State of New Hampshire v. Steven Dupont

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0228, State of New Hampshire v. Steven
Dupont, the court on February 23, 2017, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case.

The defendant, Steven Dupont, appeals his conviction, following a jury
trial in Superior Court (Bornstein, J.), of first degree assault with a deadly
weapon. See RSA 631:1, I(b) (2016). He also appeals the trial court’s failure to
credit him with 103 days of pretrial confinement. Because the State concedes
error on the pre-trial confinement issue, we need not address it. We reverse
the defendant’s conviction and remand.

We take the following facts from the record. The defendant was tried on
three charges arising out of an incident that occurred on or about December
31, 2013: negligent homicide, see RSA 630:3, I (2016); manslaughter, see RSA
630:2, I(b) (2016); and first degree assault, see RSA 631:1, I(b). The assault
indictment alleged, in pertinent part, that the defendant:

did commit the crime of First Degree Assault, in that he
knowingly caused bodily injury to [the victim] by means of a deadly
weapon, to wit, his fist, a deadly weapon in the manner that it was
used, when he struck [the victim] in the face with his fist causing a
mucosal laceration along the right side of [the victim’s] upper labial
frenulum and a mucosal contusion to his lower lip . . . .

Prior to trial, the defendant filed a notice of defense of justification, to
which the State objected. The defendant also requested a jury instruction on
the use of justifiable non-deadly force. See RSA 627:4, I (2016). The State
again objected, asserting first that the evidence failed to support either a deadly
or non-deadly force self-defense instruction, but also arguing that “if the Court
[were] inclined to give an instruction, . . . the deadly force instruction is the
only appropriate instruction in this case given the charges.” The court denied
the defendant’s request for a non-deadly force self-defense instruction, finding
it “legally unavailable to the Defendant.” The court explained that if the jury
found that the State had proven all of the elements of first degree assault
beyond a reasonable doubt, “and specifically if [it found] that the [d]efendant
caused bodily injury by means of a deadly weapon,” then the jury would
necessarily have found that the defendant used deadly force. The court also
declined to give a deadly force self-defense instruction, “find[ing] that there
[was] not some evidence to support” it. The jury returned verdicts of guilty as
to the first degree assault charge and not guilty as to negligent homicide and
manslaughter.

On appeal, the defendant argues that the trial court erred in failing to
instruct the jury on non-deadly force self-defense. He appears to concede that
a portion of his challenge is not preserved because trial counsel did not
“affirmatively dispute” the judge’s reasoning on that issue. He presents,
therefore, a plain error challenge. At oral argument we questioned whether the
issue actually had been preserved and whether our review is constrained in
any way by the defendant’s apparent concession.

It is well-established that we are not bound by a party’s concession of
law. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 87 (1953) (stating “[t]his
Court, of course, is not bound to accept the Government’s concession that the
courts below erred on a question of law”). Nor are we bound by a party’s
representations regarding the contents of the record. See, e.g., People v.
Curren, 228 P.3d 253, 257 (Colo. App. 2009) (“Because a record on appeal
speaks for itself, an appellate court may accept, but is not bound by, the
concessions of counsel regarding the record’s contents or inferences drawn
therefrom.”). Accordingly, even assuming the defendant concedes that a
portion of his argument on appeal was not preserved, we decline to accept that
concession and proceed to determine the issue ourselves.

The transcript of the February 2, 2015 chambers conference at which the
court made the challenged ruling shows that the defendant’s counsel noted her
disagreement with the court’s ruling, her opinion that the evidence warranted
the instruction, and her intent to preserve the issue for appeal. We thus
conclude that the issue before us was preserved and proceed to address it on
the merits. See State v. Hast, 133 N.H. 747, 749 (1990) (concluding
defendant’s objection to court’s failure to give self-defense instruction preserved
all issues on appeal).

“We review the trial court’s decision not to give a jury instruction for an
unsustainable exercise of discretion.” State v. Vassar, 154 N.H. 370, 373
(2006). “A requested instruction on a party’s theory of defense must be given if
such theory is supported by some evidence, and refusal to charge on that
defense is reversible error.” State v. McMinn, 141 N.H. 636, 644-45 (1997)
(quotation omitted). In this context, “some evidence” means “that there must
be more than a minutia or scintilla of evidence.” Vassar, 154 N.H. at 373
(quotation omitted). As we explained in McMinn, “[o]nce evidence of self-
defense is admitted, an instruction is required even if the evidentiary support is
not overwhelming because the State bears the burden of disproving this
statutory defense beyond a reasonable doubt.” McMinn, 141 N.H. at 645

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(quotation and citation omitted). We further noted that “when evidence of self-
defense is admitted, conduct negating the defense becomes an element of the
charged offense which the State must prove beyond a reasonable doubt.” Id.
(citation omitted).

During the February 2 chambers conference, the trial court made
numerous references to the “some evidence” standard, at times stating that it
would “assume without deciding that there is some evidence to support a non-
deadly force instruction,” and at other times appearing to make that finding.
On appeal, the State concedes that the trial court “found that there was some
evidence the defendant may have believed or actually believed that he was
about to be subjected to non-deadly force.” (Quotation omitted.) See State v.
Gingras, 162 N.H. 633, 637 (2011) (noting State’s concession that evidence
presented at trial was sufficient to require self-defense instruction).

The defendant argues that the trial court “erred in equating ‘deadly force’
with ‘deadly weapon.’” “Non-deadly force” is defined by statute to mean, in
pertinent part, “any assault or confinement which does not constitute deadly
force.” RSA 627:9, IV (2016). “Deadly force,” in turn, is defined, in pertinent
part, to “mean[] any assault or confinement which the actor commits with the
purpose of causing or which he knows to create a substantial risk of causing
death or serious bodily injury.” RSA 627:9, II (2016) (emphasis added).
Finally, “[d]eadly weapon” is defined to “mean[] 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 (2016) (emphasis added).

