Argued: September 16, 2015
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
In these consolidated appeals, the defendant, Samuel Pennock, appeals his conviction by a jury of felony simple assault, see RSA 631:2-a (2007); RSA 173-B:9, IV (2014), and the denial by the Superior Court (Bornstein, J.) of his post-conviction motion to vacate his sentence and for a new trial. On appeal, he argues that the trial court erred by: (1) substantively admitting the victim's pretrial oral and written statements under the excited utterance exception to the hearsay rule, see N.H. R. Ev. 803(2); (2) denying his motion to dismiss the simple assault charge; (3) denying his post-conviction motion to reduce that charge to a class B misdemeanor and to resentence him accordingly; and (4) denying his post-conviction motion for a new trial based upon newly discovered evidence. We affirm.
On July 29, 2013, a grand jury indicted the defendant on three charges: (1) simple assault as a class B felony, see RSA 631:2-a; RSA 173-B:9, IV; (2) second degree assault as a class A felony, see RSA 631:2, I(f) (Supp. 2014); RSA 173-B:9, IV; and (3) criminal mischief as a class B felony, see RSA 634:2, III (2007); RSA 173-B:9, IV. The charges all stemmed from an incident that occurred on or about July 9, 2013. The indictments alleged that, on or about July 9, the defendant pushed and strangled his wife and kicked her vehicle. Following a January 2014 jury trial, the defendant was acquitted of all but the simple assault charge. In February 2014, the trial court sentenced him to 12 months in the house of corrections, stand committed, with nine months of the sentence suspended for two years. The court also placed the defendant on probation for two years following his release from the house of corrections.
In October 2014, while his appeal of the simple assault conviction was pending, the defendant filed in the trial court a motion to vacate, set aside, or correct his illegal sentence "based on a statutory error and . . . on newly discovered evidence." We stayed further processing of the appeal so that the trial court could address the motion. The trial court denied the motion and the defendant's subsequent motions for reconsideration. We later consolidated the defendant's appeal of the trial court's denial of his post-conviction motion with his direct appeal of his conviction. We first address the defendant's direct appeal.
I. Excited Utterance
The defendant first argues that the trial court erred by admitting substantively the victim's pretrial statements to a police officer under the excited utterance exception to the hearsay rule. See N.H. R. Ev. 803(2).
A. Relevant Facts
The victim testified that the July 9 incident was prompted by her telephone call to the defendant at approximately 2:30 a.m. asking him to return home. When he did so approximately 20 minutes later, the defendant told the victim that she had been rude. The defendant went upstairs, and the victim stayed downstairs on the couch.
The next morning, the defendant again told the victim that she had been rude. When the victim apologized, the defendant asked her to leave the house. Although the victim wanted the defendant to talk with her, he refused. At one point, when the defendant attempted to make a telephone call, she "grabbed the phone" before he could do so, and later she "pulled the phone cord out of the wall."
The victim further testified that the defendant wanted to leave, but that she had hidden the car keys and refused to give them to him. She also "block[ed] [the defendant] from leaving the house." Subsequently, the defendant "grabbed [her] arms, " and she "bit him." The defendant then "pushed [her] away from him, " and she "dropped to the ground and started crying." The two "started arguing some more, " but, eventually, the victim "let [the defendant] leave." When she could no longer see the defendant from the kitchen window, the victim "went and grabbed the keys from where [she] had hidden them and packed up the children and . . . [the] dog, and . . . left." The victim drove to the homes of two local friends, but, seeing no car in either driveway, she drove to the police station. The victim testified that she was crying when she drove to her friends' homes and that she was still crying and upset when she arrived at the police station.
The victim "sat outside the police station in the car for about ten minutes, " still upset "[f]rom the argument" with the defendant. Still crying, she entered the police station, where she was greeted by Officer Nessa Platt. According to the victim, she "didn't want to say anything" to Platt, but Platt told the victim that she could see that the victim was "obviously upset, " and asked her to explain what had happened. When the victim explained that her children and dog were in the car, Platt told her to "[b]ring them in, " and "persisted that [the victim] come in [to the police station] and tell her what happened." The victim then told Platt about the incident, testifying that, while she spoke with Platt, she was "very upset" and "scared."
During the victim's direct examination, the State introduced into evidence photographs that she agreed accurately and fairly represented her appearance upon arriving at the police station. The State also sought to introduce her oral and written statements to Platt under the excited utterance exception to the hearsay rule. Over the defendant's objection, the trial court granted the State's request, observing that "[t]he [victim] [had] testified several times . . . that when she went [to the police station], when she spoke to the officer, she was still upset, she was still crying, she was visibly upset." The court stated that in the photographs admitted into evidence, the victim appeared "extremely disheveled, obviously distraught and obviously upset."
After this ruling, the victim testified that the first thing that she said to Platt was, "Nessa, Sam did it." She also testified that after she tried to apologize to the defendant, he called her names. She further admitted that the defendant put his hand in front of her face and that she pushed it away. However, she denied telling Platt that the defendant had grabbed her and had thrown her against the wall, that he had pushed her into the kitchen sink, or that, when she had pushed him off her, he then had put his arms around her neck. She also denied telling Platt that she had bitten the defendant to get him off her and that he had responded by grabbing her around the neck and pushing her to the ground.
The victim then read the following portion of the written statement she made at the police station:
I tried to say sorry to [the defendant] for being rude and grumpy the night before, and he started being hurtful, calling me names, and I was stupid and I was a liar, and told me to leave him alone, so I went to the kitchen and started cleaning. He followed me and continued to yell and call me names. He got close to my face and held his hand in front of my face, and I pushed it away, and he grabbed me and threw me into the wall and I got up and swung my hand around and said, "Don't touch me." He then pushed me into the kitchen sink, and I tried pushing him off. He had his arm around my neck, so I bit him to get him off, and he grabbed my neck and pushed me to the ground and then held me down on the ground and was yelling in my face. When he left I got the kids in the car and saw him walking back towards the house, and I tried talking to him again and he kicked my car.
Subsequently, the victim read to the jury another written statement:
I tried to apologize to [the defendant] for being grumpy, and he started yelling at me, calling me names like ct, b[*]h, stupid and fat cow, and told me he wasn't accepting my apology and to leave him alone. So I went in the kitchen and started cleaning. He followed and continued arguing with me and calling me names. I gave him no response until he put his hand in my face, and I pushed it away and told him to keep his hands away from me. He then grabbed my arm and threw me into the den wall. When I got up I swung my hand around, which caught his arm. I said, "Don't touch me." He then grabbed me by my shirt on the collar and pushed me backwards until I hit the counter. Meanwhile I was trying to push him off me. He grabbed with his arm around my neck, so I bit him to get away. He then grabbed me by the throat, and I tried telling him he was choking me. I fell to the floor, where he restrained me by my arms and legs. When I got up he continued to call me the same names. He eventually left the house after breaking the phone in half and punching a hole in the wall. I got my two daughters and two dogs in the car and I was leaving when I saw him coming up the road where I tried to talk to him again, and he kicked a dirty mud puddle of water and dirt at the car, and it covered my face.
This second written statement was part of the victim's July 9 application for a domestic violence order of protection. It was not admitted into evidence substantively, but, instead, was admitted as a prior inconsistent statement.
On cross-examination, the victim again confirmed that the defendant pushed her, but denied that he strangled or choked her or put his hands or arms around her neck so that she could not breathe. She also testified that she bit the defendant when he tried to restrain her, and "that the argument . . . turned physical when [she] pushed [the defendant's] hand into his face." She testified that she attempted to prevent the defendant from using the phone because she "didn't want ...