State v. Chalpin , 2024 N.H. 36 ( 2024 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
Case Nos. 2019-0413
2020-0573
2022-0108
2022-0191
Citation: State v. Chalpin, 2024 N.H. 36THE STATE OF NEW HAMPSHIRE
v.
GABRIEL CHALPIN
Argued: November 14, 2023
Opinion Issued: July 12, 2024
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for
the State.
Reis & O’Keefe, PLLC, of Portsmouth (James B. Reis on the brief and
orally), for the defendant.
DONOVAN, J.
[¶1] The defendant, Gabriel Chalpin, appeals his convictions, following a
jury trial in the Superior Court (Brown, J.), on one count of first degree assault,
enhanced for manifesting exceptional cruelty or depravity in inflicting serious
bodily injury, see RSA 631:1, I(a) (2016); RSA 651:6, I(c) (2016), and one count
of second degree assault for recklessly causing bodily injury to another under
circumstances manifesting extreme indifference to the value of human life, see
RSA 631:2, I(c) (2016). He argues that the trial court erred by: (1) providing the
jury with an inadequate definition of the word “cruelty”; (2) determining that
there was sufficient evidence to prove, with respect to the enhanced first degree
assault charge, that the defendant “manifested exceptional cruelty or depravity
in inflicting serious bodily injury” on the victim; (3) determining that there was
sufficient evidence to prove, with respect to the second degree assault –
extreme indifference charge, that the defendant acted “under circumstances
manifesting extreme indifference to human life”; and (4) determining that there
was sufficient evidence to prove that the defendant committed two separate
acts of assault.
[¶2] The State cross-appeals, arguing that the trial court erred in
determining that there was insufficient evidence to prove four separate assault
convictions. We conclude that: (1) the jury instruction on the definition of
“cruelty” was sustainable; (2) there was sufficient evidence to sustain both the
enhanced first degree assault and second degree assault – extreme indifference
convictions; and (3) there was sufficient evidence to support four separate
assault convictions. Accordingly, we affirm in part, reverse in part, and
remand.
I. Facts
[¶3] The jury could have found the following facts. The defendant and
the victim began a romantic relationship in late 2015 and started living
together in October 2017. On the evening of February 2, 2018, after returning
home from seeing a movie, the victim went to bed while the defendant watched
television in the living room. Sometime after the victim went to bed, the
defendant woke the victim up, and, once awake, the victim expressed a desire
to go outside to smoke a cigarette, but the defendant did not allow her to do so.
[¶4] When the victim attempted to leave the bed, the defendant began
restraining her from behind while she was lying down.1 The victim “struggled
to try to get away from him,” but the defendant “grabbed tighter” and “started
putting his arm around [the victim’s] neck,” causing her to have trouble
breathing. Eventually, the victim and the defendant slid off the bed and fell
onto the floor. From there, the defendant “grabbed [the victim] by the hair and
[dragged her] into the main room of the house,” pulling out a “large chunk” of
her hair in the process. Once in the main room, the defendant started hitting
1 The record suggests that the defendant was angry with the victim due to his jealousy toward the
victim’s prior romantic partners and male friends, which was exacerbated by the defendant’s
consumption of alcohol and prescription medication.
2
the victim “[p]retty much everywhere,” though mostly on the “torso, ribs, [and]
legs.”
[¶5] Throughout the night, the defendant hit the victim on at least four
separate occasions. In particular, the victim recalled that, during the course of
the night, the defendant delivered what the victim believed to be a “liver shot”
when the victim and the defendant were standing by the back door. The
defendant, who was a trained boxer, had previously told the victim that a “liver
shot” is a technique that boxers use to incapacitate an opponent for about ten
seconds. In addition, the victim recalled that when she was sitting on the love
seat with her knees to her chest “trying to protect [herself],” the defendant
approached her and punched her directly on a surgical incision on the left side
of her body that was still healing from a recent procedure.
[¶6] After the incision strike, the victim fled the house wearing only a
torn long-sleeve t-shirt and socks. Not knowing where to go at that time of
night, and because it was “very cold” and dark outside, the victim returned to
the house. While she was walking up the stairs and across the deck that led to
the back door, the defendant punched her in the nose. Eventually, the
defendant decided that it was time for them to go to bed. When they got into
bed, the defendant hit the victim again “in [the victim’s] right ribs.”
