Ramos013

Modified 4/7/03
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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________
Hillsborough-northern judicial district
No. 2001-564
THE STATE OF NEW HAMPSHIRE
v.
JULIO RAMOS

Argued: October 9, 2002

Opinion Issued: February 14, 2003

Philip T. McLaughlin, attorney general (Nicholas Cort,

assistant attorney general, on the brief and orally), for the
State.
Richard E. Samdperil, assistant appellate defender, of
Concord, by brief and orally, for the defendant.

BROCK, C.J. The defendant, Julio Ramos, was convicted by a

jury of one count of felonious sexual assault, see RSA 632-A:3
(Supp. 2002), and one count of aggravated felonious sexual assault,
see RSA 632-A:2 (Supp. 2002), against L.B. He was also convicted
of one count of aggravated felonious sexual assault against A.O.,
see id. The defendant appeals, arguing that the Superior Court
(Barry, J.) erroneously denied his motion to sever the charges for
trial. Because we adopt a new standard for our trial court to
utilize in the granting or denial of severance, we reverse and
remand.
The defendant is the half brother of Vilma and Maria Ramos.
Maria is the mother of A.O. and Vilma is the mother of L.B. The
charges involving A.O. concern incidents occurring during the
last two weeks of November 1999, when the defendant lived with
A.O.'s family and shared a bedroom with A.O. A.O., who is mildly
mentally retarded and, at the time, was twenty-three years old,
slept on a couch, while the defendant slept in A.O.'s bed. On at
least three occasions during this two-week period, the defendant
shook A.O. awake, threatened to hurt him, his mother, and
grandmother, and then performed fellatio on him. A.O. did not
immediately report these incidents.
The charges involving L.B. arose out of an incident that
occurred on September 2, 2000, when L.B.'s grandmother, Dolores
Rodriguez, was babysitting him and six other children at her
apartment. L.B. was eight years old at the time. The defendant
was temporarily living with Rodriguez, sleeping on a mattress in
a corner of her bedroom. At some point in the evening, Rodriguez
brought L.B. into her bedroom. The defendant asked L.B. to lie
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down next to him on the mattress on the floor. The defendant
then started to rub L.B.'s buttocks with his hand. After
approximately fifteen minutes, Rodriguez left the bedroom to use
the bathroom. When she returned, she saw the defendant touching
L.B.'s "whole body," and leaving his hand on L.B.'s genital
area. L.B. testified that the defendant put his hand down his
pants and fondled his penis.

When Vilma returned to Rodriguez's apartment that evening,

she learned about what had happened. She took L.B. to the police
station and reported the assault. The next morning, she called
her sister Maria to tell her what had happened. Maria then
questioned her son, A.O., who revealed that in November 1999, the
defendant had assaulted him as well. Eventually, Maria reported
the assault to the police.
In October 2000, a grand jury issued six indictments, four
alleging assaults against A.O. and two alleging assaults against
L.B. The defendant moved to sever the A.O. charges from the L.B.
charges, which the court denied. Following a trial on all six
indictments, the State nol prossed one of the A.O. indictments.
The jury acquitted the defendant on two of the A.O. indictments,
but found him guilty on the remaining three indictments.
On appeal, the defendant argues that severance was required
because the charges involving A.O. and those involving L.B. were
unrelated. Consolidation, he argues, served no legitimate State
goal and permitted the jury to consider evidence that otherwise
would have been inadmissible under New Hampshire Rule of Evidence
404(b), thus depriving him of his fundamental rights to due
process and a fair trial. See U.S. CONST. amends. V, XIV; N.H.
CONST. pt. I, art. 15.
The State counters that consolidation was appropriate
because the charges involving A.O. and those involving L.B.
pertain to discrete events, the evidence of which was concise,
simple and not likely to confuse the jury. The State further
asserts that evidence of one set of charges would have been
admissible under Rule 404(b) in a separate trial of the other set
of charges to explain the delay in reporting the A.O. assaults.
Cf. State v. Berry, 148 N.H. 88, 91-92 (2002). Even if evidence
of one set of charges would have been inadmissible in a separate
trial of the other set of charges, the State argues that
consolidation did not prejudice the defendant and furthered the
legitimate public policy of conserving judicial and prosecutorial
resources.
Because Part I, Article 15 of the State Constitution is at
least as protective of the defendant's rights in this area as the
Federal Constitution, we need not undertake a separate federal
analysis. See State v. Haley, 141 N.H. 541, 543-45 (1997). We
consider the defendant's claims under our State Constitution and
use federal law only as an analytic aid. See State v. Cobb, 143
N.H. 638, 655 (1999).
We will uphold the trial court's decision not to sever cases
unless we conclude that the decision constitutes an unsustainable
exercise of discretion. State v. Manna, 130 N.H. 306, 309
(1988); cf. State v. Lambert, 147 N.H. 295, 296 (2001)
(explaining "unsustainable exercise of discretion" standard).
To show that the trial court's decision is unsustainable, the
defendant must demonstrate that the ruling was "clearly
untenable or unreasonable to the prejudice of his case."
Lambert, 147 N.H. at 296 (quotation omitted). The focus of our
inquiry is upon whether joinder jeopardized the defendant's right
to a fair trial. See State v. Winders, 127 N.H. 471, 473 (1985).

