State of New Hampshire v. Nicholas H. Brooks

II. Whether the trial court erred in admitting testimony about substitute paraeducators.

III. Whether the trial court erred in excluding a student’s statement. IV. Whether the trial court erred in disclosing some of the victim’s school records.

A Coös county grand jury indicted the defendant with one class B felony strangulation and three class A misdemeanor simple assaults alleging that the defendant grabbed the victim’s hand, grabbed the victim’s sweatshirt, and pushed the victim against a wall. DA 1 3-6. All of the charges occurred on February 17, 2022, against the same victim. Id. Following a three-day trial in January 2023, the jury convicted the defendant of the sweatshirt-grabbing and wall-pushing simple assaults. T 559-60. The jury acquitted the defendant of the remaining charges. T 558- 59. On February 2, 2023, the trial court (Bornstein, J.) sentenced the defendant to 12 months stand committed, with nine months suspended for three years conditioned on the defendant receiving a mental health evaluation and complying with any recommended treatment, and 12 months suspended for three years upon release. DA 32-37. This appeal followed.

On February 17, 2022, at approximately 8:00 a.m., the ninth-grade victim and his classmates were sitting in their math classroom at Gorham Middle High School. T 45, 165, 178. Jennie Roberge, their math teacher, had her back to the class so she could enter a grade for a student. T 173. Ram Montanaro, a paraeducator, and the defendant, a substitute paraeducator, were also in the classroom. T 46, 48, 100. The victim was sitting in the back of the classroom spinning a fidget spinner to help him concentrate, which was “normal” for students in that class to do, and for which Roberge had given permission. T 47-49, 59, 101-02. The defendant approached the victim and said, “give me the toy” as he grabbed the victim’s wrist. T 49, 81-83. The victim asked “why, ” and pulled his hand away. T 49, 102. Other students heard the victim say “get off me, you asshole” as he pulled his hand away. T 49, 83. After the defendant tried to take the fidget spinner from the victim, the defendant grabbed the victim’s neck or sweatshirt collar and pushed him against a wall. T 49, 83-84, 102, 133, 151. When the defendant grabbed the victim’s neck or sweatshirt, the victim told the defendant “don’t fucking touch me.” T 115. Principal Corrigan and others entered the classroom, and the defendant released the victim. T 104.

Roberge heard the defendant “get out of his chair aggressively and walk across the room to [the victim] behind [her].” T 173-74. She turned around and heard the defendant say, “you’re not going to be messing with the fidget spinner and mouthing off during class.” T 175. She saw the defendant grab at the victim’s hand that was holding the fidget spinner. Id. She heard the victim say, “don’t be an ass and stop swearing.” Id. Roberge heard the defendant say, “you’re not going after my eyes.” Id. Then, she saw the defendant “take [the victim] by the collar, pin him up into the corner, and [] yank[] his collar around his neck.” Id. She heard the victim say, “I can’t breathe.” T 177.

Montanaro saw the victim sitting in class using a fidget spinner. T 269. At some point, the defendant told the victim to put the fidget spinner away and get to work. T 279. In response, the victim told the defendant no and that he did not have to listen to the defendant. Id. The defendant and the victim raised their voices as they spoke with each other, and the defendant approached the victim. T 280. The defendant told the victim to give him the fidget spinner, and the victim refused, so the defendant grabbed the victim’s arm. Id. Then, the defendant grabbed the victim by his collar, lifted him out of his chair, and said “you’re coming with me.” T 289, 304. The victim said, “let me go, ” and “I can’t breathe.” Id. Montanaro told the two to stop fighting and tried to break them apart. T 281. As he did that, the principal entered the classroom and told the defendant to let the victim go. Id.

Two students recorded part of the assault on their cell phones. T 53, 84-85. Both videos were admitted as full exhibits and played for the jury. T 54-55, 86, 318. Roberge, Montanaro, and the other students said that the victim was not distracting them or causing a disturbance. T 132-33, 149, 172, 275.

Principal Corrigan hired the defendant as a substitute paraeducator in December 2021. T 196-97. On February 17, 2022, Corrigan was in her office next to Roberge’s classroom when she heard people moving chairs around and heard the word “fight.” T 197. She ran into the classroom and saw the defendant holding the victim by the sweatshirt “scruffs, ” or by the throat, while the victim was sitting in a chair. T 197-98. The defendant had pinned the chair with the victim in it up against the wall. Id. Corrigan yelled “stop, ” and the defendant let go and left the classroom with her. T 199. Corrigan also sent the victim to the school nurse. Id. The victim told the nurse, Craig Langlois, that the defendant grabbed his arm and then “choked him.” T 260. Langlois evaluated the victim and photographed his injuries. T 252. Langlois saw “red marks, chafing, on both sides of his neck on the anterior aspects, ” and a small abrasion on one side of his neck. T 253. After his assessment, Langlois sent the victim back to his classroom. T 261. When the victim returned to the classroom, two students saw red marks on the victim’s neck. T 71, 95-96. Corrigan spoke with the defendant, who appeared “agitated.” T 200. The defendant said that the victim “deserved this.” T 201. He also said that the school was not “disciplining” the victim “properly.” T 221. The defendant did not tell Corrigan that he was injured, or that the defendant was protecting himself from the victim. T 202-03. Corrigan then called the Gorham Police Department and reported that the defendant had assaulted a student. T 310. Gorham Police Chief Adam Marsh responded and spoke with the principal. Id. Corrigan told Marsh about the defendant assaulting the victim, and showed him two videos of the assault that students had taken. T 313. Marsh spoke with the victim and some students who witnessed the assault. Id. Officer Priest also arrived and spoke with other students who saw the assault. T 313-14. Both officers spoke with Roberge and Montanaro. T 327. While Marsh spoke with the victim, he saw “two scratches on either side of his esophagus” that looked like they were caused by fingernails. T 314, 333. Marsh photographed these injuries. T 315. These photographs were admitted as full exhibits. T 315-18. Marsh also interviewed the defendant. T 319. The defendant said that he had “issues” with the victim at school, that the victim “was defiant and that he had tried to teach him respect during a few of his encounters with him.” Id. The defendant also said that the victim was “out of control, ” did not listen, and was disruptive in the classroom. Id. The defendant seemed “unapologetic” about the assault and blamed the school for the incident because they had failed to discipline the victim. Id. The defendant did not have injuries on him following the assault and did not tell Marsh he was “justified under law” when he attacked the victim. T 320.

