State v. Sales

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by email at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: https://www.courts.nh.gov/our-courts/supreme-court. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district Case No. 2024-0239 Citation: State v. Sales, 2026 N.H. 36 THE STATE OF NEW HAMPSHIRE v. JUSTIN SALES Argued: February 10, 2026 Opinion Issued: October 6, 2026 John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and Audriana Mekula, assistant attorney general, orally), for the State. Thomas Barnard, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant. GOULD, J. [¶1] The defendant, Justin Sales, appeals his convictions, following a jury trial in Superior Court (Nicolosi, J.), on two counts of aggravated felonious sexual assault-domestic violence (AFSA), see RSA 632-A:2, I(e) (2016), seven counts of stalking-domestic violence, see RSA 633:3-a, I(c) (2016), six counts of indirect criminal contempt, see RSA 597:7-a, II, IV (2001) (amended 2024), seventeen counts of witness tampering, see RSA 641:5, I (2016), one count of criminal restraint, see RSA 633:2, I (2016), three counts of second degree assault-domestic violence, see RSA 631:2, I(c) (2016), and nine counts of simple assault-domestic violence, see RSA 631:2-b, I(a) (Supp. 2021). The defendant does not appeal his conviction for criminal threatening, see RSA 631:4, I(d) (2016). We affirm in part and reverse in part. I. Statement of Facts [¶2] The jury could have found the following facts. The defendant and the victim were in a romantic relationship and lived in an apartment in Manchester. About a week prior to September 18, 2022, the defendant accused the victim of infidelity. The victim denied the allegation, but the two agreed to end their romantic relationship. They continued living together as roommates. [¶3] In the early morning hours of September 18, 2022, the defendant and the victim drank nearly a bottle of whiskey and talked. The defendant then went to a club while the victim went to bed. Later that morning, the defendant returned to the apartment and woke the victim. The defendant tried to engage the victim in conversation but she told him to leave her alone. The victim observed that the defendant “was very intoxicated.” The victim left the bedroom and entered the living room. From the living room, the victim overheard the defendant yelling in the bedroom. The defendant then followed the victim into the living room. [¶4] In the living room, the defendant grabbed the victim by the neck with both hands and began choking her on the floor. The defendant then began alternating between choking the victim and hitting her. The defendant accused the victim of sleeping with someone else and threatened to kill the victim. The victim testified that the defendant hit her “everywhere” including her face, arms, back, and legs. The victim’s face was bleeding. At trial, the victim did not remember how many times the defendant had hit her or any specific strike. The victim fought back and tried to get away throughout the encounter, but the assault continued. [¶5] The assault proceeded into the kitchen where the defendant continued to choke the victim and also bit her multiple times. Shortly after the assaults subsided, the victim went to the bathroom to wash her face. The defendant then entered the bathroom and asked the victim to perform oral sex. The victim agreed because she “was scared not to.” They also had sexual intercourse in the bathroom, to which the victim also agreed because she “was scared.” The defendant eventually fell asleep and the victim left the apartment. The victim obtained emergency medical attention and reported the incident to the police. 2  [¶6] Later that morning, the police arrested the defendant. The next day, the Trial Court (Messer, J.) issued bail orders ordering that the defendant be detained pending trial and that he have no contact with the victim. While incarcerated before trial and over the course of months, the defendant called and spoke with the victim on a “regular basis” and sent her multiple text messages. In numerous of these communications, the defendant encouraged the victim to lie about the assaults and withhold information from the police. The defendant also discouraged the victim from testifying at trial. During this period, the defendant attempted more than 1,600 calls to the victim. [¶7] The State charged the defendant with three counts of second degree assault, four counts of AFSA, nine counts of simple assault, nineteen counts of witness tampering, seven counts of stalking, six counts of criminal contempt, and one count each of criminal restraint, resisting arrest, criminal threatening, and criminal mischief. After a trial, the jury acquitted the defendant of two AFSA charges, resisting arrest, criminal mischief, and two witness tampering charges and convicted the defendant on the remaining charges. This appeal followed. II. Analysis A. AFSA Convictions [¶8] The defendant first argues that the evidence was insufficient to support the AFSA convictions. A challenge to the sufficiency of the evidence raises a question of law, which we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). When considering such challenges, we objectively review the entire record