Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Exeter District Court No. 2004-787 THE STATE OF NEW HAMPSHIRE v. CATHY BURKE Submitted: February 22, 2006 Opinion Issued: April 12, 2006 Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief), for the State. Patrick W. Fleming, of Portsmouth, by brief, for the defendant. DUGGAN, J. The defendant, Cathy Burke, appeals her conviction in Exeter District Court (Cullen, J.) for simple assault. See RSA 631:2-a, I(a) (1996). We affirm. The trial court could have found the following facts. On July 14, 2004, the defendant attended a hearing at Rockingham County Superior Court. The hearing involved a motion filed by the defendant seeking the return of her personal property from a former boyfriend. This was the defendant's third hearing on that motion. The defendant's attorney, Kathleen Sternenberg, and the opposing attorney, Laura Gandia, were also present. After the hearing, Gandia, Sternenberg and the defendant exited the courtroom together. Gandia informed Sternenberg that her client was unlikely to comply with the trial court's order to return the defendant's property because he was on vacation in

Florida. Gandia testified that the defendant then looked at her, said, "[H]e's not in Florida," and pushed Gandia on her left shoulder with enough force to move her body backwards. The defendant testified that she poked Gandia with her finger on her shoulder "[t]o get her attention" and "let her know that she was lying . . . about where her client was." Gandia then said to Sternenberg, "[D]id you see what happened? She just pushed me." At that point, a bailiff approached to investigate the commotion. The defendant was charged with one count of simple assault. See RSA 631:2-a, I(a). The complaint alleged that the defendant "knowingly cause[d] unprivileged physical contact to Laura Gandia by knowingly pushing her." Prior to trial, the defendant moved to dismiss the complaint on the grounds that RSA 631:2-a, I(a) is unconstitutionally vague and overbroad. The trial court denied the motion and, after trial, convicted the defendant of one count of simple assault. This appeal followed. See RSA 599:1-c, II (2001). On appeal, the defendant argues that: (1) RSA 631:2-a, I(a) is unconstitutionally vague; and (2) insufficient evidence supports her conviction. Although the State does not challenge the adequacy of the defendant's brief on appeal, the special concurrence concludes that we should not reach the merits of the defendant's claims because it believes that she insufficiently briefed both of her arguments. We recognize that we may address the inadequacy of a party's argument on appeal even when the issue is not raised by the opposing party. See Sup. Ct. R. 16(3), (6); cf. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). We should not normally do so, however, where the argument is discernable and briefing inadequacies do not hinder or otherwise interfere with our review of the appeal. Cf. 5 Am. Jur. 2d Appellate Review

Download 2004-787, STATE OF NH v. CATHY BURKE.pdf

New Hampshire Law