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STATE OF NEW HAMPSHIRE
SUPREME COURT
2011-0785
STATE OF NEW HAMPSHIRE
v.
CALVIN F. DUNN, III
______________________________________________
Appeal Pursuant to Rule 7 From A Judgment
Of The Belknap County Superior Court
______________________________________________
______________________________________________
BRIEF FOR THE DEFENDANT
______________________________________________
Michael D. Hulser, Esq.
NH Bar #17462
M.D. HULSER & ASSOCIATES
148 Hill Road, P.O. Box 288
Acworth, New Hampshire 03601
(603) 835-6184
(603) 835-7898 (fax)
Counsel for defendant Calvin Dunn
(Fifteen Minute Oral Argument)
Michael D. Hulser, Esq. to argue
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ………………………………………………………………………….ii
QUESTIONS PRESENTED…………………………………………………………….……………..1
STATEMENT OF THE CASE…………………….…………………………………………………..2
STATEMENT OF THE FACTS……..…………………………………………….…………………..3
SUMMARY OF THE ARGUMENT…………………………………………………………………14
ARGUMENT…………………………………………………………………………………………16
I. THE LOWER COURT’S IMPOSITION - AND REFUSAL TO VACATE THAT
IMPOSITION - OF Mr. DUNN’S SUSPENDED SENTENCE WAS AN
UNSUSTAINABLE EXERCISE OF DISRECTION…………………………….……….16
A. The Lower Court’s Unsustainable Refusal to Vacate The Imposition of Dunn’s
Suspended Sentence Was Based On the Court’s Erroneous Determination That
His Jury Did Not Specifically Find That Dunn’s Physical Contact With Jered
Reed Was Justified By Law or Consent. This Contradicts and Misinterprets
The Jury’s Verdict………………………………………………………………………16
B. At Most, The Facts Presented To the Lower Court, Both Before and After
Dunn’s Jury Acquittal, If Not Justified, Only Support Violation Level
Mutual Combat………….……………………………………………….…………..….19
C. Calvin Dunn Was Not Found By the Court Below to Have Been in Violation
Of the Good Behavior Condition of His Suspended Sentence Because The
Crime of Criminal Threatening Did Occur……..………………………………………21
II. IF ONLY CALVIN DUNN’S JURY HAD FOUND HIM GUILTY……………………..23
A. The Rule Should be Changed to Allow New Hampshire Judges the Benefit
Of The Jury’s Often Dispositive Determination of the Facts………………...……...….24
B. The Old Rule Is Unworkable Within Our Current Legal Framework Because
Developments in the Closely Related Principles of N.H Bail Statutes Fully and
Adequately Protect the Public and Its Policy, Undercutting and Robbing the
Old Rule of Significant Application or Justification, AND This Proposed
New Rule Would Not Lend Itself to Any General Reliance That Would Create
A Special Hardship Were It Adopted and the Old Procedure Overruled……………….27
CONCLUSION……………………………………………………………………………….…….29
CERTIFICATE OF SERVICE……………………………………………………………………..30
APPENDIX………………………………………………………...…………………………A 32-61
ii
TABLE OF AUTHORITIES
Cases: Page
Horsey v. State, 56 Md. App. 667, 468 A.2d 684, 687 (Md. App. 1983)…………………………..17
Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502 (2003).……………………...……24
People v. Avery, 179 Cal. App. 3d 1198 (Ct. App. 1986)…………………………….…………….25
State v. Auger, 147 N.H. 752 (2002). …………………………………….………....………………16
State v. Budgett, 146 N.H. 135, 139 (2001)………………………………………………………...17
State v. Burgess, 156 N.H. 746 (2008)…………………………………………………………..….19
State v. Columbo, 366 A.2d 852, 854 (Me. 1976)…………………………….………………….…17
State v. Cooper, 146 N.H. 140, 141 (2001)……………………………………………...………….16
State v. Derry, 134 N.H. 370 (1991)……………………………….…………………………..……16
State v. Duran, 158 N.H. 146 (2008)………………………………………………………………..24
State v. Gibbs, 157 N.H. 538 (2008)……………………………………..……………………..16, 19
State v. Holmes, 154 N.H. 723 (2007)…………………………………..………………………….24
State v. Kelly, 159 N.H. 390 (2010)……………………………….………………………..23, 25, 26
State v. Lambert, 147 N.H. 295 (2001)………………………………………………..………..16, 19
State v. LaPlaca, 162 N.H. 174 (2011)…………………………………………………………...…17
State v. Miller, 28 N.C. App. 504, 221 S.E.2d 520, 521 (N.C. App. 1976)…………………...……17
State v. Novosel, 120 N.H. 176 (1980)………………………………………….…………..………17
State v. Preston, 121 N.H. 147 (1981)………………………………………………………...…….17
State v. Quintero, 162 N.H. 52 (2011)…………………………………….………..……………….24
State v. Ramos, 149 N.H. 118 (2003)…………………………….…………………………..……..24
State v. Shepard, 158 N.H. 743 ( 2009)……………………………………………………………..26
State v. Veale, 158 N.H. 632 (2009)…………………………………………...……………………17
State v. Weeks, 141 N.H. 248 (1996)………………………….……………………………………..1
iii
Statutes:
RSA 631:2-a II ……………………………………..…………………….……….……………passim
RSA 626:8………………………………………………………………………………...…………2
RSA 635:1…………………………………………….……………………………………………..2
RSA 641:5…………………………………………..……………………………………………….2
RSA 625:9, II (b)…………………………………………………………………………………...19
RSA 631:4 IV………………………………………………………………...……………………22
RSA Chapter 597 et seq……………………………………………………………………………28
RSA 645:1………………………………………………………………………..………………..28
Rules:
Sup. Ct. R. 16 (3) (b)…………………………………………………….………………..…………..1
Dist. Ct. R. 2.14……………………………………………………………………………………..2
Constitutional Provisions:
New Hampshire Constitution. Part 1, Art. 15…………………….………………………………17, 26
United States Constitution, Fifth and Fourteenth Amendments………………………..…..…...…passim
Other Authorities:
21A Am. Jur. 2d Criminal Law § 897 (1998)………………………………………….………….17
58 A.L.R.3d 1156, 1162 (1974) Annotation, What Constitutes "Good Behavior" Within
Statute or Judicial Order Expressly Conditioning
Suspension of Sentence Thereon..……………………….……..17
NH Criminal Practice and Procedure Ch. 33 at § 33.33…………………………………………..26
1
QUESTIONS PRESENTED*
1. Was the decision below on a Motion to Impose his previously suspended sentence and
subsequent Motion to Vacate in 05-S-417, 419 (O’Neill J.); that Mr. Calvin Dunn III, both before
and after a jury acquittal on all charges, had not been of good behavior, an unsustainable exercise of
discretion on the insufficient facts as a matter of law?
Issue preserved by Dunn’s motion to vacate, his motion to reconsider the denial of the motion to
vacate, and the trial court’s rulings. App. 1-4, 5-14*.
2. Should a defendant, who has a suspended or deferred sentence in effect, have her trial on the
merits before the State may move to impose.
Issue preserved by Dunn’s imposition hearing preceding his jury trial, his motion to continue and
the lower court’s rulings. App. 22-23.
*Citations to the record are as follows:
“T.” refers to the transcript of the State’s Motion to bring forward and impose suspended sentence, held on
December 14, 2010;
“App.” refers to the appendix filed with this brief.
*The statement of a question presented will be deemed to include every subsidiary question fairly
comprised therein. Sup. Ct. R. 16 (3) (b).
2
STATEMENT OF THE CASE
On September 19, 2006 the defendant, Calvin Dunn, III, pled guilty to one count of accomplice to
burglary, contrary to RSA 626:8 and RSA 635:1, and one count of tampering with witnesses, contrary
to RSA 641:5. (All stemming from 2001 conduct). The Court sentenced the defendant to a prison term
of three and one half to seven years all suspended on the condition of good behavior for five years.
On May 11, 2010 (on advice of counsel) Mr. Dunn pled not guilty to two counts of simple assault and
one count of criminal threatening. He then waived the presentation of evidence by the State, and the
presentation of his defense. See: Dist. Ct. R. 2.14.
These misdemeanor charges stemmed from an altercation with a Mr. Jared Reed during which the
defendant was alleged to have put Mr. Reed in a head lock (Simple Assault) punched Mr. Reed
(Simple Assault), and threatened Mr. Reed by saying “you’re dead,” (Criminal Threatening).
Subsequently on May 11, 2010, the Laconia District Court found the defendant guilty of the two
counts of simple assault and one count of criminal threatening. The defendant appealed (2.14) those
convictions de novo to the Belknap County Superior Court.
Later that month (5-24-2010) the State filed a Motion to Impose the previously suspended 2006
sentences (for the 2001 conduct), asserting that the underlying acts constituted a violation of the “good
behavior” condition of the suspended sentence.
On December 14, 2010, the Belknap Superior Court (O’Neill J.) granted the State's Motion to Bring
Forward and imposed the entire suspended sentence of 3 and ½ to 7 years stand for the 2006
convictions. Mr. Dunn has been incarcerated at the NHSP since that December 14, 2010 hearing.
On July 6, 2011, the defendant stood trial in Belknap Superior Court for the two counts of simple
assault and one count of criminal threatening. At trial, the defendant argued that he acted in self
defense. The jury subsequently acquitted the defendant of all three charges.
Following his acquittal on all charges (7/21/2011), Mr. Dunn filed a Motion to Vacate his suspended
sentence imposition in the Belknap Superior Court (O’Neill J.).
3
After the hearing held (9/8/11) on the defendant's Motion to Vacate Sentence (filed 7/21/11) and
the State's Objection to same (filed 8/1/11) the Belknap Superior Court (O’Neill J.) DENIED the
defendant’s Motion to Vacate Sentence. See: Order on Motion to Vacate 9-14-2011. App. 32.
