State v. Cavanaugh, 122920 NHSC, 2019-0608

Docket Nº:2019-0608
Opinion Judge:HICKS, J.
Party Name:THE STATE OF NEW HAMPSHIRE v. BRENNA CAVANAUGH
Attorney:Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State. Law Office of Michael J. Zaino, PLLC, of Hampton (Michael J. Zaino on the brief and orally), for the defendant.
Judge Panel:BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
Case Date:December 29, 2020
Court:Supreme Court of New Hampshire

THE STATE OF NEW HAMPSHIRE

v.

BRENNA CAVANAUGH

No. 2019-0608

Supreme Court of New Hampshire, Rockingham

December 29, 2020

Argued: October 28, 2020

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Law Office of Michael J. Zaino, PLLC, of Hampton (Michael J. Zaino on the brief and orally), for the defendant.

HICKS, J.

The defendant, Brenna Cavanaugh, appeals her convictions by a jury of being an accomplice to attempted first degree assault, see RSA 629:1 (2016); RSA 631:1, I(b) (2016); RSA 626:8, II(c), III(a) (2016), and an accomplice to criminal mischief, see RSA 626:8, II(c), III(a); RSA 634:2, I (2016) (amended 2020), :2, II-a (2016). On appeal, she argues that the evidence was insufficient for the jury to have convicted her and that the Superior Court (Wageling, J.) erred by: (1) declining her request for a self-defense jury instruction; (2) precluding her from introducing extrinsic evidence of the victim's prior inconsistent statements; (3) allowing certain of the victim's statements into evidence under the excited utterance exception to the hearsay rule; and (4) denying her request to recall a witness. We reverse and remand.

I. Facts

The jury could have found the following facts. In the very early morning hours of August 18, 2018, the defendant's teenaged daughter invited the victim, who was then sixteen years old, to a party. The victim and the daughter were friends, and the victim believed that the party was at the defendant's house.

Although the victim lacked a driver's license, he took his father's truck without permission and drove it to the defendant's home. He parked the truck across the street, approximately five feet in front of a telephone pole. He crossed the street and entered the defendant's home through the unlocked front door. Upon entering, he went up a staircase to the living room and discovered that there was no party and the defendant's daughter was nowhere to be found. The victim whispered the daughter's name and, hearing no response, prepared to leave. As he was doing so, he stepped on a creaky floorboard and heard a female voice state, "Someone's here." In response, the victim quickly ran from the home and to his father's truck because he was scared.

Hearing the creaky floorboard, the defendant woke up and told her boyfriend that there was someone inside the house and to get his gun. After hearing the front door shut, the defendant ran down two flights of stairs to chase after the victim. Her boyfriend followed soon thereafter armed with a handgun.

Once outside, the defendant saw the victim inside the truck, which had its engine running and its lights on. She crossed the street and stood approximately one foot away from the front of the truck so that she could see its license plate number. As he prepared to drive away, the victim heard the defendant yell, "shoot, shoot" or "shoot him, shoot him." He then heard a very loud noise and saw a puff of smoke. Realizing that someone was shooting at him, the victim put the truck into reverse, striking the telephone pole. He then put the truck in drive and maneuvered out of the parking space. As the victim drove, he heard more gunshots. He drove to a nearby gas station, promptly threw up, and drove home.

Officers involved in a traffic stop approximately 200 yards away from the defendant's home heard six gunshots. After the defendant called 911 to report that there had been an intruder in her home and that her boyfriend had shot at the intruder's vehicle, the officers responded to her residence. Meanwhile, the victim returned to the scene with some friends to speak with the officers about the incident. It was later determined that the truck was damaged by three different bullets. Two of the bullets left visible bullet holes. There was also damage to the rear signal light on the truck's passenger side.

In November 2018, a grand jury indicted the defendant for being an accomplice to attempted first degree assault and criminal mischief. In April 2019, a grand jury indicted her for criminal solicitation to commit first degree assault and reckless conduct with a deadly weapon. The jury found her not guilty of the two criminal solicitation charges, but convicted her of the two charges of being an accomplice. This appeal followed.

