2012-078, State of New Hampshire v. Tariq Zubhuza

of the evidence. We affirm. motion to dismiss the criminal restraint and burglary charge s for insufficiency home invasion. On appeal, he argues that the trial court erre d in denying his firearm (RSA 631:4, II(a)(2) (20 07)), all stemming from his involvement in a 633:2, I (20 07)), burglary (RSA 635:1, I (20 07)), and criminal threatening with a defendant, Tariq Zubhuza, was convicted on charges of criminal restraint (RSA LYNN, J. Following a jury trial in Superior Court (Nicolosi, J.), the

brief and orally, for the defendant. David M. Rothstein, d eputy c hief a ppellate d efender, of Concord, on the

attorney g eneral, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2012 - 078 Hillsborough - s outhern j udicial d istrict

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

line - ups shown to her at the police station. Po lice arrested the defendant and and Sinclair. Robbins identified the defendant and Pelletier from photographic Thereafter, the Nashua police were contacted and spoke with Robbins

left on foot. she and the defendant, who by that time had finished the tele phone call, then left her name and tele phone number. Pelletier provided thi s information, and and Pelletier to leave — again offered to call Pelletier when D. J. returned if she was on the tele phone with D.J., Robbins — in an attempt to get the defendant defendant had tucked the gun in his waist band or pocket. While the defendant to the defendant, who walk ed down the porch to talk to D.J. By that point, the briefly spoke to D.J. Pelletier then took the phone from Robbins and handed it Robbins with a phon e and instructed her to call D.J. Robbins did so, and responded that she could miss the appointment. Eventually, Pelletier provided that she needed to bring one of her children to the doctor, the defendant but the defendant responded that no one was leaving. When Robbins stated defendant and Pelletier to leave, and offered to call them when D. J. returned, porch, the defendant held the gun by his waistband. Robbins asked the outside, which they eventually did. Once they were outside on the apartment’s At this time, Robbins asked the defendant a nd Pelletier to go back

room, at which point the defendant lowered the gun to his side. your head away.” Eventually, one of Robbins’s children entered the dining the gun to S incla ir’s head, told him, “if you move or say anything. . . I’ll blow placed it to Sinclair’s head. According to Robbins, the defendant, w hile holding room into the dining room, at which time t he defendant produced a gun and room, asked what he was doing. At some point, Sinclair came from the living searching the bathroom and kitchenette while Robbins, who was in the dining apartment. Once inside, the defendant began “looking around” the apartment, At tha t point, the defendant appeared and “barged” past Robbins into the D. J. owed her money “for prostitution” an d, after pausing, looked to her left. was home. Robbins responded that D. J. was at work. Pelletier explained that the only person visible, identified herself as “Crystol” and asked whether D. J. Pelletier went to th e apartment. When Robbins answered the door, Pelletier, At approximately 11:30 a.m. on that day, the defendant and Crystol

present, but, Robbins’s father, Raymond Sinclair, was visiting. time. At the time of the events described below, neither Montero nor D. J. was Montero. Montero’s brother, D. J., also stayed at the apartment from time to in a Nashua apartment with her five young children and her fiancé, Dorian jury to find the following facts. On December 3, p. 2 2010, Miranda Robbins lived 157 N.H. 258, 263 (2008), the evidence presented at trial was sufficient for the Viewed in the light most favorable to the State, see, e.g., State v. Sideris,

legislature did not enact superfluous or redundant words.” Id. (quotation omitted). “We must give effect to all words in a statute, and presume that the add language that the legislature did not see fit to include.” Id. (quotation statute as written and will not consider what the legislature might have said or me aning.” Id. (citation omitted). “We interpret legislative intent from the if possible, construe that language according to its plain and ordinary see RSA 625: p. 3 3 (2007). “We first look to the language of the statute itself, and, the fair import of their terms and to promote justice.” Id. (quotation omitted); (quotation omitted). “We construe provisions of the Criminal Code according to statute considered as a whole.” State v. Burke, 162 N.H. 459, 461 (2011) final arbiter of the intent of the legislature as expressed in the words of a statutory interpretation. “In matter s of statutory interpretation, we are the serious bodily injury. To resolve this issue, we are required to engage in purposes of RSA 633:2, I (2007), the defendant exposed Robbins to a risk of We first address whether the evidence was sufficient to establish that, for

