State of New Hampshire v. Robert Leroux ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Franklin District Division
No. 2021-0147
THE STATE OF NEW HAMPSHIRE
v.
ROBERT LEROUX
Argued: March 29, 2022
Opinion Issued: May 24, 2022
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Weston R. Sager, assistant attorney general, on the brief, and Zachary L.
Higham, assistant attorney general, orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief
and orally, for the defendant.
DONOVAN, J. The defendant, Robert Leroux, appeals his conviction,
following a bench trial in the Circuit Court (Luneau, J.), on one misdemeanor
count of driving while his license was suspended as a result of a prior driving
while intoxicated conviction. See RSA 263:64 (2014). He argues that the
circuit court erred by: (1) denying his motion to dismiss based upon the
insufficiency of the allegations in the complaint; and (2) allowing the State to
introduce certified Department of Motor Vehicle (DMV) records for the purpose
of establishing his prior DWI conviction. Applying plain error review, we
conclude that, even if we assume that the circuit court committed plain error
by denying the defendant’s motion to dismiss, the defendant has not
demonstrated that the error was prejudicial. We further conclude that the
defendant failed to preserve his argument that the court erred by admitting the
certified DMV records as evidence of his prior DWI conviction. Accordingly, we
affirm.
I. Facts
The following facts are supported by the record. In July 2018, the police
stopped the defendant’s vehicle on a public way for a traffic violation.
Following the stop, the defendant was arrested and charged with one class A
misdemeanor count of driving after his license was suspended, among other
things. See id. The complaint alleged that the defendant “knowingly [drove] a
certain motor vehicle . . . after his operator’s privilege had been suspended by
the director of motor vehicles for DWI-second offense, on 05/17/2010.”
(Capitalization omitted.) In November 2020, the circuit court held a bench
trial. At trial, the State introduced two certified DMV records: (1) the
defendant’s “driver record report-driver history”; and (2) a notice of license
suspension, which stated that the defendant’s license was suspended “as a
result of [his] conviction in the Laconia District Court on 05/17/2010 for . . .
[DWI] second offense.” (Capitalization omitted.) The defendant did not
immediately object to the admission of these records.
After the State rested, the defendant moved to dismiss the complaint,
arguing, for the first time, that the complaint insufficiently alleged a class A
misdemeanor pursuant to RSA 263:64. Specifically, the defendant argued that
the complaint was insufficient because it alleged that his license was
suspended “by the director of motor vehicles” (capitalization omitted), rather
than by a court of competent jurisdiction. See RSA 263:64, IV-V. The circuit
court took the matter under advisement and allowed the parties to submit
post-trial memoranda. In his post-trial memorandum, the defendant iterated
his argument that the complaint insufficiently alleged a class A misdemeanor
pursuant to RSA 263:64. He also argued, for the first time, that the certified
DMV records were inadmissible hearsay, and, therefore, the circuit court erred
by admitting the records into evidence.
In January 2021, the circuit court issued an order convicting the
defendant on the class A misdemeanor count of driving after his license was
suspended, among other charges. In reaching that decision, the court
observed that RSA 263:64, IV required the State to prove that “the license
suspension [was] from a court of competent jurisdiction, as opposed to a DMV
license suspension without a conviction.” Nonetheless, the court concluded
that the complaint sufficiently alleged a violation of RSA 263:64, IV because it
stated that “the suspension was as a result of ‘DWI second offense’ and listed a
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specific date.” The court construed the word “offense” in the complaint as
alleging that the defendant was convicted by a court of competent jurisdiction,
noting that this language was “enough to put the Defendant . . . on notice” of
his prior DWI conviction. The defendant filed a motion for reconsideration,
which the court denied. This appeal followed.
II. Analysis
The defendant first argues that the circuit court erred by denying his
motion to dismiss the misdemeanor driving after suspension charge based
upon the insufficiency of the allegations in the complaint. He argues, as he did
to the trial court, that the complaint insufficiently alleged a misdemeanor
pursuant to RSA 263:64, IV because it stated that his license was suspended
“by the director of motor vehicles.” (Capitalization omitted.) The defendant
asserts that this allegation precludes any implication that his license was
suspended as a result of a court conviction, which, he contends, the State was
required to prove in order to convict him of a misdemeanor pursuant to
RSA 263:64, IV.
