2011-570, State of New Hampshire v. Daniel Casanova

reverse in part. kidnapping charge based up on the “merger doctrine.” We affirm in part and att empted AFSA charge; and (2) he was entitled to a dismissal of the attempted appeal, he argues that: (1) he was denied a unanimous jury verdict on the assault (attempted AFSA), see RSA 629:1; RSA 632 - A:2 (Supp. 2012). On 629:1 (2007); RSA 633:1 (2007), and attempted aggravated felonious sexual defendant, Daniel Casanova, was convicted of attempted kidnapping, see RSA CONBOY, J. Following a jury trial in Superior C ourt (Colburn, J.), the

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

assistant attorney general, on the b rief and orally), for the State. Michael A. Delaney, attorney general (Susan P. McGinnis, senior

No. 2011 - 570 Hillsborough - southern 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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any 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

penetration of the other person or in the touching of the other person’s they “must all agree that the D efendant intended to either engage in sexual to commit. The trial court rejected this argument and instructed the jury that agree which act – penetration or touching for sexual gratification – he intended At trial, the defendant argued that the jury was required to unanimously

gratification,” RSA 63 p. 2 2 - A:2, II. reasonably construed as being for the purpose of sexual arousal or or otherwise, the genitalia of [the child] under circumstances that can be RSA 632 - A:2, I(l), or “intentionally touches whether directly, through clothing, age of thirteen if he either enga ges in sexual penetration with the child, see Pursuant to RSA 632 - A:2, a person is guilty of AFSA against a child under the

crime. . . . to be, constituted a substantial step toward the commission of the suit bottom, which, under the circumstances as he believed them in p. 2 2003) to an isolated wooded area and pulled down her bathing committed against a child under the age of 13, escorted A.T. (bor n [T]hat [the defendant], with the purpose that the crime of [AFSA] be

alleged, in pertinent part: verdict on the attempted AFSA charge. The at tempted AFSA indictment T he defendant first argues that the trial court d enied him a unanimous

both charges. This appeal followed. AFSA and attempted kidnapping. Following a jury trial, he was convicted of The defendant was subsequently arrested and charged with attempted

occurred. return to her home. Once at home, A.T. informed her mother about what had and touched her hand before she left; however, A.T. was able to “get away” and her bathing suit bottom and started to leave. T he defendant then reached out pulled A.T.’s bathing suit bottom down to her f eet. A.T. immediately pulled up the clearing is approximately p. 2 207 feet. Once in the clearing, the defendant a small c learing adjacent to the path. The distance between A.T.’s home and The defendant led A. T. across the street, along the bicycle path, and into

A.T. approached the defendant. defendant told A.T. and her sister to “come over.” Believing that she knew him, later identified as the defendant, on a bicycle at the end of her driveway. The view by trees and other vegetation. While A.T. was playing, she saw a man, Across the street there is a bicycle path, portions of which are obstructed from porch outside of their home in Nashua. A.T. was wearing a bathing suit. the seven - yea r - old female victim, and her younger sister were playing on the The jury could have found the following facts. On July 1 p. 2 2, 2010, A.T., p. 3 3

and left in another room or place.” Id. However, vi ctim be confined briefly at gun point or bound and detained, or moved into 844 (N.Y. 1965). “It is a common occurrence in robbery, for example, that the victim, frequently accompany these crimes.” People v. Levy, 204 N.E.2d 842, robbery, because “detention and sometimes confinement, against the will of the overlap with the elements of other crimes, including sexual assault and necessary to satisfy RSA 6 p. 3 33:1. Consequently, an act of confinement could The Criminal C ode does not limit the nature of the confinement

