2021-0360, State of New Hampshire v. Jeffrey Woodburn

(Bornstein, J.). On appeal, he has adequately developed challenges to on ly the 634:2, I, III (2016) (amended 2020), following a jury trial in the Superior Court assault, RSA 631:2 - a, I (b) (2016), and two counts of criminal mischief, RSA count of domestic v iolence, RSA 631:2 - b, I(b) (2016), one count of simple BASSETT, J. The defendant, Jeffrey Woodburn, was convi cted o n one

Jeffrey Woodburn, self - represented party, o n the brie f and orally.

orally), for the State. general (Joshua L. Speicher, assistant attorney general, on the brief and John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2021 - 0360 Coos

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

convictions. v. Blackmer, 149 N.H. 47, 49 ( p. 2 2003). Accordingly, we affirm the defendant’s criminal mischief mischief convictions, his arguments are n ot sufficiently developed for appellate review. See State convictions, however, did not. Therefore, to the extent the defendant seeks to appeal his criminal assault and domestic violence convictions arose from this incident. The criminal mischief he briefed issues related only to an incident that occurred on Decembe r 15, 2017. The simple convictions. Al though, in his brief, the defendant requests that we reverse all of his convictions, We construe this appeal as challenging only the simple assault and domestic violence 1

compla inant]. or attempt to leave a volatile situation created by [the complainant] was necessary for him to use in order to either leave and that any force that [the def endant] used against [the tr ied to block and/or restrain [the defendant] from leav ing her . . . The evidence at trial w ill show that the [complainant] repeatedly

In the notice, the defendant asserted: intended to rely on the defense of self - defense pursuant to RSA 6 p. 2 27:4 (2016). Prior to trial, the defendant filed a notice of defense, which stated that he count of domestic violence as alternative charges arising from this incident. T he defendant was charged with one count of simple assault and one

which caused her to release the phone. of war” ensued. The defendant then bit the complainant on her left hand, In response, t he complainant reached for the defendant’s cell phone and a “tug he was gett ing out and that he was going to call his friend to come pick him up. complainant pulled the car over on a dirt road, and the defendant stated that disagreement, the defendant stated that he wanted to get out of the car. The party in Lancaster. The complainant was driving. At some point during the the complainant had an argument while driving to Jefferson from a holiday conflict. As relevant to this appeal, on December 15, p. 2 201 7, the defendant and to July 2018. The final year of their relationship was marked by frequent complainant were in a romantic relationship from approximately August 2015 The jury could have fo und the following facts. The defendant and the

affirm his criminal mischief convictions, and remand. error, we reverse his convictions for domestic violence and simple assault, with the defendant that the court’s failure to give a self - defense instruction was or the verbal completeness and opening - the - door doctrines. Because we agree evidence was admissible under either New Hampshire Rule of Evidence 404(b) complainant ’s alleged prior acts of aggression against him, arguing that the also asserts that the trial court erroneously excluded evidence of the court erred when it refused to instruct the jury on the issue of self - defense. He domestic violence and simple assault convictions. He argues tha t th e trial 1 p. 3 3

may not be entitled to a jury instruction on a specific defense when the version of events than the complainant. Although it is true that a defendant was a mere “theory of the case” because the defendant presented a different admit to any of the fa cts alleged in the indictment”). The State argues that this (defendant not entitled to defense of another instruction because he “did not ef forts to confine him. See, e.g., State v. Noucas, 165 N.H. 146, 156 (201 p. 3 3) by demonstrating that he was defending himself against the complainant ’s charged conduct — biting the complainant — and sought to justify his behavior T he defendant asserted a true theory of defense: he admitted to the

did not err in denying his requ ested instruction. We disagree. that, b ecause the defendant asserted only a “theory of the case,” the trial court instruct a jury on a defendant’s theory of the case. Id. The State contends Id. A trial court must instruct a jury on a theory of defense, but need not excuse, exonerate, or justify his actions such that he thereby escapes liability. defendant admits the substance of the allegation but points to facts that of defense” is akin to a civil plea of confession and avoidance, by which the interpreted. State v. Cavanaugh, 174 N.H. 1, 11 (2020). By contrast, a “theory simply the defendant’s position on how the evidence should be evaluated and his “theory of the case,” not a “theory of defense.” A “theory of the case” is self - defense instruction because his request for the instruction was based upon arguments in response. It first asserts that the defendant was not entitled to a request for a self - defense jury instruction. The State raises two threshold The defendant first argues that the trial court erred when it denied hi s

