2026 N.H. 3, State v. Price

unsupervised in his car in the presence of his gun; (2) the trial court erred in insufficient evidence to prove that he acted recklessly by leaving his child 2024); RSA 631:2 - a (2016). The defendant argues that: (1) the re was assault, and simple assault. See RSA 631:3 (Supp. 2024); RSA 6 31:2 (Supp. trial in Superior Court (Edwards, J.) for reckless conduct, second degree [¶1] The defendant, Gabriel Price, appeals his convictions following a jury M AC DONALD, C. J.

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

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

Citation: State v. Price, 2026 N.H. 3 Case No. 2024 - 0321 Strafford

https://www.courts.nh.gov/our - courts/supreme - court release. The direct address of the court’s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their may be reported by email at the following address: reporter@courts.state.nh.us. order that corrections may be made before the opinion goes to press. Errors Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in are requested to notify the Reporter, Supreme Court of New Hampshire, One as formal revision before publication in the New Hampshire Reports. Readers NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

with a gun. The defendant raises the issue as plain error, “[b]ecause the claim that he acted with criminal recklessness in leaving his child alone in his vehicle [¶6] The defendant argues that the evidence was insufficient to prove

A. Reckless Conduct

charge. We address these arguments in turn. by declining to give a specific unanimity instruction on the simple assault also a rgues that the trial court erred in its jury instruction on self - defense, and trial court erred by restricting direct examination of his ten - year - old child. He introduced insufficient evidence to convict him of reckless conduct and that the physical contact by kicking the victim. T he defendant arg ues that the State him with a deadly weapon (a baton); and (3) simple assault for unprivileged second degree assault for recklessly causing injury to the victim by striking when the defendant left the vehicle to confront the victim after the accident; ( p. 2 2) leaving him unsupervised in a car containing an unsecured, loaded firearm reckless conduct for placing his child in danger of serious bodily injury by [¶5] On appeal, t he defendant challenges three of his convictions: (1)

II. Analysis

criminal mischief. This appeal followed. convicted for reckless conduct, second degree assault, two simple assaults, and subsequently charged the defendant and, f ollowing a jury trial, he was the trooper that there was a child and a gun in the vehicle. The State called 911. The police arrested the defendant and, during the arrest, he told defendant left before the police arrived. The defendant exited the highway and [¶4] Other motorists observed the incident and called 911, and t he

ground where the defendant beat and kick ed him. baton multiple times. After the victim got out of the vehicle, he fell to the driver - side window with a baton. The defendant then hit the victim with the [¶3] The defendant approached the victim’s vehicle and smashed the

their vehicles collided. The defendant and the victim pulled over. home. The defendant and the victim were merging into the same lane, and the defendant picked up his ten - year - old child from school and was driving [¶ p. 2 2] T he jury could have found the following facts. On February 8, 2022,

I. Background

convictions for second degree assault and simple assault. defendant’s conviction for reckless conduct, and reverse and remand his unanimity instruction on the simple assault charge. We reverse the degree assault conviction; and ( p. 3 3) the trial court erred in refusing to give a its jury instruction s on self - defense, thereby requiring reversal of the second 3

to be fired.” “[y] ou have to actually pull back the slide and let it go for a round to be ready magazine in the gun but there was no round chambered in the gun and that seat between the defendant’s legs. The trooper testified that there was a that the gun holster was “clipped to. . . a pocket” in the front of the driver’s testified that he “looked through the interior of the defendant’s vehicle” and between his father and the victim was “maybe . . . 10 minutes.” A state trooper the vehicle behind the driver’s seat. He stated that the length of the altercation [¶9] The defendant’s child testified that he was sitting in the back seat of

that a law - abiding person in the actor’s situation would observe. Id. actor’s perceptions, involved a gross deviation from the standard of conduct and “unjustifiability” of the risk by asking whether its disregard, given the a law - abiding person. Id. The fact - finder should measure the “substantiality” criminal reckless ness involves comparing the defendant’s conduct with that of abiding conduct. State v. Belleville, 166 N.H. 58, 62 (2014). Assessment of circumstances that made disregarding the risk a “gross deviation” from law conduct, consciously disregarded the risk, and had knowledge of a substantial, unjustifiable risk of serious bodily injury resulting from his of serious bodily injury.” A defendant is criminally reckless if he was aware of he recklessly engages in conduct which places or may place another in danger [¶8] Pursuant to RSA 6 p. 3 31:3, I, “[a] person is guilty of reckless conduct if

