State v. Alwardt
| Decision Date | 17 August 2012 |
| Docket Number | No. 2011–076.,2011–076. |
| Citation | 164 N.H. 52,53 A.3d 545 |
| Parties | The STATE of New Hampshire v. Bryan ALWARDT. |
| Court | New Hampshire Supreme Court |
Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial in Superior Court (Garfunkel, J.), the defendant, Bryan Alwardt, was convicted of second degree assault and criminal restraint based on accomplice liability principles.1 See RSA 631:2, I(c) (2007 & Supp.2011); RSA 633:2 (2007); RSA 626:8 (2007). On appeal, he argues that the trial court erred in: (1) failing to dismiss the assault charge due to insufficient evidence; (2) failing to dismiss the criminal restraint charge as against the weight of the evidence; (3) not ordering disclosure of all of the victim's counseling records; and (4) prohibiting cross-examination of the victim regarding certain drugs found in her boyfriend's apartment. We affirm.
Viewed in the light most favorable to the State, see, e.g., State v. Sideris, 157 N.H. 258, 263, 951 A.2d 164 (2008), the evidence presented at trial established the following pertinent facts. In 2006, Kelley King often visited her drug dealer, Robert Boudreau, and Boudreau's girlfriend, Stephanie Nutter, at Boudreau's home in Nashua. However, King stopped seeing them at the end of July after Boudreau sexually assaulted her.
Later in 2006 and 2007, King visited friends at an apartment on the second and third floors of 33 Dionne Drive in Manchester. David Storrs, Carl Lynn and his girlfriend, and the defendant lived in the apartment. Michael Hutchins also stayed there from time to time. In April 2007, King began dating Hutchins, and sometimes stayed with him at the apartment. King did not always get along with Hutchins' roommates, including the defendant.
On April 14, 2007, King was at Boudreau's home when several armed men entered the house and robbed, sexually assaulted, and shot at Boudreau. The intruders put a gun to King's head and took her necklace, but she was not otherwise injured and left the apartment a few minutes later. Boudreau believed that King was responsible for the attack.
On May 8, 2007, King was at 33 Dionne Drive. At some point Lynn called Boudreau and told him that King was at the apartment. Boudreau, Nutter, and another friend, Andrea Dunlop, then drove to 33 Dionne Drive. When they arrived, Lynn met them downstairs. Nutter grabbed a baton from the car and Lynn led them upstairs to the third floor porch where the defendant and several other people were standing.
When Boudreau, Nutter, and Dunlop encountered King inside the apartment, Boudreau immediately accused her of setting up the April 14 robbery. When she tried to respond, he punched her in the face and she fell to the floor. Boudreau, Nutter, and Dunlop then repeatedly punched and kicked King, beat her with the baton, and hit her with a gun. As this occurred, Boudreau accused King of knowing who was responsible for the robbery, said he wanted answers, and told her to stop lying. Boudreau also ripped King's necklace off, saying she had to start paying him back for the robbery. When the altercation started, the defendant remained seated drinking a beer.
Neighbors called the police after hearing screams and what sounded like a gunshot coming from the apartment. Several officers arrived shortly thereafter.
When the defendant saw that the police were outside, he shut the windows and shades and told Boudreau and his companions to "choke out" King to keep her quiet. They asked for something with which to tie up King, and the defendant went into another room and came back with tape and ACE bandages. Nutter and Dunlop taped King's ankles and wrists, but the tape kept breaking so the defendant retrieved some electrical cords. The cords were wrapped around King's ankles, wrists, and neck. Nutter and Dunlop stuck their hands in King's mouth in an effort to keep her quiet, and Nutter tried to rip her tongue out with a metal tool given to her by the defendant.
When these efforts were unsuccessful in keeping King quiet, Boudreau picked her up and, with the defendant holding her legs, brought her into the bathroom and tried to close the door. Boudreau continued to assault King in the bathroom and the defendant attempted to put a sock in her mouth. Dunlop hid the baton under the bathroom sink. The defendant told Dunlop to turn on the Jacuzzi to drown out King's screams because the police were trying to enter the apartment; Nutter and the defendant also opened the water faucets and the defendant then left the bathroom.
