State of New Hampshire v. Gabriel Price

1. Whether the court erred by barring the defense from eliciting L.P.’s testimony about his understanding and behavior in relation to guns.

Issue preserved by the State’s objection, the hearing on the matter, and the court’s ruling. T 372-75. * 2. Whether the State introduced sufficient evidence to convict Price of reckless conduct.

Issue raised as plain error. See Sup. Ct. R. 16-A. 3. Whether the court adequately instructed the jury on the requirement of unanimity with respect to the simple- assault charge alleging kicking.

Issue preserved by defense request, the discussions of the matter, and the trial court’s ruling. T 330-31, 346-52, 576-77; A14-A20.

4. Whether the court erred in its jury instructions on self-defense.

Issue preserved by defense request, the hearing on the matter, and the court’s ruling. T 597-601.

The State charged Gabriel Price with committing six crimes on February 8, 2022, during an incident following a minor automobile accident on Route 16 involving Price and Carl Holton. The State charged Price with felony second- degree assault, alleging that he recklessly caused bodily injury to Holton by striking him with a baton, a deadly weapon. T 10; A9. In addition, the State charged five misdemeanors. A4-A8; A10-A13. Three alleged simple assaults by unprivileged physical contact, for punching, kicking, and dragging Holton. T 11; A10-A12. One complaint alleged criminal mischief for shattering a side window of Holton’s truck. T 10-11; A5. The final complaint alleged reckless conduct, accusing Price of recklessly placing his ten- year-old son, L.P., in danger of serious bodily injury by leaving him unsupervised in a car containing “an unsecured, loaded firearm” when Price left to confront Holton after the accident. T 10; A13.

Price stood trial over four days in January 2024. A jury acquitted him of the simple-assault charge alleging punching but returned guilty verdicts on the other five charges. T 609- 11. In May 2024, the trial court (Edwards, J.) sentenced Price for second-degree assault to a stand-committed term of two to four years, followed by three years of probation. S 62; A45- A47. For the four misdemeanors, the court pronounced identical twelve-month terms, suspended for five years, concurrent with each other but consecutive to the prison sentence. S 63-65; A36-A38; A42-A44; A51-A53. For the misdemeanor convictions, the court also put Price on probation for three years. Id.

Around 2:45 p.m. on February 8, 2022, after picking up his ten-year-old son L.P. at school in Portsmouth, Gabriel Price was driving home to Rochester. T 43, 367, 377, 388-89. Price recently bought an orange Toyota truck and was excited to drive it with L.P. T 389, 447. While driving, Price listened on his phone to a presentation about a software product relevant to his job. T 389-90, 441-42. Meanwhile, fifty-five- year-old Carl Holton, a deliveryman for Sullivan Tire, was driving a white box truck from Portsmouth to Dover to make the day’s last delivery. T 41-43, 89, 478. Holton and Price did not know each other. T 409.

Traffic was busy but moving as Price and Holton, in their respective vehicles, passed through the Spaulding Turnpike tollbooth in Dover. T 43-44, 129. At that location, there are four tollbooth lanes: three on the left for EZ Pass and, to their right, one for cash. The road leading away from the tolls immediately narrows into two lanes, a design requiring vehicles passing through the tolls to merge promptly. T 44, 129-30, 209.

Price and Holton passed almost simultaneously through the two left-most EZ-Pass booths, with Holton initially slightly ahead of Price in a lane to Price’s right. T 45, 305. A large dump truck that just passed through the tolls occupied the right travel lane, while a black truck was ahead in the left lane, putting Price and Holton in the position of negotiating a merge into the left lane behind the black truck. T 45, 96-99. The parties at trial disputed the details of Price and Holton’s failed attempt to merge.

Holton testified that Price sped up to try to get ahead of him and behind the black truck. T 46, 99-100. Holton braked and honked. T 46-47, 100, 103-05. Price backed off but then accelerated again and their side mirrors collided as Price “swerved” into Holton while passing him. T 46-48, 100, 108. Price, by contrast, testified that, after leaving the tolls, he found himself next to Holton. T 390. He looked over and saw Holton “being exaggerated and animated, smiling, waving his arms around.” T 390, 443. L.P. testified that Holton looked at them just before the collision and was “smiling” and looking “tired, ” as if he hadn’t slept in a while. T 368-69, 379. Holton’s behavior, and the fact that Price was running out of room to merge, made Price nervous. T 391. Price tried to escape the situation by moving in front of Holton, but Holton kept pace seemingly to continue the “visual dialog.” T 291, 440-41, 445. When Holton saw Price pulling ahead, he “sharply jerked his wheel to the left into [Price’s] mirror.” T 392, 445. Price perceived Holton to have deliberately collided with him. T 392, 446. L.P. similarly testified that Holton steered into Price’s car. T 369, 380. 1 A Tesla behind them automatically recorded video footage that the Tesla driver later provided to the police and that the State introduced at trial.2 T 130, 134-41. The Tesla driver testified that Price “was driving really aggressively” in such a way as to make it “needlessly difficult” for Holton to merge. T 129-32, 143. She thought that Holton’s truck might have bumped Price’s just before Price stopped. T 131, 144, 152-53. As she passed the scene, she saw Price move quickly to Holton’s truck, pull open the door, and “raise his arm and start bringing it down.” T 133. She called 911. T 133-34. Price stopped abruptly after the collision, causing Holton to brake hard to avoid a second impact, and the two cars stopped, partly in the left lane and partly in the median. T 49-50, 393, 450-53, 458. Price got out of his car carrying a foldable baton, referred to in testimony as an “ASP.” T 395, 458-59. The parties disputed the details of the subsequent interaction.

