2025 N.H. 6, State v. Perez

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

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

Citation: State v. Perez, 202 5 N.H. 6 Case No. 2023 - 0453 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

to disprove that he acted in self - defense based upon a reasonable belief that [¶7] On appeal, the defendant argues that the evidence was insufficient

two counts of first degree assault with a firearm. This appeal followed. Thereafter, the defendant presented his case, and the j ury found him guilty o n not act in self - defense. The trial court denied the defendant’s motion. arguing that the State failed to prove beyond a reasonable doubt that he did processing the scene. After the State rested, the defendant moved to dismiss, and the shooting. Detectives also testified about the evidence collected while M.R. and the defendant’s father, t estified about the altercation on the stairs [¶6] At a five - day jury trial in April and May p. 2 2023, witnesses, including

degree assault with a firearm. RSA 631:1, I(b). subsequently arrested and charged, in relevant part, with two counts of first abrasions consistent with a physical altercation. The defendant was gash across his chest,” but the backs of his hands showed no marks or recovered from R.S. The defendant appeared to have a “pretty long scrape or [¶5] Law enforcement arrived to process the scene, and no weapons were

defendant said “that [R.S.] almost pushed him down the stairs.” push at the top of the stairs and the shooting. After the shooting, the very quickly, and R.S. and the defendant exchanged no words between the apart, and R.S. did not have “any kind of weapon.” The altercation occurred [¶4] At the time of the shooting, the two men were approximately 30 feet

fired two shot s at R.S. stairs. After the defendant fell onto the sidewalk, h e picked himself up and ran up the front steps,” picked up the defendant, and threw him down the bottom of the stairway. However, the defendant’s father testified that “[R.S.] defendant tripped but did not fall, stumbled down the stairs, and stood at the started to walk down the stairs when R.S. pushed him “into the railing.” The old resident of the apartment building, testified that the defendant turned and [¶3] Accounts regarding the subsequent events differed. M.R., a 15 - year -

top of the stairway to the apartment building’s entrance. an unpaid debt. The defendant and R.S. began arguing on the landing at the outing with his father. When the defendant arrived, R.S. confronted him about the defendant returned to his apartment building in Manchester after a brief [¶ p. 2 2] The jury could have found the following facts. On August 10, 2021,

not act in self - def ense. Accordingly, we affirm. we conclude that the evidence was sufficient to establish that the defendant did construing all evidence and inferences in the light most favorable to the State, prove that he did not act in self - defense. After reviewing the record and p. 3 3

court assesses whether the evidence is legally sufficient to prove guilt beyond a it may have made. To evalu ate a sufficiency of the evidence challenge, the evidence does not deprive the trial court of the opportunity to correct any error failure to renew a motion to dismiss for insufficient evidence at the close of [¶11] This treatment is consistent with our preservation rule, given that

414, 418 (2011); State v. Cunningham, 159 N.H. 10 p. 3 3, 107 (2009). e.g., State v. Cullen, 175 N.H. 628, 630 (2023); State v. Gordon, 161 N.H. 410, d ismiss after the State rested its case but before the close of evidence. See, sufficiency of evidence challenges that were raised by way of a motion to squarely addressed this question, we have consistently treated as preserved defendant chooses to present evidence thereafter. Although we have not insufficient evidence made at the close of the State’s case; and (2) the when: (1) the trial court denies his motion to dismiss based upon a claim of defendant is required to renew a motion to dismiss after the close of evidence [¶10] The defendant observes that we have not addressed whether a

of a motion for directed verdict. State v. Hill, 16 p. 3 3 N.H. 394, 395 (2012). case - in - chief, at the close of all the evidence, or after a jury conviction by way have held that a sufficiency challenge may be raised at the close of the State’s presented for appellate review. State v. Gordon, 161 N.H. 410, 417 (2011). We an opportunity to correct any error it may have made before those issues are (2019). The purpose underlying our preservation rule is to afford the trial court appellate] brief before the trial court.” State v. Proctor, 171 N.H. 800, 804 demonstrating that he specifically raised the arguments articulated in [his [¶9] “The defendant, as the appealing party, bears the burden of