to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt, considering the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State. Id. We examine each item of evidence in the context of the entire case and not in isolation. Id. In doing so, we recognize that the trier of fact may draw reasonable inferences from facts proved as well as from facts found as the result of other inferences, provided they can be reasonably drawn therefrom. See id. The defendant bears the burden of demonstrating that the evidence was insufficient to prove guilt. Id. [¶9] The defendant was charged with engaging in sexual penetration in the form of fellatio and intercourse with the victim “when [the victim] submitted under circumstances involving false imprisonment or kidnapping.” The defendant relied on a consent defense at trial. On appeal, the defendant argues that the evidence was insufficient because (1) it did not prove that, at the time the defendant and the victim engaged in sexual activity, the defendant confined the victim and (2) it did not prove lack of consent. We disagree. 3  [¶10] The State charged the defendant with violating RSA 632-A:2, I(e): “A person is guilty of the felony of aggravated felonious sexual assault if such person engages in sexual penetration with another person under any of the following circumstances: . . . When the victim submits under circumstances involving false imprisonment, kidnapping or extortion.” RSA 632-A:2, I(e). While the statute does not define “false imprisonment” or “kidnapping,” see id., those terms are separately defined elsewhere in the Criminal Code. RSA 633:3 provides, “A person is guilty of a misdemeanor if he knowingly confines another unlawfully, as defined in RSA 633:2, so as to interfere substantially with his physical movement.” RSA 633:3 (2016). RSA 633:2, II provides, in part, “The meaning of ‘confines another unlawfully,’ as used in this section and RSA 633:3, includes but is not limited to confinement accomplished by force, threat or deception.” RSA 633:2, II (2016). RSA 633:1 provides, in part, “A person is guilty of kidnapping if he knowingly confines another under his control with a purpose to: . . . Commit an offense against him.” RSA 633:1, I(d) (2016). [¶11] The defendant argues that because he discontinued his physical assaults just prior to the sexual assaults, the jury could not have found that the victim was confined. To begin with, the relevant statutes do not preclude the State from proving confinement resulting from fear of further assaults. RSA 633:2, II (“The meaning of ‘confines another unlawfully,’ as used in this section and RSA 633:3, includes but is not limited to confinement accomplished by force, threat or deception.” (emphasis added)); see State v. Casanova, 164 N.H. 563, 566 (2013) (“The Criminal Code does not limit the nature of the confinement necessary to satisfy RSA 633:1.”). When the evidence is viewed in the light most favorable to the State, moreover, the jury could have found beyond a reasonable doubt that the victim was confined by means of a threat at the time of the sexual activity given the earlier physical assaults. See State v. Niemeyer, 782 A.2d 658, 665-66 (Conn. 2001) (concluding there was sufficient evidence to prove criminal restraint where “through repeated physical and verbal abuse and intimidation” the defendant frightened the victim into remaining in a bedroom for several hours), overruled on other grounds by State v. Douglas C., 285 A.3d 1067, 1095 (Conn. 2022); Commonwealth v. Brown, 846 N.E.2d 782, 785-86 (Mass. App. Ct. 2006) (concluding that a victim remaining in place following an assault because the defendant had “scared her and she was too frightened to attempt to leave” amounted, in part, to evidence of confinement sufficient to prove a kidnapping variant of aggravated rape). The victim also testified that she was afraid to leave while the defendant was awake as her prior attempts at escape resulted in further physical assaults. Indeed, the victim did not leave the apartment until the defendant fell asleep. In short, the jury could have found beyond a reasonable doubt that, because of the physical abuse she had just experienced, the victim was not free to leave at the time the sexual acts took place. [¶12] As to consent, while it is true that the victim testified that the defendant “did not make [her] do it,” that she “did allow it,” that it was her “free 4 choice,” and that she considered the sex consensual, the victim also testified that she consented because she was “scared” and “scared not to.” The victim also testified that she “didn’t want it to happen” and that she felt like she had to have sex with the defendant. Viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence for a rational jury to find beyond a reasonable doubt that despite her characterizations of her state of mind the victim did not consent to the sexual activity. The victim had just been battered repeatedly by the defendant. The jury could have reasonably inferred that the victim thought that resisting sexual contact with the defendant in the immediate wake of his physical assaults would provoke further beatings. See State v. Berry, 593 S.W.2d 254, 255 (Mo. Ct. App. 1980) (“Intercourse not resisted because of fear is not with consent.”); State v. Locklear, 