The defendant, Ciro Scognamiglio, was convicted after a jury trial in Superior Court (Fauver, J.) of second-degree assault for recklessly causing serious bodily injury to Nancy Williams. See RSA 631:2, 1(a) (1996). On appeal, he contends that: (1) there was insufficient evidence that he caused serious bodily injury to Williams; (2) the prosecutor made improper statements during closing argument warranting a mistrial; and (3) the trial court erred when it imposed an extended term of imprisonment. We affirm in part, vacate in part and remand for resentenсing.
The jury could have found the following facts. In March 2001, the defendant became acquainted with Nancy Williams, who lived in the same apartment building. Shortly thereafter, they developed a romantic relationship, which Williams described as “on again/off аgain.” On Augiist 24,2001, the defendant called Williams and told her he was coming over to her apartment. Williams told the defendant not to come over and that she wanted to end the relationship. The defendant insisted on coming to Williams’ apartment becausе he did not want to discuss their relationship over the phone.
At approximately 12:15 a.m., the defendant arrived at Williams’ apartment where they continued to discuss their relationship. Williams repeatedly told the defendant that she wanted to end the rеlationship.
On appeal, the defendant first argues that there was insufficient evidence to prove serious bodily injury, as opposed to bodily injury. “Serious bodily injury” is defined as “any harm to the body which causes severe, permanent or protracted loss of or impairment to the health or оf the function of any part of the body.” RSA 625:11, VI (1996). Whether Williams’ injuries constituted “serious bodily injury” is a question of fact for the jury to decide. See State v. Plaut,
The following evidence of serious bodily injury was presented at trial. After the defendant slammed his head into Williams’ nose, she immediatеly felt pain, became dazed and had difficulty breathing. Blood poured from her nose. Williams sustained a cut on the bridge of her nose and a bump on its left side. Her eyes turned black and blue and swelled shut. The swelling continued for almost two weeks, and the discoloration of her eyes lasted for three weeks.
Approximately one month after the injury, Williams sought medical attention because the breathing passage on the right side of her nose was clogged, her nose was constantly running and she was in constant pain. Her treating physician observed that her nose was swollen on the left side and was somewhat deviated to the left. A CAT scan revealed a minimally displaced fracture along the bridge, as well as a build-up of fluid in the sinus of the left cheek, whiсh had become infected resulting in sinusitis. Because the fluid was only on one side and on the same side that the nose was displaced, her doctor opined that the fluid was “most likely blood because of the trauma to the nose.” The doctor testified that, if left untreated, the infection could develop into life-threatening conditions such as blood poisoning or meningitis. The doctor further testified that chances were “very, very great” that when the fracture healed, there would be new bone fоrmation that would narrow the nasal passage of Williams’ nose. At the time of trial, over one year later, Williams could still feel a bump on her
This evidence, viewed in the light most favоrable to the prosecution, supports the verdict. A broken nose, swollen discolored eyes, clogged breathing passages and a sinus infection constitute severe impairment to the health or function of the body. See Kiluk,
The defendant next argues that the trial court erred by not granting a mistrial because of improper statements made by the prosecutor during closing argument. “A trial court’s denial of a mistrial will not be overturned absent an [unsustainable exercise] of discretion, due to the trial court’s unique ability to gauge the reaction of the jury to any potentially prejudicial information.” State v. Giordano,
“An improper comment made by the State during closing argument may, under certain circumstances, constitute prosecutorial overreaching requiring a new trial.” State v. Bujnowski,
In Bujnowski, we held that there was prosecutorial overreaching when, in his closing argument, the prosecutor repeatedly stated his personal opinion about the veracity of witness testimony and continued to assert his opinion as to the credibility of witnesses and the guilt of the accused after the trial court admonished him for doing so. Id. at 3-5. In State v. Dowdle,
[Defense counsel’s] job is to get their client off. [The jury’s] job is to find the truth. [The State’s] job is to present to you all the evidence, present the truth to you. [Defense counsel’s] job is to obscure the truth if it hurts their client, to distract you from the truth.
Id. at 346-47.
Here, during closing argument defense counsel stated: “[L]awyers can bicker over everything — anything pretty much forever. It’s what we’re trained to do; it’s what we’re paid to do.” In response, the prosecutor later stаted: “There is a lot of talk about what lawyers do. They’re hired to bicker. They’re paid to bicker; they’re paid to argue. The State is here to do one thing, ladies and gentlemen. To seek justice.” Defense counsel objected, arguing that in making these statements and displaying a piece of paper containing the words “guilty” and “justice,” the prosecutor was “vouching for his case” and impugning the integrity of defense counsel. The trial court overruled the objection and denied defensе counsel’s request for mistrial.
“Improper argument, while objectionable in any case, is especially troublesome when made by a prosecutor____” Boetti,
Finally, the defendant argues that the trial court erred when it imposed an extended term of imprisonment. Spеcifically, the defendant
Under the sentencing statute then in effect, the trial court could imposе an extended term of imprisonment if it found that the defendant “[h]as twice previously been imprisoned, in this state or in any other jurisdiction, on sentences in excess of one year.” RSA 651:6, 1(c) (1996) (amended 2003). In applying the statute, the trial court must make two findings: (1) two prior imprisonments, resulting from, (2) sentences in excess of one year. State v. Kiewert,
At sentencing, the State introduced certified copies of records from the State of Connecticut as proof of the defendant’s two prior periods of imprisonment on sentences in excess of one year. Based upon this evidence, the trial court imposed an enhanced sentence of six to twenty years in State prison.
To establish the first period of imprisonment on a sentence in excess of one year, the State offered several documents relating to the defendant’s murder conviction. One document was a certified copy of a conviction from the State of Connecticut Superior Court. The document indicated that the defendant was convicted of felony murder on March 1, 1983, and was sentenced to twenty-five years in prison. Another document was the mittimus for the murder conviction, whiсh showed a disposition date of April 15, 1983, and a “total effective sentence” of twenty-five years. The mittimus also contained the signature of a Sheriffs Office representative, which indicated that the defendant was delivered to Somers Correctional Facility to serve the sentence.
The certified conviction and the mittimus clearly established that the defendant was sentenced to twenty-five years on the murder conviction. In addition, the mittimus established that the defendant was taken to the correctional facility to serve the imposed sentence. Accordingly, the evidence supported the finding that the defendant had been previously imprisoned on a sentence in excess of one year.
In order to establish the seсond period of imprisonment, the State offered a certified copy of a criminal record from the Connecticut State Police. The criminal record contained an entry for a burglary charge with
This evidence, while suggestive of imprisonment, is insufficient to support a finding that the defendant was imprisoned on a sentence in excess of one year for the burglary charge. Unlike the mittimus for the murder charge, there is no evidence that the defendant was taken to a correctional facility. Because it does not establish that the defendant was in fact imprisoned on that sentenсe, the State did not meet its burden to prove two prior periods of imprisonment on sentences in excess of one year by a preponderance of the evidence. We thus vacate the trial court’s imposition of the extended term of imprisonment and remand for resentencing.
Affirmed in part; vacated in part; and remanded for resentencing.