2004-384, STATE OF NH v. RICHARD EDSON

We affirm in part, vacate in part and remand for re sentencing. the defendant’s pretrial credit among the four consecutive sentences imposed. guilty of second degree assault and that the trial court erred in its allocation of appeal, he contends that there was insufficient evidenc e for the jury to find him driving while certified as a habitual offender, see RSA 262:23 (2004). On (DWI), see RSA 265:82 (2004); RSA 265:82 - b (2004) (amended 2005), and 631:2, I(c) (1996); escape, see RSA 642:6 (1996); driving while intoxicated defendant, Richard Edson, was convicted of second - degree assault, see RSA NADEAU, J. Following a jury trial in Superior Court (Smukler, J.), the

orally, for the defendant. Ted Lothstein, assistant appellate defender, of Concord, on the brief and

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

No. 2004 - 384 Belknap

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

victim’s death.” We disagree. conduct, greater injuries to the victim, or situations posing a greater risk of the that proof of that element of the crime req uired “evidence of more violent indifference to the value of human life. RSA 631: p. 2 2, I(c). The defendant argues degree assault, arguing that there was insufficient evidence of extreme On appea l, the defendant first challenges his conviction for second -

the remaining 71 days to the p. 2 2 1/2 - to - 5 - year State Prison sentence. trial court credited 365 days to the 12 - month house of correction sentence and State Prison. The defendant was entitled to 436 days of pretrial credit. The multiple DWI offender intervention detention center upon h is release from intoxicated. The defendant was also ordered to serve seven days in the certification, followed by 12 months in the house of correction for driving while by 2 1/2 to 5 years in State P rison for operating after habitual offender degree assault, followed by 10 to 30 years in State Prison for escape, followed following consecutive sentences: 10 to 30 years in State Prison for second The defendant was convicted on four charges and sentenced to the

cruiser and tried to pursue the defendant, but she was unable to locate hi m. assistance. Feeling sick, dizzy, and disoriented, she made her way to her shoulder microphone that she had been assaulted and needed immediate defendant drove off in his truck as Este s slowly got up and screamed into her snow bank and repeatedly struck her in the head and neck area. Finally, the attempted to activate her pepper spray. The defendant then pushed her into a kicking stopp ed and Estes saw the defendant moving away, she stood up and proceeded to kick Estes in the chest and abdomen four to six times. After the head, knocking her over and causing her to briefly lose consciousness. He described by her as a “very sharp blow.” He next struck the left side of her defendant then struck Estes on the right side of the head with a cl osed fist, arms out with his hands palms up, started crying and said, “No, please.” The After she instructed the defendant to turn around to be handcuffed, he put his defendant that she was placing him under arrest for driving while intoxicated. Although the back - up officer had not yet arrived, Estes told the

The defendant failed all of the field sobriety tests. administer field sobriety tests and called dispatch requesting a back - up officer. drinking because his eyes were bloodshot and watery. She decided t o twenty years of boxing experience. Estes believed that the defendant had been weighed 1 p. 2 20 pounds. The defendant was a “Golden Gloves” boxer with over and through a stop sign in reverse. Estes, who was wearing body armor, the defendant in his pickup truck after she observed him back down a road morning hours of March 15, 200 p. 3 3, Belmont police officer Judith Estes stopped The jury could have found the following relevant facts. In the early 3

conviction, a misdemeanor, the defendant was sentenced to serve twelve consecutive State Prison sentences, totaling 22 1/2 to 65 years. On the fourth On the three felony convictions, the defendant was sentenced to three

of our plain error rule. MacInnes, 151 N.H. at 7 p. 3 37. U.S. 461, 466 - 67 (1 997). We have adopted the same standards for application or public reputation of judicial proceedings. Johnson v. United States, 520 substantial rights; and (4) the error must seriously affect the fairness, integrity must be an error; (2) the error must be plain; (3) the error must affect has stated that the federal plain error rule contains four elements: (1) the re v. MacInnes, 151 N.H. 732, 736 - 37 (2005). The United States Supreme Court circumstances in which a miscarriage of justice would otherwise result. State Sup. Ct. R. 16 - A. The rule should be used sparingly, its use limited to those substantial rights even though not raised in the trial court by either party. See The plain error rule allows us to consider an error that affects

allocation below, he now asks us to vacate it as plain error. early release based on good behavior. Although he did not object to this sentence. The defendant contends that this eliminated any opportunity for days of pretrial confinement credit to the 12 - month house of correction Next, the defendant argues that the trial court e rred in allocating p. 3 365

manifesting an extreme indifference to the value of human life. the defendant caused bodily injury to Officer Estes under circumstances favorable to the State, could have concluded beyond a reasonable doubt that Accordingly, a reasonable jury, viewing the evidence in the light most