[¶7] On February 4, the victim went to an urgent-care facility where staff
recommended that she go to the hospital. The victim drove herself to a nearby
hospital, where she was diagnosed with numerous injuries, including collapsed
lungs, eight fractured ribs on both sides of her body, a broken nose, and a
fractured spine.
[¶8] The defendant was indicted on four counts of first degree assault,
enhanced for manifesting exceptional cruelty or depravity in inflicting serious
bodily injury on the victim, see RSA 631:1, I(a); RSA 651:6, I(c), four alternative
counts of second degree assault for causing serious bodily injury, see RSA
631:2, I(a) (2016), and four alternative counts of second degree assault for
causing bodily injury under circumstances manifesting extreme indifference to
the value of human life, see RSA 631:2, I(c). For each variant of assault, the
indictments alleged that the defendant caused either serious bodily injury or
bodily injury in the form of a fractured spine, a fractured rib, a fractured nasal
bone, or pneumothorax of the lung — otherwise known as a collapsed lung.
[¶9] In March 2019, the court held a five-day jury trial. Witnesses for
the State included the victim and several medical providers who treated the
victim at the hospital. The defendant testified on his own behalf. At the close
of evidence, when discussing jury instructions, the defendant asked the court
to provide the jury with a definition of the word “cruelty” based upon the
definition of “cruel” set forth in State v. Morehouse, 120 N.H. 738, 744 (1980).
The court initially declined to provide a definition. During deliberation, the
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jury issued a question regarding the appropriate definition of the word
“cruelty.” The defendant again requested the definition from Morehouse, but
the court declined and instead provided the definition of “cruelty” from Black’s
Law Dictionary.
[¶10] The jury convicted the defendant on two counts of enhanced first
degree assault, six counts of second degree assault, and two lesser charges of
simple assault. The court sentenced the defendant on two counts of enhanced
first degree assault with respect to the lung and rib injuries, and two counts of
second degree assault – extreme indifference with respect to the spine and
nasal bone injuries. The remaining convictions were merged for sentencing
purposes.
[¶11] In July 2019, the defendant moved to dismiss all but one of the
charges against him based upon the doctrine of double jeopardy, or, in the
alternative, moved for a new sentencing hearing. The State objected. The
court issued a written order in April 2020 denying the defendant’s motion.
After his counsel withdrew, the defendant, representing himself, subsequently
filed a series of motions challenging the court’s decision. Following a hearing
in December, the court issued a written order in March 2021 agreeing that the
four sentences violated the defendant’s double jeopardy rights and scheduled
another sentencing hearing. In January 2022, following the hearing, the court
sentenced the defendant on one count of enhanced first degree assault and one
count of second degree assault – extreme indifference. The defendant moved to
reconsider, which the court denied. This appeal and cross-appeal followed.
II. Analysis
A. Definition of “cruelty”
[¶12] The defendant first challenges the trial court’s response to the jury
question asking for a definition of “cruelty.” A response to a jury question is
left to the sound discretion of the trial court. State v. Boudreau, 176 N.H. 1, 6
(2023). We review the court’s response under the unsustainable exercise of
discretion standard. Id. at 6-7. We review the trial court’s answer to a jury
inquiry in the context of the court’s entire charge to determine whether the
answer accurately conveys the law on the question and whether the charge as
a whole fairly covered the issues and law in the case. Id. at 7.
[¶13] The defendant was indicted on four counts of enhanced first degree
assault, all of which alleged that when perpetrating the assault, the defendant
manifested “exceptional cruelty or depravity in inflicting serious bodily injury
to” the victim. See RSA 631:1, I(a); RSA 651:6, I(c). During deliberation, the
jury requested a definition of “cruelty.” Defense counsel suggested that the
court define “cruelty” based upon the definition of “cruel” from Morehouse. See
Morehouse, 120 N.H. at 744 (defining “cruel” as “disposed to inflict pain . . . in
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a wanton, insensate . . . manner” or “given to killing and mangling or to
tormenting”). The court declined and instead provided the following definition
of “cruelty” based upon the definition from Black’s Law Dictionary: “The
intentional and malicious infliction of physical or mental suffering upon living
creatures, particularly human beings. As applied to the latter, the wanton,
malicious and unnecessary infliction of pain upon the body or the feelings and
emotions, abusive treatment, or inhumanity/outrage.” (Quotation omitted.)
See Black’s Law Dictionary 475 (11th ed. 2019).
