After a jury trial in Superior Court (Sullivan, J.), the defendant, David Johnson, was convicted of attempted aggravated felonious sexual assault, see RSA 629:1 (1996); RSA 632-A:2 (1996) (amended 1997, 1998), and acquitted of aggravated felonious sexual assault accomplished by surprise, see RSA 632-A:2, I(i). The defendant contends thаt the trial court erred in denying his motion to dismiss the attempt indictment, improperly instructing the jury, failing to require the State to elect between indictments, denying several pretrial motions, and granting certain motions in limine. We affirm.
The jury could have found the fоllowing facts. On December 9, 1995, the defendant, the female victim, a male acquaintance, and a female acquaintance went to dinner and rented a hotel room for the evening. The defendant told his male friend that the dеfendant “was paying for dinner and he was paying for the hotel so he’d better get some.” The group viewed pornographic movies and consumed
The victim reported these events to the police, alleging also that the defendant digitally penetrated her while she slept. The defendant appeals his conviction of attemptеd aggravated felonious sexual assault.
The defendant first argues that the attempted aggravated felonious assault indictment violated Part I, Article 15 of the New Hampshire Constitution by not alleging elements of the intended offense. The defendant contends that the conduct alleged in the indictment, without an allegation of an intent to cause sexual penetration, fails to charge attempted aggravated felonious sexual assault, and instead chаrges attempted misdemeanor sexual assault. See RSA 682-A:4 (1996), :1, IV (1996) (amended 1998). The defendant also argues that the State was required to allege the circumstances under which penetration would have been accomplished by identifying the appropriate subsection or subsections of RSA 632-A:2, I. We disagree.
The indictment states:
[W]ith the purpose that the crime of Aggravated Felonious Sexual Assault be committed, [David Johnson] purposely committed the following acts: (1) he pinned [the victim] tо a bed by sitting on top of her; (2) he tried to pull off her underwear; and (3) he pulled her shorts off of her, which under the circumstances as he believed them to be, were acts constituting a substantial step toward the commission of the crimе of Aggravated Felonious Sexual Assault.
In order to satisfy Part I, Article 15, an indictment must describe the offense with sufficient specificity to ensure that the defendant can prepare for trial and avoid double jeopardy. State v. Therrien,
Attempt is an inchoate crime, see State v. Bean,
The attempt statute requires the State to identify the intended offense, but does not require the State to plead and prove the elements of the intended offense. See RSA 629:1, I; State v. Allen,
Accordingly, we hold that in this case the State was not required to charge a statutory subsection of aggravated felonious sexual assault. The State was also not required to explicitly allege that the defendant acted with the purpose to cause sexual penetration. Because the indictment alleges that the defendant acted with the purpose to commit аggravated felonious sexual assault, the defendant was effectively charged with having the purpose to in some manner sexually penetrate, as opposed to cause misdemeanor sexual contact with, the victim. Compare RSA 632-A:2, I (requiring sexual penetration) with RSA 632-A:4 (requiring sexual contact). The indictment cannot reasonably be construed to allege an attempt to commit variants of aggravated felonious sexual assault that do not require penetration because the indiсtment does not indicate that
The indictment alleges the elements of attempted aggravated felonious sexual assault and factually identifies the offense in describing the overt steps the defendant took to accomplish it. The indictment was sufficient to enable the defendant to prepare his defense and will prоtect him from double jeopardy. We conclude that the trial court properly denied the defendant’s motion to dismiss.
The defendant next argues that the trial court erred in failing to instruct the jury (1) regarding statutory variants of aggravated fеlonious sexual assault, see RSA 632-A:2, I, and (2) that it must find that the defendant acted with the purpose to cause sexual penetration as opposed to sexual contact. We review jury instructions in their entirety to determine whether they fairly covered the issues and law of the case. See State v. Cegelis,
We have already determined that statutory variants of aggravated felonious sexual assault are not elements of the crime of attempted aggravated felonious sexual assault. It necessarily follows that the trial court was not obligated to instruct the jury on a statutory variant of the intended offense. With respect to the issue of the defendant’s intent, the trial court instructed the jury that it must find that he acted with the purpose to commit aggravated felonious sexual assault. To the extent the jury questioned whether the completed crime of aggravated felonious sexual assault involved sexual penetration or just sexual contact, which the defendant implies may have occurred during deliberations, it could have easily referred to the court’s immediately preceding instruction on aggravated felonious sexual assault, which sufficiently explained the legal concept of sexual penetration. We find no error in the trial court’s instruction viewed in its entirety.
Next, the defendant argues that the trial court erred by not requiring the State to elect between the aggravated felonious sexual assault and attempt indictments. We review the trial court’s decision for an abuse of discretion. See State v. Coolidge,
In his argument on the election issue, the defendant makes passing references to the sufficiency of thе evidence, the clarity of the State’s arguments to the jury, the clarity of the court’s jury instructions, and the trial court’s allegedly improper amendment of the indictments through jury instructions. His assertions have no bearing on whether the trial court should have required the State to elect between the two indictments in this case. The trial court’s authority to compel election of charges is “directed toward eliminating the threat of prejudice created when the State brings multiple charges or indictments when seeking a single conviction.” Stratton,
The defendant next challenges rulings that precluded him from deposing, and at trial questioning, the victim concerning her medical history, relationships with her parents and boyfriend, alleged fear of her father and men in general, and reasons for living with a friend. The defendant contends that the victim’s personal and familial relationships were psychological stressors that somehow created an incentive for her to fabricate rape сharges to gain “approval, attention and/or revenge.” The trial court ruled that such stresses were not relevant to the victim’s ability to testify truthfully, but permitted the defendant latitude to question her as to whether they might have affected her ability to perceive and explain the defendant’s actions. The defendant argues on appeal that the trial court “limited [him]- to simply asking [the victim] about stresses without being able to go into . . . the underlying reasons for these stresses,” thus precluding him from exploring issues relevant to her motive to fabricate criminal charges.
We review the trial court’s decisions on the management of discovery and admissibility of evidence for an abuse of discretion. See State v. Lewis,
“[A] witness’s mental health may be relevant to that witness’s credibility.” State v. Dewitt,
The defendant raised an issue in his notice of appeal concerning the admissibility of certain photographs but failed to address it in his brief. That issue is deemed waived. See State v. Colbert,
Affirmed.