2018-0118, The State of New Hampshire v. Jonathan L. Woodbury

We affirm. court’s failure to sua sponte instruct the jury on the defense of mutual combat. imposition of multiple sentences on the assau lt c onvictions; and (4) the trial jury instruction interpreting language in RSA 641:6, I; (3) the trial court’s his conviction of falsifying p hysical evidence; (2) the trial court’s denial of his appeal, the defendant challenges: (1) the sufficiency of the evidence to support (2016), and two counts of assault by a prisoner, see RSA 642:9, I (2016). On (Bornstein, J.) on one count of falsifying physical evidence, see RSA 641:6, I convictions and sentence s following a jury trial in the Superior Court LYNN, C. J. The defendant, Jon a than L. Woodbury, appeals his

brief and orally, for the defendant. Stephanie Hausman, d eputy c hief a ppellate d e fender, of Concord, on the

a ttorney g eneral, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Sean R. Locke, a ssistant

No. 201 8 - 0118 Coos

address of the court’ s home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by e - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well as 2

other sentences. The suspended sentence, if imposed, was ordered to be served consecutive to the defendant’s 1

order. Th is appeal followed. 1 ten years and conditioned on good behavior and compliance with the court’s sentence of three - and - a - half to seven years. This sentence was suspended for the time of the incident. On the second assault c onviction, the court imposed a ordered to be served consecutive to the sentence the defendant was serving at evidence conviction and the first assault conviction. These sentences were of two - and - a - half to five years stand committed o n the falsifying physical count of assault. At sentencing, the tria l court imposed concurrent sentences evidence. Following a jury trial, he was convicted on all charges except for one with three counts of assault by a prisoner and one count of falsifying physical A s a result of th e events described above, the defendant was charged

against the defendant, Moriarty, Hartley, an d another inmate. investigation ensued, resulting in disciplinary actions taken by the prison whose face was covered in blood, and removed him from the cellblock. An When the response team arrived at the scene, they restrained Moriarty,

correction al officers from a control room. Moriarty was recorded by video surveillance, which was being monitored by should be sent to the cellblock. The entire incident between the defendant and correction al officers that an incident had occurred and that a res ponse team button on a callbox located in the common area. This action alerted Realizing that he was struggling to breathe, he exited the bathroom to press a Meanwhile, Moriarty went into th e bathroom t o clean blood from his face. mopped up Moriarty ’s blood from the floor and tables in the common area. fist. Following this exchange, the defendant, with the help of another inmate, defendant, who continued the altercation, twice more striking Moriarty with his his fist on the side of the face. Moriarty then swung at and struck the common area of the cellblock, came up behind Moriarty and struck him with door. Immediately thereafter, the defendant, who was watching from the while bleeding from his face, spit at Hartley through an opening in the cell closed, locking him outside. After attempting to get back inside, Moriarty, poi nt during the fight, Moriarty was outside of the cell when the cell door of th e dispute between Hartley and Moriarty occurred with in their cell, at one his cellmate, Terrence Hartley, and had sustained severe injuries. While most inmate a t the facility. At the time of the incident, Moriarty was fighting with Berlin, was involved in a physical alte rcation with Matthew Moriarty, another defendant, an inmate at the Northern New Hampshire Correctional Facility in The jury could have found the following facts. On December 8, p. 2 2016, the

investigation he believed was pending or about to be instituted. We disagree. had the purpose to impair the verity or availability of the blood in an contends that the eviden ce at trial was insufficient for the jury to find that he availability in such proceeding or investigation.” RSA 641:6, I. The defendant destroys, conceals or removes any thing with a purpose to impair its verity or investigation is pending or about to be instituted,” that person “[a]lters, physical evidence when, “believing that an official proceeding . . . or Pursuant to RSA 641:6, I, a person commits the crime o f falsifying