followed. violence charges stemming from the December 15, 2017 incident. This appeal things.” The jury convicted the defendant of the simple assault and domestic was when he committed those acts.. . . H e doesn’t even re member doing these instruction on self - defense. There’s no evidence as to what his state of mind mental processes and actions that are necessary to entitle somebody to an acting in self - defense.” It reasoned: “[T] here’s no evidence that implicates the evidence that would support a rational finding . . . that the Defendant was self - defense. T he court denied the request, concluding that there was “no court hear d arguments on the defendant’s request for a jury inst ruction on After the defendant’s testimony, but before the close of evidence, the trial

relevant to his theory of self - defense. during previous conflicts. T he defendant argued that this evidence was including evidence that she had tried to block or restrain him from leaving her complainant ’s alleged prior aggressive conduct towards the defendant, testified. On several occasions, the court excluded evidence of the At trial, the complainant, the defendant, and several other witnesses p. 4 4

defense counsel’s arguments at trial, and the defendant’s testimony, we to pick him up “to get out of that situation.” B ased on the notice of defense, car. He also testified that he “needed” his phone so that he co uld call someone “a l ong walk to anything” from the dirt road where the complainant stopped the occurred in December in northern New Hampshire and that it would have been evidence in support of this argument: The defendant testified that the incident winter and try to keep my phone at least?” Moreover, the trial court heard without hurting her, and getting away from her on the side of the road in the defendant’s] mind [was] . . . . How do I get out of the car without hurting me, trial, including by arguing to the trial court that, “what’s going [on] in [the complainant. Defense counsel raised this theo ry at multiple points during force he used was n ecessary to escape a “volatile situation” created by the his “confinement” theory of self - defense in his notice of defense — that the for him to leave the car without his phone. Before trial, the defendant raised now advances on appeal: that, given the circumstances, it was too dangerous We a re satisfied that the defendant raised the specific argument that he

appeal. State v. Brum, 155 N.H. p. 4 408, 417 (2007) (quotation omitted). that might or might n ot have supported” the specific argument raised on had “the opportunity to consider that legal issue or the developm ent of facts omitted). Therefore, we will f ind an argument preserved only if the trial court opportunity to correct any error it may have made.” Id. at 574 (quotation (2017). The purpose of this preservation rul e “is to afford the trial court an appellate brief before the trial court. State v. McInnis, 169 N.H. 565, 573 demonstrating that he specifically raised the arguments articulated in his The defendant, as the appealing party, bears the burden of

night. in the trial court, nor did he present evidence of the dangerous conditions that asserts that th e defendant did not raise this “dangerous conditions” argument including biting the complainant, were done to defend himself. T he State confinement. Accordingly, he argues that his efforts to retrieve his phone, the complainant ’s attempts to take his phone constituted attempted have been dangerous for him to leave the car without his phone, and, therefore, confinement theory of self - defense: D ue to the location and weather, it would entitlement to a self - defense instruction. On appeal, t he defendant posits a pr eserve the specific argument that he raises on appeal regarding his The State also argues, as a threshold matter, that the defendant did not

some details, were consistent with respect to the charged conduct. here. The defendant’s and the complainant ’s accounts, although differing in evaluate,” State v. Ramos, 1 p. 4 49 N.H. 272, 274 (2003), that was not the case defendant “present[s] an entirely different fact ual scenario for the jury to p. 5 5

causing or which he knows to create a substantial risk of causing death or “any assault or confinement which the actor commits with the purpose of (emphasis added); see also RSA 627:9, II (2016) (defining “[d]eadly force” as confinement which does not constitute deadly force.” RSA 627:9, IV (2016) “Non - deadly force” is defined, in relevant part, as “any assault or

