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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Coos
Nos. 2014-0112
     2014-0743


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                SAMUEL PENNOCK

                          Argued: September 16, 2015
                        Opinion Issued: October 27, 2015

      Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.


      Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      DALIANIS, C.J. In these consolidated appeals, the defendant, Samuel
Pennock, appeals his conviction by a jury of felony simple assault, see RSA
631:2-a (2007); RSA 173-B:9, IV (2014), and the denial by the Superior Court
(Bornstein, J.) of his post-conviction motion to vacate his sentence and for a
new trial. On appeal, he argues that the trial court erred by: (1) substantively
admitting the victim’s pretrial oral and written statements under the excited
utterance exception to the hearsay rule, see N.H. R. Ev. 803(2); (2) denying his
motion to dismiss the simple assault charge; (3) denying his post-conviction
motion to reduce that charge to a class B misdemeanor and to resentence him
accordingly; and (4) denying his post-conviction motion for a new trial based
upon newly discovered evidence. We affirm.

       On July 29, 2013, a grand jury indicted the defendant on three charges:
(1) simple assault as a class B felony, see RSA 631:2-a; RSA 173-B:9, IV; (2)
second degree assault as a class A felony, see RSA 631:2, I(f) (Supp. 2014); RSA
173-B:9, IV; and (3) criminal mischief as a class B felony, see RSA 634:2, III
(2007); RSA 173-B:9, IV. The charges all stemmed from an incident that
occurred on or about July 9, 2013. The indictments alleged that, on or about
July 9, the defendant pushed and strangled his wife and kicked her vehicle.
Following a January 2014 jury trial, the defendant was acquitted of all but the
simple assault charge. In February 2014, the trial court sentenced him to 12
months in the house of corrections, stand committed, with nine months of the
sentence suspended for two years. The court also placed the defendant on
probation for two years following his release from the house of corrections.

       In October 2014, while his appeal of the simple assault conviction was
pending, the defendant filed in the trial court a motion to vacate, set aside, or
correct his illegal sentence “based on a statutory error and . . . on newly
discovered evidence.” We stayed further processing of the appeal so that the
trial court could address the motion. The trial court denied the motion and the
defendant’s subsequent motions for reconsideration. We later consolidated the
defendant’s appeal of the trial court’s denial of his post-conviction motion with
his direct appeal of his conviction. We first address the defendant’s direct
appeal.

I. Excited Utterance

      The defendant first argues that the trial court erred by admitting
substantively the victim’s pretrial statements to a police officer under the
excited utterance exception to the hearsay rule. See N.H. R. Ev. 803(2).

      A. Relevant Facts

       The victim testified that the July 9 incident was prompted by her
telephone call to the defendant at approximately 2:30 a.m. asking him to
return home. When he did so approximately 20 minutes later, the defendant
told the victim that she had been rude. The defendant went upstairs, and the
victim stayed downstairs on the couch.

      The next morning, the defendant again told the victim that she had been
rude. When the victim apologized, the defendant asked her to leave the house.
Although the victim wanted the defendant to talk with her, he refused. At one
point, when the defendant attempted to make a telephone call, she “grabbed
the phone” before he could do so, and later she “pulled the phone cord out of
the wall.”


                                        2
      The victim further testified that the defendant wanted to leave, but that
she had hidden the car keys and refused to give them to him. She also
“block[ed] [the defendant] from leaving the house.” Subsequently, the
defendant “grabbed [her] arms,” and she “bit him.” The defendant then
“pushed [her] away from him,” and she “dropped to the ground and started
crying.” The two “started arguing some more,” but, eventually, the victim “let
[the defendant] leave.” When she could no longer see the defendant from the
kitchen window, the victim “went and grabbed the keys from where [she] had
hidden them and packed up the children and . . . [the] dog, and . . . left.” The
victim drove to the homes of two local friends, but, seeing no car in either
driveway, she drove to the police station. The victim testified that she was
crying when she drove to her friends’ homes and that she was still crying and
upset when she arrived at the police station.

       The victim “sat outside the police station in the car for about ten
minutes,” still upset “[f]rom the argument” with the defendant. Still crying, she
entered the police station, where she was greeted by Officer Nessa Platt.
According to the victim, she “didn’t want to say anything” to Platt, but Platt
told the victim that she could see that the victim was “obviously upset,” and
asked her to explain what had happened. When the victim explained that her
children and dog were in the car, Platt told her to “[b]ring them in,” and
“persisted that [the victim] come in [to the police station] and tell her what
happened.” The victim then told Platt about the incident, testifying that, while
she spoke with Platt, she was “very upset” and “scared.”

       During the victim’s direct examination, the State introduced into
evidence photographs that she agreed accurately and fairly represented her
appearance upon arriving at the police station. The State also sought to
introduce her oral and written statements to Platt under the excited utterance
exception to the hearsay rule. Over the defendant’s objection, the trial court
granted the State’s request, observing that “[t]he [victim] [had] testified several
times . . . that when she went [to the police station], when she spoke to the
officer, she was still upset, she was still crying, she was visibly upset.” The
court stated that in the photographs admitted into evidence, the victim
appeared “extremely disheveled, obviously distraught and obviously upset.”

