"In making this inquiry, we review and compare the statutory elements of the charged offenses in light of the actual allegations contained in the indictments." State v. Farr, 160 N.H. 803, 807 (2010) (quotation omitted).
Specifically, he avers that the certain uses of computer services prohibited offense, as charged, is a lesser-included offense of the attempted FSA offense, as charged. See State v. Farr, 160 N.H. 803, 807 (2010). Because the defendant did not raise the double jeopardy argument in the trial court, the parties agree that this issue should be reviewed under our plain error standard.
The court determined that a criminal act "'consists of the sum of discrete actions that together constitute an offense,'" and that the factors to consider in identifying an "act" include time, location, or intended purpose. (Quoting State v. Farr, 160 N.H. 803, 809 (2010).)
Our analysis would be different had the trial court sentenced the defendant on both the manslaughter and negligent homicide charges. SeeState v. Farr, 160 N.H. 803, 809, 7 A.3d 1276 (2010) ("[I]t violates double jeopardy to punish a defendant for both a lesser included and greater offense only if both derive from the same criminal act."). But the trial court did not sentence the defendant on the lesser-included negligent homicide offenses.
Accordingly, in fact, the attempted murder charge did not “subsume[ ]” the first degree assault charge; once the attempted murder charge was proved, all of the elements of the first degree assault charge were not proved. SeeState v. Farr, 160 N.H. 803, 807–09, 7 A.3d 1276 (2010) (possessing pornography charge was a lesser included offense of delivering pornography charge because proof that defendant delivered video clip necessarily constituted proof that he possessed or controlled the clip). Although Young is of analytic concern, neither party asks us to overrule it, and we are disinclined to do so at this juncture.
Accordingly, in fact, the attempted murder charge did not "subsume[ ]" the first degree assault charge; once the attempted murder charge was proved, all of the elements of the first degree assault charge were not proved. SeeState v. Farr, 160 N.H. 803, 807–09, 7 A.3d 1276 (2010) (possessing pornography charge was a lesser included offense of delivering pornography charge because proof that defendant delivered video clip necessarily constituted proof that he possessed or controlled the clip). Although Young is of analytic concern, neither party asks us to overrule it, and we are disinclined to do so at this juncture.
We review questions of constitutional law de novo. State v. Farr, 160 N.H. 803, 807, 7 A.3d 1276 (2010). We first consider the defendant's constitutional arguments under the State Constitution, referring to federal decisions only for guidance.
Here, the defendant had sufficient opportunity to cross-examine the identifying witnesses at trial. Although the First Circuit interprets the Biggers test to offer the defendant greater protection under the Federal Constitution than our [160 N.H. 803] State Constitution, First Circuit decisions are not binding upon this court even on questions of federal law. SeeMartineau v. Perrin, 119 N.H. 529, 531, 404 A.2d 1100 (1979).
Virginia is not the only jurisdiction that looks to these factors. See, e.g., Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997), limited by United States v. Forman, 180 F.3d 766, 769-70 (6th Cir. 1999); In re Richardson, 273 A.3d 342, 348 (D.C. 2022); State v. Farr, 7 A.3d 1276, 1282 (N.H. 2010); Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 2000).
" State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006) (quoting State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 524-25 (1966) ). New Hampshire also focuses on whether the acts are " ‘sufficiently differentiated by time, location, or intended purpose.’ " State v. Farr, 160 N.H. 803, 810, 7 A.3d 1276, 1282 (2010) (quoting Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997) ). See also Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000).’" Williams [v. State ], 104 So.3d [254] at 262.