Traditionally, we have liberally permitted joinder of

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criminal offenses for trial, asking only "whether the evidence
in support of each offense was brief, simple and unlikely to
confuse a jury, and easily referable to each crime." State v.
Cote, 129 N.H. 358, 367 (1987); see State v. Fecteau, 133 N.H.
860, 869 (1991). We have held that charges need not be "related
or part of a common scheme or plan" to be consolidated. Manna,
130 N.H. at 310; see State v. Bergmann, 135 N.H. 97, 102 (1991).
We have also held that evidence of each crime need not be
admissible in a trial of the other under Rule 404(b). See
Bergmann, 135 N.H. at 102.
Under our traditional approach, we would be compelled to
affirm joinder of the charges at issue because, as the State
notes and as our review of the record reveals, the evidence in
support of each charge was brief, simple, not likely to confuse
the jury, and easily referable to each crime.
The trial on the two sets of charges lasted just two days.
The two events that were the subject of the original six
indictments were discrete events that occurred over nine months
apart, and the evidence of each event was easily separable from
that of the other. Four witnesses testified as to the assaults
on A.O., while five different witnesses testified as to the
assault on L.B. In addition, the court cautioned the jury to
consider each offense separately. Further, the jury demonstrated
that it considered each charge separately by acquitting the
defendant on two of the charges involving A.O. See United States
v. Edgar, 82 F.3d 499, 504 (1st Cir.) (no prejudice from joinder
where jury showed itself "clearly capable of discriminating
among the evidence applicable to each count" by acquitting
defendant on one count, being unable to reach a verdict on nine
counts, and convicting defendant on three counts), cert. denied,
519 U.S. 870 (1996); Cote, 129 N.H. at 368. Moreover, although
not required by our jurisprudence, we note that the evidence of
the L.B. assaults might have been admissible in a separate trial
of the A.O. charges to explain A.O.'s delay in reporting. Cf.
Berry, 148 N.H. at 91-92.

We believe, however, that our traditional approach fails to

provide meaningful guidance to trial courts endeavoring to adhere
to it, and, thus, has proven to be unworkable. See Providence
Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 304 (1994)
(principle of stare decisis does not preclude court from
revisiting decision proved to be unworkable).

For instance, we have approved joining related charges of

child sexual abuse because the evidence of each was brief, simple
and unlikely to confuse the jury, see State v. Hennessey, 142
N.H. 149, 154-55 (1997), and also have approved severing them
because of the "high potential for prejudice" in joining these
types of charges, see State v. LaBranche, 118 N.H. 176, 177-79
(1978). We have sanctioned joining charges arising from the same
criminal incident, see Cobb, 143 N.H. at 655 (not unreasonable to
consolidate child pornography and attempted felonious sexual
assault charges when they arose from same occasion), and also
have approved severing these types of charges, see State v.
Lainey, 117 N.H. 592, 594-95 (1977) (appropriate to sever
burglary charge from charge of committing burglary with
revolver).
Our jurisprudence has permitted trial courts nearly
unlimited discretion in joinder matters, making the task of
principled appellate review difficult, if not impossible. Not
surprisingly, we have rarely reversed a trial court's decision
regarding joinder or severance.
While alone this is sufficiently compelling for us to depart
from our prior precedent, we note, additionally, that our
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 Ramos013
permissive approach to joinder, particularly of unrelated
offenses, is at odds with the Federal Rules of Criminal
Procedure, the American Bar Association (ABA) Standards for
Criminal Justice, the Uniform Rules of Criminal Procedure and the
jurisprudence in other States.

