State of New Hampshire v. Jalen Miller

II. Whether the court erred by failing to instruct the jury on all the elements of obstructing the report of a crime, where the court read the elements of the offense as reflected by the indictment, defined “purposely” during the instructions, and the defendant did not object. III. Whether the court erred by sentencing the defendant on both obstructing the report of a crime and criminal mischief for breaking the victim’s phone, where the elements of the offenses are not the same and where the defendant conceded as much at trial by telling the jury that he was guilty of criminal mischief and assault, but not guilty of the remaining charges, including obstructing the report of a crime.

IV. Whether the court erred by sentencing the defendant on both false imprisonment and assault, where the defendant did not object to the sentence imposed at the sentencing hearing and where the elements of the offenses are different.

In 2022, a Hillsborough County grand jury indicted the defendant on second degree assault, charging that on July 14, 2022, he strangled the victim. RSA 631:2, I(f); DBA 13.

1 The State also filed misdemeanor complaints alleging five counts of domestic violence (simple assault), RSA 631:2, I(f)(III)(a), two counts of criminal mischief, RSA 634:2, II(a), one count of obstructing the report of a crime, RSA 642:10, and one count of false imprisonment, RSA 633:3. See DBA 3-12.

Trial occurred on January 11 and 12, 2023 (Colburn, J.), and the jury convicted on all charges. T 200-203. The court also found that the defendant violated the terms of his probation. T 204. The trial court sentenced the defendant to one to two years of imprisonment on the probation violation. 2/2/23 T 29; DBA 60-65. On the felony strangulation conviction, the court sentenced the defendant to three to six years of imprisonment with one year of the minimum and two years of maximum suspended for four years. 2/2/23 T 30; DBA 14-18. This sentence was consecutive to the sentence imposed for the violation of probation. 2/2/23 T 29-30. The court imposed concurrent, suspended twelve-month sentences on the remaining charges. 2/2/23 T 30-32; DBA 19-59. The court also ordered $500 in restitution. 2/2/23 T 31. This appeal followed.

At the time of trial, the victim had filed for a divorce from the defendant. T 32.

The victim met the defendant, who was working with her mother, in 2018. T 31. They married in January 2022 after dating for about three months. T 31. They lived briefly with the victim’s mother, T 54; on February 14, 2022, they moved to an apartment in Railroad Square, T 31- 32.

On July 14, 2022, the victim and the defendant began the day by smoking crack cocaine. T 33. After they had smoked crack for a few hours, a friend called and asked them to come outside so that they could celebrate the defendant’s birthday. T 33. They went outside, sat down in front of the apartment building, and began drinking shots of Hennessy. T 33-34.

“[A] little while after that, ” the defendant left with his friend to go to another woman’s apartment. T 34. The victim did not want the defendant to go to that apartment because the defendant had been involved with the woman’s roommate. T 34-35. They left the victim behind. T 35. This upset the victim, who explained, “[I]t’s his birthday. I’m his wife. I should have been with him the whole time celebrating, and it just didn’t work out that way.” T 35.

The victim called the defendant “numerous times, ” but the defendant hung up on her. T 35. At one point, the defendant’s friend answered, “told [her] to relax, that they were coming back, and then hung up.” T 35. When they returned with the other woman, the victim was sitting outside, drinking wine. T 36. The defendant told her that they were going into a bar and that she should “come on.” T 36.

Upset, the victim remained outside, drinking wine. T 36. When the defendant returned, they got into an argument. T 36. The victim recalled: “There were drinks thrown at each other. And then eventually, it got physical.” T 36. She thought that she threw the first drink. T 36-37. The victim said that she was sitting in front of the door to the apartment, which was the only entrance. T 37. She blocked the entryway and then she and the defendant “had a little shoving match. And then eventually, he grabbed [her] by [her] hair and threw [her] down the stairs.” T 37. She said that she blocked the entrance because she “wanted there to be witnesses in case the argument progressed.” T 38. The assault was caught on video and played for the jury. T 40.

