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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Hillsborough-northern judicial district
No. 2016-0441


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                             DOMINICK STANIN, SR.

                           Argued: November 9, 2017
                         Opinion Issued: March 30, 2018

      Gordon J. MacDonald, attorney general (Sean P. Gill, 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.

       BASSETT, J. The defendant, Dominick Stanin, Sr., appeals his
conviction following a jury trial in Superior Court (Ruoff, J.) for first degree
assault, see RSA 631:1, I(b) (2016), robbery, see RSA 636:1, I(a), III(a) (2016),
and being a felon in possession of a deadly weapon, see RSA 159:3, I(a) (2014).
On appeal he argues that the evidence was insufficient to convict him of
robbery, and that the trial court erred when it did not individually question
each juror about the impact that a photograph — which had not been admitted
into evidence, but which was visible in the defense counsel’s file — had on that
juror’s ability to render an impartial verdict. We affirm.
       The jury could have found the following facts. On August 14, 2014, the
defendant and his adult son entered their housemate’s bedroom and stabbed
him with a knife that the victim described as “kind of like a triangle, kind of [a]
wedged type thing, with a handle on it.” During the assault, the defendant told
his son to “do something, do something.” Thereafter the victim felt someone
reach into his pockets, causing his money, phone, and keys to spill onto the
floor. Neighbors called an ambulance and the victim was taken to the hospital.
When the victim returned home later that day after receiving treatment for two
broken ribs and multiple stab wounds, he noticed that the money, phone, and
keys that had previously been in his pockets were missing from his room.

       The victim identified the defendant in a photo line-up. The police
subsequently arrested the defendant and charged him with first degree assault,
robbery, and being a felon in possession of a deadly weapon. After a three-day
jury trial, the defendant was convicted on all charges.

      As the jury began its deliberations, Juror 9 asked to address the court.
She said that she had seen a photograph in defense counsel’s file of “the
weapon in question” that she “obviously wasn’t supposed to see.” Outside of
the presence of the juror, the court and the lawyers identified the photograph
as an image of a knife. A detective had downloaded the photograph from the
internet, believing that the image matched the description of the weapon used
in the assault. The State disclosed the photograph to defense counsel;
however, it had not been admitted into evidence at trial.

      In response to questioning from the trial judge, Juror 9 assured the court
that she would base her verdict solely on the evidence presented during trial.
She told the court that other jurors may have seen the photograph. The court
instructed the juror to let it know if other jurors mentioned the photograph
during deliberations.

      Less than an hour later, Juror 9 reported to the court that other jurors
were discussing the photograph, and that one juror had stated that defense
counsel had displayed the photograph “almost deliberately, for the jury to see.”
Defense counsel then moved for a mistrial, arguing that the jury was “using
evidence that was not admitted [and drawing] . . . an adverse inference against
the Defense attorney for inadvertently exposing [the photograph] to them,
which is prejudicial to [the defendant].” The court did not rule on the motion;
rather it stated that the jury’s exposure to the photograph did not “fall[] into
the realm of juror misconduct,” and that any resulting prejudice could be cured
by an instruction. Defense counsel then asked the court to individually
question each juror regarding what he or she saw and what opinion, if any, the
juror developed about the photograph. Defense counsel again moved for a
mistrial. The court denied the motion. After finding that a mistrial was not
required, the court reconvened the jury and gave a detailed curative
instruction, explaining that the photograph had not been intentionally


                                         2
displayed, was not evidence, and could not be considered in reaching a verdict.
Each juror then individually affirmed that he or she could “fairly and
impartially deliberate based on the evidence that’s admitted at trial.” The jury
convicted the defendant on all charges. This appeal followed.

       On appeal, the defendant contends that the trial court erred when it: (1)
denied his motion to dismiss the robbery charge because the evidence was
insufficient to prove that he was in the course of committing a theft when he
used force against the victim; and (2) failed to individually question each juror
about the photograph because, without such questioning, “the court’s inquiry
was inadequate to gauge the effect on the jury of the potentially prejudicial
incident.”

       We first address the defendant’s argument regarding the sufficiency of
the evidence. In order to convict the defendant of robbery, the State needed to
prove beyond a reasonable doubt that the defendant, in the course of
committing a theft, used physical force on the victim, and the victim was aware
of the force. RSA 636:1, I(a). “An act shall be deemed ‘in the course of
committing a theft’ if it occurs in an attempt to commit theft, in an effort to
retain the stolen property immediately after its taking, or in immediate flight
after the attempt or commission.” RSA 636:1, II (2016).

       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 prove 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. Under this standard, however, we still consider the evidence in the
light most favorable to the State and examine each evidentiary item in context,
not in isolation. Id. We “consider whether the circumstances presented are
consistent with guilt and inconsistent, on the whole, with any reasonable
hypothesis of innocence.” State v. Germain, 165 N.H. 350, 362 (2013),
modified in part on other grounds by State v. King, 168 N.H. 340, 345 (2015)
(quotation omitted). “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.” Id.
at 361. The court does not determine whether another possible hypothesis has
been suggested by the defendant which could explain the events in an
exculpatory fashion. Id. “Rather, the reviewing court evaluates the evidence in
the light most favorable to the prosecution and determines whether the
alternative hypothesis is sufficiently reasonable that a rational juror could not
have found proof of guilt beyond a reasonable doubt.” Id. at 361-62 (quotation
omitted). “Questions about the reasonableness of theories of innocence are for



                                         3
the jury to decide in cases predicated upon circumstantial evidence.” Id. at
362.