In his ORDER denying Mr. Dunn’s Motion to Vacate the imposition of his suspended sentence,
Belknap Superior Court Judge James D. O’Neill III, in pertinent parts, reasoned and held that:
“At, trial, the defendant argued that he acted in self defense.” Id.
“[A] jury acquittal of criminal charges is not dispositive as to whether a suspended sentence
should be imposed.” See e.g., Gibbs, 157 N.H. 538, 542 (2008).” Id.
“The jury only found that the defendant was not guilty of simple assault and criminal
threatening beyond a reasonable doubt. The jury did not specifically find that the
defendant acted in self defense, or that his actions were otherwise justified1.” Id. at 34
(emphasis added).
On September 26, 2011 Calvin Dunn filed a Motion for Reconsideration asking Judge O’Neill to
revisit facts and law, which the Court may have overlooked or misapprehended in making its 9-14-11
decision. App. 39.
On October 12, 2011 Judge O’Neill denied Mr. Dunn’s Motion for Reconsideration, refusing to hear
“further evidence” on Dunn’s central argument that the acts underlying Dunn’s acquittals (that Judge
O’Neill found violative of Dunn’s the good behavior component in his suspended sentence); were not
criminal acts. Judge O’Neill cited Farris v. Daigle, 139 N.H. 453, 454-455 (1995) for this proposition.
App. 48.
Cal Dunn filed a Rule 7 discretionary notice of appeal from Judge O’Neill’s rulings that imposed and
left standing the entire maximum suspended sentence of 3½ to 7 years in the State Prison in Concord.
See: State v. Calvin Dunn III, 2011-0785.
This Court accepted jurisdiction over the appeal; and
This Brief now follows.
1 This is not correct. See: Jury question from Juror #9, and Judge McHugh’s answer prior to not guilty verdict at App. 49.
4
THE PROCEDURAL HISTORY OF THIS SOMEWHAT UNIQUE CASE BEARS REPEATING.
At his Motion to impose hearing of December 14, 2010 Mr. Dunn argued to Judge O’Neill as his
centerpiece and sole theory of innocence; [the eventually timely noticed] self defense, mutual combat,
and very prominently that the alleged victim Jared Reed was lying.
The exact same six witnesses took the stand at this December 14, 2010 hearing, that later testified at
Dunn’s jury trial, including the two combatants; Jared Reed and the defendant Calvin Dunn.
Following this December 14, 2010 hearing, Judge O’Neill imposed the entire suspended three and one
half to seven years in the New Hampshire State Prison for Men.
At his July 6, 2011 trial Mr. Dunn argued as his centerpiece and sole theory of innocence; self defense
(timely noticed, App. 5), mutual combat, and very prominently that the alleged victim Jared Reed was
lying. See: Motion to Vacate @ ¶ 4 in App. 36: “On July 6, 2011, Mr. Dunn answered the underlying
charges at trial in BCSC where he asserted that his conduct was a justified exercise of self-defense and
a jury acquitted him of all charges.”
At the conclusion of his trial, Mr. Dunn’s jury was instructed on self defense, mutual combat-consent2
and how to determine which witness to believe. (Jury is presumed to follow instructions; State v.
Preston, 121 N.H. 147, 150 (1981); State v. Novosel, 120 N.H. 176, 186 (1980).
Judge McHugh carefully instructed Dunn’s jury on mutual combat, and further instructed that if mutual
combat was their determination, they were to “write [mutual consent-combat] on the complaint[s].” See:
Mutual consent instruction and unofficial transcript at App. 52.
During deliberations, Dunn’s jury sent Judge McHugh a question signed by the foreperson asking for
the definition of unprivileged physical contact. Judge McHugh answered by way of written answer:
“All physical contact not otherwise justified by law or consent.” App. 49.
On July 6, 2011 (after seven months in prison) rejecting outright guilt, and rejecting guilt of violation
level mutual combat, Cal Dunn’s jury found him Not Guilty on all charges.
2 See: Judge McHugh’s instruction on mutual consent-fight, attached to the complaints during jury deliberations; and Jury question on same.
App. 49.
5
Next on September 8, 2011(now after nine months in prison and again before Judge O’Neill), citing his
trial facts of acquittal, Mr. Dunn moved to vacate some or all (all being somewhat moot) of Judge
O’Neill’s imposition of the entire suspended three and one half to seven year prison sentence.
Importantly, in Judge O’Neill’s Order (on Dunn’s Motion to Vacate) Judge O’Neill writes at ¶ 4: “On
July 6, 2011, the defendant stood trial in this Court for two counts of simple assault and one count of
criminal threatening. At trial, the defendant argued that he acted in self defense. The jury
subsequently acquitted the defendant of the charges against him.” App. 32.
On September 14, 2011, Judge O’Neill denied Mr. Dunn’s Motion to Vacate, reasoning that:
The jury only found that the defendant was not guilty of simple assault and criminal
threatening beyond a reasonable doubt. The jury did not specifically find that the defendant
acted in self defense, or that his actions were otherwise justified3.” Id. at 34 (emphasis
added).
THE JUDGES’ RULING TO IMPOSE, THE REASONING, and THE LATER ORDER.
After the defendant rested, the State argued that the maximum (3½ to 7) suspended sentence should
be imposed because: “the State has demonstrated that there was probable cause to make the arrest and
charge Mr. Dunn with the two simple assaults and the criminal threatening in this matter.” T. 60.
The defendant (Dunn) then argued (as he does here) that the trial record was “devoid of any
information with regard to criminal threatening,” because: “the State failed to put before the court any
evidence from Mr. Reed that, in fact, those words (you’re dead) caused him to be placed in imminent
fear or danger of bodily injury.” T. 60-64.
ΛVTranz www.avtranz.com · (800) 257-0885
Page 60:
Line; DEFENDANT'S CLOSING ARGUMENT
6 MR. SISTI: Well, first of all, there's absolutely --
7 this case has presented -- it's devoid of any information with
8 regard to criminal threatening, so with regard to that I think
9 that has to be completely refuted and frankly rejected by the
10 Court. T. 60.
Page 63:
3 This is not correct. See: Jury question from Juror #9, and Judge McHugh’s answer at App. 49.
6
Line;
24 And I'll just go back to the criminal threatening
25 because [we] are on it. I don't want to make it an academic point,
Page 64
1 but the State failed to put before the Court any evidence from
2 Mr. Reed that in fact those words caused him to be placed in
3 imminent fear or danger of bodily injury. And because that
4 evidence isn't before the Court, you can't -- you can't issue a 5 finding on that particular -- on that particular statement.
Immediately Following The Defendant’s Argument of a Complete Absence of Criminal Threatening
Evidence (above), the Court (O’Neill J.) Rules:
Page 64:
Line;
THE COURT: Okay. The Defendant please stand.
21 In reference to the initial question, Mr. Dunn, as to
22 whether the State has satisfied their burden imposed on them
23 consistent with the applicable New Hampshire law, I'm going to
24 find that the State has submitted sufficient evidence to show
25 that indeed you have failed to remain of good behavior and, in
Page 65:
Line;
1 fact, the crime of simple assault did occur.
2 Accordingly, I'm going to grant the State's motion to
3 impose the sentence or bring it forward and impose.
4 We now come to the appropriate sentence.
The court (O’Neill J.) found that Calvin Dunn had failed to be of good behavior, and therefore had
violated his sentence conditions in 211-2005-CR-00417 and 211-2005-CR-00419 by committing
unjustifiable simple assault by a preponderance of the evidence. The court made no mention, and did
not find or ever rule, that the State had satisfied its burden and submitted sufficient evidence to show
that, in fact, the crime of criminal threatening did occur. T. 64, 65.
Mr. Calvin Dunn III, after having his entire suspended sentence (3½ to 7 years) imposed at his
December 14, 2010 hearing, and after his jury on July 5-6, 2011 acquitted him of all charges, moved to
Vacate which was also denied. Mr. Dunn filed a timely Motion to Reconsider the lower court’s (O’Neill J.)
Order which was also denied. See: App. 48.
This Rule 7 Discretionary Appeal now follows.
7
STATEMENT OF THE FACTS4
There were no witness to, nor any surveillance film of, the Province Road (Laconia) encounter, nor
to the initial aggressor in the altercation at Gilbert Block Company (also in Laconia), between the
defendant Calvin Dunn and Jered Reed. Judge O’Neill heard only their disparate testimony of the events
of November 11, 2009.
In summary fashion, the evidence presented at the December 14, 2010 Motion to Impose hearing,
held in Belknap County Superior Court before Judge James D. O’Neill III, included the following:
THE ALTERCATION.
Cal Dunn was 34 years old (dob: 06/24/1975) on November 11, 2009 (date of the altercation). He
was the manager/equipment operator of the family owned Twins Construction excavation company,
based in Laconia NH. The other combatant in the November 11th
altercation was Jered D. Reed age 32
(dob: 12/01/1976), also from Laconia N.H. The location of the altercation was Gilbert Block Co., 427
Province Road, Laconia, NH.
The Road Encounter According to Jered Reed.
On November 11, 2009 at around 7:00 am Jered Reed was headed south on Province Road Laconia
on his way to Gilbert Block Company to pick up some masonry supplies. T. 11, 17. He (Reed) saw the
defendant driving his bright orange and black company (Twins Construction) tractor trailer (with
Dunn’s his name it) headed north on Province Road as they passed.
Mr. Reed did not swerve, and made no gestures of any kind as they passed; he only noticed Mr.
Dunn and his distinctive company truck and continued on his way to Gilbert Block Company. T. 18.
Reed proceeded into the Gilbert Block parking lot where he parked approximately one hundred feet
from their front office. Id,
4Tab Description Cited As
A. Transcript of the hearing on the motion to impose, held on December 14, 2010- “T. [page no.]”
B. App. Refers to the Appendix filed with this brief. “App. [page no.]”
8
The Road Encounter According to Calvin Dunn.
