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State v. Robbins

Supreme Court of New Hampshire

July 29, 2014

State of New Hampshire
v.
Richard Robbins,

The defendant, Richard Robbins, appeals his conviction for criminal threatening. He argues that: (1) the State failed to present sufficient evidence that he acted "purposely"; (2) the trial court erred by denying his requests for a jury instruction on justification; and (3) the trial court erred by conducting jury selection in his absence. We affirm.

The following facts are drawn from the record. In March 2010, the defendant called the police for assistance in removing his girlfriend from his residence. When the police arrived, the defendant opened a window to speak to them. Officer Wright told the defendant he could speak to the police at his front door. In addition, Wright explained that the defendant needed to go to the door because Wright had an arrest warrant and summons to be served upon him. The defendant, who was agitated, responded that the officers could serve him through the window, which Wright declined to do, and also stated that he was not going to the door. At the front door, Wright stated that he was going to kick the door down, but when he asked Corporal Roberts whether he should do so and arrest the defendant, Roberts told him not to do that. Thereafter, Roberts climbed onto the defendant's small, enclosed back porch and knocked on the glass sliding door with his flashlight. The defendant slid open a curtain covering the glass door, and grabbed a shovel. He began yelling and swinging the shovel three or four times in Roberts' direction, saying words to the effect of, "You want some?" or "Do you want a piece of this?"

As a preliminary matter, we note that in April 2014, the clerk of the trial court notified us that a motion for competency evaluation had been filed in the trial court. We invited the parties to file supplemental memoranda addressing the effect, if any, on the pending appeal of the motion for competency evaluation that remained pending in the trial court. In his memorandum, the defendant notes that the direct appeal was filed and originally briefed when there was no pending motion or claim regarding competency, and states that an analysis of the arguments in favor and against a right of competency on appeal and during post-conviction proceedings "is unnecessary in this case." The defendant concludes by stating that "there is no reason why this court cannot decide this appeal, based on the current state of the record." Accordingly, we turn to the defendant's arguments on appeal.

The defendant first argues that the evidence was insufficient to prove that he acted purposely. RSA 631:4, I(a) (2007)provides that a person is guilty of criminal threatening when, by physical conduct, the person purposely places or attempts to place another in fear of imminent bodily injury or physical contact. In considering this issue, we view the evidence and reasonable inferences arising therefrom in the manner most favorable to the State. State v. Sideris, 157 N.H. 258, 263 (2008). When the evidence is purely circumstantial, it must exclude all reasonable conclusions other than guilt. State v. Zubhuza, 166 N.H.__, __, 90 A.3d 614, 619 (2014). "The court does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt." State v. Germain, 165 N.H. 350, 361-62 (2013) (quotations and brackets omitted). "Intent may be inferred from the defendant's conduct under all the circumstances." Zubhuza, 166 N.H. at__, 90 A.3d at 619 (quotation omitted).

Although the State argues that not all of the evidence of guilt was circumstantial, we need not decide that issue. We agree with the State that the evidence was sufficient even under the circumstantial evidence test. In light of all the evidence in this case, we conclude that the defendant's actions in swinging the shovel accompanied by his statements to Corporal Roberts were sufficient to exclude all reasonable conclusions other than that the defendant purposely placed or attempted to place Corporal Roberts in fear of imminent bodily injury or physical contact.

The defendant next contends that the trial court erred by denying his request for a self-defense instruction. See RSA 627:4, I (2007). He contends that the evidence makes clear that he acted to protect himself against what he reasonably anticipated would be the unjustified use of force by the police.

A defendant is entitled to an instruction on self-defense if there is some evidence to support a rational finding in favor of that defense. State v. Balliro, 158 N.H. 1, 5 (2008). RSA 627:4, I, provides in part that a person is justified in using non-deadly force upon another person in order to defend himself . . . from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person . . . ." Here, the defendant knew that the police had a lawful purpose for being on the premises, having both responded to the defendant's call for assistance and having informed the defendant of their intent to serve an arrest warrant and summons. Even assuming that the defendant heard Officer Wright's statement at the front door that he intended to kick it down, indicating that the police were preparing to use force against the defendant's property in order to gain entry, such statement would not support a rational finding that the defendant had a reasonable belief that Corporal Roberts was imminently going to use unlawful force against his person after such entry was obtained.[*]

Next, the defendant challenges the trial court's ruling that he waived his right to be present during jury selection. On the day of jury selection, the defendant, who was in the courthouse, refused to attend the hearing, indicating that he didn't want to do so because Judge Vaughan was presiding. We agree with the trial court's well-reasoned February 2014 order that by refusing to attend jury selection, the defendant voluntarily waived his right to be present during those proceedings. See State v. Davis, 139 N.H. 185, 189-90 (1994).

Finally, to the extent that the defendant may be challenging the trial court's factual finding that he said that he did not want to attend because Judge Vaughan was sitting, we note that "[i]t was within the trial court's discretion to resolve conflicts in the testimony, measure the credibility of witnesses, and determine the weight to be given evidence." Despres v. Hampsey, 162 N.H. 398, 404 (2011) (quotation omitted). Here, the testimony of a court security officer clearly supports the trial court's finding.

Affirmed.

HICKS, CONBOY, and LYNN, JJ., ...


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