We noted in Gingras that “[t]he definitions of ‘deadly weapon’ and ‘deadly
force’ are not synonymous.” Gingras, 162 N.H. at 640. The State concedes as
much, but asserts that “the trial court’s analysis was more sophisticated than
the defendant gives credit.” Specifically, the State argues:

The trial court did not simply conclude that the presence of a
deadly weapon automatically equated to unjustifiable use of deadly
force. Rather, it said that proof of all the facts and elements as
alleged in the first degree assault indictment would combine to
negate the justifiable use of non-deadly force. In other words, the
defendant could not be convicted of first degree assault unless the
State proved beyond a reasonable doubt that (1) the defendant
knowingly used his fist in a manner capable of producing death or
serious bodily injury, (2) he was aware he was using his fist in a
manner capable of producing death or serious bodily injury, and
(3) he actually caused bodily injury. If the jury found that those
facts and elements were proven beyond a reasonable doubt, they

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 would have made essential factual and legal findings that the
defendant used deadly force.

(Citation omitted.) We disagree.

Notwithstanding their more nuanced approach, neither the State’s
argument nor the trial court’s reasoning frees this case from the control of
Gingras, in which we held that the trial court unsustainably exercised its
discretion in failing to instruct the jury on the complete definition of deadly
force. See id. We reasoned that, without knowing that the statutory definition
of deadly force specifically provided that purposely firing a gun in the direction
of another person or at a vehicle believed to be occupied by another constitutes
deadly force, there was a “significantly greater likelihood that the jury may
have determined that the defendant’s act of pointing his gun at [the victim] did
constitute the use of deadly force.” Id. at 639. We further explained that “the
likelihood of jury confusion as to whether the defendant used deadly force [was]
enhanced” because two of the indictments against the defendant “alleged that
the defendant’s firearm constituted a ‘deadly weapon as defined in RSA 625:11,
V.’” Id. at 640. We stated:

Inasmuch as there could be no serious dispute that the
defendant used his gun in a manner constituting it a deadly
weapon when he pointed it at [the victim] and threatened to shoot
him if he did not back off, without proper instructions the jury
could easily have assumed that if the defendant had used a deadly
weapon it automatically followed that he had used deadly force.
But . . . such reasoning is incorrect. The definitions of “deadly
weapon” and “deadly force” are not synonymous, and a finding of
the use of deadly force does not necessarily follow from a finding
that a person brandished or threatened to use a deadly weapon.

Id. (citations omitted).

The State attempts to distinguish Gingras on the basis that “[u]nlike the
gun in Gingras, the defendant’s fist is not an inherently deadly weapon.” The
State’s argument fails, however, because “the nature of [a] weapon does not
automatically render it a deadly weapon pursuant to RSA 625:11, V.” State v.
Duran, 162 N.H. 369, 374 (2011); see also State v. Pratte, 158 N.H. 45, 49
(2008). With the gun in Gingras, no less than the defendant’s fist here,
establishment of the deadly weapon element required the jury to find that the
object in question, “in the manner it [was] 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; Gingras, 162 N.H. at 640. Furthermore, here,
no less than in Gingras, establishment of that element does not compel a
finding that the defendant, in committing the assault with an object “known to
be capable of producing death or serious bodily injury” in the manner it was

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used, RSA 625:11, V (emphasis added), also knew that it “create[d] a
substantial risk of causing death or serious bodily injury,” RSA 627:9, II
(emphasis added)—that is, that he used deadly force. See Gingras, 162 N.H. at
640.

We are unswayed by the State’s argument that “a qualitative distinction
between the words ‘capable’ and ‘substantial risk’ is not what distinguishes”
the definitions of deadly weapon and deadly force. First, we are not persuaded
that the dictionary definition chosen by the State to interpret the term
“substantial” is better than that urged by the defendant. Moreover, we will not
now revisit our holding in Gingras that, given the difference in applicable
statutory definitions, a finding that a defendant used deadly force does not
“automatically” or “necessarily follow” from a finding that he used a deadly
weapon. Id.

Finally, we disagree with the State’s attempt to analogize this case to
State v. Ramos, 149 N.H. 272 (2003), in which we concluded, on appeal from a
trial on charges of burglary and aggravated felonious sexual assault, that it
was not reversible error for the trial court to fail to instruct the jury on the
defendant’s proposed consent theory of defense. Ramos, 149 N.H. at 272, 276.
We stated, “[a]s the trial court correctly realized, if the jury found the State
proved all elements of the charged variant of aggravated felonious sexual
assault, it would have to find the victim did not consent.” Id. at 276. Here, by
contrast, if the jury found the State proved all elements of first degree assault
with a deadly weapon, it would have found only that the defendant committed
the assault with his fist “which, in the manner it [was] used, . . . is known to be
capable of producing death or serious bodily injury.” RSA 625:11, V (emphasis
added). As noted above, that finding does not compel a further finding that the
defendant committed the assault, “which he kn[ew] to create a substantial risk
of causing death or serious bodily injury,” RSA 627:9, II (emphasis added); in
other words, it does not compel a finding that the defendant acted with deadly
force. For the foregoing reasons, we conclude that the trial court
unsustainably exercised its discretion in refusing to instruct the jury on non-
deadly force self-defense. See Gingras, 162 N.H. at 640.

Reversed and remanded.

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

Eileen Fox,
Clerk

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