Price quickly walked to Holton’s driver’s window, which he smashed with the baton. T 50-51. According to Holton, Price said: “I have an effing kid in the car.” T 51. After smashing the window, Price “kept swinging” the baton at Holton. T 52. To escape, Holton crawled toward the passenger’s side of his cab. T 52-53. Price then opened the driver’s door and partially entered Holton’s truck, while continuing to “beat” Holton. T 52-54. Holton opened his passenger door and fell out onto the road. T 55-56. Holton then moved behind the truck where Price met him and continued the assault while Holton lay on the ground. T 56-57. Holton testified that, at one point, as a woman arrived on the scene telling Price to stop, Price dragged him to the snowbank in the median when he kicked and struck him, while telling him to get up. T 57-61. Holton testified that, at that point, either because of the beating or his fall from his truck, he was unable to get up or walk, a fact he told Price. T 57-59. Holton tried to protect himself by kicking Price. T 58-59, 117-20. As the men separated following the arrival of others on the scene, Holton told Price that he was going to jail. T 59, 62-63. Holton denied threatening Price in any other way. T1 59-60.

Price described the events differently. He testified that Holton was getting out of his car as Price exited his. T 393, 459. Because of Holton’s demeanor and actions, Price perceived the situation to be potentially dangerous. T 393-94. Although he had a gun in a holster strapped to the driver’s seat, Price left it in the car and took his baton. T 394-95, 462- 63. As Price approached, Holton got back in his cab and positioned himself to “kick the door” at Price. T 395, 459-61. Prepared for that attack, Price “sort of stuffed the door” as Holton kicked at it. T 395. 3 Price then smashed the window to disrupt any other aggressive maneuver Holton might launch, opened the driver’s door, and told Holton to get out. T 395-96, 464-67.

Price testified that Holton immediately began kicking at him. T 396, 466. Each time Holton kicked, Price struck Holton’s leg with the baton. T 396, 468-69. Price insisted that he did not act with “malice” in using the baton, seeking only to exert control over Holton. T 409, 487. After about three such blows, Holton backed away toward the passenger side. T 396, 468-69. Price asked if Holton was “good, ” as a way of inquiring whether Holton would agree to resolve the matter peacefully from that point. T 397, 469. Holton said nothing but opened the passenger door behind him and fell out of the cab. T 397, 469-73.

Price put away his baton and walked around the truck to find Holton. T 398, 472. There, Holton performed “a very exaggerated sort of fall … almost like he wanted people to see him fall down.” T 398, 472. Price went to check on L.P. and then returned to Holton. T 398-99, 473-74. Price intended only to stand by Holton to make sure he didn’t leave and did not punch or drag Holton. T 399-400, 475. Holton kicked Price, prompting Price to “trap[] his legs and pull[] him for a second.” T 400. Price acknowledged that he kicked Holton, but only in response to Holton’s “repeated kicks” to Price’s lower body. T 401, 474-76. By this time, other motorists arrived on the scene. T 400, 475-76.

Perceiving that Holton was exaggerating his injuries for the benefit of the bystanders, Price kept telling Holton to get up. T 402, 474, 478-79. Judging by Holton’s behavior in the encounter, Price concluded that Holton was high on methamphetamine or some other drug. T 409, 469-71, 484- 85. 4 The State elicited testimony from motorists who observed the incident and stopped to intervene. Sarah Dannar testified that she saw a man lying on the ground, “kind of rolling around.” T 156. She pulled over and then saw a man kick the man on the ground four or five times. T 158- 60. As she approached, the assault stopped. T 158, 160. Matthew Trepannier saw “two people standing behind the box truck, wrestling, tussling, grabbing each other’s jackets.” T 171. As he watched, Price threw Holton to the ground and began kicking him. T 172-73. Trepannier called 911. T 173. He testified that Price called Holton a “druggie, ” saying that he could tell by Holton’s teeth. T 174-75. Colin Sexton saw the altercation. T 229-30. He testified that one man stood over and kicked a man who lay on the ground. T 230-35. The man on the ground shouted at the other man to stop, while delivering what Sexton described as upward, defensive kicks. T 232-33, 235. As he approached, Sexton shouted in what he called his “big boy voice” for the altercation to stop, and it immediately did. T 235-37. Sexton heard Price say something to the effect of: “how would you feel if somebody almost killed your kid?” T 237.