I (d). control with a purpose to: . . . [c]ommit an offense against h[er].” RSA 6 p. 3 33:1, commits the crime of kidnapping “if he knowingly confines another under his of kidnapping. R SA 629:1; State v. Bean, 153 N.H. 380, 386 (2006). O ne omission constituting a substantial step toward the commission of the crime” which, under the circumstances as he believes them to be, is an act or purpose that [kidnapping] be committed, he does or omits to do anything A person commits the crime of attempted kidnap ping when, “with a

independe nt of his efforts to commit attempted AFSA. the evidence failed to show that he attempted to confine A.T. in a manner “merger doctrine” p rohibits his conviction for attempted kidnapping because motion to dismiss the attempted kidnapping charge. H e contends that t he Next, the defendant argues that the trial court erred by denying his

did not deprive the defendant of a unanimous verdict. commit either variant. T herefore, we hold that the trial court ’s jury instruction sufficient that they unanimously conclude d that the defendant intended to unanimously find which specific act t he defendant intended to commit; it was variants of AFSA, s ee id. at 178 - 79, the jur ors were not require d to 179. B ecause penetration and touching for sexual gratific ation ar e statutory variants of AFSA are not elements of the crime of attempted AFSA. See id. at of the intended offense. State v. Johnson, 144 N.H. 175, 178 (1999). S tatutory intended offense but does not require the State t o plead and prove the elements Munoz, 157 N.H. at 147. The attempt statute requires the State t o identify the an inchoate crime that is considered a substantive offense in and of itself. the defendant was charged w ith and convicted of attempted AFSA. Attempt is RSA 625:10 (2007); see also State v. Munoz, 157 N.H. 14 p. 3 3, 147 (2008). Here, J uries must be unanimous only as to each element of an offense. See

require different elements. We disagree. elements constituting attempted A FSA because the two variants of AFSA instruction allowed the jury to convict him without being unanimous as to the the purpose of sexual arousal or gratification.” The defendant argues that this genitalia un der circumstances that can be reasonably construed as being for p. 4 4

hand before she left the wooded area. the defendant did not grab her arm, but instead reached out and touched her alleged in the indictments, with one exception: A.T.’s testimony revealed that (Emphasis added.) At trial, the evidence g enerally sup ported the facts as

step toward the commission of the crime of K idnapping. circumstances as he believed them to be, constituted a substantial grabbing her arm when she tried to get away, which, under the isolated wooded area, pulling down h er bathing suit bottom, and control and did not voluntarily release her, by taking her to an (born in 2003), knowingly attempted to confine A.T. under his committed and the purpose to commit an offense against A.T. that [he], with the purpose that the crime of K idnapping be [The defendant] did commit the crime of [attempted kidnapping], in

T he defendant’s attempted kidnapping indictment alleged that: into an isolated wooded area; and (2) pulling down her bathing suit bottom. The attempted AFSA indictment here alleged two acts: (1) escorting A.T.

Id.

might sometimes be spelled out literally from the statutory words. constitute a separate crime of kidnapping, even though kidnapping Legislature in framing its b road definition of kidnapping to been treated as integral parts of other crimes, were intended by the asportation, which are incidents to other crimes and have long [i]t is unlikely that these restraints, sometimes accompanied by p. 5 5

at p. 5 501, and occurred only moments after A.T. pulled up her bathing suit defendant’s act of touching A.T’s hand was “minimal,” s ee Blair, 808 N.Y.S.2d incidental and inseparable from his attempt to commit AFSA. As in Blair, t he Here, we conclude that the defendant’s attempt to confine A.T. was

“intended to enable him to accomplish his overall criminal scheme.” Id. at 272. conclud ed that the defendant’s actions in restraining the two victims were defendant’s kidnapping conviction based on the merger doctrine because it of grand larceny. See id. at 271 - 72. On appeal, the court overturned the counts each of attempted murder, kidnapping, robbery, assault, and one count them with [a] knife.” Id. The defendant was charged wit h and convicted of two (App. Div. 1978). “At that point [,] when the couple resisted . . ., he attacked deserted road about 1 p. 5 50 to 200 feet.” People v. Wood, 407 N.Y.S. 2d 271, 271 Similarly, in People v. Wood, the defendant “march[ed] [a] couple down a

