State of New Hampshire v. John Fortune

II. Whether the court acted within its discretion when it declined to give an instruction on the lesser-included offense of sale of drugs.

A Sullivan County Grand Jury charged the defendant with the following: (1) selling a drug to the victim that caused the victim’s death, RSA 318-B:2, I-a, 318-B:26, IX; DBA A93-A94; T 25-26; and (2) two counts of conspiracy to sell drugs, RSA 318-B:2, I; T 26-29. The defendant was also charged with breach of bail for the conduct underlying the death- resulting charge, RSA 597:14-b, NOA 5.

A jury found the defendant guilty of death-resulting and of one of the conspiracy charges. T 832. The jury acquitted on the other conspiracy. T 831. The court (Honigberg, J.) later dismissed the remaining conspiracy charge. DBA A102-A108.

The court sentenced the defendant to fifteen to thirty years on the death-resulting charge, two-and-one-half years of the minimum subject to suspension. DBA A95-A98. The court imposed a consecutive, suspended term of three-and-one-half to seven years on the breach of bail charge. DBA A99-A101.

This appeal followed.

Jade Wilson was in the apartment. T 349. She signed a consent to search the residence, her cell phone, and the victim’s cellphone. T 350. During that investigation, Ms. Wilson agreed to work as a cooperating individual. T 77.

Ms. Wilson met the victim through a mutual friend in 2015 while the victim was incarcerated. T 378. Together they had a son who was five years old at the time of trial. T 377. Both the victim and Wilson struggled with addiction, and Wilson was convicted of a drug-related charge in 2018, as well as another felony conviction in 2022, which was related to the fatal heroin purchase she made with the victim from the defendant. T 379, 467. In May 2021, Ms. Wilson lived in the apartment on Hale Street with the victim and their son for three years. T 380. On the morning of May 2, 2021, at about 10:00 a.m., the victim left the apartment with his son and his uncle, Mahlon Wilson. T 381, 427.

While the victim was gone, he communicated with Ms. Wilson communicated via Facebook Messenger. T 382. He took her phone with him because her phone had “data for calling and his only had wi-fi, so [Ms. Wilson] kept the one with wi-fi and he took [hers] for calling purposes.” T 382. They used each other’s Facebook accounts. T 383.

While the victim was away, he communicated with Ms. Wilson about getting heroin or cocaine. T 429. The victim asked Ms. Wilson if she wanted “up or down, ” i.e. heroin (“down”) or cocaine (“up”). T 29-30. Ms. Wilson responded, “You pick.” T 430. The victim picked “down.” T 430. At 10:42 a.m., the victim sent her a message asking, “Babe, is John Fortune [the defendant] on [Facebook]?” T 427. Ms. Wilson responded, “He was 15 minutes ago.” T 427. Ms. Wilson then sent the victim the defendant’s telephone number, which she got from the defendant through his Facebook account. T 428.

When Ms. Wilson asked, “Where are you getting down?”, the victim replied, “Concord from John.” T 431. At 12:06 p.m., the victim sent the following message: “We are real Gucci, Boo. I love you. See you soon.” T 435. Ms. Wilson understood this message to mean that the victim “was successful in picking up either the heroin or the coke” and that he was returning home. T 435. Later, the victim sent Ms. Wilson the following message: “We are in New London. We are going to stop at Rite Aid, then home, ” and he attached a picture of himself in the car with their son in the backseat. T 437-38 At 1:52 p.m., he sent Ms. Wilson a message telling her that they were in the drive-through at Rite Aid waiting to purchase new needles to use to inject heroin. T 440-41.

When they returned home, their son ran to Ms. Wilson and they sat together as the victim, who was at the kitchen counter, “started setting up the heroin to inject.” T 441-42. The victim then “motioned for [Ms. Wilson] to come over when it was all set and [they] went around the other side of the counter so that [their son] wouldn’t be in view of it.” T 442. Ms. Wilson recalled: [Our son] stayed on the bed and was kind of jumping around. And first [the victim] couldn’t inject himself and was unable to find a vein so he said, let’s try yours. He injected me. I went back to my son after.

[The victim] went back to the other side of the counter and said he was going to try again himself. My back was then turned to him and I was talking with our son. And the next time I went to turn around, he was just holding onto a chair and nonresponsive, eyes shut.

