Argued January 15, 2015
Affirmed in part; and vacated in part.
Joseph A. Foster, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
Following a jury trial in Superior Court ( Vaughan, J.), the defendant, Steven P. Collins, was convicted on one count of aggravated felonious sexual assault (AFSA), RSA 632-A:2, III (2007), and two counts of felonious sexual assault (FSA), RSA 632-A:3, II (Supp. 2014). All three charges involved the same victim: the AFSA charge alleged a " pattern" of sexual assaults occurring on or between January 1, 2009, and November 30, 2009; and the two FSA charges alleged specific instances of sexual assault occurring within that same time period. On appeal, the defendant argues the trial court erred by: (1) denying the defendant's motion to dismiss the pattern AFSA charge for insufficient evidence that the sexual assaults occurred " over a period of 2 months or more" as required by RSA 632-A:1, I-c (2007); (2) overruling the defendant's objection to the State's closing argument, which allegedly advocated for the use of a prior inconsistent statement as substantive evidence; and (3) imposing a sentence on one of the FSA convictions to run consecutively to the sentence on the pattern AFSA conviction in violation of the federal Double Jeopardy Clause. We affirm in part and vacate in part.
The jury could have found the following facts. In 2009, the victim, age fourteen, became acquainted with the defendant and his wife, Michelle Collins, through community dinners held by churches in the Lebanon area. Soon thereafter, the victim began visiting the defendant and his wife at their trailer home in Grafton. After several visits, the victim began spending the night at the Collinses' home.
During the first weekend that the victim spent with the Collinses, after Michelle Collins was asleep, the defendant led the victim outside and placed a blanket on the ground. He then removed their clothes, and had sexual intercourse with the victim on the blanket. Afterward, he told her not to tell anyone about what had happened because, if she did, he would get in trouble.
The victim testified that the defendant subsequently had sexual intercourse with her " many times." On each occasion, at night, the defendant led the victim outside, laid down the blanket, and had sexual intercourse with her. He then told the victim not to tell anyone.
In 2010, the victim informed her mother of the multiple incidents, and her mother then notified the police. The defendant was subsequently indicted on one count of AFSA and two counts of FSA. The AFSA indictment alleged " a pattern of sexual assault," by engaging in sexual intercourse with the victim on more than one occasion on or between January 1, 2009, and November 30, 2009. The FSA indictments alleged two discrete incidents, one during which the defendant engaged in sexual intercourse with the victim between January 1, 2009, and August 8, 2009, and another between August 9, 2009, and November 30, 2009.
During trial, at the end of the State's case, the defendant moved to dismiss the pattern AFSA charge, arguing that the State had introduced insufficient evidence of a " pattern of sexual assaults." The defendant asserted that the State had not demonstrated the assaults occurred " over a period of 2 months or more and within a period of 5 years" ...