(quotation omitted). burden of demonstrating that the evidence was insufficient to prove guilt.” Id. most favorable to the State.” Id. (quotation omitted). “T he defendant bears the consider “all the evidence an d all reasonable inferences therefrom in the light doubt.” State v. Saunders, 164 N.H. p. 3 342, 351 (2012) (quotation omitted). We could have found the essential elements of the crime beyond a reasonable ob jectively review the record to determine whether any rational trier of fact “When considering a challenge to the sufficiency of the evid ence, we

issue s in turn. prove that he acted with the requisite criminal intent. We examine the se motion to dismiss the burglary indictment, as there was insufficient evidence to restraint. Second, he argues that the trial court erre d when it denied his Robbins to a risk of serious bodily injury, as required for the crime of criminal evidence offered at trial was insufficient to prove that his conduct exposed The defendant raises two issues on appeal. First, he argues that the

the defendant of all three charges. This appeal followed. charges. The trial court denied the motions, and a jury ultimately convicted case, the defendant moved to dismiss the burglary and criminal restraint with a firearm, and criminal restraint of Robbins. At the close of the State’s subsequently indicted on charges of burglary, criminal threatening of Sinclair loade d Glock handgun with a round in the chamber. The defendant was defendant’s residence conducted pursuant to a warrant, the police discovered a Pelletier at the defendant’s residence later that day. During a search of the p. 4 4

Id. at p. 4 462.

the knife [was] irrelevant to the element at issue. never attempted to harm [the victim] with it. Thus, on these facts, use the knife, never held it in close proximity to [the victim], and the analysis because the defendant never verbally threatened to possessed a knife during [the victim ’ s] confinement does not affect [T] he State properly conceded that the fact that the defendant

it to harm her.” Id. at p. 4 460. We observed: threatening manner, but never verbally threatened to use it or attempted to use Burke. In Burke, the victim testified that the defendant “held [a] knife in a I n support of t his argument, the defendant analogizes to our reasoning in possession of a gun did not expose Robbins to the risk of serious bodily injury. Robbins or specifically threaten her with the weapon, and argues that his me r e bodily injury, the defendant emphasizes that he did not point the gun at Although he acknowledges that a gun is capable of causing serious

commission of an offense.”). bodily injury is necessarily established when a deadly weapon is used in the State, 693 S.W.2d p. 4 434, 438 (Tex. Crim. App. 1985) (“The danger of serious known to be capable of producing d eath or serious bodily injury.”); Bell v. in the manner it is used, intended to be u sed, or threatened to be used, is (“‘D eadly weapon ’ means any firearm, knife or other substance or thing which, deadly weapon is a highly relevant consideration. See RSA 625:11, V (2007) determining whether such a risk exists, the defendant’s use or brandish ing of a actual infliction of injury. State v. Gibbs, 164 N.H. 439, 444 (2012). In criminal restraint statute requires only a risk of serious bodily injury, not the the health or the funct ion of any part of the body.” RSA 625:11, VI (2007). The body which causes severe, permanent or protracted loss of or impairment to The Legislature has defined “s erious bodily i njury” as “any harm to the

serious bodily injury. challenge s only whether there is sufficient evidence to establish a risk of confine the victim unlawfully.” Burke, 162 N.H. at p. 4 461. T he defendant victim must be exposed to the risk of serious bodily injury; and (3) the act must required to prove three elements: “(1) the actor must act knowingly; (2) the circumstances exposing him to risk of serious bodily injury.” The State is thus of a class B felony if he knowingly confines another unlawfully in The criminal restraint statute, RSA 633:2, I, provides: “A person is guilty

scheme and not in isolation.” Id. (quotation omitted). omitted). “Finally, we interpret a statute in the context of the overall statutory p. 5 5

instruction. simple assault at the time of t he entry, and the State does not challenge the correctness of this The trial court instructed the jury that the defendant had to have the specific intent to commit 2 2009). Code Ann. § 76 - 6 - 202(1)(c) (LexisNexis 2012); Wash. Rev. Code Ann. § 9A. p. 5 52.020(a) (LexisNexis (2011); Or. Rev. Stat. Ann. § 164.215 (West 2003); S.D. Codified Laws § 22 - 32 - 1 (2006); Utah (Supp. 2012); Ky. Rev. Stat. Ann. § 511.040 (LexisNexis 2008); Mont. Code Ann. § 45 - 6 - 204(1)(a) Conn. G e n. Stat. § 53 a - 10 2 (2013); Fla. S tat. Ann. § 810.02 (2010); Ga. Code Ann. § 16 - 7 - 1(b) (LexisNexis 2012); Ark. Code Ann § 5 - 39 - 201(a) (1) (2006); Colo. Rev. Stat. § 18 - 4 - 202(1) (2013); Ala. Code § 13A - 7 - 5(a) (2006); Alaska Stat. § 11.46.310 (2012); Ariz. Rev. Stat. Ann. § 13 - 1506 an actor “enters or remains unlawfully” in a building with the intent to commit a crime. See, e.g., commi t a crime therein,” whereas the burglary statutes of many other jurisdictions require tha t RSA 635:1 states: “A person is guilty of burglary if he enters a building. . . with purpose to 1

