2011 N.H. LEXIS 43

State of New Hampshire v. Jesus Ceron-Ortega.

Case No. 2009-0760.

Supreme Court of New Hampshire.

March 30, 2011.


The defendant, Jesus Ceron-Ortega, appeals his convictions on two counts of first degree assault and two counts of second degree assault. He argues that the trial court erred in providing supplemental self-defense instructions. We affirm.

The purpose of the trial court’s charge is to state and explain to the jury the rules of law applicable to the case. State v. Hernandez, 159 N.H. 394, 400 (2009). When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable person would have understood them, and in light of all the evidence in the case. Id. 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. Id.

In this case, the trial court instructed the jury in self-defense, as well as the limited purpose for which the jury could consider evidence of the victim’s violence and retaliation (supplemental instructions). The defendant argues that the supplemental instructions misstated the law. He concedes that his trial counsel acceded to the instructions but asks that we review the alleged error under our plain error rule. See Sup. Ct. R. 16-A; State v. Richard, 160 N.H. 780, 788 (2010) (invited error does not preclude plain error review).

We have frequently observed that Rule 16-A is to be used sparingly and should be limited to those cases in which a miscarriage of justice would otherwise result. State v. Lopez, 156 N.H. 416, 423 (2007). For us to find plain error under the rule: (1) there must be error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. Id.Generally, when the law is not clear at the time of trial, and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error. Id. at 424.

The defendant first argues that the trial court erred in its self-defense instruction. RSA 627:4, II (a) 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 third person.” The trial court instructed the jury that, in evaluating the defendant’s self-defense claim, it could consider information known to the defendant, either personally or based upon reports from third parties, about the victim’s past alleged violent conduct toward others. The defendant argues that the court erred when it then stated that, to justify the defendant’s use of force against the victim in self-defense or defense of his brother, the victim “must have said or done something at the very time of the encounter at issue that would cause a reasonable person in the position of the defendant and who knew what the defendant knew or had been told about the victim to believe that the victim was about to immediately attack the defendant or the defendant’s brother.” We agree with the State that the cited instruction did not require the jury to find that actual danger existed, but, rather, required it to find that the defendant’s belief as to the existence of actual danger was reasonable.

Even if we assume that the trial court’s instruction erred in requiring a finding both of contemporaneity and immediacy of threatening conduct by the victim, we cannot conclude that the error was plain. As the defendant correctly notes, we have “never held that absolute contemporaneity or immediacy of the danger is required in order for a defendant to establish self-defense.” We disagree, however, with his assertion that our holding in State v. Vassar, 154 N.H. 370, 374 (2006), supports a finding of plain error in this case. In Vassar, we held that because there was some evidence that “the defendant reasonably believed that his brother was about to use deadly force against him and/or their mother,” the defendant’s request for a deadly force instruction should have been granted. Id. The defendant’s argument that a victim’s threatening actions may fall along a continuum that does not require immediacy of danger is unsupported by our case law. Accordingly, because we have not held to the contrary, the error, if any, was not plain. See State v. Lopez, 156 N.H. 416, 424 (2007).

The defendant also argues that the trial court’s instructions were flawed because “retaliation and self-defense are not mutually exclusive concepts.” While we discern no inconsistency between the language of the self-defense statute and the trial court’s instruction on this issue, to the extent that any error might be found, it is not plain. See id.


DUGGAN, HICKS and CONBOY, JJ., concurred.

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