T 442.

She continued:

[W]hen I turned around, because I didn’ t hear anything anymore, he was holding onto one of my barstools for the - you know, the island, eyes shut, and I went to say his name and try to see if maybe he just kind of nodded off so to speak, but there was just breathing - light breathing…

I thought he was overdosing…

I grabbed onto him and got him down to the floor, just so he wouldn’t fall.

T 447-48. She then called 911. T 448.

Ms. Wilson estimated that about five minutes had elapsed between her injection and the point at which she realized that the victim was overdosing. T 446. As she waited for the paramedics to arrive, she performed CPR. T 449. After they arrived, Ms. Wilson took her son to the upstairs bedroom and she played with him until the paramedics came to the room to see her and told her that the victim “didn’t make it.” T 450.

Ms. Wilson went to the police station and a coworker came to take care of her son. T 450. She spent the afternoon at the police station and gave permission to the police to search the house and the phones. T 451. Eventually, a member of the New Hampshire Drug Task Force asked her to set up another drug purchase with the defendant. T 451. After a few failed attempts, Ms. Wilson reached the defendant by calling the same telephone number she had given to the victim. T 453-54. After setting up the purchase, Ms. Wilson rode to Meredith with the investigating officers. T 455-56. Once in Meredith, they stopped at a McDonald’s and she called the defendant to confirm the meeting place for the sale. T 456. The defendant met Ms. Wilson at a dock down the street. T 457. She wore a recording device and the police gave her money to complete the sale. T 457-58.

Once at the dock, Ms. Wilson walked up a hill and met the defendant, the defendant’s girlfriend, and another woman. T 458. One of the women asked her for the cash so that she could count it and the second woman gave her the heroin. T 458-59.

The victim’s uncle, Mahlon Wilson, also testified to the events as he knew them. Mahlon Wilson lived in Claremont and worked as a truck driver for Casella Waste Systems. T 579. On May 2, 2021, the victim asked Mahlon Wilson to drive him to Concord. T 580. He told Mahlon Wilson that he needed a ride to “retrieve his wallet that he had lost the previous week.” T 581. Mahlon picked the victim and the victim’s son up in Newport and drove them to a motel in the Bow Junction-Concord area in Concord. T 581-82. The victim talked to the person who had his wallet and learned that the person was in Laconia, so Mahlon Wilson drove them to a housing complex in Laconia. T 583-84.

Once they arrived in Laconia, the victim contacted the person who had the wallet. T 584. The victim and that person “went inside the building for approximately 5 to 10 minutes. And [the victim] returned with a wallet in his hand.” T 584. On the way home, Mahlon Wilson stopped at Cumberland Farms in Franklin to buy Aleve because both he and the victim had headaches. T 585.

They continued their trip to Newport, stopping at the Newport Rite Aid to pick up a prescription for Ms. Wilson. T 586-87. After going into the Rite Aid, the victim returned and asked his uncle to drive them to the Claremont Rite Aid because the Newport pharmacy had only one of the prescriptions. T 587. Mahlon Wilson drove them to the Claremont pharmacy and the victim entered and returned to the truck with the second prescription. T 588. Mahlon Wilson then drove the victim and the victim’s son back to Hale Street and left. T 588.

On May 2, 2021, at about 3:10 p.m., Newport Detective Stephen A. “Alex” Lee responded to 38 Hale Street in response the overdose. T 609, 614-15. When he arrived, the victim was lying on the floor, and Detective Lee “could see that he was breathing because his chest was moving up and down. But his breathing was very labored, and [the detective] was not able to wake him up or get his attention.” T 615-16. After the Fire Department and EMTs arrived, they worked to save the victim for a half-hour or more. T 616. As the victim “stopped breathing and no longer had a pulse, they administer[ed] CPR, oxygen, Narcan, et cetera.” T 616.

Detective Lee took photographs of the apartment, and one photograph of the kitchen counter showed “the handle of a clear, plastic spoon. Underneath the spoon, [was] a blue, cut straw. To the left of the blue, cut straw, [was] a syringe with the plunger pulled back and a cotton swabbed Q-tip underneath it. To the left of that, [was] a thin piece of dark- colored cloth, which was the -- consistent with the size and shape of a torniquet.” T 624. “Above the piece of cloth [was] a bag of unused syringes, and a receipt to the Rite Aid drug store underneath that bag of syringes.” T 625.

