2025 N.H. 32, State v. Harris

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

for the State. general (A u driana Mekula, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Harris, 2025 N.H. 3 2 Case No. 2023 - 0550 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

any argument pertaining to that conviction. See State v. Leroux, 175 N.H. p. 2 204, 210 (2022). The defendant’s brief does not address h is reckless conduct conviction; therefore, he has waived 1

after the victim approached the defendant’s vehicle. At trial, Morales testified the sound of the encounter, the gunshot occurred at 3: p. 2 22:25, just two seconds the head, causing his death. Based upon s urveillance footage that captured vehicle. In response, the defendant fired a single shot that struck the victim in was aggravated.” Two witnesses observed the victim spit into the defendant’s making “hand gestures” when he approached the defendant’s window, “as if he defendant’s SUV and cock his arm back, and another bystander saw the victim witnessed the victim unsuccessfully attempt to open the door to the observed, but could not hear, what looked like a ver bal argument. Another physical.” Accounts varied as to what happened next. One bystander upset”; another witness testified, “[y] ou could tell it was . . . going to get two vehicles [a t] 3:22: 23.” One bystander observed that the victim was “clearly vehicle. S urveillance footage showed the victim “crossing the path between the truck and “aggressively” approached the driver’s side window of the defendant’s [¶3] While the parties were stopped at the red light, the victim exited the

brakes directly behind the defendant. defendant’s SUV came to a stop light where the victim slammed the truck’s car to ward the truck’s windshield after hearing the truck’s horn. The Witnesses testified that they observed an object thrown from the defendant’s 18 - wheeler truck. The victim responded by “laying on the horn” of his truck. South Willow Street from an on - r amp, he sped up to get in front of the victim’s Morales, in the front passenger seat. As the defendant began to merge onto driving his SUV in heavy traffic in Manchester with his fiancé e, Kathius k a following facts. Around 3: p. 2 20 p.m. on October 29, 2022, the defendant was [¶2] The jury could have found, or the record otherwise supports, the

affirm. 1 we reverse t he defendant’s conviction of falsifying evidence, but otherwise reasonable doubt that the defendant falsified physical evidence. Accordingly, establish that the State introduced sufficient evidence to prove beyon d a applicable to self - defense. However, we also conclude that the record fails to the defendant’s recorded phone call and instructing the jury on the law conclude that the trial court sustainably exercised its discretion by admitting dismiss the falsifying physical evidence charge for insufficient evidence. We defendant’s use of deadly force; and ( p. 3 3) denying the defendant’s motion to and his mother; ( p. 2 2) instructing the jury on the reasonable necessity of the by: (1) admitting into evidence a recorded phone call between the defendant defendant argues that the Superior C ourt (Delker, J.) a nd (Nicolosi, J.) erred one count of reckless conduct, see RSA 631: 3 (Supp. 2024). On appeal, the 3

life taken.. .. Respect gets you further in life. . . .. Your life was took cuz you disrespect. Disrespect get s your on directly in my face, in my mouth, towards Kathy. That’s assault seconds that they described.... That’s why I got spit on. I got spit I didn’t get to think enough in those seconds . . . those three

his mother: as a full exhibit at trial and played to the jury. On the call, the defendant told defendant was incarcerated pending trial. An excerpt of the call was admitted the defendant and his mother that occurred on December 2, while the shooting. The detective later obtained a recording of a telephone call between and sweatshirt believed to have been worn by the defendant on the day of the the kitchen area of her apartment, where he found and seized a laundry basket [¶7] O n November 7, an MPD detective spoke to Savastano and searched

October p. 3 30. after the shooting. The defendant was arrested at approximately 4:13 a.m. on Morales testified that she did not see the defendant with the gun at any time following day. MPD never recovered the handgun used in the shooting and did they find the gun when an MPD officer searched the defendant’s SUV the However, MPD did not locate the handgun at the defendant’s apartment. Nor was subsequently used to trace the ownership of the firearm to the d efendant. Winchester Luger handgun, including a gun case bearing a serial number that defendant ’s apartment. There, they found evidence relating to a 9 mm obtained and executed a search warrant authorizing the search of the were still at Savastano’s apartment, the Manchester P olice Department (MPD) [¶6] Within an hour of the shooting, and while the defendant and Morales

