State of New Hampshire v. Gabriel Chalpin

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This is Case 20 19 0 4 1 3, consolidated with 20 20 0 5 7 3 20 22, 0 1, 0 8, and 20 22 0 1 9 1 State of New Hampshire v Gabriel Pin in Mr. Reese, am I right that you've reserved two minutes for rebuttal? That's correct, your Honor. Please Proceed. May I please the court? My name is James Reese and I represent Gabriel Chapin. Uh, I invite the court's questions at any time. Uh, today I would like to make three points. Uh, one, uh, the definition of the work cruelty that was, uh, utilized by trial court in this case was clearly important to the jury. They asked a question about it, um, and in response to the jury's question, the trial court deluded the definition from this court's definition in Morehouse. Second, I'd like to address issues four and five in tandem. Uh, the trial court would correct in determining that multiple assault acts, uh, can comprise one court of conduct, and thus one unit of prosecution. Although it's our contention that the trial court aired in dividing the course of conduct, uh, into two units. Third, uh, I'd like to group issues two and three together, uh, because of similarities. And that is that the indictments alleging both manifesting exceptional cruelty and depravity, uh, or depravity, as well as manifesting extreme indifference to the value of human life restricted. The jury's focus to the element to the, uh, attack that was alleged in each of the indictments, um, and in so restricting it, um, the evidence was insufficient on that element. The term cruel is often used colloquially by people to describe a great many things. Um, thus there is a need in the context of RSA 6 51, 6 1 C to create a definition that is meaningful, that distinguishes what some folks might consider cruel in a run of the mill way. Arguably, all crimes could be considered cruel or many of them. Um, so there has to be some distinction between this case and what a juror's common perception of the term might be. This court did that in Morehouse. Uh, there's a twist in this case because when the court misinformed the jury that this court has not defined the term, uh, and it gave a definition that we would assert, uh, watered down the meaning of that term, uh, it deemphasized it to the jury, and clearly they were asking about it. Trial counsel suggested to the trial court that the, uh, definition for Morehouse be given. Uh, the trial court indicated I may be creating reversible error here, but we're not gonna give the definition. We're gonna wait and see what they do. In fact, they came back with a question as to what does this mean? So there was obviously, we can infer some kind of debate in the deliberation room as to the meaning of the term. And after some argument, the court provided a definition from Black's law dictionary, uh, and that included, uh, terms like outrage or abusive treatment. One could argue that every simple assault is abusive treatment. I would point out also that there seems to be a transcriptionist error in the transcript in that, uh, I think the transcriptionist was attempting to delineate pauses in the trial court's instructions to the jury or answer to that question. And if you look at the definition that was actually provided, they're separated by semicolons. So those are standalone definitions. They're not dependent on what arises earlier in that definition. And I think that's critical because the state points out that, um, in their brief, that it's more than just abuse of treatment. It's not given that the definition that the court gave. But in Morehouse, uh, we didn't lay out a jury instruction. We said that the, um, usual and common meaning was the appropriate meaning for cruelty. That is correct. And so why can't the court now in answering the question, go to the usual and common meaning as reflected in black? So that would seem to me totally consistent with Morehouse. The definition is not consistent, that's the problem. So I think that the issue here is twofold, given the two distinctions in definitions. Uh, one in Morehouse and one here, the definition, uh, you, you have two defendants facing two different burdens. Um, if you can only be, if you can be convicted of this element, this enhancement purely on abusive treatment. But the other definition for Morehouse includes killing, mangling torturing, um, it's a very different animal, and I would suggest that it's a fundamental precept of due process that differing defendants should face the same, the same level of scrutiny in each each of their cases. So that's the first problem. Uh, the second problem, it's unclear to me how, what the exact impact is of the trial court telling the jury that this court hasn't defined the term. But that seems to be problematic. And I, I guess I would simply say, as I said before, it deemphasizes the term. Um, uh, I think there could be additional problems, but, uh, I, I think that is, um, the, the fundamental problem. We reviewed this under an unsustainable exercise of discretion. Is That right? That's correct. So there's some deference owe to the trial court's Definition. There absolutely is. Um, I would say that Mr. Chopin's burden in that respect is higher, uh, than it would be, um, in other circumstances. However, uh, here I think the, um, the deviation from the definition that this court, um, imposed in Morehouse, uh, is so different that, uh, it meets that burden. Second, uh, I wanna address the court's, uh, uh, defining of the unit of prosecution for the assault of acts. Um, in this case, the trial