On the counter, the detective also found a syringe which was “unpacked and had some liquid in the bottom right there. To the left of that [was] another clear plastic spoon, which had a little piece of wadded-up cotton ball on it. There [were] some more Q-tip cotton swabs and a clear cap to a syringe.” T 626. Detective Lee also found “a balled up or wadded-up piece of aluminum foil” and when he “opened the aluminum foil, [he] observed what appeared to be burnt or charred Brillo inside of it, as well as another small Ziploc baggie.” T 628-29. Detective Lee explained: “Aluminum foil is used sometimes as a surface to heat drugs, either for smoking or to then put in a syringe. Brillo is sometimes put into glass smoking pipes as a filter. And then the Ziploc bag, controlled drugs are often stored in small Ziploc bags.” T 629.

On May 2, 2021, Newport Police Officer Shawn Seymour was assigned to the Attorney General’s Drug Task Force. T 72-73. That day, he responded to the report of the victim’s drug overdose on Hale Street. T 75-76. He interviewed Ms. Wilson, who was “willing to sign up as a cooperating individual.” T 77. During the interview, Ms. Wilson gave Officer Seymour the defendant’s telephone number and Officer Seymour contacted the Attorney General’s Office and obtained one-party authorization. T 80. Although the initial calls made by Ms. Wilson to the defendant were not successful, she eventually reached him and set up a purchase. T 83. Officer Seymour acted as the undercover officer and drove Ms. Wilson to make the purchase. T 84. Before she left the car to meet the defendant, the officer gave Ms. Wilson $150 to use to buy heroin from the defendant. T 91. When she returned to Officer Seymour, she gave him a clear baggy containing a brownish substance. T 92. When the defendant was arrested on May 12, 2021, Officer Seymour interviewed him. T 98. The defendant claimed that he was not well and, upon being taken to the hospital, attempted to flee. T 678, 695-96. Detective Lee said that he had noticed that the defendant was “becoming more and more agitated.” T 679. The detective recalled: “[The defendant] got up from his hospital bed and started to walk towards the door… And then he ran out of the hospital room and ran down past the nurses’ station and towards the doors to exit the hospital.” T 679. When Detective Lee tried to catch him, the defendant pushed him away. T 679. Detective Seymour, who was in the hospital parking lot, saw the attempted escape, came to Detective Lee’s aid, and together they stopped the defendant’s flight. T 679.

Newport Police Department Patrol Officer Alexander Marvin also responded to Hale Street on May 2, 2021. T 349. He obtained consent from Ms. Wilson to search the apartment and the phones. T 350-51. Claremont Police Detective Joshua Peavey was a certified Cellbrite physical analyst. T 317. He explained that Cellbrite was “a kind of software where I can extract data from cell phones or tablets, any kind of electronic device.” T 318. He examined the data from the phones that belonged to Ms. Wilson and the victim. T 320. He “completed extraction of those and manually searched through it as well locating a conversation with John Fortune, who was reported to have sold drugs, which caused [the victim] to fatally overdose.” T 320.

On May 3, 2021, Deputy Chief Medical Examiner Mitchell Weinberg performed the autopsy on the victim. T 276, 283. During the autopsy, Dr. Wilson noted track marks on the victim’s arm that were consistent with “recent needle drug use.” T 85-86. Dr. Wilson said that, “in [his] best medical opinion” the victim “died as a result of fentanyl toxicity.” T 279.

NMS Laboratories forensic toxicologist Daniel Anderson testified that NMS received three samples from the victim’s autopsy to test: “two femoral bloods and a urine” sample. T 174. Anderson testified that medical examiners frequently submitted femoral blood because it tended not to “falsely elevate drug levels” the way that blood closer to the heart could. T 175. NMS Laboratory testing showed that fentanyl and norfentanyl were in the victim’s samples. T 195. Anderson testified that fentanyl was “very, very potent. It causes central nervous system depression, drowsiness, and in the number itself, 8.4 nanograms per milliliter [in the sample], [was] of significance.” T 195. Drug Enforcement Administration Senior Forensic Chemist Vadim Ashtrakan examined the drugs that Ms. Wilson bought from the defendant. T 228-29. He concluded that the baggy that the defendant sold to Ms. Wilson contained 1.105 grams of fentanyl. T 229.

