2002-287, STATE OF NEW HAMPSHIRE v. CHAD EVANS

The defendant, Chad Evans, was convicted of reckless second-degree murder, see R SA 630:1-b (1996), five counts of second-degree assault, see RSA 631:2 (1996), e ndangering the welfare of a minor, see RSA 639:3, I (1996), and simple assault, see R SA 631:2-a (1996), following the death of twenty-one-month-old Kassidy Bortner, the da ughter of his girlfriend, Amanda Bortner. He appeals, arguing that: (1) the Superior C ourt (T. Nadeau, J.) erroneously gave the jury a false exculpatory statement i nstruction; (2) the evidence on the second-degree murder charge was insufficient because i t failed to eliminate the conclusion that Kassidy’s babysitter, Jeffrey Marshall, ki lled her; and (3) the court erroneously admitted various of Amanda’s statements u nder the excited utterance exception to the hearsay rule. See N.H. R. Ev. 803( 2). We affirm.

The jury could have found the following facts. Amanda and the defendant began dating in J une 2000. A month later, she and Kassidy moved into the defendant’s Rochester home. S hortly thereafter, bruises started appearing on Kassidy. These bruises were caused by the de fendant.

At first, the defendant bruised Kassidy only occasionally by forcibly grabbing her face ou t of frustration because Kassidy became jealous when Amanda was affectionate towards h im. As time went on, his frustration with Kassidy grew.

In the month before she died, the defendant grabbed Kassidy’s face hard as often a s twice a week. He called her names such as "little bitch" and "f---ing r etard." As frequently as three times a week, the defendant disciplined Kassidy by picking her up by the armpits and roughly placing her in front of a wall or in a corner. O nce, he grabbed her by the back p. 2 of the neck and tossed her against a closet door, banging h er head against the door. Another time, when Kassidy resisted, he picked her up by the a rmpits and threw her on the bed. When Amanda intervened, he grabbed Kassidy’s leg and then walked away, muttering that he wished Kassidy had never been born. On another oc casion, to stop her from crying and screaming, the defendant pressed his finger on K assidy’s throat, hard enough to make her gag.

The defendant and Amanda made up false excuses to explain the obvious bruises on K assidy’s face, including that the defendant grabbed Kassidy’s face to prevent h er from falling off a trampoline. They also said that Kassidy was bruised because she was c lumsy or because she accidentally bumped her head. Because of the bruises and her fear t hat Kassidy would be taken from her, Amanda refused to put Kassidy in day care. Instead, s he asked her sister and her sister’s boyfriend, Marshall, to baby-sit.

On November 8, 2000, the day before Kassidy died, Amanda dropped her off at her s ister’s and Marshall’s home in Kittery, Maine, at around 1:30 or 2:30 p.m. When s he dropped Kassidy off, Kassidy was fine, although a bit sleepy. She had a couple of s cratches and a faded bruise on her face, but nothing more. Her behavior was normal. She s pent the afternoon watching cartoons.

The defendant picked up Kassidy at around 5:00 p.m. Shortly thereafter, he called from h is car to tell Marshall that " [t]he little bitch is acting weird again." He s aid that Kassidy was "kind of bobbin’ around" in the car. An hour or so l ater, he again called Marshall and said that she fell on her face on the ground when he t ook her out of the car. Later that evening, the defendant called Marshall again and told h im that while playing ball with his three-year-old son, Kassidy was hit by his son with a ba ll. During the conversation, the defendant became frantic, telling Marshall that K assidy’s eyes were in the back of her head, and yelling at her to wake up. He told M arshall that Kassidy was out cold. When Marshall suggested that the defendant take her to t he hospital, the defendant said that she had "come out of it" and was fine.

The defendant also called Amanda to tell her about the incident. He told her that he di d not want to baby-sit for Kassidy anymore because "[i]t seems like every time that I have her something happens where she hurts herself."

When Amanda came home that night, she and the defendant fought. At one point, the de fendant grabbed her throat and pinned her against the couch, telling her to "cut it ou t.... you know what gets me going. You know what makes my temper."