isolation. Id. examine each evidentiary item in the context of all the evidence, not in standard, we consider the evidence in the light mos t favorable to the State, and except guilt. See State v. Duguay, 142 N.H. 221, 225 (1997). Under this is solely circumstantial, that evidence must exclude all reasonable conclusions support them. When the evidence presented to prove an element of the offense testimony was offered to negate the requisite intent element s, rather than to 140 N.H. 72, 80 (1995). While the defendant testified regarding his intent, his mens rea element s of the crime was circumstantial. See State v. Newcomb, e xcept guilt. Ruiz, 170 N.H. at 568. Here, the only evidence to support the to sustain the verdict, the evidence must exclude all reasonable conclusions v. Ruiz, 170 N.H. 55 p. 3 3, 568 (2018). In the latter circumstance, to be sufficient we employ a different test when the evidence is solely circumstantial, see State beyond a reasonable doubt, see State v. Kelley, 159 N.H. 449, 454 - 55 (2009), uphold a jury’s verdict unless no rational trier of fact could have found guilt determining the defendant’s intent. Although our general rule is that we will asserts that the jury had both direct and circum stantial evidence to consider in relevant to his intent was solely circumstantial. The State, on the other hand, As an initial matter, the defendant contends that the evidence at trial

circumstances in which a miscarriage of justice would otherwise result. Id. (quotation omitted). The rule is used sparingly and is limited to those integrity or public reputation of judicial proceedings.” Noucas, 165 N.H. at 160 affe ct substantial rights; and (4) the error must seriously affect the fairness, error: (1) there must be an error; (2) the error must be plain; ( p. 3 3) the error must trial court. See State v. Noucas, 165 N.H. 146, 160 (2013). “To find plain error review, we may consider arguments that were not previously raised in the has invoked plain error review on appeal. See Sup. Ct. R. 16 - A. Under plain Although this argument was not raised by the defendant in the trial court, he mens rea elements of RSA 6 4 1:6, I, the State failed to meet its burden of proof. witnesses at trial testified to facts contrary to the State’s evidence regarding the his conviction for falsifying physical evidence. He claims that, because The defendant first argues that the evidence was insufficient to support

instituted. defendant knew or believed that an investigation was pending or about to be sufficient evidence to exclude a ll reasonable conclusions except that the an investigation ensues. Based on the totality of the evidence, there was where there is evidence of serious bodily inj ury, an investigator is notified and reported to the scene of the incident. In addition, a n investigator testified that, established that, following the altercation on December 8, correction al officers accordingly. Indeed, testimony from a member of the response team the video surveillance are expected to observe an altercation and respond corroborated by the prison housing lieutenant’s testimony that staff monitoring was being video monitored by correction al officers. His testimony was testified that he was aware, when cleaning up the blood, that the common ar ea investigation was pending or about to be instituted, the defendant himself As to the issue of whether the defendant knew or believed that an

c onclusions except guilt. Id. at 568. defendant, there was sufficient evidence at trial to exclude all reasonable standard, we hold that, notwithstanding the testimony relied on by the issues of c redibility in the State’s favor, see Ruiz, 170 N.H. at 569. Given this most favorable to the State, Duguay, 1 p. 4 42 N.H. at 225, which in volves resolving those involving only circumstantial evidence, we view the record in the light N.H. 189, 193 (2006). Moreover, w hen reviewing sufficiency claims, including one or the other of inconsistent sta tements by witnesses. State v. Thomas, 154 the jury may accept some parts and reject other parts of testimony, and adopt State v. Alwardt, 164 N.H. 52, 57 (2012). In determining witness credibility, credibility, and resol ving conflicts in witness testimony are left to the jury. See stated in the past, matters such as weighing evidence, determining witness to establish its burden of proof. This argument is unpersuasive. As we have wa s evidence at trial that wa s contradictory to the State’s case, the State failed At its essence, however, the defendant’s assertion is that, because there

those in the prison system as being a pot ential health problem.” is investigated, that inmates clean their living spaces, and that blood is seen by institutional witnesses supported [his] testimony that not every prison assault Speci fic ally, he argues that “[c]ircumstantial evidence from the State’s defendant also relies on testimony from other witnesses to support his claim. “h ome” and the place where h e ate. Aside from his own testimony, the “took it upon [him]self to clean the blood” because the common area was his that his intent instead was to maintain the cleanliness of his living space, as he the mop bucket, which w as filled with bloody water from the cleanup; and (3) have c leaned up the blood left by Mor iarty in the bathroom, and hid or dumped surveillance; (2) that if he had intended to hinder the investigation, he would fight occurred and where he cleaned up the blood — was under video rea requirement s: (1) that he was aware that the c ommon area — where the support his argument that there was insufficient evidence of the statute’s mens The defendant points to the following statements he made at trial to p. 5 5

