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Defendant Diego Duran appealed his conviction by a jury on one count of being a felon in possession of a deadly weapon. He argued that the trial court erred in denying his motion to dismiss because there was insufficient evidence both that he possessed the weapon and that the weapon was a deadly weapon. In 2009, Defendant, who was an inmate at the New Hampshire State Prison, was showering when another inmate was seen placing a suspicious object in Defendant's shoe. Prison officials asked to see Defendant's shoes, but Defendant ignored the request. In the bathroom, prison officials observed the other inmate throw the item from the shoe into the toilet and then asked the Defendant to flush the toilet. The official ordered Defendant not to flush the toilet, but Defendant flushed anyway. Officials retrieved the object, and "[b]ased upon his eleven years of experience, [the official] determined that the object was likely a 'shank.'" Upon review of the trial court record, the Supreme Court affirmed the trial court's decision and upheld Defendant's conviction.
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THE SUPREME COURT OF NEW HAMPSHIRE
THE STATE OF NEW HAMPSHIRE
Argued: June 16, 2011
Opinion Issued: September 20, 2011
Michael A. Delaney, attorney general (Stephen D. Fuller, senior assistant
attorney general, on the brief and orally), for the State.
Pamela E. Phelan, assistant appellate defender, of Concord, on the brief
and orally, for the defendant.
DUGGAN, J. The defendant, Diego Duran, appeals his conviction by a
jury on one count of being a felon in possession of a deadly weapon. See RSA
159:3, I (2002); RSA 625:11, V (2007). He argues that the Trial Court
(McNamara, J.) erred in denying his motion to dismiss because there was
insufficient evidence both that he possessed the weapon and that the weapon
was a deadly weapon. We affirm.
The jury could have found the following facts. On April 19, 2009,
between 6 and 8 p.m., the defendant, who is an inmate at the New Hampshire
State Prison, was showering. At approximately the same time, a corrections
officer, Ian Stringer, observed another inmate act suspiciously and place
something in his shoe in the prison yard. Stringer asked the inmate to show
him what was in his shoe, but the inmate ignored him and walked into the
bathroom where the defendant was showering. The defendant and the inmate
were the only two inmates in the bathroom and the defendant was the only
person in the shower area.
Once in the bathroom, Stringer observed the other inmate throw the item
from his shoe into the toilet and then ask the defendant to flush the toilet.
Stringer ordered the defendant not to flush the toilet, but the defendant
flushed it anyway. While Stringer removed the other inmate from the
bathroom, Sergeant Christian Pelletier entered and told the defendant that he
was “going for a walk” because he interfered with a search. After the defendant
stepped out of the shower, Pelletier instructed him to collect his property,
which included a net bag and sneakers. The bag did not have a name on it,
but the defendant admitted that it was his bag. The defendant responded that
he wished to leave his belongings in the bathroom and Pelletier again
instructed him to pick them up. The defendant then moved slowly to do so,
but Pelletier determined he was moving too slowly and grabbed the net bag.
After taking the net bag, Pelletier felt the outside of it and observed a
radio inside. He also moved around the laundry that was inside the bag and
then felt a hard object. Based upon his eleven years of experience, he
determined that the object was likely a “shank.” Pelletier also testified that it
was very unusual for an inmate to leave expensive property, like sneakers or a
Another corrections officer, Scott Haskell, searched the bag and removed
its contents. The laundry inside the bag included a sock with the defendant’s
name on it. The shank, which Pelletier testified “is a homemade weapon in the
prison, made to seriously mutilate or kill someone,” was located in that sock.
He also testified that the shank found in the defendant’s sock was “one of the
better shanks found,” and that there is no “utilitarian use for a shank.”
At the close of the State’s case, the defendant moved to dismiss, arguing
that the State failed to prove that he possessed the weapon and that it met the
statutory definition of a deadly weapon. The court denied the motion. The jury
subsequently convicted him and this appeal followed.
On appeal, the defendant argues that there was insufficient evidence
both that he possessed the shank and that it constituted a deadly weapon. To
prevail on a sufficiency of the evidence challenge, the defendant must prove
that no rational trier of fact, viewing all of the evidence and all reasonable
inferences from it in the light most favorable to the State, could have found
guilt beyond a reasonable doubt. State v. Evans, 150 N.H. 416, 424 (2003).
When the evidence is solely circumstantial, it must exclude all rational
conclusions except guilt. Id. Under this standard, however, we still consider
the evidence in the light most favorable to the State and examine each
evidentiary item in context, not in isolation. Id. “The proper analysis is not
whether every possible conclusion has been excluded but, rather, whether
other rational conclusions based on the evidence have been excluded.” State v.
Tayag, 159 N.H. 21, 24 (2009) (quotation omitted).
To prove possession, the State had to establish that the defendant “had
custody of the [shank] and exercised dominion and control over it.” State v.
Crie, 154 N.H. 403, 406 (2006) (quotation omitted). As is the case here, when
the defendant does not actually possess a weapon, the State must prove
constructive possession. See State v. Smalley, 148 N.H. 66, 68-69 (2002)
(addressing constructive possession of a controlled substance). Constructive
possession can be inferred from incriminating statements or circumstances
linking the defendant to the weapon and such possession need not be
exclusive. Id. at 69.
The defendant must have control over the weapon, meaning that he
“either owns that [weapon], he’s leased that [weapon], he has borrowed that
[weapon], or somehow gotten control over that [weapon], and that the
defendant has the ability to exercise control over the [weapon] in a sense that
he can determine who may have the ultimate use of that [weapon].” State v.