       After this ruling, the victim testified that the first thing that she said to
Platt was, “Nessa, Sam did it.” She also testified that after she tried to
apologize to the defendant, he called her names. She further admitted that the
defendant put his hand in front of her face and that she pushed it away.
However, she denied telling Platt that the defendant had grabbed her and had
thrown her against the wall, that he had pushed her into the kitchen sink, or
that, when she had pushed him off her, he then had put his arms around her
neck. She also denied telling Platt that she had bitten the defendant to get him
off her and that he had responded by grabbing her around the neck and
pushing her to the ground.


                                         3
     The victim then read the following portion of the written statement she
made at the police station:

            I tried to say sorry to [the defendant] for being rude and
      grumpy the night before, and he started being hurtful, calling me
      names, and I was stupid and I was a liar, and told me to leave him
      alone, so I went to the kitchen and started cleaning. He followed
      me and continued to yell and call me names. He got close to my
      face and held his hand in front of my face, and I pushed it away,
      and he grabbed me and threw me into the wall and I got up and
      swung my hand around and said, “Don’t touch me.” He then
      pushed me into the kitchen sink, and I tried pushing him off. He
      had his arm around my neck, so I bit him to get him off, and he
      grabbed my neck and pushed me to the ground and then held me
      down on the ground and was yelling in my face. When he left I got
      the kids in the car and saw him walking back towards the house,
      and I tried talking to him again and he kicked my car.

      Subsequently, the victim read to the jury another written statement:

             I tried to apologize to [the defendant] for being grumpy, and
      he started yelling at me, calling me names like c[**]t, b[***]h, stupid
      and fat cow, and told me he wasn’t accepting my apology and to
      leave him alone. So I went in the kitchen and started cleaning. He
      followed and continued arguing with me and calling me names. I
      gave him no response until he put his hand in my face, and I
      pushed it away and told him to keep his hands away from me. He
      then grabbed my arm and threw me into the den wall. When I got
      up I swung my hand around, which caught his arm. I said, “Don’t
      touch me.” He then grabbed me by my shirt on the collar and
      pushed me backwards until I hit the counter. Meanwhile I was
      trying to push him off me. He grabbed with his arm around my
      neck, so I bit him to get away. He then grabbed me by the throat,
      and I tried telling him he was choking me. I fell to the floor, where
      he restrained me by my arms and legs. When I got up he
      continued to call me the same names. He eventually left the house
      after breaking the phone in half and punching a hole in the wall. I
      got my two daughters and two dogs in the car and I was leaving
      when I saw him coming up the road where I tried to talk to him
      again, and he kicked a dirty mud puddle of water and dirt at the
      car, and it covered my face.

This second written statement was part of the victim’s July 9 application for a
domestic violence order of protection. It was not admitted into evidence
substantively, but, instead, was admitted as a prior inconsistent statement.



                                        4
        On cross-examination, the victim again confirmed that the defendant
pushed her, but denied that he strangled or choked her or put his hands or
arms around her neck so that she could not breathe. She also testified that
she bit the defendant when he tried to restrain her, and “that the argument
. . . turned physical when [she] pushed [the defendant’s] hand into his face.”
She testified that she attempted to prevent the defendant from using the phone
because she “didn’t want him to call the police.” The victim testified that she
was afraid that, if he did so, the State would “take [her] children.”

        Platt also testified about the victim’s pretrial statements. Platt testified
that when the victim arrived at the police station, “[s]he was very upset and
crying[,] . . . [s]he was shaking,” and that when the victim spoke with her, the
victim’s “voice was filled with emotion.” Platt testified that the victim’s first
words to her were: “Sam did it.” When Platt asked what had happened, the
victim told her “that she and [the defendant] had gotten into an argument . . . ,
she attempted to apologize and that he became upset with her and started to
yell at her and call her names.” The victim said that the defendant followed her
into the kitchen, where he continued to yell, and then put his hand in front of
her face. When she attempted to push the defendant’s hand away, the
defendant “threw her against the wall and . . . wrapped his arm around her
neck.” “[S]he bit him to get him away from her,” and the defendant “then
pushed her down onto the ground and . . . wrapped his hand around her neck
and applied pressure.” Platt confirmed that the photographs are “a fair and
accurate representation of what [the victim] looked like on July 9th.” Platt
testified that, with regard to the written statement, the victim wrote it while
“[s]he was still upset” and “was crying the entire time.”