meaning.” further definition or explanation, and thus “is defined by its plain, ordinary statute’s wording, the court concluded that “investigation” does not require in the statute, is “explicitly . . . worded in the alternative.” Based on the the Criminal Code while “investigation” is not, and that “investigation,” as used defendant’s request. The court stated that “official proceeding” is defined by the court define “official investigation.” See RSA 641:6. The court denied the “investigation” is modified by the word “official” in the statute, requested that court its proposed jury instructions. The defendant, asserting t hat third day of trial, prior to closing arguments, the parties discussed with the with the belief “that an investigation. . . was about to be instituted.” On the T he defen dant was charged under this s tatute with cleaning up blood

be instituted.” RSA 641:6 (2016). proceeding, as defined in RSA 641:1, II, or investigation is pending or about to evidence, a defendant must have acted with the belief “that an official RSA 641:6 provides, in pertinent part, that to be convi cted of falsifying physical believed that an official investigation was pending or about to be instituted. request for a jury instruction that the State had to prove that the defendant The defendant next contends that the trial court erred in denying his

to address the remaining plain error prongs where there was no error). the remaining prongs. See State v. Dodds, 1 p. 5 59 N.H. 239, 24 p. 6 6 (2009) (declining prong of the plain error test is not satisfied, and we therefore need not address conclude that the evidence was sufficient to support the jury’s verdict, the first impairing its verity or availability in an impending investigation. Because w e conc lusions except that the defendant cleaned up the blood with the purpose of we conclude that there was sufficient evidence to exclude all reasonable the altercation. Viewing this evidence in the light most favorable to the State, cleaning up the blood, with the help of another inmate, immediately following the incident between the defendant and Moriarty, which dep ict s the defendant removing blood. In addition, the jury was presented with the video recording of so unless directed by prison staff because there are specific procedures for blood only after the conclusion of an investigation, and even then may not do mopping floors, there also was testimony that inmates are allowed to clean up testimony at trial that inmates at the prison are assigned jobs, such as punished. Although it i s true, as the defendant contend s, that there was up blood after an assault to avoid being detected, locked in their cells, or correction al officers. The investigator further testified that inmates often clean by the defendant, it would have been included in the evidence gathered by the investigation. The investigator testified that, had the blood not be en removed defendant intended to impair the verity or availability of evidence in such an There was also testimony to support the jury’s conclusion that the 6

in the manner it is used, intended to be used, or threatened to be used, is 423. “A deadly weapon is any firearm, knife or other substance or thing which, interpreted the statute defining deadly weapon. See Kousounadis, 159 N.H. at our decision in State v. Kousounadis, 159 N.H. 413 (2009), wherein we In support of his contrary argument, the defendant relies primarily on

171 N.H. at 122. failing to instruct the jury on the definition of “official investigation,” see Boggs, see Labrie, 171 N.H. at 482 - 83, we conclude that the trial court did not err in the statute that investigation was meant to be qualified by the word “official,” “investigation” is not. Because there is no indication from the plain language of statute that “official proceeding” is a term of art defined by the legis lature while This phrase is of particular importance, as it signifies to the reader of the defined in RSA p. 6 641:1, II,” between the two types of inquiries. See RSA 641:6. 17 (1985) (quotation omitted). Second, the statute includes the phrase, “as alternative between different or unlike things.” In re Richard M., 127 N.H. 12, previously stated, “[t] he word ‘or’ is defined as a function word to indicate an separating the two types of inquiries with the word, “or.” See id. As we have “investigations.” See RSA 641:6. First, the statute signals this distinction by encompasses two alternative types of proceedings: “official proceedings” and We agree with the t rial court that the plain language of RSA 641:6

