Argued: October 15, 2015
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Rodric R. Reinholz, appeals his convictions, following a jury trial, on two counts of pattern aggravated felonious sexual assault (AFSA), see RSA 632-A:2, III (2007), two counts of AFSA by individual acts, see RSA 632-A:2, I(l) (1996) (amended 2003), and one count of felonious sexual assault (FSA), see RSA 632-A:3, III (1996) (amended 2003). The defendant argues that the Superior Court (Bornstein, J.) erred when it admitted into evidence an "affidavit" written by the victim. He also argues that his convictions on the two pattern AFSA charges must be vacated under the rule of mandatory joinder that we adopted in State v. Locke, 166 N.H. 344 (2014). We affirm.
The jury could have found the following facts. The victim was born in November 1988. Beginning in 1991, the victim and her two brothers visited the defendant at his residence every other weekend. From about 1996 to 2001, the defendant lived at an apartment in Ashland.
At least once during each of the victim's visits with the defendant in Ashland, he sexually abused her. After showing the victim pornography, the defendant would make her touch his penis with her hands and perform fellatio. On one occasion, the defendant performed cunnilingus on her. When the victim turned 13 years old in November 2001, she stopped visiting the defendant and the abuse ceased.
In October 2010, the victim reported the assaults to the police. Thereafter, she filed a petition for a restraining order against the defendant, which was granted by the court.
In June 2011, a grand jury indicted the defendant on two counts of AFSA and three counts of FSA. See RSA 632-A:2, I(l), :3, III. Each indictment alleged that, between July 1996 and November 2001, the defendant engaged in an individual sexual act with the victim, who was under the age of 13 at the time. One AFSA charge alleged that the defendant engaged in cunnilingus (AFSA cunnilingus), while the other alleged that he engaged in fellatio (AFSA fellatio). One of the three FSA counts alleged that the defendant caused the victim to touch his penis with her hand (FSA touching). During trial in January 2012, one of the other FSA charges was dismissed. Because the jury was unable to reach a verdict on the remaining four charges, the trial court declared a mistrial.
Before retrial, in February 2012, a grand jury indicted the defendant on two counts of pattern AFSA. See RSA 632-A:2, III. Both alleged that, between July 1996 and November 2001, the defendant engaged in a pattern of sexual conduct with the victim. One pattern charge alleged that the defendant engaged in a pattern of fellatio with the victim, while the other alleged that he engaged in a pattern of causing the victim to touch his penis with her hands. After the second trial in May 2012 on the remaining charges, the jury acquitted him of one FSA charge, but convicted him on the AFSA cunnilingus, AFSA fellatio, and FSA touching charges, as well as the two pattern AFSA charges. The defendant appealed his convictions, arguing that the trial court erred when it denied his request to allow a videotape of his police interview into the jury room during deliberations. State of New Hampshire v. Rodric R. Reinholz, No. 2012-0605 (N.H. Jan. 17, 2014). Because we agreed with the defendant, we reversed the convictions and remanded. Id.
After his third trial in May 2014, which is the subject of this appeal, the defendant was again convicted on the AFSA cunnilingus, AFSA fellatio, and FSA touching charges, as well as the two pattern AFSA charges. According to the trial court, the "State elected to proceed with sentencing" on only certain charges. Accordingly, the trial court sentenced the defendant on the AFSA cunnilingus charge and the two pattern AFSA charges, but not on either the AFSA fellatio charge or the FSA touching charge. This appeal followed.
The defendant first argues that his convictions on the two pattern AFSA charges must be vacated under the rule of mandatory joinder that we adopted in Locke. Although the State asserted at oral argument that the defendant did not preserve this argument, given that we are affirming the trial court, we will assume, without deciding, that the argument is preserved.
In Locke, decided after the defendant's third trial, we held that "the common law of New Hampshire incorporates the principles set forth in Model Penal Code Section ...