court was correct that the in its baseline determination that the jury could not have parsed jain's, um, assaultive conduct into four separate acts. Uh, in Ford. This court, uh, looked at some of the factors into what defines the boundaries or the contours of an act. Uh, it includes time, it includes location, it includes, um, intended purpose. Uh, Ford was not dealing with this issue. This court has not actually dealt with this issue head on before. So, uh, this is an, an issue of first impression here. Um, the, but the cases that we've cited from out of state, uh, that have addressed this head on, have talked about the very speci the, the specific issue that's before you today. Uh, Villanueva Gonzalez from Washington, uh, discussed the factors mentioned in four time, location, intent, um, in the context of a domestic violence case, uh, Nixon from Connecticut discussed, um, that double jeopardy was violated, uh, when there were two convictions in the context of a single victim, the crime was non-sexual. That's an important distinction in a lot of the cases. Um, it was continuous, uninterrupted, um, and it was close in time. These are all things without citing to these cases. The trial court, um, was echoing this logic, um, in due, uh, which is from North Carolina. Uh, it explained the concept of distinct interruption. I think they used the term pause and hostilities. Yeah, they, they used the distinct interruption break, pause and hostilities. And as I was reading it, I was thinking, doesn't that support the trial court's decision here under the facts that are not in dispute in terms of your client, um, the, the victim leaving the house and then returning to the house? Isn't that a distinct interruption? So what you're dovetailing with is the, uh, issue number four, which as we framed it, the, the jury in this case was provided direct evidence that there was a, um, strike to the face inside the house. The jury was also provided a direct testimony that there was a strike to the face outside the jury was provided direct testimony that there was an injury to the nose. The jury was provided no testimony as to where the injury occurred. Because of that, uh, the trial court had to fill that in later in making its determination. That's purely circumstantial. That injury could have happened in the house, or it could have happened outside the house. But we don't know. That is the very definition of circumstantial evidence, and that is why that portion of the trial court's order cannot be sustained. So you would have it that the, the state has to put on evidence as to each injury that arose from each strike in order to have a conviction on more than one charge. What we're arguing to the court, um, with respect is that there is this test that should be employed that other states have. It's gonna be fact specific, of course, but it gives guidance to the lower courts as to what the unit of prosecution is. Right now. There's no guidance, um, and there's no clear direction in the statute that every either, um, let me backtrack there. There's no clear direction in the statute that every single strike that causes an injury is a separate assault. We contend it is not. And, um, if it is not abundantly clear, certainly the rule of laity should be applied if the legislature so chooses, they can, uh, reject that at some point. But here, all of the logic from those other cases make sense. It gives a clear test, it gives flexibility to the trial courts and, uh, applying that test. And it's gonna be different all the time, of course, depending on the circumstances. But the desire to, um, stack charges is overwhelming. And our system already takes into account. Prosecution can choose the level of charge. The court can employ a range of sentencing depending on what someone is convicted of. So if it's a singular offense, maybe it's at this end of the spectrum. If it's, if the facts warranted, maybe it can be at the upper limit of the sentencing range. What, what is the standard of review that we should apply to the court's implicit or explicit factual findings that are the basis for its double jeopardy analysis? I think it should be deferential to the, to the trial court. Um, the, um, I think given the, uh, the analysis that it undertook, of course, in determining the, um, let me rephrase that. This court has to decide this vo right? It hasn't been decided before. It's a novel legal issue. Um, you three have the authority to decide this issue. Um, I think the logic of the trial court deserves deference in a, uh, in one sense. But this, this is a de novo review. Lastly, and I'm almost out of time Indictments, uh, that allege the enhancement factors went to the jury. Uh, that's not always the case. Not every trial court judge does that. Sometimes they just give the instructions. I assume the red light's on, can you not? Yeah. Okay. Uh, trial courts don't always, um, provide the indictments to the jury, but in this case, it did. And the language specifically refers to the act itself. Um, in the first instance, it's because, uh, it uses the term manifesting exceptional cruelty or depravity in inflicting serious bodily injury. Uh, the second is creates a dependent clause when he struck her with his hand. So if you find that element, um, for those charges of necessity, you have to find what proceeded it. And that distinguishes this case from all of the case law of this court, which clearly holds that It's the circumstances that matter, and that's what has to be considered. Thank you. Thank you, Mr. Gagne. Good afternoon, your honors. May it please