Argued: February 16, 2017
A. Foster, attorney general (Sean P. Gill, 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.
defendant, Jason N. Candello, appeals his conviction by a
jury for second-degree assault. See RSA 631:2, I
(2016). He argues that the State offered insufficient
evidence to prove that the victim suffered serious bodily
injury. He also appeals the Trial Court's
(Kissinger, J.) denial of his motion for a new trial
based upon ineffective assistance of counsel. He contends
that his trial counsel (hereinafter referred to as trial
counsel or defense counsel), who is not his appellate
counsel, rendered constitutionally ineffective assistance by
allowing the defendant to make the decision to admit certain
audio recordings and by failing to cross-examine the victim
regarding prior inconsistent statements. We affirm.
Brief Procedural History
defendant was indicted on one count of second-degree assault
against the victim, his father, and on one count of being a
felon in possession of a deadly weapon. The second-degree
assault indictment alleged that the defendant recklessly
"caused serious bodily injury to [the victim] in the
form of broken ribs and splenic laceration." At the
close of the State's case, the defendant moved to dismiss
all of the charges. The trial court denied his motion, and
the jury convicted him of the second-degree assault charge
and acquitted him of the felon in possession of a deadly
the defendant directly appealed his second-degree assault
conviction. After doing so, he filed a motion for new trial
in the trial court based upon alleged ineffective assistance
of counsel. Following a hearing, the trial court denied his
motion. The defendant then filed a discretionary appeal of
that ruling. We consolidated the defendant's direct and
first address the defendant's direct appeal of his
conviction for second-degree assault, in which he argues that
the State presented insufficient evidence to demonstrate that
the victim suffered serious bodily injury. Because a
challenge to the sufficiency of the evidence raises a claim
of legal error, our standard of review is de novo.
State v. Cable, 168 N.H. 673, 677 (2016).
prevail upon his challenge to the sufficiency of the
evidence, the defendant must establish that no rational trier
of fact, viewing all of the evidence and all reasonable
inferences from it in the light most favorable to the State,
could have found guilt beyond a reasonable doubt. State
v. Dorrance, 165 N.H. 162, 164 (2013). "Whether the
victim's injuries constituted serious bodily injury is a
question of fact for the jury to decide." Id.
(quotations, brackets, and emphasis omitted).
controlling statute, RSA 631:2, I(a), provides that a person
is guilty of second-degree assault if he "[k]nowingly or
recklessly causes serious bodily injury to another."
"'Serious bodily injury' means any harm to the
body which causes severe, permanent or protracted loss of or
impairment to the health or of the function of any part of
the body." RSA 625:11, VI (2016). In this case, the
indictment alleged that the defendant recklessly "caused
serious bodily injury to [the victim] in the form of broken
ribs and splenic laceration."
defendant contends that there was insufficient evidence that
the victim suffered either "severe or protracted
impairment." He maintains that, although the victim
"received minimal medical treatment and experienced some
pain, there was no evidence that the pain impaired his
physical abilities for a protracted period of time or that
any impairment was severe." We disagree that there was
insufficient evidence from which a rational trier of fact
could conclude that the victim's injuries were severe.
jury heard testimony from the victim that the defendant
"punch[ed]" the victim "[q]uite hard"
eleven or twelve times. The victim testified that the
defendant "hit me two or three, four times in the head,
[a] couple [of times] in the shoulders, around the neck area,
and then he went down my ribcage, hitting both sides."
He stated that after the assault his rib cage was sore and
that he "continued to work the next week" until he
"got up one morning" and was in such pain that he
"couldn't make it to the end of the bed." The
victim testified that he then telephoned a friend "for
help" and went to the emergency room, where it was
discovered that he had a ruptured spleen and fractured ribs.
