Argued: November 12, 2014.
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Joseph A. Foster, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Mulvey, Cornell & Mulvey, of Portsmouth ( Patrick A. Mulvey on the brief and orally), for the defendant.
LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
The defendant, Josiah Mayo, appeals his convictions, following a jury trial, of first degree assault with a deadly weapon, see RSA 631:1, I(b) (Supp. 2014), and reckless second degree assault, see RSA 631:2, I(a) (Supp. 2014). On appeal, he argues that the Superior Court ( Delker, J.) erred by: (1) failing to instruct the jury that his use of force in defense of his cousin was justified if he reasonably believed that his cousin was not the initial aggressor or provoker; (2) denying his motion to dismiss the first degree assault charge on the grounds that his shod foot could not constitute a deadly weapon under RSA 625:11, V (2007); and (3) allowing the admission of evidence of the defendant's prior convictions for impeachment purposes. We reverse and remand.
The jury could have found the following facts. On the evening of July 14, 2012, the defendant and his cousin, Daniel Mayo, were in Portsmouth at The Page, a restaurant and bar. They left at around 12:30 a.m. and went their separate ways, with plans to meet later at another area restaurant. The victim and his friends Kevin Donahue, Robert Yitts, Jacob Losik, William
Ryan Paris, and Charles " Costa" McCreed were also at The Page that night. The victim, Zachary Green, had consumed three alcoholic beverages earlier in the day but did not drink any more that evening because he was the designated driver. Most of the victim's friends had consumed alcohol throughout the evening, some to the point of intoxication.
Shortly before closing time at 1:00 a.m. on July 15, the bouncers at The Page began moving patrons outside into the adjacent alleyway known as the Vaughan Mall (Mall), an area that often became very crowded with people leaving other area establishments. The defendant testified that at around 1:00 a.m. he was walking through the Mall. The victim and his friends were leaving The Page around the same time, and also ended up in the Mall.
Various witnesses testified about what next occurred. Donahue testified that " small scuffles started to break out," during which he was hit in the head and kicked in the leg. When he turned around to determine who had hit him, he " saw a bunch of angry faces and people ready to fight." Donahue testified that he saw Paris get punched in the side of the head and Losik get knocked to the ground.
Paris testified that " a black gentleman ... was upset" with one of his friends: the man was yelling and " seemed like he was trying to make a move like he was going to go fight them or something like that." Paris tried to de-escalate the situation by standing in front of the man and stating that no one wanted any trouble. In response, the man told Paris to " get out of his face and things of that sort" and, during that exchange, the man's hand came into contact with Paris. Then, according to Paris, the man stated, " don't f'ing touch me," and punched Paris in the face. The victim then came over to Paris and held his hands up, saying " whoa, whoa, whoa," at which point another man kicked the victim in the face.
Losik testified that he had seen Paris talking to two men, and that soon thereafter Paris was punched in the face. When Losik approached Paris, the same two men pushed Losik to the ground. Losik got up and walked away from the two men to join his group of friends. At that point he saw the victim walking toward Paris and some words were spoken between the victim and the two men. The next thing Losik saw was the victim " on the ground."
The victim testified that, upon leaving The Page, he started to walk through the Mall toward the parking lot where he had parked his car. At that time he was with Donahue, and the rest of his friends were nearby. At some point the victim noticed Yitts and two men " looking funky at one another," as in " not happy." The two men appeared to be mad, and so the victim " immediately tried to get [Yitts] to go walk away." He told Yitts that they were not going to fight, and pointed him toward the car. The victim then turned back around and " scolded" the two men for acting immature, telling them " to grow up and we're not fighting." He testified that the next thing he remembered was waking up in the hospital.
The defendant testified that as he was walking through the Mall, he heard the word " n....r." When he turned around, he noticed his cousin Daniel and a group of individuals. As he got closer, " something happened, and people just kind of converged on [his cousin]," " limbs were flying," and his cousin was " physically assaulted." He testified that hearing people yell racial slurs and seeing the group of individuals converge on his cousin made him believe that his " cousin was in danger at that time." When he was approximately three or four feet away from the group, the defendant noticed the victim approaching
from his right " fairly quickly" and assumed that he was going after his cousin. The defendant responded by kicking the victim.
The witnesses agreed that the defendant kicked the victim once in the face. As a result of the kick, the victim was immediately rendered unconscious and fell, hitting his head on the pavement. The victim was transported to the hospital, where he was diagnosed with a concussion, a skull fracture, and an inter-cranial hemorrhage. The defendant was subsequently arrested and charged, alternatively, with first degree assault with a deadly weapon and reckless second degree assault. At trial, the defendant claimed that he acted in defense of his cousin. After a four-day trial, the defendant was convicted on both charges. This appeal followed.
The defendant first contends that the trial court erred by failing to instruct the jury that his use of force in defense of his cousin was justified if he reasonably believed that his cousin was not the initial aggressor or provoker of a physical encounter with the victim and his friends. " The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case." State v. Etienne, 163 N.H. 57, 70, 35 A.3d 523 (2011) (quotation omitted). " When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case." Id. (quotation omitted). " We determine whether the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case." Id. " Whether a particular jury instruction is necessary, and the scope and wording of jury instructions, are within the sound discretion of the trial court, and we review the trial court's decisions on these matters for an unsustainable exercise of discretion." Id. (quotation omitted). " To show that the trial court's decision is not ...