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THE SUPREME COURT OF NEW HAMPSHIRE 

___________________________ 

Hillsborough – northern judicial district 

No. 2011-500 

THE STATE OF NEW HAMPSHIRE 

v. 

JOSHUA SPRAGUE 

Argued: September 12, 2013 

Opinion Issued: January 17, 2014 

 Michael A. Delaney, attorney general (Susan G. Morrell, senior assistant 

attorney general, and Benjamin J. Agati, assistant attorney general, on the 

brief, and Ms. Morrell orally), for the State. 

 David M. Rothstein, deputy chief appellate defender, of Concord, on the 

brief and orally, for the defendant. 

 BASSETT, J. The defendant, Joshua Sprague, appeals his convictions, 

following a jury trial, for first-degree murder, burglary, and conspiracy to 

commit burglary. See RSA 630:1-a, I(b)(2) (2007); RSA 635:1 (2007); RSA 

629:3 (2007). On appeal, he argues that the Superior Court (Tucker, J.) erred 

when it: (1) instructed the jury regarding his state of mind defense; (2) denied 

his motion for a mistrial; (3) ruled that he had opened the door to rebuttal 

testimony; and (4) sentenced him for murder in the course of a burglary, as 

well as for the underlying burglary. We affirm in part and vacate in part. 
2 

 The jury could have found the following facts. In October 2009, Elena 

Hann met with the defendant in order to sell him marijuana. After two failed 

attempts to consummate a sale, the defendant accused Hann of trying to set 

him up and threatened to harm her. Several days later, Hann discovered that 

the apartment which she shared with the victim had been burglarized. 

Because she suspected that the defendant was the perpetrator, Hann, 

accompanied by friends, went to the defendant’s apartment. The defendant 

was not at home at the time. As they were leaving the apartment, one of 

Hann’s friends threatened to harm the defendant’s dog. 

The defendant later was told that Hann and her friends had broken into 

his apartment and was also told about the threat to his dog. He was angry and 

afraid that Hann and her friends would return. The defendant decided to 

confront Hann. Armed with a handgun, he, together with several companions, 

walked to Hann’s apartment building. When they arrived, they saw the victim. 

One of the defendant’s companions yelled, “Shoot that n****r.” The defendant 

chased the victim out of the apartment building and down the street. The 

defendant yelled to the victim to stop. The victim stopped, turned and raised 

his hands, and said, “I don’t even know her.” One of the defendant’s 

companions screamed, “Shoot that mother f r.” The defendant then fired 

multiple shots at the victim, who died at the scene. The defendant testified 

that when the victim raised his hands, the defendant thought that he had a 

gun. Although the police found a cellular telephone next to the victim’s body, 

they did not find a weapon. The defendant testified that prior to the incident, 

he was drinking, and using marijuana, cocaine, heroin, and Percocet. 

 The defendant ran from the scene and disposed of his gun. Several days 

after the shooting, the defendant and his friends fled to Massachusetts, where 

the police located him and took him into custody. 

 The defendant was charged with alternate counts of first-degree murder 

alleging that he purposely or knowingly caused the death of the victim. He 

was also charged with second-degree murder, alleging that he recklessly 

caused the death of the victim, thus manifesting an extreme indifference to the 

value of human life. He was additionally charged with burglary and conspiracy 

to commit burglary. At trial, the defendant admitted that he shot and killed 

the victim, but claimed that he did not have the mens rea necessary to 

establish either first or second-degree murder. The jury acquitted the 

defendant of first-degree murder committed purposely, but found him guilty of 

first-degree murder committed knowingly during a burglary, burglary, and 

conspiracy to commit burglary. He was sentenced on the first-degree murder 

conviction to life in prison without eligibility for parole. On both the burglary 

and conspiracy to commit burglary convictions, he was sentenced to seven and 

one-half to fifteen years imprisonment, concurrent with each other, as well as 

with the first-degree murder sentence. This appeal followed. 
3 

 On appeal, the defendant argues that the trial court erred in its 

instruction to the jury regarding his mistaken perception that the victim had a 

gun. He also contends that the trial court erred in denying his motion for a 

mistrial or for more detailed curative instructions after a relative of the victim 

had an outburst in the courtroom. He further argues that the court erred in 

ruling that he had opened the door to rebuttal evidence offered by the State 

concerning when the defendant learned that the victim had died. Finally, he 

asserts that in violation of his double jeopardy rights, the court erroneously 

sentenced him for murder in the course of burglary as well as for the 

underlying burglary. We address these arguments in turn. 

