2025 N.H. 12, State v. Brooks

brief and orally, for the defendant. Thomas Barnard, deputy chief appellate defender, of Concord, on the

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

Citation: State v. Brooks, 202 5 N.H. 12 Case No. 2023 - 0085 Coos

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

See RSA 6 p. 2 27:6, II(a) (2016) (amended 2022). minor,” and for the purposes of this appeal we refer to the defendant as a substitute educator. the State conceded that the defendant was a person “entrusted with the care or supervision of a substitute teacher rather than a substitute paraeducator. We need not resolve this issue because There is disagreement regarding whether the defendant can properly be characterized as a 1

behavior in p. 2 2022. camera, and disclosed one incident report regarding the complainant’s granted the defendant’s motion s to compel records, reviewed the records in produce the complainant’s school records for in camera review. The trial court reasonableness of the defendant’s use of force and to compel the State to exclude opinion testimony from school or law enforcement personnel as to the defense) pursuant to RSA 627:6, II(a). The defend ant additionally moved to physical force by persons with special responsibilities (special responsibilities on the defense of self - defense pursuant to RSA 627:4 (2016) and the defense of trial, the defendant filed two notices of defense stating that he intended to rely pushing him against the wall, and one count of second - degree assault. Prior to each for touching the complainant’s hand, touching his sweatshirt, and [¶3] The defendant was charged with three counts of simple assault, one

pushing him against a wall. the defendant appears to be grabbing the complainant’s sweatshirt and incident in which the defendant orders the complainant to go to the office while complainant; however, the jury saw video evidence of the final seconds of the anything or what the defendant said after he tried to take the toy from the against a wall. Witness ac counts differ as to whether the defendant said defendant grabbed the complainant’s sweatshirt collar, and pushed him defendant’s face such that he only “had a millisecond in order to react.” The take the toy, the complainant made a claw with his hand and lunged at the from the complainant ’s hand. The defendant testified that, after he tried to then said “you are coming to the office with me,” and attempted to take the toy During the exchange, the complainant swore at the defendant. The defendant to give him the toy, but the complainant refused the defendant’s requests. toy. T he defendant asked the complainant repeatedly to put the toy away and classroom. T he defendant noticed a student, the complainant, playing with a 1 p. 2 2022, the defendant was working as a substitute educator in a high school [¶2] The jury could have found the following facts. On February 17,

convictions and remand. give the special responsibilities instruction was error, we reverse his school records. Because we agree with the defendant that the court’s failure to defense jury instruction, and failed to disclose portions of the complainant’s testimony and excluded other testimony, erroneously defined a term in its self - p. 2 2022). He also asserts that the trial court erred when it admitted certain charges on which he was convicted. See RSA 627:6, II(a) (2016) (amended p. 3 3

caselaw, and that we should “reaffirm the principle, clear before Chen, that the standard of review in Chen grew out of a mistaken reliance on inapposite decision not to give a jury instruction. The defendant counters that our unsustainable exercise of discretion standard when review ing the trial court’s Chen, 148 N.H. 565, 569 (2002), and its progeny, in which we employed our exercise of discretion. To support its argument, t he State points to State v. quality of the evidence” and should therefore be reviewed for an uns ustainable support the instruction require d the trial court “to weigh the quantity and the trial court’s determination regarding whether there was “some evidence” to with regard to the charges on which he was convicted. The State reasons that finding that the defendant was acting as a person with special responsibilities court’s determination that there was not “some evidence” to support a rational proper standard of review. T he State asserts that we owe deference to the trial which he was convicted. As a threshold matter, t he parties disagree as to the his request for a special responsibilities defense instruction for the charges on [¶8] The defendant first argues that the trial court erred when it denied

responsibilities defense instruction. This appeal followed. and third simple assault charges — the charges without a special charge and the first simple assault charge, but convicted him of the second [¶7] The jury acquitted the defendant of the second - degree assault

assault charge, grabbing the complainant’s hand. for a self - defense jury instruction as to all of the charges except the first simple remaining charges. The trial court additionally granted the defendant’s request charged act, grabbing the [complainant’s] hand,” but denied it for the for all of the charges. The court granted the defendant’s request as to the “first defendant’s request for a jury instruction on the special responsibilities defense [¶6] After the close of evidence, the trial court heard arguments on the

complainant’s behavior on the learning environment. excluded as hearsay a student ’s statement regarding the effect of the teachers and the school’s policies and procedures. Additionally, t he trial court educators at the school to testify about their expectations for substitute testified at trial. O ver the defendant’s objection, the trial court allowed [¶5] T he complainant, the defendant, and several other witnesses

