State of New Hampshire v. Dana Anderson

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0311, State of New Hampshire v. Dana
Anderson, the court on November 15, 2023, 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, Dana Anderson, appeals his conviction by a jury for criminal
restraint, arising out of a domestic dispute with his girlfriend. See RSA 633:2
(2016). The defendant was indicted for “knowingly confin[ing] . . . [the victim],
unlawfully exposing her to circumstances exposing her to the risk of serious
bodily injury, specifically [the defendant] prevented [the victim] from leaving her
apartment by blocking the exits with furniture and/or his body while
threatening her with a knife.” The defendant contends on appeal that the
Superior Court (Attorri, J.) erred: (1) by denying his motion to dismiss because
there was insufficient evidence of the elements of the charge as alleged in the
indictment; and (2) in its instruction to the jury regarding circumstantial
evidence. We affirm.

I

Viewed in the light most favorable to the State, the evidence presented at
trial was sufficient for the jury to find the following facts. See State v.
Zubhuza, 166 N.H. 125, 126 (2014). On or about August 5, 2021, the
defendant, while with the victim in her apartment, accused her of having had
sex with her ex-husband earlier in the day. The defendant was angry and
hostile and the situation escalated quickly. The defendant blocked the front
door of the victim’s apartment with furniture. The victim then sat in a chair in
the kitchen near the rear door of the apartment, which was bolt-locked. The
defendant followed the victim into the kitchen and sat in a chair approximately
five feet away from her. The victim testified that she “couldn’t” leave because
she “felt very threatened” and if she had tried to leave by the rear door the
defendant “was close enough . . . to stop [her].”

While in the kitchen, when the victim would stand the defendant would
also stand and put his body in the way to stop her from moving, either with his
chest pressing against her or by using his hands. She tried to get past the
defendant but he pushed her and punched her in the face and body. When the
victim sat in the chair again, the defendant took out his pocketknife, opened
the blade, stood over and in front of her, and told her she was “going to die
today.” When she stood up, the defendant brought the knife down and cut her
hand, causing it to bleed. When the victim tried “to reason with” the defendant
not to kill her, he repeated that she was “dying today.”

The defendant got a large industrial trash bag from under the kitchen
sink, put it on the kitchen table, and said that it “will work,” the victim’s “body
will fit in there.” He then took a butcher knife out of a drawer, stood over the
victim as she sat in the chair, and held the blade of the knife against her
throat. The victim testified that as the defendant “kept pressing harder” with
the knife, she “didn’t want to move,” felt “very helpless,” was “really scared,”
“felt like at any moment, it would be the moment that it would end [her] life,”
and she “just . . . sat there” and “waited for him to stop.”

After the State rested, defense counsel moved to dismiss the indictment,
arguing that there was insufficient evidence that the defendant blocked both
exits from the apartment, as there was no evidence that the defendant, with his
body, prevented the victim from leaving while he was threatening her with a
knife. According to defense counsel, “there was no testimony that [the
defendant] was blocking [the victim] from leaving while there was a knife to her
throat.” The trial court disagreed, reasoning that “a fair reading of the
indictment” would not limit the allegation that the exit was blocked by the
defendant’s body “to the actual physical interposition of his body between [the
victim] and the door.” Because “there was a lot of evidence that [the defendant]
was physically proximate to [the victim] such that she felt restrained from going
out [the rear door],” the trial court denied the motion to dismiss.

II

The defendant first argues that there was insufficient evidence that the
defendant “blocked both exits to the apartment by furniture and/or his body
while threatening [the victim] with a knife.” He asserts that “[a]llowing the jury
to deliberate on that charge on evidence of a means of restraint that was not
alleged in the indictment was a material variance that prejudiced [him],”
thereby requiring reversal of his criminal restraint conviction. Given that, in
instructing the jury, the court “gave a criminal restraint instruction framed by
the specific allegations in the indictment,” the defendant argues that “there was
not sufficient evidence on the criminal restraint charge.”

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. Zubhuza, 166 N.H. at 128. We consider all the evidence and all
reasonable inferences therefrom in the light most favorable to the State. Id.
The defendant bears the burden of demonstrating that the evidence was
insufficient to prove guilt. Id.

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 A defendant is entitled to a plain, fair and full description of the offense
charged. State v. Rousten, 84 N.H. 140, 142 (1929). The object of the
indictment is, first, to furnish the accused with such a description of the
charge against him as will enable him to make his defense, and avail himself of
his conviction or acquittal for protection against a further prosecution of the
same cause; and, second, to inform the court of the facts alleged, so it may
decide whether they are sufficient in law to support a conviction, if one should
be had. Id. Any indictment should be considered adequate if it informs the
defendant of the nature and cause of the accusation with sufficient definiteness
so that he can prepare for trial. Id. at 143; see State v. Greenwood, 113 N.H.
625, 626 (1973) (“Without compliance with ancient technical rules, the modern
indictment simply must allege every element of the offense charged.”).