McKeown, 159 N.H. at 435. will not look beyond the language of the statute to discern legislative intent. the legislature did not see fit to include. Id. at 483. Absent an ambiguity, we and will not consider what the leg islature might have said or add language that whole. Id. at 482 - 83. We interpret legislative intent from the statute as written legislative intent as expressed in the words of the statute considered as a State v. Labrie, 171 N.H. 475, 482 (2018). We are the final arbiters of the possible, construe that language according to its plain and ordinary meaning. (201 p. 6 6). In so doing, we first look to the language of the statute itself, and, if “a ccording to the fair import of [its] terms and to promote justice.” RSA 625:3 question of law, which we review de novo. Id. We construe the Criminal Code McKeown, 159 N.H. 434, 435 (2009). The interpretation of a statute is also a requires us to interpret a provision of the Criminal Code. See State v. matters de novo. Id. Furthermore, resolving the issue presented by this appeal raises a question of law relating to the State’s burden of proof, we review such State v. Boggs, 171 N.H. 115, 122 (2018). However, when a jury instruction the instruction, generally fall within the sound dis cretion of the trial court. Whether a jury instruction is necessary, and the scope and wording of

instruction. meaning, and th erefore does not require further definition through a jury asserts that the term “investiga tion” should be given its plain and ordinary modifies both “proceeding” and “investigation.” The State, on the other hand, On appeal, the defendant maintains that the word “official” in the statute p. 7 7

(2013). error review. See State v. Addison (Capital Murder), 165 N.H. 381, 562 - 63 no error occurred, the defendant’s argument fails on the first prong of plain analysis. State v. Martinko, 1 p. 7 71 N.H. 239, 242 (2 018). Because we find that first under our State Constitution and rely upon federal law only to aid our under both the State and Federal Constitutions, we consider the arguments 126, 128 (1993). When a defendant argues that his rights have been violated CONST. pt. I, arts. 15, 16; U.S. CONST. amend. V; State v. Greene, 137 N.H. charging documents, and juror unanimity as to the acts charged. See N.H. federal constitutional rights to freedom from double jeopardy, clarity in day. He contends that the trial court’s alleged error implicates his state and multiple sentences for two charges alleging the same act occurring on the same The defendant next argues that the trial court plainly erred in imposing

investigation” in its instructions to the jury. “official,” and the trial court did not err in failing to define “official clearly distinct. T hus, t he word “investigation” i s not modified by the word proceedings that, by the plain and unambiguous language of the statute, are Id. at 422 - 23. Here, in contras t, RSA 641:6 includes two a lternative types of each item in that list was qual ified by a phrase in the latter part of the statute. statute included a list of three items, and the issue on appeal was whether statute presented an ambiguity that is not present here. In Kousounadis, the As demonstrated above, however, the language in the deadly weapon

listed, including ‘firearm.’” Id. at 42 3 - 2 5. legislature had “intended for the qualifying phrase. . . to modify each item legislative history for further clarification, ultimately deciding that the the latter part of the statute. Id. Finding the statute ambiguous, we looked to choice in constructing a list of items to be modified by the qualifying phrase in Second, that the use of the comma was merely the legislature’s grammatical w eapon from the other items listed, deeming it a per se deadly weapon. Id. the comma after “firearm” indicated the legislature’s intent to separate the determined that the statute had two reasonable interpretations. Id. First, that “firearm,” and the omission of the comma after “knife.” Id. at 423 - 24. We i n conducting the statutory analysis, was on the use of the comma after element of the felony criminal threatening charge.” Id. at 422 - 23. Our focus, this definition the jury was precluded “from rendering a finding on a necessary “known to be capable of producing d eath or serious bodily injury,” and without phrase “used, intended to be used, or threatened to be used” in a manner weapon” because the word “firearm,” as used in the statute, is qualified by the erred in failing to instruct the jury on the definition of the term “deadly (quotation omitted). The defendant in Kousounadis argued that the trial court known to be capable of producing death or serious bodily injury.” Id. p. 8 8

addressed our invitation in this case. our State Constitution.” Martinko, 171 N.H. at 242 - 43 (quotation omitted). Neither party has previously invited parties to suggest a formulation of the double jeopardy test to be applied under “Although we have consistently articulated this test, we have not consistently applied it and have 2

to the defendant’s assertions that “there was nothing preventing the jury from recording of the altercation, which depicts the three distinct assaults. Cont rary testimonial evidence provided by the State was corroborated by a video subsequent altercation between the defendant and Moriarty. Moreover, the and the second and third occurring at independent times during the first occurring immediately after Moriarty spit through the window into his cell, unprivileged physical contact with Moriarty on three separate occasions: the The evidence presented at trial indicated that the defendant made

