Cited by

State v. Furgal, 164 N.H. 430, 437 (2012) (jury instruction did not need to expressly inform jury it could consider particular evidence in a manner favorable to defendant); State v. Shannon, 125 N.H. 653, 662-63 (1984) (finding that trial court did not err in declining to give instruction that would support defendant’s theory of the case).

By contrast, a “theory of the case” is “simply the defendant’s position on how the evidence should be evaluated and interpreted.” Id.; State v. Shannon, 125 N.H. 653, 662 (1984) (defendant was not entitled to requested jury instruction because he was “not admitting liability and pointing to facts that exonerate, excuse or justify his conduct, but [was] denying criminal behavior”); State v. Ramos, 149 N.H. 272, 274-76 (2003) (defendant charged with aggravated felonious sexual assau

Although we reverse his conviction upon his first claim of *673 error, we must decide this issue because, if the evidence were insufficient, the Double Jeopardy Clauses of the State and Federal Constitutions would preclude a remand for a new trial.

The defendant thus had “ample opportunity to present his theory and the jury was free to consider it.” State v. Shannon, 125 N.H. 653, 663 (1984).

He then argues, citing State v. Shannon, 125 N.H. 653, 666 (1984), that where the statute defining the crime sets forth two classes of offense, the indictment must sufficiently apprise the defendant which class of offense he is alleged to have committed.

We address this argument because if the evidence was insufficient to support the conviction, the Double Jeopardy Clauses of both the New Hampshire and United States Constitutions would preclude a new trial.

There is generally no double jeopardy bar under the State Constitution to the retrial of a defendant whose conviction has been reversed on appeal, State v. Beaupre, 129 N.H. 486, 487 (1987), unless the reason for reversal is insufficiency of the evidence.

Under the defendant’s construction of RSA 642:3, II, the indictment would be defective for failing to include that allegation.

Subparagraphs (a) through (c), however, are each “essential elements” of the class A felony of armed robbery, State v. Shannon, 125 N.H. 653, 664-65, 484 A.2d 1164, 1173 (1984), at least one of which must be specifically set forth in an indictment.

We address this argument because if the evidence had been insufficient, the double jeopardy clauses of the New Hampshire and United States Constitutions would preclude a remand.

Appeal of Plantier, 126 N.H. at 510, 494 A.2d at 275; State v. Shannon, 125 N.H. 653, 661, 484 A.2d 1164, 1171 (1984).

State v. McPherson, 127 *347 N.H. 826, 828, 508 A.2d 1076, 1078 (1986); State v. Shannon, 125 N.H. 653, 659, 484 A.2d 1164, 1170 (1984).

The defendant was not, therefore, entitled under Aubert to an instruction elucidating such a position, which may or may not be mentioned in the course of the charge as a matter of judicial discretion.

Compare State v. Coppola, 130 N.H. 148, 154, 536 A.2d 1236, 1240 (1987) (declarant upset, excited and hysterical, and “raving”), State v. Bonalumi, supra at 488, 503 A.2d at 788 (declarant “upset and speaking spontaneously and probably angrily”) and State v. Kenna, 117 N.H. at 308, 374 A.2d at 430 (declarant “very excited”) with State v. Shannon, 125 N.H. 653, 660, 484 A.2d 1164, 1170 (1984) (no evidence that robbery scene witnesses were in a state of nervous excitement when they gave descriptio

Whether or not a jury instruction on a particular issue is necessary to assist the jury in reaching its verdict is a decision to be made by the trial court in the sound exercise of its discretion.

As we stated in State v. Laliberte, we will “not consider issues raised on appeal that were not presented in the lower court.” State v. Laliberte, 124 N.H. 621, 621, 474 A.2d *724 1025, 1025 (1984); State v. Shannon, 125 N.H. 653, 657, 484 A.2d 1164, 1168 (1984).

State v. Shannon, 125 N.H. 653, 657, 484 A.2d 1164, 1168 (1984); State v. Laliberte, 124 N.H. 621, 621-22, 474 A.2d 1025, 1025 (1984).

State v. Shannon, 125 N.H. 653, 659, 484 A.2d 1164, 1170 (1984) (citation omitted).

Although we are remanding this case for a possible new trial on the above issue, we shall address the remainder of the defendant’s arguments.

Moreover, since the defendant did not present his current argument to the trial court at the pretrial hearing to which we have referred, he may not raise it for the first time here.

The plaintiff did not raise this claim below and may not *141 originate it here.

State v. Shannon, 125 N.H. 653, 664, 484 A.2d 1164, 1173 (1984); cf. State v. Champagne, 119 N.H. 118, 121, 399 A.2d 287, 289 (1979) (“the aggravating facts set forth in RSA 634:1, III are essential elements of the State’s case for felonious arson”).

The duplicitousness runs afoul of the requirement that an indictment inform a defendant of the charge he must meet, so that he can prepare for trial and plead any ensuing verdict as a protection against double jeopardy in any subsequent prosecution.

Because some of the remaining issues are likely to arise in the *510 second hearing, we will consider the doctor’s additional arguments, in the interest of judicial economy.