We have made no distinction between related and unrelated

offenses, permitting joinder when the charges are completely
unrelated and the evidence distinct as well as when the charges
are similar and the evidence overlaps. Compare Winders, 127 N.H.
at 473-74 (joinder of two burglary charges, one committed in 1984
and the other in 1983), and Bergmann, 135 N.H. at 98-99, 101-02
(consolidation of charges alleging that in 1984, the defendant
had committed aggravated felonious sexual assault against one
child and, in 1988, had committed felonious sexual assault
against child's friend), and Fecteau, 133 N.H. at 863, 869-70
(consolidating charges regarding assault in Durham against one
woman and assault in Dover against another woman), with
Hennessey, 142 N.H. at 154-55 (consolidating "closely related"
sexual assaults committed against two brothers), and State v.
Whitney, 125 N.H. 636, 639 (1984) (joining two witness tampering
charges in part because they could be proved by common evidence).
Our case law thus permits joinder of charges against a single
defendant under virtually all circumstances.

By contrast, under the Federal Rules of Criminal Procedure,

ABA Standards for Criminal Justice, the Uniform Rules of Criminal
Procedure, and, according to jurisprudence from other States,
related and unrelated offenses are treated differently for
joinder purposes.

I. Federal Scheme

The Federal Rules of Criminal Procedure permit joinder of

offenses against a single defendant only if the offenses charged
are: (1) based upon the same act or transaction; (2) based upon
two or more acts or transactions connected together or
constituting parts of a common scheme or plan; or (3) based upon
two or more acts or transactions of the same or similar
character. See Fed. R. Crim. P. 8(a), 13.
"These first two grounds for joinder . . . have caused
little difficulty or controversy. The desirability of joinder of
offenses arising out of the same or related acts is apparent."
1A C. Wright, Federal Practice and Procedure 143, at 33 (3d ed.
1999). "There is controversy, however, about the third of the
tests" that focuses upon whether the offenses are of the "same
or similar character." Id.
Courts have devised different tests to determine whether
offenses are of the "same or similar character." For instance,
to determine whether offenses are properly joined because they
are of the "same or similar character," the First Circuit Court
of Appeals examines such factors as "whether the charges are
laid under the same statute, whether they involve similar
victims, locations, or modes of operation, and the time frame in
which the charged conduct occurred." Edgar, 82 F.3d at 503
(quotation omitted). By contrast, in the Second Circuit, crimes
are "similar" if they are "somewhat alike" or share "a
general likeness." United States v. Werner, 620 F.2d 922, 926
(2d Cir. 1980) (quotation omitted).
"Decisions applying the 'same or similar character' test
have generally failed 'to provide criteria which would provide
guidance as to the precise scope of this rule.'" Wright, supra
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 Ramos013
at 41; see United States v. Buchanan, 930 F. Supp. 657, 662 (D.
Mass. 1996) ("the line drawing between permissible and improper
joinder sometimes becomes imprecise and the standards applied
confusing"). For this reason and others, the "same or similar
character" language has been criticized. See 4 W. LaFave et
al., Criminal Procedure 17.1(b) at 597-98 (1999); Werner, 620
F.2d at 927-28.

Some commentators have noted that where offenses are joined

merely because they are of the "same or similar character,"
the benefits to the government are substantially
reduced and the benefits to the defendant are
outweighed by substantial disadvantages. For
example, unrelated offenses normally involve
different times, separate locations, and distinct
sets of witnesses and victims. As a result,
separate trials would not involve substantial
duplication of evidence, repeated burdens on
witnesses and victims, and increased drain upon
prosecutorial and judicial resources.
At the same time, the joint trial of offenses
creates a significant risk that the jury will
convict the defendant upon the weight of the
accusations or upon the accumulated effect of the
evidence. The defendant can also be disadvantaged
if the available defenses are inconsistent or if
the defendant wants to testify as to one offense
but not as to others.

LaFave, supra at 597-98 (quotation omitted).

