2010-274 The State of New Hampshire v. Timothy Gingras

Michael A. Delaney

No. 2010-274

Rockingham

(McHugh, J. criminal mischief, RSA 634:2 (2007), following a jury trial in Superior Court conduct, RSA 631:3 (2007), criminal threatening, RSA 631:4, I(a) (2007), and LYNN, J. The defendant, Timothy Gingras, was convicted of reckless

Stephen T. Jeffco, P.A.

and remand. firearm constituted the use of deadly force. We reverse these two convictions defense jury instruction; and (3) in instructing the jury that brandishing a sentencing him on both convictions; (2) in failing to give his proposed selfreckless conduct convictions, arguing that the trial court erred: (1) in

). On appeal, he challenges only the criminal threatening and

orally), for the defendant.

attorney 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 p. 2 22 as 2

defendant against multiple punishments for the same offense. State v. Glenn Part I, Article 16 of the New Hampshire Constitution protects a criminal

constitutional law de novo because both offenses arise out of the same conduct. We review questions of clauses prohibit his convictions for criminal threatening and reckless conduct The defendant first argues that the state and federal double jeopardy

7 p. 2 26, 730 (1998) (quotation omitted). the actual allegations contained in the indictments.” State v. Liakos, 142 N.H. Constitution, referring to federal decisions only for guidance. See review and compare the statutory elements of the charged offenses in light of evidence. State v. Ford, 144 N.H. 57, 65 (1999). “In making this inquiry, we elements of the crimes as charged will in actuality require a difference in (quotation and brackets omitted). We focus upon whether proof of the element that the other does not.” State v. McGurk, 157 N.H. 765, 773 (2008) the same for double jeopardy purposes unless each requires proof of an 160 N.H. 480, 486 (2010) (citations omitted). “Two offenses will be considered ,

shortly thereafter. to his own car, and called 911. The police arrived and arrested the defendant 1 p. 2 24 N.H. 226, 231-33 (1983). shoot him if he did not back away. Mangini put his hands in the air, retreated State v. Ball, consider the defendant’s constitutional arguments under the State the driver’s window, pointed the gun at Mangini’s chest and threatened to valid permit to carry) from the glove compartment, and, as Mangini approached. State v. Farr, 160 N.H. 803, 807 (2010). We first The defendant entered his vehicle, withdrew a handgun (for which he held a from anger to fright, and he returned to his car with Mangini following him. was physically larger than the defendant, the defendant’s attitude changed profanities at the defendant and said he would beat him up. Because Mangini At this point Mangini became angry and got out of his car. Mangini shouted onto the hood of Mangini’s car with both feet, causing damage to the vehicle. and swear at Mangini, who remained in his car. The defendant then jumped foot. The defendant slapped the hood of Mangini’s car and continued to yell front of Mangini, alighting from his vehicle, and approaching Mangini’s car on and then tried to ignore the defendant. The defendant persisted, pulling in Mangini’s car. The defendant screamed profanities at Mangini, who apologized front of him from the left, causing the defendant to swerve to avoid hitting defendant was driving on Route 125 in Epping when Andrew Mangini pulled in sufficient for the jury to find the following facts. On June 26, 2009, the Viewed in the light most favorable to the State, the evidence was

6 p. 3 36, 645 (1997). disproving this defense beyond a reasonable doubt. State v. McMinn, 141 N.H. evidence that the defendant acted in self-defense, the State bears the burden of properly a matter to be decided by the jury. Where, as here, there is some evidence presented, the issue of whether the defendant used deadly force was nondeadly force.”). We therefore proceed on the assumption that, based on the App. 2004) (“Pointing a firearm (without firing it) amounts to the use of force.” (citations omitted)); Rivero v. State, 871 So. 2d 953, 954 (Fla. Dist. Ct. constitutes nondeadly force only, and does not amount to the use of deadly using a gun in a threatening manner without discharging the weapon Cannell, 916 A.2d 231, 234 (Me. 2007) (“[W]e have unequivocally held that not constitute the use of deadly force as a matter of law. But see State v. the defendant makes no claim that his actions in pointing a gun at Mangini did See argued that the defendant had used deadly force. Third and most important, test” also disposes of the defendant’s claim under the Federal Constitution. self-defense instruction be given. Second, during closing the State specifically concedes that the evidence presented at trial was sufficient to require that a Our analysis applying the State Constitution’s “difference in evidence is circumscribed by three points that are not in dispute. First, the State “deadly force.” In addressing this issue, we note at the outset that our analysis self-defense, the trial court erred in failing to give a full definition of the term The defendant next argues that, in instructing the jury on the issue of

