2013-0869, State of New Hampshire v. Josiah Mayo

reverse both convictions and remand for a new trial on both charges. outcome of this appeal. Because the trial court’s jury instruction error affected both charges, we sentence on the second degree assault charge, instead ho lding it in abeyance to await the charge. Therefore, up on the defendant’s conviction on both charges, the court did not impose a The second degree assault charge was brought as an alternative to the first degree assault 1

2014). On appeal, he argues that the Superior Court (Delker, J.) erred by: (1) 1 (Supp. 2014), and reckless second degree assault, see RSA 631:2, I(a) (Supp. a jury trial, of first degree assault with a deadly weapon, s ee RSA 631:1, I(b) LYNN, J. The defendant, Josiah Mayo, appeals his convict ion s, following

and orally), for the defendant. Mulvey, Cornell & Mulvey, of Portsmouth (Patrick A. Mulvey on the brief

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant

No. 2013 - 869 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

kicked the victim in the face. held his hands up, saying “who a, whoa, whoa,” at which point another man me,” and punched Paris in the face. T he victim then came over to Paris and contact with Paris. Then, according to Paris, the man stated, “don’t f’ing touch things of that sort” and, during that exchange, the man’s hand came into wanted any trouble. In response, the man told Paris to “get out of his face and escalate the situation by standing in front of the man and stating that no one like he was going to go fight them or something like that.” Paris tried to de friends: the man was yelling and “seemed like he was trying to make a move Paris testified that “a black gentleman . . . was upset” with one of his

the ground. that he saw Paris get punched in the side of the head and Losik get knocked to he “saw a bunch of angry faces and people ready to fight.” Donahue testified and kicked in the leg. When he turned around to determine who had hit him, that “small s cuffles started to break out,” during which he was hit in the head Various witnesses testified about what next occurred. Donahue testified

The Page around the same time, an d al so ended up in the Mall. a.m. he was walking through the Mall. T he victi m and his friends were leaving leaving other area establishments. The defendant testified that at around 1:00 Vaughan Mall (Mall), an area that often became very crowded with people Page began moving patrons outside into the adjacent alleyway known as the S hortly before closing time at 1:00 a. m. on July 15, the bouncers at Th e

some to the point of intoxication. Most of the victi m’s friends had consumed alcohol throughout the evening, did not drink any more that evening because he was the designated driver. Zachary Green, had consumed three alcoholi c beverages earlier in the day but and Charles “Costa” McCreed were also at T he Page that night. The victim, and his friends Kevin Donahue, Robert Yitts, Jacob Losik, William Ryan Paris, separate ways, with plans to meet later at another area restaurant. T he victim Page, a restaurant and bar. T hey left at around 1 p. 2 2:30 a. m. and went their 2012, the defendant and his cousin, Daniel Mayo, were in Portsmouth at The The jury could have found the following facts. On the evening of July 14,

remand. defendant’s prior convictions for impeachment purposes. We reverse and RSA 6 p. 2 25:11, V (2007); and ( p. 3 3) a llowing the admission of evidence of the on the grounds that his shod foot could not constitute a deadly weapon under or provoker; (2) denying his motion to dismiss the first degr ee assault charge justified if he reasonably believed that his cousin wa s not the initial aggressor failing to instruct the jury that his use of force in defense of hi s cousin was 3

court’s charge is to state and explain to the jury, in clear and intelligible a physical encounter with the vic tim and his friends. “The purpose of the trial reasonably believed that his cousin was not the initial aggressor or provoker of instruct the jury that his use of force in defense of his cousin was justified if he The defendant first contends that the trial court erred by f a iling to

both charges. This appeal followed. defen se of his cousin. After a four - day trial, the defendant was convicted on reckless second degree assault. At trial, the defendant claimed that he acted in charged, alternatively, with first d egre e assault with a deadly weapon and inter - cranial hemorrhage. The defendant was subsequently arrested and hospital, where he was diagnosed with a con cussion, a skull fracture, and a n and fel l, hitting his head on the pavement. The victim was transported to the face. As a result of the kick, the victim was immediately rendered unconscious The witnesses agree d that the defendant kicked the victim once in the

