State of New Hampshire v. Yoesmith Sosa Perez

II. Whether the trial court plainly erred by denying the defendant’s motion to dismiss.

III. Whether the State produced sufficient evidence that the defendant did not act in self-defense.

The grand jury indicted the defendant, Yoesmith Sosa Perez, on two counts of first-degree assault and one count of attempted murder. A 1 at 3-5. Following a five-day jury trial, the jury acquitted the defendant of attempted murder but found him guilty on both counts of first-degree assault. T5 at 506-07. The trial court (Messer, J.) sentenced the defendant to serve a stand-committed sentence of five to ten years on one count of first- degree assault, to be served consecutively with a suspended sentence of five to ten years on the other first-degree assault conviction. A at 5-10.

A few days later, Yoquin Sosa, the defendant’s father, dropped the defendant off at the apartment complex. T 2 at 234. When they arrived, the victim approached the defendant, and the two men began arguing. T2 at 234-39. The argument continued as the defendant walked up the stairs towards the apartment building’s front entrance. T2 at 239-42. The confrontation turned physical, and the defendant fired two rounds into the victim’s body. T2 at 242-46. A business across the street’s security camera recorded the immediate aftermath of the incident but did not capture the shooting. See State’s Exhibit 48 Canales, who heard the gun shots, ran out of the apartment, found the victim lying on the ground bleeding, and told her son to call an ambulance. T1 at 51-53. The police arrived, and the victim was rushed to the hospital. T1 at 66-67. The victim survived his injuries after doctors at Elliot Hospital gave him a blood transfusion and performed emergency surgery to stop the bleeding. T2 at 145-79.

M.R. then returned to cleaning her room and did not see the shooting. T1 at 99-100.

The security footage was also played to the jury. The video showed the victim lying on the ground near the stairs while the defendant shouted, “Oh my God!” and various things in Spanish. State’s Exhibit 48; T1 at 51. Canales testified and identified herself, the victim, and the defendant in the video for the jury. T1 at 50-51. She also explained that she spoke fluent Spanish and testified that the phrases that the defendant was exclaiming in Spanish were “sorry, sorry, no, no, ” “just stay alive, ” and “he almost pushed [me] down the stairs.” T1 at 53-54, 62.

Detective Eric MacDuff of the Manchester Police Department testified that he seized shell casings from the scene and a handgun found on the third-floor stairwell, the floor where the defendant’s apartment was located. T2 at 180-85. No weapons were taken from the victim. T2 at 182.

Detective MacDuff also interviewed the defendant after the shooting and took photographs of his body.2 T2 at 197-98. The defendant had a “long scrape or gash” on his chest but did not have any marks or abrasions on his hands. T2 at 201-02.

The State also called Yoquin, the defendant’s father, as a witness. According to Yoquin, he dropped the defendant off at the apartment building on the day of the shooting, and the victim was waiting for them when they arrived. T2 at 238. Yoquin testified that the victim accused the defendant of owing him a hundred dollars. T2 at 238. The defendant denied owing the victim any money and walked towards the entrance to the building. T2 at 239-41. Yoquin alleged that the victim, who he described as “very angry, ” did not leave and continued to argue with the defendant, so the defendant told the victim to leave once again as he opened the door to the apartment building. T2 at 241-42.

Yoquin testified that the victim then ran to the defendant, smacked him, and threw him to the ground. T2 at 242-46. Yoquin alleged that the victim also moved towards Alvarez, the defendant’s girlfriend, and the defendant shot the victim. T2 at 246. Yoquin admitted that he did not see the victim with a gun or any type of weapon. T2 at 247. The State pressed Yoquin on statements he made to the police after the shooting. Yoquin did not deny making these statements but provided explanations that did not directly contradict his son’s claim of self-defense. For example, Yoquin admitted that he told the police that he said “no, no, no” to the defendant as the defendant pointed his gun at the victim. T2 at 253. However, he claimed that he actually shouted “no” to the victim as the victim was attacking the defendant. T2 at 252. Yoquin alleged that he told the police after the shooting that he spoke these words to the defendant because he was “in panic because I thought the police were going to arrest me.” T2 at 251-52.