      The defendant argues that, because the evidence was insufficient to
prove that force was used “in the course of committing a theft” as is required
by statute, the trial court erred in denying his motion to dismiss the robbery
charge. See RSA 636:1, II. He contends that a “rational conclusion consistent
with innocence explains the disappearance of [the victim’s] property”; namely,
that other people lived in the house and any one of them could have taken his
property. We disagree.

       Here, a rational juror could have concluded that the defendant’s
alternative hypothesis was not “reasonable” because, given the totality of the
evidence, the presence of other people in the house did not create reasonable
doubt that the defendant committed theft. See Germain, 165 N.H. at 361-62.
The jury heard testimony from the victim that, while the defendant was
stabbing him, the defendant told his son to “do something, do something.” The
victim testified that shortly thereafter, someone reached into his pockets,
causing his money, phone, and keys to spill onto the floor. Although the victim
did not see the defendant take his belongings during the course of the assault,
he testified that, when he returned from the hospital, his money and phone
were missing from his room. 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. See id. at 362.

       We next address the defendant’s argument that the trial court erred
when it failed to question each juror individually about the impact the
photograph of the weapon had on his or her ability to remain impartial. The
defendant contends that the trial court’s decision not to question jurors
individually “about what they saw or heard others discussing and its effect on
their thinking” deprived him of his state and federal constitutional rights to an
impartial jury. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV.
We first address the defendant’s claims under the State Constitution, and rely
upon federal law only to aid our analysis. State v. Rideout, 143 N.H. 363, 365
(1999); see State v. Ball, 124 N.H. 226, 231-32 (1983).

      It is axiomatic that a defendant has a right to be tried by a fair and
impartial jury. State v. Brown, 154 N.H. 345, 348 (2006). Any juror found to
be disqualified before or during trial should be removed. Id.; see RSA 500-
A:12, II (2010). If there is an allegation “that a juror has been biased by
extrinsic contact or communication, the trial court must undertake an
adequate inquiry to determine whether the alleged incident occurred and, if so,
whether it was prejudicial.” Brown, 154 N.H. at 348 (quotation omitted). “In a
criminal case, a defendant must prove actual prejudice, although such
prejudice is presumed when there are communications between jurors and


                                        4
individuals associated with the case or when the juror’s unauthorized
communications with others are about the case.” Id. We have extended “the
same presumption to a juror’s unauthorized view of the crime scene” because it
presents the “same danger . . . as when a juror is party to extraneous
communications concerning the case. In both instances, the juror may base
his or her decision upon evidence that the defendant never had any
opportunity to examine and present to the jury.” State v. Lamy, 158 N.H. 511,
522 (2009). “[W]hen a juror is exposed to extraneous information sufficiently
related to the issues presented at trial, a presumption of prejudice is
established, and the burden of proof shifts to the State to prove that the
prejudice was harmless beyond a reasonable doubt.” Id. at 522-23.

      The defendant argues that the presumption of prejudice applies here
because the jury was exposed to extraneous information related to the case.
The State, citing federal precedent, counters that “the presumption is
applicable only where there is an egregious tampering or third party
communication which directly injects itself into the jury process,” United
States v. Boylan, 898 F.2d 230, 261 (1st Cir. 1990), and that the facts of this
case do not rise to the level of egregiousness which justify imposition of the
presumption. Here, we need not decide whether the presumption of prejudice
applies: even if we were to find that the photograph constituted the kind of
extrinsic contact or communication that triggers the presumption, we conclude
that the trial court did not err when it denied the defendant’s request that each
juror be questioned individually.

       “When a party makes a colorable claim that a jury may be biased or
tainted by extrinsic contact or communication, the court must undertake an
adequate inquiry to determine whether the alleged incident occurred and, if so,
whether it was prejudicial.” Rideout, 143 N.H. at 365 (emphasis added). The
trial court has broad discretion to determine the extent and nature of its
inquiry. Id. This is a fact-specific determination, which we review for an
unsustainable exercise of discretion. Lamy, 158 N.H. at 523.

       Here, the defendant argues that the trial court’s inquiry was inadequate
because the court did not “question each juror individually about what they
saw or heard others discussing and its effect on their thinking.” The defendant
contends that, because we have previously observed that the “most common
approach [for inquiring into juror misconduct] is to remove the offending juror
and undertake individual voir dire of the panel,” id., the trial court erred when
it did not do so here. He further argues that a trial court must question jurors
individually about a presumptively prejudicial incident in order for the record
to sufficiently establish that the jury was untainted. See Rideout, 143 N.H. at
368. We disagree.