Later that day, Marsh arrived at the defendant’s house with an arrest warrant. T 330-31. Before arresting the defendant, Marsh spoke with the defendant. Id. The defendant told him that the victim was throwing a ball and that he had asked the victim to give him the ball. T 331. The victim refused, and the defendant grabbed for the ball. T 332. When he did that, the victim “reached for [the defendant’s] face” and the defendant thought that the victim was “going for his eyes.” Id. The defendant said he acted in self-defense. Id.

In January 2022, the victim had two “disciplinary issues, ” one for not following directions, and another for disrupting another student in class.

T 215-16. Corrigan did not discipline the victim for the February 17 incident with the defendant. T 228.

After the State rested, the parties discussed the trial court’s jury instructions. T 344-45. The State did not object to the trial court providing the jury with a self-defense instruction, but objected to the RSA 627:6 instruction. T 345-46. The State argued that no evidence established that the defendant’s use of force against the victim was justified. T 346. Likewise, Corrigan, Roberge, and Montanaro all testified that the defendant’s response to the victim was unreasonable, and that it was not an accepted practice based on the victim’s behavior before the assault. T 347- 48. The S tate also argued that the defendant caused the disturbance, not the victim, and , as such, the defendant’s use of force was unnecessary and unreasonabl e. T 348-50.

The defenda nt argued that there was evidence that the “fidget spinner itself was a distraction, ” and that, according to only one of the State’s witnesses, the victim was throwing the fidget spinner “around the classroom.” T 352. He also argued that when the defendant “asked [the victim] to put the fidget spinner away and [the victim] refused, [the victim] created a disturbance by disobeying a proper direction issued by a teacher, ” which then “required intervention to maintain discipline.” T 352, 354. In response, the State argued that to warrant the RSA 627:6 instruction, there had to be evidence that the defendant’s force was necessary, and that the State’s witnesses had testified “that the force was, in fact, unnecessary, unwarranted, and unwanted.” T 354.

The trial court denied the defendant’s request for a RSA 627:6 instruction, finding that there was not “some evidence” that the victim’s conduct “r[o]se to the level of a disturbance, ” or that the victim’s conduct “r[o]se to the level of the defendant using force to maintain discipline....” T 356. The trial court further found that, “by the time the defendant initiated this confrontation and it escalated, there was a disturbance, ” but that the victim did not create the disturbance, nor did the victim’s conduct “justify the use of any force to maintain discipline.” T 356-57.

At the time of trial, the defendant was 72. T 359. The defendant testified that in mid-December 2021, he was hired as a substitute paraeducator at the school. T 363-65. The defendant first encountered the victim in a classroom around Christmastime. T 370. He described the victim as “rude, vulgar, and disruptive, ” and saw him at least once a day between late December and February 17. T 370, 376. On February 17, the defendant was sitting in the front of the classroom as Roberge was writing on the board. T 378. The victim took one of the fidget spinners from a basket in the room. Id. The defendant claimed that he did not know “what the function was” of the fidget spinner, or why students used it. T 378-79. The defendant said that the victim was “tossing [the fidget spinner] to other students in the room, and then when they [caught] it, he [was] motioning he want[ed] it tossed back to him.” T 379. After the victim threw the fidget spinner three times, the defendant told the victim to stop. T 379- 80. The vict im “glared at” the defendant and tossed the fidget spinner to another stu dent. T 380. The defendant walked towards the victim and told him, “I want you to give me that fidget spinner.” Id. The victim said, “fuck you, you asshole.” Id. The defendant then said, “we’re going to the office, ” and the victim responded, “who the fuck are you?” T 381. The defendant grabbed the fidget spinner. Id. The defendant admitted that when he grabbed the fidget spinner, he “probably touched [the victim’s] hand at the same time.” Id. The defendant said that the victim “came at [his] eyes with a clawed hand.” T 382. The defendant claimed that he had “a millisecond in order to react, ” and “had [he] not, [he] might be sightless today.” Id. The defendant pushed the victim back by the chest. T 382, 386. Then, the defendant grabbed the victim’s sweatshirt “chest level, ” and pushed the victim’s chest again to hold him an arm’s length away. T 386. The defendant said that, after he pushed the victim a second time, the victim sat down in a chair, but that before that second push, the victim was standing. T 387. The defendant told the victim, “you’re not going to go for my eyes.” T 388.