The State, which had informed the jury during its opening statement that the evidence would show that the defendant attempted to flee the scene, T1 at 33, also asked Yoquin if he told the police that the defendant came to his car and asked for a ride after the shooting. T2 at 253-54. Yoquin admitted that someone came to his car but claimed he was in too much shock from the shooting to know if it was the defendant. T2 at 254. He would only concede that it could have been the defendant. T2 at 254. As he explained, “I was in shock. And so when someone came to speak to me, I thought it was my son, and so I thought he was asking if I was okay, If I was feeling okay. And I said that I had to leave and that he needed to stay and wait for the police.” T2 at 254.

The defendant used cross-examination to elicit testimony supporting his claim of self-defense. Upon questioning, Yoquin alleged that the victim called the defendant a “bitch” and a “pussy” and threatened “I’m going to fuck you up, you and your whore bitch girlfriend.” T2 at 260-61. However, Yoquin testified on redirect that the victim did not attack Alvarez before the shooting but maintained he could tell it was the victim’s intent to do so. T2 at 268. Yoquin also conceded on redirect that he initially told the police that he did not witness the shooting. T2 at 269.

The State responded that M.R. testified to a “very different scene” in which the victim pushed the defendant in the back, and the defendant was just standing at the bottom of the stairs when she looked away. T 3 at 315. The trial court denied the motion, concluding that the State had produced sufficient evidence from which a rational jury could find that the victim was not using deadly force against the defendant or that any of the other conditions of the self-defense statute applied. T3 at 316.

T4 at 359. Perez alleged that she then saw the victim begin walking towards the defendant, who was backing away from the victim towards the apartment building. T4 at 359-60.

Alvarez also testified for the defense and alleged she witnessed the fight and the shooting. According to Alvarez, the defendant was running away from the victim and telling him to leave before the victim caught up to him, punched him multiple times, and threw him down the stairs. T4 at 372-75. Alavarez alleged that she then hit the victim, who responded by grabbing her by the wrist, putting his other hand around her throat, and telling her, “You too, bitch.” T4 at 376. According to Alvarez, it was at this moment that the defendant shot the victim. T4 at 376. Alvarez was confronted on cross-examination about various statements she gave to the police after the shooting. Alvarez conceded that when the police first arrived on the scene, she told them that she was inside when the shooting occurred but later changed her story and told the police that she went outside after she heard the defendant and the victim arguing. T4 at 386-391. Alvarez also admitted that she told the police that Yoquin was not at the scene when she went outside. T4 at 395-96. The State also asked Alavarez about statements she made to the police that contradicted her trial testimony. Alavarez acknowledged that she told the police, “They were on the stairs the whole time. They just started fighting, and they were on the stairs the whole time.” T4 at 397-98. She also conceded that the police asked her, “Did your boyfriend come up to confront Raymond” and she responded “yeah.” T4 at 398. Alvarez also admitted that she did not tell the police that the victim put his hands on her and acknowledged that the police directly asked her if the victim had assaulted her and she answered “no.” T4 at 399-401. The defendant did not testify and did not renew his motion to dismiss after the close of his evidence. The jury acquitted the defendant of attempted murder but convicted him on both counts of first-degree assault. T5 at 506-07. This appeal followed.

The defendant contends that the State failed to prove that he was not entitled to use deadly force in self-defense. This argument was not preserved for appellate review for two reasons. First, the defendant failed to renew his motion to dismiss after presenting his own proof, thereby failing the preservation requirement that challenges to the sufficiency of the evidence be raised at the close of the evidence. Second, the defendant failed to raise the specific argument with the trial court that he raises in his brief. The defendant argues before this Court that the State produced insufficient evidence that he was not privileged to act in self-defense pursuant to RSA 627:4, II(d), which permits a person to use deadly force when he reasonably believes another person is likely to use unlawful force in the commission of a felony in the person’s dwelling or its curtilage. However, the defendant’s motion to dismiss did not reference curtilage or explain which felony or felonies the defendant reasonably believed the victim would commit through mere unlawful force.

This Court has previously declined to review unpreserved challenges to the sufficiency of the evidence for plain error. State v. McAdams, 134 N.H. 445, 447 (1991); State v. Fennell, 128 N.H. 383, 384 (1986). But even if the Court were to review for plain error, the defendant’s challenge to the sufficiency of the evidence would still fail on the merits. The trial court did not commit any error in denying the defendant’s motion to dismiss because the evidence in the light most favorable to the State was that the defendant and the victim got into an argument, and the victim pushed the defendant in the back but only with enough force to push the defendant into the staircase railing. The defendant then turned around and shot the victim twice, despite the victim being unarmed and doing nothing to reasonably suggest he intended any further physical engagement with the defendant. A push in the back, without more, does not support a reasonable belief that an unarmed person will escalate the encounter and commit a felony assault.