As an initial matter, the State argues that the defendant’s challenge to
the sufficiency of the complaint was untimely because he did not raise the
issue until after the State rested its case. Therefore, the State argues that we
should review the court’s decision for plain error. We agree. A motion to
dismiss a complaint is untimely if “brought in the middle of trial, after the
State rested its case.” State v. Ortiz, 162 N.H. 585, 590 (2011). However, an
untimely challenge to the sufficiency of the complaint does not preclude all
appellate review; instead, it confines our review to plain error. Id.; see State v.
Pinault, 168 N.H. 28, 33-34 (2015) (holding that the defendant’s challenge to
the sufficiency of the complaint was untimely, and, consequently, applying
plain error review, when the defendant raised the issue for the first time after
trial).
Here, the defendant’s challenge to the sufficiency of the complaint was
untimely because he raised it for the first time at the end of the trial, after the
State rested its case. See Pinault, 168 N.H. at 33; Ortiz, 162 N.H. at 590. The
defendant argues, however, that Pinault and Ortiz are distinguishable because
the charging documents at issue in those cases failed to allege any crimes,
whereas here, the defendant concedes that the complaint adequately alleged a
violation-level offense. In the defendant’s view, the complaint “was defective
only in the legally irrelevant, subjective sense that it failed to charge the
misdemeanor the prosecutor wanted to charge.” Thus, the defendant asserts
that, because he “suffered no injury merely by being brought to trial, [he] could
properly raise the question when counsel did.”
We are unpersuaded. As in Pinault and Ortiz, the defendant challenged
the sufficiency of the complaint on the basis that it failed to allege a necessary
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element of the offense — namely, that a court of competent jurisdiction
convicted him of DWI-second offense. See RSA 263:64, IV-V; Pinault, 168 N.H.
at 33 (“The defendant argues that the complaint fails to include an element of
the offense because it did not allege that the defendant was involved in the
accident.”); Ortiz, 162 N.H. at 588 (“The defendant contends that the pattern
indictment was defective under the State Constitution because it failed to
contain all of the elements of the pattern variant of AFSA.”). We conclude that,
notwithstanding his contention that the complaint adequately alleged a
violation-level offense, the defendant was required to “bring challenges to the
sufficiency of the [complaint] before trial.” Pinault, 168 N.H. at 33. This
conclusion is consistent with our recent decision in State v. Emery, No. 2019-
0309, 2020 WL 3169325, at *1-2 (N.H. May 14, 2020) (non-precedential order),
where we applied our plain error standard and rejected the defendant’s
argument that, because “she did not challenge the disorderly conduct
complaints as defective, but argued only that they alleged violation-level
offenses,” the timeliness rule set forth in Pinault and Ortiz did not apply.
The defendant further argues that, because the State did not challenge
the timeliness of his motion to the trial court, the State’s timeliness argument
is unpreserved. He argues that “[t]he State has an obligation to preserve, in
the [circuit] court, arguments that it subsequently advances on appeal.” Again,
we are unpersuaded. The defendant, as the appealing party, bears the burden
of proving that he preserved his appellate arguments, including his argument
that the circuit court erred by denying his motion to dismiss. See State v.
Batista-Salva, 171 N.H. 818, 822 (2019). Moreover, the State does not argue
that we should affirm the circuit court’s decision on the alternative ground that
the defendant’s motion was untimely. Rather, the State argues that, because
the motion was untimely, we should review the merits of the defendant’s appeal
pursuant to our plain error standard. Because this court, and this court alone,
decides whether to apply our plain error standard, see id. at 824, the State had
no occasion to argue the proper standard of appellate review to the circuit
court.1 Accordingly, we conclude that the defendant’s motion to dismiss was
untimely, and we will review the circuit court’s denial of the defendant’s motion
for plain error.
