2008-863, State of New Hampshire v. Lee T. Schwartz

The defendant, Lee T. Schwartz, appeals an order of

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Orville B. Fitch II, acting attorney general (Nicholas Cort, assistant 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. 2008-863 editorial errors in order that corrections may be made before the opinion goes Belknap Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 to repair the damage to his jaw.

p. 2 know that.” he did not see the defendant punch Stewart but, he said, “it happened . . . I

lacerations that required stitches. He subsequently underwent two operations

walking because he “just wanted to avoid the whole scene.” Hurd testified that

his face. Stewart had suffered a displaced fracture of his jaw and facial was missing teeth, had lacerations and what appeared to be “boot marks” on abdomen. A police officer at the hospital, Officer Marquis, noted that Stewart

told Marquis that he had been attacked at the Cumberland Farms store in and heard him yelling “as if he wanted me to go back.” Nonetheless, Hurd kept standing by the passenger side of the vehicle. Hurd saw Stewart on the ground heard the truck’s doors open and when he looked back he saw the defendant

beaten by two males who alighted from a silver Saab. A few days later, Stewart car.

stopped and let Hurd and his girlfriend out. As Hurd was walking away, he

“because [Stewart] ratted [me] out about something.” Hospital. He told the physician who treated him that he had been assaulted

While at the hospital, Stewart told Officer Marquis that he had been alley by two men in a silver truck. He later told Wood the men were in a white

defendant made a wrong turn, Hurd asked to be let out. The defendant

answer. The defendant then replied that he and Stewart got into a fight “pretty beat up,” and Hurd asked him what had happened, but Stewart did not Stewart was taken to the emergency room at Lakes Region General the defendant’s pickup, he saw Stewart sitting in the front seat. He looked

Stewart told the officer that after he left the Funky Monkey he was beaten in an of Stewart’s face was swollen and that he had blood all over his face and shirt. asked Stewart, “[D]o you want me to kick your ass again?” When the took him to the Meredith police station. Officer Wood testified that the left side Sometime later, Stewart was picked up by one of Hurd’s relatives who

him and his girlfriend a ride to her house. Hurd testified that when he got into

hours of February 10. As the defendant began driving, he and Stewart argued. The defendant Stewart believed that he left the club near closing time, in the early morning Stewart called him on his cell phone and asked if he could have a ride home.

Hurd testified that he saw the defendant in the store and the defendant offered Cumberland Farms store in Meredith with his girlfriend, Crystal Johnson. A short time later, Joseph Hurd, a friend of the defendant, went to a

could get him into trouble. The defendant left the club without Stewart, but defendant accused Stewart of “diming him out” by revealing information that remember who hit him. p. 3 blood and “pretty much [left] for dead.” He claimed, however, that he could not of the truck and throwing him in the snowbank, and that he was covered in

testified at trial that he remembered the defendant opening the passenger door the simple assault charge based upon insufficient evidence. further argues that the trial court erred in not granting his motion to dismiss convicted and the damages for which it sought restitution. The defendant

the amount of $36,389.36. This appeal followed. 3 of simple assault. As part of his sentence he was ordered to pay restitution in witness who saw the assault, he said, “[the] witness must be lying.” Stewart trial, a jury acquitted the defendant of second degree assault but convicted him explain the absence of cuts. When the police told the defendant there was a support in the record or are clearly erroneous. Cumberland Farms showed the defendant was wearing gloves, which would the requisite causal connection between the simple assault of which he was relationship to the offense.” or damage is causally connected to the offense and bears a significant however, the State must prove by a preponderance of the evidence that the loss

caused unprivileged physical contact to Stewart by hitting him. Following a State v. Shannon, 155 N.H. reviewing the trial court’s ruling, we accept its factual findings unless they lack any cuts on his hands. The police disclosed that the surveillance video from Eno, 143 N.H. at 470 (quotation omitted). In hit Stewart in the face. Specifically, he contends that the State failed to prove

determined by the court.”). “If the factual basis for restitution is disputed, (2007) (“Any offender may be sentenced to make restitution in an amount of the trial court.” State v. Eno, 143 N.H. 465, 470 (1999); see RSA 651:63, I “Determining the appropriate restitution amount is within the discretion

of human life,” and one count of simple assault, alleging that the defendant repeatedly “under circumstances manifesting extreme indifference to the value that he could not have struck Stewart as described because he did not have alleging that he caused bodily injury to Stewart by striking or stomping him that he was merely defending himself. He denied punching Stewart and stated which he was convicted did not allege that he caused bodily injury or that he Monkey. When asked about the assault, he said that Stewart struck him and pay restitution for breaking Stewart’s jaw when the simple assault charge of The defendant first argues that the trial court erred in sentencing him to

The defendant was charged with one count of second degree assault,

that he had been angry with Stewart the night they were together at the Funky

defendant’s truck in the store’s parking lot.