persuaded. convict under all the evidence, including the defendant’s proof.” We are not trial court of the opportunity to “determine if there was sufficient evidence to insufficient evidence after the defendant presents his or her case deprives the According to the State, a defendant’s failure to renew a motion to dismiss for proving the State’s case.” State v. Pittera, 1 p. 3 39 N.H. 257, 260 (1994). do so, he takes the chance that evidence presented in his case may assist in “[E]ven though the defendant is not required to prese nt a case, if he chooses to to review the entire trial record, including evidence advanced by the defendant. challenge must occur at this point because this type of claim requires the court order to preserve the issue for appeal. Specifically, the State argues that the must challenge the sufficiency of the evidence at the close of the evidence in [¶8] First, the State argues that the defendant, as the appealing party,

evidence claim is not preserved for our review. we first address the State’s argument that the defendant’s sufficiency of the other things, that the defendant failed to preserve this argument. Therefore, within the defendant’s dwelling or its curtilage. The State contends, among R.S. was likely to use unlawful force against him in the commission of a felony p. 4 4

State produced insufficient evidence to prove that he was not privileged to act appeal in his motion to dismiss. On appeal, the defendant contends that the sufficiency of the evidence claim by not raising the specific argument made on [¶15] Second, the State argues that the defendant failed to preserve the

appellate review. the State rests but before the close of evidence is properly preserved for sufficiency of the evidence challenge raised by way of a motion to dismiss after motion after the State rests its case. Accordingly, we conclude that a appellate review,” Proctor, 171 N.H. at 80 p. 4 4, when it considers the defendant’s correct any error it may have made before those issues are presented for [¶14] Therefore, the trial court is afforded the requisite “opportunity to

evidence. response to a motion raised after the State rested its case or at the close of the defendant’s guilt would be the same regardless of whether it is conducted in analysis of whether the State introduced sufficient evidence to prove the analyzing a sufficiency of the evidence challenge. Accordingly, the trial court’s State’s evidence and the defendant’s evidence in the State’ s favor when N.H. at 760. Consequently, the trial court must construe conflicts between the inferences from it in the light most favorable to the State. State v. Wilson, 169 because the trial court must view all of the evidence and all reasonable N onetheless, this type of evidence is immaterial to the trial court’s analysis tend to disprove or discredit the evidence introduced by the State. [¶13] Alternatively, evidence offered in a defendant’s case - in - chief could

find guilt beyond a reasonable doubt. merely adds support to the court’s conclusion that a rational trier of fact could it may have made.” Proctor, 171 N.H. at 80 p. 4 4. Specifically, the additional proof motion to dismiss to “afford the trial court an opportunity to correct any error evidence adds support to the State’s cas e, then it is not necessary to renew the State’s case; or (2) discredit or undermine the State’s case. If the defendant’s chooses to put on a case thereafter, the evidence may: (1) add support to the case - in - chief. See State v. Cullen, 175 N.H. 628, 630 (2023). If the defendant guilt beyond a reasonable doubt based upon the proof introduced in the State’s evidence after the State rests, it is finding that a rational trier of fact could find [¶12] When the trial court denies a motion to dismiss for insufficient

reasonable doubt.” State v. Wilson, 169 N.H. 7 p. 5 55, 760 (2017). from it in the light most favorable to the Stat e, could have found guilt beyond a rational trier of fact, viewing all of the evidence and all reasonable inferences from this burden of proo f. Specifically, “the defendant must establish that no defendant must meet to prevail on a sufficiency of the evidence challenge arises “beyond a reasonable doubt.” RSA 625:10 (2016). The standard that a criminal trial, the State bears the burden to prove each element of a crime reasonable doubt. See State v. Spinale, 156 N.H. p. 4 456, 463 - 64 (2007). In a 5

variants of the self - defense statute, including the specific variant argued on denial of the motion to dismiss, we conclude that the court considered all In light of this instruction and the trial court’s reasoning for the basis for its

such actor’s dwelling or curtilage. unlawful force in the commission of a felony against the actor within reasonably believes that such other person . . . is likely to use any A person is justified in using deadly force upon another person when he

statute, including RSA 627:4, II(d), explaining: The court proceeded to instruct the jury on all variants of the self - defense

