2012-145, State of New Hampshire v. Guilbert P. Germain

same class. all three had attended Concord High School, although they were not in the and Josh’s then - girlfriend, D.S., were acquainted with the defendant because was an acquaintance of Todd Calley (Todd). Todd’s brother, Josh Calley (Josh), The jury could have found the following facts. In 2011, t he defendant

following a jury trial in the S uperior C ourt (McNamara, J.). We affirm. for criminal threatening with a deadly weapon, see RSA 631:4 (Supp. 2012), CONBOY, J. The defendant, Guilbert P. Germain, appeals his conviction

and orally, for the defendant. Thomas Barnard, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney

No. 2012 - 145 Merrimack

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, Concor d, 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

the same manner as did the pellet gun that he had owned and he agreed that it On cross - examination, Josh observed that the defendant’s gun cocked in

cocked the gun and struck him, until he awoke with D.S. holding him. that he “blacked out” and did not remember anything after the defendant hand, rather than the gun, when he struck him. He also testified, however, gun might have been a pellet gun, or that the defendant might have used his Because he did not “feel it” w hen he was struck, Josh hypothesized that the stated repeatedly that he did not know whether the gun was real or fake. top,” not a revolver, and that it resembled a pellet gun he had once o wned. He Josh testified that the gun was “black on the handle and silver on the

waistband, cocked it, and put it to Josh’s head. and not a revolver. Both said that the defendant took the gun from his had seen the defendant hold as “silver,” more of a handgun than a long gun, and looked like the gun in evidence, the Ruger. D.S. described the gun she holding during the incident in the apartment had a silver top and black grip, deadly weapon. At trial, T.C. testified that the gun he saw the de fendant The defendant was charged with assault and criminal threatening with a

caliber Ruger SR40 semiautomatic pistol (the Ruger) in his waistband. the arresting officers that he had a gun, and they found a silver and black .40 The following day, the defendant was apprehended in Concord. He told

investigation, a warrant was issued for the defendant’s arrest. obtained written statements from T.C., Josh, and D.S. Based upon their T. C. ran upstairs to where his mother was located, and she called 9 - 1 - 1. Police defendant, “Let’s get out of the house. You need to leave.” At the same time, who eventually came out of the kitchen with his hands up, telling the subsequently visible near his left eye. D.S. grabbed Josh and yelled for Todd, holding the gun. Josh briefly “blacked out,” and a small mark was Josh’s head and then struck Josh in the face with either the gun or his hand pulled a silver and black gun from the back of his waistband. He pointed it at After repeating his question about Todd, t he defendant grew angry and

have know n that Josh had lied, because “everyone knows Todd’s ringtone.” telephone then rang in the kitchen, and Josh thought that th e defendant must him to do if the defendant were to come to the apartment. Todd’s cellular the kitchen, Josh told the defendant Todd was not there, as Todd had asked where Todd was, and also ask ed, “Where’s my money ?” Although Todd was in with Josh and T. C., the defendant entered through the front door and asked year - old brother T.C. D.S. w as also present. While D.S. was in the living room in Concord where his mother lived with Josh, their sister, and their twelve - On the afternoon of February p. 2 22, 2011, Todd was visiting the apartment p. 3 3

intended to be used, or threatened to be used, is known to be capable of any firearm, knife or other substance or thing which, in the manner it is used, threatening is a c lass B felony. RSA 6 p. 3 31:4, II(a)(2). “‘ Deadly weapon ’ means weapon,” as defined in RSA 625:11, V (2007) to do so, then criminal bodily injury or physical contact.” RSA 631:4, I(a). If the person u ses a “deadly the person purposely places or attempts to place another in fear of imminent A person is guilty of cr iminal threatening when, “[b] y physical conduct,

