a jury trial, the defendant, Keith Lavallee, was convicted of
aggravated felonious sexual assault, attempted aggravated
felonious sexual assault, criminal restraint, indecent
exposure, and domestic violence. On appeal, he argues that
because the charges result from two different assaults, the
Trial Court (Brown, J.) erred when it denied his
motion to sever. We affirm.
record contains the following evidence. On April 18, 2016,
the defendant invited the victim to come to his home. He
texted her that he had left two vodka nips and a Flexeril
pill in her car and instructed her to consume them before
coming to his house that night. When she arrived at his home,
he gave her another nip. After they had consensual sex, she
fell asleep. Based on physical evidence that she observed
after she left his home early the next morning, she believed
that he had anally penetrated her while she was sleeping. She
texted him, asking, "Is there something you want to tell
me about last night . . . while I was sleeping?" He
responded: "What, that I tried to come in your
that same morning, April 19, 2018, the defendant drove the
victim's car to transport her to two appointments.
Between the appointments, they drove around and consumed a
pint of vodka. After the second appointment, they bought
another pint of vodka to consume. The defendant, however,
sideswiped a car and the victim's car was towed. Walking
toward the defendant's home, the victim bought a bottle
of wine at a gas station. She remembered nothing after the
gas station until she woke up in the hospital that evening.
When she was advised that the defendant had been arrested,
she told the investigating officer about the April 18 assault
and showed her the text message exchange of earlier that
the victim remembered nothing of the April 19 assault, four
witnesses from a nearby office observed her and the defendant
on a grassy strip across the street. The victim was lying
down. She initially did not appear to be alert and her pants
were down around her knees. The defendant was inserting his
hands inside the victim; one witness testified that the
defendant "was thrusting his arm up inside of her."
As the victim began to move and tried to get up, the
defendant threw her to the ground and physically assaulted
result of the April 18 assault, the defendant was indicted on
one count of aggravated felonious sexual assault. As a result
of the April 19 assault, the defendant was indicted on two
counts of aggravated felonious sexual assault, two counts of
attempted aggravated felonious sexual assault, and one count
of criminal restraint, and charged by information with one
count of indecent exposure and one count of domestic violence
trial, the defendant moved to sever the April 18 aggravated
felonious sexual assault charge from the remaining charges.
The court denied his motion. Following his conviction, he
filed this appeal in which he argues that the court erred in
finding: (1) that the charged offenses were related; and (2)
that joinder would not prejudice him.
Hampshire Rule of Criminal Procedure 20(a)(2) provides:
"If a defendant is charged with two or more related
offenses, either party may move for joinder of such charges.
The trial judge shall join the charges for trial unless the
trial judge determines that joinder is not in the best
interests of justice." Two or more offenses are related
(A) Are alleged to have occurred during a single criminal
(B) Constitute parts of a common scheme or plan; or
(C) Are alleged to have occurred during separate criminal
episodes, but nonetheless, are logically and factually
connected in a manner that does not solely demonstrate that
the accused has a propensity to engage in criminal conduct.
N.H. R. Crim. P. 20 (a)(1).
is a discretionary decision; we review the trial court's
decision to determine whether it is sustainable. State v.
Brown, 159 N.H. 544, 555 (2009). To succeed on appeal,
the defendant must demonstrate that the trial court's
ruling was clearly untenable or unreasonable to the prejudice
of his case. Id.
Brown, we held that whether offenses that occur
during separate criminal episodes are related in a manner
other than propensity "is largely determined by the
close relationship among the offenses with respect to both
the underlying charged conduct and the evidence to be used to
prove the charges." Id. at 551. We set forth
the following factors to aid in determining whether charges
arising from separate criminal episodes are related: (1) the
temporal and spatial relationship among the underlying
charged acts; (2) the commonality of the victim(s) and/or
participant(s) for the charged offenses; (3) the similarity
in the defendant's mode of operation; (4) the duplication
of law regarding the crimes charged; and (5) the duplication
of witnesses, testimony and other evidence related to the
offenses. Id. at 551-52.
case, the trial court found: (1) the assaults were less than
twenty-four hours apart and, except for a short break, the
defendant and the victim were together almost continuously
during this period; (2) the defendant and the victim were the
same; (3) the police and hospital staff who responded to the
second incident had information relating to both assaults and
were potential witnesses at both trials if the charges were
severed; and (4) although the location of the assaults was
different, the circumstances were the same in that the
defendant assaulted the victim while "she was
intoxicated and/or drugged to the point of near, or actual
unconsciousness." Based on these findings, the court
concluded that "the offenses are ...