2025 N.H. 11, State v. Miller

the defendant. Eliana Forciniti, public defender, of Stratham, on the brief and orally, for

and orally), for the State. general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Miller, 202 5 N.H. 11

2023 - 009 9

Case No s. 2023 - 009 8 Hillsborough - southern judicial district

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

into a parked car. [the victim] down,” causing her to fall approximately ten feet down the stairs to be witnesses in case the argument progressed.” T he defendant then “threw to block him from entering the apartment building because she “wanted there with her hands. The victim pulled the defendant off the stairs and attempted defendant by his shirt, kicked the defendant ’s leg, and shoved the defendant the two “had a little shoving match” during which the victim grabbed the building’s entrance, “blocked [the defendant] from entering the building,” and into an argument.” The victim, still seated on the steps in front of the [¶4] W hen the defendant returned from the bar, he and the victim “got

friends at a bar, but the victim refused because she was “still upset.” building’s front steps. T he defendant invited the victim to join him and his When the defendant returned, the victim was still sitting on the apartment female’s apartment” where the victim “didn’t really want [the defendant] to be.” birthday. According to the victim, t he defendant left with a friend to go “to a of a Nashua apartment building where they resided celebrating the defendant’s defendant and the victim, who were married at the time, sat on the front steps [¶3] The jury could have found the following facts. On July 14, p. 2 2022, the

affirm in part and reverse in part. reverse the defendant’s conviction for false imprisonment. Accordingly, w e applies to the false imprisonment and as sault convictions, and we therefore conclude that, based upon the evidence presented at trial, the merger doctrine crime or injury convictions as charged in this case. However, we further doctrine did not apply to the criminal mischief and obstructing the report of a crime or injury charge was not erroneous, and the common law merger trial court’s jury instruction with respect to the obstructing the report of a instruct the jury on the defense of mutual consent. We also conclude that the [¶ p. 2 2] We conclude that the trial court commit ted no error by declining to

common law merger doctrine. obstructing the report of a crime or injury convictions in violation of the doctrine; and (4) sentencing him on the false imprisonment, assault, and report of a crime or injury convictions in violation of the common law merger charge; ( p. 3 3) sentencing him on both the criminal mischief and obstructing the from its jury instruction on the obstructing the report of a crime or injury simple assault - domestic violence charge; ( p. 2 2) omitting “necessary elements” (1) refusing to instruct the jury on the defense of mutual consent regarding a imprisonment, see RSA 633:3 (2016). He argues that the trial court erred by: report of a crime or injury, see RSA 642:10 (2016); and one count of false criminal mischief, see RSA 634: 2 (Supp. 2023); one count of obstructing the assault - domestic violence, see RSA 631:2 - b, I(a) (Supp. 2023); one count of domestic violence, see RSA 631:2, I(f), III(a) (Supp. 2023); five counts of simple 3

[the victim’s] neck.” The trial court denied the mo tion. defendant asserted that the State had failed to prove “three separate grabs of pinned the victim “down onto a bed by placing his hand around her neck.” The moved to dismiss the simple assault - domestic violence charge alleging that he “albeit very briefly,” with the victim’s physical movement. The defendant also reasoning that there was sufficient evidence that the defendant interfered, constitute confinement under RSA 6 p. 3 33:3. The trial court denied the motion, the bed could not have been more than “a few seconds at most,” which did not imprisonment charge, arguing that the time during which he held the victim on [¶10] After the close of evidence, the defendant moved to dismiss the false

the apartment building ’s front entrance and hallway. introduced into evidence and played for the jury surveillance video footage from [¶9] The victim testified to the foregoing facts at trial. The State also

injury, and one count of false imprisonment. count of criminal mischief, one count of obstructing the report of a crime or assault - domestic violence, five counts of simple assault - domestic violence, one here, t he defendant was subsequently charged with one count of second degree her hair or neck, and th rew the victim’s cell phone on the ground. As relevant The defendant told the police that he push ed the victim out of the way, grabb ed [¶8] The victim left the apartment and reported the incident to the police.

