State of New Hampshire v. Nieko Clow

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0634, State of New Hampshire v. Nieko
Clow, the court on November 30, 2020, issued the following
order:

Having considered the brief filed by the defendant, the memorandum of
law filed by the State, and the record submitted on appeal, we conclude that oral
argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Nieko Clow, appeals his convictions for misdemeanor
simple assault, felony criminal mischief resulting in a loss greater than $1500,
and misdemeanor reckless conduct. He challenges the sufficiency of the
evidence for each of the convictions.

The jury heard the following evidence. In September 2018, the defendant
was living with his fiancée and their five-month-old child.1 During an
argument, his fiancée took the defendant’s phone, went outside, and
discovered communications between the defendant and another woman. When
she returned and confronted him, he hit her in the face several times while he
held their child in his other arm. At some point, his fiancée was able to take
the infant but the defendant continued hitting her for several additional
minutes. He then went outside. When his fiancée subsequently left the house,
she found that “every single window was smashed out of [her] car.” She walked
to her grandmother’s house nearby and reported the assault. Her grandmother
drove her to her mother’s workplace; her mother called the police. The fiancée
was interviewed by State Trooper Neilsen and later examined at the local
hospital where she was diagnosed with a concussion, facial abrasions, and
barotrauma to her ears.

The defendant was subsequently charged with: (1) felony second degree
assault against his fiancée; (2) felony criminal mischief resulting in a loss
greater than $1500; (3) misdemeanor domestic violence against his fiancée;
and (4) misdemeanor reckless conduct against his infant child. Trial was held
before a jury. Before closing arguments, the court stated:

Before I bring the jury out, I met with the attorneys this morning,
and by agreement, the complaint charging domestic violence will
be dismissed, and I will instruct the jury on lesser-included
offenses with respect to second-degree assault, which the lesser
included being simple assault. And on the criminal mischief
charge, I’ll instruct on the lower pecuniary loss amount.
1 The defendant’s fiancée was the victim of the simple assault; their child was the victim of the

reckless conduct. To avoid confusion, we do not use the term “victim” in this order.
 The defendant was subsequently convicted of misdemeanor simple
assault, felony criminal mischief resulting in a loss greater than $1500, and
misdemeanor reckless conduct. This appeal followed.

The defendant first argues that the State presented insufficient evidence
to establish that the damage caused when he broke the windows of his
fiancée’s vehicle was greater than $1500. Therefore, he argues, the jury could
not have found him guilty of felony level criminal mischief. See RSA 634:2
(2016) (criminal mischief is class B felony if actor purposely causes or attempts
to cause pecuniary loss in excess of $1500).

To prevail on his challenges to the sufficiency of the evidence, the
defendant must demonstrate that no rational trier of fact, evaluating all of the
evidence and reasonable inferences therefrom in the light most favorable to the
State, would conclude beyond a reasonable doubt that he had committed the
charged offense. State v. Hanes, 171 N.H. 173, 177 (2018).

The indictment charging the defendant with criminal mischief alleged
that he damaged the windshield and other windows of a Volkswagen Jetta and
an iPhone and that both items were owned by his fiancée.2 The only estimate
introduced at trial of the cost to repair and replace the damaged vehicle
windows was prepared by the State’s witness. He described his extensive
experience as an estimator and explained that in preparing his estimate he
took into account the age of the vehicle, the odometer reading, and the
availability of replacement parts. He estimated the cost to be $2,241.23. The
total estimated for replacement parts was $1,198; the remaining costs were for
labor and paint.

On cross-examination, the estimator acknowledged that it might be less
expensive to obtain glass for the side windows at a salvage yard but that it
would be harder to obtain a replacement windshield or back window from that
source “because a lot of yards don’t want to take the chance of breaking the
glass when they cut it out.”

Although RSA 634:2 does not define pecuniary loss, we have held that
when the State must prove the value of property to bring the loss “within the
ambit of a particular criminal statute, any evidence from which the trier of fact
can reasonably infer value is admissible.” State v. Paris, 137 N.H. 322, 327
(1993) (quotation omitted). In this case, the jury saw photographs and heard
testimony describing the damage caused by the defendant. Defense counsel
also challenged the amount of the estimate on cross-examination. Given the
evidence before it, the jury could have reasonably concluded that the damage
caused by the defendant exceeded $1500.

2 To the extent that the defendant argues that he had a possessory interest in the vehicle, the

evidence presented at trial established that both the title and registration listed only his fiancée
as the owner.

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 The defendant also argues that the trial court should have dismissed the
reckless conduct charge because testimony at trial was that his fiancée took
the infant from the defendant to use as a “defense mechanism” and that no
evidence was presented that the child suffered any injury. RSA 631:3, I (2016)
provides: “A person is guilty of reckless conduct if he recklessly engages in
conduct which places or may place another in danger of serious bodily injury.”
To prevail on his motion to dismiss this charge:

The defendant had to establish that the evidence viewed in its
entirety, giving the State the benefit of all reasonable inferences,
was insufficient to prove beyond a reasonable doubt that he was
guilty of the crime charged. When reviewing the trial court’s denial
of a motion to dismiss, we view the evidence and reasonable
inferences arising therefrom in the manner most favorable to the
State.

State v. Littlefield, 152 N.H. 331, 349 (2005) (brackets and quotations omitted).
“A person acts recklessly with respect to a material element of an offense when
he is aware of and consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct.” RSA 626:2,
II(c) (2016). Contrary to the defendant’s argument, the jury was not required to
find that his child suffered serious bodily injury but rather that she was placed
in danger of suffering such injury. See State v. Belleville, 166 N.H. 58, 63
(2014) (whether defendant acted recklessly does not depend upon the actual
harm caused by his conduct). The evidence presented to the jury included that
the defendant, a trained boxer, began hitting his fiancée in her face while he
was holding the infant. He continued his assault for approximately ten
minutes after his fiancée was able to take their child from him. As the State
observes, the infant could have suffered injury during the assault if she were
dropped by either parent or if she were struck. Given the evidence presented,
we conclude that the trial court did not err in denying the defendant’s motions
to dismiss the reckless conduct charge.

The defendant’s final argument is that the State presented insufficient
evidence to establish that he was guilty of simple assault. See RSA 631:2-a
(2016). The indictment giving rise to this conviction charged the defendant
with second degree assault. See RSA 631:2 (Supp. 2019). The trial court
instructed the jury that, if it concluded that the defendant was not guilty of
second degree assault “solely for the reason that the State did not prove” that
he caused serious bodily injury to his fiancée, the jury must then consider
whether he was guilty of simple assault. To find the defendant guilty of this
lesser included offense the jury was instructed that it must find that he caused
bodily injury to his fiancée and that he did so recklessly. See RSA 631:2-a
(2016). The defendant does not challenge the accuracy of these instructions
but rather argues that the evidence was insufficient to support this conviction.
We disagree.

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 The evidence included the fiancée’s testimony that the defendant, a
trained professional boxer, hit her in the face several times with an open hand
“[t]o the point where [she] saw stars.” When she was examined at the hospital
later that day, she was diagnosed with a concussion, abrasions to her face, and
barotrauma to her ears.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ, concurred.

Timothy A. Gudas,
Clerk

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