DBA A7. He continued: “The fact that the purchaser of the controlled drug subsequently died outside of the county where the crime was committed is not relevant to any of the elements of the alleged crime. Rather, this fact, if proven, only relates to the punishment as a sentence enhancement.” DBA A7.

On October 19, 2021, the State objected. DBA A9. The State pointed the court to RSA 625:4, I(a), which it noted, defined territorial jurisdiction as “any offense committed by his own conduct or by the conduct of another for which he is legally accountable if [the] conduct which is an element of the offense or the result which is such an element occurs within this state.” DBA A10.

The State directed the trial court’s attention to State v. Marshall, 162 N.H. 657, 662 (2011), which explained the elements of the offense as follows: “a defendant must not only engage in certain conduct (manufacturing, selling or dispensing a controlled drug), but also must cause a specified result to occur (the victim’s death from injecting, inhaling or ingesting the controlled drug).” DBA A12. Because the victim’s death occurred in Sullivan County and because that death was “a necessary element for the State to prove, ” the State concluded that the case was “properly situated before the Sullivan [County] Superior Court.” DBA A13.

On November 19, 2021, the trial court held a hearing in which it entertained oral argument on this motion and other pending motions. 11/19/21 T 1. In that hearing, the defendant contended that the defendant’s act that committed the crime – the sale of the lethal dose of narcotics – did not occur in Sullivan County. 11/19/21 T 4.

Trial counsel argued: My client is charged with committing a crime in Belknap County. That is the selling of drugs. That is the actus reus in the case. So whether or not somebody dies somewhere else - I don’t think anybody would agree that he was feloniously stricken, wounded, or poisoned in Belknap County. It was a drug sale, and [the victim’s] using the drug was fatal to him. But again, that’s [the victim’s] act and not the Defendant’s act.

11/19/21 T 4-5.

The State responded:

The death happened here. It is a necessary element that both an ingestion and a death takes place in order to viably prosecute a distribution, death resulting. So it’s not just the sale. The Defendant - or the decedent also has to ingest it and then they also have to die. If it was just a sale, then I would probably tend - if it was just a hand-to-hand transaction - take the conspiracies aside - then I would agree with Attorney Hutchins that the transaction would likely have - that the jurisdiction and the proper venue would have been in Belknap.

But the fact is, is that the legislature created this statute to address a huge problem in this state with respect to changing the context of the marketplace for distribution. And the statute requires me to [prove] that a sale took place, the injection took place, and a death took place. Each of those are elements, and under a jurisdictional statute, the elements touching in this county, there’s two of them.

T 7.

On February 2, 2022, the trial court (Tucker, J.) denied the defendant’s motion to dismiss for lack of venue. AD A58. The trial court wrote that “the statute on venue provides that ‘if parts of an offense are committed in more than one county... the offense shall be deemed to have been committed, the offender may be prosecuted, and the trial may be had in either county.’” (quoting RSA 602:1). AD A59-60. The court then noted that a person who sells drugs is “‘strictly liable for a death which results from the injection, inhalation or ingestion of that substance.’” (quoting RSA 318-B:26, IX).

The court continued: If death results from the act of ingesting the substance sold, then “the person’s act of manufacturing, dispensing, or selling a substance is the cause of a death.” Id. Therefore, “[t]o violate RSA 318– B:26, IX, a defendant must not only engage in certain conduct (manufacturing, selling or dispensing a controlled drug), but also must cause a specified result to occur (the victim's death from injecting, inhaling or ingesting the controlled drug).” State v. Marshall, 162 N.H. 657, 663 (2011). Acts alleged (or likely shown) to have occurred in Sullivan County that comprise the crime are [the victim’s] ingestion of the drug sold and his death.

AD A60.

The court concluded: [W]here death is an element of the offense and a person acts so as to cause the death in that county, venue in that county is proper. Cf. RSA 625:4, I(a) (person may be convicted under New Hampshire law if the result of his conduct is an element of the offense and occurs in this state.) Specific to the allegations in this case, if the drug was sold in Belknap County, but consumed in Sullivan County with death resulting, parts of the offense were committed in both counties and venue in Sullivan County would be proper.