     In Rideout, we concluded that the State had failed to rebut the
presumption of prejudice, when, after a witness for the State provided medical


                                        5
assistance to a juror during deliberations, the court did not inquire into the
potentially prejudicial effect the incident may have had on the jury as a whole.
Id. We did not, however, hold that a trial court is required to question each
juror individually. Rather, we stated:

      When a party makes a colorable claim that a jury may be biased or
      tainted by extrinsic contact or communication, the court must
      undertake an adequate inquiry to determine whether the alleged
      incident occurred and, if so, whether it was prejudicial. The trial
      court has broad, though not unlimited, discretion to determine the
      extent and nature of its inquiry.

Id. at 365 (emphases added) (citations omitted). In Rideout, we reversed the
trial court’s decision because it had explored the effect of the incident only with
the juror who received medical assistance, and it “did not hear any evidence or
make any findings” regarding whether that juror had disclosed his encounter
with the State’s witness to the rest of the jury. Id. at 368. Accordingly,
because the State offered no evidence regarding what effect, if any, the incident
had on the other jurors’ ability to render an impartial verdict, we concluded
that the State had failed to rebut the presumption of prejudice. See id.; see
also United States v. Zimny, 846 F.3d 458, 472 (1st Cir. 2017) (a “judge does
not have discretion to refuse to conduct any inquiry at all regarding the
magnitude of the taint-producing event and the extent of the resulting
prejudice if confronted with a colorable claim of juror misconduct” (quotation
omitted)). Therefore, although Rideout requires that a trial court make an
“adequate inquiry” into a presumptively prejudicial incident, it does not
mandate that the trial court individually question each juror. See Rideout, 143
N.H. at 365.

       Here, in contrast with Rideout, despite the fact that the trial court
concluded that the jury’s exposure to the photograph did not fall “into the
realm of juror misconduct,” the trial court investigated the effect of the
photograph on each juror when it: (1) questioned Juror 9 about the nature of
the conversation among jurors about the photograph; (2) instructed the entire
jury that the photograph had not been intentionally displayed, was not
evidence, and could not be considered in reaching a verdict; (3) received an
individual affirmation from each juror that he or she could “continue to fairly
and impartially deliberate based on the evidence that’s admitted at this trial”;
and (4) further instructed the jurors not to discuss the photo, and to notify the
court if the photo was again discussed. The trial court also warned the jurors
that any juror who did not follow the court’s instructions would be replaced.
Therefore here, because of the trial court’s investigation, there was sufficient
evidence to establish that any prejudice resulting from the jury’s exposure to
the photograph was harmless beyond a reasonable doubt.




                                        6
       To the extent that the defendant also argues that the trial court erred
because its curative instruction was insufficient to cure the possible prejudice,
we disagree. “The adequacy of a particular jury instruction necessarily
depends on the capacity of the offending [incident] to lead to a verdict that
could not otherwise be justly reached.” State v. Dowdle, 148 N.H. 345, 348
(2002). Although “there may be some instances in which curative instructions
would be inadequate as a matter of law,” id. (quotation omitted), this is not one
of those instances. “[W]e base our review on the familiar presumption that
jurors follow the trial court’s instructions.” Id. (quotation omitted). Here, the
court conducted an inquiry into the jury’s exposure to the photograph, and
fashioned a curative instruction that squarely addressed the defendant’s
concern that the jury would draw an adverse inference against him if it
believed that defense counsel had disclosed the photograph intentionally. The
court’s instruction sufficiently diminished any prejudicial impact that might
have resulted from the jury’s exposure to the photograph. Importantly, after
the trial court gave the curative instruction to the jury, each juror affirmed that
he or she remained impartial. “[A] juror is well-qualified to say whether he has
an unbiased mind in a certain matter.” Lamy, 158 N.H. at 523 (quotation
omitted).

      Thus, even if the presumption of prejudice were to apply, we conclude
that the trial court soundly exercised its discretion, and that its inquiry was
adequate to determine whether the incident was prejudicial. See Brown, 154
N.H. at 348. Although the trial court did not conduct its inquiry in the specific
fashion requested by the defendant, “it is within the trial court’s discretion to
determine what constitutes an adequate inquiry into juror misconduct.” Lamy,
158 N.H. at 523 (quotation omitted). Here, we conclude that, in light of the
curative instruction, and each juror’s individual affirmation that he or she
could remain impartial, there was sufficient evidence that the prejudice, if any,
from the incident was harmless beyond a reasonable doubt.

      As the Federal Constitution offers the defendant no greater protection
than does the State Constitution under these circumstances, see Rideout, 143
N.H. at 365, we reach the same result under the Federal Constitution as we do
under the State Constitution. Any remaining arguments raised in the
defendant’s notice of appeal or at oral argument that are not fully briefed are
deemed waived. See State v. Scott, 167 N.H. 634, 638 (2015) (argument made
at oral argument, but not briefed or raised in the trial court, is deemed waived);
State v. Blackmer, 149 N.H. 47, 49 (2003) (issue raised in a notice of appeal,
but not fully briefed, is deemed waived).

                                                   Affirmed.

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



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