On November 11, 2009 at 7:00 am (Veterans Day) the defendant Calvin Dunn was driving his bright
orange and black company (Twins Construction) tractor trailer (with Dunn’s his name it) north on
Province Road in Laconia. Dunn had driven past Gilbert Block and was headed to 11 Mechanic Street
in Laconia, where he and his fiancé were building a new house. T. 45. As Dunn proceeded through the
S corners of Province Road, he noticed a green pickup truck coming at him “and it kind of swerved at
me.” T. 45. Dunn then recognized the driver of the swerving green pickup as Jered Reed. As they (Dunn
and Reed) passed in opposite directions on Province Road near Gilbert Block Co., Dunn saw Reed
extend his middle finger to him. T. 45, 46. Dunn knew Reed as the delinquent renter of his fiancée’s
(Ms. Susan Turcotte’s) apartment. Ms. Turcotte had obtained a court judgment against Reed for unpaid
rent and damage. Id.
Reed had not paid the judgment and had moved to an unknown location, making it impossible for the
Sherriff to locate and serve him the demand payment paperwork. T. 47. Calvin (Dunn) had attended and
testified at several of the small claims hearings (as to damage and unpaid rent) that led to the judgment
against Reed. T. 54.
After passing Reed on the morning of 11/112010 and seeing him swerve and gesture, Dunn then
called his fiancée Ms. Turcotte, and told her of seeing Reed. T. 46. Ms. Turcotte expressed great interest
in determining where Reed lived in order to perfect (and have the Sherriff serve) the court’s judgment
against him. Id. Dunn then turned his truck around and proceeded in the opposite direction, until he
spotted Reed’s green pickup in the parking lot of Gilbert Block Co. T. 46. Dunn parked his tractor
trailer and walked over to Reed’s parked pickup, opened the door, and proceeded to look through the
many papers on the dash for anything that might list Reed’s current address. T. 47. After turning his
truck around and parking at Gilbert Block, the defendant Calvin Dunn did not enter the office to
confront Reed about his swerve and finger gesture, he went directly to Reed’s pick-up truck in an
attempt to find Reed’s address. T. 60.
9
Dunn was unable to find the address he sought before Reed exited Gilbert Block and came “running up
to the truck.” Id.
The Gilbert Block Parking Lot Encounter According to Jered Reed.
When Reed exited Gilbert Block, he saw Dunn standing by [my] his truck. T. 12. As Reed
approached Dunn and his (Reed’s) truck, Dunn asked him if he had a problem with his [middle] finger.
Id. Reed had no idea what Dunn was talking about, but after initially denying any conversation with
Dunn about the finger, later testified that he had said: “What finger, what are you talking about?” T. 20.
Dunn then “immediately” charged Reed, “hitting me in the face and head,” “with his fist,” “10 or 12
times altogether, probably.” T. 12. Reed then turned and ran away. T. 13. Dunn caught up to him and
put him in a head lock as he continued punching him “with his fist in the face and head.” Id. (now
apparently 13 to 15 fist punches), asking Reed “[A]re you gonna pay me my money.” T. 14. Next,
Dunn got Reed (apparently still in a headlock) to the ground on his (Reed’s) hands and knees and told
him he was dead while he “continued hitting me in the head.” (now apparently 15-20 right handed
punches to Reed’s head and face). Id. Reed yelled for someone inside the Gilbert Block office to come
out and “break it up.” Id. Employee Peter Friend eventually came out into the parking lot and told both
men (Reed and Dunn) that the police had been called and to “knock it off.” T. 40. At no time did Mr.
Friend physically break the “two guys up.” Id. When Mr. Friend told the combatants to break it up and
that the police were coming, they were both still on their feet. Id.
Importantly, after first maintaining that “he (Dunn) immediately – without any words - charged me
and started hitting me in the face and head (10-12 times),” Reed later testified:
Q And you're just saying that out of nowhere Cal just went right after you?
A Absolutely.
Q Just out of nowhere?
A After he asked me about my finger, yes.
Q Did you say, "What are you talking about, about my finger?"
A I may have.
Q Well, okay, so you did say something to him?
A Okay, maybe I said that. That's -- there wasn't any words.
Q Other than you started talking about your finger?
A Right.
10
Q Well, what did you have to say about it?
A I had nothing to say about it. I said, "What finger? What are you talking about?"
Q Okay. Did you tell the police that you had this exchange of words with Mr. Dunn?
A In my statement.
Q Did you tell -- did you tell the police that you talked to Mr. Dunn as well?
A I'm not sure.
Q Well, it's really clear that Mr. Dunn didn't approach you; you approached him,
right?
A I approached my truck. He was at my truck.
Q All I'm asking you is Mr. Dunn never made a step toward you as you -- as you
exited Gilbert Block, correct?
A Correct.
Q In fact, you made a beeline to your truck right toward Mr. Dunn, right?
A Yeah.
The Gilbert Block Parking Lot Encounter According to the Defendant Calvin Dunn.
When Reed exited Gilbert Block, he ran up to his pickup truck and started screaming: “What are you
doing in my truck?” “Get the ‘f’ out of my truck!” T. 48. As Dunn then attempted to exit Reed’s truck,
Reed pushed him into the door. Id. This was the first physical contact between the two men. T. 49, line
14-16 (Q. Did you touch Mr. Reed first? A. No, I didn’t”)
Dunn then began back pedaling as Reed was coming at him; his (Reed’s) hand was raised in what
appeared to Dunn to be an attempt to “take a swing at me.” T. 50. Dunn continued backpedaling in an
attempt to get away from the [Reed’s] truck as well as to get away from Reed. T. 49. Reed continued to
pursue Dunn and took a swing at him. T.50. Dunn then grabbed Reed “trying to retain (sic) him so I
didn’t get punched in the face.” Id. Dunn had had nearly 60 (sixty) facial and eye5 reconstructive
surgeries, the most recent major surgery had been performed approximately 3-4 weeks prior to this 11-
11-10 altercation T. 49. Reed and Dunn had now grabbed onto each other, as Dunn was trying to detain
Reed’s arms and hands because he didn’t want “his hands punching me in my face,” (Dunn had vision
in only one of his eyes.) T. 50. Dunn then put Reed in a headlock “just trying to hold on,” and begged
him not to punch him in the face. Id. In Dunn’s headlock, Reed made an unsuccessful effort to trip
Dunn and take him down to the pavement at which time Dunn punched Reed in the face two or three
times. T. 51. After being punched Reed yelled for help and a Gilbert Block employee Peter Friend came
5 On the day of the altercation, (and to this day); Cal Dunn wore a single contact lens in his one remaining (left) functioning eye. App. 27.
11
out and told them (Reed and Dunn standing) to break it up as “Sue’s (employee Susan Blake) on the
phone with the cops.” Id. At this point the two men let go and the fight ended. Id. Dunn waited around
for the Police to arrive, but after around ten minutes returned to his truck and drove away. T. 52.
THE INVESTIGATION.
From the Testimony of Laconia Police Officer Michelle Cardinal and Sgt. Dennis Ashley at the Dec.
14, 2010 Motion to Impose Hearing Before Judge James D. O’Neill, Belknap Superior Court .
On November 11, 2009 at approximately 7 a.m. Officer Michelle K. Cardinal was dispatched to a
fight in the Gilbert Block parking lot between Jered Reed and Cal Dunn. T. 4, 5. Officer Cardinal
immediately made contact with Jared Reed having noticed blood and bruising on his face. T.7. Officer
Cardinal next checked Reed’s hands finding no cuts or scrapes on the knuckles that “would indicate that
he had thrown [apparently meaning landed] any punches. T. 8. Officer Cardinal had no personal
knowledge of how this apparent altercation had started, or who was the initial aggressor, T. 9, 10.
Officer Cardinal indicated that her observations of Reed’s hands in no way indicated that Reed had not
grabbed or shoved Mr. Dunn first. Id.
On November 11, 2009 at approximately 7 a.m. Sergeant Dennis Ashley was dispatched for a
reported assault in the Gilbert Block parking lot on Jered Reed by Calvin Dunn. T. 26. Sergeant Ashley
learned that Mr. Dunn had apparently waited around at Gilbert Block for the police to arrive, but that
after ten minutes had returned to his Twins Construction truck and driven away. T. 26, 52.
Sergeant Ashley was familiar with the location of Twins Construction on Mechanic Street, where he
proceeded and located Mr. Dunn. T. 26. Sergeant Ashley asked the defendant for identification, which
was provided, but Mr. Dunn declined to comment on the parking lot fight, despite several attempts by
Sergeant Ashley to question him about the incident. T. 27, 28. Sergeant Ashley’s recollection was that
Dunn had mentioned something about “settling a dispute,” but Mr. Dunn recalled only providing
identification, that being: “all I said to him,” T. 59. Sergeant Ashley observed no injuries to Mr. Dunn’s
person or hands, only his obvious surgically reconstructed right eye and face. T. 29. Sergeant Ashley
was familiar with Cal’s many facial surgeries, but did not know exactly when the most recent surgery
12
was prior to November 11, [2009]. Id. Sergeant Ashley did not know, nor had his investigation
revealed, who had started the fight. T. 30.
GILBERT BLOCK EMPLOYEE/WITNESSES; Mr. PETER FRIEND and Ms. SUSAN BLAKE.
