The defendant, Jason Wilbur, appeals his convictions for aggravated felonious sexual assault. He argues that: (1) the trial court erred when it imposed consecutive sentences for a pattern of digital sexual penetration and a single act of digital penetration; and (2) the prosecutor's comments in closing argument constituted misconduct. We affirm.
Two indictments produced aggravated felonious sexual assault convictions in this case: the first alleged that the defendant committed a pattern of sexual assaults against the victim by digital penetration; the second alleged a single act of digital penetration. Both indictments covered the same five-year period of time. At sentencing, the State recommended consecutive sentences. Defense counsel responded: "I think the fact that the two charges that he was found guilty of are the same course of conduct, one is for a single act and one is for more than one act, and I don't think it's appropriate to do a consecutive sentence on the same course of conduct." The State disagreed that it was the same course of conduct. Defense counsel responded: "[M]y argument is that the patterned sentence is the same language, the one charge was digital penetration and then the second charge was a pattern because it was digital penetration more than one time. . . . it's essentially the same conduct and [ ] it shouldn't be punished twice with two consecutive, stand committed sentences."
The defendant concedes that his trial counsel did not cite the State Constitution in arguing against the imposition of consecutive sentences and acknowledges that our review of his claim of error is therefore limited to the Federal Constitution, see State v. Fichera, 160 N.H. 660, 662 (2010). The State argues that even this claim of error has not been preserved for our review. We will assume without deciding that the defendant has preserved for our review the issue of whether the imposition of consecutive sentences for his convictions violated the Double Jeopardy Clause of the Federal Constitution.
The standard for determining whether multiple charges constitute the "same offense" for double jeopardy purposes is identical regardless of the particular scenario in which a double jeopardy challenge is raised. State v. Hannon, 151 N.H. 708, 713 (2005). Two offenses will be considered the same unless each requires proof of an element that the other does not. Id. "[T]he test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of an additional fact which the other does not. . . ." Brown v. Ohio, 432 U.S. 161, 166 (1977) (quotation omitted).
In Hannon, we held that the simultaneous prosecution of the defendant for pattern sexual assault and for a single act of sexual assault did not violate the Double Jeopardy Clause of the Federal Constitution. Id. at 715. In reaching this conclusion, we cited State v. Fortier, 146 N.H. 784, 791 (2001), in which we explained that the pattern statute criminalizes a continuing course of sexual assaults, not isolated instances. Hannon, 151 N.H. at 714. A jury need not be unanimous on the underlying acts comprising the pattern offense, but need only unanimously agree that the defendant engaged in more than one act of sexual assault as defined in RSA 632-A:2 and:3 provided that they find the requisite number of acts occurred during the statutory time period. Fortier, 146 N.H. at 791. In this case, there was evidence of multiple sexual assaults at different locations during the five-year period alleged in the indictments. Under Fortier, if the jury in this case found that the defendant had committed two or more assaults during the charged time frame, it would not necessarily have unanimously agreed that he committed the same acts or that one of the acts comprising the pattern was the one charged in the "single act" indictment. Consequently, the State's evidence of the "pattern" offense would not necessarily sustain a conviction on the "single act" charge. See Hannon, 151 N.H. at 714. Moreover, because the "pattern" offense requires proof of two or more sexual assaults, evidence of the "single act" charge alone could not sustain a conviction for the "pattern" offense. See id. Accordingly, we conclude that the defendant's right to be free from double jeopardy under the Federal Constitution was not violated.
The defendant also argues that the prosecutor's comments in his closing argument constituted misconduct. He concedes that his counsel did not object to the remarks at trial but asks that we review his argument under our plain error rule. See Sup. Ct. R. 16-A. Although the plain error rule allows us to consider arguments not brought to the attention of the trial court, we limit its use to those circumstances in which a miscarriage of justice would otherwise result. State v. Ortiz, 162 N.H. 585, 590 (2011).
In examining claims of prosecutorial misconduct during closing argument, we are asked to balance the prosecutor's broad license to fashion argument with the need to ensure that a defendant's rights are not compromised in the process. State v. Scognamiglio, 150 N.H. 534, 537 (2004). A prosecutor is granted great latitude in closing argument both to summarize the evidence and to urge the jury to draw inferences of guilt from the evidence. Id. at 538.
In support of his contention, the defendant cites the following two emphasized excerpts from the State's closing argument:
So then they say, "Okay, fine, but it wasn't – it wasn't my guy. Wasn't the Defendant. Must have been Mr. Dixon." And what's the problem with that? It was confirmed here that that happened, as Defense attorney just said, when [the victim] was two or three, maybe even four. And we know that happened because Dixon manned up about it, he admitted he had a problem and confessed. Defendant, Defense attorney points out to you, he denied it. Yeah, he denied it for about four minutes, ended the interview, and said, "You know what, my father got away with this so I'm going to fight it in court." So here we are. That's not a real denial.
And consider that, if you're accused of this, you're going to do this for three minutes and then leave, or are you going to explain your story? Defense attorney wanted to point out how he denied it. You consider if that's a real denial or that's a go down and, "I'm not saying anything, " and going away.
As a third claim of prosecutorial misconduct, the defendant cites the State's later assertion: "It is crystal clear that what [the victim] told you was the truth. And if you believe [the victim] on the stand, you're going to hear from the judge that you do not need any other corroboration. . . . So if you believe [the victim] beyond a reasonable doubt, as you should, you have enough to convict him of all these crimes."
The defendant argues that the reference to Dixon "manning up" encouraged the jury to compare the defendant with an individual who had admitted that he had assaulted the victim at an earlier point in his life and to punish him for asserting his innocence. This limited excerpt, however, does not include defense counsel's earlier closing remarks, which asserted: "First of all, there's no doubt that [the victim] was molested. She told you about it. She said Mr. Dixon molested her. He went – he confessed and he was punished for it. But there is a reasonable doubt as to whether [the defendant] did the things that [the victim] said happened." Accordingly, the State's argument appears to be tailored to respond to the comparison argument first raised by defense counsel.
The defendant argues that the State's reference to his decision to terminate the interview after "three minutes" was an improper reference to his "pre-arrest silence." Even if we assume without deciding that the defendant's conduct might be construed as "pre-arrest silence, " we disagree with the defendant's claim of error. We note first that defense counsel asserted during her opening statement that the detective stopped questioning the defendant "after five or six minutes of [his] denial." Her remarks indicated that after the defendant's unwavering statements that he never touched the victim, the investigator decided to end the interview. The evidence at trial, however, indicated that it was the defendant who ended the interview. Moreover, that evidence had come in without objection during the State's case. Even if we construe the State's limited remarks to be a comment on the defendant's pre-arrest silence, the law is unsettled as to whether it was permissible for the State to cite it in its closing argument, particularly given the trial record before us indicating that the defendant was not completely silent but made some statements to the officer. Accordingly, we decline to find error under our plain error ...