2024 N.H. 36, State v. Chalpin

orally), for the defendant. Reis & O’Keefe, PLLC, of Portsmouth (James B. Reis on the brief and

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

Citation: State v. Chalpin, 2024 N.H. 36

2022 - 0191 2022 - 0108 2020 - 0573

Case No s. 20 19 - 0413 Hillsborough - northern judicial district

THE SUPREME COURT OF NEW HAMPSHIRE

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

consumption of alcohol and prescri ption medication. victim’s prior romantic partners and male friends, which was exacerbated by the defendant’s The record suggests that the defendant was angry with the victim due to his jealousy toward the 1

her hair in the proces s. Once in the main room, the defendant started hitting [dragged her] into the main room of the house,” pulling out a “large chunk” of onto the floor. From there, the defendant “grabbed [the victim] by the hair and breat hing. Eventually, the victim and the defendant slid off the bed and fell putting his arm around [the victim’s] neck,” causing her to have trouble to try to get away from him,” but the defendant “grabbed tighter” and “started restraining her from behind while she was lying down. The victim “struggled 1 [¶4] When the victim attempted to leave the bed, the defendant began

to go outside to smoke a cigarette, but the defendant did not allow her to do so. defendant woke the victim up, and, once awake, the v ictim expressed a desire television in the living room. Sometime after the victim w ent to bed, the home from seeing a movie, the victim went to bed while the defendant watched together in October p. 2 2017. On t he evening of February 2, 2018, after returning the victim began a romantic relati onship in late 2015 and started living [¶3] The jury could have found the following facts. The defendant and

remand. assault convictions. Accordingly, we affirm in part, reverse in part, and convictions; and (3) there was sufficient evidence to support four separate enhanced first degree assault and second degree assault – extreme indifference “cruelty” was sustainable; ( p. 2 2) there was sufficient evidence to sustain both the convictions. We conclude that: (1) the jury instruction on the definition of determining that there was insufficient evidence to prove four separate assault [¶2] The State cross - appeals, arguing that the trial court erred in

acts of assault. was sufficient evidence to prove that the defendant committed two separa te manifesting extreme indifference to human life”; and (4) determining that there extreme indifference charge, that the defendant acted “under circumstances sufficient evidence to prove, with respect to the second degree assault – in inflicting serious bodily injury” on the victim; ( p. 3 3) determining that there was assault ch arge, that the defendant “manifested exceptional cruelty or depravity there was sufficient evidence to prove, with respect to the enhanced first degree jury with an inadequate definition of the word “cruelty”; ( p. 2 2) determining that RSA 631:2, I(c) (2016). He argues that the trial court erred by: (1) providing the circumstances manifesting extreme indifference to the value of human life, see of second degree assault for r ecklessly caus ing bodily injury to another under bodily injury, see RSA 631:1, I(a) (2016); RSA 651:6, I(c) (2016), and one count enhanced for manifesting exceptional cruelty or depravity in inflicting serious 3

The court initially declined to provide a definition. During deliberation, the definition of “cruel” set forth in State v. Morehouse, 120 N.H. 7 p. 3 38, 744 (1980). to provide the jury with a definition of the word “cruelty” based upon the of evidence, when discussing jury instructions, the defendant asked the court victim at the hospital. The defendant testified on his own behalf. At the close the State included the victim and several medical providers who treated the [¶9] In March 2019, the court held a five - day jury trial. Witnesses for

bone, or pneumothorax of the lung — otherwise known as a collapsed lung. bodily injury in the form of a fracture d spine, a fracture d rib, a fracture d nasal indictment s alleged that the defendant caused either serious bodily injury or the value of human life, see RSA 6 p. 3 31:2, I(c). For each variant of assault, the causing bodily injury under circumstances manifesting extreme indifference to 631:2, I(a) (2016), and four alternative counts of second degree assault for c ounts of second degree assault for causing serious bodily injury, see RSA bodily injury on the v ictim, see RSA 631:1, I(a); RSA 651:6, I(c), four alternative enhanced for manifesting exceptional cruelty or depravity in inflicti ng serious [¶8] The defendant was indicted on four counts of first degree assault,

fractured spine. lun g s, eight fractured ribs on both sides of her body, a broken nose, and a hospital, where she was diagnosed with numerous injuries, includin g collapsed recommended that she go to the hospital. The victim drove herself to a nearby [¶7] On February 4, the victim went to an urgent - care facility where staff