284 S.E.2d 500, 503 (N.C. 1981) (“Fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent to the sexual act takes the place of force and negates the consent.”). Furthermore, during the physical assaults the defendant accused the victim of having been intimate with someone else. A rational jury could have concluded beyond a reasonable doubt that the victim feared that refusing sexual contact with the defendant would reignite his jealousy and lead to further physical assaults. While the physical assaults themselves were sufficient to vitiate consent, the defendant’s accusation and jealousy provided the jury with an additional rationale for its conclusion that the victim did not consent. Accordingly, we affirm the defendant’s AFSA convictions. B. Contempt and Stalking [¶13] The defendant next argues that the evidence was insufficient to support the convictions for stalking and contempt. The defendant’s argument is premised on the proposition that the trial court was not authorized by RSA 597:2 to prohibit him from communicating with the victim while he was detained.1 The State argues that the defendant’s argument “incorrectly limits a court’s power to order preventive detention without bail under RSA 597:2, IV, as well as the general authority of courts to manage their own cases.” We conclude that there was insufficient evidence to support the convictions for stalking and contempt. [¶14] The seven stalking charges alleged that, contrary to RSA 633:3-a, I(c), the defendant, “after being served with a bail order pursuant to RSA 597:2 . . . which prohibits contact with [the victim] . . . recklessly engaged in a single act of conduct that both violates the provisions of the bail order and RSA 633:3-a, II(a)(7)” when he sent texts to the victim. RSA 633:3-a, I(c) provides, 1 While we question the defendant’s framing this argument as a matter of sufficiency of the evidence, because the defendant has presented the argument in this fashion, we resolve it as argued. 5 in relevant part, “A person commits the offense of stalking if such person: . . . After being served with . . . an order pursuant to RSA 597:2 that prohibits contact with a specific individual, purposely, knowingly, or recklessly engages in a single act of conduct that both violates the provisions of the order and is listed in paragraph II(a).” RSA 633:3-a, I(c). In turn, RSA 633:3-a, II(a)(7) provides, “A course of conduct may include . . . any of the following acts: . . . Any act of communication, as defined in RSA 644:4, II.” RSA 633:3-a, II(a)(7) (2016). The six contempt charges alleged that, contrary to RSA 597:7-a, the defendant purposely violated a criminal bail protective order preventing contact with the victim when he called the victim from jail. [¶15] In ruling on the defendant’s motion to dismiss these charges at trial, the trial court (Nicolosi, J.) concluded that the judge who issued the bail orders had authority, either under the bail statute or under common law, to issue the no-contact provision of the orders. The interpretation of a trial court order is a question of law, which we review de novo. In re Guardianship of D.E., 173 N.H. 550, 563 (2020). As we interpret the bail orders, we conclude that the only authority upon which the trial court (Messer, J.) relied when it issued the bail orders was the bail statute. Accordingly, we need not address the State’s argument that trial courts have common law authority, notwithstanding the bail statute, to issue no-contact orders to detained defendants awaiting trial and we must instead determine only whether RSA 597:2 permitted the trial court to impose a no-contact condition as part of its bail order detaining the defendant. [¶16] Resolving this question requires that we engage in statutory interpretation. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Boucher v. Town of Moultonborough, 176 N.H. 271, 274 (2023). We give effect to every word of a statute whenever possible and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We also construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. We do not construe statutes in isolation; instead, we attempt to construe them in harmony with the overall statutory scheme. Id. [¶17] We begin by observing that the version of RSA 597:2 in place at the time the trial court issued the defendant’s bail orders differs from the current version of the statute. Compare RSA 597:2 (Supp. 2021) with RSA 597:2 (Supp. 2025) (amended 2026, eff. Jan. 1, 2027). Accordingly, we analyze the former version of the statute to resolve this appeal. We agree with the defendant that RSA 597:2 does not permit a court to impose a no-contact order upon a defendant who is detained, rather than released on bail. RSA 597:2 permits trial courts to order the pretrial release of a defendant “subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that 6 the court may require.” RSA 597:2, III(b)(1) (Supp. 2021) (amended 2024, 2025, 2026); see also RSA 597:2, III(a) (Supp. 2021) (amended 2024, 2025) (noting possible restrictive conditions of release relating to safety of the public). RSA 597:2, VII, moreover, provides, “In a release order issued pursuant to this section, the court shall include a written statement that sets forth: . . . All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct.” RSA 