The defendant’s claim of self-defense depended entirely on testimony provided by Yoquin and Alavarez, his father and girlfriend. Both of these witnesses were biased in the defendant’s favor, were impeached by their prior statements, and gave inconsistent accounts about the confrontation between the victim and the defendant. The jury was free to dismiss their testimony as not credible and conclude that the State had proven that the defendant did not act in self-defense. Even if there was some doubt as to whether that the State produced sufficient evidence to disprove self-defense, it still was not plain error to deny the defendant’s motion to dismiss. The defendant has not cited any case in which this Court has held that a trial court should have granted a motion to dismiss under similar facts. The defendant’s challenge to the sufficiency of the evidence also depends on his argument that he was entitled to use deadly force against the victim because he was on the curtilage to his dwelling. However, the defendant concedes that it is unclear if RSA 627:4, II(d) applies when deadly force is used against a person who resides in the same place. It is also far from clear that the area in which the shooting occurred meets the statutory definition of curtilage because the weight of authority holds that a tenant does not have a reasonable expectation of privacy in the common areas of an apartment building.

Finally, the State should prevail on appeal even if the Court finds that the defendant’s challenge to the sufficiency of the evidence was properly preserved for appellate review. The evidence was sufficient to prove two counts of first-degree assault and to disprove self-defense. Accordingly, the defendant’s convictions should be affirmed.

“This court has consistently held that we will not consider issues raised on appeal that were not presented in the lower court. This rule, grounded in common sense and judicial economy gives the trial court an opportunity to consider alleged errors and to take remedial measures when necessary, including, in its discretion, allowing a party to reopen evidence.” State v. McAdams, 134 N.H. 445, 447 (1991) (internal citations and quotations omitted). “The defendant, as the appealing party, bears the burden of demonstrating that he specifically raised the arguments articulated in his appellate brief before the trial court.” State v. Batista- Silva, 171 N.H. 818, 822 (2019) (emphasis added). When deciding preservation issues, this Court considers “whether the failure to raise the argument to the trial court results in an insufficiently developed factual or legal record to guide [the Court’s] analysis.” Id. at 823. Moreover, a challenge to the sufficiency of the evidence requires this Court to review “the entire trial record because, even though the defendant is not required to present a case, if he chooses to do so, he takes the chance that evidence presented in his case may assist in proving the State’s case.” State v. Pittera, 139 N.H. 257, 260 (1994). Consequently, “[i]t is well settled that to preserve an argument that the evidence was insufficient to support a criminal conviction, the defendant generally must challenge the sufficiency of the evidence to support the conviction by appropriate motion at the close of the evidence.” State v. Bou-Nassif, 2023 N.H. LEXIS 227, *1-2 (Nov. 30, 2023) (unpublished opinion) (emphasis added) (citing McAdams, 134 N.H. at 446-47).

The defendant did not renew his motion to dismiss after putting on his own evidence; therefore, the defendant did not challenge the sufficiency of the evidence “at the close of the evidence.” Bou-Nassif, 2023 N.H. LEXIS 227 at *1-2. Thus, the trial court did not have the opportunity to determine if there was sufficient evidence to convict under all the evidence, including the defendant’s proof, or consider if it should allow the remedial measure of reopening the evidence.

Further, the defendant’s motion to dismiss did not raise the specific argument that he raises in his brief. The defendant argues before this Court that the State produced insufficient evidence that he was not privileged to act in self-defense pursuant to RSA 627:4, II(d), which permits a person to use deadly force if he reasonably believes another person is likely to use unlawful force in the commission of a felony in the person’s dwelling or its curtilage. However, the defendant’s motion to dismiss referenced only the victim’s alleged threats and physical assault on the defendant. T3 at 313-14. It did not reference curtilage or explain which felony or felonies the defendant reasonably believed the victim would commit through mere unlawful force. This is significant because the defendant acknowledges that “the law permitting the use of deadly force against another within the actor’s curtilage does not necessarily permit such force against another who also resides in the same place[, ]” but contends that “there was no evidence that [the defendant] knew that [the victim] still lived in the building.” Def. Br. at 17 n.4. This is another argument that was never raised before the trial court.