Pike, 128 N.H. 447, 450 (1986) (quotation and brackets omitted). “The
question then is does [the defendant] have the power over the use of the
weapon? If he does, he controls it.” Id. (quotation and ellipsis omitted).
In this case, there was sufficient evidence for the jury to find beyond a
reasonable doubt that the defendant possessed the shank found in the net bag
that the defendant admitted belonged to him. The corrections officer found the
shank in a sock, which was in the defendant’s net bag and in the bathroom
where the defendant was showering. The defendant’s name was on the sock
and the laundry bag contained other items belonging to the defendant. Cf.
Smalley, 148 N.H. at 69 (“personal possessions of the defendant standing in
close proximity to the controlled substance may provide a sufficiently close
nexus between the defendant and the substance to allow the jury to infer
possession”). Additionally, the defendant declined to pick up his belongings
when ordered to by the corrections officer, who testified that it was unusual for
an inmate to leave expensive property unattended. While the defendant argues
that another inmate could have placed the shank in his bag, the jury could
have drawn reasonable inferences based upon the evidence presented and
concluded that the shank belonged to the defendant. See Crie, 154 N.H. at
406. Accordingly, a rational trier of fact could have found beyond a reasonable
doubt that the defendant possessed the shank.
The defendant next argues that no rational trier of fact could have found
that the shank is a deadly weapon. RSA 159:3, I, provides that a person is
guilty of a class B felony if he “[o]wns or has in his possession or under his
control, a pistol, revolver, or other firearm, or slungshot, metallic knuckles,
billies, stiletto, switchblade knife, sword cane, pistol cane, blackjack, dagger,
dirk-knife, or other deadly weapon as defined in RSA 625:11, V,” and has
previously been convicted of a proscribed felony. A shank is not one of the
enumerated weapons under RSA 159:3, I(a). Accordingly, a shank is only
considered a “deadly weapon” for purposes of that statute if it falls within the
definition of a deadly weapon under RSA 625:11, V.
RSA 625:11, V defines a deadly weapon as “any firearm, knife or other
substance or thing which, in the manner it is used, intended to be used, or
threatened to be used, is known to be capable of producing death or serious
bodily injury.” Thus, the State was required to prove not only that the
defendant possessed the shank, but also that in the manner in which the
defendant used, intended to use, or threatened to use the shank, it was
capable of producing death or serious bodily injury.
The defendant points to our decision in State v. Pratte, 158 N.H. 45
(2008), and argues that “[t]he mere fact that the item could cause serious
bodily injury or death” is insufficient to prove that it constitutes a deadly
weapon. In Pratte, the defendant possessed a bow and arrow in his home and
had used it in the past to kill a porcupine. Pratte, 158 N.H. at 46. We first
rejected the State’s argument that a bow and arrow is inherently a deadly
weapon because it would require that we ignore the phrase “used, intended to
be used, or threatened to be used.” Id. at 49. We reasoned that if we
interpreted the statute in such a manner, our inquiry would end with whether
the weapon, independent of any action by the defendant, was capable of
causing death or serious bodily injury. Id. Accordingly, we overturned the
defendant’s conviction because there was no evidence that he used, intended to
use, or threatened to use a bow and arrow in a manner known to be capable of
causing death or serious bodily injury to a human. Id. at 49-50.
The defendant contends that the shank was never within his reach or
under his immediate control and that he never attempted to retrieve it from his
bag. Moreover, relying upon Pratte, he asserts that the mere fact he was in
prison does not render the shank a deadly weapon.
We agree with the defendant that the nature of the weapon does not
automatically render it a deadly weapon pursuant to RSA 625:11, V. See id.
However, unlike the bow and arrow at issue in Pratte, where the evidence
presented established that the defendant used the bow and arrow for
recreational purposes only, see id. at 46, a shank, possessed by a prison
inmate, has no such uses, see State v. Berry, 833 S.W.2d 332, 334 (Tex. Crim.
App. 1992) (“It cannot be seriously asserted that inmates are making these
shanks to clean their fingernails or make wood carvings to send home for the
holidays.” (quotation omitted)). Indeed, the State presented testimony that a
shank is “made to seriously mutilate or kill someone,” and that there is no
“utilitarian” use for a shank. Simply stated, the only reason an individual
would have a shank in prison is to cause death or serious bodily injury. See
United States v. Vahovick, 160 F.3d 395, 397 (7th Cir. 1998) (“Unlike the felon
who may arguably have a legitimate non-violent reason for possessing a
weapon outside of prison, there is simply no acceptable use for a weapon by an
inmate in a prison . . . .” (quotation omitted)).
We again emphasize that the specific manner of use or intended use and
the circumstances surrounding that use or intended use determine whether an
object is a deadly weapon under RSA 625:11, V. Pratte, 158 N.H. at 49; State
v. Hull, 149 N.H. 706, 714-15 (2003) (explaining that a reasonable jury could
determine that a truck could be a deadly weapon where an intoxicated driver
hit a police officer and drove into oncoming traffic). In this case, however, the
circumstances surrounding the defendant’s possession of a shank in a prison
indicate only one potential use – to cause death or serious bodily injury to
another human. Accordingly, a rational trier of fact could have found beyond a
reasonable doubt that the shank was a deadly weapon.
DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.