Argued: November 9, 2017
Gordon
J. MacDonald, 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.
BASSETT, J.
The
defendant, Dominick Stanin, Sr., appeals his conviction
following a jury trial in Superior Court (Ruoff, J.)
for first degree assault, see RSA 631:1, I(b)
(2016), robbery, see RSA 636:1, I(a), III(a) (2016),
and being a felon in possession of a deadly weapon,
see RSA 159:3, I(a) (2014). On appeal he argues that
the evidence was insufficient to convict him of robbery, and
that the trial court erred when it did not individually
question each juror about the impact that a photograph -
which had not been admitted into evidence, but which was
visible in the defense counsel's file - had on that
juror's ability to render an impartial verdict. We
affirm.
The
jury could have found the following facts. On August 14,
2014, the defendant and his adult son entered their
housemate's bedroom and stabbed him with a knife that the
victim described as "kind of like a triangle, kind of
[a] wedged type thing, with a handle on it." During the
assault, the defendant told his son to "do something, do
something." Thereafter the victim felt someone reach
into his pockets, causing his money, phone, and keys to spill
onto the floor. Neighbors called an ambulance and the victim
was taken to the hospital. When the victim returned home
later that day after receiving treatment for two broken ribs
and multiple stab wounds, he noticed that the money, phone,
and keys that had previously been in his pockets were missing
from his room.
The
victim identified the defendant in a photo line-up. The
police subsequently arrested the defendant and charged him
with first degree assault, robbery, and being a felon in
possession of a deadly weapon. After a three-day jury trial,
the defendant was convicted on all charges.
As the
jury began its deliberations, Juror 9 asked to address the
court. She said that she had seen a photograph in defense
counsel's file of "the weapon in question" that
she "obviously wasn't supposed to see." Outside
of the presence of the juror, the court and the lawyers
identified the photograph as an image of a knife. A detective
had downloaded the photograph from the internet, believing
that the image matched the description of the weapon used in
the assault. The State disclosed the photograph to defense
counsel; however, it had not been admitted into evidence at
trial.
In
response to questioning from the trial judge, Juror 9 assured
the court that she would base her verdict solely on the
evidence presented during trial. She told the court that
other jurors may have seen the photograph. The court
instructed the juror to let it know if other jurors mentioned
the photograph during deliberations.
Less
than an hour later, Juror 9 reported to the court that other
jurors were discussing the photograph, and that one juror had
stated that defense counsel had displayed the photograph
"almost deliberately, for the jury to see." Defense
counsel then moved for a mistrial, arguing that the jury was
"using evidence that was not admitted [and drawing] . .
. an adverse inference against the Defense attorney for
inadvertently exposing [the photograph] to them, which is
prejudicial to [the defendant]." The court did not rule
on the motion; rather it stated that the jury's exposure
to the photograph did not "fall[] into the realm of
juror misconduct, " and that any resulting prejudice
could be cured by an instruction. Defense counsel then asked
the court to individually question each juror regarding what
he or she saw and what opinion, if any, the juror developed
about the photograph. Defense counsel again moved for a
mistrial. The court denied the motion. After finding that a
mistrial was not required, the court reconvened the jury and
gave a detailed curative instruction, explaining that the
photograph had not been intentionally displayed, was not
evidence, and could not be considered in reaching a verdict.
Each juror then individually affirmed that he or she could
"fairly and impartially deliberate based on the evidence
that's admitted at trial." The jury convicted the
defendant on all charges. This appeal followed.
On
appeal, the defendant contends that the trial court erred
when it: (1) denied his motion to dismiss the robbery charge
because the evidence was insufficient to prove that he was in
the course of committing a theft when he used force against
the victim; and (2) failed to individually question each
juror about the photograph because, without such questioning,
"the court's inquiry was inadequate to gauge the
effect on the jury of the potentially prejudicial
incident."
We
first address the defendant's argument regarding the
sufficiency of the evidence. In order to convict the
defendant of robbery, the State needed to prove beyond a
reasonable doubt that the defendant, in the course of
committing a theft, used physical force on the victim, and
the victim was aware of the force. RSA 636:1, I(a). "An
act shall be deemed 'in the course of committing a
theft' if it occurs in an attempt to commit theft, in an
effort to retain the stolen property immediately after its
taking, or in immediate flight after the attempt or
commission." RSA 636:1, II (2016).
A
challenge to the sufficiency of the evidence raises a claim
of legal error; therefore, our standard of review is de
novo. State v. Morrill, 169 N.H. 709, 718
(2017). To prevail upon a challenge to the sufficiency of the
evidence, the defendant must prove 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.
Id. When the evidence is solely circumstantial, it
must exclude all reasonable conclusions except guilt.
Id. Under this standard, however, we still consider
the evidence in the light most favorable to the State and
examine each evidentiary item in context, not in isolation.
Id. We "consider whether the circumstances
presented are consistent with guilt and inconsistent, on
the whole, with any reasonable hypothesis of
innocence." State v. Germain, 165 N.H. 350, 362
(2013), modified in part on other grounds by State v.
King, 168 N.H. 340, 345 (2015) (quotation omitted).
"The proper analysis is not whether every possible
conclusion consistent with innocence has been excluded, but,
rather, whether all reasonable conclusions based upon the
evidence have been excluded." Id. at 361. The
court does not determine whether another possible hypothesis
has been suggested by the defendant which could explain the
events in an exculpatory fashion. Id. "Rather,
the reviewing court evaluates the evidence in the light most
favorable to the prosecution and determines whether the
alternative hypothesis is sufficiently reasonable that a
rational juror could not have found proof of guilt beyond a
reasonable doubt." Id. at 361-62 (quotation
omitted). "Questions about the reasonableness of
theories of innocence are for the jury to decide in cases
predicated upon circumstantial evidence." Id.
at 362.
The
defendant argues that, because the evidence was insufficient
to prove that force was used "in the course of
committing a theft" as is required by statute, the trial
court erred in denying his motion to dismiss the robbery
charge. See RSA 636:1, II. He contends that a
"rational conclusion consistent with innocence explains
the disappearance of [the victim's] property";
namely, that ...