176 N.H. 487, 492 (2024), 202 4 N.H. 12, ¶18. inferences, provided they can be reasonably drawn therefrom. State v. Pierce, inferences from facts proven as well as from facts found as a result of other the light most favorable to the State. Id. The tr ier of fact may draw reasonable doubt, consider ing all the evidence and all reasonable inferences therefrom in could have found the essential elements of the crime beyond a reasonable we objectively review the record to determine whether any rational trier of fact N.H. p. 3 34, ¶16. When considering a challenge to the sufficiency of the evidence, error, which we review de novo. State v. Reed, 177 N.H. __, __ (2025), 2025 [¶7] A challenge to the sufficiency of the evidence raises a claim of legal

it may have made before those issues are presented for appellate review). preservation rule is to afford the trial court an opportunity to correct any error See State v. Ploof, 165 N.H. 11 p. 3 3, 118 (2013) (explaining that the purpose of our citizen.” Accordingly, the purpose of our preservation requirement was m et. being fired at the time is a ‘gross deviation’ from the conduct of a law - abiding prove that “leaving a child alone in a vehicle with a weapon that is incapable of on the reckless conduct charge, arguing that the evidence was insufficient to following trial the defendant moved for judgment notwithstanding the verdict dismiss the reckless conduct charge for insufficient evidence. Moreover, appellate review. A t the close of the State’s case, defense counsel moved to record, however, establishes that th e issue was sufficiently raised to preserve was not raised in the trial court.” See Sup. Ct. R. 16 - A. Our review of the p. 4 4

Id. To show that the trial court’s decision is not sustainable, the defendant court’s decisions on these matters for an unsustainable exercise of discretion. court. State v. Washburn, 170 N.H. 688, 697 (2018). We review the trial and wording of jury instructions, are within the sound discretion of the trial [¶13] Whether a particular jury instruction is necessary, and the scope

issue for appellate review. See id. the instruction at issue. That specific objection was sufficient to preserve the deliberate, the trial court held a sidebar at which defense counsel objected to Here, a fter reading the instructions to the jury, and before sending the jury to issue for appellate review. State v. Nightingale, 160 N.H. 569, 577 (2010). contemporaneous objection to a jury instruction is necessary to preserve the failed to preserve this issue for appellate review. As a general rule, a instructions to the jury on self - defense. The State asserts that the defendant [¶12] The defendant next argues that the trial court erred in its

B. Self - Defense Instruction

trial on that charge). evidence was legally insufficient to convict the defendant precludes a second 176 N.H. at p. 4 49 2, 2024 N.H. 12, ¶18 (explaining that a determination that the examination of his child about the child’s awareness of gun safety. See Pierce, address the defendant’s argument that it was error to restrict direct conduct for insufficient evidence. In light of this conclusion, we need not [¶11] Accordingly, w e reverse the defendant’s conviction for reckless

risk posed by the presence of the firearm. time he exited his vehicle to approach the victim, consciously disregarded any fact could have found beyond a reasonable doubt that the defendant, at the was sitting). Furthermore, there was no evidence upon which a rational trier of safety was on, and pointed the gun at the back of the seat in which the victim determine whether there was a round in the chamber, or check to see if the reckless act for the defendant to handle a gun in a vehicle when he did not c f. State v. Mentus, 162 N.H. 792, 797 - 98 (2011) (observing that it was a deviation from the conduct of a law - abiding citizen.” Belleville, 166 N.H. at 62; or that leaving his child alone in the vehicle with the gun was a “gross was aware of a substantial risk that his child would suffer serious bodily injury trier of fact could have found beyond a reasonable doubt that the defendant light most favorable to the State, we conclude that, on this record, no rational C onsidering all the evidence and all reasonable inferences therefrom in the approximately ten minutes during the defendant’s altercation with the victim. the child seated in the back seat; and the child was alone in the vehicle for fired; the gun was holstered in the front of the driver’s seat facing away from of the gun and a further step was required to be taken to prepare the gun to be [¶10] T his evidence established that: there was no round in the chamber p. 5 5

death or serious bodily injury. Thus, in essence the bolded in struction injury or had knowledge that his act would create a substantial risk of causing whether the defendant had the purpose of causing death or serious bodily that is capable of causing serious bodily injury or death does not resolve See id. A finding that the defendant purposely struck the victim with a ba ton knows to create a substantial risk of causing, death or serious bodily injury. the defendant act with the purpose of causing, or commit an assault which he injury or death” as satisfying the mens rea element in RSA 627:9, II, i.e., that treated “[p]urposely striking with a baton . . . capable of causing serious bodily See RSA 627:9, II (2016). The bolded instruction that followed, however, knows to create a substantial risk of causing death or serious bodily injury.” confinement which the actor commits with the purpose of causing or whic h he correctly instructed the jury that “‘ deadly force ’” means “any assault or (Italics omitted.) The trial court ’s instruction prior to the bolded language deciding whether [the defendant’s] use of the baton constituted deadly force.” deadly force as a matter of law,” thereby taking from the jury “the duty of erroneously “communicated that the act of striking with a baton constituted [¶1 p. 5 5] We agree with the defendant that the bolded instruction

trial court, defense counsel agreed to the instructions. underlined sentence was not erroneous. Faced with the option offered by the also removed. Defense counsel objected to the court’s proposal, given that the offered to remove the bolded sentence, but only if the underlined sentence was the bolded language, arguing that it was legally incorrect. The trial court (Bolding and underlining added.) Defense counsel objected to the inclusion of

must find him not guilty. then defendant has not committed a criminal act and you striking with the baton. . . was to warn away [the victim], serious bodily injury or death and the defendant’s intent in be considered by a reasonable person as a threat to inflict victim] with a baton. . . in response to a threat which would deadly force. If you find that the defendant struck [the or death in the direction of another person constitutes with a baton. . . capable of causing serious bodily injury causing dea th or serious bodily injury. Purposely striking causing or which he knows to create a sub stantial risk of confinement which the actor commits with the purpose of deadly force. The term “deadly force” means any assault or distinguishes between the use of deadly force and non - T he law of self - defense or defense of another

