Argued September 26, 2013.
Joseph A. Foster, attorney general ( Benjamin J. Agati, assistant attorney general, on the brief and orally), for the State.
Brianna M. Sinon, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
DALIANIS, C.J. HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.
The defendant, Jason Durgin, appeals his convictions for second degree assault (as a lesser included offense of manslaughter) and negligent homicide following a jury trial in Superior Court ( O'Neill, J). See RSA 630:3, I, :2 (2007); RSA 631:2 (Supp. 2013). He argues that the trial court erred by: (1) denying his request to admit evidence of alternative perpetrators; (2) precluding him from cross-examining a witness about using his electronic benefits (EBT) card without his permission; and (3) denying his motion to set aside the verdict as conclusively against the weight of the evidence. We affirm.
The jury could have found the following facts. In the late morning of May 3, 2011, Tracy Hebert called the police to the defendant's trailer, where she had been living with the defendant and Gary Fields. Approximately thirty feet from the trailer's front stairs lay the victim, Leo Lapierre, " slumped up against ... a wooden picket fence." He was unconscious, unresponsive, bloody, and covered " from head to toe" in " thick, thick dirt" and vomit. The police knocked loudly on the door to the trailer, but neither the defendant nor Hebert responded. Fields had left the trailer earlier that morning. When emergency medical personnel arrived on the
scene, Lapierre was still breathing; however, when he was intubated, blood poured from his mouth. [165 N.H. 728] Lapierre's left eye was swollen shut and noticeably bruised. Additionally, he had a bloody head wound. Lapierre was transported to Lakes Region General Hospital for treatment.
Despite repeated entreaties from the police, the defendant and Hebert did not exit the trailer for thirty minutes after the police arrived. Hebert told the police that Lapierre was homeless and had been staying at the defendant's trailer for three or four days. Hebert described him as a " very thin ... older gentleman," who was " quiet and polite" and appeared to be " really frail."
Hebert told police that during the night before, she heard the defendant swearing at Lapierre about damaging the water tank in the bathroom. When she emerged from her bedroom to see what the commotion was about, she saw the defendant push Lapierre down the hallway toward the kitchen. She then saw the defendant punch Lapierre in the face, " knock[ing] him out." While Lapierre was lying on the kitchen floor, Hebert saw the defendant kick him on the side of his head with enough force that the other side of his head hit a nearby kitchen cabinet. The defendant ordered Hebert to go back to her room and mind her own business. Hebert returned to her room, but then heard the defendant use profanity and demand that Lapierre leave. Hebert heard struggling, as if the defendant were throwing Lapierre out of the trailer. Hebert then heard the front door shut and the defendant yell, " Do not open that door for nobody."
Hebert woke at approximately eleven o'clock the next morning to find Lapierre lying outside the trailer. His face was " swollen ... and all gray." Hebert yelled at Lapierre, but he did not respond. The defendant, who was at Hebert's side, asked Hebert and another person to " help him move [Lapierre] inside." When Hebert refused, she saw the defendant move Lapierre " over to the fence and prop him up because ... he was choking." Hebert returned to the trailer and called 9-1-1, telling the operator that there was a homeless man " [a]ll dirty and beat up" in the yard. The police arrested the defendant later that day. Lapierre died approximately one week later.
At trial, Fields partially corroborated Hebert's account of the assault, testifying that he had found Lapierre in the bathroom near the damaged water tank. While Fields cleaned the bathroom, he heard the defendant " screaming and yelling" obscenities at Lapierre for damaging the water tank. He then heard " a couple thumps, like somebody falling on the floor or something like that." A few minutes later, he saw Lapierre lying on his back on the kitchen floor with the defendant standing over him. At the defendant's ...