The next morning, Amanda brought Kassidy to Marshall’s house. Amanda lay Kassidy on a bed, looked at Kassidy’s face, and then said to her sister, "Look what he di d. It looks like f----ing s---, doesn’t it." Kassidy’s face was badly bruised; the bruises around her forehead looked like finger marks.

Kassidy appeared sick and in pain. Marshall and Amanda’s sister were concerned a bout her and put her to bed. When they tried to rouse her, Kassidy whimpered and pulled a way from them. Amanda’s sister went to work and Marshall stayed at home with K assidy, letting her sleep. At around 9:30 that morning, the defendant called and asked h ow Kassidy was doing. The defendant then told Marshall that he had received a call from t he State because "someone had seen Kassidy at his house acting weird." The de fendant was quite angry, telling Marshall that Amanda and "the little bitch [are] g oing to have to get out of my house."

At around 12:30 p.m., Marshall went to the bedroom to check on Kassidy and saw that she w as unconscious, her eyes were in the back of her head, and she was making a gargling n oise. While on the phone with 911, he tried to resuscitate her, but could not. Kassidy w as taken by ambulance to a Maine hospital and pronounced dead on arrival.

An autopsy revealed that Kassidy died at approximately 12:30 p.m. from multiple bl unt-force injuries that had caused bleeding and swelling in her brain, bleeding in the opt ic nerve, and internal bleeding in her abdomen. The medical examiner estimated that be fore she died, Kassidy received eight to ten blows to the head and at least two blows to t he p. 3 abdomen from a blunt force, such as a fist or a foot. Kassidy’s fatal head i njuries were inflicted sometime within the twenty-four hours preceding her death.

In addition to her fatal injuries, Kassidy had numerous bruises and multiple fractures i n various stages of healing. Most of the bruises were between eight and twelve hours old. N one of the bruises on Kassidy’s face was consistent with being hit by a ball.

On the night of Kassidy’s death, the police interviewed Amanda, her sister, M arshall and the defendant. The defendant told the police the trampoline story to explain h ow he had once bruised Kassidy’s face. He also told them that she would sometimes " throw herself in the corner or throw herself into the wall" or run and " slam right into" a corner. He stated that Kassidy was "clumsy" and c onstantly walked into things like his coffee table. That night, Amanda and the defendant spoke by telephone. Crying, Amanda told the defendant, "[Y]ou killed my baby; I know y ou did this; you wanted her dead."

The defendant assigns two errors to the court’s false exculpatory statement i nstruction. First, he argues that such an instruction constitutes an impermissible c omment on the evidence. Second, he argues that even if the instruction is permissible, t he court should have broadened it to include false exculpatory statements made by M arshall. We address each argument in turn.

The scope and wording of jury instructions is generally within the sound discretion of t he trial court. State v. Lamprey, 149 N.H. 364, 366 (2003). We will not reverse u nless the jury charge fails to cover fairly the legal issues in the case. See id. W e do not review the challenged instructions in isolation; instead, we review them in the c ontext of the entire charge and all of the evidence to determine whether the trial court a dequately stated the relevant law. State v. Newell, 141 N.H. 199, 205 (1996). We i nterpret jury instructions as a reasonable juror would have understood them. Lamprey, 149 N.H. at 366.

A. Comment on Evidence

The challenged instruction was as follows:

This instruction is similar to one which we approved in State v. Fischer, 143 N.H. 311, 318-20 (1999). In Fischer, we did not decide whether such an instruction c onstitutes improper comment on the evidence because this issue was not preserved for our r eview. Id. at 318. We now hold that where, as here, the instruction permits, but doe s not require, the jury to infer consciousness of guilt from false exculpatory s tatements, it is not an improper comment on the evidence. See State v. Marti, 143 N.H. 608, 616-17 (1999); see also State v. Cassell, 129 N.H. 22, 24 ( 1986). It is "merely a correct statement of law." Marti, 143 N.H. at 617.