N.H. R. Ev. 701 (governing opinion testimony by lay witnesses). the testimony was admissible under New Hampshire Rule of Evidence 701. See ruled that the State could elicit such testimony from the educators and that regarding whether the complainant was creating a disturbance. T he trial court would elicit testimony from the educators who were present in the room done [in the] situation,” or whether they would have intervened, but that it the educators who were present in the class room “on what they would have looking to elicit any testimony about specific school policies,” or testimony from [¶ p. 4 4] During trial, the State represented to the trial court that it was “not 4

did not argue was exculpatory). This reliance on inapposite caselaw in Chen to provide missing evidence instruction regarding evidence that the defendant (applying unsustainable exercise of discretion standard to trial court’s refusal theory of the case. See Chen, 1 p. 4 48 N.H. at 569; Laurent, 144 N.H. at 52 2 517, 522 (1999), which involved a defendant’s requested instruction on his McMinn or other relevant precedent, we relied on State v. Laurent, 144 N.H. on his theory of defense. See Chen, 148 N.H. at 569. Rather than relying on discretion standard when reviewing a defendant’s request for a jury instruction without explanation or clarification and applied our unsustainable exercise of [¶11] I n Chen, we departed from our customary de novo standard

p. 4 47. instruction on a defendant’s theory of defense. See McMinn, 141 N.H. at 64 4 employed a de novo standard to review a trial court’s failure to give a jury Cavanaugh, 174 N.H. 1, 14 (2020). Accordingly, before Chen, we in effect prejudice d by the error to warrant a reversal of a conviction. S ee State v. standard, w hich requires a defendant to show that t he defendant w as standard of review is in contrast to our unsustainable exercise of discretion reversing conviction on relevant charge (quotation and brackets omitted)). This request,” holding that defendant was entitled to self - defense instru ction, and instruction is to search the record for evidence supporting the defendant’s reviewing the trial court’s refusal to provide a requested [theory of] defense McMinn, 141 N.H. 636, 64 4 - 4 6, 647 (1997) (explaining that “our function in instruction required automatic reversal of a conviction. See, e.g., State v. support a defendant’s theory of defense, we held that a failure to give such an [¶10] Prior to Chen, in cases in which there was “some evidence” to

discretion standard in Chen. See Chen, 1 p. 4 48 N.H. at 569. be the root of our erroneous applica tion of the unsustainable exercise of This distinction between a theory of the case and theory of defense appears to jury on a defendant ’ s theory of the case. See Woodburn, 175 N.H. at 649, 651. evidence” to support a rational finding in favor o f it, but need not instruct a theory of defense, such as the special responsibilities defense, if there is “some defenses are justification defenses). A trial court must instruct a jury on a Id.; see also State v. Leaf, 137 N.H. 97, 97 (1993) (noting that RSA 627:6 excuse, exonerate, or justify his actions such that he thereby escapes liability.” the defendant admits the substance of the allegation but points to facts that ‘ theory of defense ’ is akin to a civil plea of confession and avoidance, by which how the evidence should be evaluated and interpreted. Id. “By contrast, a 645, 649 (2023). A “theory of the case” is simply the defendant’s position on of defense” and his “theory of the case.” See, e.g., State v. Woodburn, 175 N.H. [¶9] We have long distinguished b etween a criminal defendant’s “theory

novo.” We agree with the defendant. the denial of an instruction on [a] defendant’s theory of defense is reviewed de standard of review depends on the nature of the denied instruction, and that p. 5 5

overwhelming. Id. Our function in reviewing the trial court ’ s refusal to provide Woodburn, 17 p. 5 5 N.H. at 651. The evidentiary support need not be defense, there must be more than a minutia or scintilla of evidence. See [¶14] For there to be “some evidence” to support a defendant’s specific

defendant. simple assault charge, grabbing the complainant’s hand. We agree with the support only a special responsibilities instruction with regard to the first on the defendant’s testimony, that there was “some evidence” in the record to convicted. The State counters that the trial court correctly determined, based responsibilities with regard to the simple assault charges on which he was to support a rational finding that he was acting as a person with special defendant’s argument. The defendant argues that there was “some evidence” [¶13] Having clarified our standard, we turn to the merits of the

