State of New Hampshire v. Dylan Preneveau

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0259, State of New Hampshire v. Dylan
Preneveau, the court on June 28, 2024, issued the following
order:

The court has reviewed the written arguments and record submitted on
appeal and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The defendant, Dylan Preneveau, appeals his conviction for second-
degree assault. We affirm.

This case arises from an altercation between the defendant and the victim
in a Walmart parking lot in Concord. Viewed in the light most favorable to the
State, the evidence supports a finding that, following a verbal exchange, the
defendant punched the victim four or five times — the victim did not punch back.
The victim suffered a zygoma fracture, which required surgery to repair, and a
maxillary sinus fracture.

The defendant was indicted on two counts of second degree assault, one
alleging that he caused serious bodily injury by causing a sinus fracture to the
victim, and the other alleging that he caused serious bodily injury by causing a
zygomatic fracture to the victim. With respect to each charge, the jury was
instructed that if it decided that the defendant was not guilty of second degree
assault, it was to then consider the lesser-included offense of simple assault. If
the jury then found that the defendant committed simple assault, it was to
consider whether the assault was the result of mutual combat.

The defendant was found guilty of second degree assault on the count
related to the zygoma fracture, and guilty of simple assault by mutual combat on
the count related to the sinus fracture. Thereafter, the trial court sentenced the
defendant only on the conviction for second degree assault, dismissing the
conviction for simple assault-mutual combat.

On appeal, the defendant raises two issues: (1) the trial court erred by not
instructing the jury on mutual consent as an alternative to a conviction on
second degree assault; and (2) the trial court erred by not setting aside the
verdicts on the ground that they are irreconcilably inconsistent.

We begin with the first issue. RSA 631:2 (Supp. 2023) sets forth the
elements of second degree assault. Here both counts at issue alleged that the
defendant knowingly caused serious bodily injury to another. RSA 631:2, I(a).
As for simple assault, the elements are set forth in RSA 631:2-a (2016), which
states:

I. A person is guilty of simple assault if he:

(a) Purposely or knowingly causes bodily injury or
unprivileged physical contact to another; or

(b) Recklessly causes bodily injury to another; or

(c) Negligently causes bodily injury to another by means of a
deadly weapon.

II. Simple assault is a misdemeanor unless committed in a
fight entered into by mutual consent, in which case it is a violation.

The defendant argues that the trial court should have allowed the jury the option
of returning a mutual consent verdict if it found him guilty of second degree
assault. We disagree. We construe the Criminal Code according to the fair
import of its terms and to promote justice. RSA 625:3 (2016). “In doing so, we
must first look to the plain language of the statute to determine legislative intent.
Absent an ambiguity we will not look beyond the language of the statute to
discern legislative intent.” State v. McKeown, 159 N.H. 434, 435 (2009).

Here, the plain language of RSA 631:2-a provides that simple assault is
reduced from a misdemeanor to a violation if committed in a fight entered into by
mutual consent. Nothing in either RSA 631:2-a or RSA 631:2, which defines
second degree assault, suggests that second degree assault is reduced from being
a class B felony to either a misdemeanor or violation if committed in a fight
entered into by mutual consent. We discern no ambiguity in the statutory
language, and decline to add language to the statutes that the legislature did not
see fit to include. See State v. Gilley, 168 N.H. 188, 190 (2015).1

Next, the defendant argues that the verdicts are irreconcilably inconsistent.
The defendant recognizes that we have stated that “the inconsistency of

1
In his brief, the defendant also argues that the trial court erred by instructing the jury that
mutual consent “was a lesser included that could only be considered if the jury acquitted [him]
of all greater offenses.” He states that the trial court “made clear that the jury would only
reach the issue of mutual consent if it found [him] not guilty of second-degree and simple
assault.” (Emphasis added.) To the extent that the defendant is arguing that the trial court
erroneously instructed the jury that it was required to find him not guilty of simple assault
before it could consider the issue of mutual consent, the defendant is mistaken. The trial court
instructed the jury that if it found that the defendant committed the lesser included offense of
simple assault, then it must go on to consider and decide whether simple assault was
committed in a fight entered into by mutual consent.
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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. Brown, 132 N.H. 321, 328-29 (1989). However, he
argues that contrary verdicts are not reversibly inconsistent only if the jury’s
conclusions can be reconciled on a rational basis. Even assuming, without
deciding, that the defendant is correct, here there is a rational basis for the
differing verdicts. As the trial judge noted, the verdicts “almost certainly reflect a
determination . . . that the zygomatic fracture meets the definition of a serious
bodily injury, but that the sinus fracture in this case does not.”

The defendant argues, however, that “the jury seemed to find that the fight
was, and was not, entered into by mutual consent.” This argument presupposes
that the offense of second degree assault can be mitigated or reduced by a finding
that the second degree assault was committed in a fight entered into by mutual
consent. Having rejected that premise above, we here reject the argument based
thereon.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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