[¶14] On appeal, the defendant argues that the trial court erred by
refusing to provide the definition set forth in Morehouse. The defendant
essentially contends that we established a controlling definition of “cruelty” in
Morehouse and that the definition from Black’s Law Dictionary is a “diluted
definition” that “lowered the quantum of evidence necessary for the jury to
conclude that [the defendant] ‘manifested exceptional cruelty or depravity.’”
We disagree.
[¶15] The definition of “cruelty” set forth in Morehouse is not mandatory.
See Morehouse, 120 N.H. at 744. When we establish a jury instruction that we
require trial courts to use, we do so explicitly. See, e.g., State v. Wentworth,
118 N.H. 832, 838-39 (1978) (establishing a model jury instruction regarding
the reasonable doubt standard and cautioning “trial judges to avoid attempts
at further defining reasonable doubt”); State v. Aubert, 120 N.H. 634, 635-38
(1980) (concluding that the trial court’s reasonable doubt charge, which added
language to the charge set forth in Wentworth, was “improper,” and requesting
“that trial judges not add to the model charge” established in Wentworth); State
v. Saunders, 164 N.H. 342, 352 (2012) (“[I]n a criminal case that includes
direct evidence, trial courts should not include in instructions to the jury
language indicating that the evidence need not exclude all rational conclusions
other than guilt.”).
[¶16] When a statute does not define a word, we ascribe to the word its
usual and common meaning. See Morehouse, 120 N.H. at 744. Here, the trial
court chose not to use the definition of “cruel” applied by this court more than
40 years ago. Instead, when responding to the jury question, the court used
the definition from Black’s Law Dictionary. See State v. Fischer, 165 N.H. 706,
714 (2013) (“[T]he purpose of the trial court’s charge is to state and explain to
the jury, in clear and intelligible language, the rules of law applicable to the
case.” (quotation omitted)). The trial court acted reasonably in opting to use
the definition from Black’s Law Dictionary, a “universally recognized law
dictionary,” after determining that the definition in Morehouse “creates more
questions than it answers” given that it may “necessitate further definitions of
its component words.” We conclude that the trial court’s instruction on the
definition of “cruelty” is sustainable.
5
B. Sufficient Evidence to Prove Enhanced First Degree Assault and Second
Degree Assault – Extreme Indifference
[¶17] The defendant next argues that there was insufficient evidence to
prove enhanced first degree assault and second degree assault – extreme
indifference. He contends that the wording of the indictments and the jury
instructions only permitted the jury to consider the specific injury alleged in
each indictment when determining whether the defendant manifested
exceptional cruelty or depravity when inflicting serious bodily injury on the
victim, see RSA 631:1, I(a); RSA 651:6, I(c), or manifested extreme indifference
to the value of human life, see RSA 631:2, I(c). Applying this interpretation of
the indictments, the defendant argues that evidence of the specific injuries
alleged in the indictments, without more, was insufficient to prove the
enhancement to the first degree assault charges and the “extreme indifference”
element of the second degree assault charges.
[¶18] As a threshold matter, we disagree with the defendant’s reading of
the indictments. See State v. Nickles, 144 N.H. 673, 679 (2000) (rejecting “the
defendant’s parsing of the indictment”). The indictments for enhanced first
degree assault alleged that the defendant “purposely caused serious bodily
injury to [the victim], his intimate partner at the time of the event, when he
struck her with his hand causing a [fracture to her rib or traumatic
pneumothorax of her lung], manifesting exceptional cruelty or depravity in
inflicting serious bodily injury to [the victim] . . . .” The clause “in inflicting
serious bodily injury” refers to the bodily injury alleged in each indictment. We
agree with the State, however, that it does not logically follow that the full
phrase “manifesting exceptional cruelty or depravity in inflicting serious bodily
injury” means that “the strike from the defendant that resulted in the injury
was the sole circumstance constituting the cruelty or depravity that the
defendant manifested while inflicting the injury.” Indeed, we have consistently
held that, when determining whether a defendant “manifested exceptional
cruelty and depravity” when inflicting death or serious bodily injury on a
victim, the fact finder may look to the “circumstances surrounding the
assault.” State v. Lavallee, 119 N.H. 207, 213 (1979); see also State v.
Woodard, 121 N.H. 970, 973 (1981) (holding that the trial judge “did not err in
considering all of the circumstances surrounding the assault,” including acts
that occurred after the injury).
[¶19] We reach a similar conclusion when considering the indictments
charging the defendant with second degree assault – extreme indifference.
