2024 N.H. 22, State v. Collins

brief and orally, for the defendant. Pamela E. Phelan, senior assistant appellate defender, of Concord, on the

and orally), for the State. general (Elizabeth C. Woodcock, senior assistant attorney general, on the brie f John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Collins, 2024 N.H. 2 2 Case No. 2022 - 0736 Rockingham

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

followed him from the building. According to the head of security, he followed the defendant walked away and the head of security and another employee [¶5] Once the acquaintance returned the defendant’s debit card to him,

from [his] face,” and began “escalating the . . . situation.” that, while he was waiting, the head of security approached him, was “inches agreed to retriev e the defendant’s belongings for him. The defendant testified explained that he spoke with an acquaintance outside the nightclub who debit card but could return the following day. However, the defendant that, upon returning to the nightclub, he was told that he could not retrieve his head of security that “it’d only take one shot.” Rather, the defen dant testified police. T he defendant denied revealing the firearm at that time or telling the one shot.” The head of security then instructed another employee to call the firearm, moved it up and down, looked back at him, and said, “it’d only take his waistband. The head of security testified that the defendant grabbed the care? I don’t -- I don’t f***ing care,” and by revealing the firearm tucked into allowed to reenter, to which the defendant responded by saying, “[Y] ou think I defendant returned to the nightclub, he told the defendant that he was not subsequent events differed. According to the head of security, when the [¶4] The testimony of the defendant and the head of security regarding

search for his debit card and jacket. then decided to retrieve a firearm from his car and return to the nightclub to realized that he had left his debit card and jacket behind at the nightclub. He defendant walked ba ck to his car. Once he returned to his car, the defendant defendant a drink if he returned to the nightclub another night, and the was upset and “became enraged.” The head of security offered to buy the during this interaction, but the head of security testified that the defendant reenter the nightclub that night. The defendant claimed that he wa s “cordial” The head of security spoke with the defendant and explained that he could not responded to an “altercation” in front of the building involving the defendant. [¶3] Shortly thereafter, the head of security and another employee

leave the nightclub and escorted him to the building’s exit. defendant’s behavior, the nightclub’s head of security told the defendant to have a drink on the dance floor. L ater, a fter receiving complaints regarding the in Portsmouth with his coworkers. The defendant was told that he could not evening of October p. 2 29, 2021, the defendant went to a restaurant and nightclub [¶2] At trial, the following evidence was presented to the jury. On the

to instruct the jury on self - defense. We affirm. threatening with a deadly weapon, arguing that the trial court erred in refusing RSA 644: p. 2 2 (2016). On appeal, he challenges only his conviction for criminal (Supp. 202 p. 3 3). He was also convicted of misdemeanor disorderly conduct. See against a law enforcement officer, see RSA 631:4, I(d) (2016); RSA 651:6, I(g) 3

self - defense. As a preliminary matter, the parties disagree as to the proper denied his request to instruct the jury on the display of a firearm as a means of [¶9] On appeal, the defendant argues that the trial court erred when it

This appeal followed. defendant of, as relevant here, criminal threatening with a deadly weapon. than just that he felt threatened.” The jury subsequently convicted the such other person.” The court reasoned that “t here has to be something more believed there was going to be an imminent use of unlawful, nondeadly force by concluded that “what was missing is evidence that [the defendant] reasonably debit card and jacket. Regarding the self - defense instruction, the trial c ourt unlawfully held his property by preventing him from entering to retrieve his request, rejecting the defendant’s argument that the nightclub employees instruction on self - defense and defense of p roperty. The court denied the the trial court heard arguments on the defendant’s request for a jury the defendant, and several other witnesses testified. At the close of evidence, [¶8] At trial, the head of security and another employee of the nightclub,

would be protecting himself from harm and deescalating the situation.” that he believed that, “by informing those present that he had a gun[,] he be necessary for purposes of defending himself and his personal property” and ‘brandished’ the gun, he did so only to the extent that he r easonably believed to property. In the notice, the defendant argued that “[t]o the extent that [he] stating that he intended to rely on the doctrines of self - defense and defense of [¶7] Prior to trial, the defendant filed a notice of defense of justification,

would only take one shot.’” handgun and saying to [the head of security] ‘You don’t even know,’ and/or ‘It contact” by “displaying a handgun and/or placing his hand on a displayed [the nightclub’s head of security] in fear of imminen t bodily injury or physical indictment alleged, inter alia, that the defendant “placed or attempted to place relevant here, one count of criminal threatening with a deadly weapon. The [¶6] The defendant w as subsequently arrested and charged with, as