During an interview with the police on March 5, the defendant admitted

February 10 showed the defendant, Hurd and his girlfriend, and the Meredith. A surveillance video from the store in the early morning hours of by Stewart were causally connected to the fact that the defendant hit him.

p. 4 for medical and dental care.” RSA 651:62, III(a).

reasonable doubt.”

a finding by a preponderance of the evidence that the physical injuries suffered he incurred medical bills for treatment of his broken jaw. The record supports products, services and accommodations, including but not limited to charges suffered economic loss as a result of the defendant’s criminal conduct whereby offense, including: (a) Reasonable charges incurred for reasonably needed “out-of-pocket losses or other expenses incurred as a direct result of a criminal

from it in the light most favorable to the State, could have found guilt beyond a rational trier of fact, viewing all of the evidence and all reasonable inferences insufficient evidence. “To prevail . . . , the defendant must prove that no

of causing unprivileged physical contact to Stewart by hitting him. Stewart sentencing the defendant to pay restitution. 4 offender’s criminal conduct.” RSA 651:62, VI. “Economic loss” is defined as

it denied his motion to dismiss the simple assault charge based upon

victim for economic loss.” RSA 651:62, V. Here, the defendant was convicted than being hit by the defendant. We hold that the trial court did not err in offense. Rather, it is “money . . . provided by the offender to compensate a “Victim” is defined as “a person . . . who suffers economic loss as a result of an requirements for awarding restitution. Restitution is not an element of the is defined as “any person convicted of a criminal . . . act.” RSA 651:62, IV. evidence is solely circumstantial, it must exclude all rational conclusions offender to compensate a victim for economic loss.” RSA 651:62, V. “Offender” State v. Evans, 150 N.H. 416, 424 (2003). “When the

We next turn to the defendant’s argument that the trial court erred when

is no credible evidence that Stewart incurred his injuries in any other manner conduct covered by the conviction). Further, and on the record before us, there pay restitution. This argument, however, misconstrues the statutory economic losses directly resulting from factual allegations that support the RSA 651:61-a, I. “Restitution” is defined as “money . . . provided by the State v. Armstrong, 151 N.H. 686, 687 (2005) (defendant may be held liable for

which the defendant was convicted,” the trial court erred in ordering him to strictly circumscribed by the factual allegations in the charging document on manner, and to ease the burden of the victim as a result of the criminal act.” The defendant argues that “because the ability to award restitution is opportunity to pay his debt to society and to the victim in a constructive offender’s sense of responsibility for the offense, to provide the offender the

& Supp. 2009), “[r]estitution by the offender can serve to reinforce the will pay restitution. See id. at 138-39. As set forth in RSA chapter 651 (2007 Courts are to presume that a defendant responsible for a victim’s loss

Id. 135, 137 (2007). Our review of the trial court’s legal conclusions is de novo. elements of the charge beyond a reasonable doubt.

p. 5 favorable to the State” would allow a jury to find that the State proved all the

resolved in favor of the State and if the evidence is taken in [a] light . . . is circumstantial evidence that if accepted by the jury, if credibility issues are were heard and recounted by Mr. Hurd . . . and the totality of the record, there

him.

physical contact between the defendant and Stewart, “looking at the record as the defendant’s motion to dismiss, despite the lack of direct evidence of that the defendant caused unprivileged physical contact to Stewart by hitting supported by the evidence in the record. As the trial court reasoned in denying

light most favorable to the State, we hold that the only rational conclusion is a drunken fall. We do not agree that those are other rational conclusions

DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

Viewing all of the evidence and all reasonable inferences from it in the he may have been assaulted by someone else or may have sustained injuries in

The defendant argues that because no one testified that he hit Stewart,

N.H. 21, 24 (2009) (quotation omitted). conclusions based on the evidence have been excluded.” State v. Tayag, 159 possible conclusion has been excluded but, rather, whether other rational context, not in isolation.” Id. “The proper analysis is not whether every in the light most favorable to the State and examine each evidentiary item in except guilt.” Id. “Under this standard, however, we still consider the evidence