State of New Hampshire v. Teagan David Collins

1. Whether the trial court erred by failing to instruct the jury on the display of a firearm as a means of self-defense to the felony criminal threatening charge.

Issue preserved by motion, argument, and the trial court’s ruling*. T-I 34-35; T-II 241-48, 414-25.

A Rockingham County grand jury indicted Teagan Collins on two charges: criminal threatening with a deadly weapon (a firearm) and criminal threatening against law enforcement officer. The latter charge is an enhanced misdemeanor offense. Collins also was charged with disorderly conduct, a class A misdemeanor. T-I 9-11. Following a two day trial, the jury found Collins guilty on all charges. T-III 464-65. The court (English, J.) sentenced Collins to consecutive sentences of twelve months in the house of corrections, with all but 90 days suspended for five years on the criminal threatening charges. A 10-17. On the disorderly conduct charge, the court sentenced Collins to a concurrent twelve-month house of corrections sentence, all suspended for two years on the condition of good behavior. A 6-9. Collins also was ordered to complete an anger management evaluation and have no contact with several individuals involved in the incident. A 13.

After work on the evening of October 29, 2021, Teagan Collins went with some coworkers to the Gas Light. T-II 384. It was his first time there. T-II 384. The Gas Light was a multi-level, multi-purpose venue, with a nightclub on the third floor. T-I 38. It is located on the corner of Market and Hanover Streets in Portsmouth, New Hampshire. T-I 38. Collins and his coworkers went to the nightclub. T-II 384. About an hour after Collins arrived, while he was on the dance floor with a beer, a member of the bar’s security staff approached him. T-II 384-85, 395. Brandon Burke, head of security for the Gas Light, said that they had received complaints that Collins was bumping into people and being disrespectful on the dance floor. T-I 95-96, 154 (explaining that staff security “grabbed [Collins], and then – well, not grabbed him physically but approached him”). Collins recalled being told that it was against rules to have a drink on the dance floor. T-II 385, 395. Collins immediately got rid of his drink and returned to the dance floor. T-II 385, 395. A few minutes later, security staff again approached Collins, put their hands on him, took him to a back hallway, and then escorted him out of the club. T-I 154-55 (Burke denies that staff put hands on Collins); T-II 385, 395. Collins testified that staff told him that he was “done for the night, ” but offered “no explanation.” T-II 385, 395. Burke said that he and another member of the security staff escorted Collins down the elevator and out the door. T-I 98-99. Collins complied and left. T-II 386, 396. Collins testified that he walked around outside and then tried to re-enter the club but was turned away. T-II 386, 397-98.

Sometime later, Michael Mickelonis, a Gas Light manager, noticed Collins outside near a takeout food area. T- I 46. Burke got a call about a commotion out front. T-I 99- 100. Mickelonis and Burke described seeing Collins and another person yelling at each other. T-I 46-47, 100-02. Mickelonis and Burke got between Collins and the other person, and Mickelonis escorted Collins away from the club. T-I 47-50.

As he was escorting Collins away, Mickelonis said that as Collins turned to yell at the other person, he bumped into Mickelonis, and Mickelonis felt a firearm on him. T-I 54. When Collins lifted his arm to gesture at the other person, Mickelonis saw what he thought was part of a firearm tucked in Collins’ back. T-I 54-55, 57. Mickelonis testified that Collins yelled to the other person that he had a gun and “w[ould] shoot you.” 1 T-I 57, 164-65. Collins was angry but eventually continued walking away. T-I 58-60. Mickelonis told Burke that, if Collins returned, he should call the police because he had a firearm. T-I 60. When Collins got back to his car, he realized he did not have his debit card or jacket. T-II 386-87. At that point, Collins testified, that he removed his firearm, which he had a permit to carry, from his car and tucked it into his waistband at the small of his back. T-II 387-88, 399. The firearm was under his shirt. T-II 402 (discussing lifting his shirt to show the firearm).

Collins returned to the club and asked to enter to get his debit card. T-I 61; T-II 387, 400. He again was told that he could not go into the club, and that he should return the next day for it. T-II 387, 401. Collins saw someone he knew outside and asked that person to retrieve his car while he waited. T-II 388, 401.

Burke, who had been alerted that Collins had returned, confronted Collins. T-I 61, 106; T-II 388, 401-02. According to Collins, Burke was inches from his face and escalating the situation. T-II 388. Burke claimed that he told Collins “good night” and to leave, and that he was going to call the police. T-I 106.