Those indictments allege that the defendant “recklessly caused bodily injury to
[the victim], his intimate partner at the time of the event, under circumstances
manifesting extreme indifference to the value of human life when he struck her
with his hand causing” either a fracture to her nasal bone or a fracture to her
spine. As articulated above, we reject the defendant’s parsing of the
indictments, as each indictment clearly charged the defendant with injuring
6
the victim “under circumstances manifesting extreme indifference to the value
of human life.” (Emphasis added.) We have previously held that it is
“fallacious” to assume that “evidence of extreme indifference must be limited to
the injuries resulting from the actual assaults committed.” State v. Bailey, 127
N.H. 416, 423 (1985) (holding that the statute requires proof that the
“‘circumstances’ of the crime manifest extreme indifference” and that “neither
the statute nor common sense limits the relevant circumstances to the injuries
themselves”). Rather, “an attacker acts with ‘extreme indifference’ when he
inflicts any degree of bodily injury on a victim and when the ‘circumstances’ of
the attack demonstrate a blatant disregard for the risk to the victim’s life.”
Fischer, 165 N.H. at 713 (quotation omitted).
[¶20] The jury instructions for both enhanced first degree assault and
second degree assault – extreme indifference also made clear that, when
considering the exceptional cruelty and extreme indifference elements, the jury
was not limited to considering only the injury alleged in each indictment. With
respect to the enhanced first degree assault charges, the court instructed the
jury that the State must prove that the defendant “manifested exceptional
cruelty or depravity in inflicting serious bodily injury.” When instructing the
jury on the second degree assault – extreme indifference charges, the court
informed the jury that the State must prove that “the bodily injury was inflicted
under circumstances manifesting extreme indifference to the value of human
life.” (Emphasis added.) Neither instruction limited the jury to consider just
the alleged bodily injury when determining whether the defendant manifested
exceptional cruelty or depravity or manifested an extreme indifference to the
value of human life. Moreover, after instructing the jury on the elements of
second degree assault – extreme indifference, the court defined the phrase
“‘under circumstances manifesting extreme indifference to the value of human
life’” to mean that “the [d]efendant’s actions demonstrate a blatant disregard
for the risk to the victim’s life.” This definition permitted the jury to consider
the defendant’s multiple “actions” when determining whether he evinced a
blatant disregard for the risk to the victim’s life.
[¶21] The defendant’s argument that there was insufficient evidence to
prove his enhanced first degree assault and second degree assault – extreme
indifference convictions is premised upon his erroneous interpretation of the
indictments and jury instructions. Given our conclusion that the jury could
consider the circumstances of the entire attack, we reject the defendant’s
argument.
C. Double Jeopardy
[¶22] Lastly, the defendant argues that the trial court erred in
determining that there was sufficient evidence to find that the events of the
attack could be divided into two separate assaults. He contends that the trial
court should have found that the events were all part of one assault. The State
7
cross-appeals, arguing that the trial court erred in determining that there was
insufficient evidence to prove four separate assault convictions. We agree with
the State.
[¶23] In March 2019, the trial court sentenced the defendant on two
counts of enhanced first degree assault for the collapsed lung and the fractured
rib, and two counts of second degree assault – extreme indifference for the
fractured spine and fractured nasal bone. The defendant subsequently moved
to dismiss all but one of the charges against him based upon the doctrine of
double jeopardy. The defendant argued that the sustained injuries were the
result of a single criminal act, and, therefore, the court improperly imposed
multiple sentences for what amounted to a single assault.
[¶24] In an April 2020 order, the court denied the defendant’s motion,
explaining that the defendant’s “assault of the victim involved innumerable
distinct strikes to her body” and that the evidence adduced at trial “supports a
finding that [the victim’s] multiple injuries were caused by multiple distinct
acts.” The court found that “proof of the elements of the charged crimes
required slight but distinct differences in evidence” and, accordingly, there was
no double jeopardy violation.
[¶25] However, after a series of post-conviction motions in which the
defendant continued to argue, in part, that the four convictions violated his
rights against double jeopardy, the trial court, in a March 2021 order,
reconsidered whether the evidence submitted at trial supported the total
number of sentences imposed. The court determined that a criminal act
“‘consists of the sum of discrete actions that together constitute an offense,’”
and that the factors to consider in identifying an “act” include time, location, or
intended purpose. (Quoting State v. Farr, 160 N.H. 803, 809 (2010).)