The defendant said he was scared and that he “had no time to think, ” or to “ask himself what the proper procedure was at that point, ” because he had to “save himself.” T 385. However, he admitted that he did not think it would have been appropriate to strike the victim, despite that thought having crossing his mind. T 388. He also said that he used physical force that morning because he “was attacked, ” and, “[b]ecause [it was in] self- defense.” T 397. He also said that he felt it was necessary to use force against the victim because he had “refused the verbal interventions.” T 398. At some point during the assault, Corrigan and others entered the classroom and escorted the defendant out of the classroom. T 392. The defendant said he immediately told Corrigan that he wanted the victim arrested for assault. T 393. He also told her that he thought the victim “lacked respect.” T 408. In response, she sent him home. T 395. The defendant went home, and later that day, two police officers arrived at his home. Id. The defendant told the police his “side of the story, ” and then the police arrested him. T 396-97.

The defendant said that the victim’s behavior with the fidget spinner was a distraction and a disturbance. T 383. He also said that he believed that he had the authority to remedy the victim’s disturbance verbally and by grabbing the fidget spinner from the victim. T 384-85.

After the defendant rested, T 468, he renewed his motion for the RSA 627:6 instruction because the defendant testified that the victim caused a disturbance and had refused to leave the classroom. T 469-70. The State objected, arguing that the defendant’s testimony did not change the trial court’s ruling that there was insufficient evidence to find that the victim was causing a disturbance, or that the defendant used force to maintain discipline. T 470-71. The State also argued that the defendant was not entitled to this instruction because he created the situation that required use of force by taking “an unreasonable step.” T 472. The trial court found that the defendant was entitled to the RSA 627:6 instruction as to the first assault when the defendant grabbed the victim’s hand. T 473-74. The following assaults, the trial court found, were “all about self-defense, and only about self-defense.” T 473. The trial court further found that there was some evidence that the victim’s conduct leading to the first assault created a disturbance, constituted a refusal to leave the premises, or required the defendant to maintain discipline, but that “[n]one of these things appl[ied] to the last three chronologically charged acts.” T 474. As such, the trial court ruled that it would give the RSA 627:6 instruction only for the first assault, and the self-defense instruction on the remaining charges, but would not give the self-defense instruction on the first charge. T 474-75.

The defendant then asked the trial court to give the RSA 627:6 instruction for the second assault, the sweatshirt-grabbing, because the defendant testified that, after that happened, the defendant told the victim to come with him to the office, and the victim refused. T 475. The State objected, arguing that the defendant testified that he grabbed the victim’s sweatshirt to stop the victim from clawing his eyes. T 477. The trial court held that it would give the RSA 627:6 instruction only for the first assault because the defendant testified that after he grabbed the victim’s hand, “this thing escalated immediately and all the steps he took thereafter were in self-defense. Not to enforce discipline. Not to deal with a disturbance.” T 480.

The defendant then argued that RSA 627:6 provided a “complete defense that once [the victim] reacted the way he did, [the defendant] was still acting as a teacher with the responsibility of quelling the disturbance; removing a child who was in crisis from the classroom; and maintaining discipline in the class.” T 480-81. The trial court responded “I disagree. Anything else?” T 481.

After the trial court recessed to finalize the jury instructions, T 481, the defendant argued that the trial court’s instructions were “logically inconsistent” because RSA 627:4 and RSA 627:6 were not mutually exclusive. Id. The defendant argued that he could be justified in using force under both defenses. T 481-82. The defendant also argued that because Montanaro testified that as the defendant grabbed the victim by the sweatshirt, he told the victim to come with him, he was entitled to the RSA 627:6 instruction on that assault as well. T 482-83. The trial court disagreed, finding that because the defendant testified that he committed that assault in self-defense, he was “the one serving the defense, ” and therefore was only entitled to the self-defense instruction on that charge. T 483.

The defendant then moved to dismiss the strangulation charge, arguing that neither the testimony nor the video evidence established that the defendant strangled the victim. T 483-84. The defendant also moved to dismiss the simple assault charges, arguing that the State did not disprove self-defense, or the RSA 627:6 defense, beyond a reasonable doubt. T 485- 86.

The State argued that there was sufficient evidence of the strangulation based on the admitted testimony and exhibits. T 487-88. The State also argued that it sufficiently proved that the defendant’s use of force was unnecessary and unjustified, because it was “well outside accepted practice and what he’s supposed to be doing in that situation, ” and that the defendant was the initial aggressor. T 489-90.

The trial court denied the defendant’s motion to dismiss all four charges. T 490-91.

On July 13, 2022, the defendant filed a motion for in camera review of the victim’s school records. DA 20-24. On July 25, 2022, the trial court granted this motion and

On August 12, 2022, the defendant filed an assented-to motion to compel the school to produce the victim’s complete school record, which the trial court granted. DA 27-29. On September 9, 2022, the trial court issued an order stating that it had reviewed “numerous pages” of the victim’s school records from 2011 to June 2022. DAA 4. The trial court held that, after balancing the defendant’s constitutional rights, the confidentiality of the records, and the Gagne and Girard standards, none of the records warranted disclosure. Id.

At 3:54p.m. on January 6, 2023, the day after jury selection and the Friday before the trial started on Monday, January 9, 2023, the defendant filed a motion in limine to preclude the State’s law enforcement and educator witnesses from testifying about “the objective reasonableness of [the defendant’s] use of force.” DA 18. The defendant argued that any testimony that the defendant’s actions were unacceptable, or that the witness would not have acted the way the defendant did in the same situation, would be inadmissible lay opinion testimony under Rule of Evidence 701. DA 18-19.

