State v. Hall, 89-232

• Decision Date: 27 July 1990
• Docket Number: No. 89-232,89-232
• Citation: 133 N.H. 446,577 A.2d 1225
• Parties: The STATE of New Hampshire v. Christopher B. HALL.
• Court: New Hampshire Supreme Court

Page 1225

577 A.2d 1225

133 N.H. 446

The STATE of New Hampshire v. Christopher B. HALL.

No. 89-232.

Supreme Court of New Hampshire.

July 27, 1990.

John P. Arnold, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief), by brief for State.

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

BROCK, Chief Justice.

The defendant appeals from a jury verdict in the Superior Court (Murphy, J.) finding him guilty of the class B felony of disobeying an officer with personal injury resulting to another, RSA 265:4, II. Challenging his conviction, the defendant claims that the trial court erred in failing to instruct the jury on the offense of simple assault, RSA 631:2-a, I(b), which he contends is a lesser-included offense of disobeying an officer with personal injury resulting. For the reasons set forth below, we affirm.

On the evening of July 31, 1988, the defendant, Christopher B. Hall, his brother, Brian, and a companion, Lori, left a bar in Laconia. The defendant had been waiting outside for the others, sitting on his motorcycle in order to "get some air." He attempted to persuade his girl friend to ride on the back of his brother's motorcycle, rather than his own, because he felt "too drunk" to drive. However, the girl friend testified at trial that she "wanted to ride with Chris." She therefore insisted upon riding with the defendant, and the three friends embarked for home, with the defendant and his girl friend riding together, and the defendant's brother riding next to them, alone.

At approximately 1:00 a.m., a Laconia police officer was parked in a marked patrol car in downtown Laconia when he heard the high-pitched sound of approaching motorcycles. After the motorcycles sped past him, traveling at 60-65 m.p.h. in a 30 m.p.h. zone, the officer gave chase, activating all of the emergency equipment on his cruiser, including the siren. The drivers of the motorcycles looked back at the officer and then accelerated to 75 m.p.h.

The police officer notified police headquarters that he was pursuing two motorcycles in a high speed chase and was approaching an intersection known as "Busy Corner." According to the officer's testimony, the motorcycles reached the intersection when the street light was red and the northbound route "looked like a tunnel of blue lights of cruisers." Although both motorcycles went through the red light, one pulled over immediately thereafter, while the other, operated by the defendant, made a sharp left turn.

A police cruiser followed the defendant in close pursuit, passing other vehicles at 95 m.p.h., until eventually the defendant turned onto Blueberry Lane. There, his motorcycle crossed the road onto the soft shoulder and hit a brick pillar, throwing the defendant and his passenger into a nearby woods. The defendant suffered a gash under his eye, and his companion suffered a broken leg.

At trial, the defendant requested a jury instruction on the offense of simple assault by recklessly causing bodily injury to another, but the court denied his request, instructing the jury only on the charged offense of disobeying an officer. The defendant's sole contention on appeal is that the jury should have been permitted to find him guilty of the lesser offense of assault, and he argues that the court erred in refusing to give the requested instruction. We disagree.

The only issue we consider is whether simple assault under RSA 631:2-a, I(b) can properly be classified as a lesser-included offense of disobeying an officer under RSA 265:4, II. In relation to a charged crime, a lesser-included offense is one which "must necessarily be included" in the greater offense. State v. O'Brien, 114 N.H. 233, 235-36, 317 A.2d 783, 784 (1974). A lesser offense is necessarily included in a charge of the greater "if the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense." State v. King, 105 N.H. 47, 48, 192 A.2d 603, 604 (1963) (citation omitted); see also State v. Mallar, 127 N.H. 816, 820, 508 A.2d 1070, 1072-73 (1986); State v. Cimino, 126 N.H. 570, 576, 493 A.2d 1197, 1202 (1985); State v. Merski, 123 N.H. 564, 567, 465 A.2d 491, 493 (1983). Accordingly, this court has long adhered to an elements test for defining lesser-included offenses, whereby one offense is necessarily included in another only when the elements of the lesser offense form a subset of the elements of the larger, charged offense. Cf. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989) (adopting the elements approach under Federal Rules of Criminal Procedure 31(c)).

Moreover, as a separate and independent prerequisite, the evidence adduced at trial must provide a rational basis for a finding of guilt on the lesser offense rather than the greater offense. State v. Cameron, 121 N.H. 348, 350, 430 A.2d 138, 139 (1981); State v. Boone, 119 N.H. 594, 597, 406 A.2d 113, 114 (1979). Our cases clarify that a defendant is entitled to a jury instruction on a lesser-included offense only "when a conviction as to the lesser offense would be compatible with the evidence at trial." Nichols v. Helgemoe, 117 N.H. 57, 60, 369 A.2d 614, 617 (1977); see also State v. Berry, 124 N.H. 203, 206, 470 A.2d 881, 883 (1983); State v. Howland, 119 N.H. 413, 417, 402 A.2d 188, 191 (1979).

In determining whether the first prerequisite, the elements test, has been met, it is not enough that the evidence offered by the prosecution to prove the charged offense would also be sufficient to prove the lesser...