Ms. Susan Blake had worked at Gilbert Block for 39 years, and was at work at 7 a.m. on
November 11, 2009. T. 31. Ms. Blake heard a noise and looked out the store’s front window and saw
“there was a fight.” Id. When she looked out she saw two people, one of whom had the other in a
headlock and was punching him. Id. Ms. Blake took it upon herself to open the store’s front door and
“hollered” for the combatants to stop or she’d call the police; they didn’t, so she went back in and called
the Laconia Police. Id. Ms. Blake knew Cal Dunn, and he her, from his having been a customer for
many years, she was unfamiliar with Jered Reed. T. 32, 51. She described the brief portion of the
altercation that she observed as seeing both men standing up, and Dunn punching Reed but didn’t see
Reed punching Dunn, “like in a fight,” “but I only saw it briefly.” T. 32. Ms. Blake didn’t see it start,
and didn’t see it end, but she did observe Mr. Dunn, who knew the police were on the way, come back
into the office where she did speak to Mr. Dunn learning that Reed owed rent money and had given Mr.
Dunn the finger. T. 33, 35. Ms. Blake saw Mr. Dunn wait around for several minutes then leave. T. 35.
Mr. Peter Friend had worked at Gilbert Block for several years, and was at work at 7 a.m. on
November 11, 2009. T. 38. Mr. Friend noticed “a couple of guys scuffling outside the office [glass]
doors,” and he thought it “was two guys just fooling around.” Id. As he watched for a few seconds, his
co-worker Susan Blake said she was calling the police, prompting Mr. Friend to go out into the parking
lot and tell the two guys to stop and that the police had been called. Id. Once outside, Mr. Friend
realized that he knew both combatants as customers, and in addition to what he described as “just
wrestling-horsing around,” and he also saw Mr. Dunn hit “the other guy.” T. 39. After the two men
stopped, Mr. Friend asked Dunn what was going on and Dunn explained that Reed had owed him
money and had “flipped him off” on while passing on the road. Id. Mr. Friend further recalled that he
heard no one screaming for help and that he had not physically gotten between the two guys (who were
13
on their feet) to break then up, and that Dunn had waited around for the police for around five minutes,
and then got in his truck and left. T.41. Mr. Friend, like the police and other witness, had no idea who
had “pushed who first or who had punched who first.” T.42. Peter Friend answered a question
concerning his eyewitness observation that “Mr. Dunn was making sure the other guy wasn’t able to hit
him, right?;” with: “I would say probably yes.” T. 43.
Additional facts are set forth below, in connection with the legal argument concerning the specific
issues to which those facts are relevant.
14
SUMMARY OF THE ARGUMENT
I. To impose a previously suspended sentence in New Hampshire, a defendant, whose sentence was
suspended, must either violate an expressed written sentence condition or violate the condition of good
behavior by engaging in criminal conduct. Calvin Dunn never violated the expressed written condition
that he have no contact with Mr. Greg McRae (nor was it ever alleged that he had), nor did he engage in
any criminal conduct.
A. Contrary to the Lower Court’s Reasoning, the Crime of Simple Assault Did Not Occur.
On December 14, 2010 the lower court (O’Neill J.) ruled that Mr. Dunn had “failed to remain of
good behavior and, in fact the crime of simple assault did occur.” T. 65.
On July 6, 2011 (after seven months in prison) rejecting outright guilt, and rejecting guilt of violation
level mutual combat, Dunn’s jury acquitted on all counts; (2) Simple Assault, and (1) Criminal
Threatening. On September 8, 2011 Dunn moved to vacate the imposition of his 3½ to 7 year sentence.
The lower court (O’Neill J.) denied Dunn’s Motion to vacate citing Gibbs 157 at 542, writing at page
3 of the Order that: the (Dunn’s) jury only found that the defendant was not guilty of simple assault and
criminal threatening beyond a reasonable doubt. The jury did not specifically find that the defendant
acted in self defense, or that his actions were otherwise justified.” App. 34.
The lower court (O’Neill J.) further reasoned that his imposition of Dunn’s entire suspended
sentence in no way reflected upon, nor contradicted, Dunn’s jury’s verdict. Id.
However, at the conclusion of his trial, Mr. Dunn’s jury (to whom Judge O’Neill refers in his Order
on Dunn’s motion to vacate) was instructed on self defense, mutual combat-consent6 and how to
determine which witness to believe. App. 18. Judge McHugh further instructed Dunn’s jury that if
mutual combat was their determination, they were to “write [mutual consent-combat] on the
complaint[s].” See: Mutual consent instruction and unofficial transcript at App. 52.
6 See: Judge McHugh’s instruction on mutual consent-fight, attached to the complaints during jury deliberations; and Jury question on same.
App. 49.
15
After Dunn’s sworn testimony that he had put Reed in a headlock, and that he had definitely punched
him, Dunn’s jury sent Judge McHugh a question signed by the foreperson asking for the definition of
unprivileged physical contact. Judge McHugh answered Dunn’s jury by writing: “All physical contact
not otherwise justified by law or consent.” App. 49.
Jered Reed testified at T. page 12 lines 17-24, precisely as he later did at trial, that Calvin Dunn
been the obvious first aggressor by immediately charging him and punching him 10 to 12 (with a total
of 15-20) times in the face and head with his fists. In lieu of the instructions, the jury question, and
Judge McHugh’s answer, Dunn’s jury (to whom Judge O’Neill refers at page 3 of his 9/14/11 Order)
could not have believed this testimony and still acquitted Cal on all charges. Further, Cal Dunn flatly
admitted putting Reed in a headlock and punching him, acts his jury found were justified.
This is in sharp contravention to Judge O’Neill’s written order denying his motion to vacate where
the court writes at pg. 3 of that order that the defendant’s jury did not specifically find that Dunn’s
“actions were otherwise justified.” This erroneous factual reasoning was at the center of the lower
court’s discretionary finding that Dunn’s underlying criminal acts were violative of good behavior. This
contradicts the jury verdict. Such erroneous discretionary reasoning, especially when dispositive, is
unsustainable.
B. The Court Below Did Not Find That the Crime of Criminal Threatening Had Occurred.
At T. 65 of the certified transcript, the court below found Mr. Dunn in violation of the good behavior
condition in his suspended sentence because: “the crime of simple assault did occur.” The court then
moved to sentencing. The court below did not find that the crime of criminal threatening had occurred
and did not address this charged allegation. Accordingly, Mr. Dunn’s suspended sentence cannot be
brought forward and imposed based on the criminal threatening charged he was acquitted of.
II. A Defendant Under Sentence Suspension Must Have a Trial Before the State May Move to Impose.
The liberty or incarceration of a defendant with a previously suspended sentence, who is charged
with a new crime, should become a pre-trial bail factor NOT a reversible remedial certainty.
16
ARGUMENT
I. THE LOWER COURT’S IMPOSITION AND REFUSAL TO VACATE WAS AN
UNSUSTAINABLE EXERCISE OF DISRECTION.
A. The Lower Court’s Unsustainable Refusal to Vacate The Imposition of Dunn’s
Suspended Sentence Was Based On the Court’s Erroneous Determination That His Jury
Did Not Specifically Find That Dunn’s Physical Contact With Jered Reed Was Justified
By Law or Consent. This Contradicts and Misinterprets The Jury’s Verdict.
A suspended sentence may be revoked “upon proof by a preponderance of the evidence of a
violation of the condition upon which the sentence was suspended.” State v. Weeks, 141 N.H. 248, 251
(1996). When, as here, the condition was to be of good behavior, the State's burden of proof is satisfied
“either by establishing the fact of a criminal conviction for the acts which constitute the violation or by
proof of the commission of the underlying acts.” Id. (quotation omitted)
This Court reviews a trial court's decision to impose a suspended sentence for an unsustainable
exercise of discretion. State v. Cooper, 146 N.H. 140, 141 (2001); cf. State v. Lambert, 147 N.H. 295,
296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard). State v. Gibbs, 157
N.H. 538, 540 (2008) An abuse of discretion is a court’s untenable or unreasonable, and prejudicial
failure to take into proper consideration the facts and law relating to a particular matter.147 N.H. at 296.
As this Court ruled in Augur: a suspended or deferred sentence expressly conditioned only upon the
defendant's continued "good behavior" may not be imposed absent a finding that the defendant engaged
in criminal conduct. In this case, the defendant committed a violation-level offense."[a] violation does
not constitute a crime," State v. Derry, 134 N.H. 370, 377 (1991), “the trial court may not impose the
defendant's suspended sentences upon proof that he committed a violation-level offense”. See RSA
625:9, II (b). State v. Auger, 147 N.H. 752, 754 (2002). (Multiple emphasis added).
In the attached Mittimi (05-S-417 & 419) and their conditions, Mr. Dunn was ordered to be of good
behavior and to have “NO CONTACT WITH GREG MCRAE.” (Emphasis in original). Importantly,
Mr. Dunn was put on notice by his sentence returns that he must be of “good behavior,” and have no
contact with Mr. McRae. App. 60-61.
17
Mr. Dunn complied with all conditions of his suspended sentence; he has been of good behavior
(committed no criminal acts), and he has never had any contact with Mr. McRae.
This Court has concluded, (primarily in State v. Budgett, 146 N.H. 135, 139 (2001)) as do a majority
of other jurisdictions, that the term "good behavior" is defined as conduct conforming to the law. It does
not include non-criminal behavior for which the defendant must be given actual notice. See: Horsey v.
State, 56 Md. App. 667, 468 A.2d 684, 687 (Md. App. 1983); State v. Columbo, 366 A.2d 852, 854
(Me. 1976); State v. Miller, 28 N.C. App. 504, 221 S.E.2d 520, 521 (N.C. App. 1976); 21A Am. Jur. 2d
Criminal Law § 897 (1998); Annotation, What Constitutes "Good Behavior" Within Statute or Judicial
Order Expressly Conditioning Suspension of Sentence Thereon, 58 A.L.R.3d 1156, 1162 (1974); State
v. Budgett, 146 N.H. 135, 139 (2001) (emphasis added).