v. Marshall, 162 N.H. 6 p. 5 57, 666 (2011). However, a s we recently explained: circumstantial, it must exclude all reasonable conclusions except guilt.” State State v. Fuller, 147 N.H. 210, 214 (2001). “When the evidence is solely A defendant’s intent often must be prove n by circumstantial evidence.

apartment. 2 commit a crime — in this case, an assault — at the time he entered Robbins’s entry. Thus, the State was required to prove that the defendant intended to 1 it requires the defendant to have the intent to commit a crime at the time of from the language used in many other jurisdictions’ burglary statutes, in that the defendant correctly points out that the language of RSA 63 p. 5 5:1 is different challenge that there was an unauthorized entry. As to the element of intent, 410, 415 (2011) (citation omitted); see RSA 635:1, I. The defendant does not entry; and (2) an in tent to commit a crime therein.” State v. Gordon, 161 N.H. of burglary. “The crime of burglary consists of two elements: (1) unauthorized evidence to prove that he acted with the criminal intent required for the crime We next address the defendant’s argument that there was insufficient

denying the motion t o dismiss the criminal restraint indictment. pointed the gun at her. Thus, we conclude that the trial court did not err in to the risk of serious bodily injury regardless of whether the defendant actually circumstances, a reasonable jury could have found that Robbins was exposed m ost of the time he subjected Robbins to confinement. Under these Robbins’ s pr esence, and continued to hold the gun in his hand throughout shoot Sinclair if he moved or spoke. The defendant engaged in this conduct in defendant held it to Sinclair’s head. The defendant verbally threatened to merely possess a gun. After entering Robbins’ s apartment with the gun, the The analogy to Burke fail s, however, as the defendant here did more than p. 6 6

not constitute a reasonable view of his intent when he entered the apartment. could have found that the defendant’s “verbal confrontation only” scenario did the chamber. Based on the totality of the se circumstances, a rational jury defendant’s residence, they recovered a loaded Glock handgun with a round in head away” if he moved or s poke. Finally, when the police searched the defendant placed his gun to Sinclair’s head, threatening to “blow [Sinclair’s] home. He then search ed the apartment for D. J. While in the apartment, t he “barging” past Robbins, despite the fact that Robbins stated that D.J. was not collecting a claimed debt. A rmed with a gun, he entered the apartment by apartment to act as the “strong - arm” for his co - defendant (Pelletier) in The jury could readily have found that the defendant went to the

— was not “reasonable.” that he went to the apartment to verbally confront D. J., but not to assault him jury also could have determined that the defendant’s alternative hypothesis — with a condition the defendant has no right to impose.”). F urther, a rational defendant may not negate a proscribed intent by requiring the victim to comply offense.”); see also Holloway v. United States, 52 p. 6 6 U.S. 1, 10 - 11 (1999) (“[A] negatives the harm or evil sought to be prevented by the law defini ng the established although such purpose is conditional, unless the condition (1985) (“When a particular purpose is an element of an offense, the element is claimed was owed to her “for prostitu tion.” See Model Penal Code § 2.02(6) D.J. (or other occupants) if necessary to collect the money that Pelletier that, at the time the defendant entered the apartment, he intended to assault Based up on the totality of the evidence, a rational jury could have found

suspicious attempt to conce al themselves while in the yard”). stranger’ s home, findably by the defendant and another, coupled with their a crime where there was “[e] vidence of unexplained entry by breaking into a Reed, 114 N.H. 377, 379 (1974) (finding sufficient evidence of intent to commit circumstances. State v. Meloon, 124 N.H. 257, 259 (1983); see also State v. Intent may be inferred from the de fendant's conduct under all the

(quotations omitted). State v. Germain, 1 p. 6 65 N.H. 350, 361 - 62 (2013) (emphasis in original)

beyond a reasonable doubt. reasonable that a rational juror could not have found proof of g uilt determines whether the alternative hypothesis is sufficiently evaluates the evidence in the light most favorable to the [State] and events in an exculpatory fashion. Rather, the reviewing court has been su ggested by [the] defendant which could explain the T he court does not determine whether another possible hypothesis p. 7 7

DALIANIS, C.J.