After the defendant threw her down the stairs, the victim grabbed her cellphone, went into the building, and “waited for him to come upstairs.” T 42. She did not have her keys and wanted to get some of her things to leave, but when the defendant went into the apartment, he would not let her inside. T 43. When she could not open the door, the victim “did kick the door a couple of times in frustration, trying to tell him to open the door.” T 43. At that point, the defendant “flung the door open and he came like, rushing out of the room and grabbed [her] by [her] face and then brought his hands down” and “grabbed” her “neck with both of his hands and dragged [her] into the room.” T 44.

The victim could not breathe and, although she tried, she could not scream. T 44. The victim thought the defendant was trying to kill her. T 45. He “pinned [her] down [on the bed] and hit [her] in [her] head a couple of times.” T 45. The victim told the defendant that she was going to call the police and the defendant “took [her] phone and threw it [into the hallway] and smashed it.” T 46. The defendant hit the victim “about four times” on her forehead, her nose, and her lips. T 46. Eventually she was able to “kick [him] off.” T 46. He “end[ed] up in the hallway, ” and she locked him out of the apartment. T 47.

The defendant then broke the door to re-enter the apartment. T 47. The victim was able to push him away and run out of the building. T 48. She ran to “the little police station substation that was right across the parking lot from where [they] were living.” T 48. The altercation in the apartment hallway was recorded on video and played for the jury. T 52-56. A few days after the assaults, the victim made recorded calls to the defendant. T 58. On the calls, the defendant told her “no face, no case, ” meaning that if she did not come to court for trial, the State would not be able to prosecute him. T 58-59.

On July 14, 2022, Nashua Police Officer Jonathan Turcotte was at the Nashua Police Department substation at Railroad Square. T 88. As he was eating his meal, he heard a knock on the door and, when he opened it, the victim was standing there. T 89. She was “in distress” and was bleeding from her nose down. T 90. He described her as “[p]anicked, like the incident had just occurred, very animated, scared.” T 90.

Officer Turcotte went to the Railroad Square apartment building, which he described as “a multi-floor [building], [with] numerous apartments on each floor.” T 91. He and Officer Doherty went to the defendant’s apartment and “noticed the door of Room 42 was in pretty rough shape, broken up, had some cracks through it. [They] could actually physically see through the door and on the outside of it, there was some trash and a broken phone on the windowsill.” T 91. They “knocked for an extended period of time” and then Officer Doherty left with a building manager to view the surveillance video. T 93.

Officer Turcotte left to take photographs of the victim’s injuries and, when he returned, he watched the video as Officer Doherty left to interview someone. T 93. On the video, Officer Turcotte saw the defendant “go down the set of stairs to each level from one level to the next.” T 94. The defendant met a man later identified as Craig Driscoll and entered Apartment 2. T 95. Officers Turcotte and Doherty, accompanied by Sergeant Lombardi, knocked on the door of Apartment 2, and Driscoll answered it. T 95. The police could see the defendant standing in the apartment and asked him to step outside. T 95.

Sergeant Frank Lombardi recalled responding to the Railroad Square apartment building on July 14, 2022, for a “domestic-related call for service.” T 104. He said that the apartment building was “a rooming house. … [A] very old building, so multiple levels, multiple apartments. And the majority of them [were] just single-room apartments with shared bathrooms in the hallway.” T 104. He recalled knocking on the door to Apartment 2 and that the defendant “came out willingly and ended up speaking with us in the hallway.” T 106. The defendant “began telling [them] a version” of “what had happened.” T 107.

The defendant “[i]nitially” “seemed kind of nervous, ” but told the police that the victim had come to the apartment “demanding some of her property.” T 108. The defendant “said that [the victim] was intoxicated and confrontational towards him, that she had been banging on his door, and that eventually when she got into the apartment that she assaulted him and that he had just kind of been putting his hands up to just kind of try to keep her away from him.” T 108. “Eventually, [the police] confronted [the defendant] with the fact that [they] had viewed surveillance footage from the hallway of the apartment building and gave him another opportunity, asked him if he wanted to tell [the police] what had actually happened.” T 108.