the court, Sam Gagne for the State of New Hampshire. My plan this afternoon is to first respond to a couple of points the defendant made in his reply brief, which will dovetail with the conversation that, uh, the court was just having with Attorney Reese. And then address some of the sufficiency issues with respect to each conviction in the defendant's open brief, and more specifically in his reply brief, the defendant has argued that the standard, the sufficiency standard that should apply on appeal is that which is applied to cases in which a charge or an element of a charge is proven solely through circumstantial evidence. The defendant has argued that in this case, the causation element is proven solely through circumstantial evidence. And the state disagrees. The victim testified at length and in depth to the adults that she suffered at the hands of the defendant and the injuries that they caused. And Dr. Hope testified that the injury he observed on the victim were consistent with someone who had been assaulted, and other traumas that might produce the same injuries that he observed on the victim were falling from what he characterized as a fairly good height or being hit by a car as a pedestrian. And the state would submit that all of that is direct evidence that the defendant's conduct caused the victim's injuries. But even if this court were to disagree and apply the circumstantial evidence articulation, the defendant's argument still fails. In this case, the evidence was sufficient to exclude all conclusions except for guilt, because there is not a shred of evidence on this record that could provide an alternative, reasonable explanation of the cause of the victim's injuries. Turning to the continuing course of conduct concept in his reply brief, the defendant cites a handful of cases from outside the jurisdiction to support his argument that the defendant only be convicted of one count of assault because his beating of the victim occurred at one address over the course of one. That result is illogical, unjust, and is not supported by the law in New Hampshire. This is not a case of first impression. This case is governed by this court's precedent in state versus Woodbury. In Woodbury, the defendant attacked the plaintiff right outside of his prison cell and punched him three times. The defendant argued that he could only be convicted of one count of assault because the assault took place all right outside the prison cell and all relatively quickly. And this court rejected that argument, and this court held that so long as dissimilar facts prove each assault, then there's no double jeopardy issue. And this court reached the same conclusion three years earlier in the unpublished decision, but instructive of state versus Harris in state versus Harris, the defendant and the victim got into an argument in the defendant's home office. The defendant jumped out his chair, grabbed the victim by the throat, pushed her through a door into an adjoining workshop, and then in that workshop grabbed her by the wrist and pinned her against the door to the workshop. Those comprised what this court referred to as the grabbing, pushing, and pinning charges. And the defendant argued that he could only be convicted of one count of assault for grabbing, pushing, and pinning, because all of that can happen in one motion. And he argued that it all happened in close proximity. And over the course of a few seconds, and this court rejected that argument and said that each one of those assaults requires different evidence, specifically the grabbing required evidence that he grabbed the victim's throat, pushing required evidence that he pushed her imp pinning required evidence that he pinned her wrists against the wall. And this court further declined to apply the rule of ity because this court looks to the language of the simple assault statute and the simple assault statute, just like the first degree assault statute, and the second degree assault statute is worded in the singular. And so this court concluded that each act of unprivileged contact causes an injury if it can be proven with dissimilar facts from other assaults can stand on its own as an assault conviction. And as a final illustrative example and state versus Kruger, this court affirmed 90 separate sexual assault convictions, all of which occurred in one room over the span of 25 minutes and was caught on video. And this court was careful at the end of that opinion to caution against prosecutorial over zealousness. But this court recognized that the state has broad discretion in charging a defendant with multiple offenses arising out of a single event. And to mention something that attorney Reman, he mentioned that in those out of short state cases, there was a distinction between sexual assault and regular assault in the cases that I had read it, the reason for that was because of the state statute, the language of each state statute. I believe it was the Connecticut Court that found their sexual assault statute was worded such that multiple offenses could be charged from one event, but their assault statute was not so worded. I, I don't, that is not controlling on this court. And this court should look to Woodbury Harris Kruger in cases like that. Do you Agree? This is de Novo review on this question. The ultimate legal determination whether or not this violates double jeopardy is a day novo review. Uh, I think the trial court's factual findings are still owed deference, and this court applies the law to those facts and comes to a day Novo legal conclusion, the trial