Argued October 10, 2013.
Hillsborough-northern judicial district.
Michael A. Delaney, attorney general ( Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.
[166 N.H. 96] Hicks, J.
The defendant, Osahenrumwen Ojo, appeals his conviction of theft by deception, see RSA 637:4 (2007), following a jury trial in Superior Court ( Brown, J.). The conviction followed a previous jury trial, also in Superior Court ( Brown, J.), for a related charge, which ended in a mistrial [166 N.H. 97] based upon a hung jury. On appeal, he argues that the Double Jeopardy Clause of the New Hampshire Constitution barred the second trial. See N.H. Const. pt. I, art. 16. We affirm.
The record supports the following facts. On September 17, 2009, a Hillsborough County grand jury returned an indictment charging the defendant with a single count of theft by deception. The indictment alleged that the defendant " obtained or exercised control over the property of another by deception and with a purpose to deprive him thereof" by depositing in his Citizens Bank checking account two checks on April 8, 2009, and, the following day,
cashing his own check for $6,000 drawn on the account. One of the checks, issued by the LEAR Corporation, was for $3,975 (the LEAR check). The second check, issued by Allstate Insurance, was for $1,989.96 (the Allstate check).
The defendant stood trial in February 2012. After the State rested, he moved to dismiss the indictment based upon insufficient evidence regarding the LEAR check, which the trial court denied. At a subsequent bench conference involving proposed jury instructions, the State conceded that it had the burden of proving fraud with regard to both checks. Thus, the trial court instructed the jury that " it's not enough that the State has proven beyond a reasonable doubt that the Defendant's use of one or the other of the checks was unlawful." Rather, the court instructed, " [t]o find the Defendant guilty, you must unanimously decide that he acted to defraud the bank by his use of both the LEAR check and the Allstate check." The jury deadlocked, and the court declared a mistrial over the defendant's objection.
On April 20, 2012, the State obtained two substitute indictments, each alleging theft by deception for a single invalid check (the LEAR check and the Allstate check, respectively). The State then nolle prossed the original indictment. On June 4, 2012, the Trial Court ( Brown, J.) denied the defendant's motion to dismiss both charges, in which he argued that, because the evidence at the first trial was insufficient, retrial would violate his double jeopardy rights. Nonetheless, at a pretrial motions hearing that same day, the Trial Court ( Abramson, J.) dismissed the indictment based upon the LEAR check after the State informed the court that, as to that check, it could not produce any evidence beyond that which it introduced during the first trial. In June 2012, the defendant stood trial on the indictment based upon the Allstate check, resulting in his conviction of theft by deception. This appeal followed.
On appeal, the defendant argues that Part I, Article 16 of the New Hampshire Constitution " should be construed to bar retrial where (a) the defendant moved to dismiss the charge based on insufficiency of the [166 N.H. 98] evidence, (b) the evidence was legally insufficient, and (c) the court declared a mistrial over the defendant's objection." See N.H. Const. pt. I, art. 16. The issue of double jeopardy presents a question of constitutional law, which we review de novo. State v. Fischer, 165 N.H. ___, ___, (decided November 26, 2013). Because the defendant argues only under the State Constitution, we ...