II. Sufficiency of the Evidence

We first consider the defendant's arguments that the evidence was insufficient to convict her of being an accomplice to attempted first degree assault and criminal mischief. A challenge to the sufficiency of the evidence raises a claim of legal error; therefore, our standard of review is de novo. State v. Folley, 172 N.H. 760, 766 (2020). When considering such a challenge, we objectively review the entire record, including any evidence presented by the defendant, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, considering all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State. Id. The trier of fact may draw reasonable inferences from facts proved as well as from facts found as the result of other inferences, provided they can be reasonably drawn therefrom. State v. Saintil-Brown, 172 N.H. 110, 117 (2019). We examine each evidentiary item in the context of all the evidence, and not in isolation. Id. The defendant has the burden of demonstrating that the evidence was insufficient to prove guilt. Id.

A. Accomplice to Attempted First Degree Assault

We first address the charge of accomplice to attempted first degree assault, which required the State to prove, beyond a reasonable doubt, that the defendant, acting with the purpose that the crime of first degree assault be committed, and acting in concert with or aiding her boyfriend, caused "six bullets to be discharged by means of a deadly weapon, a firearm, in the direction of [the victim]," which "under the circumstances that [she] believed them to be constituted a substantial step towards the commission of the crime" of first degree assault. See RSA 626:8, III(a) (defining elements of accomplice liability); RSA 629:1, I (defining an attempt to commit a crime); RSA 631:1, I(b) (defining first degree assault by means of a deadly weapon).

The defendant asserts that the State failed to produce any direct evidence showing that her actions aided her boyfriend in causing six bullets to be discharged from his firearm. She further argues that the circumstantial evidence introduced by the State was insufficient because "an alternative reasonable conclusion consistent with innocence exists." See Saintil-Brown, 172 N.H. at 117 (discussing the defendant's burden when the evidence as to one or more elements of an offense is solely circumstantial). The defendant contends that her boyfriend "could have discharged the firearm for any number of reasons, none of which were impacted by [her] actions."

We agree with the State that the evidence on this element was not solely circumstantial, but rather included both direct and circumstantial evidence. See id. at 117-18. "Direct evidence is evidence which, if accepted as true, directly proves the fact for which it is offered, without the need for the factfinder to draw any inferences." State v. Kelley, 159 N.H. 449, 454 (2009) (quotation omitted). Direct evidence includes "the testimony of a person who claims to have personal knowledge of facts about the crime charged such as an eyewitness." Id. (quotation omitted). In this case, the defendant's testimony regarding her actions and her observations of her boyfriend's actions constitutes direct evidence. When, as here, the proof involves both direct and circumstantial evidence, a sufficiency challenge must fail if the evidence, including the jury's credibility determinations, is such that a rational trier of fact could find guilt beyond a reasonable doubt, even if the evidence would support a rational conclusion other than guilt if the jury had resolved credibility issues differently. Saintil-Brown, 172 N.H. at 117-18.

Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, we conclude that it was sufficient for a rational trier of fact to have found, beyond a reasonable doubt, that the defendant acted in concert with or aided her boyfriend in causing six bullets to be discharged from his firearm. The jury heard evidence that the defendant's boyfriend grabbed his gun after she told him to do so. As well, the jury heard evidence that the defendant chased after the victim after she heard him leave the house, and that her boyfriend followed soon thereafter. The jury also heard evidence that after the defendant yelled at her boyfriend to "shoot," the victim heard a very loud noise, saw a puff of smoke, and realized that someone was shooting at him. The jury heard the defendant's 911 call to the police in which she identified her boyfriend as the only person who fired a gun during the incident, as well as her police interview in which she said that her boyfriend fired approximately four rounds of ammunition "towards the [victim's] tire area." In addition, a police officer who responded to the scene testified that the victim's boyfriend identified himself as the shooter. Six shell casings were found on the ground near the telephone pole into which the victim had driven the truck. From this evidence and the reasonable inferences therefrom, viewed in the light most favorable to the State, a rational trier of fact could have found, beyond a reasonable doubt, that the defendant acted in concert with or aided her boyfriend in causing six bullets to be fired from his firearm.

B. Accomplice to...

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