State of New Hampshire v. Angel L. Rivera

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0212, State of New Hampshire v. Angel L.
Rivera, the court on February 28, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted on
appeal, has considered the oral arguments of the parties, and has determined to
resolve the case by way of this order. See Sup. Ct. R. 20(2). The defendant,
Angel L. Rivera, appeals his conviction on one count of criminal threatening with
a firearm. See RSA 631:4, I(a) (2016); RSA 625:11, V (2016). He argues that the
Trial Court (Ruoff, J.) erred in denying his motion for judgment notwithstanding
the verdict (JNOV). We affirm.

The following evidence was presented to the jury. In July 2020, the
defendant was living in a house with his friend, his friend’s wife, and their
teenage daughter, O.1 On the day of the incident at issue in this case, O was
allowed to have three female friends over for a sleepover. After O’s parents and
the defendant were asleep, the girls decided to sneak two male friends, L.S. and
J.L., into the house. They entered through the front door of the house and went
upstairs to O’s bedroom, which was located next to the defendant’s. Two of the
girls, H and V, then left the bedroom to get snacks from the kitchen where they
encountered the defendant. V returned to O’s bedroom to warn everyone that the
defendant was awake and in the kitchen. The defendant testified that V and H
followed him back to his bedroom, “kind of, you know, corralling me into my
bedroom.” H and V had used the defendant’s virtual reality setup with the
defendant earlier on the same day in his room, so when H asked whether he had
any snacks in his room, he became suspicious. At about this same time, the
defendant heard a loud thud against his bedroom wall and a male voice coming
from O’s bedroom on the other side of the wall. The defendant was aware that
some of the girls had been communicating with adult males online. Not knowing
who was in O’s room, the defendant grabbed his inoperable antique pistol and
headed to O’s room to “make sure there wasn’t anything extreme happening.”

There, the defendant found J.L. and L.S. hiding under a bed; L.S. was only
partially under it. Holding his gun, the defendant ordered both boys out and led
them out of the bedroom and out of the house.

1 Six juveniles testified at trial. Two have the same initials. The indictments
identified the boys by their first and last initials. To avoid confusion, we
identify the girls by their first initials and identify the boys by both first and
last initials as reflected in the indictments.
 The defendant was subsequently indicted on five charges: (1) criminal
threatening, which alleged that he pointed a firearm at J.L and L.S. as he walked
them out of the house; (2) a lesser-included offense that charged that he pointed
an object that appeared to be a firearm at J.L. and L.S. as he walked them out of
the house; (3) criminal threatening, which alleged that he pointed a firearm at
J.L. and L.S. and told them to “get out” or words to that effect; (4) a lesser-
included offense that he pointed an object that appeared to be a firearm at J.L.
and L.S. and told them to “get out” or words to that effect; and (5) witness
tampering. He was found not guilty on four charges but convicted on the
criminal threatening charge based on his pointing a firearm at J.L and L.S. and
telling them to get out.

The defendant filed a motion to set aside the verdict and for JNOV,
contending that the verdict was not supported by sufficient evidence and was
against the weight of the evidence.2 The trial court denied the motion. This
appeal followed.

As a preliminary matter, we note that at oral argument, defense counsel
argued that the criminal threatening charge on which he was acquitted must be
different from the charge on which he was convicted. The jury found the
defendant guilty on Charge ID number 1802319C, which alleged that the
defendant “purposely by physical conduct, placed or attempted to place J.L. and
L.S. in fear of imminent bodily injury or physical contact in that he pointed a
firearm at them and told them to get out, or words to that effect. Said firearm
being a deadly weapon . . . .” The jury found the defendant not guilty on Charge
ID number 1948959C, which alleged that the defendant committed criminal
threatening by “purposely by physical conduct, placed or attempted to place J.L.
and L.S. in fear of imminent bodily injury or physical contact. In that Rivera
pointed a firearm at J.L. and L.S. as he walked them out of the house. Said
firearm being a deadly weapon . . . .” We conclude that the jury could have
rationally found that the State failed to prove that the defendant pointed a
firearm at the boys as he walked them out of the house, while also finding that
the State did prove that the defendant pointed a firearm at the boys and told
them to get out, or words to that effect. The defendant testified that he walked
the boys “out of [the] bedroom, into the hallway, through the hallway, into the
living room. Through our living room. Into our kitchen. Through our kitchen.
Out of the back door that was nearest to the bathroom. Onto our back deck.”
The defendant’s acquittal of pointing the firearm at the boys “as he walked them

