2021-0270, State of New Hampshire v. Philip Perez

and, therefore, the defendant’s convictions should be affirmed. Based upon the exclusion of the victim’s statement s was harmless beyond a reasonable doubt, The State counters, in part, that any error associated with the trial court’s stat ement s that the victim made to hospital staff two days after the assault. the Superior Court (Anderson, J.) erred by excluding evidence pertaining to RSA 631:1, I(b) (S upp. 2022); RSA 264:25 (2014). The def endant argues that following a jury trial, of first - degree assault and conduct after an accident. See DONOVAN, J. The defendant, Phi lip Perez, appeals his convictions,

orally, for the defendant. brief and Thomas Barnard, senior assistant appellate defender, of Concord, Stepha nie Hausman, deputy chief appellate defender, of Concord, on the

general (Sam M. Gonyea, attorney, on the brief and orally), for the State. John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2021 - 0270 Hillsborough - northern judicial district

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

at the hospital. She noted: seen prior to discharging.” A t 4:45 p.m., the vic tim spoke with a social worker doctor at 11:59 a.m. that same day states, “[T he victim] was requested to be discharge.” She added, “[He] appears to be malingering.” A note from the claim that he wants to kill himself every time he is told he is ready for day, at 10:33 a.m., a physician’s assistant noted that “[the victim] appears to Discharge to home or other facility with appropriate resources.” The following nurse noted in the victim’s records, “Problem: Discharge Planning. Goal: T he victim remained at the hospital for the next two days. On July 19, a

his car, land ed on his windshield, and began throwing punches into the car. and, as he approach ed the victim from the road, the victim jumped in front of punched him. A ccording to the defendant, he spotted the victim walking away that after he pulled out onto the road, he wanted to ask the victim why he had Later that day, the police spoke with the defendant. The defendant explained later testified that the victim’s injuries were consistent with being hit by a car. T he victim was transported to the hospital and the treating ph ysician

“took off.” After striking the victim, the defendant’s car “sat there” for a moment and then the victim, according to one witness, “somersault ed” over the hood of the car. appe ared that the driver “purpose ly hit” the victim with his car. As a result, over” in his direction prior to making contact. That witness testified that it the defendant’s car “sped up” when it approached t he victim and then “drove the victim while he was walking in a crosswalk. Another witness testified that the defendant “was taking off,” but then the defendant’s car “veered in” and hit himself before pulling back onto the street. Initially the witness believed that victim exited the car, the defendant sat in the car and appeared to collect bystanders who later testified at trial. One witness testified that after the The argument and physical altercation drew the attention of two

defendant, the v ictim exited the car and walked down the street. window, drawing blood and breaking his glasses. After punching the the defendant in the face, causing the def endant’s head to hit the driver - side argument resulted in a physical alterca tion during which the victim punch ed which led to a heated argument between the two men inside the car. The victim asked the defendant to make a few stops. The defendant protested, was homeless, and who was a friend of the defendant. During the ride, the facts. On July 1 8, p. 2 2019, the defendant picked up the victim, who, at the time, The jury could have found or the record otherwise supports the following

doubt. According ly, w e affirm. decision to exclude the proffered statement s was harmless beyond a reasonable record before us, we conclude that any error relating to the trial court’s p. 3 3

followed. upon release for the conduct - after - an - accident conviction. This appeal assault conviction, and three to six years in prison, suspended for five years defendant to one to three years in prison, stand committed for the first - degree A jur y convicted the defendant on four charges. The court sentenced the

assumption that the statements are inherently reliable.” same room with him, this Court cannot ask a jury to do so based on an concerning what he would do to himself if discharged when they were in the co ncluded that: “If [the hospital] staff did not believe [the victim’s] statements the rule against hearsay posited by the defendant. Ultimately, the court unreliable,” thus undermining the applicability of any of the three exceptions to discharge.” The court explained that the victim’s statement s were “inherently other two rules is the report that [the victim] was malingeri ng with respect to exception did not apply. Further, the court found that the “problem with the normally a ‘ startling event or condition, ’” and thus, the excited utterance exception s. The court found that being disc harged from a hospital “is not statement s to the social worker were hearsay not subject to the identified The trial court denied the defendant’s motion, ruling that the victim’s