support the defense. State v. Vassar, 1 p. 5 54 N.H. 370, 374 (2006). purpose.” Id. A belief that is unreasonable, even though honest, will not degree of su ch force which he reasonably believes to be necessary for such unlawful, non - de adly force by such other person.” The defendant “may use a defend himself . . . from what he reasonably believes to be the imminent use of person is justified in using non - deadly force upon another person in order to Subject to exceptions not applicable here, RSA 627:4, I, provides that “[a]

defendant’s request.” Id. at 646 (quotation and brackets omitted). self - defense instruction is to search the record for ev idence supporting the 64 p. 5 5. “[O]ur functi on in reviewing the trial court’ s refusal to provide a requested id. T h e evidentiary support need not be overwhelming. McMinn, 141 N.H. at we mean that there must be more than a minutia or scintilla of evidence. See rational finding in favor of it. Id. at 7 (quotation omitted). By “some evidence,” specific defense, such as self - defense, if there is “some evidence” to support a A tri al court must grant a defendant’ s requested jury instruction on a

the prejudice of his case. Cavanaugh, 174 N.H. at 14. demonstrate that the court’s ruling was clearly untenable or un reasonable to favorable to the defendant. To meet this standard, the defendant must standard of review, which is more deferential to the trial court and less either standard. We therefore apply our unsus tainable exercise of discretion proper standard of review in this case because the de fendant prevails under Hast, 133 N.H. 747, 749 - p. 5 50 (1990) (same). We need not, however, decide the unte nable or unreasonable to the prejudice of the defendant’s case); State v. without considering whether the trial court’s failure to give the instruction was when it refused to instruct jury on self - defense theory and reversing conviction error.” See McMinn, 141 N.H. at 644 - 45 (concluding that trial court erred asserts that the court’s failure to instruct the jury on self - defense i s “reversible N.H. at 7. The defendant, relying on State v. McMinn, 141 N.H. 636 (1997), apply our unsustainable exercise of discretion standard. See Cavanaugh, 174 disagree as to the proper standard of review. The State argues that we should court erred when it failed to give a self - defense instruction. The parties We now turn to the merits of the defendant’s argument that the trial

defense argument the defendant now raises. See Brum, 1 p. 5 55 N.H. at 417. conclude that the trial court had the opportunity to consider the specific self - p. 6 6

i ndividual’ s present behavior.”). The defendant testified that, when conflict has been the victim of past violent acts may be rele vant to explain that See State v. Hayward, 1 p. 6 66 N.H. 575, 580 (2014) (“Evidence that an individual past experiences informed his state of mind at the time of the charged offenses. previously interfered with the defendant’s freedom of m ov ement and that those Moreover, t he record contains evidence that the complainant had

vehicle. caused the complainant to let go of the phone and enabled him to exit the . . get out of that situation.” He also admitted to biting the complainant, which [his friend] or somebody to come get [him], and . . . that’s what [he] needed to . [him]” and that he “jus t wanted [his] phone. . . . [He] wanted to call, you know, “wouldn’t let go.” The defendant explained that “panic was . . . overcoming his hands to twist and pry in an attempt to get the phone, but the complainant then “came a tug of war for the phone.” During the struggle, he used both of did not stop the car until he grabbed the steering wheel. He testified that there asked the complainant to stop the car, she initially refused to do so, and she drowning,” and that he “had to get away from her.” He testified that when he to feel “a sense of claustrophobia.” He also felt “panicky,” like he “was defendant testified that, when he and the complainant were arguing, he started complainant in order to escape the complainant ’s attempted confinement. The this case, the jury could reasonably infer t hat the defendant bit the under all the circumstances.” State v. Vincelette, 172 N.H. 350, 354 (2019). I n by circumstantial evidence and may be inferred from the defendant’s conduct charged conduct. Rather, “[a] defendant’s intent often must be proved defendant to testify regarding his thought process at the exact moment of the To meet the “some evidence” threshold, it was not necessary for the

moment he bit the complainant. We are not persuaded. failed to present any evidence about what was go ing through his mind at the The State also contends that the evidence is insufficient because the defendant mind” and the evidence does not “explain why h e committed” the charged acts. threshold because it lacks any “evidence relating to [the defendant’s] state of The State asserts that the record does not meet the “some evi dence”