597:2, VII (Supp. 2021) (amended 2024, 2025) (emphases added). The statute contemplates that a no-contact order may be part of a bail order. See RSA 597:2, V (Supp. 2021) (amended 2024, 2025). RSA 597:7-a, II and IV each permit criminal prosecution for violations of conditions of release. See RSA 597:7-a, II, (Supp. 2021) (amended 2024, 2025), IV (Supp. 2021) (amended 2024, 2025). [¶18] Taken together, these provisions of RSA 597:2 permit trial courts to impose various conditions, including no-contact orders, upon defendants released pending trial, but the statute provides no authority for a trial court to impose such conditions on a detained defendant. Because the stalking and contempt charges are each premised on the validity of the no-contact order issued pursuant to RSA 597:2, and the statute does not permit such a condition to be placed upon a detained defendant, the evidence is insufficient to support the defendant’s convictions of these charges. Accordingly, the defendant’s stalking and contempt convictions are reversed. C. Double Jeopardy [¶19] The defendant next argues that the trial court committed plain error because several of his convictions and sentences were imposed in violation of his state and federal rights against double jeopardy. Specifically, the defendant argues that the trial court erred by imposing convictions and sentences for: (1) multiple witness tampering charges; (2) criminal restraint and the charged assaults; and (3) second degree assault and three counts of domestic violence. We begin by stating the relevant double jeopardy law and the plain error standard before addressing each of the defendant’s specific arguments. [¶20] The application of the guaranty against double jeopardy presents a question of constitutional law subject to de novo review. See State v. Lynch, 169 N.H. 689, 706 (2017). Part I, Article 16 of the New Hampshire Constitution and the Fifth and Fourteenth Amendments to the United States Constitution protect a defendant from being punished twice for the same offense. State v. Chalpin, 176 N.H. 680, 690 (2024), 2024 N.H. 36, ¶28. This court and the United States Supreme Court have said that the double jeopardy clauses of our respective constitutions provide three double jeopardy protections: (1) protection against subsequent prosecution for the same offense after acquittal; (2) protection against subsequent prosecution for the same offense after 7 conviction; and (3) protection against multiple punishments for the same offense. State v. Wilson, 169 N.H. 755, 772 (2017). The defendant’s arguments invoke his right to protection from multiple punishments. [¶21] Multiple punishment cases come in two varieties. Lynch, 169 N.H. at 706. First, there are so-called “double-description” cases, in which the issue is whether two statutes describe two separate offenses or are merely different descriptions of the same offense. Id. Second, there are “unit of prosecution” cases in which the problem is not that the same course of conduct is proscribed by more than one statute but that a defendant’s continuing course of conduct comprises more than one violation of a single statutory provision. See id. The defendant’s arguments raise both “double-description” and “unit of prosecution” issues. [¶22] Under the State Constitution, both issues are resolved under the “same evidence” test. See State v. Ramsey, 166 N.H. 45, 51 (2014) (“In both ‘double description’ and ‘unit of prosecution’ cases, we examine whether proof of the elements of the crimes as charged will require a difference in evidence.”). Two offenses will be considered the same for double jeopardy purposes unless each requires proof of an element that the other does not. State v. Miller, 177 N.H. 249, 259 (2025), 2025 N.H. 11, ¶28. 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. Id. “[T]he essential question is whether the facts charged in the second indictment would, if true, have sustained the first.” State v. Brooks, 137 N.H. 541, 542 (1993) (quotation omitted). [¶23] In “double-description” cases under the Federal Constitution, the inquiry is whether each offense contains an element not contained in the other. See Blockburger v. United States, 284 U.S. 299, 304 (1932). “Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is at an end,” however. Ohio v. Johnson, 467 U.S. 493, 499 (1984). “Legislatures, not courts, prescribe the scope of punishments.” Missouri v. Hunter, 459 U.S. 359, 368 (1983). [¶24] Under the Federal Constitution, the “[d]etermination of the proper unit of prosecution is a function of the legislature’s intent.” State v. Bailey, 127 N.H. 811, 814 (1986). Thus, the touchstone of whether the double jeopardy clause is violated in this context is the legislature’s articulated intent. See Albernaz v. United States, 450 U.S. 333, 344 (1981); see Bailey, 127 N.H. at 814. [¶25] The defendant raises his double jeopardy arguments as plain error. See Sup. Ct. R. 16-A. Plain error is used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. State 8 v. Batista-Salva, 171 N.H. 818, 824 (2019). To find plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights. State v. Maxi, 176 N.H. 455, 459 (2024), 2024 N.H. 8, ¶7. If all three conditions are met, we may then exercise our discretion to correct an unpreserved error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. See id. The defendant bears the burden of demonstrating plain error. Batista-Salva, 171 N.H. at 824. 