jury instruction on a defendant’s theory of defense is de novo. standard for our review of a trial court’s denial of a defendant’s request for a Accordingly, consistent with our pre - Chen cases, we clarify that the correct the sake of protecting [that] basic right.” (quotation and citations omitted)). to a jury trial. . . . [E]ven convictions reflecting the ‘right’ result are reversed for indistinguishable from a directed verdict, and deprives a defendant of his right 429 (“The failure to instruct the jury on one element of a crime is thus automatic reversal of a conviction without a showing of prejudice. Cf. id. at element of the offense, and such error is not owed deference and warrants give a jury instruction on that defense is akin to failing to instruct o n an when there is some evidence to support a pure defense, a trial court’s failure to (quotation, citations, and brackets omitted)). Therefore, i t follows logically that the basic trial process, and thus is not subject to harmless error analysis.” charged is an error that partially or completely denies a defendant the right to N.H. 413, 429 (2009) (“[A] jury instruction that omits an element o f the offense automatic reversal of a defendant’s conviction. S ee State v. Kousounadis, 1 p. 5 59 constitutes structural error, id. at 80, and that structural errors require relieving the State of its burden to prov e an element of the charged offense reasonable doubt. Id. We have held that an erroneous jury instruction defense becomes an element of the offense that the S tate must prove beyond a a pure defense, and there is evidence to support the defense, negating such a defenses under RSA chapter 627 are pure defenses). When a defendant asserts defense. See State v. Etienne, 163 N.H. 57, 8 1 (2011) (noting that justification [¶12] Like self - defense, the special responsibilities defense is a pure

discretion). court’s denial of self - defense jury instruction for an unsustainable exercise of of defense jury instruction. See, e.g., Cavanaugh, 174 N.H. at 7 (reviewing trial cases in which a defendant sought review of the trial court’s denial of a theory appl ication of our unsustainable exercise of discretion standard in subsequent caused our deviation from our customary de novo standard and led to p. 6 6

office,” both before and after he touched the complainant’s hand and that the the educators t estified that the defendant said “you’re coming with me to the reached for the toy, touching the complainant’s hand in the process. One of going to the office,” the complainant swore at him, and then the defendant The defendant testified that he approached the complainant and said “we’re compla inant refused to give it to him and directed profanity at the defendant. asked for the toy or told the complainant to put the toy away and that the other students during class. Multiple witnesses testified that t he defendant complainant was causing a disturbance by throwing a toy back and forth to over the course of seconds. The defendant and a student testified that the premises, or maintain classroom discipline. T he charged conduct occurred responsibilities to quell a disturbance, remove the complainant from the all of the charges, that the defendant was acting as a person with special [¶17] In this case, the jury could have reasonably infer red, with regard to

conduct. Woodburn, 175 N.H. at p. 6 652. to testify regarding his thought process at the exact moment of the charged the defendant). T o meet the threshold, it was not necessary for the defendant “some evidence” standard was satisfied by testimony of witnesses other than defendant’s testimony. See, e.g, McMinn, 141 N.H. at 645 - 47 (concluding evidence” standard can be satisfied by evidence in the record other than the the other witness es ’ testimony did not matter. This was error. The “some Defendant’s own testimony, not what somebody else might have said” and that court reasoned “[t]hat the Defense instructions need to dovetail with the defense. Not to enforce discipline. Not to deal with a disturbance.” The trial complainant’s] hand, . . . all steps [the defendant] took thereafter were in self hand. The trial court stated that “once [the defendant] grabbed [the testimony that he acted in self - defense after he grabbed the complainant’s [¶16] The trial court based its ruling primarily on the defendant’s

maintenance of discipline. the premises, or that the defendant’s use of force was necessary for the evidence that the complainant was creating a disturbance or refusing to leave RSA p. 6 627:6, II(a) (2016) (amended 2022). Accordingly, we review the record for

of discipline. refuses to leave the premises or whe n it is necessary for the maintenance force against any such minor, when the minor creates a disturbance, or minor for special purposes is justified on the premises in using necessary A teacher or person otherwise entrusted with the care or supervision of a

provided that: [¶15] The version of RSA p. 6 627:6, II(a) in effect on the date of the incident

supporting the defendant ’ s request. Id. a requested pure defense instruction is to search the record for evidence p. 7 7

p. 7 701. We agree with the defendant. was admissible lay opinion testimony under New Hampshire Rule of Evidence teachers” because such testimony was irrelevant. The State counters that this educators at the school to “testify to their personal ‘expectations’ of substitute [¶22] The defendant argues that the trial court erred when it permitted

was clearly untenable or unreasonable to the prejudice of his case. Id. prevail under this standard, he must demonstrate that the trial court ’ s decision of discretion. State v. Reinholz, 169 N.H. 22, 28 (2016). For the defendant to of evidence, and we will not upset its ruling absent an unsustainable exercise [¶21] The trial court has broad discretion to determine the admissibility

rulings were not erro neous. the statement of a student. The State counters that the trial court’s evidentiary the school’s policy, customs, and staff expectations were, and when it excluded defendant ’s behavior met their expectations for substitute teachers and what ad mitted certain testimony from educators at the school regarding whether the [¶20] First, the defendant argues that the trial court erred when it

