State of New Hampshire v. Tariq Zubhuza

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district
No. 2012-078

THE STATE OF NEW HAMPSHIRE

v.

TARIQ ZUBHUZA

Argued: November 7, 2013
Opinion Issued: March 7, 2014

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

LYNN, J. Following a jury trial in Superior Court (Nicolosi, J.), the
defendant, Tariq Zubhuza, was convicted on charges of criminal restraint (RSA
633:2, I (2007)), burglary (RSA 635:1, I (2007)), and criminal threatening with a
firearm (RSA 631:4, II(a)(2) (2007)), all stemming from his involvement in a
home invasion. On appeal, he argues that the trial court erred in denying his
motion to dismiss the criminal restraint and burglary charges for insufficiency
of the evidence. We affirm.
 I

Viewed in the light most favorable to the State, see, e.g., State v. Sideris, 157 N.H. 258, 263 (2008), the evidence presented at trial was sufficient for the
jury to find the following facts. On December 3, 2010, Miranda Robbins lived
in a Nashua apartment with her five young children and her fiancé, Dorian
Montero. Montero’s brother, D.J., also stayed at the apartment from time to
time. At the time of the events described below, neither Montero nor D.J. was
present, but, Robbins’s father, Raymond Sinclair, was visiting.

At approximately 11:30 a.m. on that day, the defendant and Crystol
Pelletier went to the apartment. When Robbins answered the door, Pelletier,
the only person visible, identified herself as “Crystol” and asked whether D.J.
was home. Robbins responded that D.J. was at work. Pelletier explained that
D.J. owed her money “for prostitution” and, after pausing, looked to her left.
At that point, the defendant appeared and “barged” past Robbins into the
apartment. Once inside, the defendant began “looking around” the apartment,
searching the bathroom and kitchenette while Robbins, who was in the dining
room, asked what he was doing. At some point, Sinclair came from the living
room into the dining room, at which time the defendant produced a gun and
placed it to Sinclair’s head. According to Robbins, the defendant, while holding
the gun to Sinclair’s head, told him, “if you move or say anything . . . I’ll blow
your head away.” Eventually, one of Robbins’s children entered the dining
room, at which point the defendant lowered the gun to his side.

At this time, Robbins asked the defendant and Pelletier to go back
outside, which they eventually did. Once they were outside on the apartment’s
porch, the defendant held the gun by his waistband. Robbins asked the
defendant and Pelletier to leave, and offered to call them when D.J. returned,
but the defendant responded that no one was leaving. When Robbins stated
that she needed to bring one of her children to the doctor, the defendant
responded that she could miss the appointment. Eventually, Pelletier provided
Robbins with a phone and instructed her to call D.J. Robbins did so, and
briefly spoke to D.J. Pelletier then took the phone from Robbins and handed it
to the defendant, who walked down the porch to talk to D.J. By that point, the
defendant had tucked the gun in his waistband or pocket. While the defendant
was on the telephone with D.J., Robbins — in an attempt to get the defendant
and Pelletier to leave — again offered to call Pelletier when D.J. returned if she
left her name and telephone number. Pelletier provided this information, and
she and the defendant, who by that time had finished the telephone call, then
left on foot.

Thereafter, the Nashua police were contacted and spoke with Robbins
and Sinclair. Robbins identified the defendant and Pelletier from photographic
line-ups shown to her at the police station. Police arrested the defendant and

2
Pelletier at the defendant’s residence later that day. During a search of the
defendant’s residence conducted pursuant to a warrant, the police discovered a
loaded Glock handgun with a round in the chamber. The defendant was
subsequently indicted on charges of burglary, criminal threatening of Sinclair
with a firearm, and criminal restraint of Robbins. At the close of the State’s
case, the defendant moved to dismiss the burglary and criminal restraint
charges. The trial court denied the motions, and a jury ultimately convicted
the defendant of all three charges. This appeal followed.

II

The defendant raises two issues on appeal. First, he argues that the
evidence offered at trial was insufficient to prove that his conduct exposed
Robbins to a risk of serious bodily injury, as required for the crime of criminal
restraint. Second, he argues that the trial court erred when it denied his
motion to dismiss the burglary indictment, as there was insufficient evidence to
prove that he acted with the requisite criminal intent. We examine these
issues in turn.

