State v. McIntyre , 151 N.H. 465 ( 2004 )

DALIANIS, J.

The defendant, Jeremy McIntyre, was convicted by a jury in the Superior Court (T. Nadeau, J.) of one count of felonious sexual assault by touching the victim’s breast, see RSA 632-A:3, III (1996) (amended 2003), and three counts of aggravated felonious sexual assault by digital penetration, cunnilingus and fellatio, see RSA 632-A:2, I (l) (1996) (amended 2003). The defendant appeals, arguing that the Superior Court (Mohl, J.) erroneously denied his pretrial motion to sever the felonious sexual assault charge from the aggravated felonious sexual assault charges. We affirm.

The pertinent facts follow. The female victim was eleven years old in July 2001; she turned twelve in August of that year. The victim spent time with her best friend (D.S.) during the summer of 2001 at her best friend’s home. The defendant was, at the time, the boyfriend of D.S.’s half-sister, and resided at D.S.’s family home.

In July, while the victim and defendant were alone, the defendant touched the victim’s breast twice while teaching her how to play pool. When she objected after the first incident, the defendant apologized. He then touched her breast a second time, at which point she left the room. She did not report either touching. Shortly after the breast touching, the defendant placed his hand on the victim’s lower leg during a car trip to the “Lee Races,” and placed his hand on her upper leg while they were watching a race. Again, she did not report either touching.

One or two weeks after the defendant touched the victim’s leg, she spent the night at D.S.’s family home. Late that night, the defendant entered D.S.’s room where the victim was sleeping on the floor, kissed the victim, partially disrobed her, digitally penetrated her, performed cunnilingus on her, and forced her to perform fellatio. The victim reported this incident to the police. The defendant was charged with one count of felonious sexual assault for the breast touching and three counts of aggravated felonious sexual assault for the digital penetration, cunnilingus and fellatio.

Prior to trial, the defendant moved to sever the felonious sexual assault charge from the three aggravated felonious sexual assault charges. The trial court denied the motion, finding that the acts alleged fell within the “common plan” rule for joinder. The defendant appeals, arguing that the charged offenses did not form a common plan, and hence were unrelated. We will uphold the trial court’s decision not to sever the charges unless we conclude that the decision constitutes an unsustainable exercise of discretion. State v. Ramos, 149 N.H. 118, 120 (2003). To show that the trial court’s decision is unsustainable, the defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

The defendant has an absolute right to severance of unrelated offenses. Id. at 128. Unrelated offenses, obviously, are those that are not related. Related offenses are those offenses that are based upon the same conduct, a single criminal episode, or a common plan. Id. The parties agree that the felonious sexual assault charge and the aggravated felonious sexual assault charges do not fit within the first two categories. Thus, we must determine whether the offenses constitute a common plan. We have previously discussed the definition of a common plan for the purposes of New Hampshire Rule of Evidence 404(b). See State v. Melcher, 140 N.H. 823 (1996); State v. Castine, 141 N.H. 300 (1996). We now adopt the Rule 404(b) definition of “common plan” for the purposes of the relatedness test in Ramos. Cf. State v. Michaud, 150 N.H. 359, 361 (2003) (assuming without deciding that the Rule 404(b) standard applies).

The distinguishing characteristic of a common plan under Rule 404(b) is the existence of a true plan in the defendant’s mind which includes the charged crimes as stages in the plan’s execution. Id. That a sequence of acts resembles a design when examined in retrospect is not enough; the prior conduct must be intertwined with what follows, such that the charged acts are mutually dependent. Id.

The defendant argues that this case resembles State v. Melcher, where we did not find evidence of a common plan. Melcher, 140 N.H. at 829. In Melcher, the defendant was charged with grabbing the victim by her hair and forcing her to kiss his penis. Id. at 824. The trial court admitted evidence that, over a three- to four-year period, the defendant had tickled and fondled the victim, the defendant on several occasions had fondled the victim’s breasts and genitals while she was shaving her legs, and once had the victim sit naked on a couch between himself and her mother. Id. at 826. We found that these acts were insufficient to support a common plan because the purported goal of the plan — the act with which the defendant was charged — clearly did not hinge upon their occurrence. Instead, we found that the defendant’s prior conduct merely showed that he seized opportunities to abuse the victim as they arose and that repeated sexual assault over time does not, in and of itself, demonstrate that the defendant had a common plan. Id. at 829.

Relying upon Melcher, the defendant asserts that the evidence in this case showed only that he availed himself of discrete opportunities to touch the victim. We disagree.

We hold that it is reasonable to conclude that the acts in this case were mutually dependent, because the occurrence of the final assaults hinged upon the success of the earlier incidents. See Melcher, 140 N.H. at 829. Had the victim reported the breast touching or leg touching incidents to anyone, the defendant would not have had the opportunity to commit the final assaults. In Melcher, however, the occurrence of the final assault did not depend upon the success of the prior incidents, as the victim’s mother was present during one of the prior incidents, indicating that the victim’s silence was not a necessary element of the plan. Id. at 826.

While mutual dependence of the charged acts is the distinguishing characteristic of a common plan, see Michaud, 150 N.H. at 361, we have held that a calculated progression of each stage of sexual abuse insures that the existence of a plan can be objectively determined. Castine, 141 N.H. at 304. Such a progression forecloses reliance upon the prohibited inference that because the defendant was predisposed to abusing the victim, he must have had a plan. Id'.-

The victim in Castine testified that the defendant first started showing her pictures in pornographic magazines, and later had her fondle his penis while he showed her the pictures. The defendant then began showing the victim' pornographic movies. Id. at 302. The victim testified that the pornographic material amounted to a “how-to guide” for an escalating series of assaults that cuhninated'with weekly demands for fellatio. We held that the events formed a common plan, because they demonstrated a calculated design by the defendant to “groom” the victim. Id. at 303. ■

Although the facts in this case do not amount to the level of “grooming” found in Castine, they do illustrate a clear progression in the level of abuse, allowing a reasonable person to make an objective finding of a common plan. In the first incident, the defendant touched the victim’s breast over her clothing. In the next incident, the defendant touched the victim on her bare upper and lower leg. Finally, the defendant digitally penetrated the victim, performed cunnilingus on her, and forced her to perform fellatio on him. By contrast^ in Melcher, there was not a similar progression in the level of assaults. Furthermore, in Melcher the incidents were isolated, and spread over a period of three or four years, while the facts of the present case demonstrate a clear progression of events within a mere six weeks. Melcher, 140 N.H. at 826.

In sum, we find that this case more closely resembles Castine than Melcher. Because we conclude that a reasonable person could find that the charged offenses formed a common plan, the trial court’s decision to deny the defendant’s motion for severance did not constitute an unsustainable exercise of discretion.

The defendant also argues that denial of his motion to sever the offenses violated his due process rights under the State and Federal Constitutions. Because his constitutional 'arguments were not adequately briefed and argued, however, we decline to address them. State v. Schultz, 141 N.H. 101, 104 (1996).

Affirmed.

Duggan and Galway, JJ., concurred; .Broderick, C.J., concurred in part and dissented in part.