State of New Hampshire v. Yoesmith Sosa Perez

Whether the State introduced sufficient evidence to prove that Sosa did not act in self-defense.

Issue preserved by defense motion to dismiss, the hearing on the motion, and the trial court’s order. T3 313-16. *

The State charged Yoesmith Sosa Perez with one count of attempted murder and two counts of first-degree assault, all alleging offenses against R.S. arising out of a shooting in Manchester on August 10, 2021. T 1 16-17. Each count of first-degree assault referred to a different one of the two shots that struck R.S. A3-A4.

Sosa stood trial over five days in April and May, 2023. The jury acquitted Sosa of attempted murder but convicted him of both counts of first-degree assault. T5 506-08. The trial court (Messer, J.) sentenced Sosa to a stand-committed term of five to ten years on one conviction and to a consecutive, suspended term of five to fifteen years on the other. A5-A10.

For about seven months during 2021, R.S., an adult man, lived in the third-floor apartment at 400 Amherst Street in Manchester. T 4 380. R.S. lived there with Yoesmith Sosa Perez (“Sosa”), Sosa’s girlfriend Nayelee Alvarez, and another tenant. T1 43; T4 364, 379-80. Alvarez testified that R.S. made her feel uncomfortable and scared because he would, in arguments, say that he was crazy and not a person to be messed with. T4 365-66. In August 2021, Sosa was twenty- one and Alvarez was eighteen. T4 362, 379; A3. The building contained two other apartments, one on the second floor and one on the first. T1 45.

Late one night not long before August 10, 2021, Sosa and Alvarez ordered R.S. to move out of the apartment for not having paid a debt. T1 42-43, 48; T4 366, 382. R.S. moved in the same building to the first-floor apartment where his girlfriend, Daliana Perez, lived with her mother, Amanda Canales, and several siblings. T1 40-42, 48, 90, 93; T4 358- 61. Testimony at trial indicated that Sosa was not aware that R.S. moved into the first-floor apartment. T4 366-67. Shortly before August 10, Sosa underwent circumcision. T2 237, 245, 258; T4 367. In the days after the surgery, he experienced pain and moved with discomfort. T2 258-59; T4 368. In the early afternoon of August 10, Sosa’s father, Yoquin Sosa (“Yoquin”), came to help Sosa run an errand. T2 230-33. While they were away, R.S. appeared outside the Amherst Street house. Witnesses in the apartments heard R.S. engaged in a loud telephone argument with someone, possibly R.S.’s daughter. T1 49-50, 72, 74-75; T4 359. Enraged by that argument, R.S. smashed his phone on the ground, breaking it. T1 78-79; T4 359.

Just after R.S. smashed his phone, Yoquin and Sosa returned. T1 50; T2 235, 259; T4 359. When Sosa got out of the car, R.S. approached to say that Sosa owed him money. T2 238, 259; T4 359-60. Their encounter became an argument in which R.S. threatened to beat up Sosa. T2 238- 39, 242, 260-61, 265. Sosa denied that he owed R.S. money and backed away into the building. T2 238, 259; T4 360. A moment later, Sosa re-emerged, telling R.S. to leave. T2 241, 243, 261, 263. Yoquin also urged R.S. to leave. T2 240, 242, 259-62.

The encounter escalated, with R.S. talking to Sosa in “a violent way, ” threatening to beat up Sosa and Alvarez. T2 260-61, 265. The incident ended with Sosa firing two shots that struck R.S. Medical testimony established that the bullets passed through R.S.’s abdomen and pelvis. T2 137, 140. He suffered injury to his intestines, to tissue around his kidney and to a bony part of a vertebra, but no spinal-cord injury. T2 142-47, 158-59.

The State contended that, in shooting R.S., Sosa committed first-degree assault and attempted murder.1 The defense contended that Sosa justifiably fired the shots in defense of himself and another.

During trial, following a last-minute witness-preparation session with R.S., the State provided the defense new information relating to R.S. and decided not to call him to testify. T 3 282-89; T4 365. Sosa also did not testify. Surveillance footage from a nearby vantage point showed the scene but not the crucial moments.2 T1 33-34. The State accordingly relied on the testimony of Yoquin and M.R., Canales’s teenage daughter. T1 88; T2 229. The defense called Perez and Alvarez. T4 357, 362.