The defendant responded by kicking the victim. from his right “fairly quickly” and assumed that he was going after his cousin. four feet away from the grou p, the defendant noticed the victim approaching his “cousin was in danger at that time.” When he was approximately three or seeing the group of individuals converge on his cousin made him believe that “physically assaulted.” He testified that hearing people yell racial slurs and just kind of converged on [his cousin],” “limbs were flying,” and his cousin was and a group of i ndividuals. As he got closer, “something happened, and peopl e heard the word “n ….r.” When he turned around, he noticed his cousin Daniel The defendant testified that as he was walking through the Mall, he

remembered was waking up in the hospital. grow up and we’re not fighting.” He testified that the next thing he back around and “scolded” the two men for acting immature, telling them “to not going to fight, and pointed him toward the car. The victim then turned “immediately tried to get [Yitts] to go walk away.” He told Yitts that they were in “not happy.” T he two men appeared to be mad, and so the vic tim point the victim noticed Yitts and two men “looking funky at one another,” as time he was with Donahue, and the rest of his friends were nearby. At some through the Mall toward the parking lot where he had parked his car. At that T he victim testified that, upon leaving The Page, he started to walk

two men. T he next thing Losik saw was the victim “on the ground.” walking toward Paris and some words were spoken between the victim and the from the two men to join his group of friends. At that point he saw t he victim same two men pushed Losik to the ground. Losik got up and walked away thereafter Paris was punched in the face. When Losik approached Paris, the Losik testified that he had seen Paris talking to two men, and th at soon p. 4 4

issues, the defendant claims that the State was relieved of its burden to Because the improper instructions precluded the jury from reaching these considering either his subjective state of mind or the reasonableness thereof. been required to conclude that his actions w ere not justified without believed that his c ousin was the initial aggressor or provoker, it would have pro voker. The defendant argues that, under the court’s instruction, if the jury honest and reasonable belief that his cousin was not the initial aggressor or should have instructed the jury that he was justified in using force if he had an argues is an incorrect statement of the law. He contends that the trial court ag gressor or provoker in order for his use of force to be justif ied, which he the defendant to be factually correct that his cousin was not the initial The defendant asserts that this in struction was erroneous because it required

encounter. person he was defending was n ot the one who sta r ted the be in the location where the use of force occurred and, if he or the The defendant was not required to retreat if he had a right to

force . . . . another if he or the person he was defending provoked the use of The defendant does not have the right to use fo rce to defend

unlawful force. assailant notwithstanding continues the use [of] or threaten[s] communicate to the assailant their intent to do so, but the and the other person withdraw from the encounter and effectively person was the initial aggressor, unless after such aggression h e The defendant is not justified in using force if he or [a] third

The trial court instructed the jury as follows:

is a question of law, which we review de novo.” Id. (quotation omitted). of his case.” Id. (quotation omitted). “However, the interpretation of a statute that the court’s ruling was clearly untenable or unreasonable to the prejudice the trial court’s decision is not sustainable, the defendant must demonstrate unsustainable exercise of discretion.” Id. (quotation omitted). “To show that court, and we review the trial court’s decisions on these matters for an and wording of jury instructions, are within the sound discretion of the trial case.” Id. “Whether a particular jury instruction is necessary, and the scope and reverse only if the instructions did not fairly cover the issues of law in the jury instructions adequately and accurately explain each element of the offense the evidence in the case.” Id. (quotation omitted). “We determine whe ther the entirety, as a reasonable juror would have understood them, and in light of all evaluate allegations of error by interpreting the disputed instructions in their p. 5 57, 70 (2011) (quotation omitted). “When reviewin g jury instructions, we language, the rules of law applicable to the case.” State v. Etienne, 163 N.H. 5

such other person; or person, he provoked the use of unlawful, non - deadly force by (a) With a purpose to cause physical harm to another

purpose. However, such force is no t justifiable if: such force which he reasonably believes to be necessary for such deadly force by such other person, and he may use a degree of reasonably believes to be the imminent use of unlawful, non person in order to defend himself or a third person from what he I. A person is justified in using non - deadly force upon another

in using physical force in defense of a person. It states, in pertinent part: RSA 627:4 sets forth the circumstances under which a person is justi fied

