2019-0608, State of New Hampshire v. Brenna Cavanaugh

rule; and (4) denying her requ est to recall a witness. We reverse and remand. statements into evidence under the excited utterance exception to the hearsay victim’s prior inconsistent statements; (3) allowing certain of the victim’s instruction; (2) precluding her from introducing extrinsic evidence of the (Wageling, J.) erred by: (1) declining her request for a self - defense jury insufficient for the jury to have convicted her and that the Superior Court (amended 2020), :2, II - a (2016). On appeal, she argues that the evidence was accomplice to criminal mischief, see RSA 626:8, II(c), III(a); RSA 634:2, I (2016) 629:1 (2016); RSA 631:1, I(b) (2016); RSA 626:8, II(c), III(a) (2016), and an by a jury of being an accomplice to attempted first degree assault, see RSA HICKS, J. The defendant, Brenna Cavanaugh, appeals her convictions

the brief and orally), for the defendant. Law Office of Michael J. Zaino, PLLC, of Hampton (Michael J. Zaino on

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,

No. 2019 - 0608 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be 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

also damage to the rear signal light on the truck’s passenger side. thre e different bullets. Two of the bullets left visible bullet holes. There was about the incident. It was later determined that the truck was damaged by the victim returned to the scene with some friends to speak with the officers at the intruder’s vehicle, the officers responded to her residence. Meanwhile, that there had been an intruder in her home and that her boyfriend had shot defendant’s home heard six gunshots. After the defendant called 911 to report Officers involved in a traffic stop approximately p. 2 200 yards away from the

threw up, and drove home. drove, he heard more gunshots. He drove to a nearby gas st ation, promptly put the truck in drive and maneuvered out of the parking space. As the victim him, the victim put the truck into reverse, striking the telephone pole. He then loud noise and saw a puff of smoke. Rea lizing that someone was shooting at defendant yell, “shoot, shoot” or “shoot him, shoot him.” He then heard a very its license plate number. As he prepared to drive away, the victim heard the approximately one fo ot away from the front of the truck so that she could see its engine running and its lights on. She crossed the street and stood Once outside, the defendant saw the victim inside the truck, which had

handgun. chase after the victim. Her boyfriend followed soon thereafter armed with a hearing the front door shut, the defendant ran down two flights of stairs to boyfriend that there was someone inside the house and to get his gun. After Hearing the creaky floorboard, the defendant woke up and told her

scared. victim quickly ran from the home and to his f ather’s truck because he was floorboard and heard a female voice state, “Someone’s here.” In response, the response, prepared to leave. As he was doing so, he stepped on a creaky to be found. The victim whispered the daughter’s name and, hearing no discovered that there was no party and the defendant’s d aughter was nowhere front door. Upon entering, he went up a staircase to the living room and crossed the street and entered the defendant’s home through the unlocked across the street, approximately five feet in front of a telephone pole. He without permission and drove it to the defendant’s home. He parked the truck Although the victim lacked a driver’s license, he took his father’s truck

defendant’s hou se. daughter were friends, and the victim believed that the party was at the victim, who was then sixteen years old, to a party. The victim and the hours of August 18, p. 2 2018, the defendant’s teenaged daughter invited the The jury could have found the following facts. In the very early morning

I. Facts p. 3 3

one or more elements of an offense is solely circumstantial). The defendant 172 N.H. at 117 (discussing the defendant’s burden when the evidence as to reasonable conclusion consistent with innocence exists.” See Saintil - Brown, evidence introduced by the State was insufficient because “a n alternative be discharged from his firearm. She further argues that the circumstantial evidence showing that her actions aided her boyfriend in causing six bullets to The defendant asserts that the State failed to produce any direct

(defining first degree assault by means of a deadly weapon). liability); RSA 629:1, I (defining an attempt to commit a crime); RSA 6 p. 3 31:1, I(b) of first degree assault. See RSA 626:8, III(a) (defining elements of accomplice them to be constituted a substantial step towards the commission of the crime” direction of [the victim],” which “under the circumstances that [she] believed bullets to be discharged by means of a deadly weapon, a firearm, in the committed, and acting in concert with or aiding her boyfriend, caused “six defendant, acting with the purpose that the crime of first degree assault be assault, which required the State to prove, beyond a reasonable doubt, that the We first address the charge of accomplice to attempted first degree

