NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.

                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern judicial district
No. 2016-0573


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                GEDEON KARASI

                           Argued: October 12, 2017
                       Opinion Issued: January 26, 2018

      Gordon J. MacDonald, attorney general (Bryan J. Townsend, II, assistant
attorney general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       BASSETT, J. The defendant, Gedeon Karasi, appeals his conviction
following a jury trial in Superior Court (Ruoff, J.) for attempted murder, see
RSA 630:1-a (2016) (amended 2017); RSA 629:1 (2016), first degree assault,
see RSA 631:1, I (2016), armed robbery, see RSA 636:1, I, III (2016), and
resisting arrest or detention, see RSA 642:2 (2016). On appeal, he argues that
the trial court erred when it denied his motion to dismiss the attempted
murder charge because the evidence was insufficient to prove a purpose to kill,
and that it committed plain error by allocating all of the defendant’s
presentence confinement credit to his misdemeanor sentence. The State agrees
that the trial court erred when it sentenced the defendant and that the
defendant should be resentenced. We affirm the defendant’s attempted murder
conviction, vacate the sentences imposed, and remand for resentencing.

       The jury could have found the following facts. On February 21, 2016,
the defendant, who was unarmed, entered a convenience store in Manchester,
jumped over the counter, and began assaulting the clerk who was behind the
counter. The clerk pressed the panic button, grabbed an aluminum bat from
under the counter, and physically resisted the defendant’s attack. For the next
eight minutes, the defendant and the clerk exchanged blows with the
defendant repeatedly striking the clerk in the head with his fists and the bat,
and kicking him in the head. Approximately seven minutes into the
altercation, the clerk said, “I’m done, please run away, take the money,” and
“Leave me, leave me, I’m done, done.” The defendant did not cease his assault,
but continued to strike the clerk’s face and head with the bat for approximately
forty-five seconds. After leaving the clerk bleeding on the floor, the defendant
grabbed money from the cash register and left the store. He was apprehended
by police as he attempted to flee. The clerk sustained serious injuries to his
face and head and was hospitalized for one and one-half days.

        The defendant was charged with attempted murder, first degree assault,
armed robbery, and resisting arrest or detention. At trial, the State introduced
into evidence a surveillance video from the convenience store which captured
most, but not all, of the altercation. The video has no audio track. The clerk
testified at trial, describing the fight in detail. At the close of the State’s
evidence, the defendant moved to dismiss the attempted murder charge,
arguing that the State did not present sufficient evidence to prove that the
defendant formed a purpose to kill. The trial court denied the motion. The jury
later convicted the defendant on all charges. This appeal followed.

       The defendant argues that the trial court erred by denying his motion to
dismiss the attempted murder charge because the State introduced insufficient
evidence to prove that he formed a purpose to kill the clerk. A challenge to the
sufficiency of the evidence raises a claim of legal error; therefore, our standard
of review is de novo. State v. Morrill, 169 N.H. 709, 718 (2017). To prevail
upon a challenge to the sufficiency of the evidence, the defendant must
demonstrate that no rational trier of fact, viewing all of the evidence and all
reasonable inferences from it in the light most favorable to the State, could
have found guilt beyond a reasonable doubt. Id. When the evidence is solely
circumstantial, it must exclude all reasonable conclusions except guilt. Id.
The proper analysis is not whether every possible conclusion consistent with
innocence has been excluded, but, rather, whether all reasonable conclusions
based upon the evidence have been excluded. State v. Germain, 165 N.H. 350,
361 (2013), modified in part on other grounds by State v. King, 168 N.H. 340,
345 (2015). We evaluate the evidence in the light most favorable to the
prosecution and determine whether an alternative hypothesis is sufficiently


                                        2
reasonable that a rational juror could not have found proof of guilt beyond a
reasonable doubt. Id. at 361-62. “We do not review each circumstance proved
in isolation, or break the evidence into discrete pieces in an effort to establish
that, when viewed in isolation, these evidentiary fragments support a
reasonable hypothesis other than guilt.” Id. at 362 (quotation and brackets
omitted). “Instead, we must consider whether the circumstances presented are
consistent with guilt and inconsistent, on the whole, with any reasonable
hypothesis of innocence.” Id. (quotation omitted).

       “To prove attempted murder, the State is required to submit sufficient
evidence that a person took a substantial step toward killing another with the
purpose of accomplishing the killing.” State v. Young, 159 N.H. 332, 338
(2009); see also RSA 626:2, II(a) (2011) (defining “purposely”); RSA 629:1, I
(defining “attempt”).

        The defendant argues that a reasonable juror could not convict him of
attempted murder because the evidence at trial was insufficient to exclude the
alternative reasonable hypotheses that the defendant continued to hit the
victim after the victim said “I’m done, please run away, take the money” out of
an “expression of anger, a desire to retaliate, or a purpose to injure short of
killing.” The defendant asserts that these alternatives are reasonable because
the evidence demonstrates that he entered the store unarmed, had no motive
to kill the clerk, did not beat the clerk into unconsciousness, and did not
injure the clerk severely enough to create a substantial risk of death. We are
not persuaded.

