2013-0812, State of New Hampshire v. Stanley R. West, II

to arrest or detain the defendant. The trial court denied the motion. On arguing that the State presented no evidence that the police officer attempte d case, the defendant moved to dismiss the resisting arrest or detention charge, overruled the defendant’s objection. Additionally, a t the close of the State’s jury instruction on the defe nse of premises, RSA 627:7 (2007). The trial court (Supp. 2014). During trial, the defendant objected to the trial court’s proposed and one count of resisting arrest or detention. RSA 631:2 - a (2007); RSA 642:2 defendant, Stanley R. West, II, was convicted on three count s of simple assault BASSETT, J. Following a jury trial in Superior Court (Delker, J.), the

O’Rourke on the brief and orally), for the defendant. Hoefle, Phoenix, Gormley & Roberts, P.A., of Portsmouth (Terence M.

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

No. 2013 - 812 Rockingham

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

reasonable grounds for the Defendant to believe that . . . St. Onge was about to the defendant’s belief must be reasonable, explaining “there must be means of pr eventing that criminal trespass.” The court further instructed that Defendant’s permission, and that the use of force was the only reasonable danger of . . . St. Onge entering into the Defendant’s dwelling without the premises under RSA 6 p. 2 27:7 “if he actually believed there was an imminent objection, instructed the jury that the defendant could u se force in defe nse of At the conclusion of the trial, the trial court, over the defendant’s

defendant during the fight. reasonable juror to conclude that St. Onge was attempting to detain the detain him. The trial court denied th e motion, finding sufficient evidence for a char ge, arguing that there was no evidence that St. Onge attempted to arrest or At trial, the defendant moved to dismiss the resisting arrest or detention

incident. handcuffed him. The charges against the defendant stemmed from this The defendant released St. Onge, who then rolled the defendant off and of you.” The defendant responded, “You first,” to which St. Onge replied, “no.” grab hold of the defendant’s hair. St. Onge stated, “If you let go of me, I’ll let go Onge while striking him. As the defendant began to tire, St. Onge was able to walkway. The defendant again charged at S t. Onge and then sat astride St. from under the defendant. However, St. Onge then fell backward onto the defendant exchanging punches. At one point, St. Onge was able to get out The altercation continued for a few minutes, with St. Onge and the

Onge and punched him in the face several times. five or six steps, and onto the walkway. The defendant landed on top of St. then charged at St. Onge, k nocking him off the landing by the front door, down interior door, St. Onge reached for the han dle of the storm door. T he defendant defendant then c losed the storm door. As the defendant was closing the if he could come inside the residence and the defendant declined. The 9 - 1 - 1 call, and the defendant stated that he did not call 9 - 1 - 1. St. Onge asked police officer. St. Onge told the defendant that the dispatcher had received a Onge shined his flashlight on his uniform and badge to show that he was a as a police officer. A fter a short period, the defendant came to the door. St. address. After ringing the doorbell, St. Onge knocked and announced himself 9 - 1 - 1 call and hang - up that the dispatcher had received from the defendant’s Police Department was dispatched to the defendant’s house in response to a Shortly after midnight on December 19, p. 2 2012, Officer St. Onge of the Deerfield The jury could have found, or the record establishes, the following facts.

resisting arrest or detention charge for insufficient evidence. We affirm. force in defense of premises; and ( p. 2 2) by denying his motion to dismiss the jury that the defendant must exhaust all non - violent alternatives before using appeal, the defendant argues that the trial court erred: (1) by instructing the p. 3 3

Id. (quotation and brackets omitted). the interpretation of a statute is a question of law, which we review de novo.” unreasonable to the prejudice of his case.” Id. (quotati on omitted). “However, defendant must demonstrate that the court’s ruling was clearly untenable or omitted). “To show that the trial court’s decision is not sustainable, the these matters for an unsustai nable exercise of discretion.” Id. (quotation sound discretion of the trial court, and we review the trial court’s decision s on necessary, and the scope and wording of jury instructions, are within the in the case.” Id. (quotation omitted). “Whether a particular jury instruction is offense and reverse only if the instructions did not fairly cover the issues of law the jury instructions adequately and accurately explain each element of the of all the evidence in the case.” Id. (quotation omitted). “We determine whether their entirety, as a reasonable juror would have understood them, and in light we evaluate allegations of error by interpreting the disputed instructions in 16 p. 3 3 N.H. 57, 70 (2011) (quotation omitted). “When reviewing jury instructions, intelligible language, the rules of law applicable to the case.” State v. Etienne, the trial court’s charge is to state and explain to the jury, in clear and We next turn to the su bstance of the jury instruction. “T he purpose of