A. Accomplice to Attempted First Degree Assault

demonstrating that the evidence was insuf ficient to prove guilt. Id. the evidence, and not in isolation. Id. The defendant has the burden of N.H. 110, 117 (2019). We examine each evidentiary item in the context of all provided they c an be reasonably drawn therefrom. State v. Saintil - Brown, 172 from facts proved as well as from facts found as the result of other inferences, favorable to the State. Id. The trier of fact may draw reasonable inferences evidence and all reasonable inferences drawn therefrom in the light most essential elements of the crime beyond a reasonable doubt, considering all the defendant, to determine whether any rational trier of fact could have found the objectively review the entire record, including any evidence presented by the v. Folley, 172 N.H. 760, 766 (2020). When consid ering such a challenge, we raises a claim of legal error; therefore, our standard of review is de novo. State assault and criminal mischief. A challenge to the sufficiency of the evidence insufficient to convict her of be ing an accomplice to attempted first degree We first consider the defendant’s arguments that the evidence was

II. Sufficiency of the Evidence

charges of being an accomplice. This appeal followed. guilty of th e two criminal solicitation charges, but convicted her of the two assault and reckless conduct with a deadly weapon. The jury found her not 2019, a grand jury indicted her for criminal solicitation to commit first degree accomplice to attempted first degree assault and criminal mischief. In April In November 2018, a grand jury indicted the defendant for being an p. 4 4

acting with the purpose that the crime of criminal mischief be committed, in required the State to prove, beyond a reasonable doubt, th at the defendant, We next address the accomplice to criminal mischief charge, which

B. Accomplice to Criminal Mischief

boyfriend in causing six bullets to be fired from his firearm. reasonable doubt, that the defendant acted in concert with or aided her most favorable to the State, a rational trier of fact could have found, beyond a From this evidence and the reasonable inferences therefrom, viewed in the light ground near the telephone pole into which the victim had driven the truck. boyfriend identified himself as the shooter. Six shell casings were found on the addition, a police officer who responded to the scene testified that the victim’s approximately four rounds of ammunition “towards the [victim’s] tire area.” In as well as her police interview in which she said that her boyfriend fired identified her boyfriend as the only person who fired a gun during the incident, at him. The jury heard the defendant’s 911 call to the police in which she very loud noise, saw a puff of smoke, and realized that someone was shooting that after the defendant yelled at her boyfriend to “shoot,” the victim heard a and that her boyfriend followed soon thereafte r. The jury also heard evidence that the defendant chased after the victim after s he heard him leave the house, grabbed his gun after she told him to do so. As well, the jury heard evidence from his firearm. The jury heard evidence that the defendant’s boyfriend in concert with or aided h er boyfriend in causing six bullets to be discharged trier of fact to have found, beyond a reasonable doubt, that the defendant acted most favorable to the State, we conclude that it was sufficient for a rational View ing the evidence and all reasonable inferences therefrom in the light

credibility issues differently. Saintil - Brown, 172 N.H. at 117 - 18. support a rational conclusion other than guilt if the jury had resolved fact could find guilt beyond a reasonable doubt, even if the evidence would including the jury’s credibility determinations, i s such that a rational trier of circumstantial evidence, a sufficiency challenge must fail if the evidence, constitutes direct evidence. When, as here, the proof involves both direct and regarding her action s and her observations of her boyfriend’s actions eyewitness.” Id. (quotation omitted). In this case, the defendant’s testimony claims to have personal knowledge of facts about the crime charged such as an (quotation omitted). Direct evidence includes “the testimony of a person who factfinder to draw any inferences.” State v. Kelley, 159 N.H. p. 4 449, 454 (2009) directly proves the fact for which it is offered, without the need for the See id. at 117 - 18. “Direct evidence is evidence which, if accepted as true, circumstantial, but rather included both direct and c ircumstantial evidence. We agree with the State that the evidence on this element was not solely

of reasons, none of which were impacted by [her] actions.” contends th at her boyfriend “could have discharged the firearm for any number p. 5 5

636, 646 (1997) (quotation and brackets omitted). for evidence supporting the defendant’s request.” State v. McMinn, 141 N.H. refusal to provide a requested self - defense instruction is to search the record Soto, 162 N.H. 708, 713 (2011). “[O] ur funct ion in reviewing the trial court’s “Some evidence” requires more than a minutia or scintilla of evidence. State v. rational finding in favor of it. See State v. Chen, 148 N.H. p. 5 565, 569 (2002). jury instruction on a specific defense if there is “some evidence” to support a 154 N.H. 370, 373 (2006). A trial court must grant a defendant’s requested jury instruction for an unsustainable exercise of discretion. State v. Vassar, self - defense jury instruction. W e review t he trial court ’ s decision not to give a We next consider the defendant’s assertion that she was entitled to a