The defendant went to the third floor porch where he encountered the police, who took him into custody. Thereafter, several officers entered the apartment where they forced the bathroom door open and found King on the floor, with Nutter and Dunlop standing close by and Boudreau trying to hide. King, who was hysterical, had cords, tape, and bandages wrapped around her ankles, wrists, and neck, and was covered in bruises. Boudreau, Nutter, and Dunlop were arrested. As King was being taken to an ambulance, she saw the defendant and said,
When interviewed by the police, the defendant said that he had been in his bedroom when he heard King scream, that when he went upstairs to investigate he saw three people he did not recognize kneeling near the bathroom, and that he then went outside because someone said the police were there.
The defendant first argues that the evidence was legally insufficient to support the jury's finding that he was guilty as an accomplice to second degree assault. To prevail on this claim, the defendant must establish that no rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt. See State v. Young, 159 N.H. 332, 338, 986 A.2d 497 (2009). In reviewing the record to establish if this burden has been met, we do not examine each evidentiary item in isolation, but rather in the context of all the evidence presented. See id. "Circumstantial evidence may be sufficient to support a finding of guilty beyond a reasonable doubt." Id. "Further, the trier [of fact] may draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom." Id.
The defendant was convicted of being an accomplice to second degree assault. RSA 631:2, I(c) makes it a crime to "[r]ecklessly cause [ ] bodily injury to another under circumstances manifesting extreme indifference to the value of human life." The indictment charging the defendant alleged that the bodily injury was caused by "repeatedly" striking King with "hands, feet and objects." Thus, for the defendant to be guilty as an accomplice, the evidence must have been sufficient to establish: (1) that one or more of the principal offenders (Boudreau, Dunlop, and Nutter) caused bodily injury to King by striking her with hands, feet, and objects; (2) that the defendant aided or agreed or attempted to aid the principal offenders in the conduct of striking King with hands, feet, and objects; and (3) that the defendant acted recklessly with extreme indifference to the value of human life regarding the risk that bodily injury to King would be caused by the conduct he aided. See RSA 626:8, III, IV; State v. Rivera, 162 N.H. 182, 188, 27 A.3d 676 (2011) ; State v. Anthony, 151 N.H. 492, 495, 861 A.2d 773 (2004).
The defendant does not dispute that King was assaulted by Boudreau, Dunlop, and Nutter in the manner alleged in the indictment. Rather, he points to the absence of evidence that he either participated in planning the attack or joined in the assault at its outset. He argues that the evidence showed that he assisted Boudreau, Dunlop, and Nutter only in their attempt to keep King quiet when the police arrived on the scene, and asserts that because this conduct occurred after the assault was over, his participation in such activity does not make him an accomplice to the assault itself. We are not persuaded.
The defendant's argument is based on a faulty premise—that the assault charged in the indictment was limited to the striking of King which occurred prior to the time he rendered aid and assistance to the primary assailants. The indictment, however, was not so limited; rather it encompassed bodily injury caused by the "striking with hands, feet and objects" that occurred throughout the criminal episode. And, contrary to the defendant's claim, there was ample evidence that the assault of King was ongoing at the time the defendant began to provide aid and assistance to the principal assailants. For example, King testified that it was while she was being beaten by Boudreau, Dunlop, and Nutter that the defendant told the trio to choke her to stop her from screaming, and "[t]hat's when they asked for stuff to tie me up." King also testified that, after the defendant complied with this request by providing cords, tape, and ACE bandages, Boudreau and one of the women whipped her with the cords. In addition, King said that after the defendant assisted the other assailants in bringing her into the bathroom, Boudreau "repeatedly smashed my head in between the toilet seats," "punch[ed] me in the face, [and] smash[ed] my face off the floor."
In short, based on the evidence, the jury readily could have found that when the defendant provided aid and assistance to Boudreau, Dunlop, and Nutter, their assault on King was not a completed crime, but a work in progress. The evidence also was sufficient to permit a rational fact finder to determine that the defendant could reasonably have foreseen that King would sustain further bodily...
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