Constitution as we do under the State Constitution. id. at 6 p. 3 32. We therefore reach the same result under the Federal

N.H. 625, 6 p. 3 30 (2005), they each required the State to prove a separate element. two indictments arose out of the same transaction, see State v. Sanchez, 152 bodily injury regardless of whether Mangini feared such injury. Although the defendant placed or may have placed Mangini in actual danger of serious danger. The reckless conduct statute, by contrast, does require that the bodily injury, it does not require proof that Mangini was actually placed in that the defendant placed or attempted to place Mangini in fear of imminent RSA 631:3 (2007). Whereas the criminal threatening statute requires proof conduct which places or may place another in danger of serious bodily injury.” (2007). A person is guilty of reckless conduct if he “recklessly engages in another in fear of imminent bodily injury or physical contact.” RSA 631:4, I(a) “[b]y physical conduct, the person purposely places or attempts to place necessary to the other charge. A person is guilty of criminal threatening when, threatening and reckless conduct – each required the State to prove facts not The indictments against the defendant in this case – for criminal in clear and intelligible language, the rules of law applicable to the case.” State p. 4 “The purpose of the trial court’s charge is to state and explain to the jury,

defendant had fired his gun. read the second sentence of the statute because there was no evidence that the agreed to read to the jury the first sentence of RSA 627:9, II, but refused to both deadly and non-deadly force. With respect to deadly force, the court The defendant asked the court to instruct the jury on the definition of

confinement which does not constitute deadly force.

IV. “Non-deadly force” means any assault or

. . . .

deadly force.

a vehicle in which another is believed to be constitutes

injury or death in the direction of another person or at

to give that portion of the deadly force definition that related to the discharge of was no evidence that the defendant discharged his firearm, there was no basis Adopting the trial court’s rationale, the State argues that because there

firing a firearm capable of causing serious bodily

court, which we review for an unsustainable exercise of discretion. Id. wording of the instruction, are committed to the sound discretion of the trial case.” Id. Whether a particular instruction is necessary, and the scope and reverse only if the instructions did not fairly cover the issues of law in the instructions adequately and accurately explain each element of the offense and them, and in light of all the evidence in the case.” Id causing death or serious bodily injury. Purposely. “We determine if the jury instructions in their entirety, as a reasonable juror would have understood instructions, we evaluate allegations of error by interpreting the disputed v. Johnson, 157 N.H. 404, 407 (2008) (citation omitted). “When reviewing jury

or which he knows to create a substantial risk of which the actor commits with the purpose of causing II. “Deadly force” means any assault or confinement

(2007) defines “deadly force” and “non-deadly force” as follows: deadly force against him. RSA 627:4, II(a) (2007 & Supp. 2010). RSA 627:9 the person must reasonably believe that the other person is about to use In order to use deadly force against another person in self-defense, however, non-deadly force that he reasonably believes to be necessary for this purpose. deadly force by the other person, and provides that he may use the degree of from what he reasonably believes to be the imminent use of unlawful, nonperson to use non-deadly force upon another person in order to defend himself As pertinent to this case, RSA 627:4, I (2007 & Supp. 2010) allows a p. 5 5

