State v. Price (2026 N.H. 3): Jury Must Decide “Deadly Force” Mens Rea and Must Be Unanimous as to the Particular Unprivileged Contact in Simple Assault

I. Introduction

In State v. Price, the New Hampshire Supreme Court reviewed three convictions arising from a roadside confrontation after a traffic collision: reckless conduct (based on leaving a ten-year-old child alone in a vehicle with a firearm), second degree assault (based on striking the victim with a baton), and simple assault (based on kicking the victim).

The defendant, Gabriel Price, argued (1) the evidence was insufficient to prove criminal recklessness for the reckless conduct count; (2) the trial court’s self-defense instruction improperly treated baton strikes as “deadly force” as a matter of law, undermining the second degree assault conviction; and (3) the trial court erred by refusing to give a specific unanimity instruction on the simple assault-by-kicking count where evidence described numerous kicks to different body areas.

II. Summary of the Opinion

• Reckless conduct reversed outright (insufficient evidence): The Court held no rational juror could find beyond a reasonable doubt that leaving the child alone for about ten minutes in a vehicle with a holstered firearm (magazine inserted but no round chambered, gun oriented away from the child) was criminal recklessness—a “gross deviation” from law-abiding conduct under RSA 631:3.
• Second degree assault reversed and remanded (erroneous self-defense instruction): The trial court’s instruction effectively declared that purposely striking with a baton capable of causing serious bodily injury or death constitutes “deadly force,” thereby resolving the statutory mens rea component of “deadly force” against the defendant and removing a factual issue from the jury.
• Simple assault reversed and remanded (specific unanimity required): Because the evidence described multiple kicks (varying number and locations), the jury needed a specific unanimity instruction requiring agreement on which particular kick constituted the “unprivileged physical contact.”

III. Analysis

A. Precedents Cited

1. Preservation and appellate review framing

• State v. Ploof, 165 N.H. 113 (2013): The Court used Ploof to explain the purpose of preservation—giving the trial court a chance to correct error. Although the defendant initially characterized the sufficiency issue as “plain error,” the Supreme Court held it was preserved because he moved to dismiss and later sought judgment notwithstanding the verdict on the reckless conduct count.
• State v. Reed, 177 N.H. __, __ (2025), 2025 N.H. 34: Cited for the de novo standard for sufficiency-of-the-evidence review and the “any rational trier of fact” test.
• State v. Pierce, 176 N.H. 487 (2024), 2024 N.H. 12: Used for two related points: (i) factfinders may stack reasonable inferences; and (ii) once evidence is legally insufficient, retrial is barred (a double-jeopardy consequence), which is why the Court did not reach an additional evidentiary claim about limiting the child’s testimony.

2. Recklessness and firearm-related risk

• State v. Belleville, 166 N.H. 58 (2014): Provided the operative definition of criminal recklessness: awareness of a substantial and unjustifiable risk, conscious disregard, and circumstances making that disregard a “gross deviation” from law-abiding conduct. Belleville is central because the Court’s reversal turned on the absence of proof of both (i) a substantial risk of serious bodily injury and (ii) a gross deviation from a law-abiding person’s conduct in the defendant’s situation.
• State v. Mentus, 162 N.H. 792 (2011): Cited as a contrast. In Mentus, reckless handling occurred where the defendant did not check chamber/safety and pointed the gun toward an occupied seat—conduct directly creating an immediate firearm-discharge risk. By comparison, in Price, the gun was holstered, unchambered, and oriented away from the child, and there was no evidence the defendant consciously disregarded a substantial risk at the moment he exited the vehicle.

3. Jury instructions, discretion, and constitutional implications

• State v. Nightingale, 160 N.H. 569 (2010): Cited for the preservation rule requiring contemporaneous objection to jury instructions. The Court found preservation satisfied because counsel objected at sidebar after the instructions were read but before deliberations began.
• State v. Washburn, 170 N.H. 688 (2018): Established the appellate standard for reviewing jury instruction wording/scope: “unsustainable exercise of discretion,” requiring a showing the ruling was untenable or unreasonable and prejudicial.
• State v. Williams, 133 N.H. 631 (1990): Used to characterize the instructional error as constitutional in nature when it resembles directing a verdict on an element of the charged offense. Here, the “deadly force” instruction effectively resolved a mens rea element embedded in the statutory definition of deadly force.

4. Unanimity doctrine in New Hampshire

• State v. Greene, 137 N.H. 126 (1993): The cornerstone for the Court’s holding that where multiple distinct contacts could each satisfy “unprivileged physical contact,” jurors must be instructed they must unanimously agree on the particular contact forming the basis for guilt. The Court applied Greene to the kicking evidence because the testimony described numerous kicks to different body parts and in varying counts.
• State v. Doucette, 146 N.H. 583 (2001): Reinforced Greene by explaining why multiple alleged contacts can amount to multiple potential assaults, triggering the need for unanimity as to the actus reus.
• State v. Sanborn, 168 N.H. 400 (2015): The Court referenced Sanborn to acknowledge doctrinal tension—Sanborn noted uncertainty whether Greene fits later unanimity cases—but also emphasized Sanborn’s limiting principle: Greene is confined to the “unprivileged physical contact” variant of simple assault. Price fits squarely within that variant.
• Vogel v. Vogel, 137 N.H. 321 (1993), and Sup. Ct. R. 25(8): Cited for the Court’s choice not to discuss remaining arguments that did not affect the outcome.