Sean Arkwell testified that he saw one man take another out of the driver’s side of a box truck and then punch and kick the man. T 248-52, 255-56, 261-63. Arkwell got out of his truck and approached, yelling at the men to stop. T 249. He heard the man on the ground “squealing” in pain and saying things like, “stop.” T 249-50. He heard the standing man shout threats and profanity and call the man on the ground a “crackhead.” T 250-51. As Arkwell approached, the altercation stopped. T 252. Arkwell testified that the standing man said that he had been cut off coming out of the tolls. T 260. The man also said that he had a gun in his back pocket. T 252-53. Arkwell, however, saw no gun or other weapon. T 258.

On cross examination when confronted with video evidence, Holton ultimately admitted that he started to open his door to get out as Price approached. T 108-11, 117, 124, 148-49, 151. He denied, though, that he fully got out of the truck before Price arrived at his door. T 109.

Price stayed on the scene for some time after walking away from Holton. T 62, 160-61, 174, 238. Price, an African- American, testified that he heard Holton utter a racial slur as Price got back into his car to leave. T 402. Price almost returned to Holton but followed the advice to leave given by a bystander Price recognized from a gym. 5 T 402-03. Perceiving that the “optics of the situation were very bad for” him and sensing hostility from Arkwell, Price drove away before the police arrived. T 161-62, 238-39, 253-54, 259, 403-04, 480- 81.

Holton testified that one bystander told him that Price had a gun in his waistband. T 63. Holton, however, never saw a gun. T 63. He did, though, tell a responding police officer that someone said Price had a gun. T 64.

A police officer driving towards the toll plaza in response to 911 calls saw Price heading in the other direction on Route 16, away from the tolls, and alerted other officers to Price’s whereabouts. T 213-14. Price took the next exit off the highway, pulled into a gas station, and called 911. T 183-84, 309, 404-05. During that call, Price told the dispatcher that he “lost his mind” and “beat the shit out of someone.” T 298- 99, 535. Police arrived at the scene and arrested Price at gunpoint, having been told he might be armed. T 184, 405- 06. Price cooperated with the arrest. T 197-98, 406-08. An officer found the baton in Price’s pocket. T 185-86, 482. In seeming disbelief, Price said, “he told you that?” in response to learning that Holton claimed that Price had a gun. T 188-89, 407. Price also said that the other driver, who he described as a “junkie, ” had hit his car on purpose. T 188, 206. Price told the police that his son was in the car, and that there was a gun in the center console. T 189. The police found the gun in the place Price indicated. T 189-90. The police also later found a holster strapped to the driver’s seat. T 274-77. L.P. was seated in the rear on the driver’s side. T 190.

The police questioned Price at a nearby police station. T 294. Price said that, during the incident, the gun was in the holster strapped to the front of the driver’s seat. T 294-95, 394. The gun contained a magazine but had no round in the chamber. T 295. After stopping at the gas station and before the police arrived, Price put the gun in the center console, where the police later found it. T 296. The police told him that he would be charged with a crime for endangering his son by leaving him in the car with the gun. T 296-97. At Price’s request, the police took photos, subsequently introduced at trial, showing the presence of boot marks on Price’s clothing. T 311-13, 401-02.

Holton testified that Price injured him. T 63. He said that his arm was “throbbing, ” his left knee “hurt a little bit, ” and his right lower back and him was “really killing” him. T 63. He could walk only with assistance. T 63-64. An ambulance took Holton to a hospital. T 64, 220. He had a “lot of bruising [and] a lot of soreness.” T 64. He did not, though, suffer any broken bones. T 65, 88. Holton testified that he was “laid up for a week” afterwards and did not return to work for “over three months.” T 65. He added that he continued to suffer “problems” with his lower back attributable to the incident. T 64-65, 85-86.

Relevant to the reckless-conduct charge, Price testified that L.P. knew not to touch his gun. T 408. The State elicited evidence of a statement Price made to the police in which Price acknowledged the possibility that L.P., seeing him fighting, could have picked up the gun to help. T 457-58. Price noted, though, that there was no round in the gun’s chamber. T 457.

The defense attacked Holton’s credibility. The defense argued that he exaggerated his injuries. T 516, 518-19. The defense suggested that Holton had room to move to his right when he and Price were driving side-by-side just before their mirrors collided. T 101-02. The defense questioned Holton about complaints Sullivan Tire received about his driving. T 90-91, 93-96, 493-504. Counsel also questioned Holton about his use of alcohol and drugs, eliciting Holton’s denial that he used substances that day. T 122-24. At one point, during that questioning, he said: “I’ll take the Fifth, sir.” T 123.

1. The court erred in barring defense counsel from questioning L.P. about relevant matters relating to his awareness of gun safety. No discovery rule obliges a lawyer to know, in advance of trial, every answer that will be given by a witness the lawyer calls to testify.

