After a jury trial in Superior Court (Gray, J.), the defendant, David Paulsen, was convicted of two counts of aggravated felonious sexual assault, RSA 632^:2, I(j)(2) (1996), and one count of endangering the welfare of a child, RSA 639:3, III (1996). We affirm in part, reverse in part, and remand for resentencing.
I
The following facts were adduced at trial. The victim was four years old when the defendant married her mother in 1982. Although her mother and the defendant separated in September 1993, the victim continued to live with the defendant through the beginning of 1994.
The first incident of sexual intercourse between the victim, then fourteen years old, and the defendant occurred in August or September 1992. The victim testified that this sexual relationship continued through the beginning of April 1994. She was fifteen years old when the final act of sexual intercourse occurred. In May 1994, the victim reported the abuse to Detective Adriane Ware of the Portsmouth Police Department, who conducted an investigation.
The defendant was subsequently indicted on four charges relating to the abuse. Two indictments charged him with aggravated felonious sexual assault, one charging the first act of sexual'intercourse, the other charging the last. The other two indictments charged him with endangering the welfare of a child.
Prior to trial, the defendant unsuccessfully sought to dismiss the endangerment indictments, arguing that they were unconstitutionally duplicitous because they charged the offenses as courses of conduct rather than as single acts. The superior court dismissed one of the indictments sua sponte on the second day of trial. The defendant was subsequently. convicted by a jury on the three remaining indictments.
On appeal, the defendant argues that the trial court erred in: (1) denying his motion to.dismiss the surviving endangerment indictment; (2) denying his motion for a directed verdict of acquittal on the endangerment indiсtment; (3) addressing the admissibility of certain evidence in the presence of the jury; and (4) denying his motion for a new trial based on ineffective assistance of counsel.
We first address the defendant’s argument that the remaining endangerment indictment was unconstitutionally duplicitous because it charged the offense as a course of conduct rather than as a single act.
The indictment alleged that the defendant
committed the crime of endangering the welfare of a child in that, he knowingly engaged in a continuous course of conduct involving acts of sexual intercourse with K.B., his less than 16 year old step-daughter.
Whether the endangerment indictment was duplicitous is a question of law, which we review de novo, see Byblos Corp. v. Salem Farm Realty Trust,
Duplicitous indictments are unconstitutional because they fail to ensure notice to the defendant, protect against double jeopardy, and assure the reliability of a unanimous jury verdiсt. State v. Patch,
RSA 639:3, III states that
the solicitation by any person of a child under the age of 16 to engage in sexual activity as defined by RSA 649-A:2, III for the purpose of creating a visual representation as defined in RSA 649-A:2, PVJ or to engage in sexual penetration as defined by RSA 632-A:l, V, constitutes endangering the welfare of suсh child.
(Emphasis added.)
While RSA 639:3, III uses the term “solicitation” in the singular, the term is not defined in RSA chapter 639. Therefore, the statute defining the crime of “solicitation” guides us. See State v. Lucius,
The unlawful solicitation invоlved in this case would be the defendant’s requests “to engage in sexual penetration as defined by RSA 632-A:l, V" which defines “sexual penetration” to include “sexual intercourse,” the act alleged in the endangerment indictment. See RSA 632-A.-1, V(a) (1996). Both RSA 639:3, III, the endangerment provision, and RSA 632-A:l, V, the sexual penetration provision, use the singular when referring to the unlawful act. Each act of sexual penetration would support a separate crime just as each act of sexual contact would support a separate crime. Cf. Patch, 135 N.H. at 128,
In Portigue, the defendant was convicted of one count of endangering the welfare of a child under RSA 639:3, I (1996),
by purposely violating a duty of protection which he, the child’s father, owed to [his daughter] in that he permitted [the mother] to engage in conduct which caused bodily injury to [his daughter]: to wit, [thе mother] did intentionally beat [the daughter] ... during the period of March, 1981, to January 9, 1982, and thereby caused [the daughter’s] death.
Portigue,
By alleging a “continuous course of conduсt involving acts of sexual intercourse” as a violation of RSA 639:3, III, the indictment at issue constituted more than one offense, and thus was duplicitous. See Patch,
Accordingly, we hold that the trial court erred in denying the defendant’s motion to dismiss the endangerment indictment. Because our determination on this issue is dispositive of the endangerment count, we need not address the defendant’s motion for a
Ill
We next consider the defendant’s argument that the trial court erred in addressing the admissibility of certain evidence in the presence and hearing of the jury. During the direct examination of Detective Ware, the following exchange occurred:
[STATE]: What did you do in terms of making out a charge in this arrest?
[DEFENSE]: Objection, Your Honor. This is not relevant.