it on the ground. The defendant eventually broke down the door. While in the hallway, t he defendant picked up the victim’s cell phone and threw talk about it later,” but the defendant kept “h itting the door trying to get in.” reentering the apartment. She scream ed at him to “leave, go cool off, and we’ll [¶7] The victim closed and locked the door to prevent the defendant from

and the defendant exit ed the apartment after throwing the victim’s cell phone. after the couple entered the apartment. The victim “kicked [the defendant] off,” throw n from the apartment into the hallway a pproximately seventeen seconds the hallway. S urveillance footage from the hallway showed the cell phone being call the police, the defendant took her cell phone and threw it from the bed into approximately four times with his other hand. When the victim threatened to on the bed, holding her neck with one hand and hitting her face and head [¶6] Once inside the apartment, the defendant “pinned” the victim down

and dragged her into the apartment by her neck. down her neck. The defendant squeezed the victim’s neck with both hands eventually opened the door, grabbed the victim’s face, and moved his hands because she “wanted to get [her] belongings and leave.” The defendant apartment, but the victim “kick[ed] the door a couple of times in frustration” and continued to argue. The defendant locked the victim out of their [¶5] The defendant and the victim later entered the apartment building p. 4 4

may properly deny the party’s request.” Woodbury, 172 N.H. at 371. instruction, the party is not entitled to such an instruction, and the trial court there is simply no evidentiary basis to support the theory of the requested jury uncontradicted. State v. Woodburn, 175 N.H. 6 p. 4 45, 651, 654 (2023). “When support need not be overwhelming, nor must the evidence presented be such quality as to induce conviction.” Id. at 371. However, the evidentiary cannot be vague, conjectural, or the mere suspicion of a fact, but must be of 358, 370 - 71 (2019) (quotation omitted). “To be more than a scintilla, e vidence more than a minutia or scintilla of evidence.” State v. Woodbury, 172 N.H. Haycock, 146 N.H. 5, 9 (2001) (quotation omitted). “Some evidence means evidence to support a rational finding in favor of that defense.” State v. defendant’s requested jury instruction on a specific defense if there is some within the sound discretion of the trial court, the court must grant a [¶14] “Although the scope and wording of jury instructions is generally

concluded that “the victim had withdrawn from the combat.” from the argument.” The State also maintains that the trial court properly court’s assessment of the video and what it shows regarding the victim’s retreat stairs.” The State disagrees and asserts that we “should defer to the trial she “continued to strike” him “milliseconds before he pulled her down the a scintilla of evidence” that the victim initiated the physical altercation and that the stairs. See RSA 631:2 - a, II (2016). He contends that there was “more than simple assault - domestic violence charge alleging that he pulled the victim down failing to give an instruction on the defense of mutual consent regarding the [¶13] On appeal, t he defendant first argues that the trial court erred by

A. Mutual Consent Instruction

false imprisonment convictions. This appeal followed. violence, criminal mischief, obstructing the report of a crime or injury, and sentences, to run concurrently, on the remaining simple assault - domestic conviction. The trial court also imposed identical twelve - month suspended maximum suspended, on the second degree assault - domestic violence six years, stand committed, with one year of the minimum and two years of the on all charges. The trial court thereafter sentenced the defendant to three to and damaged her cell phone. The jury subsequently convicted the defendant [¶12] T he defendant concede d in closing that he grabbed the victim’s jaw

victim. perceived as mutual argument, mutual combat” and the initial assault of the court denied the request, reasoning that “there is a gap between what could be the trial court instruct the jury on the defense of mutual consent. The trial the defendant pulled the victim down the stairs, the defendant requested that [¶11] Regarding the simple assault - domestic violence charge alleging that p. 5 5

the error must s eriously affect the fairness, integrity, or public reputation of discretion to correct a forfeited error only if the error meets a fourth criterion: 2024 N.H. 8, ¶7. If all three conditions are met, we may then exercise our error must affect substantial rights. State v. Maxi, 176 N.H. 4 p. 5 55, 459 (2024), plain error: (1) there must be error; (2) the error must be plain; and (3) the otherwise result. State v. Batista - Salva, 171 N.H. 818, 824 (2019). To find limited to those circumstances in which a miscarriage of justice would its jury instruction. See RSA 642:10, I(a). Plain error is used sparingly, its use error by omitting elements of the obstructing the report of a crime offense from [¶18] The defendant next asserts that the trial court committed plain