AD A61.

The proposed instruction read: If you decide that the defendant is not guilty of the crime of Accomplice to Sale of a Controlled Drug – Death Resulting, or if after reasonable efforts you are unable to reach a verdict on the charge of Accomplice to Sale of a Controlled Drug – Death Resulting, then you should go on to consider and decide whether he/she is guilty of a similar, but less serious, crime.

A similar, but less serious, crime is different from a more serious crime in one of several ways: either it requires a less serious physical act, or it requires a less serious mental intent or it is not the cause of a certain result.

Here, if you decide that the defendant is not guilty of Accomplice to Sale of a Controlled Drug – Death Resulting, or if after reason- able efforts you are unable to reach a verdict on Accomplice to Sale of a Controlled Drug – Death Resulting, then you should consider whether the State has proven beyond a reasonable doubt that he/she is guilty of the similar, but less serious crime of Accomplice to Sale of Fentanyl.

DBA A81.

On April 8, 2022, the trial court first considered the request. T 533- 45. It was clear from the outset that the issue of the lesser-included offense had to be considered with the issue of venue. See T 535 (THE COURT: “the jury’s being asked to decide whether the facts support venue in Sullivan County. If they do that on the death resulting charge, and then they go through their deliberations on the death resulting charge and find he’s not guilty because some other factor, late in the game, they’re not satisfied, but that’s the only cause, or something like that…they acquit. Then you said you want them to consider the lesser included. [That] [t]here should be no new venue analysis for that.”).

The defense contended that “if you remove death resulting, you’ve got, still, a sale of a controlled drug. Therefore, it’s a lesser included offense.” T 534-35. Addressing the problem of venue, the defense argued that the defendant did not “have to trade his request for venue… to be in Belknap County if he asks for a lesser included offense.” T 535. The State responded that the defense was trying to “have it both ways.” T 539. It countered: “[The defense] can’t say that [the jury is] required to find venue on the lesser included and then also say we don’t have venue on the lesser included, and therefore you must find it.” T 539. The State pointed out that the State did not have venue over the sale by itself. T 539.

The court deferred ruling, stating: I think we’ll have to see what the evidence looks like at the end. At this point, the lesser included instruction that you’ve proposed isn’ t supported by what we’ve heard so far at this point because it makes reference to somebody who’s barely been referenced at all, except in the indictment. But you’ve got it set up as an accomplice instruction. And I’m not sure we have that at this point.

T 544.

Later that same day, the trial court told the parties that it had found three out-of-state cases that addressed the lesser-included offense issue as it related to venue. T 650-51. Each of the cases, the trial court noted, found that it would be “improper to instruct on a lesser included where venue would not have applied for that lesser included.” T 650-51. After testimony closed that day, the trial court heard additional argument on the propriety of giving a lesser-included offense instruction. The State contended that “there has to be a rational basis for finding guilt on the lesser included with the fact that venue is, in fact, an element [that the jury] must find.” T 737. The defense countered that, if the charges had been brought in Belknap County, there was “no question that there would be a lesser included offense instruction.” T 737. The court then responded: “I think the decisions that are on point are the ones that I gave you the cites for. If you’ve got some other authority that interprets the situation differently, I’m all ears…” T 738. The defense responded that it had not “found any yet, ” but acknowledged that it had not had “a whole lot of time to look.” T 738. The court suggested that the defense look for cases over the weekend and, if the defense “[came] up with something, ” they could discuss it on Monday. T 738.

When trial resumed on Monday, the defense again argued that it was entitled to a lesser-included offense instruction. 4/11/22 T 2-3. The defense contended that, “[t]he State chose to bring [the charges] here, and [the defendant] should not be divested of or not allowed to ask for a lesser included offense in this county where he’s always been asked to be - his cases be brought in Belknap County.” 4/11/22 T 3. The court responded, “[U]nless you’ve got some new authority beyond what we’ve talked about, I think for the reasons we talked about on Friday, it would not be appropriate to give the lesser included instruction in this unusual situation.” T 4.