Burke testified that Collins then said, “I don’t fucking care, ” pulled up his shirt to show the firearm, moved it up and down in his waistband, and looked at Burke while saying, “[I]’d only take one shot.” T-I 106-07, 165-70, 172-73 (agreeing that Collins never removed the firearm from his waistband and did not point it at anyone). Portsmouth Police Officer Werner recalled Burke later reporting only that Collins said, “You don’t even know, ” as Collins turned, lifted his shirt, and walked away. T-II 343, 353-54, 356-59. Collins testified that he did not show his firearm until later, when Burke and Mickelonis were following him away from the club, and that he never touched or moved the firearm or made any verbal threats. T-II 389.

As Collins walked away from the Gas Light toward Market Street, Burke and Mickelonis followed him. T-I 61-62; T-II 389, 403. Burke followed directly behind Collins, and Mickelonis followed Collins from across the street. T-I 63, 109-10, 170-71. Mickelonis testified that he felt that it would be better for two people to follow Collins from the club. T-I 62-63. Burke was “zoned in” on Collins and wanted to “keep eyes” on him. T-I 109, 112, 171.

Collins felt threatened by Burke and Mickelonis following him. T-II 402. He took their conduct as “somewhat aggressive – continued aggressive, threatening behavior. T-II 402, 404. Collins recalled them being close, only about ten feet away from him as they walked. T-II 402-03, 409. When they were about twenty to thirty feet away from the Gas Light, Collins lifted his shirt “without breaking a stride, ” and “continued walking away.” T-II 389, 402. He did it to “let them know that they should stop following [him].” T-II 389. Collins testified that he never touched the firearm or moved it, but just lifted his shirt to show it. T-II 389. Mickelonis did not see Collins display or touch the firearm in any way while Burke was following him. T-I 65-71.

Shortly thereafter, the police found Collins. T-I 63, 112; T-II 389-90. As the police instructed, Collins immediately put his hands up and told the officers where his firearm was. T-I 64, 78, 112-13, 210; T-II 390, 405. The officers located the firearm where Collins said it was, in his waistband at his back. T-I 210; T-II 390. The police took custody of the firearm without incident. T-I 113, 197-98, 210; T-II 95. Collins was calm and cooperated in answering all their questions. T-I 226-27; T-II 346, 350-51. When the police told Collins that they were going to arrest him on felony charges, he “didn’t act well to that at all, ” and became “regrettably irate.” T-II 391, 406. Although he did not resist the arrested and complied with booking at the police station, Collins was upset and verbally expressed his frustration and anger. T-I 85, 213-14; T-II 391. Officer Loureiro testified that, during the drive to the police station, Collins yelled obscenities and claimed he had more firearms at home, saying, “Everyone’s going to find out.” T-I 217-18. At the police station, Collins cooperated with the booking process but continued to make insults and claim he had firearms at home. T-I 220. After he was booked, Loureiro transported Collins to the county jail to meet with a bail bondsman. T-I 220-21. Collins was in the rear passenger area of the police cruiser, handcuffed and separated from the officer by a glass partition during the drive. T-I 221-22; T-II 30.

During the nearly twenty minute drive, Collins continued to express his anger at being arrested and said things that he later regretted. T-II 28, 390-92. According to Loureiro, Collins was angry and upset. T-II 30. Loureiro recalled Collins saying things like “You think your vest matters? It doesn’t, ” “one to the head, ” and “you better hope I don’t get out tonight.” T-I 222-23; T-II 37, 407, 410-11. Loureiro took the threats seriously and said they were concerning. T-I 222-23. Collins denied making “direct threats, ” but acknowledged he could not remember exactly what he said. T-II 407-08, 411. Collins testified that he merely uttered “empty threats.” T-II 391, 406.

Collins explained at trial that he was not sure that he had any intent when he made the threats, rather, he was just “expressing frustration and anger, ” and just “trying to make it known how – how upset [he] was and how wrong [he] felt like they were handling the situation.” T-II 392, 406-07. Collins described being in a “blackout crisis mode, ” during the twenty minute or so ride. T-II 407.

The trial court erred when it failed to instruct the jury on self-defense to the felony criminal threatening charge. The defense applies to all offenses for which there is some evidence. Viewed in the light most favorable to Collins, there was some evidence supporting the defense, including Collins’ testimony that Burke had escalated the confrontation between the two of them, Burke and Mickelonis closely followed Collins as he left the immediate area of the Gas Light, and he believed Burke and Mickelonis were aggressively threatening him. There was some evidence supporting Collins’ theory of self-defense. The court erred in not instructing the jury on the same.