drawn therefrom.” I d. facts found as a result of other inferences, provided they can be reasonably may draw reasonable inferences from facts proved and also inferences from support a finding of guilty beyond a reasonable doubt.” Id. “Further, the trier Crie, 154 N.H. 40 p. 3 3, 406 (2006). “Circumstantial evidence may be sufficient to evidentiary item in the context of all the evidence, not in isolation.” State v. (quotation a nd brackets omitted). “In reviewing the evidence, we examine each burden of demonstrating that the evidence was insufficient to prove guilt.” Id. (2012) (quotation and ellipsis omitted). “It is the defendant who bears the the light most favorable to the State.” State v. Saunders, 164 N.H. 342, 351 doubt, considering all the evidence and all reasonable inferences ther efrom in could have found the essential elements of the crime beyond a reasonable objectively review the record to determine whether any rational trier of fact When considering a challenge to th e sufficiency of the evidence, “we

rather than a firearm. insufficient to exclude the rational conclusion that he brandished a pellet gun other rational conclusions. He asserts that the circumstantial evidence wa s firearm, and that to be sufficient, circumstantial evidence must forecl ose all pellet gun. He contends that the re was no direct evidence that the gun was a prove that the gun he displayed in the apartment was a firearm, rather than a On appeal, t he defendant argues that the evidence was insufficient to

appeal followed. defendant was convicted of criminal threatening and acquitted of assault. This had used a firearm rather than a pellet gun. The court denied the motion. The threatening charge, arguing that the evidence was insufficient to prove that he After the State rested, the defendant moved to dismiss the criminal

when Todd — who did not testify — told him that the gun was real. who was present at the time, to be afraid, but that he revised his statement he had initially told the police it was a pellet gun because he did not want T.C., “look [ed] just like” the gun in evidence, the Ruger. He added on redirect that redirect examination, he agreed that the gun he saw the defendant holding glasses at the time, so he saw the gun only for “like a blurry two seconds.” On “looked fake.” He also testified that he was farsighted and not wearing his p. 4 4

accused against conviction except upon proof beyond a reasonable doubt of Winship, 397 U.S. 358, 36 p. 4 4 (1970) (“[T]he Due Process Clause protects the charged beyond a reasonable doubt.” Id. at 3 4 9 (quotation omitted); In re “Due process requires that the State prove each element of the crime

52 (erroneous jury instruction), w e take this opportunity to clarify it. evidence rule has apparently caused confusion, see Saunders, 16 p. 4 4 N.H. at 349 and that it requires reversal of his conviction. Because our circumstantial defendant counters that the rule should not be abandoned, that it applies here, least one element of a charged crime is supported by direct evidence. The this rule should be abandoned, but that in any case it does not apply when at conviction if it excludes all other rational con clusions.”). The State argues that this State that circumstantial evidence may be sufficient to support a guilt. See, e.g., State v. Bird, 122 N.H. 10, 17 (1982) (“It is well established in circumstantial evidence must foreclose all rational conclusions other than T he parties’ argument s center on our longstanding rule that

(quotations omitted)). personal knowledge of facts about the crime charged such as an eyewitness” draw any inferences,” such as “the testimony of a person who claims to have proves the fact for which it is offered, without the need for the factfinder to (defining “direct evidence” as “evidence which, if accepted as true, directly that the gun was a firearm. But s ee State v. Kelley, 159 N.H. p. 4 449, 454 (2009) resembled the Ruger, constituted circumstantial, rather than direct, evidence eyewitnesses’ testimony, including that the gun the defendant displayed testified that the gun was a firearm.” We a ssum e, without deciding, that the three [witnesses] testified that [the defendant] displayed a gun, but none element, despite the testimony of the State’s three eyewitnesses, because “[a]ll firearm. The defendant contends that there was no direct evidence of this evidence to establish that the gun that he displayed in the apartment was a T he defendant first argu es that the State presented only circumstantial

weapon). search under warrant based upon allegations of felon in possession of a deadly otherwise be considered deadly weapo ns, no probable cause existed to continue State d id not contend that BB guns wer e “firearms” or that they could Schulz, 16 p. 4 4 N.H. 217, 226 - 27 (2012) (where felon possessed BB guns, and would preclude his conviction for felony criminal threatening. C f. State v. the defendant is correct that brandishing a pellet gun, rather than a firearm, argued that a pellet gun is a deadly weapon, we assume, without deciding, that defendant used a firearm rather than a pellet gun. Because n either party has The State assumed, for purposes of this appeal, that it had to prove that the a pellet gun is not a firearm. State v. Beaudette, 124 N.H. p. 5 579, 581 (1984). producing death or serious bodily injury.” RSA 625:11, V. We have ruled that 5