B. Obstructing Report of Crime or Injury Instruction

defendant’s request for a mutual consent instruction See id. at 228. supports the trial court’s finding that the evidence did not support the the conduct alleged in the relevant complaint. We conclude that the record between what could be perceived as mutual argument, mutual combat,” and some point.” As a result, the trial court determined that “there is a gap aggressive towards him an d trying to block him from entry, she stops that at does sit down” and “when you watch the video, it’s clear that despite her being [the defendant], pushing him, pulling him, the video is quite clear that she then [¶17] The trial court reasoned that “after [the victim] admits to striking

defendant pulled the victim down the stairs. the victim shoved, grabbed, kicked, and pulled the defendant and when the indicated that a pause in the altercation occurred between the moment when down the stairs.” However, the trial court ’s description of the video footage while seated “less than a second” or “milliseconds before” he pulled the victim asserts that the video footage showed that the victim “continued to strike him” evidence to support his requested instruction. More specifically, t he de fendant apartment building demonstrate that there was more than a scintilla of altercation between the defendant and the victim on the front steps at the defendant maintains that the parties’ descriptions of the video showing the assessment of the surveillance video footage submitted to the jury at trial. The evidence” to support the defendant’s requested instruction turned upon its [¶16] T he trial court’s conclusion as to whether there was “some

State v. Place, 1 p. 5 52 N.H. 225, 227 (2005). parties agree to participate in the fight, either expressly or by implication. consent, in which case it is a violation.”). Mutual consent requires that both assault is a misdemeanor unless committed in a fight entered into by mutual her and shoved her down.” See RSA p. 6 631:2 - b, I(a); RSA 631:2 - a, II (“Simple mutual consent fight” because the victim “hit him four times before he grabbed included offense instruction and argued that he and the victim were “in a [¶15] After the close of evidence, the defendant requested a lesser - 6

his conscious object is to cause a certain result or engage in certain conduct.” In addition, t he court instructed the jury that a “person acts purposely when

partner; and three, the Defendant acted purposely. described; and two, [the victim] was the Defendant’s intimate victim] from reporting a crime to the Nashua Police Department as So the State must prove, number one, the Defendant prevented [the must prove each part of the definition beyond a reasonable doubt. The definition of this charge has three elements or parts. The State

It then instructed that:

cell phone by throwing it against the floor.” reporting that he had just assaulted her. He damaged [the victim’s] intimate partner, from calling the Nashua Police Department and . . . in that he “with the purpose of preventing [the victim], an injury, . . . [the defendant] is alleged to have committed this crime Turning now to the charge of obstructing the report of a crime or

complaint to the jury: agency.” RSA p. 6 642:10, I. T he trial court recited the language from the interfere with . . . [t]he report of any criminal offense to any law enforcement other electronic communication device with a purpose to obstruct, prevent, or of obstructing the report of a c rime who “damages . . . any telephone, radio, or [¶20] RSA 642:10 provides, in relevant part, that a person shall be guilty