bed, th e defendant hit the victim again “in [the vict im’s] right ribs.” defendant decided that it was time for them to go to bed. When they got into the back door, the defendant punched her in the nose. E ventually, the the house. W hile she was walking up the stairs and across the deck that led to night, and because it was “very cold” and dark outside, t he victim return ed to torn long - sleeve t - shirt and socks. Not knowing where to go at that time of [¶6] After the inc ision strike, the victim fled the house wearing only a

of her body that was still healing from a recent procedure. approached her and punched her directly o n a surgical incision on the left side seat with her knees to her chest “trying to protect [herself],” the defendant seconds. In addition, the victim recalled that when she was sitting on the love shot” is a technique that boxers use to incapacitate an opponent for about ten defendant, who was a trained boxer, had previously told the victim that a “liver when the victim and the defendant were stand ing by the back door. The the night, the defendant delivered wha t the victim believed to be a “liver shot” separate occasions. In particular, the victim recalled that, during the course of [¶5] Throughout the night, the defendant hit the victim on at least four

legs.” the victim “[p]retty much everywhere,” though mostly on the “torso, ribs, [and] p. 4 4

Morehouse, 120 N.H. at 7 p. 4 44 (defining “cruel” as “disposed to inflict pain . . . in court define “cruelty” based upon the definition of “cruel” from Morehouse. See jury requested a definition of “cruelt y.” Defense counsel suggested that the to” the victim. See RSA 631:1, I(a); RSA 651:6, I(c). Du ring deliberation, the manifested “exceptional cruelty or depravity in inflicting serious bodily injury assault, all of which alleged that when perpetrating the assault, the defend ant [¶13] The defendant was indicted on four counts of enhanced first degree

a whole fairly covered the issues and law in the case. Id. at 7. answer accurately conveys the law on the question and whether the charge as inquiry in the context of the court’s entire charge to determine whether the discretion standard. Id. at 6 - 7. We review the trial court’s answer to a jury (2023). We review the court’s response under the unsustainable exercise of left to the sound discretion of the trial court. State v. Boudreau, 176 N.H. 1, 6 question asking for a definition of “cruelty.” A response to a jury question is [¶12] The defendant first challenges the trial court’s response to the jury

A. Definition of “cruelty”

reconsider, which the court denied. This appeal and cross - appeal followed. count of second degree assault – extreme indifference. The defendant moved to sentenced the defendant on one count of enhanced first degree assault and one another sentencing hearing. In January 2022, f ollowing the hearing, the court four sentences violated the defendant’s double jeopardy right s and scheduled in December, the court issued a written order in March 2021 agreeing that the filed a series of motions challenging the court’s decision. Following a hearing After his counsel withdrew, t he defendant, representing himself, subsequently court issued a written order in April 2020 denying the defendant’s motion. alternative, moved for a new sentencing hearing. The State objected. T he charges against him based upon the doctrine of double j eopardy, or, in the [¶11] In July 2019, the defendant moved to dismiss all but one of the

purposes. nasal bone injuries. The remaining convictions were merged for sentencing second degree assault – extreme indifference with re spect to the spine and first degree assault with respect to the lung and rib injuries, and two counts of simple assault. The court sentenced the defendant on two counts of enhanced degree assault, six counts of second degree assault, and two lesser charges of [¶10] The jury convicted the defendant on two counts of enhanced first

Law Dictionary. the court declined and instead provided the definition of “cruelty” from Black’s “cruelty.” The defendant again requested the definition from Morehouse, but jury issued a question regarding the appropriate definition of the word p. 5 5

definition of “cruelty” is sustainable. its component words.” We conclude that the trial court’s instruction on the questions than it answers” given that it may “necessitate further definitions of dictionary,” after determining that the definition in Morehouse “creat es more the definition from Black’s Law Dictionary, a “universally recognized law case.” (quotation omitted)). T h e trial court acted reasonably in opting to use the jury, in clear and intelligible language, the rules of law applicable to the 714 (2013) (“[T]he purpose of the trial court’s charge is to state and explain to the definition from Black’s Law Dictionary. See State v. Fischer, 16 p. 5 5 N.H. 706, 40 years ago. In stead, when resp onding to the jury question, the court use d court chose not to use the definition of “cruel” applied by this court more than usual and common meaning. See Morehouse, 120 N.H. at 744. Here, the trial [¶16] When a statute does not define a word, we ascribe to the word its