      B. Appellate Arguments

       On appeal, the defendant argues that the victim’s oral and written
statements to Platt constitute hearsay. He asserts that they “were not excited
utterances” because: (1) they were made “after [the victim] had an opportunity
to contrive or misrepresent”; (2) the victim “did not volunteer her statements”;
and (3) the victim “had a motive to not tell Platt everything that had happened.”
He further contends that even if the oral statements were admissible, the
written statement was not. He observes that we have “never found a written
statement to be an excited utterance, because the act of composing one’s
thoughts in order to write about them in an organized fashion is the antithesis
of a spontaneous utterance while made under the stress of a startling event.”

      C. Analysis

      The excited utterance exception to the hearsay rule permits the
admission of hearsay statements “relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition.” N.H. R. Ev. 803(2). “To qualify as an excited utterance,


                                         5
the statement must be a spontaneous verbal reaction to some startling or
shocking event, made at a time when the speaker was still in a state of nervous
excitement produced by that event and before [s]he had time to contrive or
misrepresent.” State v. Pepin, 156 N.H. 269, 274 (2008) (quotation omitted).
“The basis of the excited utterance exception rests with the spontaneity and
impulsiveness of the statement . . . .” Id. (quotation omitted).

       Whether testimony is admissible as an exception to the hearsay rule is
for the trial court to determine. State v. Beltran, 153 N.H. 643, 650 (2006). We
will not disturb its determination unless we find it to be an unsustainable
exercise of discretion. Id. “[O]ur task is not to determine whether we would
have found differently . . . .” In re Adam M., 148 N.H. 83, 84 (2002). “Our only
function on review is to determine whether a reasonable person could have
reached the same decision as the trial court on the basis of the evidence before
it.” State v. Field, 132 N.H. 760, 767 (1990) (quotation and brackets omitted).
“In determining whether a ruling is a proper exercise of judicial discretion, we
consider whether the record establishes an objective basis sufficient to sustain
the discretionary decision made.” State v. Furgal, 164 N.H. 430, 438 (2012)
(quotation omitted). To show an unsustainable exercise of discretion, “the
defendant must demonstrate that the trial court’s ruling was clearly untenable
or unreasonable to the prejudice of his case.” Id. (quotation omitted).

       We hold that the trial court did not unsustainably exercise its discretion
when it admitted the victim’s oral statements under the excited utterance
exception to the hearsay rule. To the extent that the trial court erred by
admitting the victim’s written statement under that exception, we conclude
that, as the State argues, any error was harmless beyond a reasonable doubt.

          1. Oral Statements

       The defendant first contends that the victim’s oral statements are not
excited utterances because she made them after she had time to “fabricate.”
“The precise amount of time that may elapse before a statement loses its
spontaneity as an excited utterance evoked by a startling event and becomes a
mere narrative cannot be established by any absolute rule of law and
accordingly, much must be left to the discretion of the trial court in admitting
or rejecting such testimony.” State v. Martineau, 114 N.H. 552, 557 (1974)
(quotation and brackets omitted).

      The defendant argues that the time it took the victim to watch the
defendant “walk out of sight, retrieve[ ] her keys . . . , gather[ ] the two children
and the dog,” drive past her friends’ homes, drive to the police station, and
then sit in her car for 10 minutes “showed that [she] was not so upset by the
incident as to be incapable of considering her options.” Based upon the record
before us, however, we cannot say, as a matter of law, that “there was simply
too much time for reflective thought.” State v. Woods, 130 N.H. 721, 726


                                          6
(1988); compare id. at 726-27 (child victim’s statement to mother the day after
the assault was not an excited utterance), State v. Fischer, 165 N.H. 706, 709-
11 (2013) (victim’s detailed narrative of assaults, given the day after assaults
occurred and after she went to the hospital for treatment and to work, did not
constitute an excited utterance), and State v. Thompson, 161 N.H. 507, 532
(2011) (explaining that “the admissibility of statements made five days following
a startling event runs directly contrary to our . . . case law”), with Pepin, 156
N.H. at 274-75 (victim’s 911 call, made several hours after the defendant
stopped beating her, constituted excited utterance), State v. Bonalumi, 127
N.H. 485, 489 (1985) (wife’s statement made within an hour of her husband’s
arrest constituted an excited utterance), State v. Plummer, 117 N.H. 320, 325
(1977) (statement constituted an excited utterance when given more than three
hours after startling event).

        We find Pepin instructive. In that case, the defendant beat the victim
severely. Pepin, 156 N.H. at 271-72. Afterwards, the victim lay in bed next to
him for over six hours, contemplating how best to flee and whether to take her
baby with her. Id. at 272. Eventually, she decided to leave without her baby,
afraid that if she took the baby, the baby would cry and wake the defendant
and he would then beat her again. Id. At 4:00 a.m., the victim began inching
her way out of the bed. Id. When she was finally able to walk out of the
bedroom, she went downstairs, took her cell phone, entered the garage,
climbed into her car, started it, locked the doors, drove, and called 911. Id. at
272-73. We rejected the defendant’s argument that the victim’s 911 call could
not be an excited utterance because she made the call several hours after the
beating stopped. Id. at 274-75. We explained, “The timing of the statement is
only a factor to be considered.” Id. at 274 (quotation omitted). We held that
the statements constituted excited utterances because “the victim was still
under the stress of excitement caused by the beating, her flight from the
defendant and her decision to leave her baby behind, and these were the
‘startling or shocking’ events giving rise to her statements on the 911 call.” Id.
at 275; see Woods, 130 N.H. at 727 (“Although this requirement of temporal
proximity is designed to foreclose any opportunity for the declarant to contrive
or misrepresent the facts, a delayed statement may still have had its source in
such continuing excitement that spontaneity exists[ ] sufficient to justify a
departure from requiring strict contemporaneity.” (quotation and citations
omitted)).