Thus, the argument raised in the defendant’s brief was not specifically raised before the trial court. This prevented the parties from arguing, and the trial court from considering, whether it was unreasonable for the defendant to believe the victim would commit a felony through the use of unlawful force after the push, whether the area in which the shooting occurred was “curtilage, ” or if there was evidence the defendant knew that the victim still resided at the apartment building on the day of the shooting. This has created “an insufficiently developed factual or legal record to guide [the Court’s] analysis, ” and the defendant’s argument cannot be considered preserved. Batista-Silva, 171 N.H. at 822. “To allow a direct appeal of a sufficiency claim without first providing the trial court the opportunity to rule on a motion to dismiss or other appropriate motion would place this court in a position of exercising its original jurisdiction.” McAdams, 134 N.H. at 447. Accordingly, this Court has declined to review the merits of unpreserved challenges to the sufficiency of the evidence or consider them under the plain error standard. Id. at 449; State v. Fennell, 128 N.H. 383, 384 (1986). The defendant’s convictions should be affirmed on this basis. But even if there was a way to avoid this Court’s holding in McAdams, the defendant’s challenge to the sufficiency of the evidence would still fail under the plain error rule. N.H.

For an appellate court 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. Mueller, 166 N.H. 65, 68 (2014). A “plain” error is synonymous with “clear” or “obvious.” State v. Lopez, 156 N.H. 416, 424 (2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “Generally, when the law is not clear at the time of trial, and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.” Id.

Even when all three criteria are met, correcting a plain error is discretionary. Id. Reversal is appropriate only if a fourth criteria is met: the error “must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. This rule is used sparingly, however, and is “limited to those circumstances in which a miscarriage of justice would otherwise result.” Id.

The defendant cannot meet the plain error standard. First, there was no error in denying the defendant’s motion to dismiss because the State produced sufficient evidence to prove the defendant did not act in self- defense. Second, even if there was an error, it was not one that was clear or obvious under existing law.

A person is guilty of first-degree assault if he “[p]urposely or knowingly causes bodily injury to another by means of a deadly weapon[.]” RSA 631:1, I(b). However, a person is justified in using deadly force “when he reasonably believes that such other person... [i]s 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). When evidence of self- defense is introduced at trial, the State has the burden of disproving that defense beyond a reasonable doubt. State v. Munroe, 173 N.H. 469, 478 (2020) (internal citations omitted).

“To prevail in his challenge to the sufficiency of the evidence negating self-defense, the defendant must establish that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found, beyond a reasonable doubt, that he did not act in self-defense.” State v. Pennock, 168 N.H. 294, 307 (2015). When reviewing the sufficiency of the evidence, each item of evidence is examined “in the context of all the evidence, not in isolation.” State v. Pennock, 168 N.H. 294, 307 (2015). A challenge to the sufficiency of the evidence raises a claim of legal error that is reviewed de novo. State v. Collins, 166 N.H. 514, 517 (2014). However, “evaluation of witness credibility, resolving conflicts in the testimony, and determining the weight to be given to the evidence are matters within the province of the jury.” State v. Alwardt, 164 N.H. 52, 57 (2012). “In determining witness credibility, the jury may accept some parts and reject other parts of testimony, and adopt one or the other of inconsistent statements by witnesses.” State v. Giles, 140 N.H. 714, 716 (1996) (quoting Morrill v. Tilney, 128 N.H. 773, 778 (1986)). The jury may disbelieve any part of a witness’s testimony “even if no evidence was introduced to rebut it.” White v. State, 171 N.H. 326, 330 (2018). The jury may also “draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom.” State v. Young, 159 N.H. 332, 338 (2009). “Facts may be proved by circumstantial evidence, and the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred.” State v. Newcomb, 140 N.H. 72, 81 (1995). When the evidence to any particular element is “solely circumstantial” then it must exclude all reasonable conclusions except guilt. State v. Vincelette, 172 N.H. 350, 354 (2019). “[T]he proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded.” Id. The defendant contends that the State failed to disprove that he used deadly force in self-defense because he reasonably believed that the victim was going to commit the felony of first or second-degree assault after pushing him in the back. Def. Br. 16. This argument presumes that the shooting occurred on curtilage, and that the defendant did not know that the victim still resided at the apartment building, and that this lack of knowledge is a defense to using deadly force against another person who has the same right to occupy the dwelling and its curtilage. None of these arguments were preserved and should not be considered by this Court. But even if the Court were to accept these assumptions only for the sake of argument, the defendant cannot show that there was insufficient evidence to support his convictions for first-degree assault. A finding that the victim intended to commit felony assault required proof that the defendant reasonably believed the victim would knowingly or recklessly inflict “serious bodily injury” or “bodily injury” under “circumstances manifesting extreme indifference to the value of human life.” RSA 631:1; RSA 631:2. But the evidence in the light most favorable to the State is that the defendant shot the victim in response to a push in the back. Such a conclusion is supported by M.R.’s testimony about what she saw when she looked out the window and Canales’s testimony that the defendant stated immediately after the shooting that “he almost pushed [me] down the stairs.” T1 62, 91-100 (emphasis added). Although there was evidence the defendant had a gash on his chest, T2 at 201-02, the jury was not required to conclude that it was caused by the push. Regardless, the gash was not inconsistent with the State’s evidence that the victim did nothing more than push the defendant a single time into a staircase railing because the State produced proof that the defendant did not have any marks, abrasions, or defensive wounds on his hands. T2 at 201-02. A push in the back, without more, does not support a reasonable belief that an unarmed person will escalate the encounter and commit an assault with extreme indifference to the value of human life or one that will inflict serious bodily injury.