As the Second Circuit observed:
When all that can be said of two separate
offenses is that they are of the "same or similar
character," the customary justifications for
joinder (efficiency and economy) largely
disappear. Whereas the joinder of offenses
"based on the same act or transaction" or of
offenses based "on two or more acts or
transactions connected together or constituting
parts of a common scheme or plan" is reasonable
and desirable both from the government's and the
defendant's perspective, the same cannot be said
for joinder of offenses of the "same or similar
character." In the former situations, the
government should not be put to the task of
proving what is essentially the same set of facts
more than once, and the defendant should be spared
the task of defending more than once against what
are essentially the same, or at least connected,
charges. In the latter circumstance, however, the
only time likely saved by joinder of "same or
similar character" offenses is the time spent
selecting a jury, and perhaps the time spent
examining character witnesses. On the whole,
however, the "trials" on the joined charges are
distinct. At the same time, the risk to the
defendant in such circumstances is considerable.
United States v. Halper, 590 F.2d 422, 430 (2d Cir. 1979)
(citations omitted).
Under the federal scheme, even though offenses have been
properly joined, the court nonetheless may order separate trials
if joinder would prejudice the defendant. See Werner, 620 F.2d
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 Ramos013
at 928; Fed. R. Crim. P. 14. Prejudice can be found where: (1)
the defendant may become embarrassed or confounded by presenting
separate defenses; (2) the jury may use the evidence of one of
the crimes to infer criminal disposition on the part of the
defendant from which the defendant's guilt of the other crime or
crimes charged may be found; or (3) the jury may cumulate the
evidence of the various crimes charged and find guilt when if
considered separately, it would not so find. Drew v. United
States, 331 F.2d 85, 88 (D.C. Cir. 1964); see LaFave, supra at
598. The court must weigh prejudice to the defendant against
"the obviously important considerations of economy and
expedition in judicial administration." Drew, 331 F.2d at 88.

Where the issue is whether the defendant was prejudiced

because the jury had available to it evidence of other crimes,
courts generally ask two questions: (1) whether evidence of the
other crimes would be admissible even if the court had severed
the offenses; and (2) if not, whether "the evidence of each
crime was simple and distinct." Id. at 89-92; see LaFave, supra
at 600.
If the evidence of other crimes would have been admissible
in separate trials, then there is no prejudice to the defendant
from joining the offenses for trial. "[T]he prejudice that
might result from the jury's hearing the evidence of the other
crime in a joint trial would be no different from that possible
in separate trials." Drew, 331 F.2d at 90. Even when the
evidence of one crime would have been inadmissible in a separate
trial of the other, courts have found no prejudice from joinder
when the evidence of each crime is simple and distinct. Id. at
91.

Although we have never fully embraced the federal approach

to joinder of offenses for trial, we have cited the federal rules
regarding joinder of criminal offenses for trial with approval.
Whitney, 125 N.H. at 639; State v. Freije, 109 N.H. 290, 291
(1969). Moreover, our traditional test, which focuses upon
whether the evidence in support of each offense was "brief,
simple and unlikely to confuse a jury, and easily referable to
each crime," Cote, 129 N.H. at 367, mirrors the federal "simple
and distinct" test for prejudicial joinder.

II. ABA Standards

The ABA Standards for joinder and severance of criminal
offenses for trial differ from the Federal Rules of Criminal
Procedure in at least the following respects. The ABA Standards
categorize offenses as either "related" or "unrelated."
"Related" offenses are those "based upon the same conduct,
upon a single criminal episode, or upon a common plan." 2 Am.
Bar Ass'n Standards for Criminal Justice, ch. 13, at 13ú9 (1978).
"Unrelated" offenses are those that are not "related." Id. at
13ú10. Under the ABA Standards, offenses that are "of the same
or similar character" are considered "unrelated." Id. at
13ú11.
The ABA Standards permit joinder of both related and
unrelated offenses for trial, upon application of either the
prosecuting attorney or the defense. Id. at 13ú11. ABA Standard
13-2.1 "neither requires nor recommends the joint trial of
offenses," however. Id. at 13ú12. To determine whether a joint
trial is appropriate, other ABA Standards control. Id. Under
the ABA Standards, severance of related charges is discretionary.
See id. at 13ú29. By contrast, ABA Standard 13-3.1(a) grants the
prosecution and the defense an absolute right to sever unrelated
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charges. Id. at 13ú29.

