p. 7 77. Accordingly, we reach the same result under the Feder al which the other does not), cert. denied, 517 U.S. 1251 (1996); Nickles, 144 are two offenses or only one is whether each charge requires proof of a fact County, Wis., 73 F.3d 64, 67 (7th Cir.) (fede ral test to determine whether there the State Constitution under these circumstances. See Jacobs v. Marathon The Federal Constitution offers the defendant no greater protection than

decision to sentence the defendant on all three charges. argument other than to say that there was no infirmity in the trial court ’s p. 8 8

incidents of sexual assault over a period of time by the same many young victims, who have been subject to repeated, numerous created RSA 632 - A:2, III to respond to the legitimate concern that for sexual assault similar to [New Hampshire’s], our legislature Like other jurisdictions that have adopted pattern statutes

statute: In Fortier, we explaine d the purpose of New Hampshire’s “pattern”

(1993). Hermsdorf, 135 N.H. 360, 366 (1992); State v. Burley, 137 N.H. 2 p. 8 86, 289 facts to warn the accused of the specific charges against him. State v. compreh ensive, but whether it contains the elements of the offense and enough question is not whether an indictment could be more certain and determining whether an indictment satisfies this constitutional standard, the the same is fully and plainly, substantially and formally, described to him.” In part, that “[n]o subject shall be held to answer for any crime, or offense, until Part I, Article 15 of the New Hampshire Constitution provides, in relevant

exercise of judicial discretion in denying his pretrial motions. For these reasons, he a rgues that the trial court engaged in an unsustainable prove the “pattern” offense by evidence of the bedroom and bathroom assaults. lack of information he had no way of knowing whether the State intended to for med the basis of the “pattern” offense. He maintains that as a result of this the State failed to allege any information about the underlying assaults that defense was impaired by the State’s overlapping indictment scheme because Second, the defendant contends that his ability to prepare an adequate

consider the charges against him “intelligen tly and dispassionately.” State’s indictment scheme did not unfairly prejudice the jury in its ability to charged defendant with same offense in fact and in law). Accordingly, the indictment scheme vio lated defendant’s right to due process where indictments have committed. Cf. Currier, 14 p. 8 8 N.H. at 207 - 08 (State’s overlapping in this case was not charged with more crimes than he actually was alleged to State and Federal Constitutions. Consequently, unlike Currier, the defendant not violate the defendant’s right to be free from double jeopardy u nder the prosecution of the “pattern,” bedroom and bathroom assaults in this case did As explained above, the State’s indictment scheme and simultaneous

This argument requires little discussion. ability to consider the charges against him “intelligently and dispassionately.” with more crimes than he actually was, thus unfairly prejudicing the jury in its against him left the jury with the reasonable inference that he was charged court erred in denying his pretrial motions because the mult iple indictments First, relying on State v. Currier, the defendant contends that the trial p. 9 9

NADEAU, DALIANIS and DUGGAN, JJ., concurred.

under the State Constitution. Accordingly, we reach the same result under the Federal Constitution as we do 378 F.3d 71, 81 (1st Cir. 2004); Sta te v. Settle, 132 N.H. 626, 630 (1 p. 9 990). the State Constitution under these circumstances. See United States v. Cianci, The Federal Constitution offers the defendant no greater protection than

the “pa ttern” offense to ensure preparation of an adequate defense. impaired because, as discussed, he was sufficiently apprised of the nature of assaults, the defendant’s ability to prepare a defense would still not be offense with the same evidence it used to prove the bedroom and bathroom indictments. Assuming that the State did not intend to prove the “pattern” charges in any event, and he argues no infirmity with respect to those been impaired because he had to defend against the bedroom and bathroom bathroom assaults, the defendant’s ability to prepare a defense could not have “pattern” offense with the same evidence it used to prove the bedroom and Furthermore, even assuming that the State intended to prove the

lack of additional detail in the “pattern” indictment. hold that the defendant’s ability to prepare a defense was not impaired by the type of sexual act allegedly perpetrated against the victim. Accordingly, we the time frame within which the assaults allegedly occurred and the particular prepare a defense, including the location where the assaults allegedly occurred, elements of the offense, as well as facts sufficient to allow the defendant to RSA 632 - A:2, III; RSA 632 - A:1, I - c. The “pattern” indictment contained the someone less than sixteen years of age and not the actor’s legal spouse. See over a period of two months or more and within a period of five years, agai nst committing more than one act of AFSA or FSA or both, upon the same victim, defendant was required to defend: a “pattern” of sexual assault, defined as Moreover, the statute clearly proscribes t he conduct against which the

will not be available to the State. information about specific predicate acts that give rise to a “pattern” offense are unable to identify discrete acts of molestation, it follows that much of the the very purpose of the “pattern” statute is to allow prosecutions when victims Fortier, 146 N.H. at 7 p. 9 90 - 91 (quotation and citations omitted). Thus, because

or dates all or even any of the acts of sexual assault. reconstructin g, distinguishing or identifying by specific incidents young victims may have no practical way of recollecting, assailant, are unable to identify discrete acts of molestation. These