to address them. See id. of the issues may arise on remand, in the interest of judicial economy we elect not address the defendant’s remaining arguments. However, b ecause several [¶19] Given that we are reversing the defendant’s convictions, we need

was error. Accordingly, we reverse the defendant’s simple assault convictions. convicted, the trial court’s refusal to instruct the jury on that theory of defense with special responsibilities with regard to the charges on which he was evidence” supporting a rational finding that the defendant acted as a person office. W e therefore conclude that, because the record contains “some compliant student from the classroom and take him to a school administrator’s throughout the incident when he attempt ed to remove a disruptive and non the jury that the defendant was acting as a person with special responsibilities complainant’s hand. See McMinn, 141 N.H. at 64 p. 7 7. The re was evidence before complainant only with regard to the first charged act, grabbing the there was some evidence that the defendant used necessary force against the presented at trial, we disagree with the trial court that, as a matter of law, [¶18] Considering how rapidly the events took place and the evidence

holding the complainant’s sweatshirt and pushing him against the wall. exhibits the defendant audibl y tell s the complainant to go to the office while addition to the defendant and the educator’ s testimony, in one of the video complainant verbally and physically resisted the defendant’s request. In p. 8 8

admissible to show their effect on the defendant). Hayward, 166 N.H. 575, 5 p. 8 81 (2014) (concluding that threats need not have been true to be student’s statement did not need to be true to have had an effect on the listener. See State v. the statement was not true, it could not have had an effect on the defendant. To the contrary, the The State additionally argues that the student’s s tatement was offered for its truth because, if 3 teachers. However, we do address the issue of its basic relevance. opened the door for the educators’ testimony regarding their personal expectations for substitute the trial court erred when it concluded that the defendant’s cross - examination of the students Given that we do not know how the case may be retried, we need not address the issue of whether The defendant argues, and the State agrees, that neither “opening the door” doctrine applies. 2

trial court to exclude the defendant’s testimony about the student’s statement. 3 show its effect on the witness is not hearsay.”). Accordingly, it was error for the statement that is not offered to prove the truth of the matter asserted but to exception to the rule against hearsay. See Reinholz, 169 N.H. at 29 (“A witness, here the defendant, is not hearsay and need not come within an physical conditions). However, a statement offered to show its effect on the rule against hearsay for declarant’s then - existing mental, emotional, or Hampshire Rule of Evidence p. 8 803 (3). See N.H. R. Ev. 803(3) (exception to the excluded the student’s statement as hearsay because “it d [id] n ’ t follow” New informed his decision to intervene on the day of the incident. T he trial court truth of the matter asserted, but rather for its effect on the defendant, which the defendant argu ed that th e student’s statement was not being offered for the complainant’s past behavior on the classroom learning environment. At trial, statement made in his presence by a student regarding the effect of the when it excluded as hearsay the defendant’s testimony about a pre - incident [¶24] W e next turn to the defendant’s argument that the trial court erred

inadmissible, N.H. R. Ev. 401 - 4 02. not tend to make a fact of consequence more or less probable and is, therefore, instruction under the C riminal C ode, see id., t he ir testimony on th is issue does bearing on whether the defendant was entitled to a special responsibilities defendant’s behavior met their expectations for substitute teachers ha s no See RSA 627:6, II(a). Because the educators’ testimony as to whether the maintenance of discipline, and whether the defendant’s force was necessary. refusing to leave the premises, whether force was necessary for the RSA 627:6, II(a), whether the complainant was causing a disturbance or person entrusted with the care or supervision of a minor for the purposes of Ev. 402. T he facts of consequence here are whether the defendant was a the action.” N.H. R. Ev. 401. “Irrelevant evidence is not admissible.” N.H. R. would be without the evidence” and “the fact is of consequence in determining relevant if “it has any tendency to make a fact more or less probable than it defendant’s cross - examination of students “made it relevant.” Evidence is 2 [¶23] The trial court admitted this testimony because it found that the p. 9 9

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

and remand for a new trial. the charges. We therefore reverse the defendant’s simple assault convictions defendant’s request for a special responsibilities defense instruction on all of [¶26] In sum, we conclude that the trial court erred when it denied the

on remand, we decline to address the issue. that we cannot know the context in which the school records issue may arise given the special responsibilities instructio n for all of the charges, and the fact the simple assault convictions, our conclusion that the trial court should have was reversible error or prejudiced his case at trial.” Given that we are reversing appeal that the trial court’s decision to release some records and not others State counters that the defendant failed to “meet his burden of establishing on when it refused to disclose portions of the complainant’s school records. The [¶25] Finally, the defendant argues that the trial court may have erred