“minimal and part of the assault and attempted murder.” Id. short distance, grabbing her legs, and restraining her momentarily were kidnapping conviction because the defendant’s acts of pushing the victim a concluded that the merger doctrine required reversal of the attempted kidnapping, attempted murder, and assault. See i d. On appeal, the court would die. See i d. The defendant was charged and convicted of attempted an adjacent wooded area, m omentarily restrained her, a nd told her that she secluded path when the defendant str uck her with a stick, pushed her toward N.Y.S.2d p. 5 500, 501 (App. Div. 2006). In Blair, the victim was jogging along a n ot fairly constitute a separate crime of kidnapping.” People v. Blair, 808 so minimal, incidental and inseparable from the underlying crime that it does The touchstone under the merger doctrine is “whether the abduction is

AFSA charge to constitute a separate offense. attempted kidnapping charge was not sufficiently independent of the attempted makes specific reference to the “merger doctrine” and argues that the the preservation requirement is satisfied.”). Further, in his brief, the defendant issues and to correct errors before they are presented to the appellate court, Ayer, 1 p. 5 50 N.H. 14, 21 (2003) (“W hen trial court s have an opportunity to rule o n defendant’s motion. As a result, the issue is preserved for review. See State v. court heard argument from both parties on the issue and ultimately denied the kidnapping charge was not independent of the attempted A FSA charge. The the record. Below, the defendant moved to dismiss, arguing that the attempted n or adequately briefed the merger issue. This argument is not supported by Preliminarily, the State arg ues that the defendant has neither preserved

attempt to commit AFSA. evidence of his reaching out and touching A.T.’s hand bears only on the alleged charges comprise virtually the same conduct. The defendant contends that the The defendant argues that the merger doctrine applies because both p. 6 6

A ny issues raised in the defendant’s n otice of appeal but not addressed

Accordingly, we reverse the defendant’s a ttempted kidnapping conviction. dismiss the attempted kidnapping charge based up on the merger doctrine. W e h old that the trial court erred by denying the defendant’s motion to

statutes are intended to prohibit different types of criminal activity. Levy, 204 N.E.2d at 844. Thus, under our analysis, it is irrelevant whether the kidnapping might sometimes be spelled out literally from the statutory words.” to criminalize restraint that is integral to other crimes, “even though the merger doctrine, we recognize d that it is unlikely the Legislature intended court did not err in f ailing to apply the merger doctrine. However, by adopting statutes are intended to prohibit different types of criminal activity, the trial Finally, the State contends that because the AFSA and kidnapping

irrelevant to our analysis. under RSA p. 6 633:1, I(d) to sustain the charge of attempted kidnapping is charge. That the State was not r equired to prove the elements of kidnapping attempted kidnapping charge with the actions supporting the attempted AFSA merger analysis here, however, compares the attempted restraint alleged in the that the defendant intended to commit the offense of witness tampering. O ur Alternatively, the State maintains that even if it had such a burden, it proved the purpose of committing an offense against her. See RSA 633:1, I (d). the State did not have to prove that the defendant attempted to confine A.T. for T he State next asserts that the merger doctrine does not apply because

N.E.2d at 844. kidnapping, where actual confinement need not be proven. See Levy, 204 another crime – is arguably even more germane in t he case of attempted prohibiting a kidnapping conviction for conf inement that is merely incidental to 808 N.Y.S.2d at 501. Additionally, the purpose of the merger doctrine – merger doctrine to the inchoate offense of attempted kidnapping. See Blair, does not apply to inchoate crimes. In fact, the court in Blair applied the We find no support for the argument that the merger doctrine, in this context, kidnapping, but onl y to the “substantive” crime of kidnapping. We disagree. The State argues that the merger doctrine does not apply to attempted

criminal scheme.” Wood, 40 p. 7 7 N.Y.S. 2d at 2 72. was solely “intended to enable [the defendant] to accomplish his overall of the attempted AFSA, supporting a conclusion that the attempted kidnapping Wood, the defendant’s actions in attempting to confine A.T. were in furtherance approximately 207 feet from her home to prove both charges. Thus, as in be found). Further, the S tate relied upon the fact that the defendant led A.T. (where restraint and underlying crime are essentially simultaneous, merger will bottom. S ee generally People v. Cruz, 745 N.Y.S.2d 528, 531 (Ap p. Div. 2002) 7

DALIANIS, C.J.