2008-438, STATE OF NH v. SHAWN R. CUNNINGHAM

that the jury could have found the following facts. The defendant is a

Viewing the evidence in the light most favorable to the State, we conclude

charges. We affirm. the Superior Court (Sullivan, J.) erred by denying his motion to dismiss the RSA 651:6, I(h) (2007); RSA 651:6, I-a (2007) (amended 2008). He argues that conviction by a jury for two counts of simple assault. See RSA 631:2-a (2007); DALIANIS, J. The defendant, Shawn R. Cunningham, appeals his

the defendant. Kimberly Thayer, public defender, of Dover, on the brief and orally, for

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Janice K. Rundles, senior assistant

to press. Errors may be reported by E-mail at the following address: Opinion Issued: July 10, 2009

No. 2008-438 editorial errors in order that corrections may be made before the opinion goes Merrimack Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 victim’s hands were at his side.

p. 2 defendant or his fellow officers. As he walked toward the holding cell, the

to cool down. The defendant, however, followed the victim into the holding cell done anything to indicate that he was about to assault them.

that up until this time, the victim had not directed any physical conduct at the shoved the victim “to keep him off balance.” The defendant admitted, however, and forcefully pushed him against the cell’s steel and glass reinforced wall. was about to spit on him or assault him. The defendant testified that he 2 the defendant behind him, the defendant shoved him in the small of the back influence of drugs or alcohol. As the victim walked toward the holding cell with

to enter the holding cell is to close the cell door and allow the inmate a chance anything to warrant being shoved. They did not believe that the victim had

angrily slammed it into the plastic bin.

to “keep moving, please,” and he complied. that the victim was walking too slowly and he was concerned that the victim

holding cell, which is used for new inmates as well as those who are under the

The standard procedure when an inmate has complied with the request pose a threat. The defendant’s fellow officers did not believe that the victim did

not wearing a t-shirt. Once he was given one, he took off his sweatshirt and

stared at Henry in an apparent effort to intimidate him. Henry told the victim The defendant testified that he shoved the victim because he believed property. He complied, although he removed his boots aggressively. He also to remove his boots and put them in the plastic bin provided for his personal but he refused and tossed it behind him. The victim was then directed to a

all of their requests, including the request to walk toward the holding cell, to unnecessary. They did not perceive the victim, who had complied with nearly him to remove his sweatshirt. The victim balked at doing so because he was The defendant’s fellow officers believed that shoving the victim was

mat behind him. When Henry told him to stop, he did. Henry asked the victim The defendant asked the victim “a couple of times” to put on the t-shirt,

The victim then went into the booking area where the defendant directed victim to the facility on charges that included driving while intoxicated. 2006. At approximately 5:00 a.m. that day, the Concord police brought the

took off the victim’s handcuffs. The victim then “playfully” punched the blue found the victim to be tense and agitated. After the pat-down search, Henry in the pre-booking area, and Henry conducted a pat-down search. Henry Then-Corporal Jason Henry and other officers met the police and victim

The instant charges stem from an incident that occurred on December 31, correctional officer at the Merrimack County House of Corrections (facility). with him and ultimately grabbed his leg and dropped him to the floor. p. 3 even after the victim was handcuffed, he continued to have a heated exchange opinion, the defendant lost his temper with the victim and that this is why,

only going to aggravate them more.” One of the officers testified that, in his

enhancement.

there’s no reason for them to sit down, exactly. If they want to stand up, you’re

his altercation with the victim, the defendant was sent home early.

on-duty as a correctional officer, the charges were subject to sentence

someone to sit down in the jail that’s intoxicated, if they’re in the cell already, believe it necessary that the victim sit. As another officer explained: “To get then yelled at the victim to stay down as the defendant left the cell. Because of in handcuffs. We were all done as far as . . . I was concerned.” Nor did they grabbed one of the victim’s legs and dropped him to the ground. The defendant then shoved him into a corner. When the victim still did not sit down, he 3

misdemeanor, because the defendant allegedly committed the assaults while victim’s legs and dropped him to the ground. Although simple assault is a that the defendant committed simple assault when he grabbed one of the

[did not] pose a threat . . . . I mean, he’s back – again back [in] the cell. He’s

backed away. The defendant continued to order the victim to sit down and

See RSA 651:6, I(h), I-a.

and pushed him into the holding cell’s wall. The second indictment alleged committed simple assault when he shoved the victim in the small of the back defendant. See RSA 631:2-a. The first indictment alleged that the defendant of force was unnecessary. As one officer testified: “In my mind, [the victim] The grand jury returned two indictments for simple assault against the

him so that the space between them was less than a foot, and the victim refused and began to call the defendant names, the defendant advanced toward because the victim “def[ied] him.” about to charge him, commanded the victim to sit down. When the victim

The defendant’s fellow officers, on the other hand, believed that this use

cell safely. The defendant testified that he made the victim fall to the floor back was against the cell wall. The defendant, believing that the victim was victim would be at a disadvantage and the defendant would be able to leave the The defendant testified that he wanted the victim to sit down so that the

cell, the other officers did not perceive the victim as a threat. yell at the defendant, because he was handcuffed and was still in the holding victim resisted at first, but then complied. Although the victim then began to

victim were approximately six feet apart. The victim was handcuffed and his heated exchange with the victim. During this exchange, the defendant and The other officers left the cell. The defendant, however, again began a

victim began wrestling. The other officers soon handcuffed the victim. The and began a heated exchange with him. At some point, the defendant and duty correctional officer. p. 4 doubt, that the assaults occurred when the defendant was acting as an onsentence enhancement, the State also had to prove, beyond a reasonable

imminent use of non-deadly force.

