2026 N.H. 3, State v. Price

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
Case No. 2024-0321
Citation: State v. Price, 2026 N.H. 3
THE STATE OF NEW HAMPSHIRE
v.
GABRIEL PRICE
Argued: November 12, 2025
Opinion Issued: January 30, 2026
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Elizabeth C. Woodcock, senior 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.
MACDONALD, C.J.
[¶1] The defendant, Gabriel Price, appeals his convictions following a jury
trial in Superior Court (Edwards, J.) for reckless conduct, second degree
assault, and simple assault. See RSA 631:3 (Supp. 2024); RSA 631:2 (Supp.
2024); RSA 631:2-a (2016). The defendant argues that: (1) there was
insufficient evidence to prove that he acted recklessly by leaving his child
unsupervised in his car in the presence of his gun; (2) the trial court erred in

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its jury instructions on self-defense, thereby requiring reversal of the second
degree assault conviction; and (3) the trial court erred in refusing to give a
unanimity instruction on the simple assault charge. We reverse the
defendant’s conviction for reckless conduct, and reverse and remand his
convictions for second degree assault and simple assault.
I. Background
[¶2] The jury could have found the following facts. On February 8, 2022,
the defendant picked up his ten-year-old child from school and was driving
home. The defendant and the victim were merging into the same lane, and
their vehicles collided. The defendant and the victim pulled over.
[¶3] The defendant approached the victim’s vehicle and smashed the
driver-side window with a baton. The defendant then hit the victim with the
baton multiple times. After the victim got out of the vehicle, he fell to the
ground where the defendant beat and kicked him.
[¶4] Other motorists observed the incident and called 911, and the
defendant left before the police arrived. The defendant exited the highway and
called 911. The police arrested the defendant and, during the arrest, he told
the trooper that there was a child and a gun in the vehicle. The State
subsequently charged the defendant and, following a jury trial, he was
convicted for reckless conduct, second degree assault, two simple assaults, and
criminal mischief. This appeal followed.
II. Analysis
[¶5] On appeal, the defendant challenges three of his convictions: (1)
reckless conduct for placing his child in danger of serious bodily injury by
leaving him unsupervised in a car containing an unsecured, loaded firearm
when the defendant left the vehicle to confront the victim after the accident; (2)
second degree assault for recklessly causing injury to the victim by striking
him with a deadly weapon (a baton); and (3) simple assault for unprivileged
physical contact by kicking the victim. The defendant argues that the State
introduced insufficient evidence to convict him of reckless conduct and that the
trial court erred by restricting direct examination of his ten-year-old child. He
also argues that the trial court erred in its jury instruction on self-defense, and
by declining to give a specific unanimity instruction on the simple assault
charge. We address these arguments in turn.
A. Reckless Conduct
[¶6] The defendant argues that the evidence was insufficient to prove
that he acted with criminal recklessness in leaving his child alone in his vehicle
with a gun. The defendant raises the issue as plain error, “[b]ecause the claim

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was not raised in the trial court.” See Sup. Ct. R. 16-A. Our review of the
record, however, establishes that the issue was sufficiently raised to preserve
appellate review. At the close of the State’s case, defense counsel moved to
dismiss the reckless conduct charge for insufficient evidence. Moreover,
following trial the defendant moved for judgment notwithstanding the verdict
on the reckless conduct charge, arguing that the evidence was insufficient to
prove that “leaving a child alone in a vehicle with a weapon that is incapable of
being fired at the time is a ‘gross deviation’ from the conduct of a law-abiding
citizen.” Accordingly, the purpose of our preservation requirement was met.
See State v. Ploof, 165 N.H. 113, 118 (2013) (explaining that the purpose of our
preservation rule is to afford the trial court an opportunity to correct any error
it may have made before those issues are presented for appellate review).
[¶7] A challenge to the sufficiency of the evidence raises a claim of legal
error, which we review de novo. State v. Reed, 177 N.H. __, __ (2025), 2025
N.H. 34, ¶16. When considering a challenge to the sufficiency of the evidence,
we objectively review the record to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State. Id. The trier of fact may draw reasonable
inferences from facts proven as well as from facts found as a result of other
inferences, provided they can be reasonably drawn therefrom. State v. Pierce,
176 N.H. 487, 492 (2024), 2024 N.H. 12, ¶18.
[¶8] Pursuant to RSA 631:3, I, “[a] person is guilty of reckless conduct if
he recklessly engages in conduct which places or may place another in danger
of serious bodily injury.” A defendant is criminally reckless if he was aware of
a substantial, unjustifiable risk of serious bodily injury resulting from his
conduct, consciously disregarded the risk, and had knowledge of
circumstances that made disregarding the risk a “gross deviation” from law-
abiding conduct. State v. Belleville, 166 N.H. 58, 62 (2014). Assessment of
criminal recklessness involves comparing the defendant’s conduct with that of
a law-abiding person. Id. The fact-finder should measure the “substantiality”
and “unjustifiability” of the risk by asking whether its disregard, given the
actor’s perceptions, involved a gross deviation from the standard of conduct
that a law-abiding person in the actor’s situation would observe. Id.
[¶9] The defendant’s child testified that he was sitting in the back seat of
the vehicle behind the driver’s seat. He stated that the length of the altercation
between his father and the victim was “maybe . . . 10 minutes.” A state trooper
testified that he “looked through the interior of the defendant’s vehicle” and
that the gun holster was “clipped to . . . a pocket” in the front of the driver’s
seat between the defendant’s legs. The trooper testified that there was a
magazine in the gun but there was no round chambered in the gun and that
“[y]ou have to actually pull back the slide and let it go for a round to be ready
to be fired.”