St ate v. Cheney, 165 N.H. 677, 679 (201 p. 3 3). argument because the State failed to object to the instruction at trial. See, e.g., involved assault on police officer). However, we decline to consider the court’s refusal to instruct jury on defense of property where charged offense instruction. See State v. Haas, 134 N.H. 480, 48 4 - 8 5 (1 991) (affirming trial was a police officer, the defendant was not entitled to a defense of premises As an initial matter, we note that the State argues that, because St. Onge

sufficient to support the jury’s verdict. to arrest or detain him. The State contends that the evidence at trial was detention charge because there was no evidence that St. Onge was attempting argues that the trial court erred in failing to dismiss the resisting arrest or trial court’s instruction accurate ly paraphrase d RSA 627:7. T he de fendant also instruction in the first instance. Alternatively, the State maintains that the State counters that the defendant was not entitled to a defense of premises the State of having to disprove his defense beyond a reasonable doubt. The that, in violation of his due process rights, the instruction effectively relieved of force exist ed, was an improper interpretation of RSA 627:7. He contends defense of premises, requir ing that no reasonable lawful alternatives to the use On appeal, the defendant argues that the trial court’s jury instruction on

convicted the defendant on all charges, and this appeal followed. that he has no opportunity to resort to the law for his protection.” T he jury reasonably believe that the criminal trespass is immediately forthcom ing so court also instructed the jury t hat under RSA 627:7, “the [defendant] must reasonable alternatives to using force to prevent that criminal trespass.” The commit a criminal trespass into the d welling, and that there were no p. 4 4

in order for the defendant to invoke the defense of premises justification, he Contrary to the defendant’s assertion, the trial court did not require that,

believes it necessary.” At issue is the trial court’s instru ction as it relates to the phrase “reasonably

criminal trespass by such other in or upon such premises . . . . believes it necessary to prevent or terminate the commission of a force upon another when and to the extent that he reasonably licensed or privileged to be thereon is jus tified in using non - deadly A person in possession or control of premises or a person who is

The relevant portion of RSA 627:7 states:

the law. force.” The State counters that the instruction was an accurate statement of that the defendant must exhaust all non - violent reme dies befo re resorting to when it added “a prerequisite to the exercise of the Defense of Premises . . . The defenda nt argues that the trial court incorrectly instructed the jury

(Emphases added.)

that he has no opportunity to resort to the law for his protection. believe that the criminal trespass is immediately forthcoming so imminent and in the present. That is, the person must reasonably person must have a reasonable belief that the danger presented is So for use of force in defense of dwelling to be jus tified, the

. . . .

that criminal trespass. that there were no reasonable alternatives to using force to prevent was about to commit a criminal trespass into the dwelling, and be reasonable grounds for the Defendant to believe that [St. Onge] existed, his belief must be reasonable. In other words, there must Even if the Defendant actually believed that such a danger

that criminal trespass. that the use of force was the only reasonable means of preventing the Defendant’s dwelling without the Defendant’s permissio n, and believed there was an imminent danger of [St. Onge] entering into In other words, the Defendant could use force if he actually about to commit a criminal trespass in the Defendant’s dwelling. The Defendant must h ave actually believed that [St. Onge] was

The jury instruction at issue stated: p. 5 5

instruction, the trial court told the jury that it was to “consider all the defendant’s actions were reasonable, we disagree. In its defense of premises allowed the jury to make an after - the - fact determination of whether the To the extent that the defendant argues that the trial court’s instruction

under RSA 627:7. instruction was an improp er articulation of what the term “necessary” means We note that the defendant has not argued on appeal that the challenged was reasonable for the defendant to believe it necessary to use such force.”). State v. Bird, 161 N.H. 31, 36 (2010) (focusing the an alysis upon “whether it of force is necessary to prevent or terminate a criminal trespass. See, e.g., requirement in RSA 627:7 that one using force must reasonab ly believe the use Rather, the challenged instruction is a correct explanation of the

