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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Hillsborough-southern judicial district No. 2010-269

THE STATE OF NEW HAMPSHIRE v. HECTOR ORTIZ Argued: June 9, 2011 Opinion Issued: October 27, 2011 Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Dorothy E. Graham, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DALIANIS, C.J. The defendant, Hector Ortiz, appeals his convictions by a jury on two counts of aggravated felonious sexual assault (AFSA), one of which alleged pattern AFSA, see RSA 632-A:2 (Supp. 2010), one count of felonious sexual assault (FSA), see RSA 632-A:3 (Supp. 2010), and one count of endangering the welfare of a child, see RSA 639:3 (2007). On appeal he argues that the Superior Court (Groff, J.) erred by failing to dismiss the pattern AFSA indictment and making the sentence on the pattern AFSA charge consecutive to the sentence he received for the other AFSA charge after having initially informed him that the sentences would run concurrently. He also argues that

the trial court committed plain error when it instructed the jury on the wrong mental state for the FSA charge and admitted certain lay testimony. We affirm. I. Motion to Dismiss Pattern AFSA Charge The defendant first argues that the trial court erred when it did not dismiss the pattern AFSA charge. At the close of the State's case, the defendant moved to dismiss this charge because the indictment failed to include the definition of a pattern, as set forth in RSA 632-A:1, I-c (2007). The State objected to the motion on the grounds that it was untimely, see Super. Ct. R. 98, and that, even if timely, the indictment adequately apprised the defendant of the crime with which he was charged. The trial court denied the motion, ruling that the indictment was not defective. The defendant contends that the pattern indictment was defective under the State Constitution because it failed to contain all of the elements of the pattern variant of AFSA. See N.H. CONST. pt. I, art. 15. Part I, Article 15 of the State Constitution requires that an indictment describe the offense with sufficient specificity to ensure that the defendant can prepare for trial and avoid double jeopardy. State v. Ericson, 159 N.H. 379, 384 (2009). To be constitutional, the indictment must contain the elements of the offense and enough facts to notify the defendant of the specific charges. Id. "An indictment generally is sufficient if it recites the language of the relevant statute; it need not specify the means by which the crime was accomplished or other facts that are not essential to the elements of the crime." Id. The pattern variant of AFSA is set forth in RSA 632

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