Following a jury trial in Superior Court (Colburn, J.), thе defendant, Daniel Casanova, was convicted of attempted kidnapping, see RSA 629:1 (2007); RSA 633:1 (2007), and attempted aggravated felonious sexual assault (attempted AFSA), see RSA 629:1; RSA 632-A:2 (Supp. 2012). On appeal, he argues that: (1) he was denied a unanimous jury verdict on the attempted AFSA charge; and (2) he was entitled to a dismissal of the attempted kidnapping charge based upon the “merger doctrine.” We affirm in part and reverse in part.
The jury could have found the following facts. On July 12,2010, A.T., the seven-year-old female victim, and her younger sister were playing on the porch outside of their home in Nashua. A.T. was wearing a bathing suit. Across the street there is a bicycle path, portions of which are obstructed from view by trees and other vegetation. While A.T. was playing, she saw a man, later identified as the defendant, bn a bicycle at the end of hеr driveway. The defendant told A.T. and her sister to “come over.” Believing that she- knew him, A.T. approached the defendant.
The defendant led A.T. across the street, along the bicycle path, and into a small clearing adjacent to the path. The distance between A.T.’s home and the clearing is approximately 207 feet. Once in the clearing, the defendant pulled A.T.’s bathing suit bottom down to her feet. A.T.
The defendant was subsequently arrested and charged with attempted AFSA and attempted kidnapping. Following a jury trial, he was convicted of both сharges. This appeal followed.
The defendant first argues that the trial court denied him a unanimous verdict on the attempted AFSA charge. The attempted AFSA indictment alleged, in pertinent part:
[T]hat [the defendant], with the purpose that the crime of [AFSA] be committed agаinst a child under the age of 13, escorted A.T. (born in 2003) to an isolated wooded area and pulled down her bathing suit bottom, which, under the circumstances as he believed them to be, constituted a substantial step toward the commission of the crime ....
Pursuant to RSA 632-A:2, a person is guilty of AFSA against a child under the age of thirteen if he either engages in sexual penetration with the child, see RSA 632-A:2,1(1), or “intentionally touches whether directly, through clothing, or otherwise, the genitalia of [the child] under circumstances that can be reasonably construed as being for the purpose of sexual arousal or gratification,” RSA 632-A:2, II.
At trial, the defendant argued that the jury was required to unanimously agree which act — penetration or touching for sexual gratification — he intended to commit. The trial court rejected this argument and instructed the jury that they “must all agree that the Defendant intended to either engage in sexual penetration of the other person or in the touching of the other person’s genitalia under circumstances that can be reasonably construed as being for the purpose of sexual arousal or gratification.” The defendant argues that this instruction allowed the jury to convict him without being unanimous as to the elements constituting attempted AFSA because the two variants of AFSA require different elements. We disagree.
Juries must be unanimous only as to each element of an offense. See RSA 625:10 (2007); see also State v. Munoz,
Next, the defendant argues that the trial court erred by denying his motion to dismiss the attempted kidnapping charge. He contends that the “merger doctrine” prohibits his conviction for attempted kidnapping because the evidence failed to show that he attempted to confine A.T. in a manner independent of his efforts to commit attempted AFSA.
The Criminal Code does nоt limit the nature of the confinement necessary to satisfy RSA 633:1. Consequently, an act of confinement could overlap with the elements of other crimes, including sexual assault and robbery, because “detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.” People v. Levy,
[i]t is unlikely that these restraints, sometimes accomрanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words.
Id.
To rectify this overlap, we recently adopted the “merger doctrine.” See State v. Brooks,
The attempted AFSA indictment here alleged two acts: (1) escorting A.T. into an isolated wooded area; and (2) pulling down her bathing suit bottom. The defendant’s attempted kidnapрing indictment alleged that:
[The defendant] did commit the crime of [attempted kidnapping], in that [he], with the purpose that the crime of Kidnapping be committed and the purpose to commit an offense against A.T. (born in 2003), knowingly attempted to confine A.T. under his control and did nоt voluntarily release her, by taking her to an isolated wooded area, pulling down her bathing suit bottom, and grabbing her arm when she tried to get away, which, under the circumstances as he believed them to be, constituted a substantial step toward the commission of the crime of Kidnapping.
(Emphasis added.) At trial, the evidence generally supported the facts as alleged in the indictments, with one exception: A.T.’s
The defendant argues that the merger doctrine applies because both charges comprise virtually the same conduct. The defendant contends that the evidence of his reaching out and touching A.T.’s hand bears only on the alleged attempt tо commit AFSA.
Preliminarily, the State argues that the defendant has neither preserved nor adequately briefed the merger issue. This argument is not supported by the record. Below, the defendant moved to dismiss, arguing that the attempted kidnapping charge was not independent of the attempted AFSA charge. The court heard argument from both parties on the issue and ultimately denied the defendant’s motion. As a result, the issue is preserved for review. See State v. Ayer,
The touchstone under the merger doctrine is “whether the abduction is so minimal, incidental and inseparable from the underlying crime that it does not fairly constitute a separate crime of kidnapping.” People v. Blair,
Similarly, in People v. Wood, the defendant “march[ed] [a] couple down a deserted road about 150 to 200 feet.” People v. Wood,
Here, we conclude that the defendant’s attempt to confine A.T. was incidental and inseparable from his attempt to commit AFSA. As in Blair, the defendant’s act of touching A.T’s hand was “minimal,” see Blair,
The State argues that the merger doctrine does not apply to attempted kidnapping, but only to the “substantive” crime of kidnapping. We disagree. We find no support for the argument that the merger doctrine, in this context, does not apply to inchoate crimes. In fаct, the court in Blair applied the merger doctrine to the inchoate offense of attempted kidnapping. See Blair,
The State next asserts that the merger doctrine does not apply because the State did not have to prove that the defеndant attempted to confine A.T. for the purpose of committing an offense against her. See RSA 633:1,1(d). Alternatively, the State maintains that even if it had such a burden, it proved that the defendant intended to commit the offense of witness tampering. Our merger analysis here, however, cоmpares the attempted restraint alleged in the attempted kidnapping charge with the actions supporting the attempted AFSA charge. That the State was not required to prove the elements of kidnapping under RSA 633:1, 1(d) to sustain the charge of attempted kidnaрping is irrelevant to our analysis.
Finally, the State contends that because the AFSA and kidnapping statutes are intended to prohibit different types of criminal activity, the trial court did not err in failing to apply the merger doctrine. However, by adopting the merger doctrine, wе recognized that it is unlikely the Legislature intended to criminalize restraint that is integral to other crimes, “even though kidnapping might sometimes be spelled out literally from the statutory words.” Levy,
We hold that the trial court erred by denying the defendant’s motion to dismiss the attempted kidnapping charge based upon the merger doctrine. Accordingly, we reverse the defendant’s attempted kidnapping conviction.
Any issues raised in the defendant’s notice of appeal but not addressed in his brief are deemed waived. See State v. Locke,
Affirmed in part and reversed in part.