court in some. So, does it matter if this is the domestic violence variant of the assault statute? I do not believe that it does, uh, make a difference, your Honor. It is still worded in the singular, and, and I think this court should continue to look e even setting aside the statute being worded in the singular, I think this court should continue to look to what it has said in Woodbury and Harris. If you can prove separate assaults using dissimilar facts, you don't have a double jeopardy problem. This isn't like criminal restraint, that's the Gibbs case. This isn't like possession, that's the far case. Yeah. We should give, uh, judge Brown deference with respect to his factual findings when he reduced the four charges to two. Is that right? The legal conclusion is incorrect, your Honor, I, I, I think I, I don't think Judge Brown got to that conclusion by reevaluating the facts. He reformulated the way he was applying the law, and the way he reformulated application was that there needed to be some meaningful spatial temporal separation or break in hostilities. That is not the law of assault because it isn't like criminal restraint. It isn't like possession crim. You can restrain somebody continuously for hours on end, and you can possess something continuously for hours on end, but as soon as you punch somebody in the face that assault's over, and I think it would be difficult to argue that if you then punch them in the gut, the punch in the gut is just a continuation of a punch in the face. So the definition from Ford that a criminal act is the sum of discreet acts that constitutes a, a criminal offense isn't really applicable to assault because assault, the, the crime of assault itself is a discreet act. So punching somebody in the face three times in five seconds, is that three separate chargeable offenses in your view? Uh, I do think so, your Honor. And I think the way that, that, uh, I, I, I think practical problems begin to arise, and that's why maybe you don't see three, uh, charges all the time in situations like that. It, it might be difficult to prove that they were punched three separate times, or as a matter of prosecutorial discretion, maybe you think a certain instance doesn't deserve that many sentences. So you don't charge that way. But that's not because it's legally impermissible. It, it's a proof problem. It's a discretion problem. If you punch somebody in the face three times, you have committed three crimes. And how do you respond to attorney Reese's observation that the jury wasn't provided with any direct evidence as to when the victim sustained a nasal fracture? Uh, your Honor, I, I have never read a case where the state to prove assault was required to prove exactly which strike caused which injury at exactly which time. I, I just don't think there's any legal support for that. In a case where, say somebody was punched in the face as Justice Bassett said three times in five seconds, and all you have is one broken jaw, uh, it, it would be asking a lot to require the state to prove which of the three punches broke the jaw. Despite that each indictment included reference to an injury. So you've got a, you don't have to match what's charged in the indictment. I think you have to provide evidence sufficient for the jury to either find directly or through inference that one of the strikes that they heard of or one of the number of punches resulted in, uh, one of those injuries. Again, I do not think there needs to be any meaningful split in time or space, but even if that were required, that's present in this case. So even if the trial court was not incorrect in its reformulation of the law, although the state intends that it, the trial court was initially correct the first two times when it said the state, uh, the jury had ample evidence to find that distinct acts of the defendant caused the different injuries, even if the trial court were correct in saying there needed to be spatial and temporal separation. We have that here. The victim began by testifying generally. She testified that she was moving around dodging punches. She was on the floor balled up, trying to protect herself while the defendant just rained punches. But then she got specific, she said that the defendant hit her with a liver shot by the back door, a liver shot from the defendant who explains to her that it, it a punch that is meant to incapacitate via excruciating pain for at least 10 seconds. And then she got punched on a healing circle incision over on the loveseat. So now we have a punch by the back door and a punch on the loveseat, and then she runs outside. And after being laughed at by the defendant and coming back to the house, she's punched in the nose where she immediately starts bleeding and seeing stops. So now we have one by the back door, one by the love seat, one outside the back door, and then just before going to bed, before begging, uh, after begging the defendant not to hit her again, she gets into bed and she's punched again on the right side in her rib. So now we have at least four punches that are testified to specifically that occur at different places in the house that are presumably separated by at least the period of time that it takes to get from the back door to the loveseat or the loveseat to outside. That is all the station and temporal separation that we need to find distinct. And so again, we don't need an injury matched up with each assault. That is correct, your Honor. Uh, it does not need to be proven that specifically the punch on the loveseat broke one of the ribs. Indeed. So Back to the