The opinion of the court was delivered by: Hicks, J.
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.
Argued: September 13, 2012
The defendant, Peter E. Gibbs, Jr., appeals his convictions following a jury trial in Superior Court (Nicolosi, J.) of two counts of criminal restraint, see RSA 633:2 (2007), and one count of being an armed career criminal, see RSA 159:3-a (2002). On appeal, the defendant argues that: (1) his right against double jeopardy was violated when he was twice convicted of a single criminal restraint; (2) his right to effective assistance of counsel was violated; and (3) there was insufficient evidence to find him guilty beyond a reasonable doubt of the crime of being an armed career criminal. We affirm in part, vacate in part, and remand.
The jury could have found the following facts. In the early morning of March 16, 2008, the victim awoke in his bedroom to find a man pointing a gun at him and claiming to be a police officer. Another man stood in the hallway. Both men's faces were covered by scarves. The man with the gun tied the victim's hands and proceeded to ransack the bedroom. Subsequently, that man took the victim downstairs to the kitchen where he was placed in a chair. Shortly thereafter, he was moved to the basement and tied to a column. The man with the gun stayed in the basement with him while the other man carried some of the victim's belongings upstairs. Fifteen to twenty minutes later, the man with the gun brought the victim upstairs to the living room where he was tied to a chair. Both men then left the house. After struggling for fifteen to twenty minutes, the victim freed himself and called the police.
The defendant was charged with the crimes of being an armed career criminal, armed robbery, burglary, and three counts of criminal restraint. The criminal restraint charges were based on the defendant allegedly displaying a handgun and: (1) tying the victim's hands in his bedroom; (2) tying him to a column in his basement; and (3) tying him to a chair in the living room. The defendant waived his right to a jury trial on the armed career criminal charge.
At trial, the jury acquitted the defendant of the charge of tying the victim's hands in his bedroom. The jury found him guilty of the other two criminal restraint charges, armed robbery, and burglary. The trial court found him guilty of the armed career criminal charge. The defendant received two sentences to be served concurrently for the criminal restraint convictions.
The defendant first argues that his right against double jeopardy under the State and Federal Constitutions has been violated because the two criminal restraint convictions arose from one continuous period of confinement, and, therefore, constitute one offense for double jeopardy purposes. We first address the defendant's argument under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
Part I, Article 16 of the New Hampshire Constitution provides that "[n]o subject shall be liable to be tried, after an acquittal, for the same crime or offense." N.H. CONST. pt. I, art. 16. In addition to protecting against successive prosecutions for the same offense after acquittal or conviction, the provision has also been construed to protect against multiple punishments for the same offense. State v. Glenn, 160 N.H. 480, 486 (2010).
RSA 633:2, I, states that "[a] person is guilty of a class B felony if he knowingly confines another unlawfully in circumstances exposing him to risk of serious bodily injury." The phrase "confines another unlawfully," as used in this section, "includes but is not limited to confinement accomplished by force, threat or deception." RSA 633:2, II. To "confine" means "to hold within bounds," or "restrain from exceeding boundaries." Webster's Third New International Dictionary 476 (unabridged ed. 2002).
The defendant argues that the two criminal restraint convictions violate his right against double jeopardy because they constitute the same course of unlawful conduct and, therefore, a single offense. The State responds that there was no double jeopardy violation because the two criminal restraint convictions involved different circumstances of confinement and different risks. The State argues in the alternative that even if the defendant subjected the victim to only one period of confinement, he was still subjected to "two episodes of illegal restraint."
We have had no occasion to address whether, and under what circumstances, a defendant may face multiple indictments for criminal restraint based upon a continuing course of criminal conduct. Our review of other authorities, however, supports the generally accepted principle that a defendant may not be charged multiple times for a crime of interfering with another person's freedom - such as kidnapping or criminal confinement - unless the victim has been freed and subsequently restrained again. See, e.g., People v. Palacios, 161 P.3d 519, 522 (Cal. 2007); State v. Stouffer, 721 A.2d 207, 215 (Md. 1998); People v. La Marca, 144 N.E.2d 420, 424-25 (N.Y. 1957); cf. United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999) (agreeing with several jurisdictions that kidnapping is a "unitary crime" that "does not end until the victim is free"). We adopt this approach and conclude that the unlawful confinement element of RSA 633:2 begins when the confinement is initiated and ends only "when the victim both feels and is, in fact, free" from the confinement. Idle v. State, 587 N.E.2d 712, 717 (Ind. Ct. App. 1992); see also Bunch v. State, 937 N.E.2d 839, 848-49 (Ind. Ct. App. 2010) (holding that three counts of criminal confinement violated double jeopardy where victim was moved at gunpoint throughout home during burglary), transfer denied, 950 N.E.2d 1196 (Ind. 2011); State v. Jones, 916 P.2d 1119, 1123 (Ariz. Ct. App. 1995); State v. Freeney, 637 A.2d 1088, 1091 (Conn. 1994). This interpretation comports with the plain meaning of the statute because confining an individual necessarily involves a period of time in which the individual is deprived of his freedom.
Our review of the record reveals that the defendant engaged in only one episode of criminal restraint. For the purposes of our analysis, we need review only the acts for which the defendant was convicted, which include tying the victim in the basement and then in the living room, during which, both times, the defendant was displaying a gun. The defendant's confinement of the victim was continuous because the victim at no point felt free to leave. See, e.g., Bunch, 937 N.E.2d at 848-49; Jones, 916 P.2d at 1123; Idle, 587 N.E.2d at 717. The confinement, which occurred over the course of thirty to forty minutes, began when the victim was tied to a column in the basement, continued as he was brought upstairs and tied to the living room chair, and ended only when he was able to free himself after the defendant and his accomplice departed. Furthermore, the defendant restrained the victim with only one intent − to prevent him from interfering with the burglary. See Freeney, 637 A.2d at 1091. Further, there is no evidence that the victim felt free during his movement between these areas because his movement was always controlled by the burglars and he was continually aware ...