other than guilt.”). language indicating that the evidence need not exclude all rational conclusions direct evidence, trial courts should not include in instructions to the jury v. Saunders, 164 N.H. 342, 3 p. 5 52 (2012) (“[I] n a criminal case t hat includes “that trial judges not add to the model charge” established in Wentworth); State language to the charge set forth in Wentworth, was “improper,” and requesting (1980) (concluding that the trial court’s re asonable doubt charge, which added at further defining reasonable doubt”); State v. Aubert, 120 N.H. 634, 635 - 38 the reasonable doubt standard and cautioning “trial judges to av oid attempts 118 N.H. 832, 838 - 39 (1978) (establishing a model jury instruction regarding require trial courts to use, we do so explicitly. See, e.g., State v. Wentworth, See Morehouse, 120 N.H. at 744. W hen we establish a jury instruction that we [¶15] The definition of “cruelty” set forth in Morehouse is not mandatory.

We disagree. conclude that [the defendant] ‘manifested exceptional cruelty or depravity.’” definition” that “lowered the quantum of evidence necessary for the jury to Morehouse and that the definition from Black’s Law Dictionary is a “diluted essentially contends that we established a controlling definition of “cruelty” in refusing to provide the definition set forth in Morehouse. The defendant [¶14] On appeal, the defendant argues that the trial court erred by

See Black’s Law Dictionary 47 p. 5 5 (11th ed. 2019). emotions, abusive treatment, or inhumanity/outrage.” (Quotation omitted.) malicious and unnecessary infliction of pain upon the body or the feelings and creatures, particularly human beings. A s applied to the latter, the wanton, intentional and malicious infliction of physical or mental suffering upon living of “cruelty” based upon the definition from Black’s Law Dictionary: “The tormenting”). T he court declined and instead provide d the following definition a wanton, insensate . . . manner” or “given to killing and mangling or to p. 6 6

indictmen t s, as each indictment clearly charge d the defendant with injuring spine. As articulated above, we reject the defendant’s parsing of the with his hand causing” either a fracture to her nasal bone or a fracture to her manifesting extreme i ndifference to the value of human life when he struck her [the victim], his intimate partner at the time of the event, under circumstances Those indictments allege that the defendant “recklessly caused bodily injury to c harging the defendant with second degree assault – extreme indifference. [¶19] We reach a similar conclusion when considering the indictments

that occurred after the injury). considering all of the circumstances surrounding the assault,” including acts Woodard, 121 N.H. 970, 973 (1981) (holding that the trial judge “did not err in assault.” State v. Lavalle e, 119 N.H. 207, 213 (1979); see also State v. victim, the fact finder may look to the “circumstances surrounding the cruelty and depravity” when inflicting death or serious bodily injury on a held that, when determining whether a defendant “manifested exceptional defendant manifested while inflicting the injury.” Indeed, we have consistently was the sole circumstance constituting the cruelty or depravity that the injury” means that “the strike from the defendant that resulted in the injury phrase “manifesting exceptional cruelty or depravity in inflicting serious bodily agree wit h the State, however, that it does not logically follow that the full serious bodily injury” refers to the bodily injury alleged in each indictment. W e inflicting serious bodily injury to [the victim] . . . .” T he clause “in inflicting pneumothorax of her lung], manifesting exceptional cruelty or depravity in struck her with his hand causing a [fracture to her rib or trauma tic injury to [the victim], his intimate partner at the time of the event, when he degree assault allege d that the defendant “purposely caused serious bodily defendant’s parsing of the indictment”). The indictment s for enhanced first the indictment s. See State v. Nickles, 144 N.H. p. 6 673, 679 (2000) (rejecting “the [¶18] As a threshold matter, w e disagree with the defendant’s reading of

element of the second degree assault charges. enhancement to the first degree assault charges and the “extreme indifferen ce” alleged in the indictments, without more, was insufficient to prove the the indictments, the defendant argues that evidence of the specific injur ies to the value of human life, s ee RSA p. 6 631:2, I(c). Applying this interpretation of victim, s ee RSA 631:1, I(a); RSA 651:6, I(c), or manifested extreme indifference exceptional cruelty or depravity when inflicting serious bodily injury on the each indictment when determining whether the defendant ma nifested instructions only permitted the jury to consider the specific injury alleged in indifference. He contends that the wording of the indictments and the jury prove enhanced first degree assault and second degree assault – extreme [¶17] The defendant next argues that there was insufficient evidence to