       We conclude that the jury could rationally have found that the
defendant’s alternative hypotheses were not reasonable — i.e., did not create
reasonable doubt — in light of all the evidence presented that the defendant
had a purpose to kill the clerk. See Germain, 165 N.H. at 362. The evidence
showed that, even after the clerk no longer had possession of the bat and said,
“I’m done, please run away, take the money,” rather than returning to the cash
register and completing the robbery, the defendant continued to strike the
clerk’s head with the bat, inflicting serious physical injury. See State v. Patten,
148 N.H. 659, 662 (2002) (reasoning that the severity and the location of
wounds to the victim’s head supported the jury’s finding that the defendant
acted with premeditation and deliberation). The clerk testified that the
defendant continued to strike him even after the clerk had said “I’m done, I give
up.” Based upon this evidence, a rational jury could have found beyond a
reasonable doubt that, even if the defendant entered the store intending to
commit robbery as opposed to murder, the defendant’s intent evolved into a
purpose to kill the clerk.

     Both the defendant and the State contend that our decision in State v.
Morehouse, 120 N.H. 738 (1980), supports their position. In Morehouse, a



                                        3
jury convicted the defendant of attempted first degree murder1 based upon
evidence that the defendant followed the victim to her car, grabbed her, and hit
her head repeatedly with “a large metal autobody hammer.” Morehouse, 120
N.H. at 740-41. The victim’s injuries were “massive”: her eyes were swollen
shut, she had multiple lacerations on her face, her nose and a tooth were
broken, and she sustained “disfiguring scars that would require plastic
surgery.” Id. at 741. On appeal, the defendant argued that, because he
“voluntarily ceased his assault,” the “only logical inference” was that he did not
intend to cause the victim’s death and, thus, the evidence was insufficient to
show that he had the requisite intent to sustain his conviction. Id. We rejected
the defendant’s argument, reasoning that the defendant may have stopped
striking the victim after she passed out only because he believed that he had
killed her. Id. at 741-42. We held “that there was sufficient evidence which
could reasonably support a finding of guilt beyond a reasonable doubt of
attempted first-degree murder” and observed that “even if the defendant
voluntarily ceased [his assault] . . . before he believed he had caused her death,
that does not preclude the jury from reasonably inferring that the defendant
intended to kill her.” Id.

       Here, the defendant argues that this case is distinguishable from
Morehouse because the clerk’s injuries were not as severe as the injuries in
Morehouse. We are not persuaded. Here, in the words of a police officer who
found the clerk on the floor of the convenience store, the clerk was “choking on
his own blood”; his lips, mouth, and nose “were almost completely swollen
shut”; he had a laceration on his chin through which the officer “could more or
less see his jaw bone”; and he had a contusion on his head the size of half of a
tennis ball. Even if these injuries might be viewed as less severe than the
victim’s injuries in Morehouse, they were undeniably serious, and the jury
could have concluded that the defendant’s alternative hypotheses — that his
blows were “an expression of anger, a desire to retaliate, or a purpose to injure
[the clerk] short of killing” him — were not reasonable. See Germain, 165 N.H.
at 361 (“The proper analysis is not whether every possible conclusion
consistent with innocence has been excluded, but, rather, whether all
reasonable conclusions based upon the evidence have been excluded.”).

      The defendant also contends that, because he voluntarily ceased his
assault of the clerk, and at that time the clerk was still conscious, his conduct
was inconsistent with a purpose to kill. However, even if the clerk was not
unconscious, that does not preclude the jury from reasonably inferring that the
defendant intended to kill him. See Morehouse, 120 N.H. at 741 (observing
that the jury is not precluded “from reasonably inferring that the defendant

1  We note that although we were not asked to address the issue in Morehouse, we
subsequently held in State v. Allen, 128 N.H. 390 (1986), that the State was not required to
allege and prove an attempt to commit murder of a specific variety. Rather, attempted murder
is a single generic crime.


                                             4
intended to kill” even if he did not believe that he had caused the victim’s death
at the time he ceased the assault).

      Given the totality of the evidence, we conclude that the defendant has
not met his “burden to demonstrate that no rational trier of fact, viewing the
evidence in the light most favorable to the State, could have found guilt beyond
a reasonable doubt.” Germain, 165 N.H. at 362 (quotation omitted). The State
concedes that the trial court’s allocation of the defendant’s presentence
confinement credit is plainly erroneous. See State v. Edson, 153 N.H. 45, 49-
50 (2005). Accordingly, we vacate the sentences imposed and remand for
resentencing.

                                            Conviction affirmed; sentence
                                            vacated; and remanded for
                                            resentencing.

     DALIANIS, C.J., and HICKS, LYNN, and HANTZ MARCONI, JJ.,
concurred.




                                        5
