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 Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 97-410
THE STATE OF NEW HAMPSHIRE
v.
DAVID JOHNSON
September 8, 1999
Philip T. McLaughlin, attorney general (Kelly A. Ayotte, assistant attorney general, on the brief and orally), for the State.
Law Office of Francis G. Holland, of Nashua (Francis G. Holland on the brief and orally), for the defendant.
HORTON, J. 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 that 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 following 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 defendant "was paying for dinner and he was paying for the hotel so he'd better get some." The group viewed pornographic movies and consumed alcohol in the hotel room, which contained two beds. When the group discussed sleeping arrangements, the defendant said that he would not sleep in the same bed with his male friend and assured the women not to worry because he was a "perfect gentleman." The victim fell asleep in one of the beds, which she had agreed to share with the defendant. The defendant subsequently woke the victim, got on top of her, forcibly attempted to remove her shorts and underwear, and kissed her stomach. When the victim told the defendant, "[N]o," he replied, "Come on, help me out," and continued his efforts to remove her shorts and underwear. Although the defendant was able to remove the victim's shorts, the victim broke free, dressed herself, and left the hotel room. Before she left, the defendant apologized.
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 attempted 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 charges attempted misdemeanor sexual assault. See RSA 632-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] to 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 crime 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, 129 N.H. 765, 770, 533 A.2d 346, 348 (1987). This is accomplished when the State alleges the elements of the offense and identifies it with pleaded facts. Id. at 770, 533 A.2d at 349.
Attempt is an inchoate crime, see State v. Bean, 117 N.H. 185, 187, 371 A.2d 1152, 1153 (1977), that is considered a substantive offense in and of itself, see State v. Harper, 126 N.H. 815, 818, 498 A.2d 310, 313 (1985). "A person is guilty of an attempt to commit a crime if, with a purpose that a crime be committed, he does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward the commission of the crime." RSA 629:1, I. "[A]n indictment charging an attempt [must] allege both an intent to commit [a crime] and an overt act in furtherance of the crime." Bean, 117 N.H. at 187, 371 A.2d at 1153.
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, 128 N.H. 390, 392-96, 514 A.2d 1263, 1265-68 (1986) (despite statutory variants of murder, an indictment for the offense of attempted murder may plead the intended crime generally). "It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape, or arson." People v. Williams, 288 N.E.2d 406, 409 (Ill. 1972) (quotation omitted); see Allen, 128 N.H. at 392-96, 514 A.2d at 1265-68; see also 2 C. Torcia, Wharton's Criminal Procedure