“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.” State v. Saunders, 164 N.H. 342, 351 (2012) (quotation omitted). We
consider “all the evidence and all reasonable inferences therefrom in the light
most favorable to the State.” Id. (quotation omitted). “The defendant bears the
burden of demonstrating that the evidence was insufficient to prove guilt.” Id.
(quotation omitted).

A

We first address whether the evidence was sufficient to establish that, for
purposes of RSA 633:2, I (2007), the defendant exposed Robbins to a risk of
serious bodily injury. To resolve this issue, we are required to engage in
statutory interpretation. “In matters of statutory interpretation, we are the
final arbiter of the intent of the legislature as expressed in the words of a
statute considered as a whole.” State v. Burke, 162 N.H. 459, 461 (2011)
(quotation omitted). “We construe provisions of the Criminal Code according to
the fair import of their terms and to promote justice.” Id. (quotation omitted);
see RSA 625:3 (2007). “We first look to the language of the statute itself, and,
if possible, construe that language according to its plain and ordinary
meaning.” Id. (citation omitted). “We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Id. (quotation
omitted). “We must give effect to all words in a statute, and presume that the
legislature did not enact superfluous or redundant words.” Id. (quotation

3
omitted). “Finally, we interpret a statute in the context of the overall statutory
scheme and not in isolation.” Id. (quotation omitted).

The criminal restraint statute, RSA 633:2, I, provides: “A person is guilty
of a class B felony if he knowingly confines another unlawfully in
circumstances exposing him to risk of serious bodily injury.” The State is thus
required to prove three elements: “(1) the actor must act knowingly; (2) the
victim must be exposed to the risk of serious bodily injury; and (3) the act must
confine the victim unlawfully.” Burke, 162 N.H. at 461. The defendant
challenges only whether there is sufficient evidence to establish a risk of
serious bodily injury.

The Legislature has defined “serious bodily injury” as “any harm to the
body which causes severe, permanent or protracted loss of or impairment to
the health or the function of any part of the body.” RSA 625:11, VI (2007). The
criminal restraint statute requires only a risk of serious bodily injury, not the
actual infliction of injury. State v. Gibbs, 164 N.H. 439, 444 (2012). In
determining whether such a risk exists, the defendant’s use or brandishing of a
deadly weapon is a highly relevant consideration. See RSA 625:11, V (2007)
(“‘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.”); Bell v.
State, 693 S.W.2d 434, 438 (Tex. Crim. App. 1985) (“The danger of serious
bodily injury is necessarily established when a deadly weapon is used in the
commission of an offense.”).

Although he acknowledges that a gun is capable of causing serious
bodily injury, the defendant emphasizes that he did not point the gun at
Robbins or specifically threaten her with the weapon, and argues that his mere
possession of a gun did not expose Robbins to the risk of serious bodily injury.
In support of this argument, the defendant analogizes to our reasoning in
Burke. In Burke, the victim testified that the defendant “held [a] knife in a
threatening manner, but never verbally threatened to use it or attempted to use
it to harm her.” Id. at 460. We observed:

[T]he State properly conceded that the fact that the defendant
possessed a knife during [the victim’s] confinement does not affect
the analysis because the defendant never verbally threatened to
use the knife, never held it in close proximity to [the victim], and
never attempted to harm [the victim] with it. Thus, on these facts,
the knife [was] irrelevant to the element at issue.

Id. at 462.

4
 The analogy to Burke fails, however, as the defendant here did more than
merely possess a gun. After entering Robbins’s apartment with the gun, the
defendant held it to Sinclair’s head. The defendant verbally threatened to
shoot Sinclair if he moved or spoke. The defendant engaged in this conduct in
Robbins’s presence, and continued to hold the gun in his hand throughout
most of the time he subjected Robbins to confinement. Under these
circumstances, a reasonable jury could have found that Robbins was exposed
to the risk of serious bodily injury regardless of whether the defendant actually
pointed the gun at her. Thus, we conclude that the trial court did not err in
denying the motion to dismiss the criminal restraint indictment.