[¶26] Applying these principles, the court ruled that, based upon the
victim’s testimony, the “events of the night in question can be readily divided
into two separate assaults,” with the first assault occurring from the initiation
of the altercation to the point when the victim fled the house, and the second
assault occurring when the victim returned to the house and the defendant re-
initiated the physical altercation. The court found that there was sufficient
evidence for the jury to conclude that the defendant caused the rib and/or lung
injuries during the first assault and caused the nose injury during the second
assault. The court also found, however, that there was insufficient evidence to
support dividing the events of the evening into more than two assaults because
the jury could not have determined when or where the other injuries occurred
and whether they were the result of one or multiple blows delivered by the
defendant. Accordingly, the court ruled that the record supported the
sentences for one charge of enhanced first degree assault either for the rib or
lung injuries, which occurred during the first assault, and for one charge of
8
second degree assault – extreme indifference for the injury to the nose, which
occurred during the second assault.
[¶27] Resolving the parties’ sufficiency arguments implicates the double
jeopardy provisions of the State and Federal Constitutions. First, we must
determine whether the act of assault can occur over a period of time, as the
defendant argues, or whether the act of assault is a single, discrete action, as
the State argues. Then, we must determine whether the evidence is sufficient
to sustain the relevant number of convictions. Because the issue of double
jeopardy presents a question of constitutional law, our review is de novo.
Fischer, 165 N.H. at 715.
[¶28] When a defendant argues that his or her constitutional rights have
been violated under both the State and Federal Constitutions, we consider the
arguments first under our State Constitution and rely upon federal law only to
aid our analysis. State v. Woodbury, 172 N.H. 358, 367 (2019). Part I, Article
16 of the New Hampshire Constitution and the Fifth and Fourteenth
Amendments to the United States Constitution protect a defendant from being
punished twice for the same offense.
Multiple punishment cases come in two varieties. First, there are the
so-called “double-description” cases, in which the issue is whether two
statutes describe two separate offenses or are merely different
descriptions of the same offense. Second, there are “unit of prosecution”
cases in which the problem is not that the same course of conduct is
proscribed by more than one statute but that a defendant’s continuing
course of conduct is fragmented into more than one violation of a single
statutory provision.
State v. Ramsey, 166 N.H. 45, 51 (2014) (quotations, ellipsis, citations, and
brackets omitted). The defendant asserts, and the State does not dispute, that
this case is of the second variety.
[¶29] As a threshold matter, we conclude that the trial court correctly
determined that the proper unit of prosecution under both RSA 631:1, I(a) and
RSA 631:2, I(c) is the act of causing either serious bodily injury or bodily
injury. In State v. Lynch, we held that the unit of prosecution for the form of
simple assault criminalizing “[r]ecklessly caus[ing] bodily injury to another,”
RSA 631:2-a, I(b) (2016), was “each individual act of causing bodily injury to
another,” Lynch, 169 N.H. 689, 708 (2017). We extended this holding in State
v. Castine to conclude that the unit of prosecution under RSA 631:1, I(d) (2016)
is “each act of knowingly or recklessly causing serious bodily injury to a person
under 13 years of age, not each individual injury.” Castine, 173 N.H. 217, 220
(2020). We held that, to convict on two first degree assault charges under RSA
631:1, I(d), the State was required to prove that the victim’s two injuries, as
charged in two separate indictments, were caused by separate acts. Id.9
Accordingly, we conclude that here, to convict on the two enhanced first degree
assault charges and the two second degree assault – extreme indifference
charges, the State was required to prove that the victim’s collapsed lungs,
fractured spine, fractured nose, and fractured ribs were caused by separate
acts. See id.[¶30] We next consider what constitutes an act of assault. The
defendant argues that a criminal act “‘consists of the sum of discrete actions
that together constitute an offense,’” and that a court should consider time,
location, or intended purpose when identifying an act. (Quoting State v. Ford,
144 N.H. 57, 66 (1999).) The State disagrees, arguing that it “only had to
present evidence sufficient for a rational jury to conclude that each charged
bodily injury was the result of a separate and distinct act of the defendant.”
To determine whether the charged offenses violate the double jeopardy
protections of our State Constitution in unit of prosecution cases, we examine
whether proof of the elements of the crimes as charged will require a difference
in evidence. Id. at 368.
