2016-0573, The State of New Hampshire v. Gedeon Karasi

presentence con finement credit to his misdemeanor sentence. The State agrees and that it committed plain error by allocating all of the defendant’s murder charge because the evidence was insufficient to prove a purpose to kill, the trial court erred when it denied his motion to dismiss the attempted resisting arrest or detention, see RSA 642:2 (2016). On appeal, he argues that see RSA 631:1, I (201 6), armed robbery, see RSA 636:1, I, III (2016), and RSA 630:1 - a (2016) (amended 2017); RSA 629:1 (2016), first degree assault, following a jury trial in Superior Court (Ruoff, J.) for attempted murder, see BASSETT, J. The defendant, Gedeon Karasi, appeals his conviction

brief and orally, for the defendant. Christopher M. Johnson, chief appella t e defender, of Concord, on the

attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Bryan J. Townsend, II, assistant

No. 2016 - 0573 Hillsborough - northern judicial distric t

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

prosecution and determine whether an alternative hypothesis is sufficiently 345 ( p. 2 2015). We evaluate the evidence in the light most favorable to the 361 (2013), modified in part on other grounds by State v. King, 168 N.H. 340, based upon the evidence have been excluded. State v. Germain, 165 N.H. 350, innocence has been excluded, but, rather, whether all reasonable conclusions The proper analysis is not whether every possible conclusion consistent with circumstantial, it must exclude all reasonable conclusions except guilt. Id. have found g uilt beyond a reasonable doubt. Id. When the evidence is solely reasonable inferences from it in the light most favorable to the S tate, could demonstrate that no rational trier of fact, viewing all of the evidence and all up on a challenge to the sufficiency of the evidence, the defendant must of review is de novo. State v. Morrill, 169 N.H. 709, 718 (2017). To prevail sufficiency of the evidence raises a claim of legal error; therefore, our standard evidence to prove that he formed a purpose to kill the clerk. A challenge to the dismiss the attempted murder charge because the State introduced insufficient The defenda nt argues that the trial court erred by denying his motion to

later convicted the defendant on all charges. This appeal followed. defendant formed a purpose to kill. The trial court denied the motion. The jury arguing that the State did not present sufficient evidence to prove that the evidence, the defendant moved to dismiss the attempted murder charge, testified at trial, describing the fight in detail. At the close of the State’s most, but not all, of the altercation. The video has no a udio track. The clerk into evidence a surveillance video from the convenience store which captured armed robbery, and resisting arrest or detention. At trial, the State introduced The defendant was charged with a ttempted murder, first degree assault,

face and head and was hospitalized for one and one - half days. by police as he attempted to flee. The clerk sustained serious injuries to his grabbed money from the cash register and left the store. He was apprehended forty - five seconds. After leaving the clerk bleeding on the floor, the defendant but continued to str ike the clerk’s face and head with the bat for approximately “Leave me, leave me, I’m done, done.” The defendant did not cease his assault, altercation, the clerk said, “I’m done, please run away, take the money,” and and kicking him in the head. Approximately seven minutes into the defendant repeatedly striking the clerk in the head with his fists and the bat, eight minutes, the defendant and the clerk exchan ged blows with the under the counter, and physically resisted the defendant’s attack. For the next counter. The clerk pressed the panic button, grabbed an aluminum bat from jumped over the counter, and began assaulting the clerk who was behind the the defendant, who was unarmed, entered a convenience store in Manchester, The jury could have found the following facts. On February p. 2 21, 2016,

conviction, vacate the sentence s imposed, an d remand for resentencing. defendant should be resentenced. We affirm the defendant’s attempted murder that the trial court erred when it sentenced the defendant and that the p. 3 3

Morehouse, 120 N.H. 7 p. 3 38 (1980), supports their position. In Morehouse, a Both the defendant and the S tate contend that our decision in State v.

purpose to kill the clerk. commit robbery as opposed to murder, the defendant’s intent evolved into a reasonable doubt that, even if the defendant entered the store intending to up.” Based upon this evidence, a rational jury could have found beyond a defendant continued to strike him even after the clerk had said “I’m done, I give acted with premeditation and deliberation). The clerk testified that the wounds to the victim’ s head supported the jury’s finding that the defendant 148 N.H. 659, 662 (2002) (reasoning that the severity and the location of clerk ’s head with the bat, inflicting serious physical injury. See State v. Patten, register and completing the robbery, the defendant continued to strike the “I’m done, please run away, take the money,” rather than returning to the cash showed that, even after the clerk no longer had possession of the bat and said, had a purpose to kill the clerk. See Germain, 165 N.H. at p. 3 362. The evidence reasonable doubt — in light of all the evidence presented that the defendant defendant’ s alternative hypothese s were not reasonable — i.e., did not create We conclude that t he jury could rationally have found that the

not persuaded. injure the clerk severely enough to create a substantial risk of death. We ar e to kill the clerk, did not beat the clerk into unconsciousness, and did not the evidence demonstrates that he entered the store unarmed, had no motive killing.” The defendant asserts that these alternative s are reasonable because an “expression of anger, a desire to retaliate, or a purpose to injure short of victim after the victim said “I’m done, please run away, take the money” out of alternative reasonable hypothes e s that the defendant continued to hit the attempted murder because the evidence at trial was insufficient to ex clude the The defendant argues that a reasonable juror could not convict him of