Evidence that a defendant intentionally made an exculpatory statement that is later di scovered to be false may constitute circumstantial evidence of consciousness of guilt. See United States v. Ingram, 600 F.2d 260, 262 (10th Cir. 1979). It is reasonable to i nfer consciousness of guilt from a defendant’s false exculpatory statement because " an innocent person does not usually find it necessary to invent or fabricate an e xplanation or statement tending to establish [his or her] p. 4 innocence." 1A K. O’Malley & a., Federal Jury Practice and Instructions-Criminal § 14.06, a t 286 (5th ed. 2000). Exculpatory statements later shown to be false are akin t o other evidence that may be relevant to show consciousness of guilt, such as flight and e fforts to avoid suspicion. See State v. Steed, 140 N.H. 153, 155-56 (1995); cf. State v. Stott, 149 N.H. 170, 173 (2003) (defendant’s statements to pol ice were "extremely probative of his consciousness of guilt").

False exculpatory statement instructions "have long been accepted by the c ourts." United States v. McDougald, 650 F.2d 532, 533 (4th Cir. 1981). To be pr oper, a false exculpatory statement instruction must explain that the inference of consciousness of guilt is permissive, not mandatory. See State v. Orta, 786 A.2d 504, 510 (Conn. App. Ct. 2001); see also Com. v. Martinez, 769 N.E.2d 273, 280 (Mass. 2002); cf. Cassell, 129 N.H. at 24. The instruction m ust also make clear that false exculpatory statements are not evidence of guilt, but are e vidence of consciousness of guilt. See Fischer, 143 N.H. at 319. Further, t here must be an evidentiary basis for the instruction. See United States v. H udson, 717 F.2d 1211, 1215 (8th Cir. 1983). In this case, the defendant concedes that t here was sufficient evidence for the State to argue adverse inferences from his false e xculpatory explanations for Kassidy’s bruises.

When viewed in the context of the entire jury charge, we hold that the instruction in t his case was appropriate. In its general instructions, the court instructed the jury that i f the jury thought that the judge had expressed an opinion about the facts of the case, i t "must disregard that expression." The judge further informed the jury that it w as the judge’s job "in this and in all cases... to remain entirely neutral, a nd it’s up to you, alone, and not up to me to decide the facts in this case." T he court explained that it was the jury’s job to "decide the credibility of the w itnesses," which meant that it had "to decide whom to believe."

In its false exculpatory statement instruction, the court made clear that the jury had t o decide whether the defendant "intentionally made statements tending to demonstrate h is innocence, or to influence a witness" and whether these statements were later s hown to be false. It was further up to the jury to consider whether these statements i ndicated consciousness of guilt and to determine the significance "if any" to g ive to them. The instruction left "exclusively to the jury the question as to w hether false exculpatory statements, if made, indicate consciousness of guilt, or nothing a t all." Ingram, 600 F.2d at 262. As such, it was proper. See State v. Parker, 142 N.H. 319, 324 (1997) (jury instructions are appropriate when they a ccurately state law and allow jury to exercise its own judgment in evaluating conflicting evidence).

B. False Exculpatory Statement Instruction Pertaining to Marshall

The defendant contends in the alternative that if the false exculpatory statement i nstruction was permissible, the trial court should have applied it to Marshall. We di sagree.

We rejected a similar argument in State v. Bruneau, 131 N.H. 104, 116-18 (1988). I n Bruneau, the defendant argued that one of his associates had killed the victim a nd that another of his associates was lying to cover for him. Id. at 106, 116. In s upport, defense counsel urged the jury to consider that the two associates had di sappeared after speaking with police. Id. at 116. Defense counsel argued that the be havior of the two associates merited an instruction that the jury could conclude from t heir behavior that the two associates were conscious of their guilt. Id. at 1 16-17.

We held that the court’s refusal to give this instruction was not error. Id. a t 117-18; cf. Com. v. Toney, 433 N.E.2d 425, 432 (Mass. 1982) (judge need n ot bring to attention of jury defendant’s own innocent explanation for alleged f light). The defendant’s assertion that someone other than he was guilty was not a t heory of defense upon which he was entitled to an instruction, but was a theory of the c ase. Bruneau, 131 N.H. at 117-18.

