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State v. Lavallee

Supreme Court of New Hampshire

April 10, 2018

State of New Hampshire
v.
Keith Lavallee

         Following 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.

         The 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 bum?"

         Later 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 morning.

         Although 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 her.

         As a 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 simple assault.

         Before 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.

         New 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 if they:

(A) Are alleged to have occurred during a single criminal episode; or
(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).

         Joinder 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.

         In 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.

         In this 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 ...


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