State of New Hampshire v. Robie B. Gould

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0116, State of New Hampshire v. Robie B.
Gould, the court on April 21, 2017, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Robie B. Gould, appeals his convictions of reckless
conduct, see RSA 631:3 (2016), simple assault, see RSA 631:2-a (2016), and
conduct after an accident, see RSA 264:25 (2014). He argues that the Superior
Court (McNamara, J.) erred in: (1) denying his motion to dismiss the reckless
conduct charge for improper venue; (2) denying his motion to dismiss the simple
assault charge; and (3) allowing the State to introduce a 49-minute videotape of
his statements to police.

The defendant first argues that the trial court erred in denying his
motion to dismiss for improper venue at the close of the State’s case. He
argues that the evidence was insufficient for a rational juror to conclude that
the reckless conduct offense occurred in Merrimack County.

To prevail upon his challenge to the sufficiency of the evidence, the
defendant must demonstrate that no rational trier of fact, viewing all of the
evidence and all reasonable inferences from it in the light most favorable to the
State, could have found beyond a reasonable doubt that the crime occurred in
Merrimack County. See State v. Collyns, 166 N.H. 514, 517 (2014). As the
defendant concedes, at least one witness to the crime testified that it occurred on
a portion of the highway on the Merrimack County side of the Winnipesaukee
River. We are not persuaded that her testimony was necessarily inconsistent
with the aerial photograph of the highway or that a rational juror was required to
reject her testimony on that basis. We conclude that a rational juror, viewing all
the evidence in the light most favorable to the State, could have found beyond a
reasonable doubt that the crime occurred in Merrimack County. See id.

Moreover, we note that the defendant did not raise his venue objection
until the close of the State’s case. Before trial, the defendant knew that he was
being tried in Merrimack County, and he knew where the crime occurred, which
he asserts was in Belknap County. Therefore, even if the evidence were
insufficient to prove proper venue, we would conclude that he waived his venue
objection. See Petition of State of N.H. (State v. Johanson), 156 N.H. 148, 155
(2007) (“Generally, to avoid waiver, a defendant must raise any objections to
venue before trial unless the impropriety of venue only becomes apparent at the
close of the government’s case.” (quotation omitted)).

The defendant next argues that the trial court erred in denying his motion
to dismiss the simple assault charge because, he asserts, the victim’s “fighting
words” invited the defendant’s unprivileged physical contact. The defendant first
argues that the trial court misapprehended his argument by erroneously
addressing it as a self-defense argument. The appellant must afford the trial
court an opportunity to correct any error it may have made before raising the
issue on appeal. State v. Mouser, 168 N.H. 19, 26 (2015). In this case, the
defendant failed to show that he notified the trial court that it misunderstood
his argument. In addition, judicial review is not warranted for complaints,
without developed legal argument, regarding adverse rulings. State v.
Blackmer, 149 N.H. 47 (2003). The defendant does not support his “fighting
words” argument with developed legal reasoning or citations to authorities.
Even if the defendant had preserved and sufficiently developed his argument,
we would reject it on its merits. “Fighting words” may be subject to greater
State regulation because of their capacity to cause of a breach of the peace.
State v. Oliveira, 115 N.H. 559, 561 (1975). However, there is no authority for
the defendant’s position that the victim’s alleged use of “fighting words” could
justify his criminal assault. See Appeal of United Parcel Service, 125 N.H. 753,
756 (1984) (noting that “under New Hampshire law words alone may not
furnish sufficient provocation to justify a physical attack”).

Finally, the defendant argues that the trial court erred in allowing the
State to introduce a 49-minute videotape because it contained statements he
made that his counsel had not heard before trial. We review the trial court’s
decisions on the management of discovery and the admissibility of evidence
under an unsustainable exercise of discretion standard. State v. Ainsworth, 151 N.H. 691, 694 (2005). To meet this standard, the defendant must
demonstrate that the trial court’s rulings were clearly untenable or
unreasonable to the prejudice of his case. Id. The record shows that the State
provided the defendant with a copy of the videotape several months before trial.
During trial, defense counsel advised the court that the DVD disc he received
included an audio component for the first five minutes only. However, he also
advised the court that when the prosecutor placed the same disc into her
computer before trial, it contained audio for the entire 49 minutes. The
defendant argued that the videotape should not be admitted because the State
failed to inform him that the disc contained 49 minutes of audio time, and that
it failed to give him instructions to ensure that he could fully access the audio
component. The trial court ruled that, under the circumstances, defense
counsel was on notice of a possible problem with the disc and was obligated to
raise the issue with the State before trial.

The defendant does not argue that the statements contained in the
videotape were inadmissible on any other ground. The audio component of the

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videotape demonstrated that he pretended not to speak English when he was
stopped by the police, a fact which he admitted at trial. Based upon this
record, we cannot conclude that the trial court’s ruling was untenable or
unreasonable to the prejudice of his case. See id.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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