The defendant then told the police that “she came over, was knocking on the apartment, trying to get in. He said he came out, met with her, told her that, [‘O]kay, I’ll get you your things. I’ll go back to the apartment, [’] so he said he went back into the apartment.” T 109. “He said he locked the door and then she started kicking the door or banging on the door. So he said he opened the door” and, because “his anxiety getting to him, ” “when he opened the door, he grabbed her.” T 109. Then she locked him out of the apartment and he “force[d] his way into the apartment because he thought he could hear her breaking things.” T 110. He acknowledged breaking the victim’s cellphone. T 110. On cross-examination, the defendant told the police that the victim “had been drinking and she had fallen. And then when he was giving us the second version of what happened, he made mention of having to get around her. She was on the stairs and needing to move her.” T 112-13. Nashua Police Detective Jeffrey Dillon interviewed the victim on July 14, 2022. T 116-17. During the interview, he “noted that she had [an] abrasion to her elbow, her knee, a bump on her head, a scratch above her lip, and then a distinct red mark” “to the left side of her neck.” T 118.

Trial counsel explained: “I remember during my cross, I went through each of the times that [the victim] kicked [the defendant], hit him, and shoved him. And it was after that that he did it. So I’d say that, since she hit him before, that there’s an argument, it’s mutual contact [sic].” T 133. “[S]he hit him four times before he grabbed her and shoved her down. In fact, she doesn’t doing [sic] as seriously, but she also grabs him by the shirt and throws him down.” T 134.

The State responded: I just disagree with how that evidence came in and what the video shows. I mean, she did testify she was trying to block him from going into the apartment. She testified the reason she did that was because she was afraid; he was getting more aggressive. I think she specifically said, I didn’t want him to go inside because there are no witnesses inside.

T 134.

The State added: “She does admit, I push him away from the door a little bit. I pull him.” T 134. But the State pointed out that “at the point on that video where he throws her down the stairs, [she] is not standing up. She’s sitting down on the steps.” T 134. The State concluded that “at that point, he grabs her by the head, ” “by the hair” and “really hurls her down those stairs, throws her into the parking lot, essentially.” T 134. The State noted that the defendant had not filed a notice of self-defense, T 134, but returned to its major point that the assault was “not really a fight. She’s just trying to stop him from going inside when he sort of hurls her down those stairs.” T 135.

The court responded that the request for a mutual combat instruction was “a closer call.” T 135. But the court considered the video recording and concluded:

[T]he video is quite clear that she then does sit down. If she had stayed standing, if they were still sort of yin and yanging at that point, I think that that would have been an appropriate instruction for the Court to give. But I think when you watch the video, it’s clear that despite her being aggressive towards him and trying to block him from entry, she stops that at some point. She does sit down, and it appears, but there’s no sound that I’m aware of, it appears that they’re continuing to argue.

And then it appears he’s had enough, and that’s when the alleged assault occurs. So I don’t think it was a continuation of a mutual-combat situation. That doesn’t mean you can't argue it, [trial counsel]. I think it’s a perfectly reasonable and appropriate argument to make. But I don’t think that you’re entitled to a lesser-included instruction because there is a gap between what could be perceived as mutual argument, mutual combat to the extent she’s striking him. But that stops and then the alleged assault occurs.

T 135-36.

T 141. Trial counsel stated: “That would be a simple assault for grabbing [the victim] in the jaw and the criminal mischief for breaking the phone.” T 141. But trial counsel contended that the victim started the fight and even continued it. See T 146 (TRIAL COUNSEL: “[The victim] hit [the defendant] four times. [She] grabbed him by the shirt and tossed him down the stairs before he did. [She] was starting a fight… If she’s starting a fight, if she hits him, she has to expect him to respond.”).

After the State closed, the court instructed the jury as follows: Turning now to the charge of obstructing the report of a crime or injury, charge ID 1994916, [the defendant] is alleged to have committed this crime on the same date, in that he “with the purpose of preventing [the victim], an intimate partner, from calling the Nashua Police Department and reporting that he had just assaulted her. He damaged [the victim’s] cell phone by throwing it against the floor.”

The definition of this charge has three elements or parts. The State must prove each part of the definition beyond a reasonable doubt. So the State must prove, number one, the Defendant prevented [the victim] from reporting a crime to the Nashua Police Department as described; and two, [the victim] was the Defendant’s intimate partner; and three, the Defendant acted purposely. The definitions of intimate partner and purposely are those already provided.

