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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 2016-0441

THE STATE OF NEW HAMPSHIRE

v.

DOMINICK STANIN, SR.

Argued: November 9, 2017

Opinion Issued: March 30, 2018

Gordon J. MacDonald, attorney general (Sean P. Gill, assistant attorney 

general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the 

brief and orally, for the defendant.

BASSETT, J. The defendant, Dominick Stanin, Sr., appeals his 

conviction following a jury trial in Superior Court (Ruoff, J.) for first degree 

assault, see RSA 631:1, I(b) (2016), robbery, see RSA 636:1, I(a), III(a) (2016),

and being a felon in possession of a deadly weapon, see RSA 159:3, I(a) (2014). 

On appeal he argues that the evidence was insufficient to convict him of 

robbery, and that the trial court erred when it did not individually question 

each juror about the impact that a photograph — which had not been admitted 

into evidence, but which was visible in the defense counsel’s file — had on that

juror’s ability to render an impartial verdict. We affirm.
2

The jury could have found the following facts. On August 14, 2014, the 

defendant and his adult son entered their housemate’s bedroom and stabbed 

him with a knife that the victim described as “kind of like a triangle, kind of [a] 

wedged type thing, with a handle on it.” During the assault, the defendant told 

his son to “do something, do something.” Thereafter the victim felt someone 

reach into his pockets, causing his money, phone, and keys to spill onto the 

floor. Neighbors called an ambulance and the victim was taken to the hospital. 

When the victim returned home later that day after receiving treatment for two 

broken ribs and multiple stab wounds, he noticed that the money, phone, and 

keys that had previously been in his pockets were missing from his room.

The victim identified the defendant in a photo line-up. The police 

subsequently arrested the defendant and charged him with first degree assault, 

robbery, and being a felon in possession of a deadly weapon. After a three-day 

jury trial, the defendant was convicted on all charges.

As the jury began its deliberations, Juror 9 asked to address the court. 

She said that she had seen a photograph in defense counsel’s file of “the 

weapon in question” that she “obviously wasn’t supposed to see.” Outside of 

the presence of the juror, the court and the lawyers identified the photograph 

as an image of a knife. A detective had downloaded the photograph from the 

internet, believing that the image matched the description of the weapon used 

in the assault. The State disclosed the photograph to defense counsel;

however, it had not been admitted into evidence at trial.

In response to questioning from the trial judge, Juror 9 assured the court 

that she would base her verdict solely on the evidence presented during trial.

She told the court that other jurors may have seen the photograph. The court 

instructed the juror to let it know if other jurors mentioned the photograph 

during deliberations.

Less than an hour later, Juror 9 reported to the court that other jurors 

were discussing the photograph, and that one juror had stated that defense 

counsel had displayed the photograph “almost deliberately, for the jury to see.” 

Defense counsel then moved for a mistrial, arguing that the jury was “using 

evidence that was not admitted [and drawing] . . . an adverse inference against

the Defense attorney for inadvertently exposing [the photograph] to them, 

which is prejudicial to [the defendant].” The court did not rule on the motion;

rather it stated that the jury’s exposure to the photograph did not “fall[] into 

the realm of juror misconduct,” and that any resulting prejudice could be cured 

by an instruction. Defense counsel then asked the court to individually 

question each juror regarding what he or she saw and what opinion, if any, the 

juror developed about the photograph. Defense counsel again moved for a 

mistrial. The court denied the motion. After finding that a mistrial was not 

required, the court reconvened the jury and gave a detailed curative 

instruction, explaining that the photograph had not been intentionally 
3

displayed, was not evidence, and could not be considered in reaching a verdict. 

Each juror then individually affirmed that he or she could “fairly and 

impartially deliberate based on the evidence that’s admitted at trial.” The jury 

convicted the defendant on all charges. This appeal followed.

On appeal, the defendant contends that the trial court erred when it: (1) 

denied his motion to dismiss the robbery charge because the evidence was 

insufficient to prove that he was in the course of committing a theft when he

used force against the victim; and (2) failed to individually question each juror 

about the photograph because, without such questioning, “the court’s inquiry 

was inadequate to gauge the effect on the jury of the potentially prejudicial 

incident.”