[¶31] As relevant to this appeal, the State charged the defendant with
two counts of enhanced first degree assault and two counts of second degree
assault – extreme indifference. To convict on each assault charge, the State
was required to prove the specific injury alleged in each indictment — either a
fractured rib, traumatic pneumothorax of the lung, fractured nasal bone, or
fractured spine — and that each injury was caused by a separate act. See
Castine, 173 N.H. at 219-20. Provided that the evidence submitted at trial
included dissimilar facts to prove that the defendant committed four separate
assaults, the defendant’s double jeopardy rights were not violated. See
Woodbury, 172 N.H. at 368. Given the difference in the evidence required to
obtain each assault conviction, we conclude that the original four convictions
— two for enhanced first degree assault and two for second degree assault –
extreme indifference — do not violate the defendant’s protection against double
jeopardy under the State Constitution. See id. at 361-62, 368-69 (concluding
that there was sufficient evidence for the jury to distinguish the three assaults
that occurred during a short altercation between the defendant and the victim);
State v. Martinko, 171 N.H. 239, 243-45 (2018).
[¶32] We reach the same conclusion under the Federal Constitution.
See Martinko, 171 N.H. at 245. To determine whether a defendant is subject to
multiple punishments for the same offense, in violation of the protection
provided by the Federal Constitution, “we must determine the unit of
prosecution intended by the legislature.” Id. (quotation omitted); see also State
v. Wilson, 169 N.H. 755, 773 (2017). “‘Because the substantive power to
prescribe crimes and determine punishments is vested with the legislature, the
question under the Double Jeopardy Clause whether punishments are
‘multiple’ is essentially one of legislative intent.’” Martinko, 171 N.H. at 245
(quoting Ohio v. Johnson, 467 U.S. 493, 499 (1984)).
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[¶33] The first degree assault statute states, in pertinent part, that “[a]
person is guilty of a class A felony if he . . . [p]urposely causes serious bodily
injury to another.” RSA 631:1, I (2016). The second degree assault statute
provides, in pertinent part, that “[a] person is guilty of a class B felony if he or
she . . . [r]ecklessly causes bodily injury to another under circumstances
manifesting extreme indifference to the value of human life.” RSA 631:2, I
(2016). Although the term “bodily injury” is not defined in the Criminal Code,
RSA 625:11, VI (2016) defines the term “[s]erious bodily injury” as “any harm
to the body which causes severe, permanent or protracted loss of or
impairment to the health or of the function of any part of the body.” (Emphasis
added.) Notably, “[s]erious bodily injury” is defined using the singular term:
“any harm to the body . . . .” RSA 625:11, VI. Applying this definition to RSA
631:1, I(a), each act that causes “any harm to the body which causes severe,
permanent or protracted loss of or impairment to the health or of the function
of any part of the body” would support a separate crime of first degree assault.
RSA 625:11, VI; cf. State v. Paulsen, 143 N.H. 447, 449-50 (1999) (considering
whether RSA 639:3, III (2016), which criminalizes endangering the welfare of a
child or an incompetent person, criminalizes a course of conduct or a single
act). The same reasoning requires the same result with respect to RSA 631:2,
I(c).
[¶34] Accordingly, we conclude that both RSA 631:1, I(a) and RSA 631:2,
I(c) criminalize the distinct act of causing injury to another, rather than assault
as a continuing course of conduct. Indeed, our caselaw supports this
interpretation. See, e.g., Lynch, 169 N.H. at 708 (holding that “the legislature
intended for the unit of prosecution under RSA 631:2-a, I(b) to be each
individual act of causing bodily injury to another” (emphasis added));
Woodbury, 172 N.H. at 368 (holding that three simple assault convictions did
not violate double jeopardy because the defendant made unprivileged physical
contact with the victim on three separate occasions); cf. Castine, 173 N.H. at
222, 225 (holding that two assault convictions violated double jeopardy in part
because the evidence failed “to exclude the reasonable conclusion that the
serious bodily injuries alleged in the two indictments were caused by a single
blow”). The fact that a person may inflict numerous injuries on another in a
relatively short period of time is of no consequence, provided that the State can
prove each injury was caused by a distinct and separate act.2
2 The defendant cites cases from several other jurisdictions in support of his argument that
multiple convictions arising out of one continuous assault violate his rights against double
jeopardy. Those courts, however, considered their states’ assault statutes and common law
definitions of assault, as well as their relevant caselaw, in reaching this conclusion. See, e.g.,
State v. Nixon, 886 A.2d 475, 479-83 (Conn. App. Ct. 2005); State v. Villanueva-Gonzalez, 329
P.3d 78, 80-82 (Wash. 2014); State v. Dew, 864 S.E.2d 268, 273-75 (N.C. 2021). Several of these
courts also express concern that, to conclude otherwise, would allow a defendant to be convicted
of assault “for every blow” thrown during an assault. Dew, 864 S.E.2d at 275; see also Nixon, 886
A.2d at 481-82. Our caselaw, however, already protects a defendant from such prosecution by
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[¶35] We next consider whether there was sufficient evidence in the
record for the jury to conclude, beyond a reasonable doubt, that the defendant
committed four separate and distinct acts that resulted in the four indicted
injuries. A challenge to the sufficiency of the evidence raises a claim of legal
error; therefore, our standard of review is de novo. Id. at 220. To prevail in a
challenge to the sufficiency of the evidence, the defendant bears the burden of
proving that no rational trier of fact, viewing the evidence in the light most
favorable to the State, could have found guilt beyond a reasonable doubt.