The State did not file a written objection. On January 9, 2023, before opening statements, the trial court heard oral arguments on the defendant’s motion in limine. T 4-11. The State argued that it did not intend to offer any testimony from the witnesses about what they would have done in the defendant’s situation. T 4. The State argued that it would ask the witnesses what they saw before, during, and after the assaults, and whether those witnesses thought that the victim was disturbing the class. T 4-5. The State contended that this was not expert testimony because the witnesses did not need specialized training to explain what the classroom was like every day as compared to the day of the assaults. T 5. The State also contended that they could offer lay opinion testimony, under Rule of Evidence 701, about whether anyone in the classroom was being “disruptive.” T 5-6. The trial court denied the defendant’s motion to exclude this testimony, finding that, based on the State’s proffer, it was admissible under Rule 701. T 9-10.

The trial court sustainably exercised its discretion when it found some evidence justified only the RSA 627:6 defense instruction for the first assault, and that some evidence justified only the RSA 627:4 defense instruction for the remaining assaults. This standard is the appropriate appellate review standard to use here because a decision to instruct a jury on a justification defense requires the trial court to weigh the evidence, both the amount of it and the quality of it, to determine if the evidence warrants the instruction. Here, the trial court sustainably found that the defendant’s testimony provided some evidence that his first assault could be justified only under RSA 627:6, and that the remaining assaults could be justified only under RSA 627:4.

The trial court also sustainably defined initial aggressor in its jury instructions. The defendant did not object to this instruction at trial, and under this Court’s plain error doctrine, the trial court did not plainly err in instructing the jury that an initial aggressor is “the first one to use force.” T 508.

The trial court also sustainably exercised its discretion in excluding a student’s hearsay statement about the victim. The defendant did not preserve this appellate argument, because at trial he only argued that this hearsay was admissible to show the defendant’s state of mind, and not its effect on him weeks later when he assaulted the victim. The plain error rule therefore applies. The trial court did not plainly err in excluding this hearsay because the student’s statement was offered for its truth and was not admissible under any of the hearsay exceptions. But if the trial court did plainly err, that error did not affect the defendant’s substantial rights because there was overwhelming evidence of the defendant’s guilt at trial, and the student’s statement was cumulative of other evidence of the victim’s disruptive behavior.

The trial court also sustainably admitted testimony regarding the expectations of substitute paraeducators in a classroom, and lay opinion testimony that when the defendant assaulted the victim, his behavior did not conform with those expectations. This evidence was relevant to whether the defendant’s behavior was reasonable and necessary, facts which the jury needed to consider in determining whether the defendant was justified in assaulting the victim. Likewise, the lay opinion testimony was not highly technical, was based on the witness’ own perceptions of the defendant’s behavior, and assisted the jury in determining the reasonableness of the defendant’s behavior. Because the defendant did not object to the lay opinion testimony at trial, that argument is not preserved for appellate review. The trial court did not plainly err in admitting this testimony because it was relevant and appropriately admitted under Rule of Evidence 701. But if it did, that error did not affect the defendant’s substantial rights because there was overwhelming evidence of the defendant’s guilt at trial, and it was unobtrusive and inconsequential.

Finally, the defendant has not met his burden of establishing that the trial court erred in releasing some of the victim’s school records. The defendant only speculates that the trial court may have erred in releasing some of the records and does not assert what additional records required release, nor does he assert how the trial court’s failure to release more records prejudiced him at trial.

Under RSA 627:6, a “teacher or person entrusted with the care or supervision of a minor... is justified on the premises in using necessary force against such minor, when the minor creates a disturbance or refuses to leave the premises, or when it is necessary to prevent injury to self or others.” RSA 627:6, II(a) 2. “For a defendant’s use of force to be justified” under this statute, “he must have reasonably believed [the use of force] necessary....” State v. Leaf, 137 N.H. 97, 99 (1993). “The operative word is ‘reasonable, ’ which is determined by an objective standard.” Id. “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 it.” State v. Woodburn, 175 N.H. 645, 651 (2023). This Court has held that “some evidence” means “more than a minutia or scintilla of evidence.” Id. “The evidentiary support need not be overwhelming, ” Id., but “there must be sufficient evidence to support a rational finding in favor of [the] defense.” State v. Cote, 143 N.H. 368, 378 (1999) (quotations and 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.”’ Larose, 157 N.H. at 33 (quoting United States v. Rodriguez, 858 F.2d 809, 815 (1st Cir. 1988)). “Moreover, [] ‘conclusory and self-serving statements, standing alone, will not suffice.’ Id. (quoting United States v. Ortiz, 804 F.2d 1161, 1165-66 (10th Cir. 1986)). “‘A defendant’s account, though self-serving, may have weight if it is interlaced with considerable detail and has some circumstantial corroboration in the record.’” Id. (quoting United States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996) (quotation omitted)). “Without 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.” State v. Letourneau, 133 N.H. 565, 568 (1990). As such, this Court “review[s] the trial court’s failure to give an instruction for an unsustainable exercise of discretion.” Larose, 157 N.H. at 34; see also State v. Ramos, 149 N.H. 272, 274 (2003) (“Whether an instruction is necessary in a particular case, however, is an issue reserved to the trial court’s sound discretion.”); State v. Griffin, 2020 N.H. LEXIS 222, No., at *1 (Jan. 22, 2020) (“[This Court] review[s] the trial court’s decision not to give the requested jury instruction for an unsustainable exercise of discretion.”).

This is so, because when a trial court decides whether to instruct the jury on a justification defense, it does so only after determining whether there was some evidence at trial, more than a minutiae or scintilla, and only after weighing the credibility of that evidence. Because this requires a trial court to weigh the quantity and quality of the evidence and make both credibility and reasonableness determinations, these factual findings, and the discretionary decision to provide a jury instruction that flows from these factual findings, are owed deference on appeal. Cf. In Re R.M., 172 N.H. 694, 698 (2019) (“[This Court] defer[s] to the trial court to resolve conflicts in testimony, measure the credibility of witnesses, and determine the weight to be given to testimony, recognizing that, as the trier of fact, the trial court is in the best position to measure the persuasiveness and credibility of evidence.”).

