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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 Charles Doe 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 ___________________________

Rockingham No. 2006-872 THE STATE OF NEW HAMPSHIRE v. MICHAEL SPINALE Argued: October 25, 2007 Opinion Issued: November 30, 2007 Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State. Henry F. Spaloss, of Nashua, on the brief and orally, for the defendant. DUGGAN, J. The State appeals the order of the Superior Court (Coffey, J.) setting aside the jury's guilty verdict against the defendant, Michael Spinale, on one charge of robbery. See RSA 606:10, III (2001). The trial court concluded that no rational juror could have found the defendant guilty beyond a reasonable doubt. We reverse and remand. I The following facts were adduced at trial. On July 21, 2004, Kevin James was working as an attendant at the Simco Parking Lot outside the Happy Hampton Arcade in Hampton. The parking lot was busy due to a fireworks show scheduled to begin at 9:30 p.m. in a beach area approximately

100 yards from the rear of the lot. A booth located at the front of the parking lot provided lighting to James while he stood or sat outside it to collect parking fees and provide tickets to drivers entering the lot. James held the money and ticket stubs in the pockets of an apron. James' supervisor, Jake Hume, remained inside the arcade for most of the night, but occasionally went outside to direct traffic and collect money from James. Shortly before 9:00 p.m., three men pulled into the parking lot and gave James "a hard time" about the high parking fees and the location of their parking spot. James radioed Hume and asked him to come outside. When Hume arrived, James informed him of what had occurred and pointed to the men as they were walking towards the beach. Officer James Tuttle of the Hampton Police Department, who was on motorcycle patrol, arrived shortly thereafter, but did not see the men. After Officer Tuttle left, Hume informed James that he would call the police if the men returned to cause additional problems. At approximately 10:44 p.m., after the fireworks had finished, James observed the same three men walking towards him. One of the men passed James and walked towards their car. A second man, later identified as Corey Daniels, stood five or six feet to the side of James, while the third man, later identified by James as the defendant, continued to approach him. The defendant waited while James finished with another customer, and then pulled out a knife, pressed it against James' neck, and demanded all of his money. Initially, James thought that the defendant was joking, but after a couple seconds, realized he was serious. James then noticed a vehicle driving towards them. He told the defendant that the police were coming. When the defendant and Daniels turned to look behind them, James ran behind the booth and watched the defendant and Daniels run back to their vehicle and drive away. As the vehicle passed James, he wrote down the type of vehicle, Chevy Blazer, and its license plate number, 90AX02, on a ticket stub. James radioed Hume immediately. Hume arrived and James informed him that the same three men who had given him a hard time about the parking fees had attempted to rob him. Before they could call the police, however, James and Hume observed Officer Tuttle patrolling the lot. James and Hume described the three individuals to Officer Tuttle. James described the defendant, whom Officer Tuttle listed in his report as "Suspect #1," as a white male, five feet five to five feet six inches in height, twenty to twenty-five years of age, 180 to 210 pounds, with dark hair, wearing a black shirt and possibly jeans, and the driver of the Blazer. He also informed Officer Tuttle that he did not "see any facial hair at the time." James described Daniels, the man standing to the side and listed as "Suspect #2" in Officer Tuttle's report, as a white male, five feet eight to five feet nine inches in height,

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in his early twenties, with a stocky build and dark hair, and wearing a white shirt and jeans. He described the man who had immediately walked to the vehicle, listed as "Suspect #3" in Officer Tuttle's report, as a white male, five feet eight to five feet nine inches in height, in his early twenties, and wearing a blue Iverson basketball jersey with the number three on it. Hume, who did not see the alleged robbery but had observed the individuals walking away from the earlier confrontation, described "Suspect #2" to Officer Tuttle as wearing a white shirt and having a goatee, and "Suspect #3" as being tall and wearing a blue Iverson tank top with the number three on it. The police later identified the defendant as the owner of a Chevy Blazer with Massachusetts license plate number 90AX02. Detective Lynne Charleston of the Hampton Police Department subsequently obtained a general description of the defendant from his driver's license, compared it to the description of "Suspect #1" in Officer Tuttle's report, and concluded that the descriptions "somewhat fit." She then located a photograph of the defendant, which was taken on June 6, 2004, and depicted the defendant as having a goatee. Using this photograph, Detective Charleston assembled a two-page photographic array containing photographs of fifteen other men similar in appearance to the defendant. The defendant's photograph was placed on page two of the array, while a photograph of Daniels, "Suspect #2," was placed on page one. Daniels' photograph was included even though, at the time, he was not a suspect in the robbery. On August 26, 2004, Detective Charleston showed the two-page array to James. James recognized none of the photographs on page one, but, "almost immediately" and with "no contemplation," identified the defendant as the person who tried to rob him. James testified that, "as soon as [he] saw" the array, he was "100 percent sure" that the defendant was the man who robbed him. Detective Charleston asked James to sign, date, and indicate how he knew the defendant on the array. Accordingly, James circled the defendant's photograph and wrote: "This looks like the kid who held the knife to me the night in the parking lot." Thereafter, the defendant was charged with robbery. During trial, James identified the defendant as the robber with "100 percent" certainty. When asked by defense counsel to estimate the defendant's current height and weight, James testified that the defendant was approximately five feet seven inches or five feet eight inches in height, and 180 pounds. After the State rested, the defendant moved to dismiss, arguing, among other things, that the identification evidence had been insufficient to support a finding beyond a reasonable doubt that the defendant had committed the robbery. The trial court denied the motion, ruling that the State had made a prima facie case on identification, and that the issue of identification was for the jury to decide.

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Thereafter, the defendant testified and presented two witnesses, Danielle Gagne and Jen Elwell, who had been his friends for approximately six years. Gagne and Elwell testified that they met the defendant and the other two men in the beach area before the fireworks began. After the fireworks, Gagne and Elwell walked towards their vehicle with the three men. Gagne testified that the last time she saw the defendant, he was "walking to his car." Elwell testified that she waved at the men as they were getting into the defendant's car, and did not see a parking lot attendant. The defendant testified that he was at Canobie Lake with the other two men when Elwell called and asked them to come to Hampton beach. He parked in the Simco lot, but encountered no problems with the parking attendant. He denied meeting a parking attendant in the parking lot when he left after the fireworks, and denied that either he or any of his companions had a knife or confronted an attendant. The defendant testified that he was currently twenty-one years of age, six feet two-and-one-quarter inches in height, approximately 250 pounds, and had never shaved his goatee since he grew it approximately eight years before. He also stated that, at the time of the incident, he weighed approximately 230 to 240 pounds. The defendant admitted that he owns a black Chevy Blazer with Massachusetts license plate number 90AX02. The jury returned a verdict of guilty. The defendant later filed a motion for judgment notwithstanding the verdict (JNOV). He argued that the jury was "manifestly" mistaken as to James' identification of the defendant, and, therefore, the verdict should be set aside and a judgment of acquittal entered. At a subsequent hearing, the defendant contended that there was "an overwhelming contradiction in" James' testimony such that there was "insufficient evidence to find beyond a reasonable doubt that [he] was the perpetrator." He asked the trial court to either rule the evidence insufficient and enter a judgment of acquittal, or find that the jury made a plain mistake and order a new trial. The trial court set aside the verdict and granted a new trial. In so doing, the court cited the legal standard concerning sufficiency of evidence; indicated that it "agree[d] with the defendant's sufficiency of the evidence argument"; and concluded that "no rational juror could have found [the defendant] guilty beyond a reasonable doubt on the evidence presented at trial." Specifically, the trial court stated: The description Mr. James gave to Officer Tuttle on the night of his attack

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