Degree Assault – Extreme Indifference B. Sufficien t Evidence to Prove Enh anced First Degree Assault and Second p. 7 7

c ourt should have found that the events were all part of one assault. The State attack c ould be divided into two separate assault s. He contends that the trial determining that there was sufficient evidence to find that the events of the [¶22] Lastly, the defendant argues tha t the trial court erred in

C. Double Jeopardy

argument. consider the circumstances of the entire attack, we reject the defendant’s indictments and jury instructions. G iven our conclusion that the jury could indifference conviction s is premised upon his erroneous interpretation of the prove his enhanced first degree assault and second degree assault – extreme [¶21] T he defendant ’s argu ment that there was insufficient evidence to

blatant disregard for the risk to the victim’s life. the defendant’s multiple “actions” when determining whether he evinced a for the risk to the victim’s life.” This definition permitted the jury to consider life ’” to mean that “the [d] efendant’s actions demonstrate a blatant disregard “‘ under circumstances manifesting extreme indifference to the value of human second degree assault – extreme indifference, t he court defined the phrase value of human life. Moreover, after instructing the jury on the elements of exceptional cruelty or depravity or manifes ted an extreme indifference to the the alleged bodily injury when determining whether the defendant manifested life.” (Emphasis added.) Neither instruction limited the jury to consider just under circumstances manifesting extreme indifference to the value of human informed the jury that the State must prove that “the bodily injury was inflicted jury on the second degree assaul t – extreme indifference charges, the court cruelty or depravity in inflicting serious bodily injury.” When instructing the jury t hat the State must prove that the defendant “manifested exceptional respect to the enhanced first degree assault charges, the court instructed the was not limited to considering only the injury alleged in each indictment. With considering the exceptional cruelty and extreme indifference elements, the jury second degree assault – extreme indifference also made clear that, when [¶20] T he jury instructions for both enhanced first degree assault and

Fischer, 165 N.H. at p. 7 713 (quotation omitted). the attack de monstrate a blatant disregard for the risk to the victim’s life.” inflicts any degree of bodily injury on a victim and when the ‘circumstances’ of themselves”). Rather, “an attacker acts with ‘extreme indifference’ when he the statute nor common sense limits the relevant circumstances to the injuries “‘ circumstances’ of the crime manifest extreme indifference” and that “ne ither N.H. 416, 423 (19 p. 8 85) (holding that the statute requires proof that the the injuries resulting from the actual assaults committed.” State v. Bailey, 127 “fallacious” to assume that “evidence of extreme in difference must be limited to of human life.” (Emphasis added.) W e have previously held that it is the victim “under circumstances manifesting extreme indifference to the value 8

lung injur ies, which occurred during the first assault, and for one charge of sentence s for one charge of enhanced first degree assault either for the rib or defendant. Accordingly, the court ruled that the record supported the and whether they were the result of one or multiple blows delivered by the the jury could not have determined when or where the other injuries occurred support dividing the events of the evening into more than two assaults because assault. The court also found, however, that there was insuffici ent evidence to injuries during the first assault and caused the nose injury during the second evidence for the jury to conclude that the defendant caused the rib and/or lung initiat ed the physical altercation. T he court found that there was sufficient assault occurring when the v ictim return ed to the house and the defendant re of the altercation to the point when the victim fled the house, and the second into two separate assaults,” with the first assault occurring from the initiation victim’s testimony, the “events of the night in question can be readily divided [¶26] Applying these principles, the court ruled that, based upon the

intended purpose. (Quoting State v. Farr, 160 N.H. p. 8 803, 809 (2010).) and that the factors to consider in identifying an “act” include time, location, or “‘consists of the sum of discrete actio ns that together constitute an offense,’” number of sentences imposed. The court determined that a criminal act reconsidered whether the evidence submitted at trial supported the total rights against double jeopardy, the trial court, i n a March 202 1 order, defendant continued to argue, in part, that the four convictions violated his [¶25] However, a fter a series of post - conviction motions in which the

no double jeopardy violation. required slight but distinct differences in evidence” and, acco rdingly, there was acts.” The court found that “proof of the elements of the charged crimes finding that [the victim’s] multiple injuries were caused by multiple distinct distinct strikes to her body” and that th e evidence adduced at trial “supports a explaining that the defendant’s “assault of the victim involved innumerable [¶24] In an April 2020 order, the court denied the defendant’s motion,