(Emphasis added). against you and all of the other conditions of that self - defense statute. deadly force only when you believe that deadly force is being used looking at . . . the law with regard to self - defense and that you can use With regard to the self - defense and defense of others, the jury will be

below.” In denying the motion to dismiss, the court reasoned: incident in which [the defendant] was thrown to the bottom — to the concrete evidence showed that “[R.S.] rushed at [the defendant] and there was an that the State failed to meet its burden to disprove self - defense because dismiss the first degree assault charge s for insufficient evidence, he argued raised the argument before the trial court. When the defendant moved to [¶17] We conclude that the defendant demonstrated that he sufficiently

or might not have supported” the specific argument raised on appeal. Id. opportunity to consider that legal issue or the development of f acts that might Therefore, we will find a legal argument preserved only if the court had “the error it may have made.” State v. Woodburn, 17 p. 5 5 N.H. 645, 650 (2023). our preservation rule is to “afford the trial court an opportunity to correct any appellate brief before the trial court. Id. As previously noted, the purpose of demonstrating that he specifically raised the arguments articulated in his [¶16] The defendant, as the appealing party, bears the burden of

reasonably believed the victim would commit. We disagree. reference the curtilage or explain which felony or felonies the defendant motion referenced only R.S.’s verbal threats and physical assault and did not to dismiss was insufficient to preserve this self - defense argument because the within the actor’s dwelling or its curtilage.” The State contends that the motion “likely to use any unlawful force in the commission of a felony against the actor to use deadly force based upon a reasonable belief that another person is in self - defense pursuant to RSA p. 6 627:4, II(d). RSA 627:4, II(d) permits a person 6

degree assaults. provided the jury with instructions defining a felony offense, as well as first degree and second In response to two questions issued by the jury during its deliberations, the trial court also 1

that we construe all of the evidence and inferences in the light most favorable [¶22] Based upon the applicable standard of review, which mandates

R.S. had finished his attack and would not escalate it further.” push, the State could not prove that [the defendant] reasonably believed that aggression and threats to beat up [the defendant], in combination with the serious bodily injury. Specificall y, the defendant argues that “[i]n light of R.S.’s variants of the felonies of first or second degree assault that include causing evidence to disprove that he reasonably believed R.S. was likely to commit the [¶21] The defendant contends that the State introduced insufficient

the health or of the function of any part o f the body.” RSA p. 6 625:11, VI (2016). body which causes severe, permanent or pro tracted loss of or impairment to I(a) (2016). RSA 625:11, VI defines “[s]erious bodily injury” as “any harm to the “[k]nowingly or recklessly causes serious bodily injury to another.” RSA 631:2, I(a) (2016). A person commits the felony of second degree assault if he or she if he or she “[p]urposely causes serious bodily injury to another.” RSA 631:1, [¶20] As relevant here, a person commits the felony of first degree assault

¶10. reasonable doubt. State v. Collins, 17 p. 6 6 N.H. 570, 573 (2024), 2024 N.H. 22, becomes an element of the charged offense that th e State must prove beyond a When evidence of self - defense is admitted, conduct negating self - defense even though honest, will not support the defense. Woodburn, 175 N.H. at 651. within such actor’s dwell ing or its curtilage.” A belief that is unreasonable, likely to use any unlawful force in the commission of a felony against the actor force in self - defense “when he reasonably believes that such other person . . . is [¶19] RSA 627:4, II(d) provides that a person is permitted to use deadly

all the evidence, and not in isolation. Id. favorable to the State. Id. We examine each evidentiary item in the context of evidence and all reasonable inferences drawn ther efrom in the light most essential elements of a crime beyond a reasonable dou bt, considering all the defendant, to determine whether any rational trier of fact could have found the we objectively review the entire record, including any evidence presented by the 730, 735 (2024), 2024 N.H. 42, ¶13. When considering this type of challenge, error; therefore, our standard of review is de novo. State v. Keller, 17 p. 6 6 N.H. [¶18] A challenge to the sufficiency of evidence raises a claim of legal