T 172. Neither the State nor the defense objected to this instruction. T 173.

2/2/23 T 17. Acknowledging his criminal record, and the fact that the defendant was on probation at the time of this offense, defense counsel contended that the defendant’s difficult childhood and substance abuse problems helped to explain his criminal actions. 2/2/23 T 19; see also 2/2/23 T 21 (urging the court to consider rehabilitation).

1. The court did not err by denying the defendant’s request for an instruction on mutual combat. The court based its ruling on a review of the outdoor surveillance tape and concluded that the victim had ended her physical fight with the defendant before he grabbed her and threw her down the stairs. The defendant has not asked this Court to transfer the exhibits, so this Court must rely on the trial court’s description of the recording of the fight.

2. The trial court did not err by failing to instruct the jury on all the elements of the charge of obstructing the report of a crime. The court read the charge as reflected in the indictment and told the jury the elements that it must find. Elsewhere in the jury instructions, the court also defined the word “purposely.” Taken as a whole, the jury instructions adequately informed the jury of the charges. Moreover, as the defendant did not object to the instructions, this Court must review them for plain error, and the trial court did not commit plain error in instructing the jury. 3. The court did not err when it sentenced the defendant on both the charge of obstructing the report of a crime and criminal mischief for smashing the victim’s cell phone. The defendant has raised this under plain error, but there were no errors, and even if there were, the error is not plain. The claim also runs counter to the defendant’s position at trial where the defendant conceded that he was guilty of criminal mischief and one of the assaults, but urged the jury to find him not guilty of the remaining charges, implicitly conceding that the elements of the two offenses are not the same. 4. The court did not err by sentencing the defendant on both false imprisonment and assault. This claim was not preserved by the defendant’s motion to dismiss because the motion was made three weeks before sentencing and was not an objection to the sentence imposed. Therefore, there was no contemporaneous objection. Since this claim is not preserved, this Court should review it for plain error if it reviews it at all. Since the elements of false imprisonment and assault are different, and since the defendant both pinned the victim to the bed, preventing her from leaving, and hit her, the two crimes did not merge.

The defendant contends that the trial court erred when it declined to give the defendant’s request for a mutual combat instruction. DB 35. This claim challenges the defendant’s convictions for domestic violence simple assault. DB 15.

RSA 631:2-b, I(a) provides that:

Under RSA 631:2, II, “[s]imple assault is a misdemeanor unless committed in a fight entered into by mutual consent, in which case it is a violation.” “[M]utual consent requires that both parties agree to participate in the fight, either expressly or by implication.” State v. Place, 152 N.H. 225, 227 (2005).

The defense first argues that this Court should “disavow the overly simplistic notion that all denials” of a defense request for jury instructions are reviewed for the unsustainable exercise of discretion. BB 20. The defendant contends that, in State v. Chen, 148 N.H. 565 (2002), this Court did not “acknowledge the distinction between a defendant’s theory of defense and his theory of the case.” DB 19. The defendant contends that the Chen court was “doing something that it had never done before: applying the unsustainable-exercise-of-discretion standard to the question of whether there was some evidence to support a defendant’s theory of the case.” DB 19.