defendant’s friends drove them to their apartment. 4:54 p.m. and enter ing a different vehicle. According to Moral e s, one of the the same camera showed the defendant and Moral e s exiting the building at toward Savastano’s apartment building at p. 3 3:30 p.m. Surveillance footage from defendant, carrying a laundry basket, and Morales exit the SUV and walk rented by their friend, Veronica Savastano. Surveillance footage s howed the west side of Manchester, where he parked t he SUV outside of an apartment [¶5] Morales testified that the defendant drove fast and erratically to the

lane. speed away from the scene through a gas station and in the opposite travel license plate number, testified that the defendant drove erratically and at high motorist, who followed the defendant in an effort to obtain the defendant’s ahead of him and driving through a red light at a high rate of speed. Another [¶4] After firing the shot, the defendant sped off, steering around two cars

the defendant’s face. that the defendant told her that he shot the victim because the victim spat on p. 4 4

time, under different circumstances.” statements to the police. That is part of a different conversation, at a different “playing th is call for the jury will not open the door to the defendant’s call is highly probative on the issue of self - defense,” and concluded that The court al so observed that “[j]ail calls are routinely admitted at trial and this redacted and the State would identify the conversation as a “recorded call.” value, because any references to the defendant’s incarceration would be that the prejudicial effect of the call did not substantially outweigh its probative [¶10] The T rial C ourt (Delker, J.) denied the defendant’s motion, finding

not require the admission of the interview. phone call with his mother were “unrelated,” and the admission of the call did maintained that the defendant’s interview with the police and his December 2 out of fear and to protect himself and his family. The State, however, call because, in the interview, the defendant explained that he sh ot the victim deemed admissible, in order to cure the misleading impression made by the jail the court to admit the defendant’s police interview, if the phone call was defendant was “just an angry and violent person.” The defendant also asked infer that the defendant’s angry tone was directed at the victim or that the misleading and unfairly prejudicial because, without context, the jury could made in their pleadings. The defendant also argued that the call was [¶9] At a pre - trial motions hearing, the parties reiterated the arguments

mental state at the time of the shooting. probative, given the defendant’s self - defense claim, which put at issue his incarceration. The State also argued that the statements were highly because the State would not admit any evidence referencing the defenda n t’s arguing that the defendant’s statements would not unfairly prejudice him of time between the deadly encounter and the phone call. The State objected, relevant “to his mental state at the time of the alleged crime” given the passage during the December 2 call lacked probative value because they were not make phone calls. The defendant also claimed that the statements made and that “he was being victimized by another inmate” who had stolen his PIN to would require the defense to explain that he received an adverse ruling on bail” unfairly prejudice him because explaining “his dysregulated and angry state defendant maintained that an effort to contextualiz e his statements would dangerous and a criminal rather than innocent until proven guilty.” The could lead the jury to infer that he was incarcerated and “think he is Hampshire Rule of Evidence p. 4 403, because the fact that the call was recorded defendant argued that the call was unfairly prejudicial pursuant to New prohibit the State from introducing this call into evidence at trial. The [¶8] Prior to trial, the defendant filed a motion in limine seeking to

II. Pre - T rial Litigation on the Defendant’s Recorded Call p. 5 5

d efendant. must also prove that an alternative use of lesser force was available to the fac e ts of self - defense,” it was not necessary to instruct the jury that the State evidence “in the context of not just the self - defense itself but all these other had the burden of disproving self - defense and that they must weigh all of the argued that, because the jury instructions would inform the jury that the State jury to speculate about what other force could have been used.” The State available to the defendant, and contended that it would be improper to “ask the State has the burden of proving that a lesser amount of alternative force was defendant argued, however, that the jury also needed to be instructed t hat the necessity of making decisions in less - than - ideal circumstances.” T he consider the often - fast - moving nature of dangerous situations and the should consider all of the circumstances surrounding the incident. You may language was appropriate: “In considering what is objectively reasonable, you of trial. The y agreed that the trial court’s proposal to include the following [¶13] The parties again discussed the jury instruction on the fourth day

