2009-372, State of New Hampshire v. Ward Bird

Michael A. Delaney

No. 2009-372

Carroll

Sisti Law Offices

threatening. See HICKS, J. The defendant, Ward Bird, appeals his conviction for criminal

his justification of defense of property. Finally, he contends that the trial court that he committed felony criminal threatening; and (3) the State did not negate felony criminal threatening; (2) there was insufficient evidence to demonstrate jury’s verdict because: (1) the indictment was insufficient to allege the crime of animal cruelty. He also asserts that the trial court should have set aside the Court (Houran, J.) erred by excluding evidence of a witness’s prior bad acts of

RSA 631:4 (2007). On appeal, he argues that the Superior

brief, and Mr. Sisti orally), for the defendant.

general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as examination about her January 2008 convictions in district court for animal p. 2 defendant asked the court to rule that Harris had “open[ed] the door” to crossto handle “the cattle, the sheep, the goats.” Based upon this response, the animals. She responded that she planned to hire others with “more expertise” reasons for planning an educational farm, particularly her experience with with the defendant. On cross-examination, the defendant inquired about her educational farm. She also stated she abandoned the idea after her encounter well as “state grants and federal grants” because she wanted to start an testified that she had planned to purchase the property with her own funds as The defendant was indicted for criminal threatening. At trial, Harris

out of the driveway. defendant then walked off the porch toward her waving his gun as she backed Harris eventually climbed back into her car, mouthing “[w]hat an ass.” The selling the property. He repeated his command for her to leave his property. her. Harris asked the defendant whether he was the boyfriend of the woman waving a gun at her. At trial, she testified that he pointed the gun “[t]owards” property.” He came down from his porch, continuing to yell profanities while out. The defendant emerged from his home “screaming, get the F off my and ended up in front of the defendant’s house. She parked her car and got She missed the left hand turn off of Yukon Trail, drove past the white trailer, “Private road, keep out” on Emerson Path and “no trespassing” on Yukon Trail. Harris followed the niece’s directions and drove past signs that stated

Harris was driving a Ford Ranger. that she might show up on his property. She also told the defendant that defendant to warn him that Harris was going to look at the Viano property and After Harris left the home of the defendant’s niece, the niece telephoned the told her that if she passed a white “job trailer,” she was on the wrong property. 2 Trail, and then a road to the left with a small bridge over a stream. The niece her that the most direct route to the property was Emerson Path to Yukon home of the defendant’s niece, where she asked for directions. The niece told During her drive to the property, she became lost and stopped at the

could not meet her later that day, she decided to look at the property herself. him she was running late and could not make the appointment. Because he interested in purchasing. That day, she called the real estate agent to inform property for sale in Moultonborough owned by Patricia Viano that Harris was arranged to meet a real estate agent on March 27, 2006, at his office to view a could have found or the record supports the following. Christine Harris Viewing the evidence in the light most favorable to the State, the jury

g (2007). We affirm. committed reversible error when it enhanced his sentence under RSA 651:2, IIunsustainable exercise of discretion. See I. Cross-Examination p. 3 We review the trial court’s decision on the admissibility of evidence for an

weapon, and the deadly weapon is a firearm.” This appeal followed. convicted of a felony, an element of which is the possession . . . of a deadly imposes a mandatory minimum sentence of three years “[i]f a person is for no less than three and no more than six years, citing RSA 651:2, II-g, which denied the motion. In April 2009, the court sentenced the defendant to prison to use non-deadly force to terminate Harris’s trespassing. The trial court not have found other than that the defendant reasonably believed it necessary insufficient to prove criminal threatening, and that a rational trier of fact could 3 not sufficiently allege the crime of criminal threatening, that the evidence was defendant moved to set aside the verdict, contending that the indictment did The jury found the defendant guilty of criminal threatening. The excluding evidence favorable to his opponent, and then selectively introducing misleading advantage. Id impression.. The rule prevents a party from successfully allowed to introduce previously inadmissible evidence to counter the property” and that cross-examination was necessary to correct this false evidence that creates a misleading advantage. Id animals type person who inadvertently trespassed on [the defendant’s] posted. The opponent is then contradiction doctrine applies when one party has introduced admissible “misleading impression” with the jury that Harris was “an innocent, caring for doctrine. State v. Wamala cruelty. He contends that the State elicited testimony from Harris that left a, 158 N.H. 583, 589 (2009). The specific application of the specific contradiction branch of the opening-the-door evidence of Christine Harris’s 2008 misdemeanor convictions for animal evidence that created a misleading impression, we are concerned with the The defendant first argues that the trial court erred by excluding (2007). Because the defendant argues that the State introduced admissible

force. The trial court agreed to give the instruction. defendant requested a jury instruction on defense of property with non-deadly proven all of the elements of the crime. Prior to closing arguments, the motion, ruling that a reasonable factfinder could conclude that the State had established that the gun he waved was a deadly weapon. The court denied the sufficient evidence to negate his claim of defense of property and had not criminal threatening charge, arguing that the State had not presented At the close of the State’s case, the defendant moved to dismiss the