This assertion simply misreads the Chen opinion. In Chen, the defendant, a cook at a restaurant in Nashua, boiled vegetable oil in his wok and “used a saucepan to throw the hot oil onto the victim’s head.” Chen, 148 N.H. at 566. This Court recounted the events: “When the victim turned around, the defendant threw more oil at his face. The victim turned again to run away, and the defendant threw more oil on his back. As the victim tried to run out through the back door, he fell to the floor.” Id. This Court found first that the defendant had not filed a notice of self-defense before trial, but that the trial court “ explicitly did not limit the defendant’s ability to examine or cross-examine witnesses to elicit evidence regarding a self-defense claim.” Id. at 569. This Court also concluded that there was “not enough evidence to support a self-defense jury instruction.” Id. In doing so, the Court reviewed the record for any evidence of self- defense and found none. Id. at 569-70. If the Court had found evidence that supported the self-defense instruction, then the defendant in Chen would have been entitled to the instruction, provided he had complied with the notice deadline. See id. (“The 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.’”) (citation omitted)). The Chen court reiterated the standard for “some evidence.” See id. (“‘[S]ome evidence’” means “that there must be more than a minutia or scintilla of evidence.") (citation omitted)). A court must give an affirmative defense instruction only after “some evidence” meriting the instruction has been presented. State v. Cavanaugh, 174 N.H. 1, 7-8 (2010). At the outset, the trial court would have been justified in declining to give the mutual consent instruction on the basis that the defendant, like the defendant in Chen, did not provide notice of his intent to rely on the defense. See N.H. R. Crim. P. 14 (“If the defendant intends to rely upon any defense specified in the Criminal Code, the defendant shall within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division, after the entry of a plea of not guilty, or within such further time as the court may order for good cause shown, file a notice of such intention setting forth the grounds therefor with the court and the prosecution. If the defendant fails to comply with this rule, the court may exclude any testimony relating to such defense or make such other order as the interest of justice requires.”). Therefore, the defendant’s reliance on State v. Soto, 162 N.H. 708, 715 (2011) is misplaced. Soto reads: “[W]hen properly raised…” Id. (emphasis added)). Since the defendant did not comply with the notice requirement, the request for the instruction was not properly raised.

But assuming that the request was properly before the trial court, the court did not err. The court concluded that the victim had withdrawn from the combat based on the court’s review of the video. T 135-36. The exhibits in this case have not been transferred. State v. Thiel, 160 N.H. 462, 464 (2010) (“It is the burden of the appealing party to provide this court with a record sufficient to decide the issues raised on appeal and to demonstrate that the appellant raised those issues before the trial court.”) (citation and internal quotation marks omitted)). Since this Court does not have the video upon which the trial court relied, this Court should defer to the trial court’s assessment of the video and what it shows regarding the victim’s retreat from the argument and attending pushing and shoving. Cf. In re J.D., 175 N.H. 108, 115 (2022) (“Absent a transcript of the hearing, we must assume that the evidence was sufficient to support the result reached by the trial court.”).

Accordingly, the trial court did not err in declining to give a mutual combat instruction.

The defendant next contends that the trial court committed error when it failed to instruct the jury on all the elements of obstructing the report of a crime. DB 28.

“[A] specific, contemporaneous objection is necessary to preserve a challenge to a jury instruction for appellate review. State v. Washburn, 170 N.H. 688, 696 (2018). “This requirement affords the trial court an opportunity to correct an error it may have made and is particularly fitting when an alleged error involves a jury instruction.” State v. Nightingale, 160 N.H. 569, 577 (2010). “This long-standing requirement is grounded in common sense and judicial economy.” Id.

Absent an objection, this Court may review under the plain error rule. “To find plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” State v. Leroux, 175 N.H. 204, 208 (2022) (citing State v. Thomas, 168 N.H. 589, 604 (2016)).

“If all three conditions are met, [this Court] may then exercise our discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. at 208-09. RSA 642:10 reads:

The defendant contends that, while the trial court did instruct the jury on the required mental state, it “failed to instruct the jury that [the defendant] broke the phone and that his purpose… was to prevent the report of a crime.” DB 28-29. The defendant asserts that a person may prevent another from reporting a crime “in many ways unrelated to a telephone, ” noting that a person can use threats and intimidation, among other methods, to obstruct the report.

While this may be true, the jury instructions did not leave the jury with the impression that this charge involved anything other than breaking the victim’s phone. The court told the jury that the defendant was charged with acting “with the purpose of preventing [the victim], an intimate partner, from calling the Nashua Police Department and reporting that he had just assaulted her. He damaged [the victim’s] cell phone by throwing it against the floor.” T 172 (internal quotation marks omitted). The court did not mention intimidation or threats. Rather, it told the jury that it had to find that the defendant damaged the cell phone by throwing it on the floor. The defendant also contends that the court should have instructed the jury that the defendant “had the specific purpose to prevent [the victim] from calling the police to report a crime.” DB 29. The court did exactly that. It said that he damaged the cell phone to prevent the victim from calling the police. The court told the jury that the charge had three elements: “[T]he State must prove, number one, the Defendant prevented [the victim] from reporting a crime to the Nashua Police Department as described; and two, [the victim] was the Defendant’s intimate partner; and three, the Defendant acted purposely.” T 172.