she has a right to be. permits the use of any degree of deadly force when the actor is anywhere he or concluded its argument by stating that the legislature’s 2011 amendment C ou rt addressed the issue of necessity, it did so in dicta. The defense to be,” RSA 627:4, III(a) (2016), and argued that, to the extent the Etienne removing the duty to retreat when the actor is “anywhere he or she has a right decided before the legislature amended the self - defense statute in 201 1 by force that was reasonably necessary. The defendant noted that Etienne was not require a person using deadly force in self - defense to use only the degree of proposed addition to the instruction, arguing that the self - defense statute does with the T rial C ourt (Nicolosi, J.). The defendant objected to the State’s [¶12] On the third day of trial, the parties discussed jury instructions

belief. as long as, at the time, there were reasonable grounds for his of force which he believed was necessary under the circumstances a reasonable amount of force. The defendant can use th e amount person is not permitted to use excessive force in self - defense, only that he used was necessary for self - defense or defense of others. A The defendant must reasonably believe that the amount of force

defense instruction: 163 N.H. p. 5 57, 70 (2011), sought to add the following language to the self relevant to this appeal, the State, relying upon our decision in State v. Etienne, [¶11] Prior to trial, the parties filed proposed jury instructions. As

III. Jury Instruction Litigation p. 6 6

court’s rulings are clearly untenable or unreasonable to the prejudice of the 2025 N.H. 5, ¶35. Pursuant to this standard, we assess whether the trial unsustainable exercise of discretion. State v. Warren, 177 N.H. __, __ (2025), [¶18] We review rulings on the admissibility of evidence for an

turn. door to the defendant’s statement to the police. We address each argument in erred by not ruling that the admission of the recorded phone call open ed the risk of unfair prejudice. He also argues, in the alternative, that the trial court because the probative value of the evidence was substantially outweighed by its T he defendant maintains that the trial court ’s Rule 403 ruling was erroneous court erred by admitting into evidence his recorded phone call with his mother. [¶17] We begin by addressing the defendant’s argument that the trial

a. Admission of the Recorded Phone Call

all four charges. This appeal followed. [¶1 p. 6 6] After the defendant presented his case, the jury convicted him on

court denied the motion. that the defendant prevented the police from recovering the firearm. The trial also argued that it did not need to prove the location of the evidence if it proved scene at high speed and to “hide the gun from that investigation.” The State inability of the police to find the firearm and the defendant’s decision to flee the admitted to prove that the defendant falsified physical evidence based upon the and Savastano’s apartments. The State argued that suffi cient evidence was police did not find the firearm despite searching the defendant’s car and his in the shooting because the only evidence presented to the jury was that the insufficient evidence that he conc ealed, destroyed or removed the firearm used As relevant to this appeal, the defendant argued that the State presented State rested its case - in - chief, the defendant moved to dismiss all four charges. [¶15] The defendant stood trial over five days in July 2023. After the

and that the defendant had the ability to use less force at the time he acted.” burden of proving “that the amount of force used was not reasonably necessary declined to include the defendant’s proposed language that the State had the in assessing whether the force used was reasonably necessary.” The court find the D efendant was not required to retreat, is not a f actor you can consider proposed by the defendant that “[t]he availability of a route of retreat, if you were reasonable grounds for his belief.” The court also added language believed was necessary under the circumstance s, as long as, at the time, there the following language: “T he D efendant can use the amount of force which he the reasonable necessity of the defendant’s use of deadly force, but included [¶14] The court agreed with the State and decided to instruct the jury on p. 7 7

certainly not diminished entirely”). charged conduct may have been reduced “to some degree” but “its force had weight of a prior bad act that occurred more than three years prior to the this evidence. Cf. State v. Allen, 128 N.H. 390, 39 p. 7 7 (1986) (finding that the the shooting and the phone call significantly diminished the probative value of 226, 232 (2000). Nor are we persuaded that the passage of 34 days between raised by the defendant’s self - defense claim. See State v. Dukette, 145 N.H. probative of his state of mind, a contested issue and a fact of consequence the content of the defendant’s conversation with his mother was highly house of corrections limited any prejudice to the defendant’s case. In contrast, at trial” and the State’s redaction of portions of the call that referenced the [¶21] Here, a s the trial court observed, “[j]ail calls are routinely admitted