Mr. Dunn asserts that this notice guarantee sounds in Part I, Article 15 of the State Constitution
provides in part: “No subject shall be … deprived of his property, immunities, or privileges, put out of
the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his
peers, or the law of the land … .” N.H. Const. pt. I, art. 15. “Law of the land in this article means due
process of law.” State v. Veale, 158 N.H. 632, 636, (quotation omitted), cert. denied, 130 S. Ct. 748
(2009). “The ultimate standard for judging a due process claim is the notion of fundamental fairness.”
Id. at 637 (quotation omitted). “Fundamental fairness requires that government conduct conform to the
community's sense of justice, decency and fair play.” Id. (quotation omitted). State v. LaPlaca, 162 N.H.
174, 177-178 (2011).
As further argued below, there is similarly no allegation that Mr. Dunn violated the expressed,
noticed condition that he have no contact with Mr. McRae, nor has the State proven, nor did the lower
court sustainably find, that his conduct otherwise constituted a violation of the law.
At the conclusion of his trial, Mr. Dunn’s jury was instructed on self defense, mutual combat-
consent and how to determine which witness to believe. App. 52. (Jury is presumed to follow
instructions; State v. Preston, 121 N.H. 147, 150 (1981); State v. Novosel, 120 N.H. 176, 186 (1980).
18
Judge McHugh carefully instructed Dunn’s jury on mutual combat, and further instructed that if
mutual combat was their determination, they were to “write [mutual consent-combat] on the
complaint[s].” See: Mutual consent instruction and unofficial transcript at App. 52.
After Dunn’s testimony that he had put Reed in a headlock, and that he had definitely punched Mr.
Reed, Dunn’s jury sent McHugh J. a question asking for the definition of unprivileged physical contact.
Judge McHugh answered: “All physical contact not otherwise justified by law or consent.” App. 49.
Jered Reed testified at T. page 12 lines 17-24, precisely as he later did at trial, that Calvin Dunn had
been the obvious first aggressor by immediately charging him and punching him 10 to 12 times in the
face and head with his fists, and a total of 15-20 times. In lieu of the self defense, mutual combat, and
mutual consent fight instructions, and the jury question prompting Judge McHugh’s answer, Dunn’s
jury could not have believed this testimony and still acquitted Cal on all charges finding; not mutual
combat, not mutual consent, not a consensual fight, but not guilty.
EACH JURY VERDICT OPTION IS SUBSUMED BY THE LESS SERIOUS
19
Because Mr. Dunn’s jury, contrary to the lower court’s assertion, and after careful instruction on the
option of mutual consent – combat or fight, wrote to Judge McHugh during deliberations and asked:
WHAT IS THE EXACT DEFINITION OF UNPRIVILEGED PHYSICAL CONTACT? To which
Judge McHugh answered: ALL PHYSICAL CONTACT NOT JUSTIFIED BY LAW OR CONSENT,
their verdict rejected outright guilt, and it also rejected violation level guilt by mutual combat; because
they found that the physical contact between Cal Dunn and Jered Reed was justified by law or consent.
Further, Cal Dunn flatly admitted putting Reed in a headlock and punching him, both before Judge
O’Neill at his imposition hearing and again at trial, acts his jury found justified. This is in sharp
contravention to Judge O’Neill’s Order statement that Mr. Dunn’s jury did not specifically find that
Dunn’s “actions were otherwise justified.” This erroneous factual reasoning was at the center of the
lower court’s discretionary finding that Cal’s acts were criminal, and therefore violative of good
behavior. The lower court, in its Order, gave great weight to this erroneous assertion. See: State v.
Burgess, 156 N.H. 746, 751-752 (2008) (weight explained). This contradicts the jury verdict.
In Gibbs, 157 N.H. at 540, citing State v. Lambert, 147 N.H. 295, 296 (2001), when this Court
determines whether a ruling made by a judge is a proper exercise of judicial discretion, the Court
decides whether the record establishes an objective basis sufficient to sustain the discretionary
judgment made. Id. The record here has been unsustainably, untenably and unreasonably misinterpreted
to Mr. Dunn’s great prejudice. The erroneous misinterpretation of the jury’s verdict, was not only given
great weight by the lower court, it was dispositive of its decision to impose. When also dispositive of
Mr. Dunn’s loss of liberty, such erroneous discretion is unsustainable.
B. At Most, The Facts Presented To the Lower Court, Both Before and After Dunn’s Jury Acquittal,
If Not Justified, Only Support Violation Level Mutual Combat.
Under RSA 631:2-a II. Simple assault is a misdemeanor unless committed in a fight entered into by
mutual consent, in which case it is a violation. A New Hampshire trial court reversibly errs if it imposes
a suspended sentence conditioned on good behavior, for a violation level offense.
This is a case of, he said – he said, based solely on disparate accounts of first aggression from the
20
two combatants. The case was presented to both Judge O’Neill on Dec. 14, 2010 and to Cal Dunn’s jury
on July 5-6, 2011, with the same six witnesses, which included the two combatants. To find, as he did,
that “the crime of simple assault did occur,” (T. 65.) Judge O’Neill must find that the unprivileged
physical contact Dunn’s jury rejected did in fact occur by a preponderance of the evidence presented to
him. Accordingly, he must find that the physical contact between Calvin Dunn and Jered Reed was
somehow not justified on Dunn’s part by law or consent; OR that the physical contact was the not the
product of a fight entered into by mutual consent. On the transcribed testimony in this case, this is
simply not possible; to do so is unsustainable.
Calvin Dunn had undergone sixty reconstructive surgeries to his face, the last of the approximate
sixty quite recently before this altercation. T. 49. App. 58. (During the altercation, Cal had one contact
lens in his one remaining [left] working eye.) The lower court heard this surgery testimony, after
allowing it over the State’s objection for relevance (T. 48), and could also clearly see that Cal’s face
was still severely injured, and that one eye did not function, even after the sixty surgeries.
Further, the lower court observed Mr. Reed caught in a lie on the stand with what he told the police
and then tried to reassert under oath, that no words were exchanged prior to Dunn charging him and
punching him 15-20 times. T.12. Next, after maintaining that Dunn charged at him after he exited the
Gilbert Block Office, he is forced to admit that: “In fact, you made a beeline to your truck right toward
Mr. Dunn, right? To which Reed answered: “Yeah.” And: Mr. Dunn never made a step toward you as
you -- as you exited Gilbert Block, correct? A. Correct. T. 20.
For this lower court’s discretion to be sustainable, it must find by a preponderance of this evidence
that Calvin Dunn made the first unprivileged physical contact with Jered Reed. Cal Dunn testified that
after being shoved by Reed and seeing Reed’s fist raised, he grabbed onto Reed to protect himself and
his severely injured, surgically repaired eye and face. (reconstruction that will resume when Cal is
released). Jered Reed testified that Dunn immediately charged him and punched him a total of 15-20
times. Sergeant Ashley testified that he noticed no injuries on Dunn’s hand as he handed him his
21
identification. In fact, no scrapes, cuts, bruises or abrasions of any kind were ever observed to Dunn’s
right (or left) hands by anyone. After the 15-20 punches Jered Reed testified hit him in the head, this is a
virtual and physical impossibility. Reed also testified that Dunn had him on the ground [pavement] in a
headlock, something the testimony concerning his hands and knees did not confirm, and something no
witness ever saw.
This altercation on these facts is a mutual combat fight at most. It is not sustainable on these facts,
presented at the imposition hearing, to believe Reed over Dunn.
Juries in New Hampshire receive a pattern instruction from our Superior Court Judges concerning
criminal guilt and how, versus how not, to determine it:
The jury must never find a defendant guilty based on mere suspicion, conjecture,
or guess. Likewise, the jury must never find a defendant guilty because it thinks
he might be guilty or that he’s probably guilty.
C. Calvin Dunn Was Not Found By the Court Below to Have Been in Violation of the Good Behavior
Condition of His Suspended Sentence Because The Crime of Criminal Threatening Did Occur.
The Court (O’Neill J.) found that Calvin Dunn had failed to be of good behavior, and therefore had
violated his sentence conditions in 211-2005-CR-00417 and 211-2005-CR-00419 by committing
unjustifiable simple assault by a preponderance of the evidence.
The court below (O’Neill J.) made no mention and did not find or ever rule that the State had
satisfied its burden and submitted sufficient evidence to show that, in fact, the crime of criminal
threatening did occur. T. 64, 65.
ΛVTranz www.avtranz.com · (800) 257-0885
Page 60:
Line; DEFENDANT'S CLOSING ARGUMENT
6 MR. SISTI: Well, first of all, there's absolutely --
7 this case has presented -- it's devoid of any information with
8 regard to criminal threatening, so with regard to that I think
9 that has to be completely refuted and frankly rejected by the
10 Court. T. 60.
Page 63:
Line;
22
24 And I'll just go back to the criminal threatening
25 because [we] are on it. I don't want to make it an academic point,
Page 64
1 but the State failed to put before the Court any evidence from
2 Mr. Reed that in fact those words caused him to be placed in
3 imminent fear or danger of bodily injury. And because that
4 evidence isn't before the Court, you can't -- you can't issue a
5 finding on that particular -- on that particular statement.
Immediately Following The Defendant’s Closing Argument of a Complete Absence of Criminal
Threatening Evidence (above), the Court Below (O’Neill J.) Rules:
Page 64:
Line;
THE COURT: Okay. The Defendant please stand.
21 In reference to the initial question, Mr. Dunn, as to
22 whether the State has satisfied their burden imposed on them
23 consistent with the applicable New Hampshire law, I'm going to
24 find that the State has submitted sufficient evidence to show
25 that indeed you have failed to remain of good behavior and, in
Page 65:
Line;
1 fact, the crime of simple assault did occur.
2 Accordingly, I'm going to grant the State's motion to
3 impose the sentence or bring it forward and impose.
4 We now come to the appropriate sentence.
Calvin Dunn was not found by the court below of having failed to remain of good behavior because,
in fact, the crime of criminal threatening did occur.