Thus, the evidence in the light most favorable to the State is that the victim pushed the defendant in the back and the defendant responded by twice shooting the victim—despite the victim being unarmed and doing nothing to reasonably suggest that he intended any further physical engagement with the defendant. This was more than sufficient proof that the defendant could not have reasonably believed that the victim was likely to use unlawful force in the commission of a felony. Further, the defendant’s claim that he reasonably believed he was entitled to use deadly force depended on testimony from Yoquin, his father, and Alvarez, his girlfriend. The credibility of both of these witnesses was severely impeached. Yoquin and Alvarez each initially told the police that they did not witness the shooting. T2 at 269; T4 at 386. Although both later admitted to seeing the shooting, the details about the shooting they alleged at trial contradicted prior statements they gave to the police. T2 at 251-54; T4 at 399-401. For example, Yoquin testified that he yelled “no” to the victim as the victim was attacking the defendant, but he told the police that he uttered these words to the defendant after the defendant drew his gun. T2 at 251-54.

Meanwhile, Alvarez testified that the victim attacked both her and the defendant without provocation. T4 at 372-76. However, this characterization of the incident was impeached by previous statements in which she alleged that the victim did not assault her, answered in the affirmative when the police asked if the defendant confronted the victim, and described the events before the shooting as, “They just started fighting, and they were on the stairs the whole time.” T4 at 397-401. Yoquin and Alvarez also contradicted each other in their trial testimony. Yoquin testified that the victim never put his hands on Alvarez, T2 at 268, but Alvarez claimed the victim grabbed her and put his other hand on her throat. T4 at 376. Alvarez also testified that she slapped the victim, T4 at 376, but Yoquin did not testify to seeing such an event.

Under these circumstances, a rational jury could reasonably find that the evidence showed beyond a reasonable doubt that the defendant did not use deadly force in self-defense when his claim depended on biased and impeached witnesses giving inconsistent, and sometimes contradictory, testimony.