worth.” Id. at 396 (citations and quotations omitted). the trial court’s determination in balancing prejudicial impact and probative prejudice. Id. at 395 - 96. For this reason, we “afford considerable deference to of evidence and to determine what steps, if any, are necessary to remedy any omitted). The trial court is in the best position to weigh the prejudicial impact than the established propositions in the case.” Id. (citations and quotations other instincts that “may cause a jury to base its decision on something other sympathies, arouse its sense of horror, provoke its instinct to punish” or trigger is unfairly prejudicial if its primary purpose or effect is to “appeal to a jury’s Paler m o, 168 N.H. 38 p. 7 7, 395 (2015) (citation and quotations omitted). Evidence some improper” ground, “commonly one that is emotionally charged.” State v. based upon “an undue tendency to induce a decision against the defendant on [¶20] Generally, the prejudice required to predicate reversible error is

found guilty of the charges” against him. We disagree. incarcerated before trial based upon a decision by a judge “before he had been risk of unfair prejudice” in t hat the jury would infer that he had been “[t]he statement ’ s limited probative value was substantially outweighed by its the theft of his PIN ─ reduced its probative value. According to the defendant, the context of the statement ─ his frustration with a recent bail decision and shooting] that occurred in a span of seconds.” The defendant also posits that “diminished the reliability of a statement about mental processes [during the because th e phone call occurred more than a month after the shooting, which mother was relevant. Yet, he argues its probative value was “relatively low” [¶19] On appeal, the defendant concedes that the phone call to his

4 p. 7 72 (2020). review the trial court’s interpretation de novo. State v. M unroe, 173 N.H. 469, court’s interpretation of court rules is not entitled to deference; rather, we decision made. State v. Lambert, 147 N.H. 295, 296 (2001). However, a trial record establishes an objective basis sufficient to sustain the discretionary constitutes a proper exercise of judicial discretion, we consider whether the defendant’s case. Id. When determining whether an evidentiary ruling p. 8 8

N.H. at 70. We will not reverse a conviction “unless the jury charge fails to clearly untenable or unreasonable to the prejudice of his case.” Etienne, 163 sustainable, the defendant must demonstrate that the court’s ruling was Evans, 150 N.H. 416, 420 (2003). “To show that the trial court’s decision is not unsustainable exercise of discretion. Etienne, 163 N.H. at 70; see also State v. sound discretion of the trial court, and, as such, are reviewed for an [¶24] The scope and wording of jury instructions generally fall within the

should not rely upon in reviewing this issue in his appeal. the use of this concept in self - defense instructions were merely dicta that we necessary. The defendant also avers that our statements in Etienne regarding employing deadly force believe that the use of such force is reasonably the law of self - defense because RSA 627:4, II does not require that a party The defendant maintains that this instruction did not fairly instruct the jury on

his belief. circumstance s as long as, at the time, there were reasonable grounds for amount of force which he believed was necessary under the defense, only a reasonable amount of force. The Defendant can use the or another. A person is not permitted to use excessive force in self amount of deadly force that he used was necessary for defense of himself initial aggressor, he nonetheless must reasonably believe that the not required to retreat because he was in a lawful place and not the Finally, even if the Defendant was entitled to use deadly force and was

instruction: the trial court erred by including the following language in its self - defense court’s jury instruction on self - defense. On appeal, the defendant argues that [¶23] Next, we address the defendant’s arguments regarding the trial

b. Self - Defense Jury Instruction

mandate the admission of the defendant’ s police interview. discretion in finding that the admission of the recorded phone call did not Consequently, we conclude that the trial court sustainably exercised its he shot the victim because the victim spat on the defendant’s face. consistent with his statement to Morales immediately after the shooting: that advantage for the State. Rather, the defendant’s statements to his mother were that the admission of the defendant’s recorded phone call created a misleading advantage.” State v. Roman, 176 N.H. 367, 371 (2023). W e cannot conclude suppressed or otherwise inadmissible evidence to counter the misleading that party, and the opposing party is then permitted to introduce previously party introduces admissible evidence that creates a misleading advantage for the specific contradiction doctrine. This doctrine applies to situation s where “a recorded phone call opened the door to his statements to the police pursuant to [¶22] We also reject the defendant’s argument that the admission of the p. 9 9

necessity, but the legislature had done so without vitiating our interpretation of concluded that the deadly force provision implicitly required reasonable such as Vassar and State v. Warren, 147 N.H. 567 (2002), in which we the legislature had twice amended RSA 627:4 in the wake of p rior decisions, (quoting RSA 627:4, II(a) (emphasis added)). In Etienne, we also observed that stave off the threat of ‘unlawful, deadly force. ’” Vass ar, 154 N.H. at 374 testimony that the defendant reasonably believed deadly force was necessary to a self - defense instruction because the “jury could have concluded from the Etienne, 163 N.H. at 75. In Vassar, we held that the defendant was entitled to implicitly requiring reasonable necessity to justify the use of deadly force. Vassar, 154 N.H. 370 (2006), supported our construction of RSA 627:4, II as [¶27] We further reasoned in Etienne that our prior decision in State v.