plate, the defendant’s attacks would have caused life - threatening injuries. Officer Estes’ Kevlar body armor, which contained a quarter - inch steel trauma snow bank. Further, a reasonable jury could have found that i f it were not for chest and abdomen while she was lying on the ground, and left her injured in a hit the 120 - pound officer in the head and neck, repeatedly kicked her in the to the value of human life. T he defendant, a “Golden Gloves” boxer, repeatedly injury to the victim under circumstances manifesting an extreme indifference There was sufficient evidence to prove that the defendant caused bodily

burden of proving that the evidence was insufficient. Id. State v. Flynn, 151 N.H. p. 3 378, 382 (200 p. 4 4). Further, the defendant carries th e each evidentiary item in the context of all of the evidence, not in isolation. reasonable doubt. Id. In reviewing the sufficiency of the evidence, we examine the State, no reasonable trier of fact could have fo und guilt beyond a viewing the evidence and all reasonable inferences in the light most favorable to defendant’s insufficiency claim, we will uphold the jury’s verdict unless, fact for the jury. State v. Schultz, 141 N.H. 101, 105 (1996). In evaluating the Whether a defendant acted with “extreme indifference” is a question of 4

before sentencing which relates to the criminal episode for which the prisoner a prisoner is to receive credit for all jail time — neither more nor less — served 127 N.H. p. 4 468, 470 (1985). Presentence detention credit statutes mandate that tha t presentence detention is often the result of indigency. State v. Decker, We have said that credit statutes stem principally from the recognition

sentence. when 365 days of his pretrial credit was applied to the house of correction his house of correction sentence. He argues that this opportunity was lost opportunity for release after serving two - thirds, or approximatel y 2 p. 4 40 days, of The defendant contends that RSA 651:18 would have granted him the

sentence and not under any sentence of confinement. confined in jail awaiting and during trial prior to the imposition of equal to the number of days during which the prisoner was against both the maximum and minimum terms of his sentence of correction, any jail or any other place shall be granted credit Any prisoner who is confined to the State Prison, any house

RSA 651 - A:23 provides in rele vant part: sentenced shall be credited in the manner set forth in RSA 651 - A:23 . . . .” “[a]ll the time actually spent in custody prior to the time [the defendant] is by R SA 651:3 (1996) and RSA 651 - A:23 (1996). RSA 651:3, I, provides that good behavior). In addition, the allocation of pretrial confinement is governed inmate may be released after serving two - thirds of his minimum sentence upon in RSA 651 - A:22); RSA 651:18 (1996) (amended 2003) (house of correction State Prison minimum sentence, to be reduced upon goo d conduct as provided 651:2, II - e (1996) (a disciplinary period of 150 days is added to each year of a sentence, but subtract time from a house of correction sentence. See RSA The provisions f or good time add time to a State Prison minimum

constitutional or statutory right to good time credit. thirds of his house of correction sentence because there is no State or federal defendant an opportunity to be discharged and released after serving two contends the trial court did not commit plain erro r for effectively denying the good - time reduction of approximately 120 days of his sentence. The State the trial court inadvertently eliminated any chance he would have to earn a the house of correcti ons sentence, which was the last sentence to be served, The defendant contends that by placing 365 days of the pretrial credit on

misdemeanor sentence. the State Prison sentences, and allocated the remaining 36 p. 5 5 days toward the confinement credit. T he trial court allocated 71 days of pretrial credit toward At the time of sentencing, the defendant was entitled to p. 4 436 days of pretrial months in the house of correction consecutive to the State Prison sentences. 5

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

arise again on remand. concedes on appeal that this was error, and thus we assume this issue will not center after his release from State Prison. We simply note that the State the defendant serve seven days at the mu ltiple DWI offender intervention house of correction sentence was also illegal in light of the court’s order that defendant’s argument that the allocation of 36 p. 5 5 days of pretrial credit to the Because w e have vacated this allocation, we need not discuss the

resentencing. Accordingly, we vacate the allocation of pretrial credit and remand for November 30, 200 p. 5 5); Johnson v. United States, 520 U.S. 461, 466 - 67 (1997). for plain error have been met. See State v. Emery, 152 N.H. ____, ____ (decided was in effect at the time of the defendant’s trial and sentencing, our standard s similarly situated offender who furnished bail. As our conclusion in Decker correction sentence for good behavior, and thus could serve more time than a Here, the defendant has lost any opportunity to earn ti me off of his house of confined prior to trial due to indigency, and those who are able to post bail. an application of the credit statutes that ensures the equal treatment of those pretrial credit. Under Decker, however, t he trial court’s allocation must reflect We recognize that it is within the trial court’s discretion to allocate

succeeds in furnishing bail. Id. time in confinement than an otherwise identically situated offender who an indigent offender unable to furnish bail s hould serve neither more nor less presentencing confinement. A principle underlying the credit statutes is that is sentenced, but not receive credit greater than the number of days of his