       Similarly, in this case, the trial court reasonably could have found that
the victim was still under the stress of excitement caused by the physical
altercation with the defendant and her flight from the house and that those
“startling or shocking” events gave rise to her statements to Platt. Both the
victim and Platt testified that, when they spoke, the victim was crying and very
upset. Platt testified that the victim was “shaking,” and that her “voice was
filled with emotion,” which shows that she remained upset by the physical
altercation with the defendant. See MacDonald v. B.M.D. Golf Assocs., 148


                                        7
N.H. 582, 585 (2002). The photographs further support the finding. As the
trial court found, they “depict [the victim] as extremely disheveled, obviously
distraught and obviously upset.” See State v. Gordon, 148 N.H. 710, 720
(2002) (rejecting defendant’s argument that victim’s statement was not an
excited utterance because it was made after she had had time to reflect when
statement was made only minutes after startling event, while victim was
“upset, trembling, shaking, and crying”).

       The defendant next argues that the statements are not excited utterances
because they were made in response to Platt’s questions. “The fact that an . . .
utterance is made in response to a question does not necessarily bar its
admission as an excited utterance.” State v. Kenna, 117 N.H. 305, 308 (1977).
It is but one factor to be considered. See id.; see also MacDonald, 148 N.H. at
585 (explaining “[t]hat the declarant may have been responding to a question
does not prevent his statement from being spontaneous”). Moreover, the trial
court reasonably could have found that the victim spontaneously responded to
a general question by Platt and that her response was made while still under
the stress of the physical altercation with the defendant. See State v. Hudson,
121 N.H. 6, 10-11 (1981) (upholding trial court’s determination that victim’s
statement constituted an excited utterance even though it was made ten
minutes after the startling event and was made in response to his father’s
question).

       We disagree with the defendant that the victim’s pretrial statements are
similar to those in Cole. See State v. Cole, 139 N.H. 246, 249-50 (1994). In
Cole, the declarant was a passenger in a vehicle driven by the defendant. Id. at
248. When a police officer saw the vehicle speeding, he signaled the vehicle to
pull over, and when it did not stop, a chase ensued. Id. Eventually, the car
crashed into an embankment alongside the road. Id. The officer stopped his
cruiser beside the vehicle and saw the declarant exiting through the passenger
door. Id. Footprints led the police from the driver’s side of the vehicle to the
top of the embankment, where the police arrested the defendant. Id.

       At trial, the State offered the officer’s testimony that the declarant had
told him, “Hey, man, I didn’t drive the car. It was the other guy.” Id.
(quotation omitted). We explained that when exculpatory statements are “made
in response to direct charges of fault,” they are considered to be deliberate, “not
reflexive.” Id. at 249. We concluded that, because the declarant’s statement
came “on the heels of [the declarant’s] involvement in illegal activity, the
officer’s approach betokened an impending accusation.” Id. Thus, we
reasoned, the declarant’s statement “was not spontaneous, but was designed to
exonerate himself from a charge of disobeying a police officer,” and, thus, was
not an excited utterance. Id.

     By contrast, in this case, there was no evidence that, when the victim
spoke with Platt, she was responding to “direct charges of fault.” Id. Rather,


                                        8
the trial court reasonably could have found that the victim’s statements were
spontaneous, and not deliberate, made under the excitement of the startling
event.

      The defendant also contends that the victim’s statements cannot be
excited utterances because she “had a motive to not tell Platt everything that
had happened.” However, “[t]hat an out-of-court statement is self-serving does
not render it inadmissible.” Id.

      Considering the record, we cannot conclude that the trial court
unsustainably exercised its discretion by admitting the victim’s pretrial oral
statements to Platt as excited utterances. “We will not overturn the superior
court’s decision on appeal simply because we might have ruled differently.”
State v. Dedrick, 132 N.H. 218, 226 (1989); see In the Matter of Kurowski &
Kurowski, 161 N.H. 578, 600-01 (2011) (explaining that “the fact that the trial
court reasonably could have reached a different decision based upon the
evidence before it” does not “mean that its decision constitutes an
unsustainable exercise of discretion”).