to abrogate the common law unless the statute clearly expresses that intent.”). N.H. 7 p. 9 94, 803 (200 5) (“We have often stated that we will not interpr et a statute justify the use of deadly force.” Id. at 73 - 74; see State v. Element i s Chem., 152 law, given that our common law “has long required reasonable necessity to interpretation reflected the least, rather than the most, change to the common found the State’s interpretation more persuasive, in part because that supported by various canons of statutory interpretation, but ultimately, we Id. at 7 3. We also acknowledged that the competing interpretations were

statute. for the use of deadly force in the specific circumstances set forth in the deadly force provision, implies that reasonable necessity is not required reasonable necessity in the non - deadly force provision, and not in the for the defensive use of deadly force or the explicit requirement of indicate that reasonable necessity under the circumstances is required E ither the restrictions placed upon the use of deadly force implicitly

at least two reasonable interpretations: [¶26] The Etienne C ourt acknowledged that the statute is susceptible of

suffice to prevent harm from the attacker’s use of deadly force.’” I d. at 71. deadly force be necessary, in the sense that no lesser, non - deadly force would ‘nothing in the language of RSA 627:4, II . . . requires that the actor’s use of that the defendant raises here: that the “instruction was erroneous because force that is in dispute here. See id. There, Etienne raised the same argument in part, the same language explaining the reasonable necessity of using deadly [¶25] In Etienne, we reviewed a self - defense instruction which contained,

N.H. at 70 (quotations and citations omitted). understood them, and in light of all the evidence in the case.” Etienne, 163 disputed instructions in their entirety, as a reasonable juror would have reviewing jury instructions, “we evaluate allegations of error by interpreting the cover fairly the legal issues in the case.” Evans, 150 N.H. at 420. When p. 10 10

dicta. 163 N.H. 57, 70 (2011), with respect to the trial court’s self - defense jury instruction, constitute s In light of our conclusion, we have no occasion to decide whether our ruling in State v. Etienne, 2

the State had to prove beyond a reasonable doubt that the defendant: (1) [¶31] As the falsifying physical evidence count was charged in this case,

evidence doctrine, as expressed in jury instructions). i d.; see also State v. King, 168 N.H. 340, 342 (2015) (defining circumstantial must exclude all reasonable conclusions other than the defendant’s guilt. See evidence of an element is solely circumstantial, the circumstantial evidence evidence was insufficient to prove his guilt. Id. However, when, as here, and not in isolation.” Id. The defendant bears the burden of proving that the omitted.). “We examine each item of evidence in the context of the en tire case, drawn therefrom, in the light most favorable to the State.” Id. (citation reasonable doubt, considering the evidence, and all reasonable inferences determine whether any rational trier of fact could have found guilt beyond a considering such challenges, we objectively review the entire record t o which we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). “When [¶30] A challenge to the sufficiency of evidence raises a question of law

conclusions consistent with innocence. We agree with the defendant. circumstantial evidence was presented at trial that excluded all other ration al where and when they looked for it. The State counters that sufficient established only that the police failed to find the firearm used in the shooting falsified physical evidenc e. The defendant maintains that the State’s evidence presented insufficient evidence to prove beyond a reasonable doubt that he [¶29] Finally, we address the defendant’s argument that the State