To find plain error: (1) there must be error; (2) the error must be plain;
and (3) the error must affect substantial rights. State v. Thomas, 168 N.H.
589, 604 (2016). If all three conditions are met, we may then exercise our
1We note that in State v. Cheney, 165 N.H. 677, 679 (2013), we declined the State’s request that
we review under the plain error standard the defendant’s challenge to the sufficiency of the
complaint because the State did not challenge the timeliness of the defendant’s motion to the trial
court. However, that determination was unnecessary to our holding in Cheney, as we ultimately
ruled that the trial court correctly denied the defendant’s challenge on the merits. Id. at 679-81.
Accordingly, we decline to extend our dicta from Cheney and will instead apply the preservation
rule set forth in Pinault and Ortiz.
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discretion to correct a forfeited error only if the error meets a fourth criterion:
the error must seriously affect the fairness, integrity or public reputation of
judicial proceedings. Id. Here, even assuming that an error occurred and that
the error was plain, we conclude that any such error does not satisfy the third
prong of the analysis. Under the third prong, “the defendant must
demonstrate that the error was prejudicial, i.e., that it affected the outcome of
the proceeding.” State v. Mueller, 166 N.H. 65, 70 (2014). We will find
prejudice under the third prong when we cannot confidently state that the fact-
finder would have returned the same verdict in the absence of the error. Id.Here, nothing in the record suggests that the outcome in this case would
have been different had the complaint been more specific. The defendant does
not argue, and the record does not support a finding, that the complaint
limited the defendant’s ability to prepare for trial or that he would have
prepared differently had the complaint alleged that he was convicted by a court
of competent jurisdiction of a “DWI-second offense.” Importantly, the
defendant conceded at oral argument that any such deficiency in the complaint
was not prejudicial because, throughout the trial, he was aware that a court of
competent jurisdiction had in fact convicted him of “DWI-second offense.”
Accordingly, we affirm the circuit court’s decision on this issue.
The defendant next argues that the certified DMV records were
inadmissible hearsay, and, therefore, the circuit court erred by admitting those
records as evidence of his prior DWI conviction. We conclude that this
argument is unpreserved. As explained above, the defendant, as the appealing
party, bears the burden of demonstrating that he specifically raised the
arguments articulated in his appellate brief before the circuit court. See
Batista-Salva, 171 N.H. at 822. It is well established that, to preserve an issue
for appellate review, a party must make a specific and contemporaneous
objection during trial. 101 Ocean Blvd., LLC v. Foy Ins. Grp., Inc., 174 N.H.
130, 137 (2021); see N.H. R. Ev. 103(a)(1). This requirement affords the circuit
court an opportunity to correct any error it may have made and is grounded in
common sense and judicial economy. 101 Ocean Blvd., LLC, 174 N.H. at 137-
38.
Here, the defendant failed to make a specific and contemporaneous
objection to the admission of the certified DMV records. Rather, he raised his
hearsay argument for the first time in his post-trial memorandum. Contrary to
the defendant’s argument, an objection to the admission of evidence that is
raised for the first time after the opposing party has rested its case is not
contemporaneous. See Black’s Law Dictionary 360 (9th ed. 2009) (“An
objection is timely if it is made as soon as practicable . . . .”); cf. 101 Ocean
Blvd., LLC, 174 N.H. at 138 (holding that defendant’s objections to closing
argument statements, raised for the first time in his post-trial motion for
judgment notwithstanding the verdict, were untimely). We therefore conclude
that this issue is unpreserved for review. Because the defendant does not
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argue that we should review this issue for plain error, we decline to do so. See
Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018)
(“[A]lthough the plain error rule allows us to consider errors not brought to the
attention of the trial court, see Sup. Ct. R. 16-A, in this case, we exercise our
discretion to consider plain error only when the defendants specifically argue
under that rule.”).
Accordingly, we affirm the defendant’s conviction on one misdemeanor
count of driving after his license was suspended. See RSA 263:64, IV. Any
issues that the defendant raised in his notice of appeal, but did not brief, are
deemed waived. See State v. Bazinet, 170 N.H. 680, 688 (2018).
Affirmed.
MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.
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