We conclude that, like the defendant in Bruneau, the defendant in this case was n ot entitled to an instruction elucidating his theory that Marshall was guilty. Id. a t 118. This was not a theory of defense upon which he was entitled to an instruction. Id. a t 117-18; see State v. Ramos, 149 N.H. 272, 274 (2003). p. 5 The defendant argues that instructing the jury that it could infer consciousness of g uilt from Marshall’s allegedly false statements was necessary to prevent unfairness. W e assume, without deciding, that it may be appropriate in some instances for the jury to be instructed on the false exculpatory statements of others. See United States v. Boekelman, 594 F.2d 1238, 1241 (9th Cir. 1979). "Whether an instruction is n ecessary in a particular case... is an issue reserved to the trial court’s sound di scretion." Ramos, 149 N.H. at 274. We review the denial of a proposed jury i nstruction in the context of the entire charge and all evidence presented at trial, r eversing only if the instructions did not adequately state the relevant law. State v. B lackstock, 147 N.H. 791, 798 (2002).

The trial court’s decision not to expand the false exculpatory statement i nstruction to include Marshall was a sustainable exercise of discretion. See Ramos, 149 N.H. at 274. In contrast to the evidence concerning the defendant’s false exculpatory statements, there was scant evidence that Marshall lied about Kassidy’s i njuries to demonstrate his innocence. The defendant points to Marshall’s denial that h e abused Kassidy on either November 8 or November 9. Such general denials, however, do n ot merit a false exculpatory statement instruction. See McDougald, 650 F.2d a t 533.

The defendant also refers to a statement Marshall made to his girlfriend, while he was t rying to resuscitate Kassidy, that Kassidy was "coming through" and that she w as going to the hospital. From this statement, Marshall’s girlfriend inferred that K assidy was "alert, sitting up and watching television," when, in fact, she was a lready dead. Marshall’s statement, even if false, did not tend to demonstrate his i nnocence and did not merit a false exculpatory statement instruction.

In his opening and closing remarks, defense counsel vigorously argued that Marshall was a liar and a killer:

The defendant thus had "ample opportunity to present his theory and the jury was f ree to consider it." State v. Shannon, 125 N.H. 653, 663 (1984).

The court’s jury instructions included extensive information to help the jury e valuate witness credibility. For instance, the court outlined various factors for the j ury to consider, including: p. 6 Whether the witness appeared to be candid; whether the witness appeared worthy of belief; the appearance and demeanor of a witness; whether the witness had an interest in the outcome of the case; whether the witness had any reason for not telling the truth; whether what the witness said seemed reasonable or probable; whether what the witness said seemed unreasonable or inconsistent with other evidence in the case or with prior statements by the witness; and whether the witness had any friendship or animosity toward other people in the case.

Viewing the jury instructions as a whole, we cannot say that the jury was incapable of e valuating the defendant’s theory of the case absent a false exculpatory statement i nstruction that pertained to Marshall. See Bruneau, 131 N.H. at 118.

The defendant argues that the evidence was insufficient because the State failed to e liminate the rational conclusion that Marshall killed Kassidy. We disagree.

To prevail on his challenge to the sufficiency of the evidence, the defendant must pr ove that no rational trier of fact, viewing all of the evidence and all reasonable i nferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. See State v. Hull, 149 N.H. 706, 712 (2003); State v. C hapman, 149 N.H. 753, 758 (2003). When the evidence is solely circumstantial, it must e xclude all rational conclusions except guilt. See State v. Duguay, 142 N.H. 221, 225 ( 1997). Under this standard, however, we still consider the evidence in the light m ost favorable to the State and examine each evidentiary item in context, not in i solation. See id.

We conclude that a rational trier of fact, viewing the evidence and reasonable i nferences from it in the light most favorable to the State, could have found beyond a r easonable doubt that the defendant, not Marshall, killed Kassidy.

The jury heard evidence that over a three-month period, the defendant hurt Kassidy r epeatedly. He grabbed her face so hard that it bruised. He grabbed her by the neck and t hrew her against a closet door. He tried to stop her from crying by pressing his finger s o hard against her throat that she gagged.