(quotation omitted). in the contex t of the overall statutory scheme and not in isolation.” Id. statutory scheme.” Id. (quotation omitted). “Accordingly, we i nterpret a statute enacting them, and in light of the policy sought to be advanced by the en tire omitted). “Our goal is to apply statutes in light of the legislature’s intent in the statute to discern legislative intent.” Etienne, 163 N.H. at 72 (quotation 790, 804 (2014). “Absent an ambiguity we will not look be yond the language of the legislature did not see fit to include.” Appeal of Local Gov’ t Ctr., 16 p. 5 5 N.H. and will not consider what the legislature might have said or add language that (quotation omitted). “We interpret legislative intent from the statute as written language of the statute to determine legislative intent.” Etienne, 163 N.H. at 72 omitted); see RSA 625:3 (2007). “In doing so, we must first look to the plain import of its terms and to promo te justice.” Id. (quotations and brackets (quotation omitted). “We construe the Criminal Code according to the fair interpretation of a statute is a question of law, which we decide de novo.” Id. Co de provisions.” Etienne, 163 N.H. at 71 (quotation omitted). “The “Resolving this dispute requi res that we interpret pertinent Criminal

reversal of the defendant’s convictions. neither struc tural nor prejudicial in nature and, thus, does not warrant State als o argues that, e ven if the instruction was e rroneous, the error was failure to adopt the MPC’s exact language left the alter - ego rule intact. T he considered the Model Pen al Code (MPC) when drafting RSA 627:4, but that its use of force is justifiable. The State further argues that the legislature into the shoes” of the third person (here, his cousin) with regard to whether the 2014), and the common law “alter - ego rule,” under which the defendant “steps the plain language of the defense - of - o thers statute, see RSA 627:4 (Supp. third person’s status as the initial aggressor or provoker is inconsistent with The State responds that such “reasonable belief” language regarding the

amounts to structural error. disprove the defense beyond a reasonable doubt, a defect which he asserts p. 6 6

hand, informed the jury that if it found that the defendant or the third person sub - paragraphs I(a), I(b), or III(a). The trial court’s instructions, on the other paragraph s I and III, is not inc luded in the limitations language contained in putatively defensive action. The phrase “or a third person,” which appears in limitations speci fically apply only to the person who actually takes the limita tions on when a person ’s defensive use of force is justified. T hese Then, i n sub - paragraphs I(a), I (b), and III(a), t he statute impose s several

his own defense, as well as those taken in defense of a third person. and the degree of force necessary apply to both the defendant’s acts taken in that the basic reasonableness requirements regarding im minent, unlawful force Id. This paragraph makes clear, by its use of the phrase “or a third person,” must be that which “he reasonably believes to be necessary for such purpose.” The statute contains an additiona l requirement: the degree of force he uses imminent use of unlawful, non - d eadly force by another person. RSA p. 6 627:4, I. defending himself or a third person from what he reasonably believes to be the Paragraph I states that “a person” — here, the defendant — is justified in

RSA p. 6 627:4 (emphasis added).

the initial aggressor . . . . curtilage, o r anywhere he or she has a right to be, and was n ot required to retreat if he or she is within his or her dwelling, its (a) Retreat from the encounter, except that he or she is not

with complete safety: other if he or she knows that he or she and the third person can, defend himself or herself or a third person fro m deadly force by the III. A person is not justified in using deadly force on another to

. . . .

a third person; (a) Is about to use unlawful, deadly force against the actor or

person when he reasonably believes that such other person: II. A person is justified in using deadly force upon another

. . . .