The premise of the defendant’s argument is that the indictment required
the State to prove that, in addition to blocking the front exit with furniture
and/or his body, he placed his body to block the rear exit while threatening her
with a knife, thereby preventing the victim from leaving. However, we agree
with the trial court that a fair reading of the indictment did not require that the
defendant’s body literally block the rear exit, and that there was ample
evidence that the defendant’s physical proximity to the victim while holding the
blade of a butcher knife against her throat restrained her from going out that
door. Further, the indictment identifies the victim, the place and date of the
alleged offense, and the overt acts committed, thereby leaving the defendant in
no doubt about the offense with which he was charged. See Greenwood, 113
N.H. at 626; State v. Miner, 122 N.H. 86, 87-88 (1982). Accordingly, the
defendant was sufficiently apprised of the factual basis of the indictment so
that he could prepare his defense. See Greenwood, 113 N.H. at 626; Miner,
122 N.H. at 87-88; see also State v. French, 146 N.H. 97, 104 (2001)
(explaining that the question is whether an indictment “contains the elements
of the offense and enough facts to warn the defendant of the specific charges
against him” (quotation omitted)). As set forth above, viewing the evidence in
the light most favorable to the State, we conclude that there was sufficient
evidence upon which a rational trier of fact could have found beyond a
reasonable doubt that the elements of the charge as alleged in the indictment
were met.

The defendant next argues that the court erred in its instruction to the
jury regarding circumstantial evidence. We conclude, however, that this issue
was not preserved for appellate review. As a general rule, a contemporaneous
objection is necessary to preserve a jury instruction issue for appellate review.
State v. Nightingale, 160 N.H. 569, 577 (2010). This requirement affords the
trial court an opportunity to correct an error it may have made and is
particularly fitting when an alleged error involves a jury instruction. Id. This
long-standing requirement is grounded in common sense and judicial economy.
Id. To preserve a jury instruction issue for our review, counsel must do more
than merely submit proposed instructions to the trial court, debate possible

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instructions with the trial court, or object generally to the admissibility of the
evidence itself. Id. Rather, counsel must actually make a specific objection to
the court’s jury instructions. Id.

The record shows that at the conclusion of the evidence, the trial judge
indicated to counsel that he was planning on “giving the standard instructions”
to the jury the following day and, given that “the evidence in the case [was]
mainly direct evidence from [the victim],” while he “hadn’t been thinking about
giving a circumstantial evidence instruction,” he would “hear [counsel] on
that.” The judge indicated that “unless somebody want[ed] to submit a
proposed instruction,” he thought that instructing the jury that they are to
consider “all the evidence in the case [was] adequate.” The judge explained
that he wanted to stay away “from that part of [the model] instruction that
talks about it’s got to be sufficient to exclude all other possibilities, because
that . . . has some utility in a case where all of the evidence is circumstantial”
but is “very confusing where it’s a mixed evidence case.”

Defense counsel “disagree[d],” arguing that, in cases where there is direct
and circumstantial evidence, the defendant was entitled to an instruction that
explains “what is to be considered direct evidence and what is to be considered
circumstantial evidence” and “the jury is allowed to make their own inference.”
The trial judge responded that he would give that instruction but would “not
give the [model] instruction on circumstantial evidence, which has a stand-
alone paragraph.” Defense counsel said she “[u]nderstood” and emphasized
that she wanted the court to explain the difference between direct and
circumstantial evidence and that the jury makes that determination. The court
agreed and explained that it was “going to give an amended form of the [model
jury instruction], not the draft instruction.” Defense counsel replied that she
would “have to take a look at that.”

Referring to the 2010 model jury instructions, the court explained that it
would give the first paragraph, and the first two sentences of the second
paragraph but was “not inclined to give” the rest of the paragraph “because of
the mixed nature of the evidence here.” Defense counsel stated that she
thought “it would be certainly unfair to eliminate that portion of the
instruction.” The trial judge explained that he would “think about that” but
that he was going to “either omit the last part of the middle paragraph, starting
with however, or [he would] modify it.” At the close of the discussion, the trial
judge stated that counsel had “given [him] plenty to think about” that night.

The next morning, prior to closing arguments, the trial court gave
counsel an opportunity to review the final jury instructions. Neither the State
nor the defendant raised any objections. After the trial court instructed the
jury, when asked in a sidebar if there was “[a]nything that counsel would like
to put on the record,” defense counsel replied “No.”

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 Based on the record, we determine that defense counsel “never
formalized an objection” to the final jury instruction. Berliner v. Clukay, 150
N.H. 80, 84 (2003); see N.H. R. Crim. P. 24(b)(9)(B) (“The court shall inform
counsel of its intended jury instructions prior to counsel’s closing arguments.
All objections to the charge shall be taken on the record before the jury
retires.”). Although, during discussion with the trial court the prior day about
a not-yet-prepared instruction, defense counsel expressed a general concern
about modifying the model jury instruction, “[a] chambers discussion directed
at persuading the court to craft or utilize a proposed instruction, without more,
. . . does not constitute a ‘specific, contemporaneous objection.’” Berliner, 150
N.H. at 84. When given the opportunity to review the actual instruction as
modified, defense counsel raised no objection. The argument raised on appeal
is, therefore, not preserved. See id.; see also State v. Thaxton, 122 N.H. 1148,
1152 (1982) (where the defendant failed to make a specific objection upon
which the trial court could either correct any error it had made or rule, thereby
giving the defendant an opportunity to preserve his exception, the issue was
not properly preserved for appeal).

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Timothy A. Gudas,
Clerk

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