         2. Written Statement

       We need not decide whether admission of the victim’s written statement
was error, because we agree with the State that any such error was harmless.
An error is harmless if we can say beyond a reasonable doubt that it did not
affect the verdict. State v. Beede, 156 N.H. 102, 109 (2007). The State bears
the burden of proving that an error is harmless. Id. The evaluation of whether
the State has met its burden involves consideration of the alternative evidence
presented at trial and the character of the contested evidence. Id. An error
may be harmless beyond a reasonable doubt if the alternative evidence of the
defendant’s guilt is of an overwhelming nature, quantity or weight, and if the
contested evidence is merely cumulative or inconsequential in relation to the
strength of the State’s evidence of guilt. Id.

       In this case, the victim’s written statement at the police station was
cumulative of her oral statements to Platt. See State v. Clay, 910 N.E.2d 14,
19 (Ohio Ct. App. 2009). The facts of this case are similar to those in Clay.
Clay involved a physical altercation between the defendant and his girlfriend,
the victim. Id. at 17. After the altercation, the victim left the couple’s
apartment, went to a grocery store, and called a local city council member. Id.
The victim told the city council member that the defendant had kicked her in
the face and that she was bleeding. Id. The council member called the police.
Id. The police found the victim in the apartment parking lot. Id. The victim
was “hysterical, crying, and screaming.” Id. The victim told the police that the
defendant had kicked her in the face. Id. The police transported the victim to
the police station where she signed a short written statement describing the
assault. Id. At trial, the victim “distanced herself from her earlier written


                                       9
statement,” claiming that she could not remember specific details about the
assault. Id. She testified that the defendant had tried to pull the phone away
from her and that when she pulled back, it hit her in the face, causing a red
mark, but not hurting her. Id. On direct examination, the prosecution, with
the court’s approval, submitted the victim’s written statement as substantive
evidence. Id. at 18.

      On appeal, the defendant argued that the unsworn written statement
constituted hearsay and should not have been admitted substantively. Id. The
appellate court agreed that the statement constituted inadmissible hearsay,
but concluded that its admission was not reversible error because it was
cumulative of the victim’s excited utterances to the police officers at the scene
and to the city council member. Id. at 19.

      Similarly, in this case, the victim’s written statement to Platt was
cumulative of her excited utterances. Moreover, like the victim’s July 9
application for a domestic violence order of protection, the victim’s written
statement to Platt could have been admitted to impeach the victim’s trial
testimony as a prior inconsistent statement. See N.H. R. Ev. 607; see Beltran,
153 N.H. 650-52. If it had been so admitted, the jury would still have had a
strong reason to believe Platt’s account of what the victim said. Under all the
circumstances, we hold that any error in the admission of the victim’s written
statement to Platt as substantive evidence was harmless beyond a reasonable
doubt. See Clay, 910 N.E.2d at 19.

II. Self-Defense

       The defendant next asserts that the trial court erred “in finding sufficient
evidence to prove that [he] did not act in self-defense.” At the close of the
State’s case, the defendant moved to dismiss the simple assault charge on the
ground that the State had failed to disprove that he acted in self-defense. The
trial court denied the motion, stating:

      [T]here is a plethora of inconsistent and contradictory statements
      and it’s up to the jury to sort out those statements and determine
      what weight to give to [them] . . . and what to accept and what to
      reject, but there is evidence from which a jury could find beyond a
      reasonable doubt that . . . the Defendant did not act in self-
      defense.

On appeal, the defendant concedes that there was conflicting evidence
regarding whether he acted in self-defense, in that portions of the victim’s trial
testimony conflicted with what she told Platt on July 9. However, he argues
that “because the differences between [the victim’s] testimony and her
statements to Platt could support either of two reasonable inferences, including
one consistent with self-defense, the evidence failed to disprove that defense.”


                                        10
      Under RSA 627:4, I (2007), “[a] person is justified in using non-deadly
force upon another person in order to defend himself . . . from what he
reasonably believes to be the imminent use of unlawful, non-deadly force by
such other person, and he may use a degree of force which he reasonably
believes to be necessary for such purpose.” Force is not justified, however, if
the defendant had a “purpose to cause physical harm” and “provoked the use
of unlawful, non-deadly force” by the other person, or was the “initial
aggressor.” RSA 627:4, I. “When evidence of self-defense is admitted, conduct
negating the defense becomes an element of the charged offense, which the
State must prove beyond a reasonable doubt.” State v. Santamaria, 145 N.H.
138, 141 (2000) (quotation, brackets, and emphasis omitted).

       To prevail in his challenge to the sufficiency of the evidence negating self-
defense, the defendant must establish 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, beyond a reasonable doubt, that he did not act
in self-defense. See State v. Costella, 166 N.H. 705, 709 (2014). In reviewing
the evidence, we examine each evidentiary item in the context of all the
evidence, not in isolation. State v. Kelley, 159 N.H. 449, 455 (2009). Further,
the trier of fact may draw reasonable inferences from facts proved and also
inferences from facts found as a result of other inferences, provided they can
be reasonably drawn therefrom. Id. Because a challenge to the sufficiency of
the evidence raises a claim of legal error, our standard of review is de novo.
State v. Collyns, 166 N.H. 514, 517 (2014).