In the alternative, and assuming without admitting that the underlying acts of the crime of criminal
threatening were found to have occurred, and therefore could have been found as violative of Mr.
Dunn’s good behavior, it must be a similarly justifiable violation level offense. Mr. Dunn was found
not guilty of Simple Assault (justified by law or consent) and of the elements of Criminal Threatening
beyond a reasonable doubt, during the justifiable physical contact. The preponderance of that same
evidence under RSA 631:4 can only support:
IV. A person who responds to a threat which would be considered by a reasonable
person as likely to cause serious bodily injury or death to the person or to another
by displaying a firearm or other means of self-defense with the intent to warn away
23
the person making the threat shall not have committed a criminal act under this
section. RSA 631:4 IV. (emphasis added).
A non-criminal violation level offense cannot violate the good behavior condition of Mr. Dunn’s
suspended sentence.
II. IF ONLY CALVIN DUNN’S JURY HAD FOUND HIM GUILTY.
It is a sad constitutional due process anomaly, that had Cal Dunn been tried before his imposition
hearing, and if only his jury had found him GUILTY of simple assault by mutual combat, and written
“Mutual Consent” on the complaints as they were instructed by Judge McHugh, this RSA 631:2-a II
violation level offense could not have violated Cal Dunn’s suspended sentence condition of good
behavior. Because Mr. Dunn’s jury trail followed his sentence imposition, and because his jury found
him NOT GUILTY of all the elements of simple assault and criminal threatening, he entered and
remains in prison for a minimum of three and a half years.
It is arguable that had Cal Dunn’s jury found him guilty by mutual consent (a violation level
offense), and had he not received the devastating NOT GUILTY verdict they did return, he would have
prevailed in his motion to vacate (nine months after going to prison) and would have been released from
prison in September of 2011. However, if this trail outcome (self defense or guilt by mutual combat)
had come first, Mr. Dunn may well have suffered NO undeserved imprisonment. However, Mr. Dunn
argues here that no defendant should be imprisoned by a NH court for jury held non-criminal conduct
that is later found criminal by a lower standard of proof. This contradicts the jury verdict.
This Court in State v. Kelly, 159 N.H. 390 (2010) recently considered the fairness of this type of
imprisonment (on first impression in New Hampshire), recognizing that there is a “risk of unfairness”
to a defendant whose freedom is taken away because of a conviction that is later reversed. Mr.
Calvin F. Dunn, III, with all due respect, argues here that this procedural “unfairness” reasoning is
somewhat conservatively understated.
Cal Dun first argues (above) that his jury did in fact find his physical contact with Jered Reed
justified by law or consent, and that the lower court’s discretionary imposition unsustainably
24
contradicted his jury’s verdict. Second he argues (again above) that, at most, if this physical contact was
unprivileged, it was at most the product of mutual combat. Mr. Dunn next, and lastly, argues that any
defendant with a suspended (or deferred) sentence over her head, always be tried first and always before
any hearing on a motion to impose. As this case hopefully illustrates, the old rule is unworkable and
arbitrary. It has further proven to be intolerable, simply by defying practical workability.
A. The Rule Should be Changed to Allow New Hampshire Judges the Benefit of The Jury’s Often
Dispositive Determination of the Facts.
“The doctrine of stare decisis demands respect in a society governed by the rule of law, for when
governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of
judicial will with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles,
149 N.H. 502, 504 (2003) (quotations omitted); see State v. Holmes, 154 N.H. 723, 724 (2007). Among
the factors to be considered in determining whether precedent should be overruled are: (1) whether the
rule has proven to be intolerable simply by defying practical workability; (2) whether the rule is subject
to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) whether
related principles of law have so far developed as to have left the old rule no more than a remnant of
abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have
robbed the old rule of significant application or justification. Jacobs, 149 N.H. at 505 (quotations
omitted); see Holmes, 154 N.H. at 724-25. Although “[t]hese factors guide our judgment, … no single
factor is wholly determinative,” State v. Duran, 158 N.H. 146, 154 (2008), because “the doctrine of
stare decisis is not one to be either rigidly applied or blindly followed.” State v. Ramos, 149 N.H. 118,
127 (2003) (quotation omitted).
Application of these factors should lead this Court to conclude that the rule allowing sentence
imposition based on new allegations, before trial on those allegations, should be overruled. See: e.g.
State v. Quintero, 162 N.H. 526, 532-533 (2011).
Consider the predicament of a defendant who has a suspended sentence hanging over her head, and
is in the midst of a sexual assault, and who picks up a baseball bat and cracks her rapist in the head
25
knocking him out. Without any witnesses, there would be no corroboration of the rapist’s intent, of who
assaulted who first, save for her word against his. If Cal Dunn must go to prison, she must also go to
prison, even if a jury later acquits her, because they (as Judge O’Neill ruled in Mr. Dunn’s case) in
finding her not guilty, might not “specifically” find self defense or justification. Our courts are free to
impose her entire suspended sentence by a preponderance of the evidence that later acquits her. The
judge could easily find that she committed the “underlying acts” based on the word of the
(unbeknownst) rapist, precisely as Judge O’Neill did in Mr. Dunn’s case. This hypothetical rape victim
has only her word against the word if her rapist, to defend her freedom with. She may have had a history
of verbally fending off this same man’s sexual advances; witnessed by many. Then she splits his head
open with a bat. There are no marks on her, no film of the altercation, no witnesses; and her assailant
appears in court with bloody pictures of his injuries (as Mr. Reed did) and testifies at the Imposition
Hearing that he did nothing; he just started taking to her and she whacked him. As is Dunn’s case, it’s
his word against hers, and on any given Sunday a N.H. Judge could believe him (the rapist) by a
preponderance of the evidence that the rape victim had committed the underlying acts of assault, and
send her to prison, only to have her jury acquit months or even years later on self defense, or as here,
justification. This process is unworkable and arbitrary.
This Court in Kelly recently considered the fairness of Mr. Dunn’s imprisonment (on first impression
in New Hampshire), recognizing that there is a “risk of unfairness” to a defendant whose freedom is
taken away because of a conviction that is later reversed, finding competing policies more
compelling under these circumstances. As one court has explained (From Kelly):
“If we recognized a right to suspension of a revocation order during the pendency of the
appeal from the subsequent conviction, we would run the risk of releasing repeat
offenders into the community to await the outcome of the appellate process. To avoid
this, the authorities would rely more heavily on the less formal probation revocation
hearings held before trial, at which the [State] do[es] not have the burden of proof
beyond a reasonable doubt, evidentiary rules are relaxed and following which the
probationer could be incarcerated immediately.
People v. Avery, 179 Cal. App. 3d 1198 (Ct. App. 1986) (citations omitted); see Roberson, 501 F.2d at
308-09 (commenting that it would create a “constitutional anomaly” to treat a probationer who had
26
already received a full criminal trial on an offense justifying revocation of probation more favorably
than a probationer who is found to have committed such an offense on the basis of the independent
evidence introduced at a relatively informal revocation hearing). State v. Kelly, 159 N.H. 390, 393
(2009).
It must follow that fundamental constitutional fairness demands that a defendant who had actually
received this same full criminal trial on all charges rejecting revocation by acquittal, creates this precise
“constitutional anomaly” when the acquitted acts are now non-criminal violation level offenses.
Conversely, Mr. Dunn was subjected to and incarcerated by this very “constitutional anomaly” that this
Court found unsound enough to proscribe as harmful to citizens similarly situated.
As this Court further reasoned in Kelly: “[A] judgment of conviction is presumed correct and that a
probationer should not be insulated from having his probation revoked during the frequently extended
process of appellate review.” 6 LaFave, supra § 26.10(c), at 890-91 (quotations omitted). Id. It must
follow that a jury’s acquittal on all charges be presumed and afforded this same contextual presumption
of correctness, when the acquitted acts leave only non-criminal, violation level offenses remaining.
When the State wishes to impose a deferred sentence the defendant has the burden of proving that he
was of good behavior. See: NH Criminal Practice and Procedure Ch. 33 at § 33.33. Here, the burden
rests on the State. Id. at § 33.22 (suspended sentences). This difference augments the constitutionally
anomalous, fundamental unfairness identified by this Court in Kelly, because it is only the prosecutor
and not the defendant who can benefit from an unresolved verdict, and is insulated from the effects of a
conflicting verdict. See: Id.; see generally: N.H. Const. Pt. 1 art. 15 (giving criminal defendants the right
to be “fully heard in his defense,” and not to be “put out of the protection of the law, exiled or deprived
of his life, liberty, or estate, but by the judgment of his peers, or the law of the land….”). This Court
acknowledged in Kelly, that there IS a risk of unfairness to a defendant whose freedom is taken away
because of a conviction that is later reversed.” Id.; See: e.g. State v. Shepard, 158 N.H. 743, 744 (2009).
A clearly instructed and later jury acquittal by justification is commensurate, if not more
incontestable, than the unfairness of the later reversal identified by this Court in Kelly at 577.
In Mr. Dunn’s case, as opposed to reversal on appeal, his jury heard his plea of self defense, on the
27
merits, and in the first instance, and was instructed on mutual combat. They were further instructed to
write mutual consent on Dunn’s complaints if they found him guilty of that offense. They then asked for
and were given the definition of unprivileged physical contact, retuning not guilty verdicts on all counts.
That palpable risk of unfairness identified by this Court in Kelly, is further magnified and more
harmfully realized, when a full jury trial acquittal (argued to and instructed on - self defense), follows a
defendant’s imprisonment rather that a direct or discretionary appeal reversal. This Court should further
acknowledge the distinguishable difference in “unfairness” analysis between a defendant (as in Kelly)
convicted after a full criminal trial with only the potential of reversal, and a defendant like Mr. Dunn
who, after that same full criminal trial, was acquitted of all charges but who also waits in prison.
