State v. Fournier, 82-471

• Decision Date: 31 August 1983
• Docket Number: No. 82-471,82-471
• Citation: 465 A.2d 898,123 N.H. 777
• Parties: The STATE of New Hampshire v. David P. FOURNIER.
• Court: New Hampshire Supreme Court

Page 898

465 A.2d 898

123 N.H. 777

The STATE of New Hampshire v. David P. FOURNIER.

No. 82-471.

Supreme Court of New Hampshire.

Aug. 31, 1983.

Gregory H. Smith, Atty. Gen. (John A. Malmberg, Asst. Atty. Gen., on the brief, and Michael A. Pignatelli, Asst. Atty. Gen., orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

BOIS, Justice.

The defendant was convicted in district court of a violation and four misdemeanors, including theft by unauthorized taking, see RSA 637:3, for allegedly breaking into a van. He appealed the theft conviction to superior court and, following a trial de novo, was found guilty by a jury. The Superior Court (Goode, J.) increased the district court sentence from six months in the County House of Correction, and one year conditional discharge, to twelve months in the House of Correction with six months suspended, and one year probation. On appeal, the defendant challenges the trial court's jury instructions as well as the increase in his sentence. We affirm.

The trial judge instructed the jury that the State must prove every element of the offense beyond a reasonable doubt, but that "[i]t is not necessary that each fact relied on by the State be established for you beyond a reasonable doubt." The defendant argues that this instruction constitutes an addition to our model charge on reasonable doubt, in violation of State v. Wentworth, 118 N.H. 832, 838-39, 395 A.2d 858, 862-63 (1978). This, he argues, combined with the court's failure to distinguish between an "element" and a "fact," confused the jury and thus requires a new trial.

In examining the propriety of the court's instruction, we must view the disputed statement within the context of the overall charge. State v. Allard, 123 N.H. 209, 459 A.2d 259, 263 (1983); State v. Bird, 122 N.H. 10, 15, 440 A.2d 441, 443 (1982). The record before us reveals that the trial judge properly instructed the jury under Wentworth on several occasions that the defendant was presumed innocent and that the State had the burden of proving each element of the offense beyond a reasonable doubt. The elements of the theft offense were described three times during the instructions in language nearly identical to that of our statute, which provides that a defendant is guilty if he exercises unauthorized control over the property of another with a purpose to deprive him of that property. RSA 637:3, I.

The court's statement that the State need not prove each fact beyond a reasonable doubt was correct. "It is settled law that the burden is on the State to establish the defendant['s] guilt beyond a reasonable doubt, but this burden does not apply to every evidentiary fact in the case." State v. Nelson, 103 N.H. 478, 486, 175 A.2d 814, 820 (1961), cert. denied, 369 U.S. 879, 82 S.Ct. 1153, 8 L.Ed.2d 282 (1962).

For these reasons, we conclude that the instructions in their entirety clearly informed the jury as to the elements of the offense and the requirement that they be proved beyond a reasonable doubt. See State v. Zysk, 123 N.H. 481, ---, 465 A.2d 480, 483 (1983); State v. Langdon, 121 N.H. 1065, 1068, 438 A.2d 299, 301 (1981).

The defendant also argues that the court's instruction on the elements of accomplice liability constituted reversible error because it failed to include sufficient reference to the requisite mens rea. A reading of the trial transcript reveals that the defendant objected and took an exception to the charge on accomplice liability,...