       The defendant appears to assert that the victim’s testimony at trial and
her pretrial statements to Platt constitute “circumstantial” evidence. Thus, he
cites the standard we apply when the evidence as to one or more elements of
the charged offense is solely circumstantial. See State v. Germain, 165 N.H.
350, 360 (2013) (holding that when the evidence as to one or more of the
elements of the charged offense is solely circumstantial, it must exclude all
reasonable conclusions except guilt). The victim’s testimony and pretrial
statements to Platt, however, are direct evidence of what occurred on July 9.
Thus, the defendant’s reliance upon our “solely circumstantial” test is
misplaced.

       Here, viewing the evidence and all reasonable inferences from it in the
light most favorable to the State, we conclude that a rational trier of fact could
have found, beyond a reasonable doubt, that the defendant provoked the victim
verbally, was the initial aggressor in the altercation, and/or that he used an
unreasonable degree of force. A rational trier of fact could have found that,
upon returning home, the defendant “became upset with [the victim,] . . .
started to yell at her and call her names.” A rational trier of fact could also
have found that, at one point, while he was yelling and calling the victim
names, he put “his hand in her face” and, when she pushed it away, “he then
threw her against the wall and . . . wrapped his arm around her neck.” A


                                        11
rational trier of fact could also have found that the victim bit him “to get him
away from her,” and that, when she did so, he “pushed her down onto the
ground and . . . wrapped his hand around her neck and applied pressure.”

       Although there were conflicts between the victim’s trial testimony and
her pretrial statements to Platt, the jury was free to “accept some parts and
reject other parts” of the victim’s testimony and to “adopt one or the other of
[her] inconsistent statements.” State v. Mason, 150 N.H. 53, 56 (2003)
(quotations omitted). We cannot say, on the record before us, that it was
unreasonable for the jury to resolve the victim’s conflicting testimony and
pretrial statements to Platt in favor of the State. See State v. McAvenia, 122
N.H. 580, 582 (1982). Nor can we say that no reasonable trier of fact could
have found, beyond a reasonable doubt, that the defendant did not act in self-
defense. See id. Accordingly, we hold that the trial court did not err by
denying the defendant’s motion to dismiss the simple assault charge.

III. Indictment and Sentence

      We now address the defendant’s appeal of the trial court’s denial of his
post-trial motion to vacate his sentence and for a new trial. The defendant
contends that the State improperly brought the simple assault charge as a
class B felony. He contends that the simple assault charge should only have
been brought as a class A misdemeanor, and, that therefore, the trial court
erred by denying his motion to vacate his sentence and by failing to resentence
him.

      According to the indictment, the simple assault charge was enhanced
because, within six years of the July 9 incident, the defendant had been
convicted of violating a domestic violence protective order. See RSA 173-B:9,
IV. Before the trial began, outside of the presence of the jury, the defendant
stipulated that he had previously been convicted of violating a protective order
within six years of the July 9 incident. The defendant specifically
acknowledged that, because of the stipulation, if he were to be convicted of the
simple assault charge, that charge would be recorded as a class B felony and
he would be subject to class B felony penalties.

       Approximately eight months after the trial court sentenced him, the
defendant moved to vacate the sentence, arguing that the simple assault
charge, in fact, constituted a class B misdemeanor, and, therefore, the trial
court erred by sentencing him to incarceration and probation. See RSA 651:2,
III (2007) (providing that the sentence for a “person convicted of a class B
misdemeanor . . . shall not include incarceration or probation”); see also RSA
625:9, IV(b) (2007) (defining a class B misdemeanor as “any crime so
designated” and “any crime outside of this code for which the maximum
penalty does not include any term of imprisonment”). The defendant asserted
that, because the legislature did not classify simple assault as a class A or


                                        12
class B misdemeanor, it is presumed to be a class B misdemeanor. See RSA
625:9, IV(c) (Supp. 2014). Under RSA 625:9, IV(c), the charge would be
deemed a class A misdemeanor only if an element of the offense involved “an
act of violence” or “threat of violence,” or if the State had filed “a notice of intent
to seek class A misdemeanor penalties on or before the date of arraignment.”
Here, the defendant asserted, the charge remained a class B misdemeanor
because it did not involve “an act of violence” or “threat of violence,” RSA 625:9,
IV(c)(1); see State v. Blunt, 164 N.H. 679, 683-84 (2013), and because the State
never filed the statutorily-required notice. See RSA 625:9, IV(c)(2). He
contended that, because the simple assault charge constituted a class B
misdemeanor, the trial court should have sentenced him accordingly, and that
it erred by sentencing him to incarceration and probation. See RSA 651:2, III;
see also RSA 625:9, IV(b). The trial court concluded that no notice, other than
the class B felony indictment itself, was required by statute, and, thus, denied
the defendant’s motion.