While the defendant argues that “it was well-settled” that this Court reviews a trial court’s decision to instruct a jury on a defendant’s theory of defense de novo, the cases cited by the defendant do not support this contention. DB 27. State v. Haycock, 146 N.H. 5, 9-11 (2001), does not provide the standard of review used by this Court in determining whether the trial court erred in denying the defendant a self-defense instruction. State v. McMinn, 141 N.H. 636, 644-45 (1997), and State v. Hast, 133 N.H. 747, 749 (1990), both hold that a refusal to provide an instruction regarding a theory of defense is reversible error, without further defining this standard. Conversely, this Court has routinely held that jury instructions on a theory of defense are reviewed under the unsustainable exercise of discretion standard. State v. Cavanaugh, 174 N.H. 1, 9 (2020); State v. Vassar, 154 N.H. 370, 373 (2006); State v. Ayer, 154 N.H. 500, 514 (2006); State v. Lavoie, 152 N.H. 542, 547 (2005); State v. Chen, 148 N.H. 565, 569 (2002).

This standard is not confusing, as the defendant argues, DB 30, because applying a deferential standard of review to both a trial court’s factual and credibility determinations and to a decision to provide requested jury instructions is routine and well-settled. Indeed, this Court has generally held that “[w]hether a particular jury instruction is necessary, and the scope and wording of the instruction, are within the sound discretion of the trial court.” State v. Noucas, 165 N.H. 146, 154 (2013). In Noucas, this Court acknowledged that while a trial court is required to instruct on a defendant’s specific defense if there is some evidence to support a rational finding in favor of it, “this requirement presumes that the requested instruction is legally available in light of the charged offense and the evidence adduced at trial.” Id. As such, a trial court’s determination that an instruction is legally available in light of the charges and the admitted trial evidence requires the trial court to weigh the credibility of that evidence and determine whether a requested jury instruction is proper. This weighing of evidence in determining whether “some evidence” supports a specific defense instruction is owed deference and should be reviewed for an unsustainable exercise of discretion.

Here, the trial court sustainably found that, based on the defendant’s testimony, there was “some evidence” to warrant the RSA 627:6 instruction for the first assault based on the defendant’s trial testimony. T 473. The trial court also found that, “[a]ccording to the defendant’s own testimony, however, from that point on, this is all about self-defense. That is, once he grabs [the victim’s] hand, [the victim] reacts.” Id. The trial court found that the trial testimony established that because the victim reacted by reaching toward the defendant with a clawed hand, the defendant was concerned “for his eyes in particular....” Id. The trial court further found that “the only way I can interpret this evidence is that the person with special responsibilities defense applies to the first charged act.... That conduct leads to some evidence to support a finding that that conduct was in response to [the victim] creating a disturbance, refusing to leave the premises, or necessitating the defendant acting to maintain discipline.” T 474. The trial court further found that “[n]one of these things apply to the last three chronologically charged acts. [The remaining charges] are all about self-defense only. [] [A]nd self-defense doesn’t apply to that first charge. The defendant initiated contact with the alleged victim in the first instance and he wasn’t defending himself, ” and there is at least some evidence the defendant initiated contact to “maintain discipline and deal with what he perceived to be a disturbance....” Id. This ruling was supported by the defendant’s repeated testimony that, after he grabbed the victim’s hand, the victim “came at him” with a “clawed hand.” T 382-84, 390-91, 399. The defendant also repeatedly testified that when the victim “lunged for [his] eyes, ” he had “no choice but to defend [himself].” T 399; see also T 384 (“But someone coming at you aggressively with [] a clawed hand coming at your face, I’m not going to give up my right to self-defense at that point.”); T 397 (Q: Why did you use physical force? A: Because self-defense. I was attacked.”). This ruling was also supported by the lack of testimony from many of the witnesses that, after the defendant grabbed the victim’s hand, the victim was causing a disturbance, refused to leave the premises, or required the use of physical force against him to maintain discipline.

The trial court’s ruling was also supported by the defendant’s testimony that before he committed the first assault, he observed the victim cause a disturbance by throwing the fidget spinner to other students, asked the victim to stop, and when the victim refused to stop, the defendant grabbed for the fidget spinner in the victim’s hand. T 381. As such, there was some evidence that the defendant was justified in grabbing the victim’s hand under RSA 627:6.

When asked to give the RSA 627:6 instruction to the remaining assaults based on Montanaro’s testimony, the trial court declined, because the defendant’s testimony was that “once he grabbed [the victim’s] hand, this thing escalated immediately and all steps he took thereafter were in self-defense. Not to enforce discipline. Not to deal with a disturbance.” T 480. In ruling this way, the trial court found that there was not some evidence that the defendant’s decision to grab the victim’s sweatshirt and to push him fell under RSA 627:6. While Montanaro may have heard the defendant tell the victim to accompany him to the office before the defendant grabbed the victim’s sweatshirt, T 280, this evidence was contradicted by the other witnesses, who either did not hear the defendant tell the victim that, or heard the defendant tell the victim that before grabbing his hand. The defendant also testified that he told the victim to accompany him to the office before he “even reach[ed] for the fidget spinner before the confrontation.” T 388; see Larose, 157 N.H. at 33 (“A court need not give weight to allegations which are intrinsically improbably or flatly contradicted by irrefutable evidence.” (quotations and citation omitted)). As such, the trial court sustainably found that RSA 627:6 did not apply to the assaults that occurred after the defendant grabbed the victim’s hand.