deadly force. . . ; notwithstanding continu es the use or threat of unlawful, non to such other person his intent to do so, but the latter he withdraws from the encounter and effectively c ommunicates (b) He was the initial aggressor, unless after such aggression p. 7 7

of the Model Penal Code states: at fault, provided his or her belief was reasonable.” Id. The pertinent section This is true “even if the intervenor acted under a mistaken belief as to who was not liable if his or her actions were reasonable under the circumstances.” Id. belief’ rule, which provided that an intervenor who acts in defense of another is Code, § 3.05 (1985).” Id. “Th e Model Penal Code adopted the ‘reasonable because of the position take n by the American Law Institute’ s Model Penal “Many jurisdictions began to reject the alter ego rule, to a large extent,

he defended co uld have acted in self - defense. See id. his actions would be justifiable only if he w as actually correct that the person defendant “stepped into the shoes” of the third person he was defending, and criminally liable.” State v. Cook, 515 S.E.2d 12 p. 7 7, 135 (W. Va. 1999). Thus, a defend a person w ho was not entitled to use deadly force would be held rule” into the statute. That rule “held that a defendant using deadly force to use of force, the trial court essentially imported the common law “alter - ego s trictly accountable for the actions of his cousin as a predicate to his defensive reasonably should have known this to be true. In h olding the defendant initial aggressor or provoker, regardless of whether the defendant knew or relying on the defense - of - a - third - person defense if his cousin was in fact the person” to the jury instructions, the trial court precluded the defend ant from whether he provoked the use of force. By adding the phrase “or the third within the actor’ s personal knowledge: wheth er he was the initial aggressor, or defensive force makes se nse b ecause each limitation involves conduct squarely omission of th ird persons from the provisions that limit an actor’s ability to use court’s added language inconsistent with the plain meaning of the statute. The Moreover, despite the State’s argument to the contrary, we find the trial

to t he conduct of the third person. plain reading, th en, the se limitations apply only to the conduct of the actor, not found in sub - paragraph s I(a), I (b), and III(a) mention only the actor. Under a person,” whereas the limitations applicable to an initial aggressor or prov oker general requirements of paragraphs I, II and III mention the actor “or a third and omitted in another,” id. (quotation omitted), such as here, where the principle “is strengthened where a thing is provided in one part of the statute statute implies the exclusion of another.” Etienne, 163 N.H. at p. 7 73. This principle “expressio unius est exclusio alterius, the expression of one thing in a Our conclusion that the added language is in error is also supported by the not see fit to include. See, e.g., Appeal of Local Gov’t Ctr., 165 N.H at 804. legislature might have said or add language to a statute that the legislature did the statute. W e have consistently stated that we will not consider what the limitations on the defensive use of force is not supported by a plain reading of The court’s addition of the phrase “or the third pers on” into the

actions in defense of his cousin were not justified. (his cousin) was in fact the initial aggre ssor or provoker, then the defendant’s p. 8 8

of another doctrine [that have] been codified consistent with the Model Penal Code”). consistent with the MPC. See Cook, 515 S.E.2d at 135, n.17 (listing state statutes with “defense keeping with the majority of states, which likewise have defense of others statutes that are Our conclusion that reasonableness is the touchstone of our defense of others statute is in 2

by requiring the defendant to reasonably believe that the use of “unlawful. . . provoker — our statute does so as well, albeit in a less s traightforward fashion, knew or should have known that the third person was the initial aggressor or clearly addresses the situation at issue here — whether or not the defendant focuses on reasonableness. While the specific language of the MPC more 2 W e conclude that our statute is consistent with the MPC, which likewise

others, or interprets the statute as consistent with the rule. discusses — or even mentions — the alter - ego rule in the context of defense of Furthermore, the State does not point to a single New Hampshire case that the actor was factually correct in his assessment of the circumstances. reasonable perception of the circumstances, but instead is based upon whether which is not based upon the actor’s subject ive perception and objectively reasonableness language is fundamentally different from the alter - ego rule, of force must be reasonably necessary in order to be justifiable). This I; Etienne, 163 N. H. at 77 (holding that, in the context of deadly force, the use force that he reasonably believes is necessary for this purpose. See RSA 627:4, of unlawful, deadly or non - dead ly for ce by another, and can use the degree of person can defend against what he reasonably believes to be the imminent use use of force was justified under the circumstance s. Under our statute, a and the lens through which the jury must determine whethe r the defendant’s with that rule. As in the MPC, r easonableness i s the touchstone of RSA 627:4, language of the MPC left the alter - ego rule intact, a s our statute is inconsiste nt We disagree with t he State that the legislature’s failure to adopt the exact

Model Penal Code § 3.05 (19 p. 8 85).