I. Jury Instructions 

 The defendant argues that the trial court violated his due process rights 

under the State and Federal Constitutions when it instructed the jury that the 

defendant’s claimed misperception that the victim had a gun could not be used 

as evidence of self-defense, and failed to instruct the jury that the defendant’s 

claimed misperception could be relevant to the defendant’s mental state 

defense. We disagree. 

 The defendant testified at trial that, when the victim spun around and 

raised his hands, he mistakenly thought that the victim had a gun. In closing, 

the defendant argued to the jury that his drug and alcohol induced intoxication 

contributed to his misperception and caused him to act recklessly, rather than 

purposely or knowingly. He also argued that his belief that the victim 

possessed a gun led to panic and fear, and that, out of a concern for “self 

preservation,” he recklessly fired. 

 Following closing arguments, the defendant objected to the court 

instructing the jury that it could not consider the defendant’s misperception 

that the victim had a gun as evidence of self-defense in the absence of an 

instruction explaining to the jury that it could consider his misperception with 

respect to his mens rea at the time of the crime. 

 The trial court denied the defendant’s request and instructed the jury 

that were it to “accept [the defendant’s testimony that he thought the victim 

was holding a gun,] you may not consider it as evidence that the Defendant 

acted in self defense.” The trial court explained that this instruction was 

necessary to avoid confusing the jury because the defendant’s argument that 

he had acted out of a concern for self-preservation “came very close to arguing 

self defense.” It declined to add the defendant’s suggested language, stating: 

“I’m telling the jury how it may not use the evidence. I’m not telling the jury 

how it may use the evidence.” 

 On appeal, the defendant does not dispute that self-defense was not a 

valid defense in this case, nor does he challenge the propriety of the instruction 
4 

given by the trial court. Rather, he argues that the instruction failed to inform 

the jury that his testimony regarding his misperception that the victim had a 

gun could be relevant to his mental state. As a result, he contends that the 

instruction unfairly prejudiced his defense because it “made clear the forbidden 

use of the ‘perception of a gun’ evidence (self-defense) without clarifying its 

permissible use (mental state defense).” 

We first address the defendant's claim under the State Constitution and 

rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-

33 (1983). “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. Hernandez, 159 N.H. 394, 400 (2009). “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. “Whether a particular jury instruction is necessary, and the scope 

and wording of jury instructions, are within the sound discretion of the trial 

court.” Id. “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.” State v. Lambert, 147 N.H. 295, 

296 (2001) (quotation omitted). 

Upon review of the instructions in their entirety, we find no error. A 

reasonable juror would have understood that the jury could consider the 

defendant’s misperception for all purposes except self-defense. Notably, 

immediately after the defendant testified that he believed that the victim had a 

gun, the trial court instructed the jury that, while it could not use the 

defendant’s testimony as evidence that the defendant acted in self-defense, 

“[a]s with any witness, if you believe this witness’ testimony, you may give it 

such weight as you think proper.” Furthermore, in the final jury instructions, 

the trial court repeatedly instructed the jury to consider all of the evidence. 

The trial court explained: (1) “[w]hen you have considered and weighed all of 

the evidence you must make one of the following findings with respect to each 

crime charged”; (2) “[y]ou should carefully scrutinize all the testimony given”; 

and (3) “[y]ou will consider all of the facts and circumstances in evidence to 

determine which of the witnesses are worthy of belief.” (Emphases added.) 

Further, the trial court instructed the jury that the State had the obligation to 

prove each element of each of the charged crimes, including the relevant mens 

rea. Thus, in view of the jury instructions in their entirety, a reasonable juror 

would have understood that he or she had to consider all of the evidence when 

determining the defendant’s state of mind, including the defendant’s testimony 

that he shot the victim because he believed that the victim had a gun. 

 Moreover, the defendant does not dispute that the trial court properly 

instructed the jury on the elements of first-degree murder, second-degree 

murder, and the lesser-included crime of manslaughter, and provided accurate 
5 

definitions of the mens rea of “purposely,” “knowingly,” and “recklessly.” 

Because the State did not object to the instruction on the lesser included 

offense of reckless manslaughter, we need not decide whether the defendant’s 

version of the events was sufficient to entitle him to a reckless manslaughter 

instruction. If the jury had believed that the prosecution did not prove beyond 

a reasonable doubt that the defendant acted purposely or knowingly, the jury 

could have convicted him of second-degree murder or manslaughter. 