B. The Old Rule Is Unworkable Within Our Current Legal Framework Because Developments in the
Closely Related Principles of N.H Bail Statues Fully and Adequately Protect the Public and Its
Policy, Undercutting and Robbing the Old Rule of Significant Application or Justification, AND
This Proposed New Rule Would Not Lend Itself to Any General Reliance That Would Create a
Special Hardship Were It Adopted and the Old Procedure Overruled.
This Court has cited “Public Policy” on several occasions when rejecting any proposed rule that
would mandate that an imposition hearing come after trial. This Court cites the remedial vs. sentencing
nature of deferred or suspended sentence imposition, while also acknowledging the harshness of a
citizen’s loss of liberty. This common law reasoning centers around the publics’ policy driven
protection from dangerous repeat offender criminals being on our streets. First, the “repeat” component
of this characterization is “repeat by allegation” only. Second, these allegedly dangerous and alleged
repeatedly offending criminals were found by their sentencing judges not to have been of any public
danger by the very deferment or suspension of their original sentences. The sentencing Judge, often
after trial, or plea and offer of proof, found no such danger and that incarceration was unnecessary. This
judicial determination will have very often been made only months before the alleged criminal conduct
which under the current rule, impose her suspended sentence and incarcerates her. In other instances,
this non-dangerous judicial determination will have been made three, five or even ten years before the
newly alleged conduct, without any violations of the sentence conditions for this long period of time. In
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either instance, this dangerous repeat offender/ public policy argument further fails because New
Hampshire already has a remedial public safeguard in place; RSA Chapter 597 et seq.
Every defendant under sentence suspension already has any newly alleged misconduct considered
on case by case basis of severity and public policy protection analysis under 597 et seq.; compare:
alleged felony murder vs. misdemeanor 645:1 Indecent Exposure and Lewdness for public urination.
Bail pending trial would almost certainly denied in the first example, and almost certainly be granted on
the misdemeanor public urination. But under the current “remedial” rule this 645:1 criminal act would
violate the good behavior condition of a suspended or deferred sentence. We should let defendants have
their jury peers try these alleged facts, and determine if the alleged conduct was criminal, violation
level, or led to acquittal before the State moves to impose. Changing the current common law
procedural rule for any defendant charged with a crime while her suspended sentence is still in effect;
would be both simple, and would not lend itself to any general reliance that would create a special
hardship were it overruled.
1. Anyone charged with a crime must have her trial first (before imposition hearing);
2. N.H. Bail Statutes will protect the public and its policy; and
3. If convicted of a violation the jury must say so by notation or on a simple form;
4. No court may impose a suspended sentence on a jury held violation level (non-criminal)
offense; or in the alternative, the standard must be beyond a reasonable doubt; and
5. If convicted of a misdemeanor (a crime), the State will move to impose with this virtually
irrrebuttable preponderance of the evidence;
6. If the defendant (under a suspended sentence) is found not guilty of the charged crime, the
jury MUST say why by notation or on a simple form; self-d, justification, alibi,
nullification, mutual combat, competing harms, etc.
Aside from eliminating the State’s unfair procedural advantage argued above, this rule would
eliminate the threat of unjustifiable imprisonment for all defendants like Cal Dunn, who’s juries find
them “un-specifically” Not Guilty, or Not Guilty of a violation level offense. Under the current rule,
defendants in prison like Cal Dunn are forced to look back in anger at their not guilty verdicts and
lament; if only my jury had found me guilty. (by mutual consent or of any violation level offense).
The harshness of imprisonment, and the reliability of the bail statutes, vitiate and alter the existing
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APPENDIX
TABLE OF CONTENTS
Page
Order on Motion to Vacate (Hon. James D. O’Neill, III)…………….………….32-35
Motion to Vacate………………………………………………….……………..36-38
Motion For Reconsideration (of the Order on motion to vacate)……………..…39-47
Order on Motion to Reconsider (motion to vacate)…………………………………48
Jury Question (during deliberations) and McHugh J. answer………………...…….49
BSSC Clerk Letter with Complaint and attached Jury Instruction………...……50-52
Order denying stay of hearing on motion to impose until after trial……………53-55
Pre Trial Notice Of Self Defense………………………………………..…..….56-57
Hospital photo consent, and post-op photos…………………..……….……..…….58
Booking photo…………………….…………..…………………….......…………59
Mittimi in 05-S-417 and 05-S-419…………………………………….….…….60-61
-A-
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STATE OF NEW HAMPSHIRE
BELKNAP, SS. SUPERIOR COURT
SEPETEMBER TERM 2011
THE STATE OF NEW HAMPSHIRE
v. 05-S-417, 05-S-419
CALVIN F. DUNN III
MOTION FOR RECONSIDERATION
NOW COMES Calvin F. Dunn III, through undersigned counsel, and pursuant to N.H. Superior
Court Rule 59-A, respectfully requests that this Honorable Court reconsider its Order of September 14,
2011, and in support thereof states as follows:
1. After the hearing held (9/8/11) on the defendant's Motion to Vacate Sentence (filed 7/21/11) and
the State's Objection to same (filed 8/1/11) this Court rendered the following determination( s): The
defendant’s Motion to Vacate Sentence is DENIED. See: Order on Motion to Vacate 9-14-2011.
2. Undersigned counsel was retained on Saturday September 24, 2011and will make every effort to file
the following in a timely fashion.
3. By way of brief background, in 2006, the defendant, Calvin Dunn, III, pled guilty to one
count of accomplice to burglary, contrary to RSA 626:8 and RSA 635:1, and one count of
tampering with witnesses and informants, contrary to RSA 641:5. The Court sentenced the
defendant to a prison term of three and one half to seven years suspended on the condition of
good behavior for five years.
4. On May 11, 2010, the Laconia District Court found the defendant guilty of two counts of
simple assault and one count of criminal threatening. The defendant subsequently appealed (2.14)
those convictions to this Court.
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5. Later that month (5-24-2010) the State filed a Motion to Impose the previously suspended sentences,
asserting that the underlying acts constituted a violation of the “good behavior” condition of the
suspended sentence.
6. On December 17, 2010, the Court granted the State's Motion to Bring Forward and imposed the entire
suspended sentence of 3 and ½ to 7 years stand for the 2006 convictions.
7. On July 6, 2011, the defendant stood trial in this Court for the two counts of simple
assault and one count of criminal threatening. At trial, the defendant argued that he acted in self
defense. The jury subsequently acquitted the defendant of all the charges against him.
8. In denying Mr. Dunn’s Motion to Vacate this Court, in pertinent parts, reasoned and held that:
“[T]he defendant has not pointed to any law or fact which the Court misapprehended
when making its December 17, 2010 decision. See: N.H. Super Ct. R. 59-A; and
[A] jury acquittal of criminal charges is not dispositive as to whether a suspended
sentence should be imposed.” See e.g., Gibbs, 157 N.H. 538, 542 (2008).
“The jury only found that the defendant was not guilty of simple assault and criminal
threatening beyond a reasonable doubt. The jury did not specifically find that the
defendant acted in self defense, or that his actions were otherwise justified.”
[T]he defendant has failed to provide any legal support for the defendant’s request. .
See Guy v. Town of Temple, 157 N.H. 642, 658 (2008) ("[J]udicial review is not
warranted for complaints regarding adverse rulings without developed legal argument,
and neither passing reference to constitutional claims nor off-hand invocations of
constitutional rights without support by legal argument or authority warrants
extended consideration.(quoting In re Omega Entm’t, LLC, 156 N.H. 282,
287 (2007)).
9. Mr. Dunn here respectfully directs the Court’s attention to the following facts and law, which he feels
the Court may have overlooked or misapprehended in making its 9-14-11 decision.
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10. In the attached Mittimi (05-S-417 & 419) and their conditions, Mr. Dunn was ordered to be of good
behavior and to have “NO CONTACT WITH GREG MCRAE.”
11. Importantly, Mr. Dunn was put on notice by his sentence returns that he must be of “good behavior,”
and have no contact with Mr. McRae.
12. Mr. Dunn has complied with all conditions of his suspended sentence; he has been of good behavior
(committed no criminal acts), nor has he had any contact with Mr. McRae.
13. The New Hampshire Supreme Court has concluded, (primarily in State v. Budgett, 146 N.H. 135, 139
(2001)) as do a majority of other jurisdictions, that the term "good behavior" is defined as conduct
conforming to the law. It does not include non-criminal behavior for which the defendant must
be given actual notice. See: Horsey v. State, 56 Md. App. 667, 468 A.2d 684, 687 (Md. App. 1983);
State v. Columbo, 366 A.2d 852, 854 (Me. 1976); State v. Miller, 28 N.C. App. 504, 221 S.E.2d 520,
521 (N.C. App. 1976); 21A Am. Jur. 2d Criminal Law § 897 (1998); Annotation, What Constitutes
"Good Behavior" Within Statute or Judicial Order Expressly Conditioning Suspension of Sentence
Thereon, 58 A.L.R.3d 1156, 1162 (1974); State v. Budgett, 146 N.H. 135, 139 (2001) (emphasis
added).
14. Mr. Dunn asserts that this notice guarantee sounds in Part I, Article 15 of the State Constitution
provides in part: “No subject shall be … deprived of his property, immunities, or privileges, put out of
the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his
peers, or the law of the land … .” N.H. Const. pt. I, art. 15. “Law of the land in this article means due
process of law.” State v. Veale, 158 N.H. 632, 636, 972 A.2d 1009 (quotation omitted), cert. denied,
[*178] 130 S. Ct. 748, 175 L. Ed. 2d 524 (2009). “The ultimate standard for judging a due process
claim is the notion of fundamental fairness.” Id. at 637 (quotation omitted). “Fundamental fairness
requires that government conduct conform to the community's sense of justice, decency and fair play.”