I I I. Self - defense Instruction

with a record sufficient to decide her issues on appeal . . . .”). 2 p. 5 50 (2004) (“It is the burden of the ap pealing party . . . to provide this court more than $100 in damage. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, sufficient for a rational trier of fact to have inferred that the truck sustained testimony in th e light most favorable to the State, we conclude that it was have not been provided as part of the appellate record, viewing the trial damaged truck and was shown photographs of it. Although the photographs describing the damage to the truck, the jury was afforded a view of the to the truck was more than $100, we disagree. Here, in addition to testimony evidence from which a rational trier of fact could have inferred that the damage To the extent that the defendant argues that there was insufficient

322, 327 (1993) (quotation omitted). Such evidence “need not be infallible.” Id. trier of fact can reasonably infer value is admissible.” State v. Paris, 137 N.H. within the ambit of a particular criminal statute, any evidence from which the “When the State mu st prove the value of property in order to bring a crime caused pecuniary loss of more than $100 through circumstantial evidence. To the contrary, the State could prove that the damage to the truck

because “such evidence does not prove pecuniary loss.” insufficient for the State to “produce evidence that the vehicle was damaged” truck,” such as a repair estimate. The defendant asserts that it was had to provide evidence “as to what it would cost to repair the damage to the The defendant contends that to prove pecuniary loss over $100, the State

elements of accomplice liability); RSA p. 6 634:2, I, II - a (defining criminal mischief). a firearm at a vehicle occupied by [the victim].” See RSA 626:8, III(a) (defining los s in excess of 100 dollars” by “causing bullets to be [discharged] by means of reasonable basis for belief of having such a right [,] purposely caused pecuniary concert with or aid ing her boyfriend, and “having no right to do [so] or any 6

defense instructi on by referring to some, but not all, of the charges she faces in Assuming without deciding that a defendant waives her right to a self -

accomplice. never asked” to give a self - defense instruction for the two charges of being an c onviction is waived.” The State contends that the trial court “was simply introductory paragraph of her notice, “the claim with respect to the charges of because the defendant referred only to the criminal solicitation charges in the charges to which the notice applied.” (Citation omitted.) The State argues that in this case elected not only to give notice of self - defense, but t o select the not required to allege facts in support of a claim of self - defense, the defendant criminal solicitation charges. The State asserts that “[a]lthough the defense is because the introductory paragraph of her notice of de fense mentioned only the right to a self - defense instruction for the two charges of being an accomplice on this issue, we briefly address the State’s contention that she waived her Before proceeding to the merits of the defendant’s appellate arguments

provoked any use of force against them. See RSA p. 6 627:4, III(c). instruction because, once the victim ran from her home, she and her boyfriend t he court denied the request, finding that she was not entitled to the being an accomplice. After the State rested, but before the defendan t testified, the two criminal solicitation charges, but did not refer to the two charges of against her or another.” The introductory paragraph of the notice referred to she reasonably believed that [he] was about to use unlawful deadly force “the actions of the alleged victim in this matter placed [her] in a position where Before trial, the defendant filed a notice of self - defense, asserting that

or herself i n the same encounter.” RSA p. 6 627:4, III(c) (2016). serious bodily harm, the person has provoked the use of force against himself justified in using deadly force “when, with the purpose of causing death or was not the initial aggressor.” RSA 627:4, III(a) (2016). Nor is a person his or her dwelling, its curtilage, or anywhere he or she has a rig ht to be, and encounter, except that he or she is not required to retreat if he or she is within knows that he or she. . . can, with complete safety . . . [r]etreat from the using deadly force to defend against deadly for ce by another “if he or she RSA 627:4, II(a) (2016). Under RSA 627:4, III(a), a person is not justified in [i]s about to use unlawful, deadly force against the actor or a third person.” upon another person when he reasonably believes that such other person. . . RSA 627:4, II(a) provides that “[a] person is justified in using deadly force