Government’s evidence is circumstantial it must be such as to exclude every reversible error for the refusal “to instruct [the jury] that where th e United States, 348 U.S. 121 (19 p. 5 54). I n Holland, the Court rejected a claim of instruction arose after the United States Supreme Court decided Holland v. (1985). The contrasting views on the necessity of the circumstantial evidence on Circumstantial Evidence in Criminal Trial — State Cases, 36 A.L.R.4th 1046 generally A nnotation, Modern Status of Rule Regarding Necessity of Instruction evidentiary gap between logical certainty and guilt is more tenuous”). S ee reasonable doubt [because i] t admonishes the jury to tread lightly where the only supports but further enhances the concept of requiring proof beyond a additional cautionary instruction in evaluating circumstantial evidence not than guilt. See, e.g., Hampton, 961 N.E.2d at 487 (“providing the jury with an not only be consistent with guilt, but also exclude reasonable theories other a jury be instruct ed that circumstantial evidence, to merit a conviction, must Hous. L. Rev. 1371, 1400 - 01 n.121 (1995). Other states, however, require that Based Only on Conjecture” — Circumstantial Evidence, Then and Now, 31 961 N.E.2d at 484; see Rosenberg & Rosenberg, “Perhaps What Ye Say Is the use of a specific jury instruction on circumstantial evidence. Hampton, We recognize that many state s have joined the federal courts in rejecting

whether the evidence is circumstantial or direct.” Id. greater degree of certainty than proof beyond a reasonable doubt is required from which the existence of a fact may be inferred.” Id. (c itation omitted). “No distinction between direct evidence of a fact and evidence of circumstances crimes or of their commission by defendants is not required. The law makes no “Proof by eyewitnesses or by direct e vidence of the essential elements of the guilt beyond a reasonable doubt.” State v. Canney, 112 N.H. 301, 30 2 (1972). circumstantial evidence may be sufficient to warrant the finding by a jury of “It is a well - established rule of criminal law in this State that

elements of the crime beyond a reasonable doubt.” Jackson, 4 4 3 U.S. at 319. to the prosecution, any rational trier of fact could have found the essential court inquires “whether, after viewing the evidence in the light most favorable 448 So. 2d p. 6 676, 678 n. 2 (La. 198 4). U nder the Jackson standard, a reviewing evidence, direct and circumstantial, for reasonable doubt.” State v. Captville, v. Virginia, 4 4 3 U.S. 307 (1979), “is an objective standard for testing the overall p. 5 5 (1994)) (quotations and brackets omitted). The standard set forth in Jackson State, 961 N.E.2d 480, 4 85 (Ind. 2012) (quot ing Victor v. Nebraska, 511 U.S. 1, correctly convey the concept of reasonable doubt to the jury. ’” Hampton v. so as a matter of course,” as long as, “‘ taken as a whole, the instructions... prohibits trial courts from defining reasonable doubt nor requires them to do Despite this constitutional requirement, “[t] he [Federal] Constitu tion neither every fact necessary to constitute the crime with which he is charged.”). 6

burden of proving his own innocence, rather he has a presumption harmful to a defendant because the defendant does not bear a create doubt of innocence. However, this doubt alone is not creates doubt of the other state. Therefore, evidence of guilt may cannot exist simultaneously — evidence of one state automatically Because innocence and guilt are mutually exclusive states — they

to one or m ore elements is solely circumstantial. jury how the “beyond a reasonable doubt” standard applies when evidence as I n light of the presumption of innocence, t he instruction explains to the

