2007-500, STATE OF NH v. ANTHONY BALLIRO

The defendant, Anthony Balliro, appeals a ruling by the

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-500 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as defendant exhibited no defensive wounds or marks on his body. Tracks to investigate, heard rumbling upstairs, grabbed a knife from the p. 2 who, upon arrival, placed the defendant under arrest. At the time of arrest, the defendant later noticed Hayes’ car outside the restaurant, went to Moose starting a fire in Moose Tracks’ office. The acquaintance contacted the police,

combination of Hayes and the defendant was volatile.

testified that Hayes was dead before the fire at the restaurant started. Hayes and to burn down the restaurant. defendant’s apartment were also intentionally ignited. The medical examiner within the restaurant’s upstairs office. At least four different areas within the

Hayes had an argument at Moose Tracks and Hayes had stormed out. The ticket, and explained that he had done something he should not have done by

back. Some witnesses suggested that Hayes could be violent or aggressive, or that the

the defendant in the weeks leading up to the stabbing, including threats to kill witnesses testified that this had precipitated a prior argument and threats by that these fires were intentionally set. A separate fire was also intentionally set had recently clashed over their shared interest in a different woman. Several The defendant testified that, earlier on the day of the stabbing, he and acquaintance’s home in Conway, asked the acquaintance to obtain a bus

defendant stabbed him with a ten-inch fillet knife in the chest, side, armpit and relationship, hostile towards the defendant due to jealousy and unpaid wages. Hayes was a flagging employee, unstable, in part, because of a failed The defense claimed that the homicide was justified. It stressed that

discovered fires in the restaurant’s restrooms. The fire investigator testified and, as a result, the defendant was depressed. Also, the defendant and Hayes

in Hayes’ automobile until it had a flat tire. The defendant then went to an and apartment building to destroy the knife used in the stabbing, and then fled restaurant. restaurant on the day of the stabbing ostensibly to pay his back wages. The The State contended that the defendant set the fires at his restaurant

Emergency responders testified that, upon arriving at Moose Tracks, they decline. The defendant and his business/romantic partner had recently parted

payroll obligations, including wages due to Hayes, who was an employee of the According to the State, the defendant arranged to meet Hayes at the and his restaurant – Moose Tracks – was the source of unpaid bills and unmet arson. He had been asked to move out of his apartment due to unpaid rent,

At the time of the stabbing, Moose Tracks’ business was in substantial

at the time of the stabbing and emphasized his past threats of violence and The State portrayed the defendant’s rapidly deteriorating circumstances degree murder, p. 3 yet-ignited fire. The defendant was ultimately convicted of one count of first

the instruction because RSA 627:7 affords a justification only to prevent a not-

experiencing a flat tire. the kitchen. The defendant took Hayes’ car and drove towards Conway until arrived only after the fire had begun and acted only to flee, was not entitled to statutes arson.” RSA 627:7. The second was that the defendant, who testified that he defendant justifiably acted to “prevent an attempt by the trespasser to commit

using . . . deadly force . . . when he reasonably believes it A person in possession or control of premises . . . is justified in

more times, eventually fleeing the scene and dropping the knife somewhere in RSA 627:7 provides, in pertinent part: construction of RSA 627:7. “We review the trial court’s interpretation of the lack of sufficient evidence for a reasonable jury to conclude that the import of the terms and to promote justice.’” Id. (quoting RSA 625:3 (2007)). construe criminal statutes, but rather construe them ‘according to the fair to give the RSA 627:7 instruction constitutes reversible error. construe a statute that is clear on its face.” Id. “Finally, we do not strictly scheme and not in isolation.” Id. “We do not consider legislative history to “Furthermore, we interpret statutes in the context of the overall statutory construe that language according to its plain and ordinary meaning.” Id. a statute, we first look to the language of the statute itself, and, if possible, expressed in the words of a statute considered as a whole.” Id. “In interpreting 231 (2008). “This court is the final arbiter of the intent of the legislature as

de novo.” Petition of State of N.H. (State v. Laporte), 157 N.H. 229, struck Hayes. Hayes grabbed him and the defendant struck Hayes at least two

We first address the parties’ arguments concerning the proper legal defendant, the two then collided and the defendant defensively pushed and get outta there” and “[his] instinct was just to get away.” According to the arson. The court gave two reasons for denying the instruction. The first was

rationales for denying the requested instruction are flawed and that the failure 634:1 (2007). This appeal followed. On appeal, the defendant argues that both

see RSA 630:1-a, I(a) (2007), and two counts of arson, see RSA

moved towards him. Upon noticing the flames, “[his] first thought was just to self-defense and defense against burglary, but not defense of premises against and defense of premises against arson. The trial court gave instructions on three theories of justifiable homicide: self-defense, defense against burglary control.” At the close of evidence, the defendant requested jury instructions on