Yoquin testified that, after Sosa emerged from the building, R.S. ran toward Sosa, grabbed him, and threw him to the ground on the sidewalk. T2 242-44, 264-65, 267. Yoquin then saw R.S. reaching to grab Alvarez. T2 242, 264- 65, 268. At that point, Yoquin screamed “no” and Sosa shot R.S. T2 246-47, 251-53, 265-66. Yoquin returned to his car where somebody asked him if he was okay, at which point Yoquin left. T2 249-50, 254, 266. Alvarez gave similar testimony.3 While in the third-floor apartment, she heard “a lot of arguing outside.” T4 369-70, 391. Alvarez went downstairs to see what was happening. T4 371. She saw Sosa coming up the porch stairs with R.S. in pursuit. T4 373. R.S. looked very angry and Sosa looked scared. T4 372, 405. R.S. caught Sosa and punched him, precipitating a struggle. T4 373-74. R.S. then threw Sosa off the porch, onto the sidewalk. T4 374-75, 411. Alvarez then hit R.S. T4 375-76. In response, R.S. grabbed Alvarez by the wrist and said, “you too, bitch.” T4 376. When R.S. put his hand around Alvarez’s throat, Sosa fired the shots. T4 376. Alvarez returned to her apartment. T4 377.

M.R. testified that she was in the first-floor apartment in a bedroom overlooking Amherst Street. T1 90. M.R. heard arguing in the hallway that continued in front of the house. T1 91-92, 102. She looked out her window and saw R.S. and Sosa, arguing. T1 93, 95. She also saw a “girl” with them. T1 95-96. Sosa had turned and started walking down the porch steps when R.S. pushed him in the back. T1 96, 104, 109. Sosa “stumbled back” and fell into a railing but did not fall to the ground. T1 96-99. Sosa regained his balance and stood at the bottom of the stairs. T1 98-99. M.R. turned away and did not see the shooting. T1 99-100, 113-14. Canales came out of her apartment after hearing the shots and tended to R.S. T1 51, 61. At Canales’s direction, one of her children called 911. T1 67-68. Following the shooting, Sosa remained on the scene, visibly very upset. T1 53, 78. A nearby surveillance camera recorded Sosa saying “sorry, ” “please, no, ” “why’d you make me do this, ” “I told him I had a surgery, ” “I love you, bro, ” and “please don’t die; just stay alive.” T1 53-54, 68, 76-77. Sosa said that R.S. had “almost pushed him down the stairs.” T1 62. Sosa removed his shirt to give to Canales, so that she could put it on R.S.’s wound. T1 66, 77. Canales and Perez told Sosa to walk away. T1 61, 68. The police and emergency services soon arrived on the scene. T1 64-66, 78.

Police later recovered the gun used in the shooting on the landing outside the third-floor apartment. T2 177-80, 193. The police questioned Sosa, who cooperated by answering their questions. T2 194-95. An examination of Sosa’s body disclosed a long scrape or gash across his chest. T2 197-98, 201-02. His fists showed no signs of injury. T2 201.

The State introduced insufficient evidence to disprove Sosa’s claim of self-defense. Under the law, Sosa would be justified in using deadly force in self-defense if he reasonably believed that R.S. was likely: (1) to use any unlawful force against Sosa, (2) in the commission of a felony, (3) within Sosa’s dwelling or its curtilage. To obtain a conviction, the State had to disprove at least one of those three conditions. Even viewing the evidence in the light most favorable to the State, the Court must conclude that the State failed to do so. The State did not disprove the first part. At the relevant time, R.S. had just attacked Sosa verbally and physically, by pushing him. There was no evidence that R.S. regarded the confrontation as over. It was therefore likely that R.S. would continue to use unlawful force against Sosa.

The State did not disprove the second part. To prevail, the State had to prove that R.S. was unlikely to commit or attempt to commit any variant of first- or second-degree assault. The beating that R.S. had threatened and begun to administer would likely cause Sosa serious bodily injury or, alternatively, bodily injury under circumstances manifesting extreme indifference to human life.

Finally, the State did not disprove the third condition, given R.S.’s undisputed presence on the porch (and thus in the curtilage) of Sosa’s home.

