Argued September 18, 2014
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Hoefle, Phoenix, Gormley & Roberts, P.A., of Portsmouth ( Terence M. O'Rourke on the brief and orally), for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, J., concurred; LYNN, J., with whom CONBOY, J., joined, concurred in part and dissented in part.
Following a jury trial in Superior Court ( Delker, J.), the defendant, Stanley R. West, II, was convicted on three counts of simple assault and one count of resisting arrest or detention. RSA 631:2-a (2007); RSA 642:2 (Supp. 2014). During trial, the defendant objected to the trial court's proposed jury instruction on the defense of premises, RSA 627:7 (2007). The trial court overruled the defendant's objection.
Additionally, at the close of the State's case, the defendant moved to dismiss the resisting arrest or detention charge, arguing that the State presented no evidence that the police officer attempted to arrest or detain the defendant. The trial court denied the motion. On appeal, the defendant argues that the trial court erred: (1) by instructing the jury that the defendant must exhaust all non-violent alternatives before using force in defense of premises; and (2) by denying his motion to dismiss the resisting arrest or detention charge for insufficient evidence. We affirm.
The jury could have found, or the record establishes, the following facts. Shortly after midnight on December 19, 2012, Officer St. Onge of the Deerfield Police Department was dispatched to the defendant's house in response to a 9-1-1 call and hang-up that the dispatcher had received from the defendant's address. After ringing the doorbell, St. Onge knocked and announced himself as a police officer. After a short period, the defendant came to the door. St. Onge shined his flashlight on his uniform and badge to show that he was a police officer. St. Onge told the defendant that the dispatcher had received a 9-1-1 call, and the defendant stated that he did not call 9-1-1. St. Onge asked if he could come inside the residence and the defendant declined. The defendant then closed the storm door. As the defendant was closing the interior door, St. Onge reached for the handle of the storm door. The defendant then charged at St. Onge, knocking him off the landing by the front door, down five or six steps, and onto the walkway. The defendant landed on top of St. Onge and punched him in the face several times.
The altercation continued for a few minutes, with St. Onge and the defendant exchanging punches. At one point, St. Onge was able to get out from under the defendant. However, St. Onge then fell backward onto the walkway. The defendant again charged at St. Onge and then sat astride St. Onge while striking him. As the defendant began to tire, St. Onge was able to grab hold of the defendant's hair. St. Onge stated, " If you let go of me, I'll let go of you." The defendant responded, " You first," to which St. Onge replied, " no." The defendant released St. Onge, who then rolled the defendant off and handcuffed him. The charges against the defendant stemmed from this incident.
At trial, the defendant moved to dismiss the resisting arrest or detention charge, arguing that there was no evidence that St. Onge attempted to arrest or detain him. The trial court denied the motion, finding sufficient evidence for a reasonable juror to conclude that St. Onge was attempting to detain the defendant during the fight.
At the conclusion of the trial, the trial court, over the defendant's objection, instructed the jury that the defendant could use force in defense of premises under RSA 627:7 " if he actually believed there was an imminent danger of ... St. Onge entering into the Defendant's dwelling without the Defendant's permission, and that the use of force was the only reasonable means of preventing that criminal trespass." The court further instructed that the defendant's belief must be reasonable, explaining " there must be reasonable grounds for the Defendant to believe that ... St. Onge was about to commit a criminal trespass into the dwelling, and that there were no reasonable alternatives to using force to prevent that criminal trespass." The court also instructed the jury that under RSA 627:7, " the ...