B. Legal Reasoning

1. Reckless conduct: “gross deviation” requires more than a speculative chain of harms

The Court’s sufficiency analysis focused on what the State actually proved about the risk to the child and the defendant’s awareness and disregard of that risk. The evidence showed: (i) no round chambered (a further step was required to fire), (ii) the gun was in a holster clipped to a pocket on the front of the driver’s seat, facing away from the child in the back seat, and (iii) the child was alone for “maybe” ten minutes.

Even taking the State’s evidence in the light most favorable to the prosecution, the Court found the record did not permit a rational finding beyond a reasonable doubt that the defendant was aware of a substantial and unjustifiable risk of serious bodily injury, or that leaving the child under these specific circumstances was a gross deviation from how a law-abiding person would act. The opinion thus draws an important boundary: criminal recklessness is not satisfied merely because a firearm is present; the State must prove concrete risk features and the defendant’s conscious disregard of that substantial risk.

2. Self-defense instruction: “deadly force” cannot be declared as a matter of law by weapon capability alone

The trial court correctly read the statutory definition of deadly force (from RSA 627:9, II), but then added a categorical statement: “Purposely striking with a baton ... capable of causing serious bodily injury or death in the direction of another person constitutes deadly force.”

The Supreme Court held this was error because the statutory definition contains a mens rea requirement: deadly force is an assault committed with the purpose of causing, or with knowledge that it creates a substantial risk of causing, death or serious bodily injury. Capability of the object (a baton “capable” of causing such injury) does not, by itself, establish the defendant’s purpose or knowledge. The instruction therefore removed a live factual question from the jury and effectively resolved an element embedded in the deadly-force determination against the defendant—an error akin to directing a verdict on an element, triggering the constitutional concern described in State v. Williams.

The Court also rejected the idea that the defendant “invited” the error. Defense counsel objected; the trial judge offered to remove the erroneous sentence only if a separate, non-erroneous (and defense-favorable) sentence was also removed. Conditioning correction of an error on surrendering a correct instruction was deemed untenable and prejudicial, meeting the “unsustainable exercise of discretion” standard under State v. Washburn.

3. Specific unanimity: multiple “kicks” require jurors to agree on the same act

The simple assault count charged “unprivileged physical contact ... by kicking.” Trial evidence described a range of kicking acts—legs, torso, abdomen, head—varying from “a few” to “8 to 10” times. Because any single kick could satisfy the “unprivileged physical contact” element, the jury could have split—some jurors convicting based on one kick, others based on a different kick. Under State v. Greene and State v. Doucette, that risk requires a specific unanimity instruction.

The Court’s reliance on Sanborn clarifies that the holding is tightly tied to the “unprivileged physical contact” theory of simple assault, where discrete contacts can constitute distinct assaults and thus require agreement on the particular contact.

C. Impact

1. Reckless conduct prosecutions involving firearms

Price signals that, for reckless conduct under RSA 631:3, the State must do more than point to the existence of a gun and the presence of a child. The prosecution must prove—beyond a reasonable doubt—both substantial risk characteristics (accessibility, readiness to fire, orientation, context, duration, and other concrete factors) and the defendant’s conscious disregard under circumstances amounting to a gross deviation. As a practical matter, charging decisions and trial proofs in firearm-adjacent recklessness cases are likely to focus more heavily on accessibility and immediacy of harm (e.g., chambered status, safety, location within reach, supervision realities).

2. Self-defense instructions and “deadly force” classification

The decision cautions trial courts against weapon-type or capability-based shortcuts that effectively instruct juries that particular conduct is deadly force “as a matter of law.” Price reinforces that the deadly-force inquiry under RSA 627:9, II includes a mens rea component that ordinarily must be decided by the jury from the circumstances, not presumed from an object’s potential to cause serious injury.

3. Unanimity practice in simple assault-by-contact cases

Price strengthens the operational significance of State v. Greene in the specific setting the Court described: the “unprivileged physical contact” variant of simple assault with evidence of multiple discrete contacts. Prosecutors may respond by (i) electing a particular contact at trial, (ii) charging multiple counts for separate contacts where appropriate, or (iii) requesting/accepting a specific unanimity instruction to protect the verdict.

IV. Complex Concepts Simplified

• Sufficiency of the evidence: An appellate court asks whether any rational juror could find each element proven beyond a reasonable doubt, viewing evidence in the State’s favor. If not, the conviction is reversed and cannot be retried on that charge.
• Criminal recklessness / “gross deviation” (RSA 631:3; Belleville): Not mere carelessness. The State must show the defendant knew of a substantial, unjustifiable risk of serious bodily injury and consciously ignored it, in a way that sharply departs from what law-abiding people would do in that situation.
• Deadly force (RSA 627:9, II): Deadly force depends not only on what a weapon can do, but also on the actor’s purpose or knowledge about the risk of death/serious injury created by the assault.
• Unsustainable exercise of discretion: A deferential appellate standard for trial-management decisions, but reversal is warranted where the ruling is unreasonable/untenable and causes prejudice.
• Specific unanimity instruction: A direction to the jury that they must all agree on the same specific act (here, which kick) that satisfies an element, when evidence presents multiple acts any of which could independently support guilt.

V. Conclusion

State v. Price delivers three significant clarifications. First, it constrains reckless conduct liability where the State’s evidence of firearm-related risk is attenuated and does not show conscious disregard amounting to a “gross deviation.” Second, it confirms that “deadly force” under RSA 627:9, II cannot be effectively presumed from an object’s capability; juries must decide the mens rea-laden deadly-force question from the facts. Third, it reaffirms—within the “unprivileged physical contact” theory of simple assault—the continuing force of State v. Greene: when multiple discrete contacts are in evidence, the jury must be specifically instructed to agree unanimously on the particular contact supporting conviction.