beyond a reasonable doubt). proof, but is simply another way of stating that State has burden of proof evidence instruction, properly understood, does not add to State’s burden of Hudson, 578 S.E.2d 781, 785 (Va. 2003) (stating that the circumstantial Captville, 448 So. 2d at p. 6 678 n. 2 (quotation omitted); see also Commonwealth v. ‘ evidence was inconsistent with every reasonable hypothesis of innocence. ’” the evidence is sufficient if a reasonable trier of fact could find that the guilt beyond a reasonable doubt, ’ is not substantively different from saying that sufficient if ‘ a reasonable trier of fact could find t hat the evidence established does not alter the State’s burden of proof. “To say that the evidence is (quotation omitted)). Contrary to the State’s implication, s uch an instruction offense, such evidence must exclude all rational conclusions except guilt.” State relies upon circumstantial evidence to prove an element of the charged 164 N.H. at 352 n.2; State v. Laudarowicz, 142 N.H. 1, 5 (1997) (“When the relationship of circumstantial evidence to reasonable doubt. See Saunders, presumption of innocence requires an instruction informing a jury as to the when the evidence as to any element of a charge is solely circumstantial, the We continue to hold, as we suggested just last year in Saunders, that,

not that it is const itutionally erroneous.”). an additional ‘reasonable theory of innocence’ instruction is not required but Hampton, 9 p. 6 61 N.E.2d at 485 (“We understand Holland to hold that including prohibition against the use of a circumstantial evidence instruction. See 453 (S.C. 2013). Holland, however, did not establish a constit utional proven beyond a reasonable doubt.”) modified, State v. Logan, p. 7 747 S.E.2d 444, circumstantial evidence, but simply provides that a defendant’s guilt must be in favor of an approach that does not differentiate between direct and majority of state courts have abandoned the ‘reasonable hypothesis’ language 1997) (Toal, J., concurring) (“Relying on Holland... , the federal courts and a incorrect.” I d. at 139 - 40; see State v. Grippon, 489 S.E.2d 462, 465 (S.C. such an additional instruction on circumstantial evidence is confusing and where the jury is properly instructed on the standards for reasonable doubt, Without extensive explanation, the Court concluded that “the better rule is that reasonable hypothesis other than that of guilt.” Holland, 348 U.S. at 139. 7

credibility, resolving conflicts in the testimony, and determining the weight to (quotation omitted). The jury is responsible for “evaluation of witness need for the factfinder to draw any inferences.” Kell ey, 159 N.H. at 454 if accepted as true, directly proves the fact for which it is offered, without the significance it accords the direct evidence. “Direct evidence is evidence which, evidence, the jury’s assessment of the proof necessarily hinges on the circumstantial proof.”). When proof of an element of a charge includes direct is almost inevitably, absent a defendant’s confession or admission, a matter of someone. . . . On the other hand, the mens rea element for a criminal offense there is some direct evidence that the charged crime was committed by evidence. See Hampton, 961 N.E. 2d at 48 p. 7 7 (“In most criminal prosecutions, el ement, proof of mens rea will usually depend entirely upon circumstantial note that although most cases will include direct evidence as to at least one had resolved credibility issues differently.” Saunders, 164 N.H. at 351. We the evidence would support a rational conclusion other than guilt if the jury that a rational trier of fact could find guilt beyond a reason able doubt, even if must fail if the evidence, including the jury’s credibility determinations, is such proof involves both direct and circumstantial evidence, a sufficiency challenge rely solely up on circumstantial evidence to establi sh any element. “[W]here the This rationale explains why the rule is not applied in a case that does not

brackets omitted; emphasis added). O’Laughlin v. O’Brien, 568 F.3d 28 p. 7 7, 301 (1st Cir. 2009) (quotation and every other hypothesis; it is enough that all ‘reasonable’ doub ts be excluded.” however, that “‘beyond a reasonable doubt’ does not require the exclusion of evaluating whether the reasonable doubt standard has been met.”). We add, ‘Exclusion of every reasonable hypothe sis of innocence’ is simply a method for A.2d 146, 149 (Vt. 1981) (“Reasonable doubt is the requisite standard of proof. defendant is entitled to the benefit of that doubt. See State v. Derouchie, 440 circumstantial evidence, then there exists a reasonable doubt, and the the jury that if a reasonable inference other than guilt can be drawn from t he acquitted.” Id. at 234. A circumstantial evidence instruction therefore informs reasonable doubt of his guilt should necessarily exist, and he should be consistent with the defendant ’ s innocence that the juror deems reasonable, a 217, 233 - 34 (2007). “Thus, if the record evidence shows a hypothesis Rejecting the Reasonable Hypothesis of Innocence Standard, 53 Loy. L. Rev. Comment, “For I t Must Seem Their Guilt”: Diluting Reasonable Doubt by