2. The State introduced insufficient evidence to prove that Price acted with criminal recklessness in leaving L.P. alone in the car with the gun, under the circumstances here. The State thus failed to prove an essential element of the reckless conduct charge.

3. The jury instructions failed adequately to communicate that, to convict for the simple assault charge alleging kicking, the jury had to agree unanimously on a particular kick. Here, the general unanimity instruction left open a genuine possibility of juror confusion.

4. The court erred in giving an instruction on self- defense that effectively directed the jury to find that Price’s use of the baton constituted deadly force. The determination of the degree of force properly belonged to the jury.

After questioning L.P. on direct examination about his observations of the collision and the subsequent interaction between Price and Holton, defense counsel turned to the subject of the gun in the car. T 372. Counsel opened the topic by asking L.P. whether he knew his father carried a gun. L.P. replied, “yeah, ” and the prosecutor then objected. Id. At the bench, the prosecutor noted that the statement of L.P. provided by the defense in discovery contained no information about L.P.’s knowledge of guns generally or his father’s gun specifically. T 372. Defense counsel responded:

Defense counsel asserted the relevance of the line of questioning to the reckless conduct charge based on Price’s act of leaving L.P. alone in a car in which there was a gun. T 373. Counsel noted that the State introduced Price’s statement acknowledging the possibility that L.P. could have taken hold of the gun in the car. See T 297 (testimony of police officer quoting Price’s statement). 6 The question of what L.P. was likely to do when left alone with a gun in the car, therefore, was crucial to that charge. Counsel explained that he proposed to ask: “has your … dad ever talked to you about his gun and whether or not you're allowed to touch it?” T 373. The prosecutor did not deny the relevance of the inquiry. Rather, given its relevance, she protested the failure of counsel to learn, before trial, what L.P. would say on this subject and to disclose that information to the State. The prosecutor concluded: “So if the Defense is going to bring a witness in to speak about that specific issue, he needs to disclose that information to me ahead of time, and he hasn't done that.” T 373.

Defense counsel explained that the defense had been denied access to L.P. “for the last year and a half by his mother, and she didn’t give us access to him until I put him under subpoena.” T 373-74. As soon as counsel had permission to speak with L.P, an investigator interviewed him and the defense promptly provided the investigator’s report to the prosecutor. T 374. That interview happened about a week before the trial. See T 374-75 (investigator’s report dated January 7, just before jury selection).

The prosecutor responded that a second interview could have taken place after January 7: “[b]ut that doesn't mean within the last week he couldn't have gotten this information either. Right before now is inappropriate and way too late in the stage, and he doesn't even know what he's going to say.” T 374. Defense counsel acknowledged that, because the investigator did not ask about any lessons L.P. had been taught about guns or gun safety, the investigator’s report contained no information on that subject. T 375.

The State thus took the view that a party could not call a witness to elicit relevant evidence unless it had first given the opponent notice of what the witness would say. That principle, in the State’s view, applied even if the proponent of the testimony did not know what the witness would answer. In other words, the State asserted a duty to learn, and disclose in discovery, the content of the witness’s testimony. The court agreed with the prosecutor. Noting that no follow-up interview took place and saying that “the State does have a right to due process in all of this and [to] have the information, ” the court sustained the prosecutor’s objection. T 375. In so ruling, the court erred.

On appeal, this Court reviews rulings on the admission of evidence for an unsustainable exercise of discretion. State v. Munroe, 173 N.H. 469, 472 (2020). Under that standard, this Court assesses whether the ruling is clearly untenable or unreasonable to the prejudice of the appellant’s case. Id. This Court does not, though, defer to the trial court’s interpretation of court rules. Id. (“we review the trial court’s interpretation of court rules de novo”). Insofar as the issue arose out of an interpretation of the rules governing discovery, similar principles of appellate review apply. That is, this Court will defer to a trial court’s reasonable judgments about the handling of discovery disputes but will not defer to questions of law associated with the interpretation of court rules.

Criminal Procedure Rule 12(b)(4) defines the pre-trial disclosure obligations in Superior Court of the parties regarding information about trial witnesses. Rule 12(b)(4)(C) provides that, no later than ten days before the final pretrial conference, the defendant shall provide, along with a witness list, “all statements of witnesses the defendant anticipates calling at the trial….” N.H. Crim. Pro. R. 12(b)(4)(C). The rule proceeds to define the word “statement.” As relevant here, a “statement” includes “the substance of an oral statement made by the witness and memorialized or summarized within any notes….” N.H. Crim. Pro. R. 12(b)(4)(D)(iii). As described above, defense counsel complied with the rule by providing the investigator’s report promptly after obtaining it. The rules nowhere impose a duty to learn in advance the witness’s answer to every question counsel will ask. “A contested trial is not a set piece. Unlike a play it is not scripted in advance.” S.E.C. v. Fox, 855 F.2d 247, 253 (5th Cir. 1988). A lawyer can ask a witness questions calling for relevant and admissible answers without knowing in advance what the witness will say. In applying a non-existent rule, the trial court erred as a matter of law.