multiple sentences for what amounted to a single assault. result of a single criminal act, and, therefore, the court impr operly imposed double jeopardy. The defendant argued that the sustained injuries were the to dismiss all but one of the charges against him based upon the doctrine of fractured spine and fractured nasal bone. The defendant subsequently moved rib, and two counts of second degree assault – extreme indifference for the counts of enhanced first degree assault for the collapsed lung and the fractured [¶23] In March 2019, t he trial court sentenced the defendant on two

the State. insufficient evidence to prove four separate assault convictions. We agree with cross - appeals, arguing that the trial court erred in determining that there was p. 9 9

charged in two separate indictments, were caused by separate acts. Id. 631:1, I(d), the State was required to prove that the victim’s two injuries, as (2020). We held that, to convict on two first degree assault charges under RSA under 13 years of age, not each individual injury.” Cast ine, 173 N.H. 217, 220 is “each act of knowingly or recklessly causing serious bodily injury to a person v. Castine to conclude that the unit of prosecution under RSA 631:1, I(d) (2016) another,” Lynch, 16 p. 9 9 N.H. 689, 708 (2017). We extended this holding in State RSA 631:2 - a, I(b) (2016), was “each individual act of causing bodily injury to simple assault criminalizing “[r]ecklessly caus[ing] bodily injury to another,” injury. In State v. Lynch, we held that the unit of prosecution for the form of RSA 631:2, I(c) is the act of causing either serious bodily injury or bodily determined that the proper unit of prosecution under both RSA 631:1, I(a) and [¶29] As a threshold matter, we conclude that the trial court correctly

this case is of the second variety. brackets omitted). The defendant asserts, and the State does not dispute, that State v. Ramsey, 166 N.H. 45, 51 (2014) (quotations, ellipsis, citations, and

statutory provis ion. course of conduct is fragmented into more than one violation of a single proscribed by more than one statute but that a defendant ’ s continuing cases in which the problem is not that the same course of conduct is descriptions of the same offense. Second, ther e are “unit of prosecution” statutes describe two separate offenses or are merely different so - called “double - description” cases, in which the issue is whether two Multiple punishment cases come in two varieties. First, there are the

punished twice for the same offense. Amendments to the United States Constitution protect a defendant from being 16 of the New Hampshire Constitution and the Fifth and Fourteenth aid our analysis. State v. Woodbury, 172 N.H. 358, 367 (201 p. 9 9). Part I, Article arguments first under our State Constitution and rely upon federal law only to been violated under both the State and Federal Constitutions, we consider the [¶28] W hen a defendant argues that his or her constitutional rights have

Fis cher, 165 N.H. at 715. jeopardy presents a question of constitutional law, our review is de novo. to sustain the relevant number of convictions. Because the issue of double the State argues. Then, w e mus t determine whether the evidence is sufficient defendant argues, or whether the act of assault is a singl e, dis crete action, as determine whether the act of assault can occur over a period of time, as the jeopardy provisions of the State and Federal Constitution s. First, w e must [¶27] Resolving the parties’ sufficiency arguments implicates the double

occurred during the second assault. second degree assault – extreme indifference for the injury to the nose, which p. 10 10

(quoting Ohio v. Johnson, 467 U.S. 493, 499 (1984)). ‘ multiple ’ is essentially one of legislative intent.’” Martinko, 171 N.H. at 2 45 question under the Double Jeopardy Clause whether punishmen ts are prescribe crimes and determine punishments is vested with the legislature, the v. Wilson, 169 N.H. 755, 773 (2017). “‘Because the substantive power to prosecution intended by the legislatur e.” Id. (quotation omitted); see also State provided by the Federal Constitution, “we must determine the unit of multiple punishments for the same offense, in violation of the protection See Martinko, 171 N.H. at 2 45. T o determine whether a defendant is subject to [¶32] We reach the same conclusion under the Federal Constitution.

