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State v. Candello

Supreme Court of New Hampshire

July 7, 2017

THE STATE OF NEW HAMPSHIRE
v.
JASON N. CANDELLO

          Argued: February 16, 2017

         Cheshire

          Joseph 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.

          HICKS, J.

         The 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.

         I. Brief Procedural History

         The 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 weapon charge.

         Thereafter, 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 discretionary appeals.

         II. Direct Appeal

         We 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).

         To 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).

         The 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."

         The 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.

         The 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 unit."

         The 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."

         The 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, "probably not."

         Viewing 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 625:11, VI.

         Because 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.

         III. Discretionary Appeal

         We next 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 (1983).

         Both 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).

         To 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 ...


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