The defendant also challenges on appeal the trial court’s jury instruction defining “initial aggressor” under RSA 627:4, I(b). DB 50-52. The defendant failed to object to this instruction at trial. Accordingly, this Court’s review is for plain error. This Court must therefore consider whether the trial court’s definition of initial aggressor was error, whether the error was plain, whether the error affected the defendant’s substantial rights, and whether the error seriously affected “the fairness, integrity or public reputation of judicial proceedings.” State v. Cooper, 168 N.H. 161, 167 (2015) (citation omitted).

“The scope and wording of jury instructions is generally within the sound discretion of the trial court.” State v. Jaroma, 137 N.H. 143, 153 (1993) (quotation and citation omitted). “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, but the court has no obligation to use the specific language a party requests, so long as the law is adequately stated.” Id. (quotations and citation omitted). “[R]eversal of a jury verdict is unwarranted when a jury charge fairly covers the issues and law of a case.” Id. (quotations and citation omitted). The trial court’s initial aggressor instruction was not error. Before trial, both parties submitted proposed jury instructions. DA 11-16. The defendant’s proposed self-defense instruction did not provide a definition of initial aggressor or mention the initial aggressor exception to self- defense. DA 13. The defendant did not object to the trial court’s initial aggressor instruction. The State’s proposed jury instruction tracked verbatim the 1985 criminal jury instructions regarding initial aggressor. DA 15-16. Likewise, the trial court’s instruction at trial did the same, and was the same self-defense instruction the trial court had given for sixteen years. T 242, 508. As such, the trial court did not err in defining initial aggressor. But, if the trial court erred in this instruction, that error was not plain. The defendant argues that the jury should have been instructed that “the use of lawful force does not render someone an initial aggressor.” DB 51. However, RSA 627:4, I(b) does not require a person to use unlawful force before being considered an initial aggressor. Likewise, this Court has not held that this interpretation of initial aggressor is correct, nor has this Court held that it is improper to instruct a jury that an initial aggressor is “the first one to use force, ” as the trial court did. T 508. Conversely, this Court has held that a trial court sustainably used the phrase “the one who started the encounter” instead of “initial aggressor” when instructing a jury. State v. Newell, 141 N.H. 199, 205 (1996). Because this Court has not held that an initial aggressor must also be someone who has used unlawful force, any error in the trial court’s instructions in this case cannot be plain. See State v. Panarello, 157 N.H. 204, 209 (2008) (“[A]n error is plain if it was or should have been obvious in the sense that the governing law was clearly settled to the contrary.”).

Accordingly, this Court should affirm the defendant’s convictions.

“The admissibility of evidence is a matter left to the sound discretion of the trial court.” State v. White, 155 N.H. 119, 123 (2007). “[This Court] will not reverse the trial court’s decision to admit evidence absent an unsustainable exercise of discretion.” State v. Lopez, 156 N.H. 416, 420 (2007). “[In determining] whether a ruling made by a judge is a proper exercise of judicial discretion, [this Court considers] whether the record establishes an objective basis sufficient to sustain the discretionary decision made.” State v. Lambert, 147 N.H. 295, 296 (2001).

The trial court sustainably excluded another student’s statement regarding the victim on an unknown day before the defendant’s charged conduct. The defendant argues on appeal that this statement was admissible because it was not offered for its truth, but instead to show its effect on the defendant. DB 49. However, that is not what the defendant argued to the trial court.

During the defendant’s testimony, he said that, on a day before the day of the assaults, he heard a student tell a teacher something about the victim. Id. Before the defendant could elicit the statement, the State objected, and the parties approached the bench. Id. At sidebar, the State argued that the statement was inadmissible hearsay. Id. Defense counsel proffered that the student said that when the victim was “not in the room we can actually learn.” T 372. Defense counsel argued that this statement was not offered for its truth but was offered “to show [the defendant’s] state of mind” on the day of the assaults. T 371-72.

In response, the trial court said that Rule 803(3) admits hearsay that “relates to the declarant’s state of mind.” T 373. Defense counsel argued that he was not offering it under Rule 803(3), but was offering it to show that the defendant believed the victim was causing a disturbance on the day of the assaults based, in part, on hearing the way this student described the victim. Id. The State then argued that if the testimony was offered to show its effect on the defendant, that effect had to occur “at the time the statement was said.” T 373. It also argued that if the statement was reputation evidence regarding the victim, it was inadmissible because the victim’s reputation was already established by other evidence. T 373-74. In response, the defendant argued that “the State was allowed to elicit testimony from the State’s witnesses, teachers about their experiences in the classroom prior and how it informed their opinion on what happened on the 17th. I’m doing likewise.” T 374.