According to the commentary to the standards, "unlimited

joinder of unrelated offenses has been authorized for the
occasional case when the prosecutor and the defendant agree that
a joint trial of the offense is desirable. In most cases,
however, joint trials of unrelated offenses are difficult to
justify because the defendant suffers all of the disadvantages of
a joint trial while the prosecutor achieves few if any of the
benefits of a joint trial." Id. at 13ú30. Where offenses are
unrelated, "the benefits to the government are substantially
reduced and the benefits to the defendant are outweighed by
substantial disadvantages." Id. at 13ú13.

The commentary explains that "[t]he conflict between fair

trial and multiple prosecution concerns, and the special features
of similar character offenses, have created a dilemma with
respect to the joinder of unrelated offenses." Id. at 13ú14.
While the federal rules resolve the dilemma by permitting the
joinder of unrelated offenses only if they are of a "similar
character," the original ABA Standards provided an "ingenious
solution" to the dilemma. Id. The original standards
authorized joinder of "similar character" offenses, but gave
the defendant the absolute right to sever these offenses. The
revised standard permits joinder of all unrelated offenses, not
only those that are of "similar character," and gives the
defendant the corresponding right to sever all unrelated
offenses. Id. at 13ú14-13ú15.

III. Uniform Rules of Criminal Procedure

In many respects, the Uniform Rules of Criminal Procedure

regarding joinder and severance of offenses for trial parallel
the ABA Standards. Like the ABA Standards, the Uniform Rules
categorize offenses as either "related or unrelated." See
Unif. R. Crim. P. 471, 10 U.L.A. 148-49 (2001). Uniform Rule of
Criminal Procedure 471 defines "related" crimes as those that
are "within the jurisdiction of the same court and are based
upon the same conduct, upon a single criminal episode, or upon a
common plan." Unif. R. Crim. P. 471(a), 10 U.L.A. at 148.
Under the Uniform Rules, however, only the defendant has the
right to move for joinder. Unif. R. Crim. P. 471(b), 10 U.L.A.
at 149. The court may also order joinder if no party objects and
the crimes could have been joined in a single indictment. See
Unif. R. Crim. P. 473, 10 U.L.A. at 152.
If the defendant has moved to join unrelated crimes, the
court shall join them "upon a showing that failure to try the
charges together would constitute harassment, unless the court
determines that because the prosecuting attorney does not
presently have sufficient evidence to warrant trying one or more
of the charges, or for some other reason, the joinder would
defeat the ends of justice." Unif. R. Crim. P. 471(d), 10
U.L.A. at 149.
If the defendant has moved to join related crimes, the court
shall join them "unless it determines that because the
prosecuting attorney does not presently have sufficient evidence
to warrant trying one or more of the charges, or for some other
reason, the joinder would defeat the ends of justice." Unif. R.
Crim. P. 471(b), 10 U.L.A. at 149.

Subject to the defendant's right to joinder, as under the

ABA Standards, either party has a right to severance if the
crimes are unrelated. Unif. R. Crim P. 472(a)(1), 10 U.L.A. at
150. Subject to the defendant's right to joinder, the court may
grant severance of related charges, before trial, if it
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determines that severance is "appropriate to promote," and,
during trial, if the defendant has consented to it, or if, upon a
finding of manifest necessity, it determines that severance is
"necessary to achieve" a fair determination of the defendant's
guilt. Unif. R. Crim. P. 472(a)(2)-(3), 10 U.L.A. at 150.

IV. Other States

The "overwhelming majority" of States have adopted the
language of the federal rules of criminal procedure, or language
that is very similar to it. LaFave, supra at 593, 595-96. In
these States, as in federal courts, offenses may be joined if
they are based on the same act or transaction, or are part of a
common scheme or plan, or are of the "same or similar
character." See id. at 595-96.
Some States have omitted the federal provision regarding
joining offenses that are of the "same or similar character,"
while other States have limited it. Id. at 596. For instance,
some States permit joinder of "same or similar character"
offenses only if the defendant consents or when the evidence of
one offense would be admitted in a separate trial of the other.
Id. Other States have followed the ABA Standards and have given
defendants an absolute right to sever when offenses of the "same
or similar character" have been joined. See Dingler v. State,
211 S.E.2d 752, 753 (Ga. 1975) (adopting severance-of-right
provision in ABA Standards); Ark. R. Crim. P. 22.2(a) (defendant
has right to sever offenses of the same or similar character);
Mass. R. Crim. P. 9 (only by defendant's consent or motion may
unrelated offenses be joined); Vt. R. Crim. P. 14(b)(1)(A) (when
offenses of same or similar character are joined, defendant has
right to severance); Minn. R. Crim. P. 17.03, subd. 3(1)(a)
(allowing defendant to obtain severance as matter of right when
offenses are unrelated).

