State v. Reinholz

169 N.H. 22

140 A.3d 509

The STATE of New Hampshire

v.Rodric R. REINHOLZ.

No. 2014–0513

Supreme Court of New Hampshire.

Argued: October 15, 2015

Opinion Issued: April 29, 2016

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), of Concord, for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J.

The defendant, Rodric R. Reinholz, appeals his convictions, following a jury trial, on two counts of pattern aggravated felonious sexual assault (AFSA), see RSA 632–A:2, III (2007), two counts of AFSA by individual acts, see RSA 632–A:2, I(l) (1996) (amended 2003), and one count of felonious sexual assault (FSA), see RSA 632–A:3, III (1996) (amended 2003). The defendant argues that the Superior Court (Bornstein, J.) erred when it admitted into evidence an "affidavit" written by the victim. He also argues that his convictions on the two pattern AFSA charges must be vacated under the rule of mandatory joinder that we adopted in State v. Locke, 166 N.H. 344, 96 A.3d 962 (2014). We affirm.

The jury could have found the following facts. The victim was born in November 1988. Beginning in 1991, the victim and her two brothers visited the defendant at his residence every other weekend. From about 1996 to 2001, the defendant lived at an apartment in Ashland.

At least once during each of the victim's visits with the defendant in Ashland, he sexually abused her. After showing the victim pornography, the defendant would make her touch his penis with her hands and perform fellatio. On one occasion, the defendant performed cunnilingus on her. When the victim turned 13 years old in November 2001, she stopped visiting the defendant and the abuse ceased.

In October 2010, the victim reported the assaults to the police. Thereafter, she filed a petition for a restraining order against the defendant, which was granted by the court.

In June 2011, a grand jury indicted the defendant on two counts of AFSA and three counts of FSA. See RSA 632–A:2, I(l), :3, III. Each indictment alleged that, between July 1996 and November 2001, the defendant engaged in an individual sexual act with the victim, who was under the age of 13 at the time. One AFSA charge alleged that the defendant engaged in cunnilingus (AFSA cunnilingus), while the other alleged that he engaged in fellatio (AFSA fellatio). One of the three FSA counts alleged that the defendant caused the victim to touch his penis with her hand (FSA touching). During trial in January 2012, one of the other FSA charges was dismissed. Because the jury was unable to reach a verdict on the remaining four charges, the trial court declared a mistrial.

Before retrial, in February 2012, a grand jury indicted the defendant on two counts of pattern AFSA. See RSA 632–A:2, III. Both alleged that, between July 1996 and November 2001, the defendant engaged in a pattern of sexual conduct with the victim. One pattern charge alleged that the defendant engaged in a pattern of fellatio with the victim, while the other alleged that he engaged in a pattern of causing the victim to touch his penis with her hands. After the second trial in May 2012 on the remaining charges, the jury acquitted him of one FSA charge, but convicted him on the AFSA cunnilingus, AFSA fellatio, and FSA touching charges, as well as the two pattern AFSA charges. The defendant appealed his convictions, arguing that the trial court erred when it denied his request to allow a videotape of his police interview into the jury room during deliberations. State of New Hampshire v. Rodric R. Reinholz, No. 2012-0605 (N.H. Jan. 17, 2014). Because we agreed with the defendant, we reversed the convictions and remanded. Id.

After his third trial in May 2014, which is the subject of this appeal, the defendant was again convicted on the AFSA cunnilingus, AFSA fellatio, and FSA touching charges, as well as the two pattern AFSA charges. According to the trial court, the "State elected to proceed with sentencing" on only certain charges. Accordingly, the trial court sentenced the defendant on the AFSA cunnilingus charge and the two pattern AFSA charges, but not on either the AFSA fellatio charge or the FSA touching charge. This appeal followed.

The defendant first argues that his convictions on the two pattern AFSA charges must be vacated under the rule of mandatory joinder that we adopted in Locke. Although the State asserted at oral argument that the defendant did not preserve this argument, given that we are affirming the trial court, we will assume, without deciding, that the argument is preserved.