(2011); see RSA p. 6 626: p. 7 7, I(a) (2016). must prove beyond a reasonable doubt. State v. Etienne, 163 N.H. 57, 80 - 81 negating the defense becomes an element of the charged offense that the State 627:1 (2016). Thus, w hen evidence of self - defense is admitted, conduct Munroe, 173 N.H. ___, ___ (decided August 4, 2020) (slip op. at 3); see RSA Self - defense is a pure defense under New Hampshire law. State v. 7

run” her and her boyfriend over. When sh e heard the truck’s engine “rev,” she The defendant jumped out of the way, thinking that the man was “gonna try to accelerated forward “at a high rate of speed” towards her and her boyfriend. “smashe[d]” into the telephone pole. The man then “rev[ved]” the engine and point, the man threw the truck into reverse and, “at a high rate of speed,” vision, standing in the middle of the street. The defendant said that, at this plate number. As she was doing this, she saw her boyfriend in her peripheral The defendant approached the truck in order to memorize its lic ense

approximately three car lengths in front of a telephone pole. street; the truck’s engine was running and its lights were on. The truck was from her house, the def endant saw the man sitting in his truck across the daughter is not home, her bedroom door is closed. As soon as she emerged was unusual, because her daughter was at a friend’s house and, when her defendant noticed that the door to her daughter’s bedroom was open, which gun because she was “afraid” that the intruder “was going to hurt” them. The As the defendant descended the stairs, she told her boyfriend to get his

man leave her home and worried that he might still be there. quickly, she said. Although she heard the front door close, she did not see the The defendant heard the man descend the stairs. He was not running

boyfriend, telling him that an intruder was in the home. and 30 whom she had never seen before. The defendant woke up her man in her home. She described him as a white male between the ages of 16 day in question, upon hearing a stair creak, she woke up to see an unknown The defendant told the police that at around 3:00 in the morning on the

assertion that she acted in self - defense. conclude that there was more than a scintilla to s upport the defendant’s evidence to support it. We agree. Although the evidence was conflicting, we defense claim instead of determining whether there was more than a scintilla of unsustainably exercised its discr etion because it decided the merits of her self jury instruction issue. In effect, the defendant contends that the trial court We now consider the defendant’s appellate arguments on the self - defense

notice did not mention the two charges of being an accomplice. self - defense instruction merely because the introductory paragraph of her circumstances, we conclude that the defendant did not waive her right to a were originally intended to replace the accomplice charges. Under these solicitation charges, brought nearly six months after the acco mplice charges, it appears that there was some confusion as to whether the criminal evidenced by the trial court pleadings submitted as part of the appellate record, “represent alternative legal theor ies covering the same facts.” Moreover, as no such waiver here. As the defendant correctly observes, the four charges the introductory paragraph of her notice of defense, we conclude that there was p. 8 8

defendant’s theory of the case. Id. must instruct a jury on a theory of defense, but need not instruct a jury on a should be evaluated and interpreted.” Id. (quotations omitted). A trial court theory of the case is simply the defendant’s position on how the evidence that he thereby escapes liability.” Id. (quotations omitted). “By con trast, a allegation but points to facts that excuse, exonerate, or justify his actions such confession and avoidance, by which the defendant admits the substance of the Noucas, 165 N.H. 146, 155 (2013). “A theory of defense is akin to a civil plea of distinguish between theories of defense and theories of the case. See State v. terrified and fleeing victim.” The State observes that, in criminal cases, we basis for the charges, i.e., that she directed [her boyfriend] to shoot at the defendant was not entitled to the instruction be cause she failed to “admit [the] brackets omitted)). For the first time on appeal, t he State contends that the we will affirm if valid alternative grounds support the decision.” (quotation and (2013) (“Where the trial court r eaches the correct result on mistaken grounds, because alternative grounds support it. See State v. Dion, 164 N.H. 544, 552 The State urges us to uphold the trial court’s decision, nonetheless,

she acted in self - defense. N.H. at 569. She did not need to submit proof beyond a reasonable doubt that only to demonstrate that there was “some evidence” to support it. Chen, 14 p. 8 8 her, see RSA 627:4, III(c). To be entitled to the instruction, the defendant had to retreat, see RSA 627:4, III(a), or that she provoked the use of force against that her belief was unreasonable, see RSA 627:4, II(a), or that she had a duty (1995). The State could have done so, by proving, beyond a reasonable doubt Et ienne, 163 N.H. at 80 - 81; see also State v. Soucy, 139 N.H. 349, 352 - 53 whether the State had disproved the defendant’s defense of self - defense. See Had the instruction been given, it would have been for the jury to decide

or serious bodily injury). in the manner in which it was used, was known to be capable of causing death 149 N.H. 706, 715 (2003) (upholding jury’s finding that the defendant’s truck, substantial risk of causing death or serious bodily injury”); cf. State v. Hull, the actor commits with the purpose of causing or which he knows to create a 627:4, II(a), :9, II (2016) (defining “deadly force” to mean “any assaul t . . . which against her, therefore entitling her to a self - defense instruction. See RSA reasonably believed that t he victim was about to use unlawful, deadly force of evidence that, when she told he r boyf riend to shoot the victim, she The defendant’s statements to the police constitute more than a scintilla