That error prejudiced the defense on the reckless conduct charge. The charge required the jury to decide whether Price’s act of leaving L.P. alone in the car with a gun, in the circumstances here, was criminally reckless. T 584. To prove recklessness, the State had to prove Price’s awareness of a substantial and unjustifiable risk that L.P. would take hold of the gun and handle it in a dangerous way. Moreover, the State had to prove that the act of leaving L.P. alone in the car with the gun in fact posed a substantial and unjustifiable risk of danger.

L.P.’s testimony about what Price taught him and what L.P. otherwise knew about guns and their dangers plainly would provide important information on those questions. Indeed, when later questioning a juror who expressed views about the risk of leaving L.P. alone in the car with the gun, the trial court observed that “the challenge is that we don’t have testimony with respect to how much experience [L.P.], if he has any experience, has with a weapon.” T 564. The jury lacked such testimony only because the trial court erroneously barred the defense from eliciting it. This Court must reverse the reckless conduct conviction.

According to the jury instructions, to convict Price of reckless conduct, the State had to prove three elements. Thus, the court told the jury that the State had to prove that:

Consistent with New Hampshire law, the court defined recklessness as requiring proof first that Price was aware of a substantial and unjustifiable risk, and second, that he consciously disregarded that risk. T 584. Furthermore, his disregard of that risk must be “a gross deviation from what a law-abiding person would have done.” Id. The court explained that a “gross deviation” required more than that Price’s actions were unreasonable or thoughtless. Rather, the State had to prove that “his disregard of the risk was a substantial deviation from the actions of a law-abiding person under the same circumstances.” T 584-85.

Because the claim was not raised in the trial court, counsel raises it as plain error. Under the plain error rule, this Court may consider issues that were not brought to the trial court’s attention. Sup. Ct. R. 16-A; State v. Guay, 162 N.H. 375, 380 (2011). “To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Guay, 162 N.H. at 380.

Guay offers a useful example of the application of the plain error standard to a claim of insufficient evidence. In Guay, the defendant appealed, as plain error, the trial court’s failure to dismiss a charge of aggravated felonious sexual assault after the victim, who was ten years old at the time, testified only that the defendant touched her vagina. Id. at 380-81. This Court found the victim’s testimony legally insufficient to prove the element of penetration. Id. at 381-84. This Court additionally concluded that the error was plain and required reversal because “the State could not have met its burden of proof and the charge should not have been submitted to the jury.” Id. at 384; see also State v. Heredia, 176 N.H. 640, 647-50 (2024) (finding plain error where State introduced insufficient evidence to prove essential element of charged offense); State v. Racette, 175 N.H. 132, 139-41 (2022) (same); State v. Houghton, 168 N.H. 269, 273-74 (2015) (same).

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). 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.” State v. Folley, 172 N.H. 760, 766 (2020). 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); T 17-20 (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).

There is no evidence that Price acted with criminal recklessness in leaving L.P. alone in the car with the gun, under the circumstances here. Several considerations combine to support that conclusion.

First, no evidence showed L.P. to have any tendency to behave unsafely with guns. For all the record reflects, L.P. knew not to touch Price’s gun under any circumstances. Price testified to that effect. T 408. As described above, the trial court prevented defense counsel from eliciting L.P.’s testimony on that point. T 372-75. The prosecutor asked L.P. nothing about it. The State’s case therefore rested on the inference that no ten-year-old can safely be left alone in a car with a gun. Yet the State introduced no statistical or other evidence to prove that children of that age are categorically so dangerous with guns as to make criminally reckless the act of leaving such a child even briefly in the presence of a gun. Second, the evidence established that there was no round in the chamber when the gun was in the car with L.P. That fact further reduced the hypothetical risk of danger, by adding an additional step before the gun could fire. Third, various other circumstances reduced the risk of harm to L.P. For example, the gun was holstered beneath the driver’s seat of the car, while L.P. was seated in the back. In that position, the gun was not pointed at L.P. Also, Price left L.P. alone in the car only for a matter of minutes. Price testified that, on one occasion during his encounter with Holton, he went back to the car to check on L.P. T 398. The State’s view implies that any New Hampshire driver who, for even a few minutes, left a ten-year-old alone in a car containing a gun has committed criminally reckless behavior. 8 Mindful of that implication, the State sought to distinguish this case by the fact that L.P.’s father was in a fight, a circumstance that might prompt L.P. to take hold of the gun in support of Price. T 456. No evidence, however, suggested that L.P. was disposed to react in that way. Indeed, L.P. did not even get out of the car during the incident, much less take hold of the gun.