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[¶10] This evidence established that: there was no round in the chamber
of the gun and a further step was required to be taken to prepare the gun to be
fired; the gun was holstered in the front of the driver’s seat facing away from
the child seated in the back seat; and the child was alone in the vehicle for
approximately ten minutes during the defendant’s altercation with the victim.
Considering all the evidence and all reasonable inferences therefrom in the
light most favorable to the State, we conclude that, on this record, no rational
trier of fact could have found beyond a reasonable doubt that the defendant
was aware of a substantial risk that his child would suffer serious bodily injury
or that leaving his child alone in the vehicle with the gun was a “gross
deviation from the conduct of a law-abiding citizen.” Belleville, 166 N.H. at 62;
cf. State v. Mentus, 162 N.H. 792, 797-98 (2011) (observing that it was a
reckless act for the defendant to handle a gun in a vehicle when he did not
determine whether there was a round in the chamber, or check to see if the
safety was on, and pointed the gun at the back of the seat in which the victim
was sitting). Furthermore, there was no evidence upon which a rational trier of
fact could have found beyond a reasonable doubt that the defendant, at the
time he exited his vehicle to approach the victim, consciously disregarded any
risk posed by the presence of the firearm.
[¶11] Accordingly, we reverse the defendant’s conviction for reckless
conduct for insufficient evidence. In light of this conclusion, we need not
address the defendant’s argument that it was error to restrict direct
examination of his child about the child’s awareness of gun safety. See Pierce,
176 N.H. at 492, 2024 N.H. 12, ¶18 (explaining that a determination that the
evidence was legally insufficient to convict the defendant precludes a second
trial on that charge).
B. Self-Defense Instruction
[¶12] The defendant next argues that the trial court erred in its
instructions to the jury on self-defense. The State asserts that the defendant
failed to preserve this issue for appellate review. As a general rule, a
contemporaneous objection to a jury instruction is necessary to preserve the
issue for appellate review. State v. Nightingale, 160 N.H. 569, 577 (2010).
Here, after reading the instructions to the jury, and before sending the jury to
deliberate, the trial court held a sidebar at which defense counsel objected to
the instruction at issue. That specific objection was sufficient to preserve the
issue for appellate review. See id.
[¶13] Whether a particular jury instruction is necessary, and the scope
and wording of jury instructions, are within the sound discretion of the trial
court. State v. Washburn, 170 N.H. 688, 697 (2018). We review the trial
court’s decisions on these matters for an unsustainable exercise of discretion.
Id. To show that the trial court’s decision is not sustainable, the defendant

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must demonstrate that the court’s ruling was untenable or unreasonable to the
prejudice of his case. Id.
[¶14] Regarding self-defense, the trial court instructed the jury that:
The law of self-defense or defense of another
distinguishes between the use of deadly force and non-
deadly force. The term “deadly force” means any assault or
confinement which the actor commits with the purpose of
causing or which he knows to create a substantial risk of
causing death or serious bodily injury. Purposely striking
with a baton . . . capable of causing serious bodily injury
or death in the direction of another person constitutes
deadly force. If you find that the defendant struck [the
victim] with a baton . . . in response to a threat which would
be considered by a reasonable person as a threat to inflict
serious bodily injury or death and the defendant’s intent in
striking with the baton . . . was to warn away [the victim],
then defendant has not committed a criminal act and you
must find him not guilty.
(Bolding and underlining added.) Defense counsel objected to the inclusion of
the bolded language, arguing that it was legally incorrect. The trial court
offered to remove the bolded sentence, but only if the underlined sentence was
also removed. Defense counsel objected to the court’s proposal, given that the
underlined sentence was not erroneous. Faced with the option offered by the
trial court, defense counsel agreed to the instructions.
[¶15] We agree with the defendant that the bolded instruction
erroneously “communicated that the act of striking with a baton constituted
deadly force as a matter of law,” thereby taking from the jury “the duty of
deciding whether [the defendant’s] use of the baton constituted deadly force.”
(Italics omitted.) The trial court’s instruction prior to the bolded language
correctly instructed the jury that “‘deadly force’” means “any assault or
confinement which the actor commits with the purpose of causing or which he
knows to create a substantial risk of causing death or serious bodily injury.”
See RSA 627:9, II (2016). The bolded instruction that followed, however,
treated “[p]urposely striking with a baton . . . capable of causing serious bodily
injury or death” as satisfying the mens rea element in RSA 627:9, II, i.e., that
the defendant act with the purpose of causing, or commit an assault which he
knows to create a substantial risk of causing, death or serious bodily injury.
See id. A finding that the defendant purposely struck the victim with a baton
that is capable of causing serious bodily injury or death does not resolve
whether the defendant had the purpose of causing death or serious bodily
injury or had knowledge that his act would create a substantial risk of causing
death or serious bodily injury. Thus, in essence the bolded instruction