1. The trial court properly found venue in Sullivan County for the charge of distributing drugs with death resulting. Because this Court has found that the resulting death is an element of the crime of distributing a controlled substance, death resulting, the trial court made no error in concluding that venue rested in both Belknap County, where the sale took place, and Sullivan County, where the victim overdosed and died. 2. The trial court acted within its discretion in declining to give an instruction on the lesser-included offense of sale of drugs. Since venue was both an element of the offense and a subject of ongoing debate as the case proceeded through the court, the court properly concluded that the lesser- included offense instruction was not appropriate. The State could not prove that the sale took place in Sullivan County and, for reasons that became clear in the defendant’s closing argument, the defense was unwilling to abandon its contention that the State was required to prove venue. Accordingly, the trial court properly declined to give the instruction.

Part I, Article 17 grants a criminal defendant “the right to be tried where the crime was committed.” State v. Addison (Capital Murder), 165 N.H. 381, 426 (2013); see also RSA 602:1 (“Offenders shall be prosecuted and tried in the county or judicial district thereof in which the offense was committed.”).

But New Hampshire law does acknowledge that venue may be located in more than one county if the crime occurs in more than one county. RSA 602:1 specifically states that “if any person is feloniously stricken, wounded or poisoned in one county or judicial district thereof and dies thereof in another, or if parts of an offense are committed in more than one county or judicial district thereof, the offense shall be deemed to have been committed, the offender may be prosecuted, and the trial may be had in either county or judicial district thereof.” See also N.H. Crim. P. 18(a) (“Every offense shall be prosecuted in the county or judicial district in which it was committed. If part of an offense is committed in one county, and part in another, the offense may be prosecuted in either county.”). In this case, the defendant sold the lethal drugs in Belknap County, but the victim returned to Sullivan County where he injected the drugs sold to him by the defendant, overdosed, and died. Still, the defendant seeks to focus attention on the location of the defendant’s act. DB 26. The defendant relies on People v. McBurrows, 934 N.W.2d 748 (Mich. 2019), in which the Michigan Supreme Court “looked to the common law for guidance in answering the question: ‘how does one define where it is that a crime was committed?’” DB 27 (quoting McBurrows, 934 N.W.2d at 753). He contends that the legislature used the word “committed” rather than “occurred, ” and that, therefore, venue only lay in Belknap County. DB 27. At the outset, McBurrows is inapplicable because, as the defendant acknowledges, unlike New Hampshire, the Michigan court relied on the common law in the absence of a statute defining venue. This Court has the advantage of a statute that defines venue and that definition clearly includes the facts presented here.

Because this Court may look to the statute, it need look no further. The defendant’s argument relies solely on the first sentence of RSA 602:1. The second sentence goes to create jurisdiction in the county where the victim is “stricken, wounded, or poisoned.” RSA 602:1. The victim in this case was stricken and poisoned – and, indeed, died – in Belknap County and, according to the statute, the offense “shall be deemed to have been committed, the offense may be prosecuted, and the trial may be had” where the victim died. RSA 602:1.

The defendant further contends that “[n]o element of the charged crime occurred in Sullivan County.” T 35. He contends that the provision under RSA 318-B:26, IX that makes a defendant “strictly liable for a death which results” from the use of the substance and provides that a defendant “may be imprisoned for life or for such term as the court may order, ” is a sentencing enhancement, not an element of the offense. T 35-36. The defendant contends that the trial court erred when it equated “facts which must be proved beyond a reasonable doubt with ‘elements.’” DB 36.

But this contention ignores this Court’s opinion setting forth the elements of the offense. In State v. Marshall, 162 N.H. 657, 663 (2011), this Court defined the elements of a death-resulting charge. “To violate RSA 318–B:26, IX, a defendant must not only engage in certain conduct (manufacturing, selling or dispensing a controlled drug), but also must cause a specified result to occur (the victim’s death from injecting, inhaling or ingesting the controlled drug).” Id. (emphasis added). This Court did not say that proof of the sale was proof of the crime and that the resulting death was a sentencing enhancement like that found in Apprendi v. New Jersey, 530 U.S. 466 (2000). Rather, this Court stated that the State must prove that the defendant “cause[d] a specific result to occur, ” specifically, the victim’s death.