       The defendant concedes that his appellate argument differs from his trial
court argument. On appeal, he asserts that the trial court erred by failing to
reduce his sentence to a class A misdemeanor penalty. He contends that the
felony indictment enhanced the simple assault charge from a class B to a class
A misdemeanor, but if the State wanted to charge him with a class B felony, it
first had to file the notice required by RSA 625:9, IV(c)(2). Because of the
differences between his appellate and trial court arguments, the defendant
invokes our plain error rule. See Sup. Ct. R. 16-A. Accordingly, we confine our
review to plain error.

       The plain error rule allows us to consider errors that were not raised in
the trial court. State v. Ortiz, 162 N.H. 585, 590 (2011). We apply the rule
“sparingly, its use limited to those circumstances in which a miscarriage of
justice would otherwise result.” Id. (quotation omitted). To reverse a trial court
decision under the plain error rule: “(1) there must be an error; (2) the error
must be plain; (3) the error must affect substantial rights; and (4) the error
must seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotation omitted).

       We need not decide whether the State erred by charging the defendant
with simple assault as a class B felony, and, likewise, whether the trial court
erred by imposing a class B felony penalty for that charge because we hold that
the second criterion of the plain error rule is not met. Thus, the defendant has
failed to demonstrate that the trial court committed plain error by allowing the
class B felony indictment and penalty to stand.

       “For the purposes of the plain error rule, an error is plain if it was or
should have been obvious in the sense that the governing law was clearly
settled to the contrary.” Id. at 591 (quotation omitted). “When the law is not
clear at the time of trial and remains unsettled at the time of appeal, a decision


                                          13
by the trial court cannot be plain error.” Id. (quotation omitted). “‘Plain’ as
used in the plain error rule is synonymous with clear or, equivalently, obvious.”
Id. (quotation omitted).

      Here, the trial court’s error was neither clear nor unequivocally obvious
because this case is one of first impression, id., and because the statutes at
issue are not clear on their face as to how they should be construed together
“so that they do not contradict each other, and so that they will lead to
reasonable results” and effectuate their legislative purpose. State v. Cheney,
165 N.H. 677, 682 (2013) (quotation omitted).

      The two statutes at issue are RSA 173-B:9, IV and RSA 625:9, IV(c). RSA
173-B:9, IV allows the State to enhance a defendant’s subsequent offense
“involving abuse” when it occurs “within 6 years” of a conviction “under RSA
173-B:9, III.” Under RSA 173-B:9, IV(c), “[i]f the subsequent offense would
otherwise constitute a class A misdemeanor, it may be charged as a class B
felony.” Under RSA 173-B:9, IV(d), “[i]f the subsequent offense would otherwise
constitute a class B misdemeanor, it may be charged as a class A
misdemeanor.” The defendant does not dispute that “he had a qualifying
conviction within six years that can serve to enhance a simple assault charge.”

       RSA 625:9, IV (Supp. 2014) provides that, when a misdemeanor is
committed by an individual, it is either a class A or class B misdemeanor. It
also provides that, when, as in the instant case, the Criminal Code does not
designate a crime as either a class A or class B misdemeanor, see RSA 631:2-a,
it “shall be presumed to be a class B misdemeanor unless: (1) [a]n element of
the offense involves an ‘act of violence’ or ‘threat of violence’ . . . ; or (2) [t]he
state files a notice of intent to seek class A misdemeanor penalties on or before
the date of arraignment.” RSA 625:9, IV(c).

      In the trial court, the defendant contended that the two statutes require
the State to file the notice described in RSA 625:9, IV(c)(2) whenever it seeks
any penalty other than class B misdemeanor penalties for an unclassified
misdemeanor. The lack of notice, the defendant argued, meant that his simple
assault charge remained a class B misdemeanor, notwithstanding that the
indictment charged simple assault as a class B felony.

      On appeal, the defendant posits a different interpretation. He now
argues that, even without the notice described in RSA 625:9, IV(c)(2), the State
could obtain class A misdemeanor penalties for the simple assault charge
pursuant to RSA 173-B:9, IV. The defendant asserts that the lack of notice
under RSA 625:9, IV(c)(2) meant that, because of RSA 173-B:9, IV, his simple
assault charge became a class A misdemeanor, but did not become a class B
felony. He argues that, had the State wanted to elevate the simple assault
charge to a class B felony, it was required to issue the notice under RSA 625:9,



                                         14
IV(c)(2) and to charge him by indictment with simple assault as a class B
felony.

       The State posits still another interpretation. The State contends that an
unclassified misdemeanor may be elevated to a class B felony pursuant to RSA
173-B:9, IV, regardless of whether the State provides the notice described in
RSA 625:9, IV(c)(2). To the State, it is unclear from the language of either
statute how the legislature intended RSA 173-B:9, IV and RSA 625:9, IV(c)(2) to
be construed so that they are “consistent with each other[,] . . . . do not
contradict each other, and so that they will lead to reasonable results and
effectuate [their] legislative purpose.” Cheney, 165 N.H. at 682 (quotation
omitted). As the State observes, while RSA 173-B:9, IV expressly precludes the
State from elevating an unclassified felony, it is silent with regard to
unclassified misdemeanors. See RSA 173-B:9, IV(a). The State interprets this
silence as “implying that such offenses should be construed under then-
existing law,” which allowed an unclassified misdemeanor to be elevated to a
class B felony without any notice other than the indictment itself.