(defining “attempt”). (2009); see also RSA 6 26:2, II(a) (2011) (defining “purposely”); RSA 629:1, I purpose of accomplishing the killing.” State v. Young, 159 N.H. p. 3 332, 338 evidence that a person took a substantial step toward killing another with the “To prove attempted murder, the State is required to submit sufficient

hypothesis of innocence.” Id. (quotation omitted). consistent with guilt and inconsistent, on the whole, with any reasonable o mitted). “Instead, we must consider whether the circumstances presented are reasonable hypothesis other than guilt.” Id. at p. 3 362 (quotation and brackets that, when viewed in isolation, these evidentiary fragments support a in isolation, or break the evidence into discrete pieces in an effort to establish reasonable doubt. Id. at 361 - 62. “We do not review each circumstance proved reasonable that a rational juror could not have found proof of guilt beyond a p. 4 4

is a single generic crime. allege and prove an attempt to commit murder of a specific variety. Rather, attempted murder subsequently held in State v. Allen, 128 N.H. 390 (1986), that the State was not required to We note that although we were not asked to address the issue in Morehouse, we 1

that the jury is not precluded “from reasonably inferring that the defendant defendant intended to kill him. See Morehouse, 120 N.H. at 7 p. 4 41 (observing unconscious, that does not preclude the jury from reasonably inferring that the was inconsistent with a purpose to kill. However, even if the clerk was not assault of the clerk, and at that time the clerk was still conscious, his conduct T he defendant also contends that, because he voluntarily ceased his

reasonable conclusions based upon the evidence have been excluded.”). consistent with inno cence has been excluded, but, rather, whether all at 361 (“The proper analysis is not whether every possible conclusion [the clerk] short of killing” him — were not reasonable. See Germain, 165 N.H. blows were “an expression of anger, a desire to retaliate, or a purpose to injure could have concluded that the defendant’s alternative h ypothese s — that his victim’s injuries in Morehouse, they were undeniably serious, and the jur y tennis ball. Even if these injuries might be viewed as less severe than the less see his jaw bone”; and he had a contusion on his head the size of half of a shut”; he had a laceration on his chin through which the officer “coul d more or his own blood”; his lips, mouth, and nose “were al most completely swollen found the clerk on the floor of the convenience store, the cler k was “choking on Morehouse. We are not persuaded. Here, in the words of a police officer who Morehouse because t he clerk’s injuries were not as severe as the injuries in Here, the defendant argues that this case is distinguish able from

intended to kill her.” Id. that does not preclude the jury from reasonably inferring that the defen dant voluntarily ceased [his assault]. . . before he believed he had caused her death, attempted first - degree murder” and observed that “even if the defendant could reasonably support a finding of guilt beyond a reasonable doubt of killed her. Id. at 7 p. 4 41 - 42. We held “that there was sufficient evidence which striking the victim after she passed out only because he believed th at he had the defendant’s argument, reasoning that the defendant may have stopped show that he had the requisite intent to sustain his conviction. Id. We rejected intend to cause the victim’s death and, thus, the evidence was insufficient to “voluntarily ceased his assault,” the “only logical inference” was that he did not surgery.” Id. at 741. On appeal, the defendant argued that, because he broken, and she su stained “disfiguring scars that would require plastic shut, she had multiple lacerations on her face, her nose and a tooth were N.H. at 740 - 41. The victim’s injuries were “massive”: her eyes were swollen her head repeatedly with “a large metal autobody hammer.” Morehouse, 120 evidence that the defendant followed the victim to her car, grabbed her, and hit jury convicted t he defendant of attempted first degree murder based upon 1 p. 5 5

concurred. DALIANIS, C. J., and HICKS, LYNN, and HANTZ MARCONI, JJ.,

resente ncing. p. 5 50 (2005). Accordingly, we vacate the sentences imposed and remand for confinement credit is plainly erroneous. See State v. Edson, 153 N.H. 45, 49 concedes that the trial court’s allocation of the defendant’s presentence a reasonable doubt.” Germain, 165 N.H. at 362 (quotation omitted). The State evidence in the light most favorable to the State, could have found guilt beyond not met his “burden to demonstrate that no rational trier of fact, viewing the Given the totality of the evidence, we conclude that the defendant has

at the time he ceased the assault). intended to kill” even if he did not believe that he had caused the victim’s death