State v. Donohue, No. 2002-641 (N.H. 10/24/2003), 2002-641.

• Decision Date: 24 October 2003
• Docket Number: No. 2002-641.,2002-641.
• Parties: THE STATE OF NEW HAMPSHIRE v. ROBERT DONOHUE.
• Court: New Hampshire Supreme Court

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THE STATE OF NEW HAMPSHIRE v. ROBERT DONOHUE.

No. 2002-641.

Supreme Court of New Hampshire.

Belknap.

Argued: September 11, 2003.

Opinion Issued: October 24, 2003.

1. Conspiracy—Criminal Conspiracy—Generally

Conspiracy punishes the agreement to commit or cause the commission of a crime.

2. Conspiracy—Criminal Conspiracy—Elements in General

To establish liability for conspiracy, the State must demonstrate that the defendant had a true purpose to effect the criminal result.

3. Conspiracy—Criminal Conspiracy—Elements in General

In order to be guilty of conspiracy, a person must engage in purposeful behavior, even if the underlying crime requires a lower mens rea.

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4. Conspiracy—Criminal Conspiracy—Elements in General

One cannot conspire to commit a crime where mere recklessness or negligence with respect to a result element suffices for the actor's culpability.

5. Conspiracy—Criminal Conspiracy—Elements in General

Conspiracy is an inchoate crime that does not require the commission of the substantive offense that is the object of the conspiracy, but rather fixes the point of legal intervention at the time of the agreement to commit a crime coupled with an overt act in furtherance of the conspiracy. RSA 629:3.

6. Conspiracy—Criminal Conspiracy—Elements in General

A person cannot be guilty of conspiracy to commit a reckless assault because an assault, like a reckless manslaughter, is controlled by the resulting harm.

7. Conspiracy—Criminal Conspiracy—Indictment

The State cannot charge a person for conspiracy to commit a reckless second-degree assault. RSA 629:3.

Peter W. Heed, attorney general (Laura E. B. Lombardi, assistant attorney general, on the brief, and Stephen Fuller, senior assistant attorney general, orally), for the State.

Landya McCafferty, assistant appellate defender, of Dover, on the brief and orally, for the defendant.

NADEAU, J.

The defendant, Robert Donohue, was convicted after a jury trial in Superior Court (Smukler, J.) of reckless second-degree assault and conspiracy to commit second-degree assault. See RSA 626:8 (1996) (amended 2001); RSA 629:3 (Supp. 2002); RSA 631:2 (1996). Donohue appeals only the conspiracy conviction, arguing that the trial court erred in denying his motion to dismiss the indictment on the ground that one cannot conspire to commit reckless second-degree assault. We reverse the conspiracy conviction.

The jury could have found the following facts. At approximately 1:00 a.m. on ...