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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 ___________________________ Hillsborough-southern judicial district No. 2011-322 THE STATE OF NEW HAMPSHIRE v. CORY FURGAL Argued: October 11, 2012 Opinion Issued: December 21, 2012 Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant. LYNN, J. Following a jury trial in Superior Court (Nicolosi, J.), the defendant, Cory Furgal, appeals his conviction of second-degree murder. See RSA 630:1-b (2007). We affirm. I The jury could have found the following facts. On the evening of October 31, 2009, the defendant attended a house party in Merrimack at the home of Robert Brackett. Although not originally invited to the party, the

defendant was allowed inside without incident. Later in the evening, tempers flared on the back porch of the house when a guest discovered that his iPod was missing and the defendant refused to empty his pockets. The defendant brandished a knife and shouted obscenities at a group of guests who had gathered around him. After Christopher Vydfol tried to defuse the situation and helped persuade the defendant to put the knife away, a fight erupted. Some guests attempted to throw the defendant over the porch railing. Vydfol held onto the defendant to prevent his fall. The defendant then jumped over the porch railing, and Vydfol approached him. The two men proceeded around the house and down the driveway. A group of guests, some of whom had been involved in the fight, gathered some distance away on the driveway. The defendant and members of this group were swearing at each other and "talking trash." Some members of the group may have held baseball bats. At some point, Vydfol put his arms around the defendant and said that none of the guests were going to do anything. After the defendant again pulled out his knife, Vydfol told him to put it away. The defendant told Vydfol to "get off" him. Shortly thereafter, when the defendant felt Vydfol's hands on his shoulders, heard the sound of metal dragging across concrete, and thought that he saw someone approach with something in his hand, he stabbed Vydfol in the chest and ran away. Vydfol died of his injuries. A grand jury indicted the defendant for second-degree murder. See RSA 630:1-b. In his amended notice of self-defense, the defendant asserted that if he stabbed Vydfol, he did so only "to defend himself against what he reasonably believed to be the use of deadly force against him by Christopher Vydfol who acted in concert with other named and unnamed individuals." Before trial, the court denied the State's motion to strike the notice, but granted the State's motion in limine to exclude all evidence of a prior altercation involving Vydfol where the defendant was not present. At trial, outside the presence of the jury, defense counsel asked the trial court to instruct the jury that the defendant was entitled to use deadly force against Vydfol if he reasonably believed that Vydfol had confined or restrained him to allow others to use deadly force against him. Defense counsel noted that RSA 627:9, II (2007) defines deadly force as "any assault or confinement which the actor commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury." (Emphasis

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added.) The State objected, arguing that the language of "the statute" 1 and case law did not support the defendant's requested instruction. At the conclusion of the trial, the trial court instructed the jury, in relevant part, as follows: In deciding whether the Defendant acted in justifiable self-defense, you should consider all of the circumstances surrounding the incident. You should consider how the Defendant acted under the circumstances as they were presented to him at the time and not necessarily as they appear on detach[ed] reflection. The Defendant would have the right to use deadly force on Christopher Vydfol to defend himself if: One, he actually believed that Mr. Vydfol was about to use unlawful deadly force against . . . him. In other words, the Defendant could use deadly force if he actually believed he was in danger of death or [serious]bodily injury; two, even if the Defendant actually believed that such a danger existed, his belief must be reasonable. In other words, there must be reasonable grounds for the Defendant to believe that the other person was about to use unlawful deadly force against him. Self-defense does not require actual danger to the Defendant; rather, the Defendant must reasonably believe that the other person was about to use unlawful deadly force. Deadly force means any assault or confinement which an actor commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury. Outside the presence of the jury, defense counsel objected to the instruction because it failed to inform the jury that the defendant could use deadly force against Vydfol if he reasonably believed that "Vydfol acted alone or with others who joined to use force against the defendant." The State repeated its contention that neither RSA 627:4, II(a) nor case law supported such an instruction. The trial court explained that it did not include the defendant's "in-concert" instruction because "it is not consistent with the language of [the] statute." The trial court noted, however, that the instruction as given did not preclude the jury from finding that the defendant could use deadly force against Vydfol if he reasonably believed that Vydfol acted in concert with others to assault him. The jury found the defendant guilty of second-degree murder.

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Although the prosecutor did not specify the statute he was referencing, we presume he was referring to RSA 627:4, II(a) (2007). This statute provides: "A person is justified in using deadly force upon another person when he reasonably believes that such other person . . . [i]s about to use unlawful, deadly force against the actor or a third person . . . ." RSA 627:4, II(a).

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On appeal, the defendant argues that the trial court erred in: (1) refusing to instruct the jury that he could use deadly force against Vydfol if he reasonably believed that Vydfol, acting alone or in concert with others, was about to use unlawful deadly force against him; and (2) granting the State's motion in limine to exclude all evidence of the prior altercation involving Vydfol. We address each argument in turn. II "When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case." State v. Davidson, 163 N.H. 462, 472 (2012) (quotation omitted). "The trial court is not required to use the specific language requested by the defendant. Rather, the purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case." State v. McDonald, 163 N.H. 115, 126 (2011) (citation and quotations omitted). "We determine whether the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case." Davidson, 163 N.H. at 472 (quotation omitted); State v. Etienne, 163 N.H. 57, 80-81 (2011) (when a defendant raises self-defense "conduct negating the defense becomes an element of the charged offense" (quotation omitted)). Whether a particular jury instruction is necessary, and the scope and wording of jury instructions, are within the sound discretion of the trial court, and we review the trial court's decisions on these matters for an unsustainable exercise of discretion. To show that the trial court's decision is not sustainable, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Etienne, 163 N.H. at 70 (citation and quotations omitted). Nevertheless, whether a statute provides a basis for a requested jury instruction raises a question of statutory interpretation, which we review de novo. See id. In urging that the defendant's requested "in-concert" instruction is inconsistent with the language of RSA 627:4, II(a), the State argues that the statute precludes the defendant's requested instruction because the statute permits a person to use deadly force only on the person whom the defendant reasonably believed was about to use unlawful deadly force against him. The State focuses on the specific statutory text: "A person is justified in using deadly force upon another person when he reasonably believes that such other person . . . [is] about to use unlawful, deadly force against the actor . . . ." The State notes that the common meaning of "such" is "having a quality already or

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just specified," Webster's Third New International Dictionary 2283 (unabridged ed. 2002), or "[t]hat or those; having just been mentioned," Black's Law Dictionary 1570 (9th ed. 2009). Thus, according to the State, to read RSA 627:4, II(a) as the defendant urges would violate a well-established canon of statutory construction

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