protection of such other person. (c) the actor believes that his intervention is necessary for the

using such protective force; and the person whom he seeks to protect would be justified in (b) under the circumstances as the actor believes them to be,

to the person whom he seeks to protect; an d protect himself against the injury he believes to be threatened (a) the actor would be justified . . . in using such force to

third person when: upon or toward the person of another is justifiable to protect a (1) Subject to the provisions of this Section. . . the use of for ce p. 9 9

victim’s friends, and said that he yelled at them and followed them down the argument, the State characterized the cousin as “angry” and “enraged” at the testified that the cousin pushed him to the ground. Further, in its closing yelling and swearing at him, and punched him in the head; another witness wit h several of the victim’s friends. One witness testified that the cousin was that the defendant’s cousin was both verbally and phys ically confrontational he killed Lemieux, had provoked the use of force.”). Vario us witnesses testified appeal, that Pierre, the person the defendant was purportedly defending when defense of others justification, as n either party argued, either at trial or on not present us with a proper opportunity to decide the boundaries of the was squarely before the jury. Contra Etienne, 163 N.H. at 78 (“This case does the defendant ’s cousin was the initial aggressor or provoker. Thus, this issue sufficient evidence in the record from which the jury could have concluded that of - others instruction. Of critical importance, moreover, there also was does not dispute that the evidence at trial was sufficient to warrant a defense favor of the defense. State v. Vassar, 154 N.H. 370, 373 (2006). The State there is some evidence in the record that would support a rational finding in A defendant is entitled to a jury instruction on his theory of defense if

State has the burden of establishing that an e rror was harmless. Id. was not affected by the error.” State v. Connor, 156 N.H. 544, 54 p. 9 9 (2007). The is harmless only if it is determined, beyond a reasonable doubt, that the verdict Next, w e evaluate whether th e trial court’s error was harmless. “An error

with the plain text and meaning of the statute and constitute d an error of law. reasons, we conclude that the trial court’s jury instructions were inconsistent the third pers on ’ s status as the initial aggressor or provoker. For the above language adequately addresses the issue of a defendant’s knowledge regarding need to import additional language or requirements into the statute, as its use of unlawful force against the third person was imminent. Thus, there is no under all the circumstances, whether the actor reasonably believed that the is justified is ultimately a question of fact for the jury, which must consider, Determining whether the actor’s use of force in defense of a third person

third person actually was the initial aggressor or provoke r. defense of the third person was reasonable, and thus justifiable, even if the are met — the jury may determine that his use of force against the victim in aggr essor or provoker, then — assumin g all other conditio ns of the defense also nor reasonably should have believe d that the third person was th e initial to defend himself from the third person. However, if the actor neither believed be en unlawful. I n that situation, the victim may have be en lawfully using force circumstances, the victim’s use of force a gainst the third person may not have victim in defense of the third person was not justified because, u nder those provoker, then the jury may determine that the actor’s use of force against the or should have know n that the third person was the init ial aggressor or force” was imminent. See RSA 627:4, I, II (emphasis added). If an actor knew p. 10 10

used, intended to be used, or threatened to be used” can produce death or have said that t he critical phrase is whether “the manner [in which an object] is used, is known to be capable of producing death or serious bodily injury.” We thing which, in the manner it is used, intended to be used, or threatened to be (2007) defines “deadly weapon” as “any firearm, knife or other substance or “shod foot,” which the indictment alleged w as a deadly weapon. RSA 625:11, V weapon.” In this case, the defendant kicked the victim in the head with his “[p] urposely or knowingly causes bodily injury to another by means of a deadly Under RSA 631:1, I(b), a person is guilty of first degree assault if he

therefrom.” Id. (quotation omitted). found as a result of other inferences, provided they can be reasonably drawn draw reasonable inferences from facts proved and also inferences from facts beyond a reasonable doubt.” Id. (quotation omitted). “Further, the trier may “Circumstantial evidence may be sufficient to support a finding of guilty item in the context of all the evidence, not in isolation.” Id. (quotation omitted). (quotation omitted). “In reviewing the evidence, we examine each evidentiary demonstrating that the evidence was insufficient to prove guilt.” Id. at 355 (2013) (quotation omitted). “It is the defendant who bears the burden of t he light most favorable to the State.” State v. Germain, 165 N.H. 350, 354 - 55 doubt, considering all the evidence and all reasonable inferences therefrom 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 the suffici ency of the evidence, we