165 N.H. 32, 33 - 34 (2013). separate assaults, th ere was no double jeopardy violation. See State v. Leavitt, as there were dissimilar facts to prove that the defendant committed three justified by law o r consent.” State v. Burke, 153 N.H. 361, 364 (2006). So long We have defined “unprivileged physical contact” as “all physical contact not bodily injury or unprivileged physical contact to another.” RSA 631:2 - a, I(a). “A person is guilty of simple assault if he . . . [p]urposely or knowingly causes

Assa ult under RSA 631:2 - a[, I(a)]. that [he] struck [Moriarty] with his fist, an act constituting Simple knowingly caused unprivileged physical contact to [Moriarty], in Simple Assault, in that he, while being held in official custody . . . , [The defendant] . . . did commit the crime of Assaults by P risoners:

642:9, I. All three indictments read as follows: version of the assault by prisoner offense. S ee RSA 631:2 - a, I(a) (2016); RSA The S tate charged the defendant with three counts of the simple assault

elements of the crimes as charged will require a difference in evidence. Id. 2 Constitution in unit of prosecution cases, we examine whether proof of the charged offenses violate the double jeopardy protections of our State address this scenario as “unit of prosecution” cases. I d. To determine whether single statutory provision. See id. We refer to the category of cases that the defendant’s course of conduct constitutes more than one violation of a legally and factually identical. This assertion requires us to determine whether sentences on his assault convictions was plain error because the charges were N.H at 242. The defendan t argues that the trial court’s imposition of multiple conviction; and (3) multiple punishments for the same offense. Martinko, 171 after acquittal; (2) subsequent prosecution for the same offense after provide protection against: (1) subsequent prosecution for the same offense The Double Jeopardy provisions of the State and Federal Constitu tions p. 9 9

and for a new trial. In his motion, he argued that: (1) defense counsel was Following the jury’s verdict, the defendant moved to set aside the verdict

to support a rational finding in favor of the defense. instruction on this defense because there was sufficient evidence in the record consent” are misdemeanors). He contends that he was entit led to a jury that simpl e assaults that are “committed in a fight entered into by mutual instruction on the defense of mutual combat. See RSA 6 42: p. 9 9, IV (2016) (noting Lastly, the defendant argues that the tr ial court erred in failing to give an

clearly distinguish between the separate offenses). jeopardy claim, that the claim fails so long as there is evidence at trial to Leavitt, 165 N.H. at 33 - 34 (stating, in consideration of a federal double conclusion when we review the defendant’ s federal double jeopardy claim. See requirement of a unanimous verdict is sufficient”). Finally, we reach the same Greene, 137 N.H. at 130 (stating that “a general instruction to the jury on the accomplished or any other facts that are not essential e lements of the crime.”); relevant statute; it need not specify the means by which the crime was (2003) (“An indictment is generally sufficient if it recites the language of the juror unanimity as to the acts charged. See State v. Davis, 14 p. 9 9 N.H. 698, 704 court violated his constitutional rights to clarity in charging documents and argument, we also reject his assertion that the sentences imposed by the trial For the same reasons that we reject the defendant’s double jeopardy

followed the court’s instructions. Leavitt, 165 N.H. at 33. instructed that the “verdict must be unanimo us.” We presume that the jury of one offense to support a conviction on another offense. The court also a separate offense, and that the jury could not rely on the evidence in support nonetheless clearly conveyed to the jury the point that each charge represented Although the defendant refers to this instruction as a “general instruction,” it

not influence yo ur verdict with respect to the other charges. Defendant guilty or not guilty on any one of the charges, should beyond a reasonable doubt. The fact that you may find the determine whether the State has prove n the Defendant’s guilt separate offense. You must consider each charge separately and Now each of the charges against this Defendant constitutes a

belied by the record. The trial court instructed the jury: failing to instruct the jury that they must find distinct acts, this argument is To the extent that the defendant co ntends that the trial court erred in

evidence necessary to distinguish the three assaults. reaching two guilty verdicts on the same act,” the jury was provided with the p. 10 10

