State v. Germain

• Decision Date: 05 November 2013
• Docket Number: No. 2012–145,2012–145
• Citation: 79 A.3d 1025,165 N.H. 350
• Parties: The STATE of New Hampshire v. Guilbert P. GERMAIN
• Court: New Hampshire Supreme Court

165 N.H. 350

79 A.3d 1025

The STATE of New Hampshire

v.Guilbert P. GERMAIN

No. 2012–145

Supreme Court of New Hampshire.

Argued: April 17, 2013

Opinion Issued: November 5, 2013

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, Guilbert P. Germain, appeals his conviction for criminal threatening with a deadly weapon, see RSA 631:4 (Supp.2012), following a jury trial in the Superior Court (McNamara, J.).We affirm.

The jury could have found the following facts. In 2011, the defendant was an acquaintance of Todd Calley (Todd). Todd's brother, Josh Calley (Josh), and Josh's then-girlfriend, D.S., were acquainted with the defendant because all three had attended Concord High School, although they were not in the same class.

On the afternoon of February 22, 2011, Todd was visiting the apartment in Concord where his mother lived with Josh, their sister, and their twelve-year-old brother T.C. D.S. was also present. While D.S. was in the living room with Josh and T.C., the defendant entered through the front door and asked where Todd was, and also asked, "Where's my money?" Although Todd was in the kitchen, Josh told the defendant Todd was not there, as Todd had asked him to do if the defendant were to come to the apartment. Todd's cellular telephone then rang in the kitchen, and Josh thought that the defendant must have known that Josh had lied, because "everyone knows Todd's ringtone."

After repeating his question about Todd, the defendant grew angry and pulled a silver and black gun from the back of his waistband. He pointed it at Josh's head and then struck Josh in the face with either the gun or his hand holding the gun. Josh briefly "blacked out," and a small mark was subsequently visible near his left eye. D.S. grabbed Josh and yelled for Todd, who eventually came out of the kitchen with his hands up, telling the defendant, "Let's get out of the house. You need to leave." At the same time, T.C. ran upstairs to where his mother was located, and she called 9–1–1. Police obtained written statements from T.C., Josh, and D.S. Based upon their investigation, a warrant was issued for the defendant's arrest.

The following day, the defendant was apprehended in Concord. He told the arresting officers that he had a gun, and they found a silver and black .40 caliber Ruger SR40 semiautomatic pistol (the Ruger) in his waistband.

The defendant was charged with assault and criminal threatening with a deadly weapon. At trial, T.C. testified that the gun he saw the defendant holding during the incident in the apartment had a silver top and black grip, and looked like the gun in evidence, the Ruger. D.S. described the gun she had seen the defendant hold as "silver," more of a handgun than a long gun, and not a revolver. Both said that the defendant took the gun from his waistband, cocked it, and put it to Josh's head.

Josh testified that the gun was "black on the handle and silver on the top," not a revolver, and that it resembled a pellet gun he had once owned. He stated repeatedly that he did not know whether the gun was real or fake. Because he did not "feel it" when he was struck, Josh hypothesized that the gun might have been a pellet gun, or that the defendant might have used his hand, rather than the gun, when he struck him. He also testified, however, that he "blacked out" and did not remember anything after the defendant cocked the gun and struck him, until he awoke with D.S. holding him.

On cross-examination, Josh observed that the defendant's gun cocked in the same manner as did the pellet gun that he had owned and he agreed that it "looked fake." He also testified that he was farsighted and not wearing his glasses at the time, so he saw the gun only for "like a blurry two seconds." On redirect examination, he agreed that the gun he saw the defendant holding "look[ed] just like" the gun in evidence, the Ruger. He added on redirect that he had initially told the police it was a pellet gun because he did not want T.C., who was present at the time, to be afraid, but that he revised his statement when Todd—who did not testify—told him that the gun was real.

After the State rested, the defendant moved to dismiss the criminal threatening charge, arguing that the evidence was insufficient to prove that he had used a firearm rather than a pellet gun. The court denied the motion. The defendant was convicted of criminal threatening and acquitted of assault. This appeal followed.