victim’s head. We are not persuaded. was wearing ordinary sneaker s and that he delivered only a single kick to the of a deadly weapon. In support of this argument, he points to the facts that he was sufficient evidence to prove that his shod foot met the statutor y definition The defendant ne xt argues that the trial court erred in finding that there

that he be granted a new trial. hold that this error requires that the defendant’s conviction s be reversed and beyond a reasonable doubt. See Connor, 156 N.H. at 549. According ly, we erroneous instructions did not affect t he verdict, and therefore were harmless, aggressive and/or provo cative actions, w e cannot conclude that the trial court’s aggressor or provoker and that the defendant was unaware of his cousin’s Given that there was some evidence both that the cousin was th e initial

assaulted by a group of individuals — was the victim. he believed that his cousin — who was being converged up on and physically cousin’s encounter with the victim’s friends began, and that when he did arrive actions. T he defendant testified that he was not with his cousin when the Mall. There also was evidence that the defendant was unawa re of his cousin’s p. 11 11

with his 2006 convictions of the following three offenses: criminal threatening, Before trial, the State filed a motion in limine to impea ch the defendant

did not outweigh their prejudicial effect. We disagree. impeachment purposes. He argue s that the probative value of the convictions State to intro duce evidence of his three prior felony convictions f or Finally, the defendant contends that the trial court erred by allowing the

defendant’s motion to dismiss the first degree assault charge. serious bodily injury. T hus, the trial court did not err in denying the victim ’s face, used his shod foot in a manner capab le of producing death or rea sonable doubt that the defendant, by delivering a roundhouse kick to the evidence in the light most favorable to the S tate, could have found beyond a serious bodily injury. We conclude that a rational trier of fact, viewing the the manner in which the object was used was capable of causing death or death or injury.” Hull, 149 N.H. at 715. Rather, as stated, we look to whether “W e have never required that an object be intrinsically capable of causing altered in any way so as to make it more dangerous than any other sneaker. likewise are not persuaded by the argument that the sneaker was not made or multiple kicks are by no means a necessary prerequisite to such a finding. We relevant to a determination of whether a shod foot consti tutes a deadly weapon, his shod foot was not a deadly weapon. While the number of kicks could be delivered only a single kick to the victim’ s fac e, as opposed to multiple blows, We find unconvincing the defend ant’s protestation that, because he

an inter - cranial hemorrhage. unit for three days, and was diagnosed with a concussion, a skull fracture, and victim was transported to the hospital, where he remained in the intensive care over like a tree” without bracing his fall and hit his head on the pavement. The his fists clenched. . . [and] his entire body became rigid.” The victim “just fell that he was immediately rendered unconscious: his “arms locked straig ht, and seriously injured as a result of the kick to the face. Various witnesses testified serious,” “fast and powerful,” “athletic,” and “very hard.” The victim was deadly weapon. The de fendant’s kick was described as “roundhouse,” “pretty found beyond a reasonable doubt that the defendant’s shod foot constituted a In this case, t here was sufficie nt evid ence for the trier of fact to have

circumstances. Id. at 714 - 15. issue is factual and must be resolved by a jury” based upon the totality of the death or serious bodily injury.” Hull, 149 N.H. at 714. “For this reason, the surrounding that use that make such everyday objects capable of producing assaultive uses. It is only the specific manner of use and the circumstances innocuous ever yday objects become deadly weapons when they are put to serious bodily injury. State v. Hull, 149 N.H. 706, 714 (2003). “Many p. 12 12

date, unless the court determines, in the interests of justice, that confinement imposed for that conviction, whichever is the later date of the conviction or of the release of the witness from the admissible if a period of more than ten years has e lapsed since the (b) Time limit. Evidence of a conviction under this rule is not

. . ..

accused. admitting this evidence outweighs its prejudicial effect to the be admitted if the court determines that the probative value of evidence that an accused has been convicted of such a crime shall year under the law under which the witness was convicted, and crime was punishable by death or imprisonment in excess of one convicted of a crime shall be admitted, subject to Rule 403, if the (1) e vidence that a witness other than an accused has been

truthfulness of a witness, (a) General rule. For the purpose of attacking the character for