prope nsity evidence under Rule 404. alternatively, that the statement s should be excluded as inadmissible State a rgued that the statements were hearsay without an exception and, as hearsay, as well as an objection to the defendant’s motion in limine. The 80 p. 3 3(2) - (4). The State filed its own motion in limine to exclude the statement s and (3) a statement made for medical diagnosis or treatment. See N.H. R. Ev. (1) an excited utterance; (2) a statement of the victim’s then - existing condition; e xceptions to the hearsay rule under the New Hampshire Rules of Evidence as: defendant’s car. The defendant further argued that the statements qu alified as time of the incident” and thus more likely to have jumped in front of the state by making “it more likely than n ot that [the victim] was suicidal at the defenda nt argued that the statements were probative of the victim’s mental discharged, he would throw himself in front of a car to kill himself. The statement s to the social worker, made two days after the assault, that if that end, the defendant filed a motion in limine to adm it the victim’s evidence suggesting that t he victim intentionally jumped in front of his car. To unrelated circumstances. The defendant’s theory of the case rested upon conduct after an accident. Prior to trial, the victim passed away due to felony reckless conduct, which were based upon alternate theories, and felony The State subsequently charged the defendant with four felony assaults,

[a] car to ‘kill himself.’ Pt reports if he leaves the hospital today he will throw himself in front of a ‘horrible life’ and ‘no one in his life to help’ him and ‘no r eason to live.’ Pt became extremely emotional and began sobbing. Pt stated that he has p. 4 4

claim that the victim jumped in front of his car. car. N either witness who observed the collision corroborated the defendant’s that witness to conclud e that t he defendant “purpose ly hit” the victim with his victim and then “drove over” in his direction prior to making contact, leading The other witness testified that the defendant “sped up” at the sight of the defendant “veered in” towards the victim and “clipped” him in the crosswalk. after the defendant pulled back on the road and began to drive away, the defendant purpose ly hitting the victim with his car. One witness testified that guilt. Two witnesses testified to observin g conduct consiste nt with the excluded is inconsequential in relation to the strength of the Sta te’s evidence of of the defendant’s guilt is of an overwhelming nature and the evidence that was We conclude, based upon a review of the record, that the other evidence

not do so purpose ly or knowingly because the v ictim jumped in front of his car. t hat he hit the victim with his car. Rather, the defendant claimed that he did RSA 631:1, I(b). At trial, the defendant did not dispute the underlying conduct another by means of a deadly weapon,” in this instance a motor vehicle. See prove that the defendant “[p]urpose ly or knowingly cause[d] bodily injury to To convict the defendant of first - degree assault, the State was required to

Papillon, 173 N.H. 13, 29 (2020). the character of the erroneously admitted or excluded evidence itself. State v. determination, we consider the alternative evidence presented at trial as well as finding of harmless error beyond a reasonable doubt. Id. In making this an error affected a verdi ct. Id. Either factor can be a basis supporting a the State’ s evidence of guilt. Id. We review these factors to determine whether excluded is merely cumulative or inconsequential in relati on to the strength of nature, quan tity, or weight; or (2) the evidence that was improperly admitted or doubt if: (1) the other evidence of the defendant’ s guilt is of an overwhelming exclusion of evidence. Id. An error may be harmless beyond a reasonable 137 (2022). This standard applies to both the erroneous admission and doubt that the error did not affect the verdict. State v. Race tt e, 175 N.H. 132, To establish harmless error, the State must prove beyond a reasonable

was harmless beyond a reasonable doubt. we agree with the State that any error in excl uding the challenged statements We need not decide whether the trial court’s ruling s were erroneous because made for medical diagnosis or treatment, Rule 803( p. 4 4). N.H. R. Ev. 803(2) - (4). 803(2); a statement o f then - existing mental state, Rule 803(3); and a statement Hampshire Rules of Evidence barring hearsay: an excited utterance, Rule because the statement s fall within three separate exceptions to the New maintains that the trial court erred when it denied the defendant’s motion worker were hearsay. See N.H. R. Ev. 801(c). Nevertheless, the defendant On appeal, the parties agree that the victim’s statement s to the s ocial

concurred. J., retired superior court justice, specially assigned under RSA 490:3, HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; HOURAN,

deemed waived. State v. Bazinet, 170 N.H. 680, 688 (2018). issues that the defendant raised in his notice of appeal, but did not brief, are For t he foregoing reasons, we affirm the defendant’s convictions. Any

reasonable doubt. See Papillon, 173 N.H. at 30. social work er did not affect the verdict s and was, therefore, harmless beyond a burden of proving that any error in excluding the victim’s statements to the was inconsequential. Accordingly, we conclude tha t the State has met its the exclusion of the victim’s statements — made two days after t he assault — Compared to the substantial strength of the evidence of the defendant’ s guilt, overwhelming eviden ce that the defendant purpose ly hit the victim with his car. accidentally hit a person with his or her car. Against this backdrop, there was supporting a consciousness of guilt and inconsistent with someone who had away w ithin seconds after striking the victim with his car — con duct In addition, both witnesses testified to observing the defendant drive