Nevertheless, the defendant argues that “the State had to prove that [the defendant] believed that [the victim] was unlikely to commit or attempt to commit any of the described variants of second-degree assault.” Def. Br. at 19. The defendant appears to be arguing that the State had to produce direct evidence that that the defendant’s state of mind was something other than a belief that he was acting in self-defense. That is not the law. See e.g., State v. Heger, 1977 N.H. LEXIS 489, *1 (December 16, 1977) (unpublished) (“Defendant’s contention, that the lack of direct evidence to rebut the defendant’s state of mind that he was acting in self- defense coupled with evidence that after the assault defendant did not flee but instead called the police and an ambulance prevents the required finding, cannot be accepted.”) Rather, when a self-defense claim depends on testimony that the jury can reject as not credible, then the State has disproved self-defense beyond a reasonable doubt. As other jurisdictions which define self-defense as a “justification” or “pure defense”3 have explicitly held, the prosecution’s burden of proving the defendant did not act in self-defense is a burden of persuasion, not a burden of production. State v. Ouellette, 37 A.3d 921, 925 (Me. 2012); Saxton v. State, 804 S.W.2d 910, 913 (Tx. 1991). “When asserting a self- defense justification, a defendant bears the burden of production to generate the issue with sufficient evidence, though the State bears the burden of persuasion to disprove the defense.” State v. Herzog, 44 A.3d 307, 309 (Me. 2012). “To meet its burden of persuasion, the State is not required to produce additional evidence. If the jury finds the defendant guilty, it has made an implicit finding against any defensive theory raised by the defendant.” Valverde v. State, 490 S.W.3d 526, 528 (Tx. App. 2016) (citation omitted).

The State met its burden of persuasion for disproving self-defense in this case because it severely impeached both Yoquin and Alvarez. Once the jury rejected the testimony supporting the defendant’s claim of self-defense as untrue, the defendant’s guilt was proved beyond a reasonable doubt. The trial court did not commit any error in denying the defendant’s motion to dismiss.

The defendant has not cited any case in which this Court has held that a trial court should have granted a motion to dismiss under remotely similar facts. This alone precludes a finding that any error in this case was “clear” or “obvious.” Lopez, 156 N.H. at 424. However, any error in this case is even less clear or obvious because even the defendant concedes that it is unclear if RSA 627:4, II(d) applies when deadly force is used against a person who resides in the same place. Def. Br. at 17 n.4.

Moreover, the defendant’s argument depends on his assertion that the shooting occurred on curtilage. Def. Br. at 12. But it is debatable if the area where the shooting occurred, the stairs leading to the front door of the apartment building, constituted curtilage. The self-defense statute defines “curtilage” as “those outbuildings which are proximately, directly and intimately connected with a dwelling, together with all the land or grounds surrounding the dwelling such as are necessary, convenient, and habitually used for domestic purposes.” RSA 627:9, I. However, RSA 627:4, II(d) permits deadly force when another person is likely to use unlawful force in the commission of a felony “within such actor’s dwelling or its curtilage.” The actor’s dwelling in an apartment building is his unit, which generally has more limited curtilage then other types of dwellings. “The concept of curtilage is applied narrowly to multiunit apartment buildings. Curtilage in an apartment building is very limited[.] Commonwealth v. Escalera, 970 N.E.2d 319, 329 (Mass 2012) (citation omitted). Thus, a tenant’s dwelling “cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control.” Id.

Thus, the common areas in a multi-unit apartment building are generally not considered curtilage. See, e.g., U.S. v. Trice, 966 F.3d 506, 515 (6th Cir. 2020) (holding that an unlocked hallway in an apartment building was not curtilage “consistent with our previous cases holding that readily visible common areas do not constitute curtilage of an apartment.”); State v. Milton, 821 N.W.2d 789, 800-01 (Minn. 2012) (holding that the external landing and adjacent steps leadings to the upper-level residential unit of a duplex were not curtilage). The applicable statutes involved in this case are capable of this interpretation, and if so interpreted, the shooting would not have occurred on curtilage within the meaning of RSA 627:4, II(d) and RSA 627:9, I. Accordingly, any error in denying the defendant’s motion to dismiss was not “clear” or “obvious” under existing law, and the Court should not grant him relief for his unpreserved challenge to the sufficiency of the evidence.

The State should prevail even if the Court finds that the defendant’s argument was properly preserved for appellate review. As explained in Section II(a)-(b) above, the evidence in this case was sufficient to prove two counts of first-degree assault and to disprove self-defense. Further, the Court should reject the defendant’s argument that a common area in an apartment building is curtilage under RSA 627:9, I. That argument was not raised below. Regardless, that statutory interpretation is debatable and not consistent with how the term curtilage is used in the Fourth Amendment context.

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

The State requests fifteen minutes of oral argument.

I, Robert L. Baldridge, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 6, 100 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.

May 21, 2024 /s/ Robert L. Baldridge Robert L. Baldridge

I, Robert L. Baldridge, hereby certify that a copy of the State’s brief shall be served on, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

May 21, 2024 /s/ Robert L. Baldridge Robert L. Baldridge