“clear the house” because she was still afraid. called p. 9 911 to report the incident. When the police arrived, she asked them to heard her boyfriend discharge his weapon. As the man fled, t he defendant drove away, she and her b oyfriend began yelling, “Stop!” The defendant then thought, “This guy’s going to hit us because he wants to get away.” As the man 9

six statements” by the victim that he wanted to introduce through Maloney to Maloney. At trial, defense counsel informed the trial court that he had “five or to i mpeach the victim with extrinsic evidence of statements he made to trial court unsustainably exercised its discretion when it declined to allow her We first discuss the defendant’s failure to preserve her argument that the

we do not address issue (3) because it is unlikely to arise on remand. the defendant has not demonstrated that she preserved it for our review, and Munroe, 173 N.H. at ___ (slip op. at 8). We decline to address issue (1) because to the stand. We address issue (2) because it is like ly to arise on remand. See exception to the hearsay rule; and (3) its denial of her request to recall Maloney responding officer, Officer Pearl, were admissible under the excited utterance officers; (2) its determination that the victim’s statements to a different evidence of statements he made to Officer Maloney, one of the responding rulings: (1) its decision not to allow her to impeach the victim with extrinsic T he defendant has challenged three of the trial court’s evidentiary

IV. Evidentiary R ulings

See Hayward, 166 N.H. at 584. decision on the ground that it reached the right result for the wrong reason. of law. Under those circumstances, we decline to uphold the trial court’s defense instruction is the only way the trial court could have ruled as a matter On the facts of this case, we cannot say that denying the request for a self abusing its discretion, so that appellate court can affirm as a matter of law). the rare case where t he trial court had but one option it could choose without reached the right result for the wrong reason on a discretionary ruling only in 20 (D.C. 1 p. 9 986) (explaining that an appellate court may affirm a trial court that 583 (2014) (quotation omitted); see Wright v. United States, 508 A.2d 915, 919 court could have ruled as a matter of law.” State v. Hayward, 166 N.H. 575, on a ground upon which it did not rely only if there is only one way the trial court has not exercised that discretion, we may sustain the trial court’s ruling “When, as in this case, a discretionary decision is at issue and the trial

Bruneau, 131 N.H. 104, 117 - 18 (1 p. 9 988). required, to give the requested instruction. See id. at 15 4 - 5 5; see also State v. against her. In such a case, the trial court had the discretion, but was not State contends, the defendant failed to admit the substance of the charges For the purposes of discussion, we assume without deciding that, as the

defendant failed to admit to any of the facts in the indictment). trial court did not err in failing to instruct the ju ry on self - defense where the not entitled to the instruction she sought. See id. at 156 (concluding that the defense, but is merely a theory of the case. Thus, the State asserts, she was tell her boyfriend to shoot the victim, her self - defense claim is not a theory of T he State argues that, because the defendant testified that she did not p. 10 10

whatever had happened.” Pearl subsequently transported the victim to the calm [the victim] down multiple times, becaus e he was very shaken by victim as “very disheveled, very upset, nervous.” He said that the police “had to utterances. Pearl spoke to the victim briefly at the scene. He described the discretion when it admi tted the victim’s statements to Pearl as excited We now address whether the trial court unsustainably exercised its

merits. preserve her appellate argument for our review, and we decline to consider its cha llenges on appeal. Under these circumstances, the defendant has failed to contends, the defendant “acquiesced in the [trial] court’s ruling” that she now The record submitted on appeal demonstrates that, as the State aptly

in her appellate brief before the trial court. Id. burden of demonstrating that sh e specifically raised the arguments articulated the appellate court. Id. The defendant, as the appealing party, bears the opportunity to rule on issues and to correct errors before they are presented to Court Rule 16(3)(b), reflects the general policy that trial forums should have an This preservation requirement, expressed in both our case law and Supreme presented to the trial court. State v. Batista - Silva, 171 N.H. 818, 822 (2019). Generally, we do not consider issues raised on appeal that were not