p. 6 62 p. 7 7:9, IV; State v. Chen, 148 N.H. 565, 570 (2002). imminent threat of restraining him from exiting the car. See RSA 627:4, I; RSA evidence that the defendant reasonably believed that th e complainant posed an Dictionary 476 (unabridged ed. 2002)). According ly, we review the record for 164 N.H. 430, 435 (2012) (quoting Webster’s Third New International confining or state of being confined; restraint within limits. ’” State v. Furgal, have previously interpreted it in the context of that statute to mean “‘ the act of serious bodily injury”). Although “confinement” is not defined in RSA 627:9, we 7

(2001). B ecause the “some evidence” standard does not require that the the jury to reconcile, not the trial court. See State v. Haycock, 146 N.H. 5, 11 testimony supporting the self - defense instruction, any inconsistency was for State contends, this testimony can be construed as contradicting other emphasizing how threatened the defendant felt. T o the ext ent that, as the reasonable. The jury could have interpreted this testimony as merely read, necessarily undermines the notion that the defendant’s belief was In the first instance, we do not agree with the State that this testim ony, fairly

problem. And it’ s a long walk to anything from there. was to get out of the car. . . . I felt not having the phone was . . . a [Defendant:] Absolutely. I mean, . . . yeah. That was my . . . goal

side of the road? you still have gotten out of the car in December by yours elf on the [Defense Counsel:] If you lost that tug of war over the phone, would

secure his cell phone. The testimony the State relies upon is as follows: testified that he would have gotten out of the car even if he had been unable to was reasonable for the defendant to believe he was being confined because he Nonetheless, the State asserts that there was insufficient evidence that it

effort to confine him in the vehicle. believe that the complainant ’s a ttempt to take pos session of his phone w as an “more than a scintilla” of evidence that it was reasonable for the defendant to have been “a long walk to anything from there.” These circumstances provide testified that the complainant stopped the car on a dirt road and that it would Lancaster to Jefferson following a holiday party. In addition, t he defendant December 15 while the defendant and the complainant were driving from reasonable under the circumstances. We disagree. T he incident occurred on defendant’s belief that the complainant was attempting to confine him was The State also argues that there was insufficient evidence that the

necessary for him to respond to that threat by biting her. complainant was attempting to confine him in the car and that it was evidence” of his belief that, by trying to take possession of his phone, the to negotiate [with] this person.” The defendant’s testimony established “some doesn’t just go away; it s tays in the mind and it is part of my psyche as I tried Concerning the impact of these experiences, the defendant testified, “[I]t things got too hot, and [the complainant] blocking me, preventing me.” further testified that “there was a constant problem of me trying to leave when retreating from the encounter in an attempt to deescalate the conflict. He arose between him and the complainant, he would often use the strategy of p. 8 8

N.H. at 375 - 76; N.H. R. Ev. 404(b). admis sible under Rule 404(b). See Hayward, 166 N.H. at 5 p. 8 80; Vassar, 154 believed the complainant was attempting to confine h im — and therefore it was aggressive acts was relevant to his state of mind — whether he reasonably Hayward, the defendant contends that evidence of the complainant ’s prior the complainant ’s prior aggressive acts against him. Relying on Vassar and testimony by the complainant, himself, and another defense witness regarding The defendant argues that the trial court erred when it excluded

same way as presented in this appeal. doctrine because those evidentiary issues may not reoccur o n remand in the under either the doctrine of verbal completeness or the open ing - the - door address the defendant’s argu ments that this same evidence i s admissible address it. See State v. Munroe, 173 N.H. 469, 47 p. 8 8 (2020). We decline to under New Hampshire Rule of Evidence 404(b) is likely to arise on remand, we evidence of the complainant ’ s prior aggressive conduct to wards the defendant defendant’s ot her appellate arguments. However, because the admissibility of Given that we are reversing these convictions, we need not address the