“ability to take care of animals.” The court denied the motion. cruelty. The defendant argued this evidence would cast doubt upon Harris’s p. 4 II. Defendant’s Claim of Defense of Premises

exercise of discretion. State v. Kousounadis unless its ruling was made without evidence or constituted an unsustainable We will uphold a trial court’s denial of a motion to set aside the verdict 4

about her prior convictions for animal cruelty. exercise its discretion by not permitting the defendant to cross-examine Harris about her ability to care for animals. The trial court did not unsustainably N.H. 83, 92 (1989). that you’re a humanitarian type?,” intended to elicit statements from Harris State, could have found guilt beyond a reasonable doubt. State v. Gruber that Harris criminally trespassed on his property, see have experience taking care of animals?” and “Are you trying to tell the jury, 132 rational trier of fact, viewing the evidence in the light most favorable to the claim of defense of premises under RSA 627:7 (2007). Specifically, he asserts the defendant on cross-examination who asked questions, such as “Do you overturn the trial court’s decision, the defendant must establish that no motion to set aside the verdict on the grounds that the State failed to rebut his the Viano property that day or her ability to care for animals. Rather, it was The State did not ask any other questions about Harris’s purpose in looking for The defendant next contends that the trial court erred by denying his, 159 N.H. 413, 421 (2009). To

waving of the gun was “unreasonable” and constituted deadly force. “per se reasonable” under RSA 627:7. The State counters that the defendant’s According to the defendant, use of non-deadly force to terminate a trespass is therefore, he was justified in using non-deadly force to persuade her to leave.

grants to do an educational farm. financing, . . . [i]t was to be able to get state grants and federal educational farm for it to be self-supporting. And as far as behind . . . the Viano’s . . . . I needed a large piece to do the large parcels of property and there was a timber piece that was up No. I was looking to do an educational farm, so I was looking for

pocket for the full amount of [the] property?” Harris replied, when you were looking for property that day, did you have a check in your impression that needed to be placed in proper context. The State asked, “Now We agree with the trial court that the State did not create a misleading

have reasonably misled the fact finder in some way. Id. evidence in proper context. Id. at 590. The initial evidence must, however, this evidence for his own advantage, without allowing the opponent to place the by using non-deadly force. RSA 627:7; see p. 5 believe “it necessary to . . . terminate the commission of [the] criminal trespass” beyond a reasonable doubt that it was unreasonable for the defendant to The defendant raised this justification at trial. Thus, the State had to prove

objective standard. See premises . . . . court’s denial of the defendant’s motion to set aside the verdict. “get the F off my property” and pointing a gun at her. We affirm the trial the boyfriend of the woman selling the property, and he responded by yelling arriving at the property. She testified that she asked the defendant if he was defendant). Harris also testified about her exchange with the defendant on 5 and, thus, was “neither a trespasser nor reasonably perceived as such by” the demonstrated that the victim was invited and expected at the defendant’s home

and that she was driving a Ford Ranger. Cf Harris was going to look at the Viano property and might stop at his property, Whether the defendant’s belief was reasonable is determined by an defendant’s niece, who had then telephoned the defendant to tell him that commission of a criminal trespass by such other in or upon such she had been given directions to follow the roads with these signs by the While Harris drove past “no trespassing” signs onto the defendant’s property, to wave his pistol to terminate Harris’s trespass was not objectively reasonable. rational juror could have found that the defendant’s belief that it was necessary Considering the evidence in the light most favorable to the State, a

criminal threatening with a dangerous weapon case where evidence 1275-76 (Me. 1984) (upholding the trial court’s denial of a motion to acquit in a

reasonably believes it necessary to prevent or terminate the

not support the defense. Id. correctional officers). A belief that is unreasonable, even though honest, will (construing comparable language in statute concerning use of force by

