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State v. McKean11/19/2001
State to prove that the defendant "confined another under his control with the purpose to terrorize her," while the criminal threatening indictment did not. The elemental evidence required to prove the indictments is thus different, "regardless of the evidence the State elected to produce in support of each charge." State v. Crate, 141 N.H. 489, 492 (1996); see also State v. Nickles, 144 N.H. 673, 679-80 (2000).
Our conclusion is not altered because, under the facts in this case, both the kidnapping and criminal threatening indictments required proof that the defendant ordered his wife into a car. " he similarity of evidence used to prove some of the elements does not mean that the same evidence is required for all of the elements." Liakos, 142 N.H. at 731-32.
Nor are the two offenses the same for double jeopardy purposes because the acts comprising each offense arise from the same course of events. See Ford, 144 N.H. at 66. "If a difference in evidence is required to sustain the offenses charged, the fact that they relate to and grow out of one transaction does not make them a single offense when two or more are defined by statutes." Heald v. Perrin, 123 N.H. 468, 471 (1983) (quotation omitted); see also MacLeod, 141 N.H. at 429 (aggravated driving while intoxicated and second degree assault were not the same offense for double jeopardy purposes where proof of intoxication was necessary only to the former and excessive rate of speed was necessary only to the latter).
We conclude, therefore, that the two offenses as charged were not the same for double jeopardy purposes.
Affirmed.
NADEAU, J., concurred; GROFF, O'NEILL and ARNOLD, JJ., superior court justices, specially assigned under RSA 490:3, concurred.
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