On appeal, the defendant argues that the evidence was insufficient to prove that the gun he displayed in the apartment was a firearm, rather than a pellet gun. He contends that there was no direct evidence that the gun was a firearm, and that to be sufficient, circumstantial evidence must foreclose all other rational conclusions. He asserts that the circumstantial evidence was insufficient to exclude the rational conclusion that he brandished a pellet gun rather than a firearm.

When considering a challenge to the sufficiency of the evidence, "we objectively review the record 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 therefrom in the light most favorable to the State." State v. Saunders, 164 N.H. 342, 351, 55 A.3d 1014 (2012) (quotation and ellipsis omitted). "It is the defendant who bears the burden of demonstrating that the evidence was insufficient to prove guilt." Id. (quotation and brackets omitted). "In reviewing the evidence, we examine each evidentiary item in the context of all the evidence, not in isolation." State v. Crie , 154 N.H. 403, 406, 913 A.2d 767 (2006). "Circumstantial evidence may be sufficient to support a finding of guilty beyond a reasonable doubt." Id. "Further, the trier 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.

A person is guilty of criminal threatening when, "[b]y physical conduct, the person purposely places or attempts to place another in fear of imminent bodily injury or physical contact." RSA 631:4, I(a). If the person uses a "deadly weapon," as defined in RSA 625:11, V (2007) to do so, then criminal threatening is a class B felony. RSA 631:4, II(a)(2). " ‘Deadly weapon’ means any firearm, knife or other substance or thing which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury." RSA 625:11, V. We have ruled that a pellet gun is not a firearm. State v. Beaudette, 124 N.H. 579, 581, 474 A.2d 1012 (1984). The State assumed, for purposes of this appeal, that it had to prove that the defendant used a firearm rather than a pellet gun. Because neither party has argued that a pellet gun is a deadly weapon, we assume, without deciding, that the defendant is correct that brandishing a pellet gun, rather than a firearm, would preclude his conviction for felony criminal threatening. Cf. State v. Schulz, 164 N.H. 217, 226–27, 55 A.3d 933 (2012) (where felon possessed BB guns, and State did not contend that BB guns were "firearms" or that they could otherwise be considered deadly weapons, no probable cause existed to continue search under warrant based upon allegations of felon in possession of a deadly weapon).

The defendant first argues that the State presented only circumstantial evidence to establish that the gun that he displayed in the apartment was a firearm. The defendant contends that there was no direct evidence of this element, despite the testimony of the State's three eyewitnesses, because "[a]ll three [witnesses] testified that [the defendant] displayed a gun, but none testified that the gun was a firearm." We assume, without deciding, that the eyewitnesses' testimony, including that the gun the defendant displayed resembled the Ruger, constituted circumstantial, rather than direct, evidence that the gun was a firearm. But see State v. Kelley, 159 N.H. 449, 454, 986 A.2d 620 (2009) (defining "direct evidence" as "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," such as "the testimony of a person who claims to have personal knowledge of facts about the crime charged such as an eyewitness" (quotations omitted)).

The parties' arguments center on our longstanding rule that circumstantial evidence must foreclose all rational conclusions other than guilt. See, e.g., State v. Bird, 122 N.H. 10, 17, 440 A.2d 441 (1982) ("It is well established in this State that circumstantial evidence may be sufficient to support a conviction if it excludes all other rational conclusions."). The State argues that this rule should be abandoned, but that in any case it does not apply when at least one element of a charged crime is supported by direct evidence. The defendant counters that the rule should not be abandoned, that it applies here, and that it requires reversal of his conviction. Because our circumstantial evidence rule has apparently caused confusion, see Saunders, 164 N.H. at 349–52, 55 A.3d 1014 (erroneous jury instruction), we take this opportunity to clarify it.

"Due process requires that the State prove each element of the crime charged beyond a reasonable doubt." Id. at 349, 55 A.3d 1014 (quotation omitted); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). Despite this constitutional requirement, "[t]he [Federal] Constitution neither prohibits trial courts from defining reasonable...