believe it necessary to use such force. deadly force upon another when and to the extent that he we focus our analysis upon whether it was reasonable for the defendant to who is licensed or privileged to be thereon is justified in using nonwithout deciding that the defendant’s actions constituted “non-deadly force,” A person in possession or control of premises or a person RSA 626:7, I(a) (2007). Assuming

criminal trespass. It states, in relevant part: a person is justified in using non-deadly force to terminate the commission of a RSA 627:7, entitled “Use of Force in Defense of Premises,” governs when or serious bodily injury.” RSA 625:11, V; Kousounadis p. 6 “deadly weapon” in a manner that “is known to be capable of producing death The indictment sufficiently alleged that the defendant threatened to use a

conviction for felony criminal threatening. To prevail on a claim of insufficiency

to get off of his property. to RSA 625:11, V at Christine Harris while telling Christine Harris forty-five caliber handgun, a firearm and deadly weapon pursuant in fear of imminent bodily injury or physical contact by waving [a] physical conduct he purposely attempted to place Christine Harris

We next address whether the evidence was sufficient to support a

did commit the crime of criminal threatening in that by his

625:11, V; Kousounadis elements of felony criminal threatening. See RSA 631:4, I(a), II(a)(2). is known to be capable of producing death or serious bodily injury.” RSA use the gun. Accordingly, the indictment sufficiently alleged each of the which, in the manner it is used, intended to be used, or threatened to be used, legislature in the assault statutes”). Implicit in these allegations is a threat to II(a)(2). A deadly weapon is “any firearm, knife or other substance or thing thus do bodily harm is a deadly weapon within the meaning expressed by the injury or physical contact,” while using a deadly weapon. RSA 631:4, I(a), communicate to the person threatened an apparent ability to fire a shot and “purposely place[d] or attempt[ed] to place another in fear of imminent bodily (stating that “an unloaded revolver which is pointed in such a manner as to have set out the following elements: that by physical conduct, the defendant get off of his property.” Cf. State v. Deutscher, 589 P.2d 620, 625 (Kan. 1979) the variant of felony criminal threatening involved here, the indictment must deadly weapon pursuant to RSA 625:11” at Harris while “telling . . . Harris to substantially and formally . . . .” RSA 601:4 (2001). To be sufficient to charge stated that the defendant “wav[ed] a forty-five caliber handgun, a firearm and “An indictment . . . is sufficient if it sets forth the offense fully, plainly, Here, the indictment alleged that the defendant:, 159 N.H. at 425. It

committed felony criminal threatening. We address each argument in turn., 159 N.H. at 425. threatening. He also asserts that the evidence was insufficient to prove that he Therefore, according to the defendant, it only alleged misdemeanor criminal capable of producing death or serious bodily injury.” RSA 625:11, V (2007). intended to use, or threatened to use the gun in a manner that “is known to be allege felony criminal threatening because it did not state that he used, The defendant next contends that the indictment did not sufficiently

III. Felony Criminal Threatening p. 7 State v. Russell convicted the defendant was possession, use or attempted use of a firearm.” a specific finding by the jury that an element of the felony for which it for a first offense.” We have held that this enhancement does not apply “absent given a minimum mandatory sentence of not less than 3 years’ imprisonment deadly weapon, and the deadly weapon is a firearm . . . [t]he person shall be a felony, an element of which is the possession, use or attempted use of a RSA 651:2, II-g states, in pertinent part, that “[i]f a person is convicted of

was a firearm. Id Here, the trial court found that under State v. Higgins. at 302. Based upon these factors, we concluded that: only weapon the State argued that the defendant used to commit the offenses definition of “deadly weapon” under RSA 625:11, V. Id. at 301. Finally, the find that a “deadly weapon” was used to commit the crimes and provided the deliberations, the trial court also instructed the jury that to convict it had to the defendant used a firearm as a deadly weapon. Id. at 300. Prior to criminal threatening charges in the indictments to the jury, which alleged that was a firearm. Higgins, 149 N.H. at 301-02. There, the trial court recited the specific finding that the deadly weapon used to criminally threaten the victim application of RSA 651:2, II-g even though the trial court failed to obtain a (2003), RSA 651:2, II-g applied. In Higgins, we upheld the trial court’s shot or said he would shoot Ms. Harris.”, 149 N.H. 290 the gun as a deadly weapon” because “[t]here was no evidence that he fired a deadly weapon.” He claims “[t]he facts of the case do not support that he used, 159 N.H. 475, 490 (2009) (quotation and brackets omitted). been instructed to unanimously find that “the defendant used a firearm as a defendant argues that, for the enhanced sentence to apply, the jury must have mandatory minimum three-year sentence pursuant to RSA 651:2, II-g. The The defendant contends that the trial court erred when it imposed a

