2008-079, STATE OF NH v. ERIC TYLER

residence the afternoon of June 13, 2006. He observed a red mark on the Police Department responded to a domestic disturbance call at the defendant’s

Court (

The record supports the following. Officer Robert Kelley of the Sandown

three related counts of simple assault. We affirm. Nadeau, J.) denying a jury instruction explaining his prior acquittal on RSA 631:2-a (2007), the defendant, Eric Tyler, appeals a ruling of the Superior HICKS, J. Following a conviction for one count of simple assault, see

the defendant. Alexander E. Roth, public defender, of Dover, on the brief and orally, for

for the State. general, on the brief, and Elizabeth J. Baker, assistant attorney general, orally), Kelly A. Ayotte, attorney general (Peter Hinckley, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-079 editorial errors in order that corrections may be made before the opinion goes Rockingham 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 guess as to why it is that this is the one charge before you.

p. 2 occurred and whether he was the aggressor. On cross-examination, the State

is guilty or not guilty of this offense, and you may not speculate or other alleged assaults in reaching a decision on whether or not he victim] by throwing hot wax on her. You are not to consider the

the victim as to how the argument began, he disputed how each alleged assault

soda cans and the souvenir bat. 2 cross-examination, the defense briefly revisited her testimony regarding the 2006, he knowingly caused unprivileged physical contact to [the “threw the wax at [her] and then . . . smashed the two [candles] together.” On

his version of the argument and the alleged assaults. Although he agreed with previous to the assault for which he stands accused.

Tyler committed the crime of simple assault in that on June 13th, defendant grabbed two votive candles which had been burning all day and

After Officer Kelley testified to his observations, the defendant testified to committed by the defendant that are different from and happened

allegedly threw hot wax on her.

Derry District Court (The only charge for your consideration is whether or not Eric back. She further testified that, shortly before she called the police, the her with a souvenir bat; and one for throwing hot wax. After a bench trial, the struck with a wooden, souvenir bat and having two full soda cans strike her argument began and progressed, including a detailed description of being You have heard testimony regarding assaults that allegedly were

After excusing the victim, the court gave the following jury instruction: next day culminating in the victim’s call to the police after the defendant

of simple assault: two for striking the victim with soda cans; one for striking

The State called the victim as its first witness. She testified to how the

admissible. including the alleged assaults for which the defendant was acquitted, would be defendant returned from the store with beer instead of milk. It continued the testimony regarding the circumstances leading up to the alleged wax throwing, arguing. The argument appears to have begun the night before, when the RSA 599:1 (Supp. 2008). Prior to trial, the State and defense agreed that on her body. The defendant explained to Officer Kelley that they had been wax. The defendant appealed to the superior court for a de novo jury trial. See

Officer Kelley arrested the defendant and charged him with four counts

the defendant’s girlfriend, was upset and had wax on the side of her face and defendant’s hand and wax on his forearm. He further observed that the victim, them or the fact that only one charge of simple assault was at issue. The court

p. 3 innocence in that prior trial.”

about the effect of the other alleged assaults upon the single charge before

tried for the prior act and may be speculating as to the defendant’s guilt or

court’s ruling was not an unsustainable exercise of discretion. to fetter that discretion with a rigid rule. It suffices to note here that the trial That language, and particularly the final sentence, precluded any speculation other alleged assaults or that he had yet to be tried on those alleged assaults.” instructions in New Hampshire. the court “left the impression that [he] had either already been convicted of the at trial.” language of the trial court’s instruction belies the defendant’s contention that 153 N.H. 643, 652 (2006); State v. Dean, 129 N.H. 744, 750 (1987). The plain proper use of evidence. See N.H. R. Ev. 105; see also, e.g., State v. Beltran, indicates that the jury has likely learned or concluded that the defendant was White, 155 N.H. 119, 128 (2007), we credit their ability to guide the jury’s Provided that limiting instructions are “clear and unambiguous,” State v. rule of unsustainable exercise of discretion. court, and we review the trial court’s decisions on these matters for an prove instructive upon the limits of the trial court’s discretion, we see no need court should evaluate case-by-case). While Kinney and similar cases may

discretionary standard already governing the administration of jury acquitted of [committing the] prior bad acts about which evidence was admitted Kinney’s rule is simply one articulation of the

acquittal instruction when the “evidence presented at trial about the prior act Kinney v. People, 187 P.3d 548, 557 (Colo. 2008), and require an We begin by addressing the defendant’s argument urging us to adopt the

wording of jury instructions are both within the sound discretion of the trial States, 493 U.S. 342 (1990). We express no opinion on the matter. admissibility of the prior acquitted assaults. See, e.g., Dowling v. United As a preliminary matter, we note that the parties do not dispute the

State v. Lambert, 147 N.H. 295, 296 (2001). denied [his] request that the jury be informed that he had previously been ruling was clearly untenable or unreasonable to the prejudice of his case. decision is unsustainable, the defendant must demonstrate that the court’s them. State v. Evans, 150 N.H. 416, 420 (2003). To show that the trial court’s We interpret jury instructions as a reasonable juror would have understood

Whether a particular jury instruction is necessary and the scope and

On appeal, the defendant argues that “[t]he trial court erred when it

proceeding about this case.” impeached the defendant several times by referencing his testimony “in a prior p. 4 4

hearing, its substance or its outcome).

suppression hearing” and revealed no information about what transpired at the

circumstances,

DALIANIS and DUGGAN, JJ., concurred.

follow instructions. would impermissibly contravene the well-established presumption that jurors mistrial where testifying officer “made vague and ambiguous references to the is insufficient to infer prejudice. Cf. State v. Hall, 1 p. 4 48 N.H. 671, 675 (2002) (no requesting previous trial transcripts), the State’s mention of prior proceedings

see, e.g., Kinney, 187 P.3d at 558 (deliberating jury sent note

presumably followed the original limiting instruction. In the absence of other from a prior proceeding. We disagree. As discussed above, the jury instruction prejudiced his defense in light of his impeachment with testimony The defendant further contends that the failure to give an acquittal

be tried for the other alleged assaults, and concluding otherwise on these facts simply did nothing to suggest to the jury that the defendant had been or would