victim’s detention or to defend himself or the other officers against the victim’s thereafter, presented an affirmative case. believe that it was necessary to use the force that he did either to effect the prove beyond a reasonable doubt that it was unreasonable for the defendant to

determination. sufficiency of the evidence and we review the entire trial record to make that case after unsuccessfully moving to dismiss, the issue on appeal is the a reasonable doubt that he “[p]urposely or knowingly cause[d] bodily injury or prevent such an escape. defendant’s beliefs were “reasonable” is determined by an objective standard. attempting to effect such an arrest or detention or while seeking to to be the imminent use of non-deadly force encountered while See RSA 626:7, I(a) (2007). Whether the

could have found guilt beyond a reasonable doubt. recordings of the incident, the trial court denied the motion, and the defendant, raised justification under RSA 627:5, I, as a defense, the State also had to

the defendant’s motion to dismiss. Because the defendant chose to present a To convict the defendant of simple assault, the State had to prove beyond

416, 424 (2003). defend himself or a third person from what he reasonably believes

and all reasonable inferences from it in the light most favorable to the State, Based upon its review of the evidence, which included several compact disc defendant had to prove that no rational trier of fact, viewing all of the evidence To prevail upon his challenge to the sufficiency of the evidence, the

State v. Hull, 149 N.H. 706, 711-12 (2003).

The sole issue for our review is whether the trial court erred by denying

person, unless he knows that the arrest or detention is illegal, or to to prevent the escape from custody of an arrested or detained reasonably believes it necessary to effect an arrest or detention or doubt that his use of non-deadly force was not justified under RSA 627:5, I. charges on the ground that the State had failed to prove beyond a reasonable At the close of the State’s case, the defendant moved to dismiss the provides:

force upon another person when and to the extent that he A law enforcement officer is justified in using non-deadly

trial, he argued that his actions were justified under RSA 627:5, I (2007), which Before trial, the defendant filed a notice of defense of justification. At threatened. A rational juror could also have found that even if the defendant

p. 5 defendant grabbed the victim’s leg because he was angry, not because he felt

engaged in rational juror could have found that, before the shove, the victim had not

concluded, based upon testimony from the defendant’s fellow officers, that the not objectively reasonable. fellow officers, served only to escalate the situation. A rational juror could have down while in the cell was not necessary and, according to the defendant’s

request that he walk toward the holding cell. There was evidence from which a

to have shoved him in the small of the back. threat to any of the officers, it was not objectively reasonable for the defendant rational juror could also have concluded that because the victim did not pose a

or the other officers against the victim’s imminent use of non-deadly force was that point. He was handcuffed and contained in the cell. Forcing him to sit

his back facing the officers, his hands to his sides, and was complying with the officers. When the defendant shoved the victim, the victim was walking with that the victim was not, at that point, a threat to the defendant or to his fellow

engaged in any physical behavior that was directed at any of the officers. A

was necessary to use force to effect the victim’s detention or to defend himself juror could have found that the victim was no longer a threat to the officers at victim’s leg out from under him – there was evidence from which a rational We likewise conclude that with respect to the second assault – taking the

conclude that there was evidence from which a rational juror could have found

a rational juror could have found that, to that point, the victim had not that he was about to assault the officers. There was also evidence from which

any behavior that would have caused a reasonable officer to believe unjustified. A rational juror could have found that the defendant’s belief that it

that the defendant’s physical contact with the victim was unprivileged and light most favorable to the State, we hold that a rational juror could have found

With respect to the first assault – the shove to the victim’s back – we

Considering the evidence and all inferences to be drawn from it in the

justified. See RSA 627:5, I. contact with the victim was unprivileged, see RSA 631:2-a, I(a), and/or The issues for the jury, therefore, were whether the defendant’s physical this conduct while on duty as a correctional officer. See RSA 651:6, I(h), I-a. from under him. See RSA 631:2-a, I(a). He also conceded that he engaged in shoved the small of the victim’s back and had swept one of the victim’s legs out At trial, the defendant conceded that he had knowingly or purposely

the defense. See id. parents). A belief that is unreasonable, even though honest, will not support statute concerning use of force by persons with special responsibilities, such as See State v. Leaf, 137 N.H. 97, 99 (1993) (construing comparable language in p. 6 6

was unreasonable. reasonable doubt that the defendant’s belief that it was necessary to use force leg out from under him. A rational juror could also have found beyond a

against the victim, once by pushing him in the back and again by pulling his BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

defendant to have swept his leg out from under him. convictions. longer a threat to any of the officers, it was not objectively reasonable for the For all of the above reasons, therefore, we affirm the defendant’s A rational juror could also have concluded that because the victim was no

beyond a reasonable doubt that the defendant committed simple assault most favorable to the State, we conclude that a rational juror could have found Viewing this evidence and all inferences to be drawn from it in the light

non-deadly force, even after he was handcuffed, was not objectively reasonable. felt threatened by the victim, his belief that the victim was about to engage in