THE COURT: How is it relevant?
[STATE]: What I’d like to do is get into the develoрment of the time frames in the charges. In other words, this man has now been charged with a crime and part of that involves putting together the facts, putting together the many time frames. [Detective Ware] worked on putting together the time frame. I intend to question so the jury can understand exactly how the charges were derived.
THE COURT: What element does it go to?
[STATE]: It doesn’t go to an element, obviously, because time is not an element but the charges do differentiate separate time frames and I intend to differentiate those and in addition, I think it goes beyond that and gets into places in the road and places in the town where it occurred.
[DEFENSE]: The jury knows how the charges came and what they are. We’re here to decidе what the — whether the charges are true or not.
THE COURT: I understand that. I understand that. I still am not sure how it’s relevant. Explain that more.
[STATE]: Well, I need to differentiate between two Class A charges. They are differentiated*453 by time and by place, and this is a professional witness. I intend to have her go over how that is done by the police department, and she will testify — I аssume, Your Honor, as well she will testify —
[DEFENSE]: Objection, Your Honor. The nature of this speaking objection is allowing him to put his case in front of the jury when it should be done at side bar.
THE COURT: Now, let me tell you something, [defense counsel], you and I have nothing to hide. I believe a jury can here [sic] an objection and if I say disregard it, that jury is going to disregard that. I have that faith in the jury systеm. We don’t need to approach the bench every time an objection is made. It can be made right in front of the jury and that’s the way I run my courtroom and all of — unless it’s something that really needs a side bar —
[DEFENSE]: I understand.
THE COURT: — such as a point of law, can be made right in front of the jury. When I tell them to disregard that, they will do that. Now, that objection is sustained.
[DEFENSE]: Thank you.
The defendant first allеges that the trial court erred in failing to permit defense counsel to approach the bench when he objected to the State’s questioning of the witness. Superior Court Rule 66(a) provides:
When stating an objection, counsel will state only the basis of the objection (e.g., “leading,” “non-responsive,” or “hearsay”), provided, however, that upon counsel’s request, counsel shall be permitted a reasonable opportunity to approach the bench to elaborate and present additional argument or grounds for the objection.
(Emphasis added.) Under Rule 66(a), objecting counsel must first ask to approach the bench before the court is required to permit a side bar. When defense сounsel finally requested a side bar in this
The defendant next argues that the trial court’s failure to curtail this “speaking objection” contravenes New Hampshire Rule of Evidence 103(d). Rule 103(d) states that “[i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.” There is no mandatory requirement that evidentiary disputes be discussed outside the hearing of the jury. The use of the limiting language, “to the extent practicable,” clearly provides the trial court with disсretion to decide what information should be shielded from the jury in a particular case. See N.H. R. Ev. 103(d) Reporter’s Notes.
Whether the trial court abused its discretion is determined on a case-by-case basis provided that the objecting party has properly preserved the issue. As noted above, once defense counsel objected to the “speaking objеction” and requested a side bar, the judge sustained his objection and did not permit further argument on that issue in front of the jury. Defense counsel not only engaged in the “speaking objection” himself, but also failed to timely request a side bar. Accordingly, we hold that he failed to preserve this issue for appellate review.
The defendant also contends that the judge’s statements to the defense attorney were prejudicial. We need not address this argument, however, as the defendant made no objection below. See State v. Ross,
IV
We finally address the defendant’s argument that the trial court erred in denying his motion for a new trial based upon ineffective assistance of counsel. Although the defendant’s motiоn for a new trial raised both State and federal constitutional claims, on appeal the defendant relies solely on the New Hampshire Constitution, and therefore we so limit our analysis. Cf. Turgeon,
To prevail on his claim of ineffective assistance of counsel, the defendant must establish “first, that counsel’s performance was
The gravamen of the defendant’s inеffective assistance claim is that counsel did not adequately inform him of his absolute right to testify in his own defense at trial. During the hearing on the motion for a new trial, however, the defendant admitted he knew “like every American knows” that he had the right to testify. He claims that he did not exercise this right because he understood that the attorney was suppоsed to “call the shots” in the case.
The defendant urges us to presume prejudice under the facts of this case. We will presume prejudice “if the defendant can show that the attorney entirely failed to subject the prosecution’s case to meaningful adversarial testing.” State v. Anaya,
In determining whether the defendant has established actual prejudice, we examine the totality of the evidence before the jury. See Wisowaty,
Accordingly, we affirm the defendant’s two convictions for aggravated felonious sexual assault and reverse his conviction for endangering the welfare of a child. We remand for resentencing because evidence of the unconstitutional endangerment conviction may have affected the sentences imposed.
Affirmed in part; reversed in part; remanded.