Given those circumstances, the prosecutor placed great weight on Price’s statement to the police. Price said:

Price acknowledged a theoretical possibility that L.P. could come to harm under the circumstances. A theoretical possibility, however, cannot support a finding beyond a reasonable doubt of criminal recklessness. As noted above, the recklessness element required proof that Price was aware of a substantial and unjustifiable risk, and second, that he consciously disregarded that risk. T 584. Furthermore, his disregard of that risk had to be “a gross deviation from what a law-abiding person would have done.” Id. A “gross deviation” required more than that Price’s actions were unreasonable or thoughtless. The State had to prove that “his disregard of the risk was a substantial deviation from the actions of a law- abiding person under the same circumstances.” T 584-85. Nothing about the facts here, even with all factual disputes resolved in the light most favorable to the State, established beyond a reasonable doubt that Price’s act was more than unreasonable or thoughtless. It bears emphasis that the State cannot prevail by establishing the Price’s behavior in total – including the blows he struck on Holton – was a gross deviation from the actions of a law-abiding person. Rather, the State needed to prove that Price’s actions in relation to L.P. and the gun constituted a gross deviation from what a law-abiding person would do. Here, the evidence established an insufficiently substantial risk that L.P. would seize hold of the gun and cause harm to himself. This Court must reverse Price’s reckless conduct conviction.

The jury instructions failed adequately to communicate that, to convict for the simple-assault charge alleging kicking, the jury had to agree unanimously on a particular kick. In State v. Greene, 137 N.H. 126, 128 (1993), this Court observed that the “New Hampshire Criminal Code requires jury unanimity with respect to the presence of the elements of offenses in criminal cases as charged.” In addition, “[u]nanimity is guaranteed as a matter of constitutional law, ” because “the legislature may not provide for juries of a less number than twelve, nor to provide that a number of the petit jury, less than the whole number, can render a verdict.” Id. “The purpose of the trial court’s charge to the jury is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case.” State v. Warren, 147 N.H. 567, 568 (2002) (citation omitted). As a general matter, on appeal, this Court reviews the jury instructions as a whole and reviews rulings on the content of jury instructions deferentially, mindful that a court can express a given principle in various ways. State v. Etienne, 163 N.H. 57, 70 (2011). However, in a recent case, this Court held that “when there is some evidence to support a pure defense, a trial court’s failure to give a jury instruction on that defense is akin to failing to instruct on an element of the offense, and such error is not owed deference….” State v. Brooks, 2025 N.H. 12, ¶12. Also, this Court reviews questions of statutory interpretation de novo. State v. Doyle, 2024 N.H. 25, ¶9. This case poses a question of law subject to de novo review: was the trial court required to give a specific unanimity instruction?

The law requires unanimity as to the “elements.” Jurors need not agree unanimously about the means the defendant used to commit the crime’s essential culpable act. However, Jurors must be unanimous … about what constitutes the essential culpable act committed by the defendant and prohibited by the statute. Where discrete factual predicates can provide alternative bases for finding an element of the offense to have been established, a defendant is entitled to jury unanimity as to the factual predicate supporting a finding of guilt.

Greene, 137 N.H. at 129.

Like this case, Greene involved an unprivileged- physical-contact assault. The contact constituted the crime’s essential culpable act. The court noted, accordingly, that a “conviction would have been proper if the jury had all agreed, for instance, that the defendant struck the officer in the face, but disagreed as to whether the blow occurred from a fist or knee.” Id.

In State v. Doucette, 146 N.H. 583, 593 (2001), this Court elaborated. Because the State charged Greene with unprivileged physical contact, she “could potentially have been convicted of three separate assaults.” Id. Thus, She could have been convicted of knowingly causing unprivileged physical contact by punching the victim in the face… by punching the victim in the torso with her fist… [and] by kicking the victim about the body.

Because any one of these contacts could have provided the basis for finding the element of unprivileged physical contact, in order to convict the defendant, the jury had to be unanimous as to which unprivileged physical contact occurred.

Id.

Here, the simple-assault complaint alleging kicking initially charged that Price knowingly “caused unprivileged physical contact to Carl Holton by kicking [him] in the chest while he was on the ground.” A7. That complaint identified a particular point in time and a particular place on Holton’s body that Price kicked. Later, however, the State amended the complaint to remove those specifics. The amended complaint alleged broadly that Price knowingly “cause[d] unprivileged physical contact to Carl Holton by kicking him.” A11. The defense argued that the complaint was defective for encompassing multiple kicks without requiring the jury to agree unanimously on any particular kick. T 330-31. Alternatively, the defense also requested an instruction requiring the jury to agree unanimously on a particular act of unprivileged contact. T 349, 351; A20. The State responded by highlighting the fact that, in Greene, during deliberations, the jury asked a question about the target of unanimity and was told that they need not be unanimous as to the particular blow. A14-A15.

The court addressed the unanimity question as follows:

Counsel responded that, when charging unprivileged physical contact, the State must “show the factual predicate of that of where and what the contact was.” T 349. Counsel quoted Greene and requested an instruction specifically requiring unanimity on the “essential culpable act.” T 349-52.

The court responded that “if the jury comes back with questions, that may be another opportunity for having a discussion as to how we respond to those questions.” T 351. Later, during discussions of the verdict form, the defense made the same point. T 576-77. In declining to give the requested instruction, the court erred.