before using force. premises justification, he must have exhausted all non - violent alternatives instructed the jury that in or der for the defendant to rely upon the defense of not support the interpretation advanced by the defendant: that the trial court premises. Thus, the instruction actually given by the trial court simply does preclude the jury from find ing in favor of the defendant in regard to defense of under all the circumstances.” (emphasis added)). The ins t ruction did not determine whether the belief, even though honest, was in fact reasonable force.” See State v. Leaf, 137 N.H. 97, 99 (1993) (“[I]t is for the jury to Defendant to believe . . . that there were no reasona ble alternatives to using whether, under all the circumstances, there were “reasonabl e grounds for the door was a reasonable alternative, the jury could consider this in determining, prevent St. Onge from entering the house. If a jury concluded that closing the defendant, instead of charging at St. Onge, could have closed the front door to nonetheless reasonable. For example, the jury might have found that the force was necessary, and that such a belief, although incorrec t, was possibility that a jury could conclude that the defendant actually believed that consider the entirety of the instruction. The instruction did not foreclose the T he defendant’s interpretation of the trial court’s instruction fails to

options.” applying f orce and that [the defendant] could have exercised other, non - violent juror could have concluded both that [the defendant] had acted reasonably in defendant argues that the instruction was erroneous because “a reasonable opportunity to resort to the law for his protection.” (E mphases added.) The tresp ass”; and “the [defendant] must reasonably believe. .. that he has no were no reasonable alternatives to using force to prevent that criminal “there must be reasonable grounds for the Defendant to believe. . . that there force was the only reasonable me ans of preventing [the] criminal trespass”; belief, specifically that: “[the defendant] actually believed. . . that the use of in te rms of the defendant’s belief at that time and the reasonableness of that “must exhaust all non - violent re medies.” Rather, the instruction was couched p. 6 6

1 p. 6 65 N.H. 706, 712 (2013). State, could have found guilt beyond a reasonable doubt.” State v. Fischer, evidence and all reasonable inferences from it in the light most favorable to the defendant must establish that no rational trier of fact, viewing all of the conviction for resisting arrest or detention. To prevail on this challenge, “the The defendant next argues that the evidence does not support his

was justified. alternative to the use of force, you must find that his use of force reasonably, but incorrectly, believed that h e had no reasonable use o f force was justified. O n the other hand, if the defendant reasonable alternatives to the use of force, you should not find his force. If the defendant knew or should have known that he had whether the defendant had reasonable alternatives to the u se of justified. In making this determination, you should co nsider — was not reasonable, you should not find his use of force was belief. If the defendant’s actual belief — that force was necessary circumstances, the defendant’s actual belief was a reasona ble necessary to use force. Then you must find that, under all the you must first find that the defendant actually believed that it was Thus, to find that the defendant was justified in using force,

to prevent or terminate the commission of a criminal trespass. and reasonably believed it was necessary to use non - deadly force justified in defense of premises, the defendant must have actually In order for the defendant’s use of non - deadly force to be

“reasonably believes it necessary” to use non - deadly force under RSA p. 6 627:7: following instruction be used when addressing the issue of whether a person Hampshire Model Jury Instructions when practicable). We recomm end the N.H. 630, 633 - 34 (2010) (suggesting t hat the trial courts use the New powers to provide guidance to the trial courts. See, e.g., State v. Leveille, 16 0 premises instruction, we nonetheless choose to exercise our supervisory Although we conclude that the trial court did not err in its defense of

instruction was incorrect. defendant’s remaining argument s that are premised upon a finding that the the prejudice of his case. Given this conclusion, we need not address the instructi on given by the trial court was clearly untenable or unreasonable to entirety, we conclude that the defendant has not d emonstrated that the Accordingly, for the foregoing reasons, reading the instruction in its

assess the defendant’s actions with the benefit of hindsight. reflection.” (Emphasis added.) Thus, the instruction did not allow the jury to defendant] at that time, and not necessarily as they appear upon detached circumstances surrounding the incident . . . as they were presented to [the p. 7 7

instruction the court recommends that trial courts utilize when defe nse of defense of premises were not erroneous, and I also agree with the proposed majority’s conclusion that the trial court’s jury instru ctions with respect to LYNN, J., concurring in part and dissenting in part. I concur with the

CONBOY, J.