After the State rested, the defense moved to dismiss the charges, arguing that the State had introduced insufficient evidence. T3 313-16. As relevant to this appeal, the defense argued that the State introduced insufficient evidence to disprove the possibility that Sosa acted in defense of himself or another. T3 313-14. The State objected. T3 315. The court denied the motion. T3 316. In so ruling, the court reasoned:

another person is “likely to use any unlawful force in the commission of a felony against the actor within such actor’s dwelling or its curtilage.” RSA 627:4, II(d). The court accordingly instructed the jury on these three circumstances. T4 472. The court further instructed the jury that, to prevail, the State bore the burden of proving, beyond a reasonable doubt, that Sosa’s acts were not justified by self-defense. T4 467-68.

The analysis of a claim of insufficient evidence focuses on “whether a reasonable jury could have found that the definition [of the crime] given by the trial court was met.” State v. Paglierani, 139 N.H. 37, 38 (1994). On appeal, this Court reviews a challenge to the sufficiency of the evidence de novo. State v. Folley, 172 N.H. 760, 766 (2020).

The Court determines whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, considering all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State.” Id. When, as here, disproof of self- defense becomes an element, the State’s failure to introduce sufficient evidence to carry that burden will require reversal on appeal. See, e.g., Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001) (reversing conviction for insufficient evidence to disprove self-defense). A conviction based on legally insufficient evidence violates the Due Process Clause of the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979).

When evidence of an element is solely circumstantial, the circumstantial evidence must exclude all reasonable conclusions other than the defendant’s guilt. State v. Seibel, 174 N.H. 440, 445 (2021); see also State v. King, 168 N.H. 340 (2015) (defining circumstantial evidence doctrine, as expressed in jury instructions); T2 239-41 (jury instructions governing sufficiency of circumstantial evidence to prove elements). “Where solely circumstantial evidence is at issue, the critical question is whether, even assuming all credibility resolutions in favor of the State, the inferential chain of circumstances is of sufficient strength that guilt is the sole rational conclusion.” State v. Ruiz, 170 N.H. 553, 569 (2018) (cleaned up).

The evidence at trial put several facts beyond any reasonable dispute. First, testimony established that R.S., already in a bad temper for reasons apparently unrelated to Sosa, initiated the argument that day with Sosa by threatening him and otherwise addressing him aggressively. Second, Sosa walked away from R.S. briefly by entering the house. Third, R.S. did not depart during Sosa’s absence, but was still in the curtilage when Sosa returned to urge R.S. to leave. Fourth, the argument resumed upon Sosa’s return, in much the same vein as before. Fifth, R.S. then used force on Sosa, though the precise nature of the force was disputed as described below. Sixth, immediately following that use of force, Sosa fired two shots that struck R.S. Finally, R.S. was not armed at the time.

Two points became the subject of dispute at trial. First, the parties disputed the precise nature of R.S.’s physical attack on Sosa. Yoquin and Alvarez testified that R.S. picked Sosa up and threw him to the ground. M.R. testified that R.S. pushed Sosa, causing him to stumble against a railing and perhaps causing the gash in his chest later noted by the police. M.R. testified that, while Sosa stumbled, he did not fall. T1 97.

Second, the parties disputed whether Alvarez was present on the porch at the crucial time and, if so, whether R.S. threatened or grabbed her. Alvarez and Yoquin testified that she was present and that R.S. threatened her just before the shooting. T2 264-65; T4 375-76. M.R. also indicated that a woman was on the porch at that moment. T1 95-96. Relying on Alvarez’s prior statements to the police, the State denied that Alvarez was present and thus denied that R.S. threatened her at that time. T4 445-46.

On appeal, this Court must treat those factual disputes as resolved in the State’s favor. The question then becomes whether, given those facts and the undisputed facts, the State disproved self-defense. Sosa contends that the State failed to disprove the third possible justification for the use of deadly force: that R.S. was likely to use any unlawful force in the commission of a felony against Sosa4 within Sosa’s dwelling or its curtilage.

To defeat Sosa’s self-defense justification, the State would have to disprove at least one of its three constituent parts. Specifically, Sosa was justified in using deadly force if he reasonably believed that R.S. was likely: (1) to use any unlawful force against Sosa, (2) in the commission of a felony, (3) within Sosa’s dwelling or its curtilage. Given R.S.’s undisputed presence on the porch (and thus in the curtilage) of Sosa’s house, 5 disproof of self-defense could come, if at all, only by defeating the first or second part.