A defendant does not have the right to a particular jury instruction 

“when he simply presents evidence of a different factual scenario than that 

presented by the State.” Cf. State v. Noucas, 165 N.H. 146, 155-56 (2013) 

(quotation omitted) (finding that trial court did not err in failing to instruct jury 

in accordance with model jury instructions on self-defense and defense of 

another when defendant merely presented evidence of a different factual 

scenario than the State). Here, although the defendant admitted that he shot 

and killed the victim, he asked the jury to believe his testimony that, because 

of his misperception that the victim had a gun, he had acted recklessly, rather 

than purposely or knowingly. Under these circumstances, the trial court did 

not err in declining to specifically instruct the jury that it could consider the 

defendant’s misperception as evidence of his mens rea at the time of the crime. 

See State v. Furgal, 164 N.H. 430, 437 (2012) (jury instruction did not need to 

expressly inform jury it could consider particular evidence in a manner 

favorable to defendant); State v. Shannon, 125 N.H. 653, 662-63 (1984) 

(finding that trial court did not err in declining to give instruction that would 

support defendant’s theory of the case). 

The defendant cites Francoeur v. Piper, 146 N.H. 525 (2001), in support 

of his argument that while a jury instruction may be legally correct, it is 

improper if it misleads or confuses the jury. In Francoeur, we held that the 

trial court’s jury instruction in a medical malpractice suit — that “a mere error 

in judgment, made in the proper exercise of judgment, is not professional 

negligence” — although perhaps an accurate statement of the law, was 

reasonably capable of confusing or misleading the jury about the reasonable 

standard of professional practice. Francoeur, 146 N.H. at 528-31. Here, 

however, the instruction was not likely to mislead or confuse the jury. The trial 

court did not prohibit the jury from considering the defendant’s claimed 

misperception when assessing his state of mind at the time of the crime. It 

merely prohibited the jury from considering his claimed misperception as 

evidence of self-defense. Thus, Francoeur is inapposite. 

Accordingly, we conclude that the jury instructions, considered in their 

entirety, did not prevent the jury from considering the defendant’s claimed 

misperception for purposes of establishing his state of mind at the time of the 

crime. Therefore, the trial court’s refusal to give the requested instruction was 

not an unsustainable exercise of discretion and did not unfairly prejudice the 

defendant in violation of his right to due process. 
6 

As the Federal Constitution offers the defendant no greater protection 

than the State Constitution under these circumstances, see United States v. 

Park, 421 U.S. 658, 674-75 (1975); State v. Littlefield, 152 N.H. 331, 342 

(2005), we reach the same result under the Federal Constitution as we do 

under the State Constitution. 

II. Motion for Mistrial 

 The defendant next argues that the trial court erred when it denied his 

request for a mistrial and failed to give a more expansive curative instruction 

following an emotional outburst in the courtroom. While a witness was 

testifying, a relative of the victim uttered: “This is b** ****t . . . . “This is 

b******t, mother f****r. I’m going to get you.” The incident lasted 

approximately ten seconds. Notably, the trial judge did not hear the 

statements. The relative was removed from the courtroom, and the trial court 

excused the jury. 

 Immediately thereafter, the court informed counsel that it intended to 

instruct the jury to “disregard what happened [because] [i]t’s not part of the 

evidence in the case.” The defendant moved for a mistrial. The court denied 

the motion, explaining, “I don’t think . . . there’s any reason to think the jury 

won’t decide the case based solely on the evidence and the law.” 

 The defendant then requested that the trial court expand upon its 

proposed instruction by including “words to the effect of, you know, this is the 

reason why we go through the extensive process of picking an impartial jury 

. . . so that, you know, passions are not arisen that influence the decisionmaking process.” Although the trial court denied the defendant’s request, it 

offered to question each juror as to whether he or she could disregard the 

outburst. The defendant declined the court’s offer. Accordingly, upon the 

jury’s return to the courtroom, the trial judge instructed the jurors to disregard 

the outburst, explaining: 

You have to decide this case based on the evidence that you receive 

during the trial and the law that I’ll give you at the end of the case. 

You can’t let any other factors influence your verdict. So keep it out of 

your mind. [The outburst] shouldn’t play any role in your decisionmaking process. 

 “Mistrial is the proper remedy only if the evidence or comment 

complained of was not merely improper, but also so prejudicial that it 

constitutes irreparable injustice that cannot be cured by jury instructions.” 