The trial court sustained the State’s objection, finding that “[e]licting evidence about experiences is one thing, but eliciting the hearsay statement, I believe, is different. It doesn’t follow [Rule] 803(3).” Id. The defendant has not preserved this issue for appeal, because he failed to make this argument to the trial court. See State v. Russo, 140 N.H. 751, 753 (1996) (holding that a “contemporaneous and specific objection is required to preserve an issue for appellate review” so that the trial court understands the specific grounds of the objection and has “an opportunity to correct an error it may have made.” (quotations and citations omitted)). Thus, this Court should review the trial court’s ruling for plain error. “Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement.” Simpkins v. Snow, 139 N.H. 735, 737 (1995) (citation and quotations omitted). “Hearsay is inadmissible unless it falls within one of the exceptions provided in the rules of evidence.” Id. “Whether a statement constitutes hearsay and whether it is subject to an exception are questions for the trial court, and [this Court] will not disturb its ruling unless it is clearly erroneous.” Id. Here, based on the developed record, the trial court did not err when it excluded the student’s statement. “Whether a statement is hearsay depends upon the purpose for which it is offered.” State v. Plantamuro, 171 N.H. 253, 258 (2018). While the defendant contends that the student’s statement was not offered for its truth, but for its effect on the defendant at the time of the assault, the student’s statement had to be true for it to have affected the defendant when he assaulted the victim. If it was not true that the student felt that she learned better without the victim in the room, it would not have impacted the defendant’s beliefs about the victim’s potential for classroom disturbance the day of the assaults. See United States v. Robinzine, 80 F.3d 246, 252 (7th Cir. 1996) (holding that a witness’s request to another witness to lie was admissible because the request to lie “made no assertion of fact, ” was not offered for its truth, and was only significant at trial because the reason for the request, true or untrue, caused the witness to lie). Therefore, the trial court’s ruling was not error.

If the trial court erred, however, the error was not plain because the defendant did not argue at trial that the student’s statement was admissible for its effects on the defendant; he argued it was admissible to show the defendant’s state of mind. T 372-74. Because the defendant repeatedly focused his argument at sidebar on the defendant’s state of mind, which is an exception to hearsay, and not on the effect of the hearsay statement on the defendant, the trial court did not plainly err by ruling that the student’s statement did not meet the requirements of Rule 803(3). See Plantamuro, 171 N.H. at 259 (“The party seeking to introduce an out-of-court statement bears the burden of demonstrating that is not hearsay or that it meets a hearsay exception.”).

Even if this Court finds that the trial court plainly erred, the defendant cannot show that this error affected his substantial rights. The third prong of the plain error analysis is akin to a harmless error analysis and may properly employ similar factors while keeping the burden with the defendant. Cooper, 168 N.H. at 161. To decide whether an error was harmless, this Court “evaluate[s] the totality of the circumstances at trial” to determine whether the error affected the verdict. State v. Boudreau, 176 N.H. 1, 11 (2023). Amongst the factors this Court considers are: (1) the strength of the State’s case; (2) whether the error was cumulative or inconsequential in relation to the strength of the State’s case; and (3) whether the other evidence of the defendant’s guilt is of an overwhelming nature. Id. at 12.

Here, numerous witnesses testified regarding the defendant’s assault of the victim. Two videos were admitted showing the end of the assaults. Photographs of the victim’s injuries were admitted. Many of the witnesses agreed that the victim was not causing a disturbance or disruption before the defendant assaulted him, and almost all of the witnesses agreed that they were shocked by the defendant’s conduct towards the victim after he grabbed the victim’s hand to take the fidget spinner away. Many of the witnesses also agreed that the defendant grabbed the victim’s sweatshirt and pushed him against a wall, but not all of them corroborated the defendant’s testimony that the victim tried to attack the defendant. As such, there was both strong and overwhelming evidence of the defendant’s guilt. The jury also heard testimony regarding the victim’s behavior at school, including two disciplinary reports the victim had in January, weeks before the defendant assaulted him. T 216. The defendant also testified at trial that he believed the victim to be “rude, vulgar, and disruptive, ” and found the victim “very problematic in every class” the defendant was in. T 370, 375. Thus, the hearsay statement was both cumulative and inconsequential, given the other evidence of the victim’s disruptive classroom behavior.

Accordingly, if the trial court plainly erred, the error did not affect the defendant’s substantive rights, and was harmless beyond a reasonable doubt because there was strong and overwhelming evidence of the defendant’s guilt, and because other evidence established that the defendant knew that the victim was disruptive in other classes before he assaulted the victim.

The defendant challenges the trial court’s admission of testimony regarding the expectations of a substitute paraeducator in a classroom as irrelevant and improper opinion testimony. DB 43-47. At trial, defense counsel objected to Roberge’s testimony about her expectation of substitute paraeducators in her classroom as irrelevant and improper opinion testimony, T 180, but did not object when the State asked Roberge whether the defendant’s actions conformed with her expectations. T 182. Nor did defense counsel object during Corrigan’s or Montanaro’s testimony on the same points. T 206, 283. The trial court sustainably ruled at trial that Roberge’s testimony about general substitute expectations was relevant “because the cross-examination of other witnesses made it relevant, ” and that it was not opinion testimony. T 181.

Rule of Evidence 401 provides that evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” N.H. R. Evid. 401(a), (b). A trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” N.H. R. Evid. 403. Here, the trial court sustainably determined that testimony regarding the expectations for a substitute paraeducator was relevant based on the students’ cross-examinations. During the victim’s and a second student’s cross-examinations, they agreed with defense counsel that the defendant was a substitute who could give students directions that students were supposed to follow. T 107-08, 156. This testimony was relevant to determining whether the defendant was a person entrusted with the care or supervision of a minor under RSA 627:6, II(a).

Because this evidence was relevant when the victim and another student testified to it, so too was it relevant when Roberge, Corrigan, and Montanaro testified regarding the expectations of a substitute paraeducator in a classroom, especially considering these three full-time, adult educators, who had worked in the school for years, would have a more accurate basis of knowledge of the responsibilities of a substitute paraeducator than two ninth-grade students.