We first address the defendant’s argument regarding the sufficiency of 

the evidence. In order to convict the defendant of robbery, the State needed to 

prove beyond a reasonable doubt that the defendant, in the course of 

committing a theft, used physical force on the victim, and the victim was aware 

of the force. RSA 636:1, I(a). “An act shall be deemed ‘in the course of 

committing a theft’ if it occurs in an attempt to commit theft, in an effort to 

retain the stolen property immediately after its taking, or in immediate flight 

after the attempt or commission.” RSA 636:1, II (2016).

A challenge to the sufficiency of the evidence raises a claim of legal error; 

therefore, our standard of review is de novo. State v. Morrill, 169 N.H. 709, 

718 (2017). To prevail upon a challenge to the sufficiency of the evidence, 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. Id. When the evidence is 

solely circumstantial, it must exclude all reasonable 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. We “consider whether the circumstances presented are 

consistent with guilt and inconsistent, on the whole, with any reasonable 

hypothesis of innocence.” State v. Germain, 165 N.H. 350, 362 (2013), 

modified in part on other grounds by State v. King, 168 N.H. 340, 345 (2015)

(quotation omitted). “The proper analysis is not whether every possible 

conclusion consistent with innocence has been excluded, but, rather, whether 

all reasonable conclusions based upon the evidence have been excluded.” Id.

at 361. The court does not determine whether another possible hypothesis has 

been suggested by the defendant which could explain the events in an 

exculpatory fashion. Id. “Rather, the reviewing court evaluates the evidence in

the light most favorable to the prosecution and determines whether the 

alternative hypothesis is sufficiently reasonable that a rational juror could not 

have found proof of guilt beyond a reasonable doubt.” Id. at 361-62 (quotation 

omitted). “Questions about the reasonableness of theories of innocence are for 
4

the jury to decide in cases predicated upon circumstantial evidence.” Id. at 

362.

The defendant argues that, because the evidence was insufficient to 

prove that force was used “in the course of committing a theft” as is required 

by statute, the trial court erred in denying his motion to dismiss the robbery 

charge. See RSA 636:1, II. He contends that a “rational conclusion consistent 

with innocence explains the disappearance of [the victim’s] property”; namely,

that other people lived in the house and any one of them could have taken his 

property. We disagree.

Here, a rational juror could have concluded that the defendant’s 

alternative hypothesis was not “reasonable” because, given the totality of the 

evidence, the presence of other people in the house did not create reasonable 

doubt that the defendant committed theft. See Germain, 165 N.H. at 361-62. 

The jury heard testimony from the victim that, while the defendant was 

stabbing him, the defendant told his son to “do something, do something.” The 

victim testified that shortly thereafter, someone reached into his pockets, 

causing his money, phone, and keys to spill onto the floor. Although the victim 

did not see the defendant take his belongings during the course of the assault, 

he testified that, when he returned from the hospital, his money and phone 

were missing from his room. Given the totality of the evidence, we conclude 

that the defendant has not met his burden to demonstrate that no rational trier 

of fact, viewing the evidence in the light most favorable to the State, could have 

found guilt beyond a reasonable doubt. See id. at 362.

We next address the defendant’s argument that the trial court erred 

when it failed to question each juror individually about the impact the

photograph of the weapon had on his or her ability to remain impartial. The 

defendant contends that the trial court’s decision not to question jurors 

individually “about what they saw or heard others discussing and its effect on 

their thinking” deprived him of his state and federal constitutional rights to an 

impartial jury. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. 

We first address the defendant’s claims under the State Constitution, and rely 

upon federal law only to aid our analysis. State v. Rideout, 143 N.H. 363, 365 

(1999); see State v. Ball, 124 N.H. 226, 231-32 (1983).