In a series of cases, this Court has grappled with the question of when a court must give an instruction specifically explaining that point, and when it can rely on the general instruction on unanimity. See, e.g., State v. Higgins, 149 N.H. 290, 299-302 (2003); State v. Smith, 144 N.H. 1, 7-9 (1999); State v. Gonzalez, 143 N.H. 693, 703-04 (1999). In Greene, the Court held that “[o]rdinarily, a general instruction to the jury on the requirement of a unanimous verdict is sufficient.” Greene, 137 N.H. at 130. However, the Court also acknowledged that [t]here may be cases in which the nature of the evidence, questions from the jury, some variance between the proof and the indictment, or ambiguous supplementary instructions from the court, may require the court to frame an instruction that substantial agreement is required on a specific set of facts.

Id. at 130-31.

In Greene, a question asked by the jury during deliberations triggered the obligation. Id. at 131. More generally, this Court has held that the “trial court must provide a specific unanimity instruction where a genuine possibility of juror confusion exists.” Smith, 144 N.H. at 8. In analyzing the question, this Court will “consider, in the context of the charging document, the whole trial, and the entire jury instruction, whether a conscientious juror would have understood the prerequisite of agreement on the essential facts.” Id.

Appellate challenges to a failure to give a specific unanimity instruction thus pose two questions. First, was the fact highlighted in the proposed instruction the essential culpable act (unanimity required), or merely the means of committing a crime (unanimity not required)? Second, if the highlighted fact must be found unanimously, was the general unanimity instruction sufficient, or did the case require a more specific supplemental unanimity instruction? As to the first question, the trial court seemed to agree that the jury could convict Price only upon agreeing unanimously on a particular kick. Had the court disagreed, it would not have contemplated giving such an instruction if the jury asked a question during deliberations. The law supports the conclusion that the jury had to agree unanimously on a particular kick.

The essential culpable act of the crime of unprivileged physical contact is the contact. Just as one who strikes two punches commits a separate simple assault with each punch, so also does one who kicks twice commit a separate simple assault with each kick. When the legislature intends the actus reus of a crime to be a course of conduct rather than discrete incidents, it plainly so indicates. See, e.g., RSA 632- A:2, III (defining crime of pattern of sexual assault); State v. Fortier, 146 N.H. 784 (2001) (interpreting pattern AFSA as not requiring unanimity as to underlying acts constituting the pattern). Here, just as in Greene, because each blow could have supported a separate conviction for unprivileged- physical-contact simple assault, the jury had to agree unanimously on a particular kick to return a valid guilty verdict.

The question remains only whether the general unanimity instruction 9 sufficed to communicate that point.

Several considerations combine to establish that it did not, and “a genuine possibility of juror confusion exist[ed].” Smith, 144 N.H. at 8.

First, there was evidence that Price kicked Holton multiple times. Holton, Price, and other witnesses testified to multiple kicks. T 57-58, 158, 166, 173, 177, 219, 232-35, 248-52, 257, 372, 384, 401-02, 476-77. Moreover, the complaint as amended withdrew the more specific factual allegation contained in the original complaint. Thus, any one of the kicks described in testimony could have supported a conviction for simple assault.

Second, neither in opening statement nor closing argument did the prosecutor focus the jury’s attention on one particular kick. Rather, the prosecutor noted that the evidence would show multiple kicks. T 28-29 (“he continues to kick, punch, and stomp him….”; Holton “will tell you there was a lot of” blows); T 534 (referring to “kicks” and “stomping and kicking”). In closing, acknowledging inconsistencies among the various witnesses, the prosecutor noted that they may not have agreed on exactly the events as indicated by timing or amount of kicks or things like that, but they agreed on the important things, and that was that they saw the Defendant kicking, punching, and stomping Mr. Holton.

T 537.

In Smith, the State charged resisting arrest via a complaint specifying that Smith interfered with the arresting officer “by running away when ordered to stop” by that officer. Smith, 144 N.H. at 2-3. On appeal, Smith argued that a specific unanimity instruction was required because the evidence showed multiple acts that could be construed as resisting arrest, including “hanging up the phone when the officer called and told him he was under arrest, ” leaving “through the cellar door, ” “pushing the officer, or … retreating into the cellar, ” among others. Id. at 7-8. This Court rejected Smith’s claim, finding that no specific instruction was required. Id. at 8-9.

In so holding, the Court noted first the specificity of the complaint, which “alleged and identified a single offense.” Id. at 8. Moreover, in both opening and closing, the prosecutor relied on the single incident of retreating into the cellar, and the evidence established that incident. Ultimately, the Court concluded that this was “not a case where the jury was faced with evidence of two or more separate criminal acts matching the factual description given a single offense in a charging document.” Id. at 9.

Furthermore, the unit of prosecution for the crime of resisting arrest is broader than the unit of prosecution for assault. Each kick constitutes a separate assault, but the acts Smith committed might have all constituted a single instance of resisting arrest. See State v. Rogers, 2024 N.H. 57, ¶19 (Smith “cautions that physical interference consisting of one continuous course of conduct over a short period constitutes a single offense”).