The defendant testified that he noticed flames for the first time as Hayes

person came towards him and he realized it was Hayes, who seemed “outta kitchen, and discovered a person crouched in the office doorway upstairs. The life and property still at risk after the completed arson.

p. 4 to prevent arson after the ignition of a fire, to the extent necessary to salvage the period preceding a crime and the period during a crime. statutes, both in New Hampshire and elsewhere, expressly distinguish between

Thus, the defendant maintains that RSA 627:7 justifies the use of deadly force taken the substantial step that establishes culpability for attempted arson.” deadly force only prior to the setting of a fire, and not after, given that other the moment the fire starts, but rather earlier, when the would-be arsonist has

defendant stabbed Hayes “to prevent an attempt by [Hayes] to commit arson.” Finally, it argues that the legislature intentionally drafted RSA 627:7 to justify insufficient evidence in the record for the jury to reasonably conclude that the the illogical result that a person loses the justification for deadly force “not at looks to the plain meaning of the word “prevent” to support its construction. 627:7 is properly construed according to its plain meaning. The State also

available. RSA 627:7. Whenever the justification may be lost, there was argues that when RSA 627:7 and RSA 629:1, I, are read together, they lead to evidence.” Id. (quotation omitted). “Where . . . there is simply no evidentiary toward the commission of the crime.” RSA 629:1, I (2007). The defendant crime of arson, and not afterwards. It argues that the word “attempt” in RSA ‘some evidence,’ . . . there must be more than a minutia or scintilla of “attempt” is defined elsewhere in the Criminal Code as a “substantial step State v. Ayer, 154 N.H. 500, 514 (2006), cert. denied, 128 S. Ct. 63 (2007). “By [was] some evidence to support a rational finding in favor of that defense.” The defendant was entitled to the requested jury instruction only “if there

unsustainable exercise of discretion by denying the requested instruction. See RSA 627:7. Accordingly, we find that the trial court did not engage in an

force “to prevent an attempt by the trespasser to commit arson” is no longer insofar as they dispute the precise moment when the justified use of deadly 627:7 by ruling that deadly force is justifiable only preceding the completed We decline to address the parties’ statutory construction arguments read the word “attempt” out of the statute. He points out that the word “committing or about to commit kidnapping or a forcible sex offense”). 627:4, II(c) (2007) (use of deadly force permissible when aggressor is

In contrast, the State argues that the trial court correctly construed RSA force precedes ignition of the fire. The defendant maintains that the trial court trespasser to commit arson” as affording a defense only when the use of deadly interpreting the language permitting deadly force “to prevent an attempt by the

The defendant argues that the trial court committed legal error by

RSA 627:7.

arson. necessary to prevent an attempt by the trespasser to commit he stated had already begun when he arrived. p. 5 Hayes and fled in order to prevent further arson or extinguish the fires which There was no evidence in the record suggesting that the defendant stabbed

the defendant stabbed Hayes with the sole intention of fleeing the premises.

force under RSA 627:7.

happening at that moment in the restaurant.” Thus, by his own admission, office” and that “[his] only intention was to . . . get away . . . from what was evidence,” said that “[his] intentions just w[ere] to get away from what was going on in the

conclude that he acted within the scope of the justification for the use of deadly

concurred. summer to help him run the restaurant. This is but a mere “scintilla of BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., response to the question “[W]hy did you [stab Steven Hayes?],” the defendant

by denying the requested instruction, we affirm its ruling. conclude that the trial court committed an unsustainable exercise of discretion Accordingly, because the record contains insufficient evidence to continue running Moose Tracks provides a rational basis for the jury to the fire.” Furthermore, he argues that the evidence that he intended to the defendant acted justifiably under RSA 627:7. sought to escape the office in order to take action to save the restaurant from reasonably infer, based entirely upon this testimony, that, in stabbing Hayes,

Ayer, 154 N.H. at 514 (quotation omitted), and a jury could not

parents and, if necessary, having them and his brothers move there for the discovering Hayes in the restaurant office, his only instinct was to escape. In arrangements to keep Moose Tracks operating by borrowing money from his The defendant also points to his testimony that he had made

immediately preceding the stabbing, “[a] jury could [reasonably] find that [he]

absent an unsustainable exercise of discretion. We disagree. The defendant’s own testimony reveals that, upon

party’s request.”

The defendant argues that, based upon his account of the events

at 514.

N.H. 370, 373 (2006). We will uphold the denial of a requested jury instruction supporting the defendant’s requested jury instruction. State v. Vassar, 154

Id. (quotation omitted). We will search the record for evidence

entitled to such an instruction, and the trial court may properly deny the basis to support the theory of the requested jury instruction, the party is not