B

We next address the defendant’s argument that there was insufficient
evidence to prove that he acted with the criminal intent required for the crime
of burglary. “The crime of burglary consists of two elements: (1) unauthorized
entry; and (2) an intent to commit a crime therein.” State v. Gordon, 161 N.H.
410, 415 (2011) (citation omitted); see RSA 635:1, I. The defendant does not
challenge that there was an unauthorized entry. As to the element of intent,
the defendant correctly points out that the language of RSA 635:1 is different
from the language used in many other jurisdictions’ burglary statutes, in that
it requires the defendant to have the intent to commit a crime at the time of
entry.1 Thus, the State was required to prove that the defendant intended to
commit a crime — in this case, an assault — at the time he entered Robbins’s
apartment.2

A defendant’s intent often must be proven by circumstantial evidence.
State v. Fuller, 147 N.H. 210, 214 (2001). “When the evidence is solely
circumstantial, it must exclude all reasonable conclusions except guilt.” State
v. Marshall, 162 N.H. 657, 666 (2011). However, as we recently explained:

1 RSA 635:1 states: “A person is guilty of burglary if he enters a building . . . with purpose to
commit a crime therein,” whereas the burglary statutes of many other jurisdictions require that
an actor “enters or remains unlawfully” in a building with the intent to commit a crime. See, e.g.,
Ala. Code § 13A-7-5(a) (2006); Alaska Stat. § 11.46.310 (2012); Ariz. Rev. Stat. Ann. § 13-1506
(LexisNexis 2012); Ark. Code Ann § 5-39-201(a)(1) (2006); Colo. Rev. Stat. § 18-4-202(1) (2013);
Conn. Gen. Stat. § 53a-102 (2013); Fla. Stat. Ann. § 810.02 (2010); Ga. Code Ann. § 16-7-1(b)
(Supp. 2012); Ky. Rev. Stat. Ann. § 511.040 (LexisNexis 2008); Mont. Code Ann. § 45-6-204(1)(a)
(2011); Or. Rev. Stat. Ann. § 164.215 (West 2003); S.D. Codified Laws § 22-32-1 (2006); Utah
Code Ann. § 76-6-202(1)(c) (LexisNexis 2012); Wash. Rev. Code Ann. § 9A.52.020(a) (LexisNexis
2009).

2 The trial court instructed the jury that the defendant had to have the specific intent to commit
simple assault at the time of the entry, and the State does not challenge the correctness of this
instruction.

5
 The court does not determine whether another possible hypothesis
has been suggested by [the] defendant which could explain the
events in an exculpatory fashion. Rather, the reviewing court
evaluates the evidence in the light most favorable to the [State] and
determines whether the alternative hypothesis is sufficiently
reasonable that a rational juror could not have found proof of guilt
beyond a reasonable doubt.

State v. Germain, 165 N.H. 350, 361-62 (2013) (emphasis in original)
(quotations omitted).

Intent may be inferred from the defendant's conduct under all the
circumstances. State v. Meloon, 124 N.H. 257, 259 (1983); see also State v.
Reed, 114 N.H. 377, 379 (1974) (finding sufficient evidence of intent to commit
a crime where there was “[e]vidence of unexplained entry by breaking into a
stranger’s home, findably by the defendant and another, coupled with their
suspicious attempt to conceal themselves while in the yard”).

Based upon the totality of the evidence, a rational jury could have found
that, at the time the defendant entered the apartment, he intended to assault
D.J. (or other occupants) if necessary to collect the money that Pelletier
claimed was owed to her “for prostitution.” See Model Penal Code § 2.02(6)
(1985) (“When a particular purpose is an element of an offense, the element is
established although such purpose is conditional, unless the condition
negatives the harm or evil sought to be prevented by the law defining the
offense.”); see also Holloway v. United States, 526 U.S. 1, 10-11 (1999) (“[A]
defendant may not negate a proscribed intent by requiring the victim to comply
with a condition the defendant has no right to impose.”). Further, a rational
jury also could have determined that the defendant’s alternative hypothesis —
that he went to the apartment to verbally confront D.J., but not to assault him
— was not “reasonable.”

The jury could readily have found that the defendant went to the
apartment to act as the “strong-arm” for his co-defendant (Pelletier) in
collecting a claimed debt. Armed with a gun, he entered the apartment by
“barging” past Robbins, despite the fact that Robbins stated that D.J. was not
home. He then searched the apartment for D.J. While in the apartment, the
defendant placed his gun to Sinclair’s head, threatening to “blow [Sinclair’s]
head away” if he moved or spoke. Finally, when the police searched the
defendant’s residence, they recovered a loaded Glock handgun with a round in
the chamber. Based on the totality of these circumstances, a rational jury
could have found that the defendant’s “verbal confrontation only” scenario did
not constitute a reasonable view of his intent when he entered the apartment.

6
For this reason, the trial court properly denied the defendant’s motion to
dismiss the burglary charge.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.

7