Hampshire Rule of Evidence 609 which provides, in pertinent part: omitted). The defendant’s 2006 convictions were admitted pursua nt to New clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation of discretion, the defendant must demonstrate that the court’s ruling was N.H. 364, 367 (2011) (quotation omitted). “To show an unsustainable exercise under an unsustainable exercise of discretion standard.” State v. Long, 161 “We review a trial court’s ruling to admit evidence of prior convictions

nor any pertinent details, were expo sed to the jury. which the defendant replied, “Yes.” Neither the names of the specific felonies, and the prosecutor followed up by asking if they had all occurred in 20 06, to have three felony convictions, right?” The defendant answered affirmatively, cross - examination, the prosecutor asked the defendant, “So it’s true that you felony convictions from 2006 that “stem m[ed] from the same incident.” On A t trial, the defendant testified on direct examination that he had three

State from inquiring about the specific nature of the offenses. unfair prejudice. The trial court granted the State’s motion but precluded the probative value of the convictions was low and that there wa s a danger of trial. The defendant ob jected and argued, among other things, that the prejudicial effect to the defendant because his credibility was a critical issue at than ten years before trial, and their probative value outweighed any punishable by imp risonment in excess of one year, they had been entered less (b). The State argued that the convictions were admissible because each was receiving stolen property, and second degree assault. See N.H. R. Ev. 609(a)(1), p. 13 13

whet her the prior felonies were sufficiently dissimilar to the charged assault, crimes to arouse the jury’s sympathies, horror, or instinct to punish, and details thereof, the additional factors regarding the inherent ability of the the State was prohibited from identifying either the names of the felonies or the State to inquiry solely into the existence of the three c onvictions. Because appropriately minimized any potential for prejudice to the defendant by limiting same incident from which the assault conviction arose, t he trial court which he was on trial, and that all the prior convictions stemmed from the his prior convictions was for second degree assault, a crime similar to those for convictions outweighed their probative value. We disagree. Given that one of The defendant next argues that the prejudicial effect of the prior

importance” and centrality of his credibility. Id. (quotation omitted). value of the defendant’s prior convictions was high, given the “particular assault ed the victim in order to protect his cousin. See id. Thus, the probative third person, the defendant was asking the jury to believe his testimony that he involve dishonesty or a false statement.” Id. at 312. By asserting defense of a minimize the probative value of his felony offense[s] . . . because [they] did not deceit. But, as we have said before, “[W] e reject the defendant’s attempt to convictions was low, as none of the crimes involved elements of dishonesty or The defendant first argues that the probative value of his prior

Id. (quotations omitted). for impeachment purposes and the crime for which the defendant is on trial.” witness is also the defendant, the similarity between the conviction introduced to punish, or trigger ot her mainsprings of human action”; and (2) “when the to appeal to a jury’s sympathies, arouse its sense of horro r, provoke its instinct here, the following two factors are relevant: (1) “the inherent ability of a crime effects of crimes that do not involv e dishonesty or false statement, like those of the credibility issue.” Id. (quotation omitted). In considering the prejudicial currently at issue, the importance of the witness’s testimony, and the centrality degree of similarity between the past crime and any conduct of the witness conviction, the date of the convi ction and the witness’s subsequent history, the the following factors are relevant: “the impeachment value of the prior When balancing the probative value and prejudicial effect under Rule 609(a), le gally and morally bound to obey.” Id. (quotation and brackets omitted). evinced by a defendant’s abiding and repeated contempt for laws which he is person is asking them to take his word, and lack of trustworthiness may be 311 (2009) (quotation omitted). “Jurors ou gh t to be informed of what sort of crimes do not directly involve a lack of veracity.” State v. Hebert, 158 N.H. 306, “Prior convictions are admissible to impeach a defendant even if the

N.H. R. Ev. 609(a) (1), (b).

and circumstances substantially outweighs its prejudicial effect. the probative value of the conviction supported by specific facts p. 14 14

DALIANIS, C.J.