State v. Nickles

BROCK, C.J.,

dissenting: Because I disagree that the false imprisonment and the physical force indictments are sufficiently distinct in this case so as not to invoke double jeopardy, I respectfully dissent.

As the majority notes, whether the physical force and false imprisonment charges are distinct offenses for double jeopardy purposes depends on whether “proof of the elements of the crimes as charged will in actuality require a difference in evidence.” State v. Brooks, 137 N.H. 541, 542, 629 A.2d 1347, 1348 (1993) (quotation omitted). The majority incorrectly concludes, however, that the false imprisonment indictment does not require proof of force.

While the State contends that “the jury could have found the defendant guilty of the ‘false imprisonment’ indictment without any actual application of physical force at all,” it chose to indict the defendant on the false imprisonment charge by alleging the statutory element of force. See RSA 633:3, :2, II (1996). The indictment plainly stated that the defendant “forc[ed] the victim to the ground, thereby substantially interfering with the victim’s physical movement.” Having chosen to indict the defendant in this manner, the State, and the majority, cannot now read the physical force component out of the indictment. See, e.g., State v. Constant, 135 N.H. 254, 257, 605 A.2d 206, 208 (1992) (“[WJe must look to . . . the actual charges lodged against the defendant.”). Similarly, the physical force indictment requires that the State prove “the actual application of physical force,” RSA 632-A:2, 1(a) (1996), through its allegation that the defendant “forc[ed] [the victim] to the ground.” Thus, each indictment in fact requires proof of the same elemental evidence, namely, the use of force. The jury considered the same evidence under both indictments and acquitted the defendant on false imprisonment. Therefore, as the State chose to charge the false imprisonment indictment, on the evidence presented to us for review, the jury must have found unlawful force, a required element for a conviction on the physical force indictment, to be lacking. See Brooks, 137 N.H. at 542, 629 A.2d at 1348 (if facts charged in second indictment, if true, would have sustained first indictment, then the two offenses are the same); State v. Gooden, 133 N.H. 674, 679, 582 A.2d 607, 610 (1990). Accordingly, I would hold that the State may not retry the defendant on the physical force indictment.