V. New Standards
Based upon the above, we are persuaded that our
traditionally permissive approach to joinder is no longer
appropriate. We are also persuaded that the ABA Standards
provide the best approach to joinder, permitting it for all
cases, but granting either the defense or prosecution the
absolute right to sever unrelated cases. Accordingly, we today
adopt the ABA Standards for joinder and severance of criminal
offenses for trial. "While we recognize the value of stability
in legal rules, we have also acknowledged that the doctrine of
stare decisis is not one to be either rigidly applied or blindly
followed. The stability of the law does not require the
continuance of recognized error." Matarese v. N.H. Mun. Assoc.
Prop. - Liab. Ins. Trust, 147 N.H. 396, 400 (2002) (quotation
omitted).

Henceforth, any two or more offenses committed by the same

defendant may be joined for trial, upon the application of the
prosecuting attorney or the defense. 2 Am. Bar Ass'n Standards
for Criminal Justice, ch. 13, at 13ú11. Whenever two or more
unrelated offenses have been joined for trial, the prosecuting
attorney or the defendant shall have a right to severance of
them. Id. at 13ú29. "Unrelated" offenses are those that are
not "related." Id. at 13ú10. "Related" offenses are those
that are based upon the same conduct, upon a single criminal
episode, or upon a common plan. Id. at 13ú9.
The trial court may grant severance of related offenses
before trial, upon application of either the defendant or the
prosecuting attorney, whenever severance is deemed appropriate to
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promote a fair determination of the defendant's guilt or
innocence. Id. at 13ú29. When evaluating whether severance is
appropriate to promote or necessary to achieve a fair
determination of the defendant's guilt or innocence, the court
should consider, among other factors, whether, in view of the
number of offenses charged and the complexity of the evidence to
be offered, the trier of fact will be able to distinguish the
evidence and apply the law intelligently to each offense. Id.
Applying these standards to the instant case, we hold that
the L.B. charges and the A.O. charges were "unrelated." It is
evident that they did not arise from the same transaction or
constitute the same act. Nor has the State asserted that they
were part of a common plan. Indeed, the State argues that the
only evidentiary connection between the two offenses is that the
assaults against L.B. explain why A.O. delayed reporting the
assaults against him. The defendant had an absolute right to
severance of these offenses and, thus, under the standards we
adopt today, the trial court erroneously denied his motion to
sever.
Reversed and
remanded.
NADEAU and DUGGAN, JJ., concurred; DALIANIS, J., dissented.

DALIANIS, J., dissenting. I agree with the majority that

the American Bar Association Standards for Criminal Justice
provide a sound approach to joinder. I dissent, however, for two
reasons.

First, I believe that by creating new standards for joinder

in criminal trials, the majority has decided an issue that is not
squarely before the court. The defendant did not argue that the
court should adopt new standards for joinder below, and neither
party has argued this on appeal.

Second, I believe that this case is not the proper venue for
adopting what is essentially a rule of criminal procedure. In my
view, the adoption of a new rule of criminal procedure should be
accomplished through rulemaking. See Sup. Ct. R. 51(A)(1)(b).
The federal courts and nearly every State that has considered the
issue have adopted standards for joinder in criminal trials
through rules. See 4 W. LaFave et al., Criminal Procedure
17.1(b) at 595-96, 596 n.18 (1999). The court's rulemaking
procedures provide the public, the bench and the bar an
opportunity to offer comments and suggestions before any new rule
is adopted. See Sup. Ct. R. 51(A)(1)(a).
Unlike the majority, I would affirm the decision of the
trial court and ask the Advisory Rules Committee to consider
recommending to the court a rule regarding joinder in criminal
trials.

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