State v. Rivera

1

State of New Hampshire v. Angel L Rivera,

No. 2022-0212

Supreme Court of New Hampshire

February 28, 2024

SUPREME COURT

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.

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 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." ...