2004-495, STATE OF NH v. ABBOTT M. PLACE

back and forth.” Sherrard responded to the defendant’s comments, and they were “bickering “was pretty drunk,” and he sat at the kitchen table making comments. drinking at work and continued to drink when they got home. The defendant about 5:30 p.m. Before Sherrard picked him up, the defendant had been defendant’s wife, Barbara Sherrard, brought the defendant home from work at The jury could have found the following facts. On October 31, 2003, the

affirm. Superior Court (Hicks, J.) for simple assault. See RSA 631:2 - a (1996). We GALWAY, J. The defendant, Abbott M. Place, appeals his conviction in

and orally, for the defendant. Chris McLaughlin, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 2004 - 495 Hillsborough - sou thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

State v. Lambert, 147 N.H. p. 2 295, 296 (2001). ruling was clearly untenable or unreasonable to the prejudice of his case. decision is not sustainable, the defendant must demonstrate that the court’s discretion. State v. Ramos, 149 N.H. at 274. To show that the trial court’s particular instruction if that failure was an unsustainable exercise of will reverse a jury verdict for a trial court’s failure to charge the jury with a relevant issues and law. See id.; see also State v. Ramos, 149 N.H. at 274. We presented at trial to determine whether the trial court adequately stated the a proposed jury instruction in the context of the entire charge and all evidence to a case. State v. DiNapoli, 149 N.H. 514, 520 (2003). We review the denial of The purpose of jury instructions is to explain the rules of law applicable

evidence.” State v. Haycock, 146 N.H. 5, 9 ( p. 2 2001) (quotation omitted). “Some evidence” means something “more than a minutia or scintilla of the parties agreed to fight. See State v. Ramos, 149 N.H. 272, 274 (2003). decide this issue, we must determine whether there was some evidence that give a jury instruction on mutual combat. Both parties agree th at in order to The sole issue on appeal is whether the trial court erred in declining to

assault. The court again denied his request. A jury found the defendant guilty of simple him the right to a fair trial under both the State and F ederal Constitutions. The defendant then argued that the failure to give the instruction denied

for a mutual combat instruction. evidence, the court gave the instruction on self - defense but denied the request instruct the jury on self - defense and mutual combat. At the cl ose of the Prior to the jury being sworn in, the defendant asked the court to

suffered rug burns. Sherrard fell forward into the living room, bruised her face, leg, and elbow, and upset. As she did so, the defendant hit her in the b ack and shoved her. alone. She walked toward the living room to try to get away because she was the shoulder or face, because she was frustrated that he would not leave her slapped him, although it is u nclear from the record whether she struck him on something, to which Sherrard responded with a derogatory statement and then then returned to the kitchen to answer the door. The defendant said Sherrard went to the living room to get away from the defendant, and

of the kids.” defendant “to just be quiet and go to the other room and just let [her] take care handing out candy and called her derogatory names. Sherrard asked the candy. The defendant made sarcastic comments about the way she was As Halloween trick - or - treaters came t o the door, Sherrard handed out p. 3 3

because [she] was just upset.” As she left the room, the defendant hit or she went “rapidly” into the living room because she “was trying to get away to fight. We disagree. Sherrard testified that after she slapped the defend ant, Sherrard’s slap, and his response constituted some evidence of an agreement The defendant’s theory is that his and Sherrard’s arguing back and forth,

instruction. agreement to engage in an altercation,” and thus refused to give th e requested evidence in the case from which a reasonable jury could find that there was an would be guilty of mutual combat. The trial court found that there was “no fight and that the assault happened duri ng the fight,” then the defendant a reasonable doubt that the defendant and the other person “agreed to have a The defendant’s requested instruction explained that if the State proved beyond

anot her person, in this case, by throwing her to the floor. two, that the defendant caused unprivileged physical contact to State must prove, one, that the defendant acted knowingly, and, each part of the definition beyond a reasonable doubt. Thus, the definiti on of simple assault has two parts. The State must prove The defendant is charged with the crime of simple assault. The

instructing: The trial court charged the jury on the elements of simple assault by

fight, either expressly or by implication. Thus, mutual consent requi res that both parties agree to participate in the Webster’s Third New International Dictionary 482 (unabridged ed. 1961)). parties agree to participate. State v. Besk, 1 p. 3 38 N.H. 412, 415 (1994) (citing agreed that “consensual activity” generally means an activity in which both consent, in which case it is a violation.” RSA 631:2 - a, II. In State v. Besk, we assault is a misdemeanor unless committed in a fight entered into by mutual unprivileged physical contact to another . . . .” RSA 631:2 - a, I(a). “Simple of simple assault if he . . . [p]urposely or knowingly cause s bodily injury or The relevant statute guides our analysis. It provides: “A person is guilty

agree. mutual consent, and thus the trial court correctly denied the request. We The State argues that there was no e vidence of a fight entered into by

by both the State and Federal Constitutions. not give the requested instruction, it violated his right to a fair trial guaranteed voluntarily agreed to fight. He further contends that because the trial court did on mutual combat because there was some evidence that he and Sherra rd The defendant argues that RSA 6 p. 3 31:2 - a, II entitles him to an instruction p. 4 4

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

constitutional c laims. evidence of an agreement to fight, we need not reach the defendant’s mutual combat. Having determined that the defendant failed to show some that the trial court properly declined the request to give an instruction on defendant and Sherrard, either expressly or by implication. We hold, therefore, that there was no evidence to show an agreement to fight between the not answer the door to assist Sherrard. In light of these facts, we conclude highly intoxicated, was being sarcastic and calling Sherrard names, and would pushed her from behind. When the events transpired, the defendant was