Id. (quotation omitted). State v. LaPlaca, 162 N.H. 174, 177-178 (2011).
15. The Budgett Court further concluded that: “the trial court erred in revoking the defendant's suspended
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sentence. The defendant violated a condition of parole. Specifically, he violated the terms of his
community sexual offender treatment contract. The order suspending the defendant's sentence,
however, had one expressed condition, that he not reside in the victim's neighborhood. There is no
allegation that the defendant violated this condition, or that his conduct otherwise constituted a
violation of the law. Id. at 139. (emphasis added).
16. Citing due process the Budgett Court reversed the imposition of Mr. Budgett’s suspended sentence.
17. As further argued below, there is similarly no allegation that Mr. Dunn violated the expressed, noticed
condition that he have no contact with Mr. McRae, nor has the State proven that his conduct otherwise
constituted a violation of the law.
18. In State v. Cooper, the Supreme Court, citing Budgett, held that: “On appeal, the State argues that the
trial court erred in ruling that it must prove the defendant violated the law in order to establish a
violation of the condition of good behavior. The State also argues that the defendant had actual notice
that his conduct, which led to his parole revocation, was also violative of the condition of good
behavior. The Court reviewed the trial court's decision to impose a suspended sentence for an abuse of
discretion. See State v. Kierstead, 141 N.H. 803, 804, 693 A.2d 410 (1997), stating: “In State v.
Budgett, N.H. , 769 A.2d 351, 2001 N.H. LEXIS 43 (decided 2001), we held that good behavior
is defined as conduct conforming to the law. Thus, the trial court did not err in ruling that the
State must prove the defendant violated the law in order to establish a violation of the condition
of good behavior. Accordingly, we hold that the trial court did not abuse its discretion in denying the
State's motion to bring forward the defendant's suspended sentence.” State v. Cooper, 146 N.H. 140,
141-142 (2001). (emphasis added).
19. In State v. Auger the Court further ruled that: “A suspended or deferred sentence need not expressly
state that committing a crime will trigger its imposition because such a condition is "so basic and
fundamental that any reasonable person would be aware of [it]." Budgett, 146 N.H. at 138 (quotation
omitted). By contrast, a defendant must be given actual notice that engaging in non-criminal conduct
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could result in imposition of his sentence. Id. at 138-39. To satisfy due process, a suspended or
deferred sentence must specify the types of non-criminal conduct that will trigger its imposition. Id. at
139. (precisely as Mr. Dunn’s expressed non-criminal condition of no contact with Mr. McRae
did)."To hold otherwise would effectively modify the terms of the original sentencing order and result
in fundamental unfairness." Id.; State v. Auger, 147 N.H. 752, 754 (2002).
20. These principles apply with equal force to express conditions of "good behavior." Thus, a suspended
or deferred sentence expressly conditioned only upon the defendant's continued "good behavior" may
not be imposed absent a finding that the defendant engaged in criminal conduct. In this case, the
defendant committed a violation-level offense."[a] violation does not constitute a crime," State v.
Dery, 134 N.H. 370, 377, 594 A.2d 149 (1991), the trial court may not impose the defendant's
suspended sentences upon proof that he committed a violation-level offense. See RSA 625:9, II(b)
(Supp. 2001). State v. Auger, 147 N.H. 752, 754 (2002). (multiple emphasis added).
21. While it is certainly true, as this court stated, that: the jury did not specifically find that the defendant
acted in self defense, or that his actions were otherwise justified,” it similarly beyond question that
since the jury found Mr. Dunn not guilty of simple assault, he cannot logically have been guilty of any
of the following criminal elements of simple assault beyond a reasonable doubt .
22. RSA 631:2-a Simple Assault. –
I. A person is guilty of simple assault if he:
(a) Purposely or knowingly causes bodily injury or unprivileged physical contact to another; or
(b) Recklessly causes bodily injury to another; or
(c) Negligently causes bodily injury to another by means of a deadly weapon.
II. Simple assault is a misdemeanor unless committed in a fight entered into by mutual consent, in
which case it is a violation. Source. 1979, 126:3, eff. Aug. 4, 1979.
23. Therefore, by a preponderance of the evidence on these facts Mr. Dunn, at most, committed the act in
RSA 631:2-a II of Mutual Combat.
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24. Mutual Combat as defined in RSA 631:2-a II is a violation level offense.
25. Mr. Dunn, therefore, need not now prove to this court that his actions were justified, only that the
conduct that erroneously supported the imposition of his suspended sentence was not criminal. See:
Budgett at 139; Auger at 754.
26. Mr. Dunn was found not guilty of Criminal Threatening RSA 631:4; whether a felony, a
misdemeanor, or a violation. However, in response to any State’s assertion of underlying acts, Mr.
Dunn ‘s alleged conduct demonstrated his intent to use self defense (his jury arguably agreed) if and
when attacked or engaged in mutual combat. RSA 627:1 et seq.
27. New Hampshire’s criminal code states that a person is justified in using force upon another in self-
defense (RSA 627:4), and in other circumstances. A defendant’s physical conduct, such as raising his
fists, shouting threats, and taking a fighting stance, is justified if the defendant is faced with imminent
use of force (as in mutual combat), whether by an alleged “victim,” or mutual combatant.
28. In the State’s Motion to impose, Mr. Dunn is alleged to have “been in the victim’s truck without
permission.” This act, if proven, could be construed as contrary to RSA 635:2 Criminal Trespass:
I. A person is guilty of criminal trespass if, knowing that he is not licensed or privileged to do so, he
enters or remains in any place.
II. Criminal trespass is a misdemeanor for the first offense and a class B felony for any subsequent
offense if the person knowingly or recklessly causes damage in excess of $1,500 to the value of the
property of another.
III. Criminal trespass is a misdemeanor if:
(a) The trespass takes place in an occupied structure as defined in RSA 635:1, III; or
(b) The person knowingly enters or remains:
(1) In any secured premises;
(2) In any place in defiance of an order to leave or not to enter which was personally
communicated to him by the owner or other authorized person; or
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(3) In any place in defiance of any court order restraining him from entering such place so long
as he has been properly notified of such order.
IV. All other criminal trespass is a violation.
V. In this section, "secured premises'' means any place which is posted in a manner prescribed by
law or in a manner reasonably likely to come to the attention of intruders, or which is fenced or
otherwise enclosed in a manner designed to exclude intruders.
VI. In this section, "property,'' "property of another,'' and "value'' shall be as defined in RSA 637:2,
I, IV, and V, respectively.
29. As the statute delineates, Criminal Trespass is a misdemeanor if the trespass takes place (1) in an
occupied structure, or (2) in a secured premises, or (3) in defiance of an order to leave or not enter, or
(4) in defiance of a court order; otherwise it is a violation. RSA 635:2, II & III.
30. Thus, the State’s failure to allege or prove any of the above necessary elements results in a violation
offense only.
31. Once again, the alleged conduct that supported the imposition of Mr. Dunn’s 3 and ½ to 7 years in
State Prison was, if true, a non-criminal violation level offense, and on these facts (reaching into or
entering a parked pick-up truck) far more likely to merely support a common civil trespass.
CONCLUSION
32. Mr. Dunn has always been in full compliance with the only expressed sentence condition that he have
no contact with Mr. McRae;
33. On the facts of his case before this court, and before his jury, Mr. Dunn engaged in the act described
in RSA 631:2-a II, entitled Mutual Combat, a violation level offense.
34. Once engaged in mutual combat, Mr. Dunn’s act underlying his unequivocal acquittal on criminal
threatening, falls under RSA 631:4 IV: “ A person who responds to a threat which would be
considered by a reasonable person as likely to cause serious bodily injury or death to the person or to
another by displaying a firearm or other means of self-defense with the intent to warn away the person
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making the threat shall not have committed a criminal act under this section.” Source. 1971, 518:1.
1983, 338:1. 1994, 187:2. 1996, 92:1. 2002, 222:7. 2003, 69:1, eff. Jan. 1, 2004. 2010.
35. On the facts of his case before this court, and before his jury, Mr. Dunn may have engaged in the act
described in RSA 631:4 IV above, a violation level offense.
36. Under RSA 635:2 entitled Criminal Trespass, Mr. Dunn, by allegedly reaching into Mr. Reed’s
pickup, has at most committed the act delineated in 635:2 IV, a violation level offense, and far more
probably; simple civil trespass.
37. The State cannot and did not prove that “the defendant violated the law in order to establish a
violation of the condition of good behavior.” State v. Cooper, at 141-142.
38. Mr. Dunn has had no contact with Mr. McRae.
39. Accordingly, Mr. Dunn did not violate the conditions of his suspended sentences in 05-S-417 or in 05-
S-419.
WHEREFORE, Calvin Dunn III respectfully requests that this Honorable Court reconsider its Order of
September 14, 2011 and upon reconsideration find that:
A. Calvin Dunn did not commit, nor has the State proven that he committed, a criminal act that could
have violated the good behavior condition of his sentences; and
B. That Mr. Dunn did not violate the only expressed non-criminal condition of his sentences that he
have no contact with Mr. McRae; and therefore this court should
C. Issue an order vacating the imposition of his suspended sentence; and
D. Issue an order for Mr. Dunn’s immediate release; or
E. Revise its order or take other appropriate action without rehearing; or
F. Schedule a further hearing; and
G. For all other relief the Court might find just and equitable.
Respectfully Submitted,
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_________________________
Michael D. Hulser #17462
148 Hill Road
P.O. Box 288
Acworth, N.H. 03601
603 835-6184 (Phone)
603 835-7898 (Fax)
Dated: September 26, 2011
CERTIFICATION
I hereby certify that I have forwarded a copy of this motion to Assistant Belknap County Attorney
Carley Ahern on this 26th of September 2011.
_________________________
Michael D. Hulser #17462
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