2019-0028, The State of New Hampshire v. Paul R. Spaulding

that has not been provided as part of the appellate record and representations arraignment on th o se charges, he pleaded not guilty. Based upon an affidavit one count of felony criminal threatening, see RSA 631:4 (2016). At his 2018), one count of felony reckless conduct, see RSA 631:3 (Supp. 2018), and with two counts of misdemeanor domestic violence, see RSA 631:2 - b (Supp. The record establishes the following facts. The defendant was charged

of the charges against him. See RSA 597:2, IV(a) (Supp. 2018). We affirm. Superior Court (Ruoff, J.) that he be detained without bail pending resolution HICKS, J. The defendant, Paul R. Spaulding, appeals the order of the

memorandum of law, for the defendant. David M. Rothstein, deputy director public defender, of Concord, on the

assistant attorney general, on the memorandum of law), f or the State. Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,

No. 2019 - 0028 Cheshire

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 as 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 2

the complainant attempted to leave the apartment, the defendant prevented “enraged,” although the complainant said that she had “no idea why.” When home, the y had smoked some marijuana, and the defendant then had become couple Jack and Cokes.” When the complaina nt and the defendant came with other building tenants that night and that the defendant had had “a The complainant told the police that she and the defendant had gone out

Vermont “most of the time,” he stayed with the complainant occasionally. relationship for approximately one year. Although the def endant lives in told that t he complainant and the defendant had been in an intimate Police then interviewed the complainant and her daughter. They were

waistban d by his underwear.” knife wa s sheathed and “stuffed into the . . . inside of [the defendant’s] defendant as well as a knife with a six - inch blade. Police testified that the any rounds. At the jail, the police seized a magazine of ammunition from the a Smith & Wesson nine - millimeter, semiautomatic pistol that was not missing semiautomatic pistol that was missing one round of ammunition; the other was defendant’s hip and a second gun. One gun was a Kel - Tec nine - millimeter, After he was detained, the police recovered both the firearm on the

defendant into the cruiser, they heard him yelling, “I’m going to kill the bitch.” described the defendant as “growling” with anger. As officers placed the the complainant, “[Y]ou did this to me, you did this to me.” One officer The defendant was “very, very angry” and “vocal” and could be heard saying to firearm on the defendant’s hip, the police took him into detention immediately. and t he officers issued multiple commands to the defendant to exit. Seeing a they heard yelling from one of the apartments. The apartm ent door was open, the domestic disturbance allegedly was taking place. When the officers arrived, Officers were dispatched to an apartment building in Hinsdale at which

had discharged a firearm outside. mother and the defendant. The caller informed dispatch that the defendant p. 2 2018, there was a call regarding a domestic argument between the caller’s was testimony that at approximately 2:00 in the morning on December 16, event that gave rise to the charges again st the defendant. Specifically, there II(a)(2). At the probable cause hearing, the court heard testimony about the a deadly weapon, to which the defendant pleaded not guilty. See RSA 631:4, charge and filed a new charge against the defendant, criminal threatening with At that time, the State entered a nolle prosequi on the criminal threatening The court held a probable cause hearing on the charges a few days later.

order of protection. See RSA ch. 17 p. 3 3 - B ( p. 2 2014 & Supp. 2018). bail. See RSA 597:2, IV(a). The court also issued a dom estic violence criminal detention was warranted and ordered the defendant to be detained without by the State, the court found, by clear and convincing evidence, that preventive 3

528, 5 p. 3 31 (2014) (concerning a trial court’s decision to modify bail). In ___ (decided February 13, 2019) (slip o p. at 5); cf. State v. Tsopas, 166 N.H. discretion standard. See Petition of Second Chance Bail Bonds, 172 N.H. ___, We review the trial court’s decision under our unsustainable exercise of

pistols [,] all warrant detention without bail.” This appeal followed. fact that he was armed with a . . . knife and two loaded semi - automatic 9MM discharge of a firearm, the defendant’s combativeness with the police, and the domest[ic] violence, threats to kill the [complainant], to shoot a door down, the order. The trial court did so, finding “that the combination of alcohol, The State requested that the court maintain its pr ior preventive detention

reckless conduct charge lacked probable cause and, therefore, dismissed it. criminal threatening with a deadly weapon charge. The court ruled t hat the was probable cause with respect to the two domestic violence charges and the Based upon the testimony at the hearing, the trial court ruled that there

