Thе defendant, Ward Bird, appeals his conviction for criminal threatening. See RSA 681:4 (2007). On appeal, he argues that the Superior Court (Houran, J.) erred by excluding evidence of a witness’s prior bad acts of animal cruelty. He also asserts that the trial court should have set aside the jury’s verdict because: (1) the indictment was insufficient to allege the crime of felony criminal threatening; (2) there was insufficient evidence to demonstrate that he committed felony criminal threatening; and (3) the State did not negate his justification of defense of property. Finally, he contends that the trial court committed reversible error when it enhanced his sentence under RSA 651:2, II-g (2007). We affirm.
"Viewing the evidence in the light most favorable to the State, the jury could have found or the record supports the following. Christine Harris arranged to mеet a real estate agent on March 27,2006, at his office to view a property for sale in Moultonborough owned by Patricia "Viano that Harris was interested in purchasing. That day, she called the real estate agent to inform him she was running late and could not make the appointment. Because he could not meet her later that day, she decided to look at the property hеrself.
During her drive to the property, she became lost and stopped at the home of the defendant’s niece, where she asked for directions. The niece told her that the most direct route to the property was Emerson Path to Yukon Trail, and then a road to the left with a small bridge over a stream. The niece told her that if she
Harris followed the niece’s directions and drove past signs that stated “Private road, keep out” on Emerson Path and “no trespassing” on Yukon Trail. She missed the left hand turn off of Yukon Trail, drove past the white trailer, and ended up in front of the defendant’s house. She parked her car and got out. The defendant emerged from his home “screaming, get the F off my property.” He came down from his porch, continuing to yell profanities while waving a gun at her. At trial, she testified that he pointed the gun “[t]owards” her. Harris asked the defendant whether he wаs the boyfriend of the woman selling the property. He repeated his command for her to leave his property Harris eventually climbed back into her car, mouthing “[w]hat an ass.” The defendant then walked off the porch toward her waving his gun as she backed out of the driveway
The defendant was indicted for criminal threatening. At trial, Harris testified that she had planned to purchase the property with her own funds as well as “state grants and federal grants” because she wanted to start an educational farm. She also stated she abandoned the idea after her encounter with the defendant. On cross-examination, the defendant inquired about her reasons for planning an educational farm, particularly her experience with animals. She responded that she planned to hire othеrs with “more expertise” to handle “the cattle, the sheep, the goats.” Based upon this response, the defendant asked the court to rule that Harris had “open[ed] the door” to cross-examination about her January 2008 convictions in district court for animal cruelty. The defendant argued this evidence would cast doubt upon Harris’s “ability to take care of animals.” The court denied the mоtion.
At the close of the State’s case, the defendant moved to dismiss the criminal threatening charge, arguing that the State had not presented sufficient evidence to negate his claim of defense of property and had not established that the gun he waved was a deadly weapon. The court denied the motion, ruling that a reasonable factfinder could conclude that the Statе had proven all of the elements of the crime. Prior to closing arguments, the defendant requested a jury instruction on defense of property with non-deadly force. The trial court agreed to give the instruction.
The jury found the defendant guilty of criminal threatening. The defendant moved to set aside the verdict, contending that the indictment did not sufficiently allege the crime of criminal threatening, that the evidence was insufficient to prove criminal threatening, and that a rational trier of fact could not have found other than that the defendant reasonably believed it necessary to use non-deadly force to terminate Harris’s trespassing. The trial court denied the motion. In April 2009, the court sentenced the defendant to prison for no less than three and no more than six years, citing RSA 651:2, Il-g, which impоses a mandatory minimum sentence of three years “[i]f a person is convicted of a felony, an element of which is the possession ... of a deadly weapon, and the deadly weapon is a firearm.” This appeal followed.
I. Cross-Examination
The defendant first argues that the trial court erred by excluding evidence of
We review the trial court’s decision on the admissibility of evidence for an unsustainable exercise of discretiоn.
See State v. White,
We agree with the trial court that the State did not create a misleading impression that needed to be placed in proper context. The State asked, “Now when you were looking for property that day, did you have a check in your pocket for the full amount of [the] property?” Harris replied,
No. I was looking to do an educational farm, so I was looking for large parcels of property and there was a timber piece that was up behind . . . the Yiano’s .... I needed a large piece to do the educational farm for it to be self-supporting. And as far as financing, . . . [i]t was to be able to get state grants and federal grants to do an еducational farm.
The State did not ask any other questions about Harris’s purpose in looking for the Yiano property that day or her ability to care for animals. Rather, it was the defendant on cross-examination who asked questions, such as “Do you have experience taking care of animals?” and “Are you trying to tell the jury that you’re a humanitarian type?,” intended to elicit statements from Harris about her ability to care for animals. The trial court did not unsustainably exercise its discretion by not permitting the defendant to cross-examine Harris about her prior convictions for animal cruelty.
II. Defendant’s Claim of Defense of Premises
The defendant next contends that the trial court erred by denying his motion to set aside the verdict on the grounds that the State failed to rebut his claim of defense of premises under RSA 627:7 (2007). Specifically, he asserts that Harris criminally trespassed on his property, see RSA 635:2 (2007), and, therefore, he was justified in using non-deadly force to persuade her to leave. According to the defendant, use of non-deadly force to terminate a trespass is “per se reasonable” under RSA 627:7. The State counters that the defendant’s waving of the gun was “unreasonable” and constituted deadly force.
We will uphold a trial court’s denial оf a motion to set aside the verdict unless its ruling was made without evidence or constituted an unsustainable exercise of discretion.