State v. Martinko, 171 N.H. 239, 243 - 45 (2018). that occurred during a short altercation between the defendant and the victim); that there was suffici ent evidence for the jury to distinguish the three assaults jeopardy under the State Constitution. See id. at 361 - 62, 368 - 69 (concluding extreme indifference — do not violate the defendant’s protection against double — two for enhanced first degree assault and two for second degree assault – obtain each assault conviction, we conclude that the original four convictions Woodbury, 172 N.H. at 368. Given the difference in the evidence required to assaults, the defendant’s double jeopardy rig hts were not violated. See included dissimilar facts to prove that the defendant committed four separate Castine, 173 N.H. at 219 - 20. Provided that the evidence submitted at trial fractured spine — and that each injury was caused by a separate act. See fractured rib, traumatic pneumothorax of the lung, fractured nasal bone, or was required to prove the specific injury alleged in each indictment — either a assault – extreme indiffere nce. T o convict on each assault charge, the State two counts of enhanced first degree assault and two counts of second degree [¶31] As relevant to this appeal, the State charged the defendant with

in evidence. Id. at 368. whether proof of the elements of the crimes as charged will require a difference protections of our State Constitution in unit of prosecution cases, we examine To determine whether the charged offenses violate the double jeopardy bodily injury was the result of a separate and distinct act of the defendant.” present evidence sufficient for a rational jury to conclude that each charged 144 N.H. 57, 66 (1999).) T he State disagrees, arguing that it “only had to location, or intended purpose when identifying an act. (Quoting State v. Ford, that together constitute an offense,’” and that a cour t should consider time, defendant argues that a criminal act “‘consists of the sum of discrete actions [¶30] We next consider what constitutes an act of assault. The

acts. See id. fractured spine, fractured nose, and fractured rib s were caused by separate charges, the State was required to prove that the victim’s collapsed lung s, assault charges and the two second degree assault – extreme indifference Accordingly, we conclude that here, to convict on the two enhanced first degree p. 11 11

A.2d at 481 - 82. Our caselaw, however, a lready protects a defendant from such prosecution by of assault “for every blow” thrown during an assault. Dew, 864 S.E.2d at 275; s ee also Nixon, 886 c ourts also express concern that, to conclude otherwise, would allow a defendant to be convicted P.3d 78, 80 - 82 (Wash. 2014); State v. Dew, 864 S.E.2d 268, 273 - 75 (N.C. 2021). S everal of these State v. Nixon, 886 A.2d 475, 479 - 83 (Conn. App. Ct. 2005); State v. Villanueva - Gonzalez, 329 definitions of assault, as well as their relevant caselaw, in reaching this conclusion. See, e.g., jeopardy. Those courts, however, consider ed their states ’ assault statutes and common law multiple con victions arising out of one continuous assault violate his rights against double The defendant cites cases from several other jurisdictions in support of his argument that 2

prove each injury was caused by a distinct and separate act. 2 relatively short period of time is of no consequence, provided that the State can blow”). The fact that a person may inflict n umerous injuries on another in a serious bodily injuries alleged in the two indictments were caused by a single because the evidence failed “to exclude the reasonable conclusion that the 222, 225 (holding that two assault convictions violated double jeopardy in part contact with the victim on three separate occasions); cf. Castine, 173 N.H. at not violate double jeopa rdy because the defendant made unprivileged physical Woodbury, 172 N.H. at 368 (holding that three simple assault convictions did individual act of causing bodily injury to another” (emphasis added)); intended for the unit of prosecution under RSA 631:2 - a, I(b) to be each interpretation. See, e.g., Lynch, 169 N.H. at 708 (holding that “the legislature as a continuing course of conduct. Indeed, o ur caselaw support s this I(c) criminalize the distinct act of causing injury to another, rather than assault [¶34] Accordingly, we conclude that both RSA 631:1, I(a) a nd RSA 631:2,

I(c). act). The same reasoning requires the same result with respect to RSA 63 1:2, child or an incomp etent person, criminalizes a course of conduct or a single whether RSA 639:3, III (2016), which criminalizes endangering the welfare of a RSA 625: p. 11 11, VI; cf. State v. Paulsen, 143 N.H. 447, 449 - 50 (1999) (considering of any part of the body” would support a separate crime of first degree assault. permanent or protracted loss of or impairment to the health or of the function 631:1, I(a), each act that causes “any harm to the body which causes severe, “any harm to the body. . . .” RSA 625:11, VI. Applying this definition to RSA added.) Notably, “[s] erious bodily injury” is defi ned using the singular term: impairment to the health or of the function of any part of the body.” (Emphasis to the body which causes severe, permanent or protracted loss of or RSA 6 2 5:11, VI (2016) defines the term “[s] erious bodily injury” as “any harm (2016). Although the term “bodily injury” is not defined in the C riminal C ode, manifesting extreme indifference to the value of human life.” RSA 631:2, I she. . . [r]ecklessly causes bodily injury to another under circumstances provides, in pert inent part, that “[a] person is guilty of a class B felony if he or injury to another.” RSA 631:1, I (2016). The s econd degree assault statute person is guilty of a class A felony if he . . . [p]urposely causes serious bodily [¶33] The f irst d egree assault statute states, in pertinent part, that “[a] p. 12 12