The State failed to disprove the first part. At the relevant time, R.S. had just attacked Sosa not only verbally, but also physically, by pushing him against the porch’s railing. There was no evidence that R.S. then said or did anything to indicate that he regarded the confrontation as over. Because R.S. had once already unlawfully pushed Sosa during an ongoing argument in which R.S. was the initial aggressor, the State did not prove R.S. unlikely to do so again. The State also failed to disprove the second part: that R.S. was likely to commit a felony. During deliberations, the jury asked several questions seeking guidance on the meaning of the term “felony” as used in this context. T4 481- 88; T5 492-506. In answer to those questions, the court ultimately instructed the jury on the definitions of first- and second-degree assault, as modified to remove matters irrelevant in this case. T5 504.

The court defined first-degree assault thus:

T5 504. Elsewhere in the instructions, the court had already defined “serious bodily injury.” T4 472.

The court defined second-degree assault thus:

T4 505. Also, the court made clear that an attempt by R.S. to commit a first- or second-degree assault would also be a felony. T5 504-05.

To prevail by disproving this part of Sosa’s justification defense, the State had to prove that Sosa believed that R.S. was unlikely to commit or attempt to commit any of the described variants of first- or second-degree assault. This the State did not do.

The inquiry is not resolved by the fact, if it is a fact, that R.S. had not yet committed a felony against Sosa. Even if one regards the push that caused the gash to Sosa’s chest as misdemeanor simple assault, the relevant question for application of the justification defense focused on Sosa’s perception of what R.S. was likely next to attempt. In light of R.S.’s aggression and threats to beat up Sosa, 6 in combination with the push, the State could not prove that Sosa reasonably believed that R.S. had finished his attack and would not escalate it further.

Moreover, the threshold for committing a felony assault is not unduly high. The phrase “serious bodily injury” encompasses any harm to the body which causes severe, permanent, or protracted loss of or impairment to the health or function of any part of the body. RSA 625:11, VI; see also T4 472 (jury instruction defining the phrase). This Court accordingly has found sufficient evidence of serious bodily injury in the kinds of injuries that result from a beating. See, e.g., State v. Dorrance, 165 N.H. 162, 163-64 (2013) (eye swollen shut, blurry vision for ten to fourteen days); State v. Pepin, 156 N.H. 269, 281-82 (2007) (broken nose, broken tooth, lacerated lip, bruised neck, swollen chin); State v. Scognamiglio, 150 N.H. 534, 537 (2004) (broken nose, swollen and discolored eyes, clogged breathing passages and sinus infection); State v. MacArthur, 138 N.H. 597, 598 (1994) (severe facial lacerations, hemorrhage in right eye, swollen and bruised face); State v. Kiluk, 120 N.H. 1, 4 (1980) (wounds requiring seven stitches and scratched eyeball resulting in blurred vision).

Sosa therefore had no reason to think it unlikely that R.S. would purposely, knowingly, or recklessly cause or attempt to cause him serious bodily injury. Thus, there were variants of first-degree assault (purposely cause serious bodily injury) and second-degree assault (knowingly or recklessly cause serious bodily injury) that the State did not prove that R.S. was unlikely to commit or attempt to commit. In the alternative, Sosa contends that the State could not disprove a likelihood that R.S. would commit or try to commit the variant of second-degree assault occurring when one recklessly causes bodily injury to another under circumstances manifesting extreme indifference to the value of human life. This variant requires only “bodily injury, ” rather than “serious bodily injury.” It further requires proof of extreme indifference to the value of human life, a concept not statutorily defined. This Court has held that extreme indifference “does not require proof of particularly vicious conduct. Rather, the critical factor is the degree to which the defendant disregards the risk of death to another.” State v. Schultz, 141 N.H. 101, 105 (1996). This Court has found sufficient evidence of extreme indifference in cases involving beatings. See, e.g., State v. Fischer, 165 N.H. 706, 709, 712- 13 (2013).

For all these reasons, even viewing the disputed facts in the light most favorable to the State, the State failed to disprove that Sosa acted in self-defense. This Court must accordingly reverse his convictions.

WHEREFORE, Mr. Sosa Perez respectfully requests that this Court reverse his convictions.

Undersigned counsel requests fifteen minutes of oral argument before a full panel.

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

This brief complies with the applicable word limitation and contains approximately 3674 words.

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