Boggs, 171 N.H. 115, 122 (2018). relating to the State’s burden of proof, we review the question de novo. State v. case. Id. However, when a particular jury instruction raises a question of law the court’s ruling was clearly untenable or unreasonable to the prejudice of his trial court’s decision is not sustainable, the defendant must demonstrate that these matters for an unsustainable exercise of discretion. Id. To show that the sound discretion of the trial court, and we review the trial court’s decisions on the scope and wording of jury instruction s, are decisions that fall within the of law in the case. Id. Whether a particular jury instruction is necessary, and of the offense and reverse only if the instructions did not fairly cover the issues whether the jury instructions adequately and accu rately explain each element understood them, and in light of all the evidence in the case. Id. We determine disputed instructions in their entirety, as a reasonable juror would have reviewing jury instructions, we evaluate allegations of error by interpreting the case.” State v. Etienne, 1 p. 6 63 N.H. 57, 70 (2011) (quotation omitted). When the jury, in clear and intelligible language, the rules of law applicable to the [¶19] “The purpose of the trial court’s charge is to state and explain to

plain error. Batista - Salva, 1 p. 7 71 N.H. at 824. judicial proceedings. Id. The defendant bears the burden of demonstrating 7

crime convictions. We consider both arguments in turn. violence, simple assault - domestic violence, and obstructing the report of a convictions; and (2) on the false imprisonment, second degree assault - domestic (1) on both the obstructing the report of a crime and the criminal mischief law merger doctrine. He contends that the trial court erred in sentencing him: [¶25] The defendant next argues that his sentences violated the common

C. Merger

See Maxi, 1 p. 7 76 N.H. at 459, 2024 N.H. 8, ¶7. have no occasion to consider the additional prongs of the plain error analys is. of a crime. See Etienne, 163 N.H. at 70; RSA 642:10, I(a). Finding no error, we court sufficiently instructed the jury on the elements of obstructing the report them, and in light of all the evidence in the case, w e conclude that the trial of this offense in their entire t y, as a reasonable juror would have understood [¶24] Accordingly, v iewing the trial court’s instruction s on the elements

See RSA 642:10, I. the victim’s phone with the purpose of preventing her from calling the police. instruction made clear that the jury had to find that the defendant damaged Regardless of wh ich act damage d the victim’s cell phone, t he trial court’s phone by which he intended to prevent the victim from calling the police. confuse or conflate the defendant’s two separate acts of throwing the victim’s [¶23] We are not persuaded that this instruction may have led the jury to

victim’s cell phone with the purpose of preventing her from calling the police. jury was instructed that the State had to prove that the defendant damaged the pho ne “by throwing it against the floor.” (Quotation omitted.) Therefore, the preventing [the victim] . . . from calling” the police, damaged the victim’s cell instructed the jury tha t it had to find that the defendant, “with the purpose of followed the court’s recitation of the language in the complaint, the court Department as described.” By its use of “as described,” which immediately defendant “prevented [the victim] from reporting a crime to the Nashua Police instructed the jury that it had to find, beyond a reasonable doubt, that the [¶22] The trial court read the allegations from the complaint and then

anything other than breaking the victim’s phone.” instruction did not leave the jury with the impression th at this charge involved However, w e agree with the State that, “[w]hile this may be true, the jury unrelated to a telephone, radio, or other electronic communication devic e.” He argues that an “individual can prevent the report of a crime in many ways in breaking the phone was to prevent the report of a crime to law enforcement.” that the State needed to prove that [he] broke the phone and that his purpose [¶21] T he defendant contends that the court “failed to instruct the jury p. 8 8

by throwing it against the floor.” reporting that he had just assaulted her, he damaged [the victim’s] cellphone victim], an intimate partner, from calling the Nashua Police Department and State had to prove that the defendant “with the purpose of preventing [the report of a crime in violation of RSA 642:10. As charged in the complaint, the [¶30] T he defendant was convicted and sentenced for obstructing the

required proof that he purposely damaged the victim’s cell phone. defendant contends that the convictions should merge because they both the obstructing the report of a crime and criminal mischief convictions. The error rule, see Sup. Ct. R. 16 - A, that the trial court erred by sentencing him on [¶29] We first consider the defendant’s argument, raised under our plain