The defendant also contends that, if the legislature made “death- resulting” an element of the offense, it violated Part I, Article 17 of the New Hampshire Constitution by enlarging venue. DB 42. The defendant does not direct this Court to the place in the record where this argument was raised. The defendant’s motion to dismiss mentioned Part I, Article 17, DBA A34, as did its response to the State’s objection, DBA A53 (stating, but not developing, its assertion that “any statutory exceptions or modifications would be constitutionally infirm (though it must be noted that the State has raised no such exceptions.”)). But beyond those passing references, it did not argue that the statute was unconstitutional. As such, the claim is waived. State v. Batista-Silva, 171 N.H. 818, 822 (2019) (“Generally, [this Court does] not consider issues raised on appeal that were not presented to the trial. This preservation requirement, expressed in both [this Court’s] case law and Supreme Court Rule 16(3)(b), reflects the general policy that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court.”) (citations omitted)).

But even if the claim is preserved, it is without merit. This Court has made clear that the death of the victim is an element of the charge. As a result, the death of the victim in Sullivan County conferred jurisdiction on the Sullivan County Superior Court. This view is well-established. Cf. State v. Moore, 26 N.H. 448, 455 (1853) (The commission of a crime “be procured in one county in this State, to be committed in another, and the same be actually committed in the other by the principal offender, the accessory may be tried in either county.”). Venue was not unconstitutionally expanded on these facts.

“A trial court must grant a defendant’s requested jury instruction on a specific defense if there is some evidence to support a rational finding in favor of that defense.” State v. Lavoie, 152 N.H. 542, 547 (2005). “‘Some evidence’ means more than a minutia or a scintilla of evidence.” State v. Matton, 165 N.H. 35, 38 (2013) (citation omitted). “To be more than a scintilla, evidence cannot be vague, conjectural, or the mere suspicion about the existence of a fact, but must be real and of such quality as to induce conviction.” State v. Larose, 157 N.H. 28, 33 (2008) (quoting State v. Graham, 614 N.W.2d 266, 272 (Neb. 2000)).

A court need not “give weight to allegations which are intrinsically improbable or flatly contradicted by irrefutable evidence.” United States v. Rodriguez, 858 F.2d 809, 815 (1st Cir. 1988). “Without the necessary quantum of evidence to support the defense, jury instructions are not grounds for reversal if read as a whole they fairly cover the issues of law in the case.” Larose, 157 N.H. at 34 (quoting State v. Letourneau, 133 N.H. 565, 568 (1990)). This Court reviews a trial court’s decision to decline to give an instruction for an unsustainable exercise of discretion. Lavoie, 152 N.H. at 547.

As noted in Section I(c) of this brief, the lesser-included offense issue was tied into the venue issue. The trial court directed the parties to Taylor v. Commonwealth, 708 S.E.2d 241 (Va. Ct. App. 2011), People v. Lee, 54 N.W.2d 305 (Mich. 1952), and State v. Dixon, 691 S.E.2d 207 (Ga. 2010). T 650. In Taylor v. Commonwealth, the Virginia Court of Appeals wrote: [T]he Commonwealth may not rely on a greater offense to prove venue where the evidence fails to prove the defendant committed the greater offense and the lesser- included offense could not be properly charged in the jurisdiction. To hold otherwise would entirely relieve the Commonwealth of the burden to prove venue.

Taylor, 708 S.E.2d at 243.

Similarly, in People v. Lee, the Michigan Supreme Court rejected the contention that the jury should have been instructed on a lesser-included offense and that the trial court erred when it concluded that the verdict “must be either guilty of murder in the first degree or not guilty.” Lee, 54 N.W.2d at 309. The Michigan Supreme Court wrote: The venue depended on the theory of the prosecution that the murder in Livingston county was committed in carrying out a conspiracy and that act to accomplish the murder occurred in the city of Detroit. The necessary implication was that it was murder of the first degree. If it was found to be not murder of the first degree, in practical effect such finding would eliminate the theory of conspiracy in the form and manner relied on by the prosecution and there would be no offense of which the trial court could have venue.

Id. at 309-10.