1. Witness Tampering [¶26] The defendant argues that the trial court erred by imposing multiple punishments for the seventeen witness tampering charges because each charge was based upon the defendant’s phone calls to the victim in an attempt to influence her testimony in a single proceeding. The defendant argues that the appropriate unit of prosecution under the witness tampering statute “is each ‘person’ and each ‘official proceeding . . . or investigation.’” According to the defendant, “multiple attempts to influence a single witness in a single proceeding cannot justify multiple punishments.” We disagree. [¶27] Under the State Constitution, we must determine whether the various witness tampering indictments violate the same evidence test. See Miller, 177 N.H. at 259, 2025 N.H. 11, ¶28. We conclude that they do not. Each indictment alleges a different statement from the defendant directed at the victim. Consequently, each indictment required a difference in evidence to be proven. In these circumstances, there is no double jeopardy violation under the State Constitution. [¶28] Turning to the Federal Constitution, to determine the unit of prosecution we must examine the “legislature’s articulated intent” in enacting the statute. Bailey, 127 N.H. at 814. “Absent an ambiguity, we will not look beyond the language of the statute to discern legislative intent.” Teeboom v. City of Nashua, 172 N.H. 301, 310 (2019). [¶29] RSA 641:5, I, provides, in part: A person is guilty of a class B felony if: I. Believing that an official proceeding . . . or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a person to: (a) Testify or inform falsely; or (b) Withold any testimony, information, document or thing . . . . 9 Based upon the plain language of the statute, we conclude that the legislature intended the unit of prosecution to be each attempt “to induce or otherwise cause a person” to testify or inform falsely or to withhold evidence. RSA 641:5, I. As the defendant observes, “[t]he gravamen of the offense is the attempt to cause ‘a person’ to perform certain acts or omissions affecting an ‘official proceeding . . . or investigation.’” Given this unit of prosecution, the defendant’s convictions and sentences on the witness tampering charges do not violate the federal double jeopardy clause. [¶30] The defendant argues that “[d]efining the unit of prosecution as each attempt to influence a witness would lead to harsh, incongruous and uneven outcomes.” The defendant suggests that in this case because the defendant attempted to call the victim over 1,600 times, “if each call was made with the purpose to discourage or influence [the victim’s] testimony, [the defendant] could be convicted and sentenced on over 1,600 counts of witness tampering, which would imply a maximum aggregate sentence of 5,600 to 11,200 years,” a result that “is absurd on its face.” That draconian result is not before us, however. [¶31] Indeed, in this case the State exercised appropriate discretion in not charging every potential instance of witness tampering in which the defendant may have engaged. The trial court, moreover, imposed a single stand-committed sentence on one of the witness tampering charges, while imposing concurrent or suspended sentences on the remaining charges. We expect that prosecutors and trial courts will continue to exercise similar discretion in similar cases in the future. See State v. Krueger, 146 N.H. 541, 544 (2001) (stating that “we place a great deal of responsibility upon prosecutors to exercise discretion without vengeance when charging a particular defendant”); State v. Rivera, 175 N.H. 210, 214 (2022) (“We ordinarily review a trial court’s sentencing decision under our unsustainable exercise of discretion standard.”). [¶32] Because the defendant’s convictions and sentences on the witness tampering charges do not violate either the State or Federal Constitutions, we affirm them. Finding no error, we need not consider the additional elements of the plain error analysis. Miller, 177 N.H. at 260, 2025 N.H. 11, ¶35. 2. Remaining Double Jeopardy Issues [¶33] The defendant argues that the trial court erred when it imposed convictions for: (1) criminal restraint and various assaults; and (2) second degree assault and three counts of domestic violence. The defendant has not, however, demonstrated that the alleged errors were plain or affected substantial rights. Because the defendant has not met his burden of establishing all three elements of plain error, we affirm the convictions. See 10 Batista-Salva, 171 N.H. at 824 (“The defendant bears the burden of demonstrating plain error.”). III. Conclusion [¶34] Accordingly, we reverse the defendant’s convictions on stalking (Charge ID ## 2064289C, 2064290C, 2064291C, 2064292C, 2064293C, 2064294C, and 2064295C) and indirect criminal contempt (Charge ID ## 2065488C, 2065489C, 2065490C, 2065491C, 2065492C, and 2065493C). The remainder of his convictions are affirmed. Affirmed in part and reversed in part. DONOVAN and COUNTWAY, JJ., concurred; MACDONALD, C.J., sat for oral argument but did not participate in the final vote. 11