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).
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.
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).
See also Stewart v. Commonwealth, 306 S.W.3d 502, 506 (Ky. 2010) (holding that continued possession of contraband is a single course of conduct that gives rise to a only single offense); Fulcher v. Commonwealth, 149 S.W.3d 363, 376 (Ky. 2004) (approving other jurisdictions' conclusion that "uninterrupted possession of the same contraband over a period of time is but one offense constituting a continuing course of conduct, precluding convictions of multiple offenses for possession of the same contraband on different dates"); State v. Kamaka, 277 S.W.3d 807, 811-12 (Mo.App. 2009) (holding that the defendant's possession of the same computer file of child pornography on two different dates constituted a single offense). And see State v. Farr, 160 N.H. 803, 7 A.3d 1276, 1281-82 (2010) (discussing appellate decisions from around the country on the issue of when separate convictions for possession are legally justified). As we noted earlier, three of Wiglesworth's convictions were based on his possession of iodine (a "listed" chemical) at different locations on different dates.
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.
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.
" 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.
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).
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).)