Finally, in State v. Dixon, the defendant “concede[d] that he could not be convicted by a DeKalb County jury of theft by unauthorized taking under his version of events, because no part of the crime was committed in DeKalb County.” Dixon, 691 S.E2d at 209. The Georgia court continued: “Dixon certainly was not entitled to a jury instruction on a crime the jury could not constitutionally convict him of committing.” Id. The court noted, “A criminal defendant may waive jurisdictional defenses, and may expressly authorize factual stipulations that will obviate the need for proof, ” but the defendant could not do so over the objection of the State. Id. (citations omitted).

In this case, the defendant did not offer to waive venue so that the State would be relieved of proving that the sale took place in Sullivan County. Since the sale did not take place in Sullivan County, the State could not have proved this. The defense reiterated its position before the jury was brought back for final instructions. See 4/11/21 T 2 (Transcript entitled “Designation of Record”) (DEFENSE COUNSEL: “Our position is that Mr. Fortune is entitled to a lesser included offense given that sale of a controlled drug is a lesser included out of a sale of controlled death resulting. I would point out that it was the State that sought that venue be brought here.”). The court responded: “[U]nless you’ve got some new authority beyond what we’ve talked about, I think for the reasons we talked about on Friday, it would not be appropriate to give the lesser included instruction in this unusual situation.” See 4/11/21 T 4. The defense did not offer an alternative resolution and the court did not give the lesser-included offense instruction. Venue was submitted to the jury to consider separately. T 830-31 (verdict return).

The venue argument was central to the defendant’s case. Defense counsel raised it in its opening statement. T 59-60 (DEFENSE COUNSEL: “As I told you yesterday during voir dire, this is not the proper court for this trial. The trial and these charges should be held in Belknap County.”). Defense counsel told the jury: “These cases should be tried in Belknap County because the New Hampshire Constitution requires that a case be tried in Belknap County where the crime, the crime was committed in that county. Not the result, what happened here, but where the crime was committed.” T 60.

From its closing argument, it is clear that the defense did not want to abandon - or even limit - this venue argument. In its closing, the defendant made venue a central point. Defense counsel told the jury: “[T]he State brought the charges in the wrong [venue], in the wrong county. These charges, all of them, should have been brought in the county of the commission or the alleged commission, Belknap County.” T 747. Trial counsel continued: The other problem that the prosecution has in their presentation is that the sale, and I’m talking about the controlled buy sales, occurred in Meredith, New Hampshire. The Judge is going to tell you something we all know. Meredith is not in Sullivan County. We all know it’s in Belknap County. If the prosecutor had brought a simple charge of sale of a controlled drug in Belknap County, they might have a case.

T 749.

Trial counsel then used the venue issue to attack the death-resulting charge: The venue issue is also a problem for the prosecution in sale of a controlled drug death resulting case. The commission of the offense is alleged to have occurred in Laconia, which is in - another town in Belknap County, or city in Belknap County. [The defendant] is the only person who was alleged to have committed the offense and all of his actions are alleged to have occurred in Laconia, Belknap County… Therefore, the element of venue, which must be found beyond a reasonable doubt, is missing and you must acquit [the defendant] of this offense as well.

T 750.

To underscore the importance of this element, the defense returned to it as the closing statement ended: “As I said earlier, the State brings the charges, not the Defendant. They must do it right. The prosecutor must choose the correct charges to bring and must bring those charges in the right place.” T 770 (emphasis added). This theory of the case explains why the defense was unwilling to compromise on the venue question in order to possibly persuade the court to give the lesser-included offense instruction.

The defendant’s contention, therefore, that the State is responsible for “depriving [the defendant] of his right to a lesser-included offense instruction, ” DB 54, rings hollow. The defense wanted to be able to use venue as a basis for acquittal. When trial counsel returned to court on Monday, having had the weekend to consider the options, counsel was steadfast in maintaining that the defense wanted a lesser-included offense instruction, but it would not concede venue in order to get it. This position was tantamount to assuring an acquittal if the jury did not convict on the death-resulting charge.

On these facts, the trial court properly declined to give the lesser- included offense instruction.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State requests a 15-minute oral argument.

I, Elizabeth C. Woodcock, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 6, 924 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

March 12, 2024 /s/Elizabeth C. Woodcock

I, Elizabeth C. Woodcock, hereby certify that a copy of the State’s brief shall be served on Attorney Christopher M. Johnson, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

March 12, 2024 s/Elizabeth C. Woodcock