The jury heard evidence that the bruises were so frequent and so obvious that the de fendant and Amanda felt obliged to fabricate stories, such as the trampoline story, to e xplain them. The bruises were so bad that Amanda did not want to take her daughter to day c are because she was afraid that Kassidy would be taken from her.

The jury heard evidence that Kassidy’s repeated injuries and the stories Amanda a nd the defendant made up to explain them were consistent with battered-child syndrome. As t he expert explained:

The jury heard evidence from which a rational juror could have found, beyond a r easonable doubt, that the defendant inflicted Kassidy’s fatal injuries on the night be fore she died. The jury heard that on the day before she died, Kassidy acted " [p]retty normal" and had only one fading bruise and a few scratches on her f ace. The jury heard that that night, something happened that rendered Kassidy u nconscious. The defendant said that his son hit Kassidy in the head with a baseball. A l ater autopsy revealed that none of the bruises on Kassidy’s face was consistent with be ing hit by a ball.

The jury heard that the next day, Kassidy’s face was very badly bruised and that Amanda blamed the defendant for the bruises, telling her sister, "Look what he di d." The jury heard evidence that in his police interview, the defendant repeated the false stories he and Amanda made up to explain Kassidy’s injuries, including the t rampoline story. The jury also heard that on the night of Kassidy’s death, Amanda a ccused the defendant of killing her, saying, "[Y]ou killed my baby; I know you did t his; you wanted her dead."

The jury also heard medical evidence that most of Kassidy’s recent bruises were i nflicted when the defendant was taking care of her, approximately eight to twelve hours be fore she died. Her fatal injuries were inflicted sometime within the twenty-four hours be fore she died.

The defendant argues that the following evidence could have led a rational juror to c onclude that he was not guilty: (1) when Kassidy died, she was in Marshall’s care; ( 2) her pajama bottoms were removed and left on the bed the day that she died, although M arshall did not testify that he removed them and his girlfriend could not explain how t hey came to be removed; and (3) the medical evidence did not conclusively rule out M arshall as a cause of Kassidy’s fatal injuries.

Viewing all of the evidence in the light most favorable to the State, we hold it was s ufficient for the jury to exclude all rational conclusions except that the defendant was g uilty.

We briefly dispose of the argument in the defendant’s pro se s upplemental brief that the court erroneously admitted as excited utterances statements Amanda made to her friend on the night of his arrest. These statements included Amanda’s comment to her friend, "And you knew, and I didn’t listen." T hey also included Amanda’s description of the defendant grabbing Kassidy by the s hirt and pushing her into a corner when she cried.

To admit testimony under the excited utterance exception to the hearsay rule, the trial c ourt must be satisfied that there was a sufficiently startling event or occurrence and t he declarant’s statements were a spontaneous reaction to the occurrence and not the r esult of reflective thought. State v. Bonalumi, 127 N.H. 485, 488 (1985); see N.H. R. Ev. 803(2). The evidence supports the trial court’s finding that both of these prerequisites were satisfied.

During voir dire, the friend testified that on the night that the de fendant was arrested, Amanda arrived at her house "hysterical" and crying. The f riend lives approximately twenty minutes from the defendant’s home, where Amanda and the defendant had been when he was arrested. The friend testified that Amanda was " very sporadic in her conversation...; disheveled; her hair was a mess; she was c hain smoking; almost incoherent talking to me." The friend had never seen p. 8 Amanda l ike that before. Throughout their conversation, Amanda cried and was "very e motional." The friend stated that it was "very hard to have a conversation with h er that evening" because "[s]he was in a highly agitated, emotional s tate." The friend described it as "bits and pieces" rather than a c onversation. Given this testimony, we hold that the trial court’s decision to admit Amanda’s statements as excited utterances was a sustainable exercise of discretion. See Bonalumi, 127 N.H. at 487-89.

We grant the State’s motion to strike the remaining issues the defendant raises in h is pro se supplemental brief because they were not raised in the notice of a ppeal and we did not grant him permission to brief them. See State v. Thomas, 150 N.H. ___, ___ (decided December 9, 2003); Sup. Ct. R. 16(3)(b).