IV. Sentence Enhancement under RSA 651:2

an assault”); King v. State, 790 S.W.2d 678, 680-81 (Tex. App. 1989). inference that the defendant’s conduct was “a conditional threat constituting in a living room and told them to lay down was sufficient to support an 1993) (stating that evidence that defendant pointed a gun at a group of people criminal threatening. Cf. People v. Daniels, 22 Cal. Rptr. 2d 877, 879 (Ct. App. toward the victim, while yelling “get the F off my property[,]” constituted felony could have found that the defendant’s actions of waving and pointing a gun be drawn from it in the light most favorable to the State, a rational juror readily Cunningham, 159 N.H. at 107. Considering the evidence and all inferences to favorable to the State, could have found guilt beyond a reasonable doubt. all of the evidence and all reasonable inferences from it in the light most of the evidence, the defendant must prove that no rational trier of fact, viewing p. 8 We agree with the trial court that Higgins

We address constitutional issues de

sentences.” State v. Dean independent exercise of judicial discretion by the requirement of mandatory Our constitution “does not prohibit the legislature from constricting the

unanimity [of the jury] . . . was fully satisfied in this case.

Federal Constitutions because it was disproportionate to his crime. See “grossly disproportionate to the crime.” Id. (quotation omitted). years in state prison was unconstitutional under the New Hampshire and sentence to violate Part I, Article 18 of the State Constitution it must be Duquette v. Warden, N.H. State Prison Finally, the defendant argues that his mandatory sentence of three to six Accordingly, we conclude that the constitutional mandate of, 154 N.H. 737, 745 (2007). For a and we cannot declare it unconstitutional except upon inescapable grounds. V. Mandatory Sentence 182 (2006). We must presume that the sentencing scheme is constitutional

(1983). authority only to assist in our analysis. See State v. Ball, 124 N.H. 226, 231 defendant’s claim under the New Hampshire Constitution, referring to federal CONST. amend. VIII, XIV; N.H. CONST. pt. I, art. 18. We first address the

other object, as a deadly weapon to commit the crimes. unanimous conclusion that the defendant used a firearm, and no

court did not misapply RSA 651:2, II-g to enhance the defendant’s sentence. as a deadly weapon in the commission of the crime. Accordingly, the trial guilty verdict reflects a unanimous finding that the defendant used the firearm weapon because he did not fire any shots. Therefore, we conclude that the defendant’s argument that the handgun could not have been used as a deadly weapon. Indeed, for the reasons stated above in section III, we reject the defendant guilty it must find that the defendant used a firearm as a deadly conclude that a reasonable jury would have understood that to find the light of the language of the indictment and the evidence presented at trial, we the handgun toward her while yelling at her to “get the F off my property.” In defendant waved a handgun throughout their encounter and that he pointed the use of a firearm. Therefore, the guilty verdicts reflect a to get off his property.” The victim’s testimony demonstrates that the pursuant to RSA 625:11[,] V at Christine Harris while telling Christine Harris defendant “wav[ed] a forty-five caliber handgun, a firearm and deadly weapon trial court relayed to the jury the criminal threatening allegation that the

element of both criminal threatening charges exclusively referred to a reasonable jury would understand that the “deadly weapon” p. 9 9

Affirmed

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

the Federal Constitution under these circumstances, see Because the State Constitution provides at least as much protection as

as we do under the State Constitution. constitutional sense”), we reach the same result under the Federal Constitution “[s]evere mandatory penalties may be cruel, but they are not unusual in the N.H. 101, 106 (1 p. 9 985); Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (stating

for the Legislature, not the courts.” (quotation omitted)). many cases unjust, any amelioration of their mandatory nature is a function Dean, 115 N.H. at 524 (“While the statutory penalties are indeed harsh and in because it necessarily results in sentences that are disproportionate. See defendant fails to persuade us that the sentencing scheme is unconstitutional weapon, and the deadly weapon is a firearm.” RSA 651:2, II-g. Here, the felony, an element of which is the possession, use or attempted use of a deadly a mandatory minimum sentence of three years when a “person is convicted of a