627:9, II, there is a significantly greater likelihood that the jury may have deadly force. However, without knowing about the second sentence of RSA pointing his gun at Mangini without discharging it constituted the use of nonwithin the ambit of deadly force, then the defendant’s conduct of merely firing of a gun at another person or a vehicle in order to capture such conduct legislature deemed it necessary to include a specific provision dealing with the second sentence of RSA 627:9, II, it could well have found that, if the If the jury had been given the full definition of deadly force, including the

for the legislature to include it. See constitute the use of deadly force – otherwise there would have been no need absence of this provision, such discharge of a firearm would not, without more, include the second sentence in RSA 627:9, II is a strong indication that, in the to be constitutes deadly force. That the legislature found it necessary to in the direction of another person or at a vehicle in which a person is believed between deadly and non-deadly force by indicating that discharging a firearm The second sentence of RSA 627:9, II further illuminates the distinction risk of causing death or serious bodily injury,” whereas the latter does not. does not is that the former must involve conduct that “create[s] a substantial difference between an assault that involves the use of deadly force and one that does not further define the term “assault,” it does make clear that the confinement in this case, we focus on the term “assault.” Although RSA 627:9 there be an “assault” or a “confinement.” Since there is no evidence of a Both the definitions of “deadly force” and “non-deadly force” require that

not to use words that are superfluous or redundant.”). (“All words of a statute are to be given effect, and the legislature is presumed requested in Bruneau State v. Pierce, 1 p. 5 52 N.H. 790, 791 (2005) sentence of the deadly force definition read to the jury. Unlike the instructions the absence of such evidence was the very point of his wanting the second While it is true that there was no evidence the defendant fired his gun,

(citation omitted). scope of a judge’s responsibility to instruct the jury on the law.” Id. at 117-18 . . . about the legal significance of claimed facts, and it thus falls within the dealt with a true theory of defense. That is, the instruction dealt with a “theory evaluated, see Bruneau, 131 N.H. at 117, the instruction at issue here clearly imprimatur on the defendant’s position concerning how the evidence should be , which merely sought to have the trial court place its

covering such theory. We find the State’s position unpersuasive. claims that the trial court was under no obligation to give an instruction than his “theory of defense,” and, citing State v. Bruneau, 131 N.H. 104 (1988), characterizes such an argument as the defendant’s “theory of the case” rather because he did not discharge his gun, he did not use deadly force. The State instruction relating to the discharge of a firearm so that he could argue that, a firearm. More specifically, the State contends the defendant desired the that the defendant, by his actions, threatened to fire it

p. 6 by the defendant was a firearm, and if you further find

. . . Thus, if you conclude that the weapon used

Mangini and threatened to shoot him if he did not back off, see his gun in a manner constituting it a deadly weapon when he pointed it at or serious bodily injury. Inasmuch as there could be no serious dispute that the defendant used

to be used is known to be capable of producing death

(Emphasis added.) manner it is used, intended to be used or threatened

knife or any other substance or thing which, in the capable of causing death or serious bodily injury. weapon. A deadly weapon is defined as any firearm, Thirdly, that the defendant used a deadly

a deadly weapon. necessarily follow from a finding that a person brandished or threatened to use (2007) with RSA 627:9, II, and a finding of the use of deadly force does not weapon” and “deadly force” are not synonymous, compare RSA 625:11, V above demonstrates, such reasoning is incorrect. The definitions of “deadly – that the weapon, excuse me, is a deadly weapon automatically followed that he had used deadly force. But as the discussion could easily have assumed that if the defendant had used a deadly weapon it deadly weapon: Kousounadis 625:11, V,” and the court gave the following instruction as to the meaning of, 159 N.H. 413, 425 (2009), without proper instructions the jury that the defendant’s firearm constituted a “deadly weapon as defined in RSA State v. both the criminal threatening and the reckless conduct indictments alleged as to whether the defendant used deadly force is enhanced in this case because Without a full definition of “deadly force,” the likelihood of jury confusion

at a person, then you should conclude that the person

criminal threatening and reckless conduct offenses. rejected the defendant’s claim of self-defense and found him guilty of the with the imminent use of deadly force. On this basis, the jury could have Mangini was not armed with a weapon and had not threatened the defendant defendant’s use of deadly force in self-defense was not justified inasmuch as then have determined, in accordance with the court’s instructions, that the constitute the use of deadly force. And if the jury made this finding, it may determined that the defendant’s act of pointing his gun at Mangini did p. 7 7

Reversed and remanded

DALIANIS, C.J.