to support a rational finding in favor of a mutual co mbat defense. As the We agree with the trial court that there was in sufficient evidence at trial

deny the party’s request. Id. party is n ot entitled to such an instruction, and the trial court may pro perly evidentiary basis to support the theory of the requested jury instruction, the must be of such quality as to induce conviction. Id. Whe n there is simply no evidence cannot be vague, conjectural, or the mere suspicion of a fact, but more than a minutia or scintilla of evidence. Id. To be more than a scintilla, defense. State v. Carr, 167 N.H. 264, 271 (2015). “Some evidence” means there must be some evidence to support a rational finding in favor of that For a defendant to be entitled to an ins truction on a specific defense,

court erred in not instructing the jury on the defense. because there was “more than a scintilla” of evidence of mutual combat, the Moriarty swung at and struck the defendant at least once. He contends that and took aggressive positions as though they were going to fight, and that [him]” and he “swung back”; and (3) from prison staff that the two squared up defendant] ran off at one point”; (2) from the defendant that Moriarty “swung at testimony: (1) from Moriarty that he “tried to fig ht [the defendant] and [t he mutual combat. To support this argument, h e points to the following witness following the first strike of Moriart y by the defendant, the two engaged in The defendant arg ue s that there was evidence presented at trial that,

either expressly or by implication.” State v. Place, 152 N.H. 225, 227 (2005). “[M]utual consent requires that both parties agree to participate in the fight, by mutual consent, in which case it is a misdemeanor.” RSA 642:9, IV. simple assault “is a class B felony . . . unless committed in a fight entered into Pursuant to RSA 642:9, IV, an assault by a prisoner in the form of a

exercise of discretion here. St ate v. Addison, 160 N.H. 792, 796 (20 p. 10 10). We do not find an unsustainable ruling was clearly untenable or unreasonable to the prejudice of his case. decision is not sustainable, the defendant must demonstrate that the court’s v. Weeks Mem. Hosp., 128 N.H. 366, 368 (1986). To show that the trial court’s court’s determination absent an unsustainable exercise of discretion. Hodgdon trial is within the discretion of the trial court, and we will not overturn the further hearing would be equitable.” RSA 526:1 (2007). The grant of a new through accident, mistake or misfortune justice has not been done and a RSA 526:1 provides that “[a] new trial may be granted in any case when

instruction presented in th[e] case.” new trial because “[t]here was no evidence to support a mutual combat jury an instruction. The trial court ruled that the defendant was not entitled to a combat; and (2) the trial court had erred in failing to sua sponte provid e such ineffective in failing to request a jury instruction on the defense of mutual p. 11 11

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

sentence s. For the reasons stated herein, we affirm the defendant’s conviction s and

constitute ineffective assistance of counsel.” (quotation omitted)). N.H. 673, 685 (2016) (“Failing to advance a meritless argument . . . does not ineffective assistance of counsel claim also must fail. See State v. Cable, 168 In light of this conclusion, it necessarily follows that the defendant’s

strategic reasons for not pursuin g certain avenues at trial). taking sua sponte action, particularly where defense counsel may have instruction, cf. Noucas, 165 N.H. at 161 - 62 (suggesting that court s refrain from conclude that the trial court did not err in failing to sua sponte offer such an finding in favor of a mutual co mbat defense, see Carr, 167 N.H. at 271, we Because there was insufficient evidence in the record to support a rational of Moriarty to voluntarily engage in mutual combat with the defendant. evidence is not enough to support an implicit or express agreement on the part confirmed that the two “exchange[d] blows,” under all the circumstances, this Although Moriarty stated that he “engaged” in fighting with the defendant, and severe injuries from his fight with Hartley, and was bleeding and “disorient ed.” w hen Moriarty was first struck by the defendant, he had already suffered to get away, and defendant hit or pushed victim from behind). In addition, statements, victim slapped defendant and ente red another room in an attempt support for mutual co mbat instruction where defendant made derogator y while the defendant pursued him. See Place, 152 N.H. at 228 (finding no altercation. After the initial blow by the defendant, Moriarty attempted to flee defendant when the defendant first struck Moriarty and initiated the rec ord and the video recording indicate, Moriarty’s back was turned to the