State v. Neeper, 160 N.H. 11, 15 (2010) (quotation omitted). “When 

reviewing a trial court’s ruling on a motion for mistrial, we recognize that 

the trial court is in the best position to gauge the prejudicial nature of the 

conduct at issue and has broad discretion to decide whether a mistrial is 
7 

appropriate.” State v. Ainsworth, 151 N.H. 691, 698 (2005). “We will not 

overturn the trial court’s decision on whether a mistrial or other remedial 

action is necessary absent an unsustainable exercise of discretion.” Id. 

 On appeal, the defendant argues in essence, as he argued before the trial 

court, that the court erred when it denied the motion for a mistrial because 

“the image of a family member of the victim expressing animosity toward him 

could not be erased by a jury instruction.” 

 We find State v. Guay, 162 N.H. 375 (2011), to be instructive. In Guay, 

while the defendant was testifying, the victim shouted that the defendant was a 

liar. Guay, 162 N.H. at 378. The defendant appealed the court’s denial of his 

request for a mistrial, arguing that the outburst exposed the jury to 

inadmissible evidence — the victim’s opinion of the defendant’s character. Id. 

We upheld the trial court’s ruling, concluding that, given the conflicting 

testimony of the victim and the defendant, “it could hardly have been a 

surprise to the jury that the victim did not believe the defendant to be testifying 

truthfully. Moreover, credibility issues are within the jury’s province, and it 

could reasonably have concluded that the defendant lied during his testimony.” 

Id. at 379. 

Here, we conclude that the outburst was not so prejudicial as to 

constitute an irreparable injustice. See State v. Ploof, 165 N.H. 113, 119 

(2013). The relative did not comment on the character or truthfulness of the 

defendant, nor did he address the sole contested issue at trial — the 

defendant’s mental state when he shot the victim. The court never told the 

jury that the speaker was a relative of the victim. Moreover, as in Guay, it 

could not have been a surprise to the jury that someone was angry with the 

defendant in light of the defendant’s admission that he shot the victim. 

Our conclusion is consistent with the analyses adopted by courts in 

other jurisdictions that have confronted similar circumstances. See People v. 

Chatman, 133 P.3d 534, 553 (Cal. 2006) (concluding that “prejudice is not 

presumed” when outbursts by the victim’s mother were unrelated to 

defendant’s guilt or innocence and “provided the jury with no significant 

information it did not already know or might not readily surmise. Even without 

observing [victim’s mother] in person, any reasonable juror would know that 

the crime had caused the victim’s family anguish.” (quotation omitted)); 

Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (concluding that 

“[n]othing in the record suggests that the [family member of victim’s] outburst 

was of such a nature that the jury could not ignore it and fairly examine the 

evidence in arriving at a verdict”). 

Moreover, the trial court’s curative instruction directed the jury to 

disregard the outburst. The trial court instructed the jury to decide the case 

solely on the evidence and not “any other factors.” See Guay, 162 N.H. at 379 
8 

(upholding trial court’s denial of mistrial, in part, because court instructed jury 

to ignore victim’s outburst during defendant’s testimony). We presume that the 

jury followed these instructions. State v. Russo, 164 N.H. 585, 591 (2013). 

 The defendant further contends that the trial court erred in failing to 

include a more detailed instruction “addressing the fact that passion cannot 

enter into the decision-making process.” We disagree. “The defendant is not 

entitled to have the court use the exact words of requested instructions.” State 

v. Crie, 154 N.H. 403, 406 (2006). Here, although the instruction did not 

include specific language telling the jury that it could not decide this case 

based on passion, it clearly directed the jury to disregard the outburst in its 

decision-making process. This instruction was, in substance, the curative 

instruction that the defendant had requested. 

 To the extent that the defendant argues that the trial court’s denial of his 

request for a mistrial violated his right to due process and a fair trial under the 

State and Federal Constitutions, he has not adequately developed this 

argument for our review, so we decline to address it. See State v. Euliano, 161 

N.H. 601, 608 (2011). 

 Accordingly, we conclude that the trial court sustainably exercised its 

discretion when, after the outburst, it denied the defendant’s request for a 

mistrial and for a more detailed instruction. 