In Locke, decided after the defendant's third trial, we held that "the common law of New Hampshire incorporates the principles set forth in Model Penal Code Section 1.07(2)." Locke, 166 N.H. at 349, 96 A.3d 962. Under Locke :

a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

Id. at 348, 96 A.3d 962 (quotation omitted); see Model Penal Code § 1.07(2) (1985). We observe that the rule announced in Locke has been codified in Rule 20(a)(4) of the New Hampshire Rules of Criminal Procedure, which became effective on March 1, 2016.

Here, the parties do not dispute that all of the charges at issue were within the jurisdiction of a single court. Additionally, we assume without deciding that the prosecutor had the requisite knowledge regarding the pattern AFSA charges at the commencement of the defendant's first trial. We, therefore, confine our analysis to whether the two pattern AFSA charges were "based on the same conduct or ar[ose] from the same criminal episode" as the AFSA fellatio and FSA touching charges. Locke, 166 N.H. at 348, 96 A.3d 962 (quotation omitted).

As noted above, one pattern AFSA charge alleged that the defendant engaged in a pattern of fellatio with the victim, and the other alleged that he engaged in a pattern of causing the victim to touch his penis with her hand. The defendant asserts that these charges were based upon the same conduct or arose from the same criminal episode as the AFSA fellatio and FSA touching charges. Thus, the defendant asserts, the State was required to bring the two pattern AFSA charges at the time of his first trial, and its failure to do so requires that his convictions on the two pattern AFSA charges be vacated. See State v. Glenn, 167 N.H. 171, 177–78, 107 A.3d 651 (2014) (vacating defendant's convictions under mandatory joinder rule). We disagree.

Here, in contrast to the AFSA fellatio and FSA touching charges—which each alleged that the defendant engaged in an individual sexual act—each of the two pattern AFSA charges required the State to prove that the defendant engaged in a series of two or more sexual acts over a period of between two months and five years. See State v. Fortier, 146 N.H. 784, 791, 780 A.2d 1243 (2001) (stating that the "essential culpable act, the actus reus " of pattern AFSA "is the pattern itself, that is, the occurrence of more than one sexual assault over a period of time"). Because the two pattern AFSA charges spanned the same time period, concerned the same victim, and involved the same types of sexual acts as the AFSA fellatio and FSA touching charges, it is possible that the individual acts of sexual assault alleged in the AFSA fellatio and FSA touching charges each comprised one of the predicate acts necessary to establish the corresponding pattern AFSA charge. However, the opposite could also be true. In other words, it is also possible that the individual acts alleged in the AFSA fellatio and FSA touching charges did not comprise one of the predicate acts necessary to find the corresponding AFSA charge.

Accordingly, because the jury in this case was never instructed otherwise, it is possible that the verdicts on the pattern AFSA charges were based in part upon the individual acts alleged in the AFSA fellatio and FSA touching charges. It is also possible that the verdicts were not so based. See id. (explaining that, in regard to a pattern charge, the "jury must unanimously agree that a defendant engaged in more than one act of sexual assault ..., but need not agree on the particular acts, provided that they find the requisite number of acts occurred during the statutory time period"). We observe that, had the defendant or the State so requested, either would have been entitled to an instruction informing the jury that it could not use the same alleged act of sexual assault both to comprise a part of the pattern supporting a conviction on a pattern AFSA charge and to support a conviction upon an individual charge based upon that act. See id. at 793, 780 A.2d 1243. Because the defendant does not argue that the trial court had an obligation to so instruct the jury, sua sponte, this case does not present us with that issue.

Given these circumstances, we cannot conclude, as a matter of law, that the two pattern AFSA charges were based upon the same conduct or arose from the same criminal episode as the AFSA fellatio and FSA touching charges. Thus, we hold that the mandatory joinder rule does not apply, and, therefore, the defendant's convictions on the two pattern AFSA charges need not be vacated.^*

The defendant next argues that the trial court erred when it admitted into evidence an "affidavit" written by the victim. The so-called affidavit was part of the petition for a restraining order that the victim had filed against the defendant, and it alleged that he sexually abused her each time that she visited him when she was between the ages of 7 and 13. The affidavit included allegations that the defendant made the victim watch pornography with him, and included...