The defendant is correct in noting in his brief that neither opening the door doctrine applies to this evidence. DB 46-47. This is so because the students’ testimony that the defendant could give them directions that they were supposed to follow was relevant, admissible evidence, as was testimony from the adult educators regarding the defendant’s expected behavior as a substitute paraeducator. As such, this Court need not consider whether the defendant opened the door to the adult educators’ testimony, because it was relevant without the students’ testimony, and the opening the door doctrine is only employed to admit otherwise inadmissible evidence. The trial court also sustainably held that testimony regarding the general expectations of a substitute paraeducator was not opinion testimony. T 181. Only Roberge and Corrigan testified regarding the general expectations of a substitute paraeducator in a classroom. T 181, 205-06. These general expectations were not opinions, but were objective facts based on school policy of which the witnesses did not offer any judgment.

The defendant also challenges on appeal the educators’ lay opinion testimony that the defendant’s behavior on February 17 did not conform with their expectations of a substitute paraeducator. DB 43-47. However, because the defendant did not object at trial to this testimony, this argument is not preserved for appellate review. T 182, 206, 283. Russo, 140 N.H. at 753. This Court reviews the admission of this evidence under its plain error doctrine.

If a lay witness provides opinion testimony, that opinion is “limited to one that is (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” N.H. R. Evid. 701. Here, a teacher, a paraeducator who had worked in education for thirty years, and the principal, testified that the defendant’s behavior did not conform with their expectations for a substitute paraeducator based on their observations of his behavior during the assaults, and their experience as educators in the Gorham Middle High School. Their opinions were not based on specialized or technical knowledge and were helpful because they spoke to whether the defendant’s behavior was objectively reasonable, a fact for the jury to consider in determining whether the defendant acted justifiably. Thus, these opinions were admissible. If this Court finds that the trial court plainly erred in admitting these opinions, they did not affect the defendant’s substantial rights. The admission of these lay opinions was harmless beyond a reasonable doubt because the evidence of the defendant’s guilt was both strong and overwhelming, as argued above in Section II(B), and because this evidence was inconsequential in relation to the State’s case. Each witness only testified once that the defendant’s conduct did not conform with their expectations of a substitute paraeducator. The State did not mention these witnesses’ opinions on this point during its closing argument. Likewise, defense counsel asked all three adult educators on cross-examination if New Hampshire law allowed a substitute paraeducator to use force against a child who was creating a disturbance or when it was necessary to maintain discipline, with which all the witnesses agreed. T 191-92, 210, 232, 284-86.

As such, this evidence was inconsequential because it was “unobtrusive, ” and because it was not “lengthy, comprehensive, [or] directly linked to a determination of the guilt or innocence of the defendant. Nor did the prosecutor call particular attention to this testimony in closing argument....” State v. Hennessey, 142 N.H. 149, 158-59 (1997) (quotations and citation omitted). Accordingly, if the trial court plainly erred in admitting this evidence, this error was harmless beyond a reasonable doubt and did not affect the defendant’s substantial rights.

THE

The defendant argues on appeal that the trial court may have erred because it

DB 53-55; AD 3. The defendant assumes on appeal that there must be additional school records that were relevant or material without explaining how he has reached that conclusion.

A trial court’s decision to release records following an in camera review “deals with... the discoverability of evidence.” State v. Sargent, 148 N.H. 571, 572-73 (2002). As such, this Court “review[s] the trial court’s ruling[] to decide [] whether [it] constitute[s] unsustainable exercise of discretion.” Id. at 572-73. As the appealing party, the defendant must demonstrate reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). “When a defendant argues that a trial court’s ruling is unsustainable, the defendant must demonstrate that the ruling was clearly unreasonable or untenable to the prejudice of his case.” Id.

Here, the defendant has not asserted any specific allegations that the trial court erred in not releasing additional records, nor has he asserted that the trial court’s decision to release some records and not others was “clearly unreasonable or untenable to the prejudice of his case.” State v. Girard, 173 N.H. 619, 627 (2020). “[T]he requirement that the defendant show actual prejudice has been called a ‘heavy burden.’” State v. Knickerbocker, 152 N.H. 467, 470 (2005) (citation omitted). “The defendant must show ‘actual prejudice that is definite and not speculative.” Id. (citation omitted). “[A] showing of mere potential or possible trial prejudice does not suffice. Moreover, the prejudice must be substantial.” Id. (quotations and citations omitted).

The defendant has only speculated that the trial court erred. This is not sufficient to meet his burden of establishing on appeal that the trial court’s decision to release some records and not others was reversible error or prejudiced his case at trial. Accordingly, this Court should deny the defendant’s request to review the victim’s school records and should affirm the defendant’s convictions.

If this Court chooses to review the records, and if this Court determines that additional records should have been released, this Court should remand this case and those records to the trial court and instruct the trial court to release those records to the parties with any necessary protective order pursuant to Part I, Article 2-b of the New Hampshire Constitution and the Victim’s Bill of Rights. RSA 21-M:8-k. This Court should also instruct the trial court to provide the parties with an opportunity to make arguments as to whether a new trial is warranted, or if the failure to release the records prior to trial was harmless beyond a reasonable doubt.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the defendant’s convictions below. The State requests a 15-minute oral argument, delivered by Audriana Mekula, Esq.

Respectfull y Submitted, THE S

By Its Att orneys,

June 7, 2024 /s/ Audriana Mekula Audriana Mekula, Bar No. 270164 Assistant Attorney General Office of the Solicitor General New Hampshire Department of Justice 1 Granite Place South Concord, NH 03301

I, Audriana Mekula, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 9, 378 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/ Audriana Mekula Audriana Mekula

I, Audriana Mekula, hereby certify that a copy of the State’s brief shall be served on Deputy Chief Appellate Defender Thomas Barnard, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

June 7, 2024 /s/ Audriana Mekula Audriana Mekula