Argued April 11, 2013.
Michael A. Delaney, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.
Following a jury trial in Superior Court ( Houran, J.), the defendant, Michael G. Cheney, was convicted of aggravated felonious sexual assault (AFSA), kidnapping, theft by unauthorized taking, aggravated driving while intoxicated, disobeying an officer, and reckless conduct. See RSA 632-A:2 (2007); RSA 633:1 (2007); RSA 637:3 (2007); RSA 265-A:3 (Supp. 2007); RSA 265:4 (2004); RSA 631:3 (2007). The defendant's convictions arise from events occurring in late December 2008 when the defendant sexually assaulted the victim, tied her up and stole her car, and thereafter attempted to elude police officers in a high speed chase. On appeal, he argues that the trial court erroneously denied his motions to dismiss the AFSA and reckless conduct indictments. We affirm.
I. AFSA Indictments
The defendant first argues that the trial court erred by denying his motion to dismiss the AFSA indictments. The defendant was charged with three counts of AFSA pursuant to RSA 632-A:2, I(c) (coerced sexual penetration by threat of use of physical violence or superior physical strength). At the close of the State's case, the defendant moved to dismiss [165 N.H. 679] these indictments on the ground that they failed to sufficiently allege the element of threatening to use physical violence or superior physical strength. The State objected, arguing that the indictments sufficiently set forth all the elements of the crime. The trial court denied the motion, ruling that the indictments were not defective.
The defendant maintains on appeal that the AFSA indictments were defective under the State and Federal Constitutions because they failed to contain an essential element of the AFSA variant charged. See N.H. Const. pt. I, art. 15; U.S. Const. amend. XIV. The State argues that the defendant's motion, brought after the State rested its case, was untimely, and, therefore, our review of this claim is limited to plain error analysis. The State, however, did not raise this issue before the trial court; we, therefore, decline to consider it on appeal. See State v. Sterndale, 139 N.H. 445, 448, 656 A.2d 409 (1995).
Because the defendant raises a question of constitutional law and statutory interpretation, our review is de novo. State v. Marshall, 162 N.H. 657, 661, 34 A.3d 540 (2011). We first consider 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, 471 A.2d 347 (1983).
Part I, Article 15 of the State Constitution provides that " [n]o subject shall be held to ...