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resolved the mens rea element of deadly force against the defendant. See State
v. Williams, 133 N.H. 631, 634 (1990) (explaining that where an error is akin to
the direction of a verdict for the prosecution on an element of the offense
charged, it is a constitutional error requiring reversal). We agree with the
defendant that “the jury could not both follow its instructions and find that
[his] act of striking [the victim] with the [baton] amounted only to non-deadly
force.”
[¶16] We are not persuaded that the defendant invited this error through
his acquiescence to the instruction at trial. Given that the defendant was
entitled to the underlined instruction, the trial court’s refusal to strike the
bolded erroneous instruction unless the defendant agreed to removing the non-
erroneous underlined instruction was untenable or unreasonable to the
prejudice of his case. See Washburn, 170 N.H. at 697. Accordingly, we
conclude that the trial court’s ruling was an unsustainable exercise of
discretion. Therefore, we reverse the defendant’s conviction for second degree
assault and remand.
C. Specific Unanimity Instruction
[¶17] Finally, the defendant argues that the trial court erred in refusing
to give a specific unanimity instruction for the simple assault charge alleging
kicking. Citing State v. Greene, 137 N.H. 126 (1993), the defendant asserts
that the jury instructions “failed adequately to communicate” that the jury
“had to agree unanimously on a particular kick.”
[¶18] “A person is guilty of simple assault if he . . . [p]urposely or
knowingly causes bodily injury or unprivileged physical contact to another.”
RSA 631:2-a, I(a). The charge here alleges that the defendant “knowingly
cause[d] unprivileged physical contact to [the victim] by kicking him.” The jury
was instructed that the State had to prove beyond a reasonable doubt that the
defendant acted “knowingly” in that he was “aware of the nature of his conduct
or the circumstances under which he acted” and that he “had unprivileged
physical contact” by kicking the victim, meaning “any physical contact through
the use of physical force, which is not justified by law or consent.”
[¶19] The New Hampshire Criminal Code requires jury unanimity with
respect to the presence of the elements of offenses in criminal cases as
charged. See RSA 625:10 (2016) (“No person may be convicted of an offense
unless each element of such offense is proved beyond a reasonable doubt.”);
Greene, 137 N.H. at 128. “Unanimity is guaranteed as a matter of
constitutional law, as we have held that the legislature may not provide for
juries of a less number than twelve, nor to provide that a number of the petit
jury, less than the whole number, can render a verdict.” Greene, 137 N.H. at
128 (quotation omitted).

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[¶20] Here, jury unanimity is required with respect to the element of
unprivileged physical contact. Evidence at trial included that the defendant
kicked the victim: in the legs; “maybe four or five times”; in the torso at least
three times; “[a] few to the torso and then one to the head”; in the thighs and
“knee area”; “a good 8 to 10” times; around the abdomen; and about the
“general body,” including some “on the legs, and some in the midsection.”
Given this evidence, the defendant was entitled to a unanimity instruction on
which contact supported a finding of guilt. See State v. Doucette, 146 N.H.
583, 593 (2001) (explaining that because any one of the contacts alleged in
Greene could have provided the basis for finding the element of unprivileged
physical contact, and because “the defendant in Greene could potentially have
been convicted of three separate assaults,” the jury had to be unanimous as to
which unprivileged physical contact occurred); cf. State v. Sanborn, 168 N.H.
400, 421 (2015) (declining to resolve whether Greene “can be squared with our
later unanimity cases” but noting that Greene’s reasoning is limited to the
unprivileged physical contact variant of simple assault). Under these
circumstances, the trial court erred by declining to instruct the jury that
unanimity was required on which kick constituted unprivileged contact.
Accordingly, we reverse the defendant’s conviction for simple assault based on
kicking and remand.
[¶21] We have considered the parties’ remaining arguments and have
concluded that they do not require further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993); Sup. Ct. R. 25(8). In sum, we reverse the defendant’s
reckless conduct conviction for insufficient evidence, reverse and remand his
second degree assault conviction based on an erroneous self-defense jury
instruction, and reverse and remand the simple assault conviction based on
the trial court’s failure to give a specific unanimity instruction.
Reversed and remanded.
DONOVAN, COUNTWAY, and GOULD, JJ., concurred.