purview to determine whether this doubt is reasonable. automatically should produce doubt of guilt. I t is in the juror ’ s reasonable doubt. Alternatively, however, evidence of innocence of innocence. Hence, a defendant m ust be found guilty beyond a p. 8 8

circumstantial evidence. [Insert example.] example to demonstrate the difference between direct and disputed fact by proof of other facts. Let me give you a brief Circumstantial evidence is indirect evidence which tends to prove a witness actually saw, heard or otherwise directly experienced. witness based upon personal knowledge — that is, what the Direct evidence is direct proof of a fact, such as the testimony of a There are two types of ev idence — direct and circumstantial.

regarding direct and circumstantial evidence: 73 - a and RSA 490:4 (2010), and endorse the following model instruction jurisdiction over the trial courts of New Hampshire, see N.H. C ONST. pt. II, art. conclusions other than guilt.” Accordingly, we exercise our supervisory circumstantial evidence to determine whether it excludes “all reasonable “beyond a reasonable doubt” standard requires assessment of solely Chapma n, 149 N.H. 753, 75 p. 8 8 (2003) (emphasis added), we now clarify that the use of the term “all rational conclusion s other than. . . guilt,” State v. evidence rule is confusing. To the extent that confusion has result ed from our The State’s argument implies that instruction on the circumstantial

conclusion, a process not required when evaluating direct evidence). evidence requires the connection of collateral facts in order to reach a 720 S.E.2d 4 p. 8 8, 53 n.4 (S.C. 2011) (noting that evaluation of circumstantial also inconsistent with reasonable inferences of innocence. See State v. Odems, instruct that the inferential chain must not only be consistent with guilt, but beyond a reasonable doubt, see C omment, supra at 2 3 4 — it is necessary to a reasonable inference of innocence — in other words, a standard less than jury to convict upon evidence that would support either an inference of guilt or N.H. at 302. To combat the possibility that a chain of inferences may lead a inferences provided they can reasonably be drawn therefrom.” Canney, 112 the facts proved,” as well as “from facts which they found as a result of other (1980). “It is within the province of the jury to draw reasonable inferences from truth of the fact sought to be proved.” State v. Wayne Kelley, 120 N.H. 14, 16 proof of facts or circumstances which give rise to a reasonable inference of the the inferential nature of c ircumstantial evidence. Such evidence “consists of application of the “beyond a reasonable doubt” standard. This is so because of evidence, however, application of the rule is warranted to ensure uniform When proof of an element of a charge is based upon only circumstantial

fact for which that evidence is offered has either been proved or not proved. the jury has determined the c redibility and weight give n direct evidence, the be given to the evidence.” State v. Alwardt, 164 N.H. 52, 57 (2012). Thus, on ce p. 9 9

conclusions based upon the evidence have been excluded. with innocence has been excluded, but, rather, w hether all reasonable guilt. The proper analysis is not whether every possible conclusion consistent establish that the evidence does not exclude all reasonable conclusions except elements of the charged offense is solely circumstantial, the defen dant must sufficiency of the evidence challenge when the evidence as to one or more Further, our standard of review is likewise clarified: To prevail on a

beyond a reasonable doubt. and decide whether the State has proven the de fendant guilty In summary, you should consider all the evidence in the case

has proven the defendant’s guilt beyond a reasonable doubt. believe, and whether — based upon all of the evidence — the State In this situation, you, the jury, must deci de which witness to presents a situation where there is a conflict in the direct evidence. testifies that the defendant did not commit the crime. This one testifies that the defendant committed the crime and the other For example, suppose there are two eye witnesses to a crime, and concerning certain facts, you must decide which witness to believe. is a conflict between witnesses who offer direct evidence evidence rule does not apply to direct evidence. Therefore, if there You must understand, however, that this circumst antial