The court also defined “purposely.” It told the jury: “‘Purposely, ’ part of the definition of the crime is that the Defendant acted purposely. A person acts purposely when his conscious object is to cause a certain result or engage in certain conduct. The State must prove that the Defendant had the conscious object to cause this result or engage in this conduct.” T 170- 71. See also T 172 (instructing on the obstruction charge: “The definitions of intimate partner and purposely are those already provided.”). Viewing the jury instructions in “the context of the overall charge, ” State v. Letendre, 133 N.H. 555, 558 (1990) (internal quotation marks and citation omitted), the trial court did not err. See id. (stating that “a single instruction to a jury may not be judged in artificial isolation”) (internal quotation marks and citation omitted).

In short, the trial court committed no error, let alone plain error, in instructing the jury as it did.

The defendant suggests that the jury could have confused two incidents: (1) the act of throwing the phone on the floor, which he contends did not prove that the phone had been damaged; and (2) the second time when he was locked out of the apartment. DB 29-30. 2 The defendant suggests that the jury had to find that the defendant’s “specific intent when he broke the phone was to prevent the report of a crime.” DB 30. It is not clear why the defendant thinks that the moment at which he broke the phone is so important, but the record is very clear: the defendant threw the phone out of the apartment, breaking it, to prevent a call to the police. For example, the victim testified that, when the defendant broke the phone, the door to the apartment was open, and the defendant “smashed” the phone to prevent her from calling the police. T 46; see also T 54 (THE STATE (referring to the video): “And we just saw something fly out right there. What was that?” THE VICTIM: “My cell phone.” THE STATE: “Did he throw that phone out when you said you were going to call the police?” THE VICTIM: “Yes.” THE STATE “And at that point, did you lock him out?” THE VICTIM: “Yep.”).

Moreover, although the defendant did not ask the Court to transfer the exhibits, on cross-examination, the defense emphasized that the time that the defendant threw the phone and smashed it was within a matter of seconds. See T 64 (DEFENSE COUNSEL: “And from the time that that phone comes out of the apartment to the time Jalen comes out of the apartment is a second?” THE VICTIM: “Roughly, yes.” DEFENSE COUNSEL: “And that’s when [the defendant] picks up the phone, smashes it, 7:05:0-THE VICTIM: “Yes.” DEFENSE COUNSEL: “And so he punches the door and [is] back into the apartment at 7:05:20?” THE VICTIM: “Yes.”).

Before closing, trial counsel told the court: “[W]e’re basically admitting to the crimes that [the defendant] told to Ofc. Lombardi. That’s breaking the phone and one simple assault. I’ve gone over this with [the defendant]. I have his permission to concede as guilty of those two crimes in court.” T 137-38. Defense counsel clarified that the phone-related charge was criminal mischief and not the charge of obstructing the report of a crime, DB 138, but he never contended that he did not break the phone. Indeed, in his closing argument, defense counsel reminded the jury that the defendant had told the police that he broke the victim’s phone. T 141 (After being told that there was a videotape, “[I]mmediately [the defendant] says, oh, okay. Here’s what really happened. I broke her phone and I put my hands on her.”). The State’s narrative was no different on this point. See 153-54 (THE STATE: “[The victim] told you that when she tried to call the police, the Defendant threw her phone out in the hallway.

You saw the phone come flying out into the hallway right when she said it did. She told you that he broke the phone. You saw that on the video. He admitted to that just now.”).

The defendant wishes to paint the record as confusing on this point, but it is not. No one contended at trial that the phone was not broken when it was hurled out of the apartment door, and no one contended that the defendant was not the one who threw it. The contention to the contrary is without support on the record.

The defendant next contends that the court erred by sentencing the defendant on both obstructing-the-report-of-a-crime and criminal mischief for breaking the victim’s phone. DB 32. The defendant concedes that this claim is raised as plain error. DB 32.