       Because the State concludes that “RSA 625:9, IV(c) is clearly ambiguous
when read in conjunction with RSA 173-B:9, IV(c),” the State examines the
legislative history of RSA 625:9, IV(c), observing that the purpose of that
provision was “to save money by forcing prosecutors to decide before
arraignment . . . whether they would seek . . . jail time, because failure to
affirmatively state that decision by filing the [required] notice . . . would mean
that the defendant . . . would not be entitled to appointed counsel.” That
purpose, the State argues, would not be fulfilled if we were to construe RSA
173-B:9, IV and RSA 625:9, IV(c) as allowing the State to elevate unclassified
misdemeanors to class A misdemeanors, but not to class B felonies. This is so,
the State explains, “[b]ecause defendants charged with either class A
misdemeanors or class B felonies are entitled to appointed counsel.” Therefore,
the State reasons that, consistent with the purpose of RSA 625:9, IV(c), an
unclassified misdemeanor may be elevated to a class B felony without the
notice set forth in RSA 625:9, IV(c). Such a ruling, the State argues, promotes
justice, see RSA 625:3 (2007), and complies not only with the intended purpose
of RSA 625:9, IV(c), but also with “the purpose of RSA 173-B:9, which at the
time it was passed plainly contemplated that unclassified misdemeanors could
be elevated to class B felonies.”

      Given these varied and, arguably, reasonable interpretations of the
interplay between RSA 625:9, IV(c) and RSA 173-B:9, IV, we cannot say that,
even if the trial court’s statutory interpretation were error, its error was plain.
Any error was not “plainly evident” from the statutory language. State v.
Henderson, 154 N.H. 95, 98 (2006). Accordingly, we find no plain error here.




                                         15
IV. Motion for a New Trial

      Finally, the defendant argues that the trial court erred when it denied his
motion for a new trial based upon newly discovered evidence. The defendant’s
“newly discovered evidence” is the victim’s post-trial admission to a friend that
she “exaggerated her story” when she spoke with the police about the July 9
incident. The trial court denied the defendant’s motion, in part, because it
found that the victim’s post-trial admission was cumulative of her trial
testimony in which she “consistently minimized the nature and seriousness of
the defendant’s conduct.” On appeal, the defendant concedes that the new
evidence “was consistent with [the victim’s] testimony [at trial] about the
event,” but contends, nonetheless, that the trial court erred in finding the new
evidence cumulative.

       To prevail upon a motion for a new trial based upon newly discovered
evidence, the defendant must show: (1) that he was not at fault for failing to
discover the evidence at the time of his trial; (2) the evidence is admissible,
material to the merits, and not cumulative; and (3) the evidence is of such a
character that a different result would probably be reached in another trial.
State v. Bader, 148 N.H. 265, 282 (2002). “Whether newly discovered evidence
requires a new trial is a question of fact for the trial court.” State v. Cossette,
151 N.H. 355, 361 (2004). We will sustain the trial court’s decision unless it is
clearly unreasonable. Id.

       We cannot conclude that the trial court’s denial of the defendant’s
motion was “clearly unreasonable.” Id. “Cumulative evidence is defined as
additional evidence of the same kind to the same point. Evidence which goes
to a point upon which no evidence was adduced at the former trial is not
cumulative.” Bader, 148 N.H. at 282-83 (quotation omitted). Here, as the trial
court found, and as the defendant concedes, the victim’s post-trial admission
that she exaggerated when she told the police about the July 9 incident is
consistent with her trial testimony. See id. at 283. As the State explains: “If
the jury believed [the victim’s trial] testimony, it could only have concluded that
[she] had exaggerated . . . the story she told Platt[ ], not a little, but a great
deal.” Although the victim told Platt that the defendant had thrown “her
against the wall,” “pushed her down onto the ground,” “wrapped his hand
around her neck,” and “applied pressure,” the victim told the jury that none of
this was true.

       Based upon this record, we conclude that the trial court’s finding that
the victim’s post-trial admission was cumulative of other evidence at trial was
not “clearly unreasonable.” Cossette, 151 N.H. at 361. Accordingly, we need
not address the defendant’s arguments regarding the admissibility of the
victim’s post-trial admission. See Bader, 148 N.H. at 283. Even if the victim’s
post-trial admission were admissible, its “cumulative nature . . . dictates that



                                        16
the defendant has failed to meet the second prong of the newly discovered
evidence test.” Id.

                                                Affirmed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




                                      17