1. Obstructing the Report of a Crime and Criminal Mischief

the indictments. Id. This test is referred to as the “same evidence” test. Id. elements of the charged offenses in light of the actual allegations contained in in evidence. Id. In making this inquiry, we review and compare the statutory whether proof of the elements of the crimes as charged will require a difference Maxi, 176 N.H. at 460, 2024 N.H. p. 8 8, ¶9 (quotation omitted). We focus upon purposes unless each requires proof of an element that the other does not.” [¶28] “[T] wo offenses will be considered the same for double jeopardy

description” matter. State does not dispute, that the circumstances of this case present a “double one violation of a single statutory provision. Id. The defendant argues, and the that a defendant’s continuing course of conduct is fragmented into more than that the same course of conduct is proscribed by more than one statute but Id. Second, there are “unit of prosecution” cases in which the problem is not two separate offenses or are merely different descriptions of the same offense. “double - description” cases, in which the issue is whether two statutes describe M ultiple punishment cases come in two varieties. Id. First, there are so - called law subject to de novo review. State v. Lynch, 169 N.H. 6 p. 8 89, 706 (2017). [¶27] The issue of double jeopardy presents a question of constitutional

“same” for purposes of the common law merger doctrine. Id. jeopardy principles to analyze whether the two offenses at issue were the different.” Id. (brackets and quotation omitted). Accordingly, we apply double consideration in both is whether the two . . . offenses are the same or jeopardy and merger are identical in this context and the operative v. Ramsey, 166 N.H. 45, 50 (2014) (brackets and quotation omitted). “[D] ouble between a double jeopardy analysis and a common law merger analysis.” State multiple sentences stemming from a single act, there should be no difference both offenses.” State v. Young, 15 p. 9 9 N.H. 332, 341 (2009). “In the context of offenses, crimes will merge only where the identical criminal act constitutes [¶26] “While a single transaction can give rise to multiple, distinct 9

of the plain error analysis. See Maxi, 176 N.H. at 45 p. 9 9, 2024 N.H. 8, ¶7. 166 N.H. at 51. Finding no error, we need not consider the additional prongs obstructing report of a crime and criminal mischief convictions. See Ramsey, evidence, the trial court did not err by sentencing the defendant on both the [¶35] Accordingly, b ecause the two convictions required proof by different

McKean, 147 N.H. 1 p. 9 98, 201 (2001). mean that the same evidence is required for all of the elements. State v. ground. The similarity of evidence used to prove some of the elements does not outside of the apartment in the hallway, he again threw the cell phone to the victim from calling the police, and second, after the victim had locked him the defendant threw the victim’s cell phone into the hallway to prevent the dispute that the defendant threw the victim’s phone on the ground twice. First, proof that the defendant threw the victim’s cell phone on the floor. T here is no both the obstructing report of a crime and criminal mischief charges required [¶34] Our conclusion is not altered because, as alleged in the complaints,

mischief charge but not the obstructing the report of a crime charge. basis for belief of having such a righ t” w as essential to sustain the criminal damaged the property of another “having no right to do so nor any reasonable the criminal mischief charge. Similarly, evidence that the defendant purposely was essential to sustain the charge for obstructing the report of a crime but not the Nashua Police Department and reporting that he had just assaulted her” “with the purpose of preventing [the victim], an intimate partner, from calling require d different evidence. For example, e vidence that the defendant acted [¶33] In this case, proof of the elements of the two crimes as charged

he purposely damaged the victim’s cell phone for both offenses. We disagree. obstructing the report of a crime becaus e the State was required to prove that criminal mischief was the same as the evidence needed to convict him of [¶32] The defendant argues that the evidence required to convict him of

than $1000.00. on the floor; thereby purposely causing a pecuniary loss of not more Iphone belonging to [the victim]; an intimate partner, by throwing it such a right; he purposely damaged property of another, an Apple having no right to do so nor any reasonable basis for belief of having

complaint, the State had to prove that the defendant: $ p. 10 100 and not more than $1,500.” RSA 634:2, II - a. As c harged in the the actor purposely causes or attempts to cause pecuniary loss in excess of p aragraph II - a specifies that “[c]riminal mischief is a class A misdemeanor if a right, purposely or recklessly damages the property of another.” In addition, who, having no right to do so nor any reasonable basis for belief of having such mischief. RSA 634:2, I, provides that a “person is guilty of criminal mischief [¶31] The defendant was also convicted and sentenced for criminal 10