domestic violence. and, accordingly, we reverse the defendant’s convictions for simple assault and refused to i nstruct the jury on self - defense, see Cavanaugh, 174 N.H. at 7, 14, We conclude that the trial court unsustainably exercised its discretion when it “significantly greater risk” that the jury would make an unfavorable finding). language in self - defense instruction because, without the language, there was a (defendant proved he was prejudiced by court’s failure to include speci fic issue of self - defense. See State v. Rice, 169 N.H. 7 p. 8 83, 795 - 97 & n.6 (2017) than would have been the case if the jury had been properly instructed on the defendant by making it more likely that the jury would return a guilty verdict defense. Therefore, t he lack of a se lf - defense instruction prejudiced the charged conduct, it could find him not guilty if his conduct was j ustified self instruction, the jury was u naware that, although the defendant admitted to the him. See Cavanaugh, 174 N.H. at 14. In the absence of a self - defense We next consider whether the defendant has proven that this error prejudiced court’s refusal to instruct the jury on that theory of defense was unreasonable. supporting a rational finding that the defendant acted in self - defense, the trial In sum, w e conclude that, because the record contains “some evidence”

evidence was conflicting”). there was “some evidence” to support self - defense theory even though “the by the State’s argument. See id.; Cavanaugh, 174 N.H. at p. 9 9 (concluding that evidence presented by the defendant be uncontradicted, we are unpersuaded 9

discretion when it denied the defendant’s request for a self - defense jury In sum mary, we conclude that the trial court unsustainably exercised its

non - propensit y purpose. See Dukette, 145 N.H. at 230; N.H. R. Ev. 404(b). mind at the time of the charged offense s such that they may be admitted for a admitted by the defendant are logically connected to the defendant’s state of consider whether any prior acts of aggression by the complainant sought to be defendant did so in this case. Accordingly, on remand, the cour t should of the complainant relevant, we conclude, as described in detail above, that the his state of mind at the time of the charged offense in order to make prior acts without deciding, that a defendant must present some affirmative evidence of acts and his state of m ind at the time of the conduct at issue. Even assuming, not establish the necessary logical connection between the complainant ’ s prior evidence of his state of mind at the moment he bit the complainant, he could The trial court ruled that, because the defendant failed to present any

duress defense). prior threats and violence as too remote in time to be relevant to defendant’s at 580 - 81 (concluding trial court erred in ex cluding evidence of co - defendant’s connection exists. See Dukette, 145 N.H. at 230; see also Hayward, 166 N.H. factor for the court to consider in determining whether a sufficient logical proximity, or remotenes s, between the prior acts a nd the charged offense is one demonstrating its relevance.” (quotation and ellipsis omitted)). The temporal N.H. 445, 447 (2001) (“The proponent of bad acts evidence bears the burden of of the charged conduct.” Dukette, 145 N.H. at 230; see State v. Douthart, 146 connection between the prior acts and the defendant’s state of mind at the time purpose, the proponent of the evidence must demonstrate “a sufficient logical 375 - 76. To ensure that prior bad acts are relevant for a non - propensity if such acts are relevant to the defendant’s state of mind. Vassar, 154 N.H. at defendant claiming a justification defense may be admissible under Rule 404(b) Vassar, we explained that evidence of a complainant ’s prior acts known to a acts” may be admissible under Rule 404(b) in a self - defense case. Then, in state of mind i s one of the “other purposes” for which “other crimes, wrongs, or In State v. Dukette, 145 N.H. 226, 230 - 31 (2000), we held that a defendant’ s

accident. preparation, plan, knowledge, identity, or absence of mistake or purposes, such as proof of motive, opportunity, intent, conformity therewith. It may, however, be admissible for other the character of a person in order to show that the person acted in Evidence of ot her crimes, wrongs, or acts is not admissible to prove

exercise of discretion. See Hayward, 166 N.H. at 580. Rule 404(b) provides: We review the trial court’s exclusion of evidence for an unsustainable p. 10 10

HANTZ MARCONI, and DONOVAN, JJ., concurred.

deemed waived. See State v. Houghton, 168 N.H. 269, 274 - 75 (2015). for a new trial. Issues raised in the notice of appeal, but not briefed, are and domestic violence, affirm his convictions for criminal mischief, and remand instruction. We therefore reverse the defendant’s convictions for simpl e assault