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State v. Stanin

Supreme Court of New Hampshire

March 30, 2018

THE STATE OF NEW HAMPSHIRE
v.
DOMINICK STANIN, SR.

          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 ...


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