State v. Kousounadis,
RSA 627:7, entitled “Use of Force in Defense of Premises,” governs when a рerson is justified in using non-deadly force to terminate the commission of a criminal trespass. It states, in relevant part:
A person in possession or control of premises or a person who is licensed or privileged to be thereon is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises ....
The defendant raised this justification at trial. Thus, the State had to prove beyond a reasonable doubt that it was unreasonable for the defendant to believe “it necessary to . . . terminate the commission of [the] criminal trespass” by using non-deadly force. RSA 627:7; see RSA 626:7,1(a) (2007). Assuming without deciding that the defendant’s actions constituted “non-deadly force,” we focus our analysis upon whether it was reasonable for the defendant to believe it necessary to use such force.
Whether the defendant’s belief was reasonable is determined by an objective standard.
See State v. Cunningham,
Considering the evidence in the light most favorable to the State, a rational juror could have found that the defendant’s belief that it was necessary to wave his pistol to terminate Harris’s trespass was not objectively reasonable. While Harris drove past “no trespassing” signs onto the defendant’s property, she had been given directions to follow the roads with these signs by the defendant’s niece, who had then telephoned the defendant to tell him that Harris was going to look at the Viano property and might stop at his property, and that she was driving a Ford Ranger.
Cf. State v. Gilbert,
III. Felony Criminal Threatening
The defendant next contends that the indictment did not sufficiently allege felony criminal threatening because it did not state that he used, intended to use, or threatened to use the gun in a manner that “is known to be capable of producing death or serious bodily injury.” RSA 625:11, V (2007). Therefore, according to the defendant, it only alleged misdemeanor criminal threаtening. He also asserts that the evidence was insufficient to prove that he committed felony criminal threatening. We address each argument in turn.
“An indictment... is sufficient if it sets forth the offense fully, plainly, substantially and formally____” RSA 601:4 (2001). To be sufficient to charge the variant of felony criminal threatening involved here, the indictment must have set out the following elements: that by physical conduct, the defendant “purposely place[d] or attempted] to place another in fear of imminent bodily injury or physical contact,” while using a deadly weapon. RSA 631:4, 1(a), 11(a)(2). A deadly weapon is “any firearm, knife or other substance or thing which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury.” RSA 625:11, V;
Kousounadis,
Here, the indictment alleged that the defendant:
did commit the crime of criminal threatening in that by his physiсal conduct he purposely attempted to place Christine Harris in fear of imminent bodily injury or physical contact by waving [a] forty-five caliber handgun, a firearm and deadly weapon pursuant to RSA 625:11, V at Christine Harris while telling Christine Harris to get off of his property.
The indictment sufficiently alleged that the defendant threatened to use a “deadly weapon” in a manner that “is known to be capablе of producing death or serious bodily injury.” RSA 625:11, V;
Kousounadis,
We next address whether the evidence was sufficient to support a conviction for felony criminal threatening. To prevail on a claim of insufficiency of the evidencе, 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.
Cunningham,
TV. Sentence Enhancement under RSA 651:2
The defendant contends that the triаl court erred when it imposed a mandatory minimum three-year sentence pursuant to RSA 651:2, Il-g. The defendant argues that, for the enhanced sentence to apply, the jury must have been instructed to unanimously find that “the defendant used a firearm as a deadly weapon.” He
RSA 651:2, II-g states, in pertinent part, that “[i]f a person is convicted of a felony, an element of which is the possession, use or attempted use of a deadly weapon, and the deadly weapon is a firearm ... [t]he person shall be given a minimum mandatory sentence of not less than 3 years’ imprisonment for a first offense.” We have held thаt this enhancement does not apply “absent a specific finding by the jury that an element of the felony for which it convicted the defendant was possession, use or attempted use of a firearm.”
State v. Russell,
Here, the trial court found that under
State v. Higgins,
a reasonable jury would understand that the “deadly weapon” element of both criminal threatening charges exclusively referred to the use of a firearm. Therefore, the guilty verdicts reflect a unanimous conclusion that the defendant used a firearm, and no other object, as a deadly weapon to commit the crimes. Accordingly, we conclude that the constitutional mandate of unanimity [of the jury] . . . was fully satisfied in this case.
We agree with the trial court that Higgins is instructive in this case. The trial court relayed to the jury the criminal threatening allegation that the defendant “wav[ed] a forty-five caliber handgun, a firearm and deadly weapon pursuant to RSA 625:11[,] V at Christine Harris while telling Christine Harris to get off his property.” The victim’s testimony demonstrates that the defеndant waved a handgun throughout their encounter and that he pointed the handgun toward her while yelling at her to “get the F off my property.” In light of the language of the indictment and the evidence presented at trial, we conclude that a reasonable jury would have understood that to find the defendant guilty it must find that the defendant used a firearm as a deadly weapon. Indeed, for the reasons stated above in section III, we reject the defendant’s argument that the handgun could not have been used as a deadly weapon because he did not fire any shots. Therefore, we conclude that the guilty verdict reflects a unanimous finding that the defendant used the firearm as a deadly weapon in the commission of the crime. Accordingly, the trial court did not misapply RSA 651:2, II-g to enhance the defendant’s sentence.
V. Mandatory Sentence
Finally, the defendant argues that his mandatory sentence of three to six years in state prison was unconstitutional under the New Hampshire and Federal Constitutions because it was disproportionate to his
We address constitutional issues
de novo. State v. Hall,
Our constitution “does not prohibit the legislature from constricting the independent exercise of judicial discretion by the requirement of mandatory sentences.”
State v. Dean,
Because the State Constitution provides at least as much protection as the Federal Constitution under these circumstances,
see State v. Dayutis,
Affirmed.