State v. Kelley, 159 N.H. 449, 454-55 (2009). When reviewing the evidence, we
examine each evidentiary item in the context of all the evidence, not in
isolation. Id. at 455.
[¶36] At the outset, we agree with the State that the evidence that the
defendant caused the victim’s injuries by committing separate acts was not
solely circumstantial and, thus, the evidence was not required to exclude all
reasonable inferences other than guilt. See Castine, 173 N.H. at 220. 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.”
Kelley, 159 N.H. at 454 (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).
[¶37] Here, there was direct evidence that the defendant caused the
victim’s lung, rib, spine, and nose injuries by means of more than one assault.
Both the defendant and the victim testified that the defendant delivered
multiple blows to different parts of the victim’s body throughout the course of
the evening. The medical providers who treated the victim testified that the
victim sustained discrete injuries to her lungs, ribs, nose, and spine as a result
of being punched multiple times in the chest, abdomen, and face. Together,
this testimony constitutes direct evidence that the defendant caused injury to
the victim’s lung, rib, spine, and nose when he struck her multiple times in
different parts of her body. A reasonable jury could base its determination that
the defendant caused each injury by a separate act, not upon a presumption
arising from circumstances, but rather, upon a reasonable inference based
upon the direct testimony of the defendant, victim, and the medical providers.
Cf. Castine, 173 N.H. at 220 (applying the circumstantial evidence standard
because there was no direct evidence, specifically eyewitness testimony to the
assault or testimony from the defendant, that the defendant caused the
victim’s two injuries by means of more than one assault).
requiring the State, in instances where it charges a defendant with multiple counts of assault
against the same victim, to prove that each alleged injury was caused by a separate and distinct
act. See State v. Castine, 173 N.H. 217, 222 (2020). Indeed, courts in other states, interpreting
their criminal assault statutes, have reached a conclusion similar to ours. See Welborn v. Com.,
157 S.W.3d 608, 611-13 (Ky. 2005); Commonwealth v. Wooden, 226 N.E.3d 877, 880-83 (Mass.
App. Ct. 2024).
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[¶38] We first consider whether the evidence was sufficient to prove that
the defendant caused “a fracture to [the victim’s] rib” and “traumatic
pneumothorax of [the victim’s] lung” — otherwise known as a collapsed lung —
by separate acts. Notably, the indictments did not specify which rib or lung
was injured. The victim’s treating medical providers testified that the victim
sustained multiple fractured ribs on both sides of her body and that both the
right and left lungs were collapsed.
[¶39] The victim testified that while she and the defendant were standing
by the back door in the house, the defendant hit her with what she believed to
be a “liver shot.” The defendant previously told the victim that a “liver shot” is
used by boxers to briefly incapacitate an opponent. The victim testified that
after receiving the “liver shot,” she “was instantly on [her] knees on the floor
and couldn’t get up for quite a while,” and that “it was a very, very painful
punch.” Although the defendant denied giving the victim a “liver shot,” he
admitted that he hit her on the right side of her body and that this blow
“clearly hurt” the victim.
[¶40] The victim then testified that, in a separate incident, while she was
sitting on the loveseat with her knees to her chest “trying to protect [herself],”
the defendant asked which side of her body the victim’s incision from her
recent surgery was located. After the victim reminded the defendant that the
incision was on the left side of her body, the defendant punched her directly on
the incision, which, according to the victim, caused her to experience pain.