[¶14] Regarding self - defense, the trial court instructed the jury that:

prejudice of his case. Id. must demonstrate that the court’s ruling was untenable or unreasonable to the p. 6 6

128 (quotation omitted). jury, less than the whole number, can render a verdict.” Greene, 137 N.H. at juries of a less number than twelve, nor to provide that a number of the petit constitutional law, as we have held that the legislature may not provide for Greene, 137 N.H. at 128. “Unanimity is guaranteed as a matter of unless each element of such offense is proved beyond a reasonable doubt.”); charged. S ee RSA p. 6 625:10 (2016) (“No person may be convicted of an offense respect to the presence of the elements of offenses in criminal cases as [¶19] The New Hampshire Criminal Code requires jury unanimity with

the use of physical force, which is not justified by law or consent.” physical contact” by kicking the victim, meaning “any physical contact through or the circumstances under which he acted” and that he “had unprivileged defendant acted “knowingly” in that he was “aware of the nature of his conduct was instructed that the State had to prove beyond a reasonable doubt that the cause[d] unprivileged physical contact to [the victim] by kicking him.” The jury RSA p. 6 631:2 - a, I(a). The charge here alleges that the defendant “knowingly knowingly causes bodily injury or unprivileged physical contact to another.” [¶18] “A person is guilty of simple assault if he . . . [p]urposely or

“had to agree unanimously on a particular kick.” that the jury instructions “failed adequately to communicate” that the jury kicking. Citing State v. Greene, 137 N.H. 12 p. 6 6 (1993), t he defendant asserts to give a specific unanimity instruction for the simple assault charge alleging [¶17] Finally, t he defendant argues that the trial court erred in refusing

C. Specific Unanimity Instruction

assault and remand. discretion. T herefore, we reverse the defendant’s conviction for second degree conclude that the trial court’s ruling was an unsustainable exercise of prejudice of his case. See Washburn, 170 N.H. at p. 6 697. Accordingly, we erroneous underlined instruction was untenable or unreasonable to the bolded erroneous instruction unless the defendant agreed to removing the non entitled to the underlined instruction, the trial court’s refusal to strike the his acquiescence to the instruction at trial. Given that the defendant was [¶16] We are not persuaded that the defendant invited this error through

force.” [his] act of striking [the victim] with the [baton] amounted only to non - deadly defendant that “the jury could not both follow its instructions and find that charged, it is a constitutional error requiring reversal). We agree with the the direction of a verdict for the prosecution on an element of the offense v. Williams, 133 N.H. p. 6 631, 634 (1990) (explaining that where an error is akin to resolved the mens rea element of deadly force against the defendant. See State p. 7 7

DONOVAN, COUNTWAY, and GOULD, JJ., concurred.

the trial court’s failure to give a specific unanimity instruction. instruction, and reverse and remand the simple assault conviction based on second degree assault conviction based on an erroneous self - defense jury reckless conduct conviction for insufficient evidence, reverse and remand his N.H. 321, 322 (1993); Sup. Ct. R. 25(8). In sum, we reverse the defendant’s concluded that they do not require further discussion. See Vogel v. Vogel, 13 p. 7 7 [¶21] We have considered the parties’ remaining arguments and have

kicking and remand. Accordingly, we reverse the defendant’s conviction for simple assault based on unanimity was required on which kick constituted unprivileged contact. circumstances, the trial court erred by declining to instruct the jury that unprivileged physical contact variant of simple assault). Under these later unanimity cases” but noting that Greene ’s reasoning is limited to the 400, 421 (2015) (decl ining to resolve whether Greene “can be squared with our which unprivileged physical contact occurred); cf. State v. Sanborn, 168 N.H. been convicted of three separate assaults,” the jury had to be unanimous as to physical contact, and because “the defendant in Greene could potentially have Greene could have provided the basis for finding the element of unprivileged 583, 593 (2001) (explaining that because any one of the contacts alleged in which contact supported a finding of guilt. See State v. Doucette, 146 N.H. Given this evidence, the defendant was entitled to a unanimity instruction on “general body,” including some “on the legs, and some in the midsection.” “knee area”; “a good 8 to 10” times; around the abdomen; and about the three times; “[a] few to the torso and then one to the head”; in the thighs and kicked the victim: in the legs; “maybe four or five times”; in the torso at least unprivileged physical contact. Evidence at trial included that the defendant [¶20] Here, j ury unanimity is required with respect to the element of