None of those characteristics apply here. Because a genuine risk of juror confusion did exist, this Court must reverse the simple assault conviction alleging kicking, for failure to give a specific unanimity instruction.

After defining the statutory elements of the charged crimes and the lesser-included offenses, the court instructed the jury on the elements of self-defense or defense of another. T 587-91. The instruction began by advising that the State bore the burden of disproving self-defense beyond a reasonable doubt. T 587-88. After other brief preliminaries, the court turned to the elements of self-defense. T 588. First, the court stated that a person may use force in self-defense only if the person actually and reasonably believes that another threatens imminent unlawful force. T 588-89. Next, the court expounded on the distinction between deadly and non-deadly force. T 589. In that context, the court told the jury:

The court next explained that Price’s use of the baton as deadly force would be justified by self-defense if the jury found that Holton threatened unlawful deadly force. Thus, the court next told the jury:

T 589; A31-A32 (emphasis in italics for clarity below). The court then defined non-deadly force in two ways. T 589; A32. First, non-deadly force is “any assault or confinement which does not constitute deadly force.” Id. Second, the court informed the jury that the act of displaying a weapon constitutes non-deadly force. Id. The court concluded its definitions of force by reminding the jury that a defendant may use deadly force only with an actual and reasonable belief that another was about to use deadly force. T 589-90. The instructions then covered other self-defense topics, including retreat, necessity, imminence, and the first- aggressor principle. T 590-91.

Defense counsel expressed concern about the words rendered in bold above. T 597-601. That instruction communicated that the act of striking with a baton constituted deadly force as a matter of law. T 597-99. It thereby took from the jury the duty of deciding whether Price’s use of the baton constituted deadly force. As counsel put it, “the baton or ASP is not automatically a deadly weapon….” T 598.

The State replied that, elsewhere when defining the crime of second-degree assault, the court gave the jury the definition of “deadly weapon.” T 598-99 (referring to instruction given at T 585). Defense counsel agreed that the instruction given there correctly defined “deadly weapon” as an object “which in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury.” T 599. However, the phrase in the self-defense instruction is “deadly force, ” not “deadly weapon, ” and a conscientious juror would understand the language in boldface above as resolving the self-defense question of the proper classification – as deadly or non-deadly force – of Price’s acts.

The court replied that the language was a proper part of the jury instructions. T 600. However, the court offered to remove the language printed in bold if the defense would agree to remove the language rendered in italics. T 600-01. The instruction would then proceed from the definition of deadly force to the definition of non-deadly force, omitting both instructions emphasized above. Given that choice, the defense agreed to the instructions without change. T 600-01. In putting the defense to that choice, the court erred. Counsel incorporates herein by reference the points and authorities describing the appellate standard of review of challenges to jury instructions. Here, de novo review is proper because the claim raises only questions of law.

It is well-established that principles of due process bar courts from directing verdicts against criminal defendants. State v. Williams, 133 N.H. 631, 634-35 (1990). That principle holds not only for the elements collectively that define a crime, but also for each individual element. Once the issue of self-defense is raised, it becomes the State’s burden to disprove it. RSA 625:11, III(c); RSA 626:7, I(a). The language highlighted in bold above violated these principles because it instructed the jury that the act of striking a person with a baton constitutes deadly force. After hearing that instruction, the jury could not both follow its instructions and find that Price’s act of striking Holton with the ASP amounted only to non-deadly force.

Defense counsel’s acquiescence in the inclusion of that language does not defeat Price’s claim because the acquiescence came only when the court declared that it would withdraw from the instructions the statement highlighted in italics above if it withdrew the language in bold. Courts may not put litigants to a choice between two improper procedures. State v. Hearns, 151 N.H. 226, 238 (2004) (“To require a person to surrender one constitutional right to gain the benefit of another is simply intolerable”); Opinion of the Justices, 131 N.H. 531, 541 (1981) (to same effect). Thus, if Price had a right to the inclusion of the italicized language, the court erred in ruling that it would be deleted if the objected-to language in bold were withdrawn.

Here, Price had the right to the inclusion of that language. The italicized language correctly stated the principle that, if Holton’s unlawful acts amounted to an imminent threat of serious bodily injury or death, then Price’s use of deadly force in response would be justified, subject to other requirements of self-defense.

The instructions did not otherwise adequately express that principle. At one point, the instructions addressed the principle.

10 However, the inclusion of the word “only” in the expression of the principle elsewhere implied that Holton’s use of deadly force would be a necessary condition on Price’s justification for using deadly force but might not be sufficient. Because the trial court thus conditioned the removal of an improper instruction on acquiescence in the removal of a necessary instruction, Price’s acceptance of the challenged language does not defeat his claim. This Court must reverse his assault convictions.

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

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

The appealed decisions were not in writing and therefore are not appended to the brief.

This brief complies with the applicable word limitation and contains approximately 9194 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.