3 p. 6 63, 3 p. 7 70 (2013). preserved and we proceed to address its merits. See State v. Gagne, 165 N.H. appeal and set forth in RSA 627:4, II(d). Accordingly, the argument is properly 1 7

injury. reasonable belief that R.S. would likely further escalate the encounter to cause serious bodily rational juror could reasonably conclude beyond a reasonab le doubt that the defendant lacked a considering all other surrounding circumstances in the light most favorable to the State, a he would next attempt to use force in a manner that would cause serious bodily injury. But of force sufficient to cause a scrape upon contact with the railing as supporting an inference that scrape may be relevant to the determination, given that a rational trier of fact could find R.S.’s use bodily injury. See RSA 62 p. 7 7:4, II(d) (2016); RSA 631:1 (Supp. 2024); RSA 631:2 (Supp. 2024). The next commit a variant of the felony of first or second degree assault that would result in serious Second, the relevant inquiry is whether the defendant reasonably believed that R.S. was likely to the scrape is consistent with the testimony that R.S. pushed the defendant into the railing. The presence of a scrape on the defendant’s chest does not undermine this conclusion. First, 2

in the short interval after the defendant reached the bottom of the stairway and the jury also heard testimony indicating that the parties exchanged no words threatened to “hit,” “explode,” and “beat up” the defendant prior to the push, occurred after the push. Although the defendant’s father testified that R.S. consistent with a physical altercation, suggesting that no further contact that the back of the defendant’s hands did not show scratches or abrasions that no weapons were recovered from or near R.S. Another detective explained kind of weapon.” Additionally, the detective who processed the scene testified shooting. The defendant’s father testified that he did not see R.S. with “any The jury heard testimony that the two men were 30 feet apart at the time of the defendant reasonably believed R.S. would likely cause serious bodily injury. most favorable to the State, establish that the State failed to disprove that the [¶24] Nor do the surrounding circumstances, when viewed in the light

to stop” the assault). 2 bedroom against her will,” then “physically and forcibly thwarted. . . her efforts because the defendant “picked up [the victim] and carried [her] into the that the defendant would likely cause serious bodily injury existed, in part, Cf. State v. Hunter, 132 N.H. 556, 560 (1989) (concluding reas onable belief that R.S. would cause or attempt to cause the defendant serious bodily injury. single - handed push in the back is insufficient to sustain a reasonable belief the evidence in the light most favorable to the State, we conclude that this the inference that the defendant shot R.S. in response to the push. Viewing defendant said that R.S. “almost pushed [me] down the stairs,” giving rise to [¶23] The jury also heard testimony that, after the shooting, the

defendant reached the bottom of the stairway. defendant’s father testified that the defendant fired the s hots at R.S. when the stumbled down the stairs, and stood at the bottom of the stairway. The defendant into the railing. She further testified that he did not fall, but starting to walk down the stairs” when R.S. used one hand to push the entrance to the apartment building. She explained that the defendant “was R.S. and the defendant were arguing on the stairway landing at the top of the to the State, we reject the defendant’s argument. At trial, M.R. testified that p. 8 8

need not address whether the State also disproved the curtilage element of RSA 627:4, II(d) (2016). Because we conclude that the State disproved that the victim was likely to commit a felony, we 3

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

argument for our review. See State v. Laguerre, 175 N.H. 557, 564 (2022). application to the facts of th is case does not sufficiently develop a legal reference to the elements of the offense and relevant case law without extreme indifference to the value of human life, we conclude that his brief’s when one recklessly causes bodily injury under circumstances manifesting would commit or try to commit the variant of second degree assault that occurs defendant asks us to consider whether the State failed to disprove that R.S. Accordingly, we affirm the defendant’s conviction s. To the extent that the 3 sufficient evidence to establish that the defendant did not act in self - defense. [¶26] For the foregoing reasons, we conclude that the State presented

with first or second degree assault. would likely escalate the encounter to cause serious bodily injury consistent the push, and, consequently, the defendant lacked a reasonable belief that R.S. taken together, and find that R.S.’s engagement in the interaction ended with [¶25] A rational trier of fact could consider these facts and inferences,

not verbally escalate the encounter after the push. when he shot the victim. This testimony supported the inference that R.S. did