App. Ct. 2024). 157 S.W.3d 608, 611 - 13 (Ky. 2005); Commonwealth v. Wooden, 226 N.E.3d 877, 880 - 83 (Mass. their criminal assault statutes, have reached a conclusion similar to ours. Se e Welborn v. Com., act. See State v. Castine, 1 73 N.H. 217, 222 (2020). Indeed, courts in other states, interpreting against the same victim, t o prove that each alleged injury was caused by a separate and distinct requiring the State, in instances where it charges a defendant with multiple counts of assault

victim’s two injuries by mea ns of more than one assault). assault or testimony from the defendant, that the defendant caused the because there was no direct evidence, specificall y eyewitness testimony to the Cf. Castine, 17 3 N.H. at 220 (applying the circumstantial evidence standard upo n the direct testimony of the defendant, victim, and the medical providers. arising from circumstances, but rather, upon a reasonable inference based the defendant caused each injury by a separate act, not upon a presumption different parts of her body. A reasonable jury could base its determination that the victim ’s lung, rib, spine, and nose when he struck her multiple times in this testimony constitute s direct evidence that the defendant caused injury to of being punched multiple times in the chest, abdomen, and face. Together, victim sustained discre te injuries to her lungs, ribs, nose, and spine as a result the evening. The medical providers who treated the victim testified that the multiple blows to different parts of the victim’s body throughout the course of Both the defendant and the victim testified that the defendant delivered victim’s lung, rib, spine, and nose injuries by means of more than one assault. [¶37] Here, there was direct evidence that the defendant caused the

the crime charged such as an eyewitness.” Id. (quotation omitted). “testimony of a person who claims to have personal knowledge of facts about Kelley, 159 N.H. at 454 (quotation omitted). Direct evidence includes the which it is offered, without the need for the factfinder to draw any inferences.” evidence “is evidence which, if accepted as true, directly proves the fact for reasonable inferences other than guil t. See Castine, 173 N.H. at 220. Direct solely circumstantial and, thus, the evidence was not required to exclude all defendant caused the victim’s injuries by committing separate acts was not [¶36] At the outset, we agree with the State that the evidence that the

isolation. Id. at 455. examine each evidentiary item in the context of all the evidence, not in State v. Kelley, 159 N.H. 449, 454 - 55 (2009). When reviewing the evidence, we favorable to the State, could have found guilt beyond a reasonable doubt. proving that no rational trier of fact, viewing the evidence in the light most challenge to the sufficiency of the evidence, the defendant bears the burden of error; therefore, our standard of review is de novo. Id. at 220. To prevail in a injuries. A challenge to the sufficiency of the evidence raises a claim of legal committed four separate and distinct ac t s that resulted in the four indicted record for the j ury to conclude, beyond a reasonable doubt, that the defendant [¶35] W e next consider whether there was sufficient evidence in the p. 13 13

not also fracture al l eight ribs. collapse both lungs, and that at least one lung was collapsed by a blow that did single act, and that at least one rib was fractured by a blow that did not also that the victim’s two collapsed lungs and eight fractured ribs were caused by a foregoing evidence, the jury could have rationally found that it was unlikely assault involved multiple blows to different parts of her bod y. B ased upon the observed, the victim testified and she reported to her medical providers that the by a single act, like an automobile accident. Rather, as we have previously however, that the victim had been subjecte d to a strong physical force caused consistent with a pedestrian “being hit by a car.” No evidence suggested, assault in which the victim was subjected to a “strong physical force” collapsed lungs testified that the victim’s injuries were consistent with an [¶41] In addition, the doctor who surgically repaired the victim’s

her again “in [her] right ribs.” evening, when she and the defendant were getting into bed, the defendant hit catc hing [her] breath.” The victim also testified that at the very end of the bre ath ing was “[v]ery d ifficult” and “[l]abored,” and she had “a hard time “[e]xcruciating pain,” “[m]ostly in the rib area and torso area,” and her The victim testified that after this punch, she went outside, where sh e was in the incision, which, according to the victim, caused h er to experience pain. incision was on the left side of her body, the defendant punched her directly on recent surgery was located. After the victim reminded the defendant that the the defendant asked which side of her body the victim’s incision from her sitting on the loveseat with her knees to her chest “trying to protect [herself],” [¶40] The victim then testified that, in a separate incident, while she was