preserve this argument for our review. We agree wi th the State. prior consistent statements.” The State contends that the defendant did not minimum to impeach [him] without allowing the State to rehabilitate [him] with allowed introduction of t he [victim’s] prior out of court statements at a On appeal, the defendant argues that “the trial court should have

counsel said, “Okay.” statement?” The court responded that this was correct, to which defense rehabilitate is not limited in that way. [The State] can use any prior consistent witness had the opportunity to explain or deny. [The State’s] opportunity to choices, in terms of attempting to impeach, are limited to statements the discussion, defense counsel said: “I just want[] to state it, so I understand. My stated that he was “generally inclined to accept [the court’s] offer.” After more victim’s prior consistent statement s to rehabilitate him. Defense counsel so, the court would allow the State to introduce extrinsic evidence of the extrinsic evidence of the prior inconsistent stateme nts, but that if counsel did would allow defense counsel to impeach the victim’s credibility through After an extensive discussion with counsel, the trial court ruled that it

can later be impeached.” or specifically saying that he did not remember sa ying it, is not something that not remember making them. The State contended that “agreeing with Counsel, not denied making the statements at issue, but rather had testified that he did impeach the victim’s testimony. The State objected, noting that the victim had p. 11 11

standard. Id. To meet this standard, the defendant must demonstrate that the decision to admit evidence under our unsustainable exercise of discretion P epin, 156 N.H. 269, 274 (2007) (quotation omitted). We review a trial court’s but rather may be a related occurrence that causes such a reaction.” State v. statement; thus, the startling event does not have to be the actual crime itself, excited utterance exception rests with the spontaneity and impulsiveness of the Gordon, 148 N.H. 710, 720 (2002) (quotation omitted). “The basis of the that event, and before he had time to contrive or misrepresent.” State v. time when the speaker was still in a state of nervous excitement produced by a spontaneous verbal reaction to some startling or shocking event, made at a N.H. R. Ev. 803(2). “To qualify as an ex cited utterance, the statement must be made while the declarant was under the stress of excitement that it caused.” admission of hearsay statements “relating to a startling event or condition, The excited utterance exception to the hearsay rule permits the

utterance exception to the hearsay rule. time to contrive, his statements to Pearl were not admissible under the excited unsustainably exercised its discretion. Sh e asserts that because the v ictm had On appeal, t he defendant argues that in so ruling, the trial court

the police would be excited utterances. laid a foundation that all of the statements he’s made thus far to descriptions of [the victim] when he was conversing with the police I believe that based upon Ofc. Pearl’s testimony and the prior testifying, Ofc. Pearl, interacted within short order after that. And upset during his interactions. And the witness who’s currently scene. The first officer testified that he was extremely nervous and friend, . . . got picked up, [and was] brought directly back to the threw up on the way from there, got home, within minu tes texted a short order. He’s 17 years old. He’s without parents. . . . [H]e appropriate foundation laid that he -- all of this happened within I believe this is an excited utterance. I find that there’s been an

hearsay rule. See N.H. R. Ev. 803(2). The trial court disagreed: laid to introduce this statement under the excited utterance exception to the Defense counsel objected on the ground that a foundation had not been

iPad, [who] lives [at a particular ad dress], and he knew her.” him “that [the victim] had gotten a text from one of his female friends, on his talk. Over an objection by defense counsel, Pearl testified that the victim told happened.” Pearl did n ot ask the victim any questions, but rather just let him trying to say” and “sometimes he had trouble just talking about whatever had was “[b]roken,” meaning that he “had trouble finding words for what he was [the victim’s] voice was trembling.” Pearl said that the victim’s speech pattern very upset, intermittently crying, and his hands [were] shaking. At some point, police station, where he gave him “a drink and some food.” The victim “was p. 12 12

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., co ncurred.

failing to give the jury a self - defense instruction and remand for a new trial. susta in the defendant’s convictions, we reverse because the trial court erred by In sum, although we have concluded that the evidence was sufficient to

V. Conclusion

the hearsay rule. statements to Pearl were admissible under the excited utterance exception to circumstan ces, we uphold the trial court’s determination that the victim’s still under the stress of that incident when he and Pearl spoke. Under these fired at the vic tim, the record supports the trial court’s findings that he was Here, although the victim spoke with Pearl sometime after the shots were

case. Id. court ’ s ruling was clearly untenable or unreasonable to the prejudice of her