It is axiomatic that a defendant has a right to be tried by a fair and 

impartial jury. State v. Brown, 154 N.H. 345, 348 (2006). Any juror found to 

be disqualified before or during trial should be removed. Id.; see RSA 500-

A:12, II (2010). If there is an allegation “that a juror has been biased by 

extrinsic contact or communication, the trial court must undertake an 

adequate inquiry to determine whether the alleged incident occurred and, if so, 

whether it was prejudicial.” Brown, 154 N.H. at 348 (quotation omitted). “In a 

criminal case, a defendant must prove actual prejudice, although such 

prejudice is presumed when there are communications between jurors and 
5

individuals associated with the case or when the juror’s unauthorized 

communications with others are about the case.” Id. We have extended “the 

same presumption to a juror’s unauthorized view of the crime scene” because it 

presents the “same danger . . . as when a juror is party to extraneous 

communications concerning the case. In both instances, the juror may base 

his or her decision upon evidence that the defendant never had any 

opportunity to examine and present to the jury.” State v. Lamy, 158 N.H. 511, 

522 (2009). “[W]hen a juror is exposed to extraneous information sufficiently 

related to the issues presented at trial, a presumption of prejudice is 

established, and the burden of proof shifts to the State to prove that the 

prejudice was harmless beyond a reasonable doubt.” Id. at 522-23.

The defendant argues that the presumption of prejudice applies here 

because the jury was exposed to extraneous information related to the case. 

The State, citing federal precedent, counters that “the presumption is 

applicable only where there is an egregious tampering or third party 

communication which directly injects itself into the jury process,” United 

States v. Boylan, 898 F.2d 230, 261 (1st Cir. 1990), and that the facts of this 

case do not rise to the level of egregiousness which justify imposition of the 

presumption. Here, we need not decide whether the presumption of prejudice

applies: even if we were to find that the photograph constituted the kind of

extrinsic contact or communication that triggers the presumption, we conclude 

that the trial court did not err when it denied the defendant’s request that each 

juror be questioned individually.

“When a party makes a colorable claim that a jury may be biased or 

tainted by extrinsic contact or communication, the court must undertake an 

adequate inquiry to determine whether the alleged incident occurred and, if so, 

whether it was prejudicial.” Rideout, 143 N.H. at 365 (emphasis added). The 

trial court has broad discretion to determine the extent and nature of its 

inquiry. Id. This is a fact-specific determination, which we review for an 

unsustainable exercise of discretion. Lamy, 158 N.H. at 523.

Here, the defendant argues that the trial court’s inquiry was inadequate 

because the court did not “question each juror individually about what they 

saw or heard others discussing and its effect on their thinking.” The defendant 

contends that, because we have previously observed that the “most common 

approach [for inquiring into juror misconduct] is to remove the offending juror 

and undertake individual voir dire of the panel,” id., the trial court erred when 

it did not do so here. He further argues that a trial court must question jurors 

individually about a presumptively prejudicial incident in order for the record 

to sufficiently establish that the jury was untainted. See Rideout, 143 N.H. at 

368. We disagree.

In Rideout, we concluded that the State had failed to rebut the 

presumption of prejudice, when, after a witness for the State provided medical 
6

assistance to a juror during deliberations, the court did not inquire into the 

potentially prejudicial effect the incident may have had on the jury as a whole. 

Id. We did not, however, hold that a trial court is required to question each 

juror individually. Rather, we stated:

When a party makes a colorable claim that a jury may be biased or 

tainted by extrinsic contact or communication, the court must 

undertake an adequate inquiry to determine whether the alleged 

incident occurred and, if so, whether it was prejudicial. The trial 

court has broad, though not unlimited, discretion to determine the 

extent and nature of its inquiry.

Id. at 365 (emphases added) (citations omitted). In Rideout, we reversed the 

trial court’s decision because it had explored the effect of the incident only with

the juror who received medical assistance, and it “did not hear any evidence or 

make any findings” regarding whether that juror had disclosed his encounter 

with the State’s witness to the rest of the jury. Id. at 368. Accordingly, 

because the State offered no evidence regarding what effect, if any, the incident 

had on the other jurors’ ability to render an impartial verdict, we concluded 

that the State had failed to rebut the presumption of prejudice. See id.; see 

also United States v. Zimny, 846 F.3d 458, 472 (1st Cir. 2017) (a “judge does 

not have discretion to refuse to conduct any inquiry at all regarding the 

magnitude of the taint-producing event and the extent of the resulting 

prejudice if confronted with a colorable claim of juror misconduct” (quotation 

omitted)). Therefore, although Rideout requires that a trial court make an 

“adequate inquiry” into a presumptively prejudicial incident, it does not 

mandate that the trial court individually question each juror. See Rideout, 143 

N.H. at 365.