“The issue of double jeopardy presents a question of constitutional law subject to de novo review.” State v. Maxi, 2024 N.H. 8, ¶ 8 (Feb. 13, 2024) (citing State v. Lynch, 169 N.H. 689, 709 (2017)). “Double- description” cases are cases “ in which the issue is whether two statutes describe two separate offenses or are merely different descriptions of the same offense.” Lynch, 169 N.H. at 709. “Under the New Hampshire Constitution, two offenses will be considered the same for double jeopardy purposes unless each requires proof of an element that the other does not.” Maxi, 2024 N.H. at ¶ 9 (quoting State v. Farr, 160 N.H. 803, 807 (2010) (internal quotation marks omitted)). This Court focuses on “whether proof of the elements of the crimes as charged will in actuality require a difference in evidence.” Id. (quoting Farr, 160 N.H. at 807). This Court employs the “same evidence test, ” which it has defined as “review[ing] and compar[ing] the statutory elements of the charged offenses in light of the actual allegations contained in the indictments.” Id. First, this assertion was not only not raised in the trial court, but it is completely inconsistent with the defendant’s concession at trial. There he conceded that he committed criminal mischief; he did not concede the obstruction charge. See T 141 (DEFENDANT’S CLOSING: “He is guilty of those two crimes. That would be a simple assault for grabbing Kerry in the jaw and the criminal mischief for breaking the phone.”) (emphasis added); T 147 (“The damage to the iPhone, you’re going to find him guilty of that. He told the police he did that. I concede he did that.”); T 147 (“That said, as I’ve said, there are two things you’re going to find him guilty of, but please only find him guilty of the crimes that he actually committed.”) (emphasis added)). The defense did not really address the obstruction charge, but did not concede guilt on that charge. Implicitly, therefore, he conceded that the elements of the offenses were different. The defendant points out that, in giving the obstruction jury instruction and the criminal mischief instruction, the court referred to the victim’s status as his “intimate partner.” DB 35; see also T 170 (criminal mischief charge), T 172 (obstructing the report). The defendant also contends that, in both charges, the State had to prove that the defendant damaged the phone. DB 34. These assertions, while true, do not convert criminal mischief into obstructing the report of a crime.

This is because the defendant avoids the fact that, to prove the obstruction charge, the State had to prove that the defendant acted “with a purpose to obstruct, prevent or interfere with [ ] the report of any criminal offense to any law enforcement agency.” RSA 642:10. And to prove Class A criminal mischief, the State had to prove not only that the defendant damaged the phone, but that he did so “purposely or recklessly” and that the phone had a value of over $100. RSA 634:2, I and II-a. Criminal mischief does not require the State to prove that the damage was to thwart the report of a crime. And the obstruction charge did not require the State to prove that the phone was damaged. The court did not err in sentencing the defendant on both charges as these charges do not constitute double-description offenses. As there was no error, there was also no plain error.

Finally, the defendant contends that the trial court erred by sentencing the defendant on both false imprisonment and assault. DB 37.

The defendant contends that this claim was preserved by his motion to dismiss. DB 8; see also T 121-23.

The defendant’s contention that the claim regarding sentencing was preserved by the motion to dismiss made at trial stretches the notion of preservation too far. The court held the trial on January 11 and 12, 2023. T 1, 182. Sentencing occurred on February 2, 2023. 2/2/23 T 1. Setting aside for the moment that a motion to dismiss is not an objection to a sentence imposed, the plain fact is that the defendant’s argument requires this Court to conclude that the trial court remembered the arguments made in the motion to dismiss three weeks earlier and that defense counsel intended these arguments to apply at sentencing. This contention ignores the “specific and contemporaneous objection” requirement for preserving a claim for review by this Court. See State v. Leroux, 175 N.H. 204, 209 (2022); see also Webster’s Third International Dictionary at 491 (2002 ed.) (defining “contemporaneous” as “originating, arising, or being formed at the same time”).

There would be no reason for the trial court to recall the arguments made at the close of the State’s case at sentencing. The standard applied by the court for a motion to dismiss is not the same standard that the court applies during sentencing. In a motion to dismiss, the court considers the evidence in the light most favorable to the State. State v. Cullen, 175 N.H. 628, 630 (2023). At sentencing, the trial court’s focus is entirely different. It exercises its discretion “to best meet the constitutional objectives of punishment, rehabilitation and deterrence.” State v. Surrell, 171 N.H. 82, 88 (2018) (internal quotation marks and citation omitted).