cruelty aspect. How does the state differentiate this beating from a sort of tortured beating, if you will? Um, wouldn't all meetings be some level of cruelty? So the enhancement here, what are the circumstances that put it into that category? For my own clarity, justice hunts, McConney, are you speaking to the definition of cruelty of the jury instruction issue or the manifestation of extreme? Well, the, the definition that was, as counsel said, a bit less than, um, we might have referenced previously, so, Sure. Uh, so I, at first I would disagree that it, the definition was in any way watered down. I would then point, uh, to Justice Bassett's point that Morehouse here is not like Wentworth. This court did not say, here's an instruction trial. Courts need to use this going forward. This court simply observed that you were, but The state observed that Morehouse was dated. So what about it was dated, would lead the court to, or the state to argue for a different definition? Uh, Whatever the state may have argued. Your Honor, the trial court's reasoning for not giving Morehouse was that it would get, it would beg more questions than it would answer. The jury would get the definition. They would hear the word insensate in that definition, and then they would come back with another question that was not unreasonable or untenable to the prejudice of the defendant's case, which is the standard he needed to meet under unsustainable exercise. But then when they did ask what they got was the dictionary definition, which I guess could apply to any assault. I, I would disagree, your Honor. I, I would need to, uh, look at Black's law dictionary to see the exact punctuation. My understanding is that the jury did not have blacks in front of them, so they wouldn't have been looking at the punctuation. But the last sentence as applied to the latter, the wanton, malicious and unnecessary infliction of pain upon the body, or the feelings and emotions, abusive treatment or inhumanity outrage, I would argue that abusive treatment in black's law dictionary is not a definition of cruel. It would be wanton, malicious, and unnecessary infliction of abusive treatment. That is what brings it to the level of cruel, is that it is unnecessary malicious in wanton. Isn't that any assault other than self-defense unnecessary? I think all the terms are intended to be read together, not just unnecessary, but also wanton and malicious. Correct, your Honor, that's wanton, malicious, and unnecessary. Uh, I would agree with justice dono than that. And just to point, um, back to Morehouse's definition, disposed to inflict pain in a wanton incense manner or disjunctive or given to killing and maning or to tormenting the first part of that definition and the definition provided by blacks, I, I really don't see much daylight between them in the court. Fairly instructed the law, the jury on the law as a whole, but, But given to killing mangling or tormenting, that concept really isn't reflected in what the trial court said here, I see my justice, basically. Please, can I just response to that? Yes, I would agree that those last, uh, adjectives are not in this definition, but I would again, reiterate that that is a disjunctive and it doesn't. So it could be the beginning of that definition, inflicting pain in a wanton, incensed manner, and that matches up. And I also don't think because the blast definition doesn't include killing mangling or tormenting that it is watered down. I think the malicious, unnecessary infliction of the things that it mentions there covers acts that, uh, constitute killing man or tormenting. Thank you. Your honors. Thank you very much, counsel. Mr. Reese, do you wish to use your two minutes? I do. The definitions is not dated. The definition used in Morehouse, in Webster's, um, I confirmed with the librarian here at the Supreme Court is the same definition that exists now, The cases that the state sites that are, um, uh, according to the state, supportive of their position, uh, Woodbury Harris, and, uh, in their brief, they mentioned Levitt, all with respect to Woodbury Harris, those cases explicitly discuss unprivileged physical contact, not an injury, not a assault causing injury. One can infer, although you do not know from the opinion in Levitt, that it is also a simple assault. That is a case where the defendant kicked a police officer at the defendant's home, and then when the police officer got the defendant to the hospital, he kicked him again. So the analysis in that case actually is supportive of what the trial court did in this case, because there was a separation of the two instances by time and place. Um, I would suggest to the court that none of those three cases, um, are contrary, uh, to what Mr. Chavin is arguing. And further, I would argue that, um, they, uh, this court again has not addressed this issue. Uh, the state mentions, uh, state versus Krueger, that was a case where there were 90 sexual assaults that was caught on video. They, they, uh, the state slowed the video down, stopped it periodically, and were able to, uh, uh, definitively record every single incident. And this court has been clear that each act of penetration in the sexual assault context is a, uh, separate sexual assault. Um, the, and I would just finish by saying that the trial court was not going off the rails here when it determined the, um, unit of prosecution, it was basing this on what the groundwork that this court laid in forward. Thank you. Thank you Very much, counsel. Case submitted. The court is now in recess. Thank You. Please rise.