The victim was subsequently admitted to the hospital. The
investigating officer testified that when he spoke with the
victim, the victim was in the "intensive-care
jury also heard the trauma surgeon testify that he was
"called by the emergency medicine physician who, "
after seeing the victim, "felt that he should be
hospitalized." The surgeon testified that the victim had
"two rib fractures, " "bruising over his left
flank, " and "a grade 4 splenic laceration, which
is an injury to the spleen, . . . significant enough to
potentially cause . . . [e]nough blood loss to require an
operation." He stated that the victim's red blood
cell count was "substantially lower than normal."
surgeon explained that the victim suffered from a
"subcapsular splenic hematoma, " which means that
"the spleen [had] received injury to its structure. And
in this case, a large amount of blood [had] escaped from the
spleen to an area underneath what [is called] the splenic
capsule or outside lining of the spleen." He stated that
"the bleeding from the spleen actually caused the spleen
to double in size. There was also a fair amount of blood
inside his abdominal cavity, so it was -- you know -- [a]
pretty big injury." He stated that a spleen laceration
"can be severe" and, "[i]n the [victim's
case, ] there was the potential that he would have to go to
the operating room and have his spleen removed." He
testified that the victim was admitted to the hospital for
"three days" and treated with "[r]est,
observation, [and a blood] transfusion." He stated that
it was "[u]nknown" whether the victim would have
died without the blood transfusion, but, in his opinion,
this evidence and all inferences to be drawn from it in the
light most favorable to the State, we hold that a rational
juror could have found, beyond a reasonable doubt, that the
defendant caused the victim to suffer serious bodily injury.
See State v. Scognamiglio, 150 N.H. 534, 537 (2004)
(holding that rational juror could have found defendant
caused serious bodily injury where victim had broken nose,
swollen discolored eyes, clogged breathing passages, and
sinus infection); cf. People v. Daniels,
240 P.3d 409, 410, 412 (Colo.App. 2009) (Graham, J.,
specially concurring) (concluding that victim suffered
serious bodily injury where "victim suffered a grade
three laceration or rupture of the spleen and was bleeding
internally"). A rational juror could have found that two
fractured ribs along with a grade four laceration to the
spleen, which required a three-day hospital stay and a blood
transfusion, constitute "severe . . . impairment to the
health or of the function of any part of the body." RSA
we conclude that the evidence was sufficient to support a
finding that the victim's injuries constituted a
"severe" impairment, we need not address the
defendant's argument that there was insufficient evidence
that the victim's injuries constituted a
"protracted" impairment. See RSA 625:11,
VI; cf. State v. MacArthur, 138 N.H. 597,
600 (1994) (explaining that RSA 625:11, VI does not require
permanent injury inasmuch as it defines "serious bodily
injury" in the disjunctive: "any harm to the body
which causes severe, permanent or protracted loss of
or impairment to the health or of the function of any part of
the body" (quotations omitted)). Thus, we hold that the
State presented sufficient evidence to support a finding of
serious bodily injury.
consider the defendant's discretionary appeal of the
trial court's denial of his motion for a new trial based
upon alleged ineffective assistance of counsel. The
defendant's claim of ineffective assistance of counsel
rests upon both the State and Federal Constitutions.
See N.H. CONST. pt. I., art. 15; U.S. CONST. amends.
VI, XIV. We first address the defendant's claim under the
State Constitution and rely upon federal law only to aid our
analysis. State v. Ball, 124 N.H. 226, 231-33
the State and Federal Constitutions guarantee a criminal
defendant reasonably competent assistance of counsel.
Cable, 168 N.H. at 680; see Strickland v.
Washington, 466 U.S. 668, 686 (1984). To prevail upon
his claim, the defendant must demonstrate, "first, that
counsel's representation was constitutionally deficient
and, second, that counsel's deficient performance
actually prejudiced the outcome of the case."
Cable, 168 N.H. at 680 (quotation omitted). A
failure to establish either prong requires a finding that
counsel's performance was not constitutionally defective.
State v. Collins, 166 N.H. 210, 212 (2014).
satisfy the first prong of the test, the performance prong,
the defendant must show that trial counsel's
representation fell below an objective standard of
reasonableness. Id. To meet this prong of the test,
the defendant must show that trial counsel made such
egregious errors that he failed to function as the counsel
the State Constitution guarantees. State v.
Thompson, 161 N.H. 507, 529 (2011). We afford a high
degree of deference to the strategic decisions of trial
counsel, bearing in mind the limitless variety of strategic
and tactical decisions that counsel must make. Id.
The defendant must overcome the presumption that trial
counsel reasonably adopted his trial strategy. Id.
Accordingly, "a fair assessment of attorney performance
requires that every effort be made to eliminate the
distorting effects of hindsight, to ...