THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0484, State of New Hampshire v. Jeffrey 

Woodburn, the court on July 30, 2024, issued the following 

order:

The court has reviewed the written arguments and the record submitted 

on appeal, and has determined to resolve the case by way of this order. See

Sup. Ct. R. 20(2). The defendant, Jeffrey Woodburn, appeals a decision of the 

Superior Court (Bornstein, J.), issued following a hearing, denying his motion 

for a new trial based on alleged ineffective assistance of counsel. We affirm.

In 2019, the State charged the defendant with four counts of simple 

assault, two counts of domestic violence, two counts of criminal mischief, and 

one count of criminal trespass for a series of incidents involving E.J., the 

defendant’s then intimate partner. The earliest charged conduct, a simple 

assault charge and a criminal mischief charge, occurred on August 10, 2017. 

Several other charges were derived from conduct that occurred on December 

15 (simple assault and domestic violence) and December 24, 2017 (criminal 

mischief, criminal trespass, and simple assault), and other charged conduct 

that occurred on June 9-10, 2018. 

All charges were tried before a single jury in the Coos County Superior 

Court on May 10-14, 2021. The jury convicted the defendant of the two counts 

of criminal mischief (separately occurring on August 10 and December 24) as 

well as the December 15 simple assault and domestic violence charges. The 

jury did not convict the defendant of the alleged August 10, 2017 simple 

assault, the alleged December 24, 2017 criminal trespass or simple assault, or 

of any of charges related to the events of June 9-10, 2018. 

The defendant appealed. This court affirmed the criminal mischief 

convictions and reversed the December 15 simple assault and domestic 

violence convictions, finding the trial court erred in not instructing the jury on 

the issue of self-defense. See State v. Woodburn, 175 N.H. 645, 655 (2023). 

This court remanded the simple assault and domestic violence convictions for a 

new trial. See id. at 656. 

Thereafter, on June 21, 2023, the defendant moved for a new trial on the 

two criminal mischief convictions, arguing his trial counsel was ineffective for 

not attempting to sever any charges and instead allowing all nine charges to be 

heard at the same trial. The trial court held a hearing at which the defendant 

testified that trial counsel never discussed with him the possibility of moving to 
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sever the cases. The State did not depose trial counsel, and trial counsel did 

not testify at the hearing. 

The trial court denied the defendant’s motion for a new trial from the 

bench, stating, in part, that: 

[E]ven if joinder of all nine charges was improper, any alleged 

misjoinder is harmless error where the evidence is overwhelming 

with respect to the charged conduct . . . for which the Defendant 

seeks to have a new trial, the two criminal mischief charges in this 

case. Again, I find that the Defendant has not established the 

prejudice prong of the ineffective assistance of counsel test for two 

separate, independent reasons.

First . . . the jury . . . convicted the Defendant only of the charges 

in which he admitted to engaging in the charged conduct, that is 

he admitted to kicking in the dryer door and forcing open the 

house door, and admitted to biting the alleged victim’s hands in 

the car on December 15th. . . . 

[T]he jury’s guilty verdicts on the two criminal mischief charges 

were based on and driven by the Defendant’s own testimony, 

admitting to that conduct, and explaining it and taking 

responsibility for it.

I also [find] that the Defendant has not established prejudice for a 

second reason, which is that the verdicts ― the jury’s verdicts 

themselves on these nine charges demonstrates the absence of any 

such prejudice. That is the jury found the Defendant not guilty [of 

other conduct that occurred on the same days as the criminal 

mischief conduct].

This appeal followed. 

The defendant’s claim of ineffective assistance of counsel rests upon both

the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. 

CONST. amends. VI, XIV. We first address the defendant’s claim under the 

State Constitution and rely on federal law only to aid in our analysis. State v. 

Ball, 124 N.H. 226, 231-33 (1983). The New Hampshire Constitution 

guarantees a criminal defendant reasonably competent assistance of counsel.

See State v. Cable, 168 N.H. 673, 680 (2016). To prevail upon a claim of

ineffective assistance of counsel, the defendant must demonstrate first that

counsel’s representation was constitutionally deficient, and second, that

counsel’s deficient performance actually prejudiced the outcome of the trial.

Id.
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To meet the first prong of this test, the defendant must show 

that counsel’s representation fell below an objective standard of 

reasonableness. We judge the reasonableness of counsel’s conduct 

based upon the facts and circumstances of that particular case, 

viewed from the time of that conduct. As we have explained, 

judicial scrutiny of counsel’s performance must be highly 

deferential; a fair assessment of attorney performance requires that 

every effort be made to eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of counsel’s challenged conduct, 

and to evaluate the conduct from counsel’s perspective at the time. 

Because of the inherent difficulties in making this evaluation, there 

is a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance. Because the 

proper measure of attorney performance remains simply 

reasonableness under prevailing professional norms, to establish 

that his trial attorney’s performance fell below this objective 

standard of reasonableness, the defendant must show that no 

competent lawyer would have engaged in the conduct of which he 

accuses his trial counsel.

To meet the second prong, the defendant must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the trial would have been 

different. A reasonable probability is a probability sufficient to 

undermine confidence in the trial’s outcome. The prejudice 

analysis considers the totality of the evidence presented at trial. 

Both the performance and prejudice prongs of the ineffectiveness 

inquiry are mixed questions of law and fact. Therefore, we will not 

disturb the trial court’s factual findings unless they are not 

supported by the evidence or are erroneous as a matter of law, and 

we review the ultimate determination of whether each prong is met 

de novo. A failure to establish either prong requires a finding that 

counsel’s performance was not constitutionally defective.

State v. Newton, 175 N.H. 279, 285 (2022) (citations omitted).

Here, we need not address the first prong, because, as the trial court 

found, the record supports a conclusion that joinder of the nine charges did 

not prejudice the defendant, who was acquitted of more than half of the 

charges. Although the defendant argues that “failing to sever allowed the jury 

to hear testimony about the couple’s relationship that painted [the defendant] 

in a negative light,” we agree with the trial court that evidence of actual 

prejudice is lacking where the defendant, through his trial testimony, admitted 

to the conduct that formed the criminal mischief charges, i.e. kicking in the 

complainant’s drier door and kicking in the door to her home. The strength of 

the evidence related to the criminal mischief charges, in combination with the 
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jury’s multiple not guilty findings as to other related charges, indicate that it 

was the direct evidence of the underlying conduct, rather than any extraneous 

relationship information that may have been rendered admissible due to the 

joinder of multiple charges, that prompted the jury’s guilty findings on the 

criminal mischief charges.1 

The Federal Constitution offers the defendant no greater protection than 

does the State Constitution under these circumstances. State v. Kepple, 155 

N.H. 267, 269 (2007); Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Accordingly, we reach the same result under the Federal Constitution as we do 

under the State Constitution. The trial court’s decision to deny the defendant’s 

motion for a new trial is affirmed. 

Affirmed.

Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,

 Clerk

1 For example, the defendant was charged with criminal mischief and simple assault for the 

incidents that occurred on August 10, 2017, yet the jury acquitted him of the August, 10, 2017 

simple assault. Similarly, the defendant was charged with criminal mischief, criminal 

trespass, and simple assault for the events that occurred on December 24, 2017; however, the 

jury acquitted the defendant of the related criminal trespass and simple assault charges.