III. Rebuttal Witness 

The defendant next contends that the trial court erred when it permitted 

the State to call a rebuttal witness to impeach the defendant’s testimony. The 

defendant testified that, although he had watched televised news reports of the 

shooting before he fled to Massachusetts, he did not learn that the victim had 

died until days later when he saw a subsequent news report. After the defense 

rested, the State sought to recall a witness to impeach the defendant’s 

testimony as to when he learned that the victim had died. The defendant 

objected, arguing that the testimony was inadmissible under New Hampshire 

Rules of Evidence 403, 608, and 613. The trial court overruled the objection. 

On appeal, the defendant argues that the trial court erred in ruling that 

the defendant’s testimony had opened the door to the rebuttal testimony. He 

contends that the testimony was inadmissible because he did not create a 

misleading impression, nor did the State’s rebuttal witness directly contradict 

his testimony. The State counters that the testimony was admissible, and that 

even if the court erred in admitting it, the error was harmless beyond a 

reasonable doubt. 

We need not determine whether the trial court properly admitted the 

rebuttal testimony because, even assuming error, we conclude that the error 
9 

was harmless beyond a reasonable doubt. The State bears the burden of 

proving that an error is harmless, a burden satisfied by proof, beyond a 

reasonable doubt, that the erroneously admitted evidence did not affect the 

verdict. See State v. Prudent, 161 N.H. 320, 323 (2010). In deciding whether 

the State has met its burden, we consider the strength of the alternative 

evidence presented at trial. See State v. Vandebogart, 139 N.H. 145, 158 

(1994). We also consider the character of the inadmissible evidence, including 

whether the evidence was cumulative or inconsequential in relation to the 

strength of the State's evidence. See id. 

Here, the State’s alternative evidence of the defendant’s guilt was 

overwhelming. The evidence included: a series of video recordings showing the 

defendant chasing the victim down the street, as well as the testimony of an 

eyewitness that the defendant shot the victim three to four times after the 

victim had raised his hands. The witness, who did not know either the victim 

or the defendant, testified that the victim was not holding a cellphone, a gun, 

or anything else, when he was shot. 

The alternative evidence of guilt also included testimony that the 

defendant acted knowingly. The defendant admitted that he was angry with 

Hann and texted her a threatening message prior to the shooting. Several of 

the defendant’s companions testified that the group intended to assault Hann. 

They also testified that members of the group armed themselves, and were 

ready to fight. 

Moreover, the challenged testimony was cumulative given that the State 

had introduced substantially the same evidence in its direct case. A witness 

had previously testified that several individuals, including the defendant, were 

watching the news on the morning after the shooting and that the television 

news broadcast reported the victim’s death. See State v. Garcia, 162 N.H. 423, 

434-35 (2011) (finding disputed evidence cumulative because defendant 

repeatedly testified to substance of the challenged evidence). 

Further, the challenged rebuttal testimony was inconsequential. The 

defendant had previously admitted that he had watched the news on the 

morning after the shooting, so the jury had a basis independent of the rebuttal 

testimony from which it could have reasonably inferred that the defendant 

knew that the victim had died. The rebuttal testimony was not lengthy: it 

lasted for fewer than three minutes. The State utilized the rebuttal testimony 

to attack the defendant’s credibility during only a short portion of its closing 

argument. Moreover, other evidence undermined the defendant’s credibility: 

he admitted that he had lied to the police about where he was at the time of the 

shooting. See State v. Barnes, 150 N.H. 715, 718 (2004) (impeachment of 

defendant with respect to three inconsistent statements was rendered 

inconsequential when State introduced evidence of defendant’s numerous prior 

 
10 

convictions). Although the defendant argues that the timing of the rebuttal 

testimony rendered it especially prejudicial, we are not persuaded. 

In light of the State’s alternative evidence, the cumulative nature of the 

challenged evidence, and the limited manner in which the State used it, we 

conclude, beyond a reasonable doubt, that the rebuttal testimony did not affect 

the jury’s verdict. We therefore hold that, even if there was error, the 

admission of the challenged testimony was harmless. 

IV. Double Jeopardy 

The defendant also argues, and the State concedes, that the imposition 

of sentences for both first-degree murder in the course of burglary and 

burglary violated the Double Jeopardy Clauses of the New Hampshire and the 

United States Constitutions. See N.H. CONST. pt. I, art.16; U.S. CONST. 

amends. V, XIV. He argues that because the crime of burglary does not 

contain an element which is not also contained in the first degree murder 

charge, he was placed in double jeopardy when he was sentenced for both the 

lesser-included offense and the greater offense. We agree. Thus, we vacate the 

sentence for the burglary conviction. 

 Affirmed in part; 

vacated in part. 

 DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.