Here, in contrast with Rideout, despite the fact that the trial court 

concluded that the jury’s exposure to the photograph did not fall “into the 

realm of juror misconduct,” the trial court investigated the effect of the 

photograph on each juror when it: (1) questioned Juror 9 about the nature of 

the conversation among jurors about the photograph; (2) instructed the entire 

jury that the photograph had not been intentionally displayed, was not 

evidence, and could not be considered in reaching a verdict; (3) received an 

individual affirmation from each juror that he or she could “continue to fairly 

and impartially deliberate based on the evidence that’s admitted at this trial”; 

and (4) further instructed the jurors not to discuss the photo, and to notify the 

court if the photo was again discussed. The trial court also warned the jurors 

that any juror who did not follow the court’s instructions would be replaced. 

Therefore here, because of the trial court’s investigation, there was sufficient 

evidence to establish that any prejudice resulting from the jury’s exposure to 

the photograph was harmless beyond a reasonable doubt.
7

To the extent that the defendant also argues that the trial court erred 

because its curative instruction was insufficient to cure the possible prejudice, 

we disagree. “The adequacy of a particular jury instruction necessarily 

depends on the capacity of the offending [incident] to lead to a verdict that 

could not otherwise be justly reached.” State v. Dowdle, 148 N.H. 345, 348 

(2002). Although “there may be some instances in which curative instructions 

would be inadequate as a matter of law,” id. (quotation omitted), this is not one 

of those instances. “[W]e base our review on the familiar presumption that 

jurors follow the trial court’s instructions.” Id. (quotation omitted). Here, the 

court conducted an inquiry into the jury’s exposure to the photograph, and 

fashioned a curative instruction that squarely addressed the defendant’s 

concern that the jury would draw an adverse inference against him if it 

believed that defense counsel had disclosed the photograph intentionally. The 

court’s instruction sufficiently diminished any prejudicial impact that might 

have resulted from the jury’s exposure to the photograph. Importantly, after 

the trial court gave the curative instruction to the jury, each juror affirmed that 

he or she remained impartial. “[A] juror is well-qualified to say whether he has 

an unbiased mind in a certain matter.” Lamy, 158 N.H. at 523 (quotation 

omitted).

Thus, even if the presumption of prejudice were to apply, we conclude 

that the trial court soundly exercised its discretion, and that its inquiry was 

adequate to determine whether the incident was prejudicial. See Brown, 154 

N.H. at 348. Although the trial court did not conduct its inquiry in the specific 

fashion requested by the defendant, “it is within the trial court’s discretion to 

determine what constitutes an adequate inquiry into juror misconduct.” Lamy, 

158 N.H. at 523 (quotation omitted). Here, we conclude that, in light of the 

curative instruction, and each juror’s individual affirmation that he or she 

could remain impartial, there was sufficient evidence that the prejudice, if any, 

from the incident was harmless beyond a reasonable doubt.

As the Federal Constitution offers the defendant no greater protection 

than does the State Constitution under these circumstances, see Rideout, 143 

N.H. at 365, we reach the same result under the Federal Constitution as we do 

under the State Constitution. Any remaining arguments raised in the 

defendant’s notice of appeal or at oral argument that are not fully briefed are 

deemed waived. See State v. Scott, 167 N.H. 634, 638 (2015) (argument made 

at oral argument, but not briefed or raised in the trial court, is deemed waived);

State v. Blackmer, 149 N.H. 47, 49 (2003) (issue raised in a notice of appeal, 

but not fully briefed, is deemed waived).

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and HANTZ MARCONI, JJ., 

concurred.