believed to be a gunshot. interviewed a nearby neighbor who said that he heard a “pop,” which he outside. She heard a gunshot, and, at that point, called the police. The police defendant go upstairs, threaten to kill himself, run downstairs, and run I’m just going to shoot it down,” or words to that effect. She then heard the banging on the neighbor’s door and heard him say “I’m not doing this anymore, floor neighbor’s apartment. The complainant’s daughter heard the defendant apartment that night and that the complainant had run downstairs to the first defendant and the complainant occurred after the two had returne d to the The complainant’s daughter confirmed that the argument between the

later, t he complainant heard a gunshot. stairs rapidly, running outside the apartment building. Less than a minute The complainant then heard the defendant ascend and desce nd the

afraid because she had never seen the defendant act like this before. “contentious in their relationship.” The complainant also said that she felt she knew that the defendan t had a gun and his possession of a gun had been assumed a “vertical fetal position.” She told police that she was afraid because open th e door, I’m just going to shoot it down.” The complainant felt afraid and the neighbor’s door. The defendant sounded rageful as he said, “[I]f you don’t come downstairs and leave the building only to return and begin banging on While in the neighbor’s apartment, the complainant hear d the defendant

first floor apartment of a neighbor. and would not let her lea ve. When she was finally able to leave, she fled to the but when she attempted to leave the apartment he stood in front of the door of the bedroom so that she could not move. Eventually, he released his grip, her from doing so by grabbing her shoulders and pinn ing her against the wall p. 4 4

complainant, threats to shoot a door, discharge of a firearm, combativeness the defendant’s use of alcohol, domestic violence, threats to kill the Here, the trial court found the requisite evidence of posing a danger in

172 N.H. at ___ (slip op. at 7 - 8) (concerning the bail forfeiture statute). RSA 597:2, IV(a) (emphases added); cf. Petition of Second Chance Bail Bonds,

(7) Cruelty or violence directed toward pets.

(6) Stalking, as defined in RSA 633:3 - a.

another. (5) Death threats or threats of possessiveness toward

violation of an order. ( p. 4 4) Possessing or attempting to possess a deadly weapon in

(3) History of violating protective orders.

(2) Acute depression.

(1) Threats of suicide. to: conduct as evidence of posing a danger, including, but not limited that person or the public. The court may consider the following and convincing evidence that release will endanger the safety of monitoring and supervisi on, only if the court determines by clear restrictive conditions including but not limited to electronic preventive detention without bail, or, in the alternative, may order protective order issued under RSA 173 - B, the court may order RSA p. 4 458:16, III, or af ter arraignment, with a violation of a listed in RSA 173 - B:1, I or a violation of a protective order under If a person is charged with any criminal offense, an offense

order a defendant to be held without bail. It provides: evidence of danger.” RSA 597:2, I V(a) vests the court with broad discretion to detained without bail because there was a “lack of proof of clear and convincing On appeal, the defendant contends that the court erred by ordering him

(quotation omitted). untenable or unreasonable to the pre judice of [that party’s] case.” Id. sustainable, a party “must demonstrate that the court’s ruling was clearly N.H. 29 p. 5 5, 296 (2001). T o show that the trial court’s decision is not sufficient to sustain th e discretionary judgment made.” State v. Lambert, 1 p. 4 47 discretion, we consider “whether the record establishes an objective basis determining whether a trial court ruling is an unsustainable exerc ise of 5

concurred. LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ.,

evidence that detention without bail was warranted in this case. unsustainably exercised its discretion when it found by clear and convincing Given the evidence before the trial court, we cannot conclude that it restrictive alternatives to detention without bail before ordering such detention. defendant’s assertions, does the statute require the trial court to consider less endanger “that person or the public.” RSA p. 5 597:2, IV(a). Nor, contrary t o the whether there is clear and convincing evidence that the person’s release will the court to consider “circumstances outside the offense” when determining attention at the probable cause hearing. Moreover, the statute does not require relevant “circumstances outside the offense” were brought to the trial court’s considering “circumstances outside the offense,” we disagree. Notably, no To the extent that the defendant argues that the trial court erred by not

the complainant by refusing to allow her to leave the apartment. defendant threatened to commit suicide and that he acted possessively toward a knife with a six - inch blade. The record also contains evidence that the with the police, and being armed with two, loaded, semi - automati c pistols and