The victim testified that after this punch, she went outside, where she was in
“[e]xcruciating pain,” “[m]ostly in the rib area and torso area,” and her
breathing was “[v]ery difficult” and “[l]abored,” and she had “a hard time
catching [her] breath.” The victim also testified that at the very end of the
evening, when she and the defendant were getting into bed, the defendant hit
her again “in [her] right ribs.”
[¶41] In addition, the doctor who surgically repaired the victim’s
collapsed lungs testified that the victim’s injuries were consistent with an
assault in which the victim was subjected to a “strong physical force”
consistent with a pedestrian “being hit by a car.” No evidence suggested,
however, that the victim had been subjected to a strong physical force caused
by a single act, like an automobile accident. Rather, as we have previously
observed, the victim testified and she reported to her medical providers that the
assault involved multiple blows to different parts of her body. Based upon the
foregoing evidence, the jury could have rationally found that it was unlikely
that the victim’s two collapsed lungs and eight fractured ribs were caused by a
single act, and that at least one rib was fractured by a blow that did not also
collapse both lungs, and that at least one lung was collapsed by a blow that did
not also fracture all eight ribs.
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[¶42] We next consider whether the evidence was sufficient to prove that
the defendant caused a fracture to the victim’s spine by a separate act. Two of
the victim’s treating medical providers testified that the victim sustained a
spine fracture. One of these same providers also testified that the victim told
her that she had been “punched all over . . . punched in her head, face, chest,
back . . . and abdomen.” Another medical provider testified that the victim had
bruises on her chest and back.
[¶43] The victim testified that at the beginning of the attack, the
defendant hit her “[p]retty much everywhere,” but mostly on her “torso, ribs,
[and] legs,” and that later, when she went outside, she felt “[e]xcruciating pain”
“[m]ostly in the rib area and torso area.” The victim’s use of the words “ribs”
and “rib area” in addition to the word “torso” implies that she considered the
“torso” as separate and distinct from her “ribs.” Moreover, when the victim
described the “liver shot,” the punch to her incision, and the punch to her right
ribs when she and the defendant were in bed, she never used the word “torso.”3
Accordingly, based upon the foregoing evidence, the jury could have rationally
concluded that the defendant struck the victim’s back, which caused a fracture
to her spine, and that this strike was separate and distinct from the blows that
caused the victim’s ribs to fracture and lungs to collapse.
[¶44] Finally, we consider whether the evidence was sufficient to prove
that the defendant caused a fracture to the victim’s nasal bone by a separate
act. The victim testified that when she returned to the house after running
outside, she paused on the deck by the back door to catch her breath and, at
this time, the defendant punched her in the nose. The victim testified that this
punch gave her a “lot of pain,” that she was “[s]eeing stars,” and that she
“instantly started bleeding.” The defendant admitted to hitting the victim in
the nose, though he maintains that he hit her before she ran outside. From
this evidence, the jury could have rationally concluded that the strike to the
victim’s nose — whether it occurred before or after the victim went outside —
caused the nasal fracture, and that this strike was separate and distinct from
the blows that caused the fractured spine, fractured ribs, and collapsed lungs.
Accordingly, viewing the evidence in the light most favorable to the State, we
conclude that it was sufficient for a rational trier of fact to find beyond a
reasonable doubt that the defendant was guilty of four separate assaults
resulting in injuries to the victim’s lung, rib, spine, and nose.
III. Conclusion
[¶45] For the foregoing reasons, we conclude that the trial court did not
err when it provided a definition of “cruelty” from Black’s Law Dictionary in
response to the jury’s question. Additionally, we conclude that the trial court
3 The “torso” includes the back of the body. See Stedman’s Medical Dictionary 2002 (28th ed.
2006) (defining “torso” as “[t]he trunk; the body without relation to head or extremities”).
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did not err when it concluded that the evidence was sufficient to sustain the
enhanced first degree assault conviction and the second degree assault –
extreme indifference conviction. Accordingly, we affirm on both of these
grounds.
[¶46] However, we disagree with the trial court’s conclusion in its March
2021 order that the evidence was insufficient to prove four separate assault
convictions. Accordingly, we reverse the trial court’s unit of prosecution ruling
and remand for entry of the four convictions and reinstatement of the original
sentences.
Affirmed in part; reversed in part;
and remanded.
BASSETT and COUNTWAY, JJ., concurred; HANTZ MARCONI, J., sat for
oral argument but subsequently disqualified herself and did not participate in
further review of the case.
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