Evidence Conviction c. Sufficiency of Evidence Support ing the Falsifying Physical

self - defense instruction. 2 its discretion by including the reasonable necessity of using deadly force in its 323 (2009). Accordingly, we conclude that the trial court sustainably exercised would have subsequently clarified the text. See State v. Moran, 158 N.H. 318, interpretation of the statute had misconstrued its language, the legislature 627:4, III; s ee also Etienne, 163 N.H. at 7 6. Presumably, if our long - standing retreat when the actor is anywhere he or she has the right to be. See RSA necessary, despite the 2011 amendment of RSA 627:4 that removed the duty to defensive use of deadly force requires that such force must be reasonably not amended RSA 627:4, II to exclude the common law requirement that a [¶28] In the thirteen years since we decided Etienne, the legislature has

greater force today. the statute. See Etienne, 163 N.H. at 76. That proposition applies with even p. 11 11

defendant regarding the location of the firearm. Nine days after the shooting, State did not admit any pre - arrest or post - arrest stateme nts made by the The defendant was arrested at approximately 4:13 a.m. on October 30, but the apartment building. A search of the SUV the following day yielded no firearm. on October 29, a n MPD officer located the defendant’s SUV near Savastano’s did not attempt to search the defendant’s apartment thereafter. At 9:42 p.m. or so of the incident,” or about 4: 3 0 p.m., without locating the firearm. MPD [¶34] A n MPD officer searched the defendant’s apartment “within an hour

for an hour or two before returning to Savastano’s apartment. drove them in another car to their apartment. They stayed in the apartment appear ed on the sidewalk outside of the apartment building before a friend approximately 4: 54 p.m. when, according to video surveillance footage, they basket. The defendant and Morales stayed at Savastano’s apartment until apartment building with the defendant carrying what appeared to be a laundry surveillance captured the defendant and Morales walking towards Sa vastano’s Manchester where he parked his SUV at approximately 3:30 p.m. Video 3:30 p.m. on October 29. Thereafter, the defendant drove to the west side of undisputed evidence demonstrates that the shooting occurred shortly before all other rational conclusions consistent with the defendant’s innocence. The falsifying evidence charge, the State’s circumstantial evidence failed to exclude [¶33] Our review of the record establishes that, with respect to the

circumstantial. on at least one element of the falsifying physical evidence charge was found prior to trial.” However, as the State concedes in its brief, its evidence hours following the shooting, and successfully did so, as the gun had not been he tried to conceal himself, his SUV, and his clothes from the police in the could reasonably infer that the defendant concealed the gun in the same way Savastano’s apartment. According to the State, from this evidence “the jury drive him to his apartment after the defendant abandoned his SUV near drove to Savastano’s apartment where he changed clothes, and had a friend scene of the shooting at high speeds, did not attempt to contact the police, twelve hours between the shooting and his arrest established that he fled the [¶32] The State argues that evidence of the defendant’s conduct in the

purposeful mental state. investigation.” The court also gave the standard jury instruction defining the three, he acted with the purpose to impair its [verity] or availability in such believing that an investigation was pending or about to be i nstituted; and Defendant did destroy, conceal or remove physical evidence; two, he did so instructed the jury on the three elements of falsifying evidence: “one, the proceeding or investigation.” RSA 641:6, I. The trial court accordingly shooting; (3) with the “purpose to impair its verity or availability in such instituted; (2) destroyed, concealed or removed the firearm used in the believed that an investigation into the shooting of a firearm was about to be p. 12 12

M AC DONALD, C.J., and COUNTWAY, J., concurred.

sentence thereon. insufficient to support that conviction as a matter of law, and we vacate his physical evidence conviction because the State’s circumstantial evidence was deadly force instruction. However, we reverse the defendant’s falsifying decision to include the reasonable necessity language as part of the use of admitting the defendant’s recorded phone call. We also uphold the trial court’s [¶36] In sum, we find no error in the trial court’s evidentiary ruling

beyond a reasonable doubt that the defendant falsified physical evidence. conclude that the State’s circumstanti al evidence was insufficient to prove inferences drawn therefrom in the light most favorable to the State, we police searched it. A fter considering all of the evidence and the reasonable gun in his apartment after returning there” before his arrest and after the evidence is fully consistent with the proposition that [the defendant] left the State’s circumstantial evidence. For example, as the defendant observes, “[t]he conclusion consistent with the defendant’s innocence w as not excluded by the [¶35] Based upon this evidence, we conclude that at least one rational

Savastano’s apartment. could not recall the defendant bringing anything into or leaving anything at observe the firearm in the defendant ’s possession after t he shooting and she defendant kept the firearm in the center console of his vehicle. She did not Similarly, as to the location of the firearm, Morales testified only that the Savastano had any information or was questioned about the firearm. other areas of Savastano’s apartment and the record does not reveal whether found the laundry basket and some clothing. The detective did not search any a n MPD detective searched the kitchen area of Savastano’s apartment where he