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State v. Fischer

Supreme Court of New Hampshire

November 26, 2013

The State of New Hampshire
v.
David J. Fischer

Argued June 4, 2013.

Page 892

[Copyrighted Material Omitted]

Page 893

Strafford.

Michael A. Delaney, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. [165 N.H. 709]

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

OPINION

Page 894

Conboy, J.

The defendant, David J. Fischer, appeals his convictions, following a jury trial in Superior Court ( Brown, J.), on two counts of second degree assault, both of which resulted in extended terms of imprisonment. See RSA 631:2, I(c) (2007); RSA 651:6, II(a) (Supp. 2012). He argues that: (1) the trial court erred in admitting testimony under the excited utterance hearsay exception; (2) the evidence was insufficient to prove that his conduct manifested extreme indifference to the value of human life; (3) the trial court erred in instructing the jury on extreme indifference to the value of human life; (4) the trial court violated his rights against double jeopardy by sentencing him on both second degree assault convictions; (5) the trial court erred in imposing extended

Page 895

terms of imprisonment; and (6) the trial court erred in failing to instruct the jury that it must unanimously find a specific bodily injury. We affirm.

The jury could have found the following facts. At 10 p.m. on February 18, 2010, the victim, the defendant's wife, returned to their home in Dover from her shift as a nurse at York Hospital. She and the defendant argued. She then removed her rings, threw them at him, and told him that she " couldn't do this any more." In response, the defendant grabbed her by the throat, pushed her head into the wall behind her with such force that it dented the wall, threw her to the floor, and left the house. When the defendant returned, the victim told him that she was not going to stay in the relationship and that she was going to obtain a restraining order the next day. The defendant responded that if she did, he would kill her.

The defendant turned off the lights in the kitchen and went upstairs. When the victim went from the living room into the kitchen and turned the lights back on, the defendant came downstairs, turned the lights off, and lunged at her. He grabbed her from behind, put his hand over her mouth, and brought her to the floor. Then he stepped on her head, preventing her from getting up. He grabbed her by the hair and sweatshirt and dragged her into the living room. The sweatshirt tightened around her neck so she could not breathe or speak. The defendant then went back upstairs. The victim spent the rest of the night on the couch, although she could not sleep.

In the morning, the defendant apologized and said that he wanted " to fix things," but the victim said that she could not stay with him. As she was leaving the house for work, the defendant charged at the door, slamming it on her finger. Rather than going to her department at York Hospital, the victim went to the emergency room. The emergency room doctor determined [165 N.H. 710] that her finger was fractured. Although she tried to work after leaving the emergency room, she was sent home because of her injured finger.

The victim left the hospital and telephoned a co-worker, Pamela Damrill. She also telephoned her mother's partner, Kristin Busch. She told both what had happened. She then called her brother, a Rochester police officer, who accompanied her to obtain a restraining order. The victim also reported the assaults to the Dover police. At the recommendation of the police, she went to the Wentworth-Douglass Hospital emergency room to be examined.

At the hospital, the victim told the nurse that, during the previous night, she had been assaulted by her husband, who pushed her to the floor, stepped on her, and choked her. She also said that her husband slammed her finger in the door. The nurse noted bruising on the victim's back near her right shoulder blade, tenderness on her cervical spine, tenderness on the back of her head and front of her neck, and swelling, tenderness, and bruising on her left index finger. In addition to her fractured finger, the victim was diagnosed with muscle strain in her neck, cervical strain, and abrasions and contusions on her neck, back, and head.

The defendant was indicted on three counts of second degree assault. The first charge alleged that the defendant caused serious bodily injury to the victim by slamming a door on her hand, causing her to suffer a fractured finger. The other two charges, one concerning the assault in the living room and the other concerning the assault in the kitchen, alleged that the ...


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