evidence in the context of all the other evidence. isolation. Rather, you should consider each item of circumstantial should not consider any item of circumstantial evidence in reasonable conclusions other than g uilt have been excluded, you conclusion consistent with innocence. In determining whether all consistent with innocence, then you must choose the reasonable arrive at two conclusions, one consistent with guilt and one conclusions other than guilt. This mea ns that if it is reasonable to must find that the totality of the evidence excludes all reasonable more elements of the charged offense, then in order to convict, you the State presents only circumstantial evidence to prove one or relating to circumstantial evidence that you must k eep in mind. If whether it be direct or circumstantial. However, there is a rule both, but you must decide how much weight to give any evidence, circumstantial evidence. You are permitted to give equal weight to distinction between the weight of direct evidence as compa red to You should consider both types of evidence. There is no legal

existence or non - existence of another fact. reason and common sense you infer from an established fact the That is all there is to circumstantial evidence. On the basis of p. 10 10

eyewitnesses were asked to compare the gun they had seen in the apartment to (not a revolver), with a silver top and a black grip and handle. Two of the carrying in his waistband the Ruger, a black and silver s emiautomatic pistol but not a revolver. The day after the incident, the defendant was arrested against Josh’s head, as silver or black and silver, and shaped like a handgun, the gun that the defendant pu lled from his waistband, cocked, and placed identified the defendant and described the charged events. All three described light of all the evidence presented. The State presented three witnesses who hypothesis was not “reasonable” — i.e., it did not create reasonable doubt — in Here, the jury could r ationally have found that the defendant’s

circumstantial evidence. See Nichols v. State, 736 S.E.2d 407, 408 (Ga. 2013). theories of innocence are for the jury to decide in cases predicated up on 48 F.3d 6 p. 10 10, 61 5 - 1 6 (1st Cir. 1995). Questions about the r easonableness of innocent explanations are discarded or made less likely.” Stewart v. Coalter, and less a conjecture, and moves gradually toward proof, as alternative on pure conjecture. But a conject ure consistent with the evidence becomes less 2011) (emphasis added). “Guilt beyond a reasonable doubt cannot be premised remove all reasonable doubt.” State v. Hanson, 800 N.W.2d 618, 622 (Minn. “The State does not have the burden of removing all doubt, but it must

reasonable hypothesis of innocence.” Id. (quotation omitted). presented are consistent with guilt and inconsistent, on the whole, with any 332 (Minn. 20 p. 10 10). “Instead, we must consider whether the circumstances reasonable hypothesis other than guilt.” State v. Andersen, 78 4 N.W.2d 320, that, when viewed in isolation, these evidentiary fragments support a isolation,” or “break the evidence into discrete pieces in an effort to establish Id. (quotation omitted). “[W]e d o not review each circumstance proved in rational juror could not have found proof of guilt beyond a reasonable doubt.” determines whether the alternative hypothesis is sufficiently reasonable that a evaluates t he evidence in the light most favorable to the prosecution and explain the events in an exculpatory fashion.” Id. “Rather, the reviewing court another possible hypothesis has been suggested by defendant which could doubt.” Captville, 448 So. 2d at 680. “[T]he court does not determine whether provides a helpful methodology for determining the existence of a reasonable “An evaluation of the reasonableness of other hypotheses of innocence

apartment was a firearm or a pellet gun. to Josh’s uncertainty as to whether the gun displayed by the defendant in the him a day later merely resembled it. He supports t his hypothesis by pointing confrontation with the Calleys was a pellet gun, and that the Ruger found on the jury could have reasonably concluded that the gun he brought to his brandished a pellet gun rather than a firearm. The defendant contends that circumstantial evidence was insufficient to exclude the possibility that he W e turn now to the defendant’s argument in this case that the p. 11 11

DALIANIS, C.J.