The opinion of the court was delivered by: Conboy, 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: November 28, 2012
Following a jury trial in Superior Court (Colburn, J.), the defendant, Daniel Casanova, was convicted of attempted kidnapping, see RSA 629:1 (2007); RSA 633:1 (2007), and attempted aggravated felonious sexual assault (attempted AFSA), see RSA 629:1; RSA 632-A:2 (Supp. 2012). On appeal, he argues that: (1) he was denied a unanimous jury verdict on the attempted AFSA charge; and (2) he was entitled to a dismissal of the attempted kidnapping charge based upon the "merger doctrine." We affirm in part and reverse in part.
The jury could have found the following facts. On July 12, 2010, A.T., the seven-year-old female victim, and her younger sister were playing on the porch outside of their home in Nashua. A.T. was wearing a bathing suit. Across the street there is a bicycle path, portions of which are obstructed from view by trees and other vegetation. While A.T. was playing, she saw a man, later identified as the defendant, on a bicycle at the end of her driveway. The defendant told A.T. and her sister to "come over." Believing that she knew him,
A.T. approached the defendant.
The defendant led A.T. across the street, along the bicycle path, and into a small clearing adjacent to the path. The distance between A.T.'s home and the clearing is approximately 207 feet. Once in the clearing, the defendant pulled A.T.'s bathing suit bottom down to her feet. A.T. immediately pulled up her bathing suit bottom and started to leave. The defendant then reached out and touched her hand before she left; however, A.T. was able to "get away" and return to her home. Once at home, A.T. informed her mother about what had occurred.
The defendant was subsequently arrested and charged with attempted AFSA and attempted kidnapping. Following a jury trial, he was convicted of both charges. This appeal followed.
The defendant first argues that the trial court denied him a unanimous verdict on the attempted AFSA charge. The attempted AFSA indictment alleged, in pertinent part:
[T]hat [the defendant], with the purpose that the crime of [AFSA] be committed against a child under the age of 13, escorted A.T. (born in 2003) to an isolated wooded area and pulled down her bathing suit bottom, which, under the circumstances as he believed them to be, constituted a substantial step toward the commission of the crime . .
Pursuant to RSA 632-A:2, a person is guilty of AFSA against a child under the age of thirteen if he either engages in sexual penetration with the child, see RSA 632-A:2, I(l), or "intentionally touches whether directly, through clothing, or otherwise, the genitalia of [the child] under circumstances that can be reasonably construed as being for the purpose of sexual arousal or gratification," RSA 632-A:2, II.
At trial, the defendant argued that the jury was required to unanimously agree which act - penetration or touching for sexual gratification - he intended to commit. The trial court rejected this argument and instructed the jury that they "must all agree that the Defendant intended to either engage in sexual penetration of the other person or in the touching of the other person's genitalia under circumstances that can be reasonably construed as being for the purpose of sexual arousal or gratification." The defendant argues that this instruction allowed the jury to convict him without being unanimous as to the elements constituting attempted AFSA because the two variants of AFSA require different elements. We disagree.
Juries must be unanimous only as to each element of an offense. See RSA 625:10 (2007); see also State v. Munoz, 157 N.H. 143, 147 (2008). Here, the defendant was charged with and convicted of attempted AFSA. Attempt is an inchoate crime that is considered a substantive offense in and of itself. Munoz, 157 N.H. at 147. 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. State v. Johnson, 144 N.H. 175, 178 (1999). Statutory variants of AFSA are not elements of the crime of attempted AFSA. See id. at 179. Because penetration and touching for sexual gratification are statutory variants of AFSA, see id. at 178-79, the jurors were not required to unanimously find which specific act the defendant intended to commit; it was sufficient that they unanimously concluded that the defendant intended to commit either variant. Therefore, we hold that the trial court's jury instruction did not deprive the defendant of a unanimous verdict.
Next, the defendant argues that the trial court erred by denying his motion to dismiss the attempted kidnapping charge. He contends that the "merger doctrine" prohibits his conviction for attempted kidnapping because the evidence failed to show that he attempted to confine A.T. in a manner independent of his efforts to commit attempted AFSA.
A person commits the crime of attempted kidnapping when, "with a purpose that [kidnapping] 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" of kidnapping. RSA 629:1; State v. Bean, 153 N.H. 380, 386 (2006). One commits the crime of kidnapping "if he knowingly ...