State v. Casanova
164 N.H. 563
N.H.2013Background
- Defendant Daniel Casanova was convicted after a jury trial of attempted kidnapping and attempted AFSA.
- On appeal Casanova argues (i) lack of unanimous verdict on attempted AFSA and (ii) merger doctrine should void the attempted kidnapping conviction.
- Facts: A.T., 7, and her sister were on their Nashua porch when Casanova, on a bicycle, lured A.T. to a wooded area about 207 feet from home.
- In the clearing, Casanova pulled down A.T.’s bathing suit bottom; she pulled it up and fled; he touched her hand as she left.
- A.T. informed her mother; Casanova was arrested and charged with both offenses and convicted on both counts.
- The court held the AFSA unanimity requirement satisfied because unanimity was as to the intended offense (either penetrating or touching for arousal) and not the specific variant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity for attempted AFSA elements | Casanova argued unanimity needed for penetration vs. touching. | Court instruction allowed non-unanimity on the variant. | Unanimity as to variant not required; unanimous as to intended offense suffices. |
| Merger doctrine applicability to attempted kidnapping | Merger doctrine does not apply to attempted kidnapping separate from AFSA. | Confinement incidental to AFSA warrants merger and dismissal of kidnapping. | Merger doctrine applied; attempted kidnapping conviction reversed. |
Key Cases Cited
- State v. Munoz, 157 N.H. 143 (2008) (unanimity limited to elements of offense; attempt does not require pleading elements of intended offense)
- State v. Johnson, 144 N.H. 175 (1999) (attempts identify intended offense; variants not elements of attempted offenses)
- People v. Blair, 808 N.Y.S.2d 500 (2006) (merger of kidnapping when restraint is minimal and incidental to another crime)
- People v. Wood, 407 N.Y.S.2d 271 (1978) (merger where restraint accompanies underlying crime)
- Levy, 204 N.E.2d 844 (1965) (restraint incidental to other crimes; confinement not always a separate kidnapping)
- People v. Cruz, 745 N.Y.S.2d 528 (2002) (restraint and underlying crime essentially simultaneous; merger may apply)
- State v. Brooks, 164 N.H. 272 (2012) (merger doctrine adopted to prevent kidnapping being rebuilt from lesser crimes)