2 At trial the defendant argued in the alternative that the verdict was against

the weight of the evidence. Although on appeal he has set forth the standard to
be applied in considering this argument, he has not presented a separate
argument applying it. Accordingly, we address only his arguments that the
State “failed to present sufficient evidence as a matter of law,” asking this court
“to enter an acquittal” on the indictment upon which he was convicted.

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out of the house” is not inconsistent with a guilty verdict for pointing a firearm at
the boys, which the jury could have found occurred in the bedroom, and telling
them to get out. Moreover, even if we assume inconsistency exists between the
two verdicts, “the inconsistency of simultaneous jury verdicts against a single
defendant on a multiple-count criminal indictment need not be rationally
reconciled, and does not entitle the defendant to relief.” State v. Littlefield, 152
N.H. 331, 354 (2005) (quotation omitted).

Turning to the indictment upon which the defendant was convicted, we
note that the trial court, in response to a jury question, instructed the jury that
the State had to prove “that the defendant pointed the firearm at both J.L. and
L.S.” While conceding that the evidence supported an inference that he pointed
the gun at L.S., the defendant argues that there was insufficient evidence that he
pointed the gun at J.L. In addition, he contends that the State had to prove that
he told the boys to get out while pointing the gun at both boys, but that the State
failed to do so.

We begin with the defendant’s argument that the indictment required the
State to prove that he told the boys to get out, or words to that effect, while
pointing the firearm at them. The indictment does not so allege. Rather, it
alleges that the defendant pointed a firearm at them and told them to get out. Cf.
State v. Bird, 161 N.H. 31, 37-38 (2010) (criminal threatening indictment alleged
that defendant waved a forty-five caliber handgun at the victim “while telling [the
victim] to get off of his property”). The defendant cites no authority for his
contention that the indictment’s language required the State to prove that he
simultaneously pointed the firearm at the boys while telling them to get out.
Accordingly, we are not persuaded by this argument.

We next address the defendant’s challenge to the sufficiency of the
evidence.

A challenge to the sufficiency of the evidence raises a claim of legal error;
therefore, our standard of review is de novo. To prevail upon a challenge to
the sufficiency of the evidence, the defendant must prove 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 guilt beyond a
reasonable doubt.

State v. Bell, 175 N.H. 382, 385 (2022) (quotations omitted). As noted above, the
defendant concedes that the evidence supports a finding that he pointed the gun
at L.S. In addition, the defendant testified that he told the boys in the bedroom
to get out. Accordingly, we confine our analysis to the sufficiency of the evidence
that the defendant pointed the firearm at J.L.

At trial, three witnesses testified that the defendant pointed the gun at the
boys. O testified that as the defendant walked the boys out of the bedroom, he

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did so with the gun “pointed at their backs.” V testified that the defendant
“walked them out [of the bedroom] with the gun still pointed at them.” H testified
that the defendant walked them out of the room with the gun “[s]till pointing at
them.”

The defendant argues that none of the witnesses testified “without
equivocation” that he pointed the gun at J.L. However, the existence of any
inconsistencies in the witnesses’ testimony was a factor for the jury to consider in
assessing their credibility. See State v. Carr, 167 N.H. 264, 275 (2015). “The
jury is free to accept or reject any portion of a witness’s testimony and to resolve
any conflicts in testimony. Credibility determinations are within the sole
province of the jury and will be upheld on appeal unless no rational trier of fact
could have reached the same conclusion.” Id. (quotations omitted). We agree
with the State that the testimony of O, V, and H, together with all reasonable
inferences in the State’s favor, sufficed to support a finding that the defendant
pointed the firearm at J.L. in the bedroom and told the boys to get out.
Accordingly, we affirm.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred; HICKS, J., sat for oral argument but did not participate in the
final vote, see N.H. CONST. pt. II, art. 78.

Timothy A. Gudas,
Clerk

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