assault conviction for pinning the victim onto the bed because the defendant’s that the false imprisonment conviction should have merged with the simple assault - domestic violence conviction s for sentencing. T he defendant contends false imprisonment conviction should have merged with one of the simple [¶39] Turning to the merits of the dispute, we first address whether the

argument raised on appeal.” (quotation omitted)). or the development of fa cts that might or might not have supported the specific preserved only if the trial court had the opportunity to consider that legal issue review. See id.; Woodburn, 175 N.H. at 650 (“[W]e will find an argument trial court’s consideration of this issue, we conclude that it is preserved for because they may merge and because they are the same act.” In light of the should be convicted of both,” it “want [ed] to think about the sentencing the defendant’s motion. However, the trial court noted that “if [the defendant] to convict on both charges. The trial court agreed with the State and denied imprisonment,” but asserted that the jury should be allowed to decide whether of sentencing, that the simple assault was the means of accomplishing the false imprisonment.” The State acknowledged that “maybe they merge for purpose [s] whether this conduct was “the same act essentially that comprise[d] the false respect to the assault or false imprisonment charges, t he trial court questioned [¶38] Although t he defendant did not raise the issue of merger with

grabbed the victim’s neck. arguing that it was not “distinct from the other two” charges alleging that he pinned the victim “down onto the bed by placing his hand around her neck,” moved to dismiss the simple assault - domestic violence charge alleging that he substantially with [the victim’s] physical movement.” T he defendant also testimony established that the defendant “at least briefly interfered RSA 633:3. The trial court denied the motion, concluding that the victim’s the victim down on the bed did not constitute confinement under RSA 633:2 or the false imprisonment charge, asserting that the time during which he held v. Casanova, 164 N.H. 563, 567 (2013). Here, the defendant moved to dismiss arguments from both parties on the issue before denying the motion. See State two charges were not independent of one another, and the court heard preserved for our review when the defendant moved to dismiss, arguing that previously determined that a merger issue relating to two convictions was preserved because it was not raised at sentencing. We disagree. We have [¶37] Preliminarily, t he State contends that this argument is not

obstructing the report of a crime.” confinement was incidental to the crimes of strangulation, simple assault and sentencing. (Emphasis omitted.) Specifically, h e contends that “the that the false imprisonment conviction merged into the other convictions” for [¶36] Finally, the defendant argues that “the court erred in failing to find

2. False Imprisonment and Assault p. 11 , r restraint and -

(quotation omitted). might sometimes be spelled out literally from the statutory words.” Id. at 569 criminalize restraint that is integral to other crimes, even though kidnapping AFSA.” Id. We also observed that “it is unlikely the Legislature intended to in attempting to confine [the victim] were in furtherance of the attempted “act of touching [the victim’s] hand was ‘minimal’” and “the defendant’s actions his attempt to commit AFSA.” Id. at 568. W e reasoned that the defendant’s defendant’s attempt to confine [the victim] was incidental and inseparable from [¶42] Based up on the evidence presented at trial, we concluded that “the

Id. at 566 - 67 (quotations and internal citations omitted).

based on the totality of the circumstances. kidnapping as a separate crime is a fact specific determination movement are merely incidental to another crime or support ultimate crimes of lesser or greater gravity. Whethe crimes merely because the kidnappings were used to accomplish however, is not designed to merge true kidnappings into other more serious crimes by excess of prosecutorial zeal. The doctrine, one of fairness, prohibiting distortion of lesser crimes into much crime but are merely incidental to another crime. This doctrine is kidnapping based upon acts that fall within the definition of that The merger doctrine, in this context prohibits a conviction for

merger doctrine: [¶41] “To rectify this overlap,” we took the opportunity to explain the