Collins testified that he displayed the firearm to warn off the Gas Light security staff who he believed were threatening him. Prior to trial, Collins filed a notice of defense advising the State and the court that he was justified under RSA 627:4 in displaying his firearm to protect himself. A 3-5. At trial, Collins asked the court to instruct the jury on his justification defense under RSA 627:4, and the parties debated the issue at length. T-I 35; T-II 241-48, 414-25.

Although the court initially ruled that Collins had “met the threshold on the fact that he felt threatened to get the instruction on self-defense, ” it later reversed its decision and denied Collins’ request for the instruction. T-II 417-23. The court explained, What's missing from the -- what the evidence was was that he felt threatened, but what was missing is evidence that he reasonably believed there was going to be an imminent use of unlawful, nondeadly force by such other person.

T-II 423. In so ruling, the court erred.

This Court should review the trial court’s decision de novo. See State v. Woodburn, __ N.H. __, 2023 WL 2603997, 3 (Mar. 23, 2023) (discussing but not deciding the applicable standard of review for a court’s failure to give a self-defense instruction). When a defendant admits the allegation against him, but points to facts that justify his actions to escape liability, he asserts a “theory of defense.” State v. Cavanaugh, 174 N.H. 1, 11 (2020). Once some evidence is admitted supporting the theory of defense, the court must instruct a jury on a defendant’s “theory of defense.” Id.

By ‘some evidence, ’ we mean that there must be more than a minutia or scintilla of evidence. The evidentiary support need not be overwhelming.

Our function in reviewing the trial court's refusal to provide a requested self-defense instruction is to search the record for evidence supporting the defendant's request.

Woodburn, __ N.H. __, 2023 WL 2603997, 3-4 (internal quotations and citations omitted).

The court’s failure to give the instruction when “some evidence” had been introduced is reversible error. State v. McMinn, 141 N.H. 636, 644-45 (1997). The question here is whether “some evidence” at trial indicated that Collins reasonably believed the circumstances justified that display. The answer is yes.

“The act of producing or displaying a weapon shall constitute non-deadly force.” RSA 627:9, IV. Pursuant to RSA 627:4, I, A person is justified in using non-deadly force upon another person in order to defend himself… from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose.

Non-deadly force is defined, in part, as “any assault or confinement which does not constitute deadly force.” RSA 627:9, IV. See also RSA 627:9, II (2016) (defining “[d]eadly force” as “any assault or confinement which the actor commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury”).

Contrary to the court’s finding, there was some evidence that Collins reasonably believed Burke and Mickelonis posed an imminent threat to him of the use of force. Before Collins showed his firearm, Collins described how Burke got into his face and escalated the situation outside the Gas Light. Although Collins ended that confrontation by walking away from Burke and the Gas Light, Burke followed. Later, Collins saw Mickelonis join Burke, and the two men followed Collins down Market Street. As Burke testified, they followed Collins to “keep eyes” on him and Burke described being “zoned in” on Collins.

As he explained at trial, Collins believed that Burke and Mickelonis were “aggressively threatening” him. Only when they were about ten feet from him did Collins lift his shirt to display his firearm. Collins only did so to “let them know that they should stop following [him].” T-II 389. In other words, as the law permits, he intended to warn away the threat he believed Burke and Mickelonis posed to him. Collins’ testimony was “some evidence” supporting his belief about the threat he believed he faced.

As this Court has made clear, the evidence does not need to be overwhelming or uncontradicted to require that a trial court give the jury a self-defense instruction. State v. Haycock, 146 N.H. 5, 11 (2001); McMinn, 141 N.H. at 645. Indeed, as the Court recently made clear in Woodburn, inconsistencies or contradictions about the strength of the evidence is a matter for the jury to decide, not the court. Woodburn, __ N.H. __, 2023 WL 2603997, 5. The court was required to give the instruction, leaving it “for the jury to decide whether the State had disproved the defendant’s defense of self-defense.” Cavanaugh, 174 N.H. at 10. The court’s refusal to do so is reversible error.

WHEREFORE, Collins respectfully requests that this Court reverse the felony criminal threatening conviction. Undersigned counsel requests a fifteen minute oral argument.

The appealed decision was not in writing and therefore is not appended to the brief.

This brief complies with the applicable word limitation and contains 2667 words.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.