defendant, and he realized that he was “someone they were looking for.” denied putting his hand on the firearm. Soon after, the police intercepted the two employees “to let [them] know that they should stop following,” but he into his waistband. The defendant testified that he revealed the fi rearm to the was acting within [his] rights,” lifted up his shirt to reveal the firearm tucked ahead of the employees, the defendant, who explained that he “believed [he] following him were within approximately ten feet. While walking up the street approximately one block. The defendant testified that the two employees that he followed the defendant on the opposite side of the street for point out the d efendant to the police. The other nightclub employee testified the defendant from “a decent distance,” but closely enough so that he could p. 4 4

and saying to [the head of security] ‘You don’t even know,’ and/or ‘It would a handgun and/or placing his hand on a displayed handgun in his waistband of security] in fear of imminent bodily injury or physical contact” by “displaying alleged that the defendant “placed or attempted to place [the nightclub’s head [¶13] However, the criminal threatening indictment challenged on appeal

refusal to instruct the jury on sel f - defense constitutes reversible error. matter for the jury, not the trial court, to decide, and therefore the trial court’s inconsistencies or contradictions about the strength of the evidence are a threaten ed him by following him on the street. He contends that any Specifically, he asserts that there was evidence that the two employees employees posed an imminent threat of the use of non - deadly force to him. that there was “some evidence” that he reasonably believed the nightclub [¶12] The defendant argues that the trial cou rt erred in failing to find

support the defense. State v. Vassar, 15 p. 4 4 N.H. 370, 374 (2006). RSA 627:4, I. A belief that is unreasonable, even though honest, will not of such force which he reasonably believes to be necessary for such purpose.” risk of causing death or serious bodily injury”). The person “may use a degree commits with the purpose of causing or which he knows to create a substantial (2016) (defining “[d]eadly force” as “any assault or confinement which the actor constitute non - deadly force.” RSA 627:9, IV (2016); see also RSA 6 27:9, II constitute deadly force. The act of producing or displaying a weapon shall deadly force” is defined as “any assault or confinement which does not the imminent use of unlawful, non - deadly force by such other person.” “Non person in order to defend himself . . . from what he reasonably believes to be provides that “[a] person is justified in using non - deadly force upon another [¶11] Subject to exceptions not applicable in this case, RSA 627:4, I,

N.H. at 651 (quotation omitted). “some evidence” to support a rational finding in favor of it. Woodburn, 175 requested jury instruction on a specific defense such as sel f - defense if there is reasonable doubt. Id. Therefore, a trial court must grant a defendant’s becomes an element of the charged offense that the State must prove beyond a When evidence of self - defen se is admitted, conduct negating the defense [¶10] Self - defense is a pure defense under New Hampshire law. Id. at 8.

standard. review in this case because the defendant’s challenge fails under either ex ercise of discretion.”). However, we need not decide the proper standard of the trial court’s decision not to give a jury instruction for an unsustainable discretion standard. See State v. Cavanaugh, 17 p. 4 4 N.H. 1, 7 (2020) (“We review novo. The State asserts that we should apply our unsustainable exercise of 64 p. 5 5, 651 (2023), argues that we should review the trial court’s decision de standard of review. The defendant, relying on State v. Woodburn, 175 N.H. 5

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

the defendant’s theory of the case. we conclude that the trial court did not err by refusing to instruct the jury on entitled to a jury instruction on self - defense under these circumstances, and followed by two employees. Pursuant to our precedents, the defendant was not displayed the firearm only when he walked away from the nightclub and was testimony of the head of security and to believe instead his testimony that he the State. I d. In other words, the defendant asked the jury to disbelieve the simply presents evidence of a different factual scenario than that presented by defendant is not entitled to a jury instruction on a proffered defense when he 146, 1 p. 5 55 - 56 (2013). Here, the defendant offer ed no such admission. A defendant admit the substance of the allegation. State v. No ucas, 165 N.H. away from the confrontation. A defense of justification requires that the with the employees, “wasn’t trying to escalate anything,” and simply walked conduct alleged in the indictment. Instead, he maintains that he was cordial [¶14] More importantly, the defendant denied engaging in the specific

of non - deadly force at that time. to retrieve his property was reasonably necessary to counter the imminent use the firearm when he was at the door of the nightclub attempting to gain reentry relevant inquiry is whether the defendant reasonably believed that displaying security at the nightclub’s entrance and not at any point thereafter. Thus, the allege d that the defendant committed the crime when he confronted the head of only take one shot, ’ or words to that effect.” Accordingly, the indictment