The defendant states that the State “conceded [that confinement was incidental to strangulation] when it said that the interference with [the victim’s] physical movement occurred simultaneously with the strangulation and two simple assaults.” DB 41. The defendant does not identify where this concession was made and the State’s response to the defendant’s motion does not support a concession. At that point, the State argued: My recollection of [the victim’s] testimony is that [the defendant] picks her up by the neck. He’s got her by the neck. He goes into the room and is then at that point holding her down on the bed as he’s hitting her. I believe she testified that she is trying to get out of the room at that point. She says, I’ m going to call the police, and he throws her phone away. And she actually has to kick him off of her to get him off. And that’s the point where he then ends about in the hallway. So I do think there’s enough evidence there for confinement. Specifically, that he’s keeping there. She’s trying to get out and she has to physically get him off of her to try to get out of that room.

T 122-23.

In response to the motion to dismiss the strangulation charge, the State argued: “[W]e don’t have video of what happened inside the apartment, but it's sort of a continuous motion that he’s doing. You can see him start in the video. [His] hand starts up here; she’s against the wall. He then moves it down to her neck. That’s when the strangulation occurs.” T 126.

The State continued: We then see him move her to the apartment. We only have her testimony for what happened in the apartment, but the testimony is that he then puts her down on the bed. He’s got, instead of both hands on her neck at that point, he’s got one hand on her neck and one hand hitting her. So at some point, he takes off this second hand and he starts hitting her.

T 126.

The State described the defendant’s actions as “continuous, ” but contended that they were “three different actions.” T 126. The State pointed out: “He starts on her jaw. He moves his hand to her throat. He moves her inside, removes his other hand, keeps her down while hitting her.” T 126. The State then argued that the “fact that it happened all in a row [does not] negate[ ] the fact that each of those things are crimes, because they may have happened a second after each other, but they’re three distinct things that he did to her.” T 126-27. The State never used the word “simultaneous” or “simultaneously.” Far from conceding that the crimes were indistinguishable, the State sought to distinguish each from the other.

The defendant contends that these offenses are subject to the merger doctrine. DB 40. Relying on State v. Casanova, 164 N.H. 563 (2013), the defendant concludes that the false imprisonment charge “should have merged with the crimes of strangulation, simple assault and obstructing the report of a crime.” DB 41. But Casanova is distinguishable. Although the defendant had been charged with “grabbing [the victim’s] arm when she tried to get away, ” the victim testified that he “did not grab her arm, but instead reached out and touched her hand before she left the wooded area.” Id. at 567. This Court vacated the conviction for kidnapping on the ground that the defendant’s attempt to confine the victim was “incidental and inseparable from his attempt to commit” the sexual assault. Id. at 568.

In this case, each of the charges had different elements and the State made that clear to the trial court. The court did not commit error when it did not find, sua sponte, that the charges had merged for purposes of sentencing.

Since the trial court committed no error, it follows that it cannot have committed plain error. The defendant advances this argument in the event that this Court finds that his claim was not preserved. DB 41. The State’s response to this contention is the same: the false imprisonment charge should not have merged with the charges of strangulation, simple assault, and obstructing the report of a crime. These crimes are distinguishable from each other, and the trial court properly sentenced on each of them.

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

The State requests a 15-minute oral argument.

Respectfull y Submitted, THE S

By Its Att orneys,

June 7, 2024 /s/Elizabeth C. Woodcock Elizabeth C. Woodcock N.H. Bar ID No. 18837 Senior Assistant Attorney General Solicitor General’s Office New Hampshire Department of Justice One Granite Place South Concord, NH 03301-6397 (603) 271- 3671

I, Elizabeth C. Woodcock, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 7, 790 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.

June 7, 2024 /s/Elizabeth C. Woodcock Elizabeth C. Woodcock

I hereby certify that a copy of the State’s brief shall be served on Eliana Forciniti, New Hampshire Public Defender’s Office, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

June 7, 2024 /s/Elizabeth C. Woodcock Elizabeth C. Woodcock