State of New Hampshire v. Derrick T. Moyer

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0030, State of New Hampshire v. Derrick
T. Moyer, the court on June 13, 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, Derrick T. Moyer, appeals his conviction in Superior Court (St.
Hilaire, J.) on one felony count of reckless conduct with a deadly weapon. See
RSA 631:3 (2016 & Supp. 2023). We affirm.

I. Background

The trial court found, or the record supports, the following facts. On the
morning of May 24, 2020, the juvenile victims were in the back yard of the
house of one of the victims in Hampstead. A victim testified that as she was
walking up the stairs to the house she heard “two to three shots” and then “a
bullet went over [the victim’s] head through the window” of the house. Upon
investigation, police found a bullet resting at the bottom of the window pane,
and observed that it shattered a hole in an outer pane of glass. Police
determined that the bullet’s trajectory was downward into the window from the
direction of the defendant’s property, and concluded that the bullet had
traveled over the trees between the properties into the window. Police collected
the bullet and brought it to the state laboratory. An individual in the area
reported to police that she heard approximately ten rapid fire gunshots fired at
around the same time when the bullet struck the window.

On May 27, a police officer met with the defendant at the defendant’s
home and advised him that the police had received several complaints the prior
weekend about shots being fired. The defendant admitted he was shooting a
semi-automatic rifle on the morning of May 24. The defendant told the officer
that the rifle had a natural tendency to rise as he fired it. The defendant stated
that he shot at a berm on his property. The berm was aligned in the same
direction as the house where the bullet landed. The defendant provided police
with the rifle. When the officer informed the defendant that a bullet had hit a
house, the defendant apologized several times, saying he would pay for the
damage and that he was “very . . . sorry for what had happened.” Police
arranged for the rifle to be analyzed by the state laboratory. A firearm
examiner at the laboratory concluded that the bullet was fired from the
defendant’s rifle.

The defendant was subsequently indicted on one count of reckless
conduct with a deadly weapon. Following a bench trial, the trial court found
the defendant guilty. This appeal followed.

II. Analysis

On appeal, the defendant challenges the sufficiency of the evidence,
arguing: (1) that he “took comprehensive precautions to avoid risks from his
recreational shooting,” and, therefore, “acted lawfully, and not recklessly”; and
(2) that “there is no proof” that he fired the bullet that landed in the window of
the house.

A challenge to the sufficiency of the evidence raises a question of law,
which we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). When
considering such challenges, we objectively review the entire record to
determine whether any rational trier of fact could have found guilt beyond a
reasonable doubt, considering the evidence, and all reasonable inferences
drawn therefrom, in the light most favorable to the State. Id. We examine each
item of evidence in the context of the entire case, and not in isolation. Id. The
trier of fact may draw reasonable inferences from facts proved as well as from
facts found as the result of other inferences, provided they can be reasonably
drawn therefrom. Id. Because the defendant chose to present a case, we
review the entire trial record to determine the sufficiency of the evidence. Id.
The defendant bears the burden of proving that the evidence was insufficient to
prove guilt. Id.

We first determine whether the evidence was sufficient to prove that the
defendant fired the shot as charged. The defendant has not met his burden of
establishing that the evidence was insufficient. The defendant points to his
son’s testimony at trial, which indicated that neither the defendant, nor his
son, fired the rifle matched to the bullet found in the window. Further, the
defendant suggests that his son “had some criminal liability in the matter” as
the son was granted immunity for the purposes of his testimony at trial.
However, to the extent the defendant argues that either the rifle at issue was
not fired at all that morning, or that his son fired the rifle, such conclusions
are not reasonable in light of the other evidence. For instance, the bullet at
issue was fired from the defendant’s rifle. Further, the defendant admitted to
police that he fired the rifle that morning, offered to pay for any damages the
shooting may have caused, and denied that his son was shooting that day.
Evaluating the evidence in the light most favorable to the State, we conclude
that a rational trier of fact could have found that the defendant fired the shot
as charged.

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 Next, we determine whether there was sufficient evidence to prove that
the defendant acted recklessly. “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.” RSA 631:3, I. “Reckless conduct is a class B felony if
the person uses a deadly weapon as defined in RSA 625:11, V.” RSA 631:3, II
(2016 & Supp. 2023). “‘Deadly weapon’ means any firearm . . . which, in the
manner it is used . . . is known to be capable of producing death or serious
bodily injury.” RSA 625:11, V (2016). “Recklessly” is defined, in part, as
follows:

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. The risk must be of such a nature and degree that, considering
the circumstances known to him, its disregard constitutes a gross
deviation from the conduct that a law-abiding person would observe in
the situation.

RSA 626:2, II(c) (2016). Assessment of criminal recklessness — that is,
whether a defendant was aware of the risk of serious bodily injury resulting
from his actions, consciously disregarded the risk, and had knowledge of
circumstances that made disregarding the risk a “gross deviation” from law-
abiding conduct — involves comparing the defendant’s conduct with that of a
law-abiding person. State v. Belleville, 166 N.H. 58, 62 (2014). Whether the
defendant acted recklessly does not depend upon the actual harm resulting
from his conduct. Id. at 63. Nor does it depend upon whether the defendant
anticipated the precise risk or injury that resulted. Id. Such an assessment
may include an examination of the surrounding facts and circumstances from
which such awareness may be inferred. Id.

Viewing the evidence in the light most favorable to the State, we conclude
that a rational trier of fact could have found that: (1) the defendant was aware
of and consciously disregarded a substantial and unjustifiable risk that his
conduct of firing multiple shots in rapid succession in the direction of an
adjacent neighborhood, from a semi-automatic rifle that he knew had a
tendency to rise when fired, would place the victims in danger of serious bodily
injury; and (2) disregarding this risk constituted a gross deviation from the
conduct of a law-abiding citizen. The evidence demonstrated that the
defendant had an awareness that firing a bullet into the air was reckless, as
his son testified that the defendant taught him as much. Further, although
the defendant told police he was not firing “indiscriminately” into the air, he
admitted that his rifle would naturally rise while firing. This admission
demonstrates that the defendant had a subjective awareness that firing into
the air carried with it a substantial risk of injury to others. The defendant fired
a semi-automatic rifle several times in rapid succession with the knowledge
that the rifle would naturally rise when fired — thus he was aware of and

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consciously disregarded the risk that a bullet would be launched over the tree
line and into a residential neighborhood. This conduct amounted to a gross
deviation from how a law-abiding citizen would have shot such a rifle.
Accordingly, we conclude that the defendant has not met his burden of
establishing the evidence was insufficient to prove he acted recklessly.

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred; HANTZ MARCONI, J., sat for oral argument but subsequently
disqualified herself and did not participate in further review of the case.

Timothy A. Gudas,
Clerk

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