these crimes.” Id. (quotation omitted). sometimes confinement, against the will of the victim, frequently accompany crimes, including sexual assault and robbery, because detention and as a result, “an act of confinement could overlap with the elements of oth er that the kidnapping statute does not limit the nature of confinement and that, efforts to commit att empted AFSA.” Casanova, 164 N.H. at 566. W e observed show that he attempted to confine [the victim] in a manner independent of his aggravated felonious sexual assault (AFSA) because the evidence “failed to prohibited his conviction for both attempted kidnapping and attempted [¶40] In that case, the defendant argued that the merger doctrine

analogizes the facts of this case to those presented in Casanova. impression in New Hampshire.” As support for this argument, the defendant separate offense in the context of false imprisonment is a question of first substantially with [the victim’s] physical movement’ so as to constitute a a separate act. Further, he asserts that “[w]hat constitutes ‘interfered confinement of the victim on the bed was incidental to the assault rather than p. 12 12

different types of criminal activity. See id. at 569. Applying the merger crimes, and, thus, it is irrelevant whether the statutes are intended to prohibit that the legislature intended to criminalize restrain t that is integral to other [¶47] As was the case in Casanova, we recognize here that it is unlikely

Id. at 568 (quotation and brackets omitted). intended to enable the defendant to accomplish his overall criminal scheme.” simple assault, which supports the conclusion that the confinement was “solely Therefore, the defendant’s confinement of the victim was in furtherance of the victim was inseparable from the act of causing “unprivileged physical contac t.” unprivileged physical contact. However, t he defendant’s confinement of the domestic violence complaint required proof that the defendant caused proof that the defendant knowingly confined the victim, the simple assault hand around her neck. Whereas the false imprisonment complaint required prove that the defendant pinned the victim down on the bed by placing one charge. See id. at 567 - 69. As charged, both offenses required the State to inseparable from the conduct constituting the simple assault - domestic violence because the defendant’s confinement of the victim was incidental to and [¶46] We agree with t he defendant that the merger doctrine applies

Casanova, 164 N.H. at 566 (quotation omitted). imprisonment could also “overlap with the elements of other crimes.” RSA 633:2, II. Consequently, an act of confinement that constitutes false elements of false imprisonment is not fully defined by the Criminal Code. See [¶45] Similar to kidnapping, the confinement necessary to satisfy the

a bed by placing his hand around her neck.” partner, through the use of physical force” and “did pin [the victim] down onto “knowingly cause[d] unprivileged physical contact to [the victim], an intimate force.” RSA 631:2 - b, I(a). The pertinent complaint alleged that the defendant against “a family or household member or intimate partner” by “use of physical [p] urposely or knowingly causes bodily injury or unprivileged physical contact” domestic violence. “A person is guilty of domestic violence if the person. . . [¶44] T he defendant was also convicted and sentenced for simple assault -

neck.” that he “pinned [the victim] down onto a bed by placing his hand around her unlawfully so as to interfere substantially with her physical movement” and that the defendant knowingly confined the victim, “an intimate partner, deception.” RSA 633:2, II (2016). The false imprisonment complaint all eged includes but is not limited to confinement accomplished by force, threat or in turn, provides that “‘confines another unlawf ully, ’ as used in . . . RSA 633:3, interfere substantially with his physical movement.” RSA 633:3. RSA 633:2, knowingly confines another unlawfully, as defined in RSA 633:2, so as to imprisonment. A person commits the crime of false imprisonment when “he [¶43] Here, the defendant was convicted and sentenced for false p. 13 13

BASSETT and COUNTWAY, JJ., concurred.

assault and obstructing the report of a crime convictions for sentencing. whether the false imprisonment conviction should have merged with the other 47, ¶21. Given our conclusion, it is unnecessary to address the question as to as it deems fit. See State v. Van Uden, 176 N.H. 772, 780 (2024), 2024 N.H. construction of this statute, it is free, within constitutional limits, to amend it imprisonment conviction. Of course, if the legislature disagrees with our domestic violence conviction should have merged, and we reverse the false doctrine, w e hold that the false imprisonment conviction and simple assault -