“clearly hurt” the victim. admitted that he hit her on the right side of her body a nd that this blow punch.” Although the defendant denied giving t he victim a “liver shot,” he and couldn’t g et up for quite a while,” and th at “it was a very, very painful after receiving the “liver shot,” she “was instantly on [her] knees on the floor used by boxers to briefly incapacitate an opponent. The victim testified that be a “liver shot.” The defendant previously told the victim that a “liver shot” is by the back door in the house, the defendant hit her with what she believed to [¶39] The victim testified that while she and the defendant were standing

right and left lungs were collapsed. sustained multiple fractured ribs on both sides of her body and that both the was injured. Th e victim’s treating medical providers testified that t he victim by separate acts. Notably, the indictments did not specify which rib or lung pneumothorax of [the victim’s] lun g” — otherwise known as a collapsed lung — th e defendant caused “a fracture to [the victim’s] rib” and “traumatic [¶38] We first consider whether the evidence was sufficient to prove that p. 14 14

2006) (defining “torso” as “[t]he trunk; the body without relation to head o r extremities”). The “torso” includes the back of the body. See Stedman’s Medical Dictionary 2002 (28th ed. 3

response to the jury’s question. Additionally, w e conclude that the trial court err when it provided a definition of “cruelty” from Black’s Law Dictionary in [¶45] For the foregoing reasons, we conclude that the trial court did not

resulting in injur ies to the victim’s lung, rib, spine, and nos e. reasonable doubt that the defendant was guilty of four separate assaults conclude that it was sufficient for a rational trier of fact to find beyond a Accordingly, v iewing the evidence in the light most favorable to the State, we the blows that caused the fractured spine, fractured ribs, and collapsed lung s. caused the nasal fracture, and that this strike was separate and distinct from victim’s nose — whe ther it occurred before or after the victim went outside — this evidence, t he jury could have rationally concluded that the strike to the the nose, though he maintains that he hit her before she ran outside. From “instantly started bleeding.” The defendant admitted to hitting the victim in punch gave her a “lot of pain,” that she was “[s]eeing stars,” and that s he this time, the defendant punched her in the nose. The victim testified that this outside, she paused on the deck by the back door to catch her breath and, at act. The victim testified that when she returned to the house after running that the defendant caused a fracture to the victim’s nasal bone by a separate [¶44] Finally, we consider whether the ev idence was sufficient to prove

caused the victim’s rib s to fracture and lung s to collapse. to her spine, and that this strike was separate and distinct from the blows that concluded that the defendant struck the victim’s back, which caus ed a fracture Accordingly, based upon the foregoing evidence, the jury could have rationally ribs when she and the defendant were in bed, she never used the word “torso.” 3 described t he “liver shot,” the punch to her incision, and the punch to her right “torso” as separate and distinct from her “ribs.” Moreover, when the victim and “rib area” in addition to the word “torso” implies that she considered the “[m]ostly in the rib area and torso area.” The victim’s use of the word s “ribs” [and] legs,” and that later, when she went outside, she felt “[e]xcruciating pain” defendant hit her “[p]retty much everywhere,” but mostly on her “torso, ribs, [¶43] The victim testified that at the beginning of the attack, th e

bruises o n her chest and back. back . . . and abdomen.” Another medical provider testified that the victim had her that she had been “punched all over . . . punched in her head, face, chest, s pine fracture. One of these same provider s also testified that the victim told th e victim’s treating medical providers testified that the victim sustained a the defendant caused a fracture to the victim’s spine by a separate act. Two of [¶42] We next consider whether the evidence was sufficient to prove that p. 15 15

further review of the case. oral argument but subsequently disqualified herself and did not participate in BASSETT and COUNTWAY, JJ., concurred; HANTZ MARCONI, J., sat for

sentences. and remand for entry of the four convictions and reinstatement of the original convictions. Accordingly, we reverse the trial court’s unit of prosecution ruling 2021 order that the evidence was insufficient to prove four separate assault [¶46] However, we disagree with the trial court’s conclusion in its March

grounds. extreme indifference conviction. Accordingly, we affirm on both of these enhanced first degree assault conviction and the second degree assault – did not err when it concluded that the evidence was sufficient to sustain the