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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 ___________________________ Merrimack No. 2008-438

THE STATE OF NEW HAMPSHIRE v. SHAWN R. CUNNINGHAM Argued: June 11, 2009 Opinion Issued: July 10, 2009 Kelly A. Ayotte, attorney general (Janice K. Rundles, senior assistant attorney general, on the brief and orally), for the State. Kimberly Thayer, public defender, of Dover, on the brief and orally, for the defendant. DALIANIS, J. The defendant, Shawn R. Cunningham, appeals his conviction by a jury for two counts of simple assault. See RSA 631:2-a (2007); RSA 651:6, I(h) (2007); RSA 651:6, I-a (2007) (amended 2008). He argues that the Superior Court (Sullivan, J.) erred by denying his motion to dismiss the charges. We affirm. Viewing the evidence in the light most favorable to the State, we conclude that the jury could have found the following facts. The defendant is a

correctional officer at the Merrimack County House of Corrections (facility). The instant charges stem from an incident that occurred on December 31, 2006. At approximately 5:00 a.m. that day, the Concord police brought the victim to the facility on charges that included driving while intoxicated. Then-Corporal Jason Henry and other officers met the police and victim in the pre-booking area, and Henry conducted a pat-down search. Henry found the victim to be tense and agitated. After the pat-down search, Henry took off the victim's handcuffs. The victim then "playfully" punched the blue mat behind him. When Henry told him to stop, he did. Henry asked the victim to remove his boots and put them in the plastic bin provided for his personal property. He complied, although he removed his boots aggressively. He also stared at Henry in an apparent effort to intimidate him. Henry told the victim to "keep moving, please," and he complied. The victim then went into the booking area where the defendant directed him to remove his sweatshirt. The victim balked at doing so because he was not wearing a t-shirt. Once he was given one, he took off his sweatshirt and angrily slammed it into the plastic bin. The defendant asked the victim "a couple of times" to put on the t-shirt, but he refused and tossed it behind him. The victim was then directed to a holding cell, which is used for new inmates as well as those who are under the influence of drugs or alcohol. As the victim walked toward the holding cell with the defendant behind him, the defendant shoved him in the small of the back and forcefully pushed him against the cell's steel and glass reinforced wall. The defendant's fellow officers believed that shoving the victim was unnecessary. They did not perceive the victim, who had complied with nearly all of their requests, including the request to walk toward the holding cell, to pose a threat. The defendant's fellow officers did not believe that the victim did anything to warrant being shoved. They did not believe that the victim had done anything to indicate that he was about to assault them. The defendant testified that he shoved the victim because he believed that the victim was walking too slowly and he was concerned that the victim was about to spit on him or assault him. The defendant testified that he shoved the victim "to keep him off balance." The defendant admitted, however, that up until this time, the victim had not directed any physical conduct at the defendant or his fellow officers. As he walked toward the holding cell, the victim's hands were at his side. The standard procedure when an inmate has complied with the request to enter the holding cell is to close the cell door and allow the inmate a chance to cool down. The defendant, however, followed the victim into the holding cell

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and began a heated exchange with him. At some point, the defendant and victim began wrestling. The other officers soon handcuffed the victim. The victim resisted at first, but then complied. Although the victim then began to yell at the defendant, because he was handcuffed and was still in the holding cell, the other officers did not perceive the victim as a threat. The other officers left the cell. The defendant, however, again began a heated exchange with the victim. During this exchange, the defendant and victim were approximately six feet apart. The victim was handcuffed and his back was against the cell wall. The defendant, believing that the victim was about to charge him, commanded the victim to sit down. When the victim refused and began to call the defendant names, the defendant advanced toward him so that the space between them was less than a foot, and the victim backed away. The defendant continued to order the victim to sit down and then shoved him into a corner. When the victim still did not sit down, he grabbed one of the victim's legs and dropped him to the ground. The defendant then yelled at the victim to stay down as the defendant left the cell. Because of his altercation with the victim, the defendant was sent home early. The defendant testified that he wanted the victim to sit down so that the victim would be at a disadvantage and the defendant would be able to leave the cell safely. The defendant testified that he made the victim fall to the floor because the victim "def[ied] him." The defendant's fellow officers, on the other hand, believed that this use of force was unnecessary. As one officer testified: "In my mind, [the victim] [did not] pose a threat . . . . I mean, he's back

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