State of New Hampshire v. Brim Bell ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 2019-0047
THE STATE OF NEW HAMPSHIRE
v.
BRIM BELL
Argued: February 17, 2022
Opinion Issued: August 16, 2022
Office of the Attorney General (Weston R. Sager, attorney, on the brief,
and Elizabeth C. Woodcock, senior assistant attorney general, orally), for the
State.
Anthony J. Naro, assistant appellate defender, of Concord, on the brief,
and Thomas A. Barnard, senior assistant appellate defender, orally, for the
defendant.
Brim Bell, the defendant, filed a supplemental brief with permission of
the court.
HICKS, J. The defendant, Brim Bell, appeals his convictions, following a
jury trial in Superior Court (Howard, J.), on four class A felony counts of theft
by deception. See RSA 637:4, :11, I (2016). We affirm.
The jury could have found the following facts. The defendant ran a
business at several New Hampshire locations restoring primarily Volkswagen
vehicles. Between January 1, 2011 and November 17, 2015, each of the
victims, A.M., J.M., J.K., and J.T., hired the defendant to restore a vehicle.
During the time the defendant had their vehicles, he repeatedly asked each of
the victims to send him more money, ostensibly for parts or other expenses
related to the restoration of their vehicles. Each victim made a series of
payments to the defendant, totaling the following amounts: $81,900 from A.M.;
$24,100 from J.M.; $11,521 from J.K.; and $55,055 from J.T. None of the
victims received a restored car back from the defendant.
The defendant testified to a series of events that negatively affected his
business during 2010 and 2011 and increased his debt. As a result, at the end
of 2011, the defendant started gambling at casinos. He testified that his “plan
was to save the business.” The defendant admitted that he gambled with some
of his customers’ money and that none of them gave him permission to do so.
Instead, he “thought it made sense to keep it a classified situation” and “not
something to advertise and boast to [his] clients about.” In 2016, the
defendant left New Hampshire, owing the landlord of one of his facilities
between $150,000 and $180,000.
In 2018, the defendant was indicted on six counts of class A felony theft
by deception. The indictments were substantially similar, alleging, in relevant
part, that “pursuant to one scheme or course of conduct,” the defendant:
obtain[ed] or exercise[d] unauthorized control over U.S. currency,
the property of [the identified victim] by deception, with a
purpose to deprive [the victim] thereof, in that [the defendant]
created or reinforced the false impression that he was repairing
[the victim’s] vehicle, which was false and which [the defendant]
did not believe to be true, in order to continue to receive
payments for repairs that were not being performed, the value of
which exceeded $1,500.00.
The State moved to join the offenses for trial, arguing that they were: (1)
“part of a common scheme or plan”; (2) “so logically and factually connected
that they cannot reasonably be separated for the purposes of trial”; and (3)
“connected in a manner that does not solely demonstrate that the accused has
a propensity to engage in criminal conduct.” See N.H. R. Crim. P. 20. The
defendant objected. The trial court granted the State’s motion, concluding that
“the charges are so clearly part of a common scheme or plan as to defy further
explanation.”
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Following a jury trial, the defendant was convicted on four counts and
acquitted on two. He now appeals his convictions, arguing that the evidence
was insufficient to convict him and that the trial court erred in granting the
State’s motion for joinder. He raises additional issues in a pro se supplemental
brief filed with this court’s permission. See State v. Belton, 150 N.H. 741, 750
(2004).
I. Sufficiency of the Evidence
We first address the defendant’s challenges to the sufficiency of the
evidence. “A challenge to the sufficiency of the evidence raises a claim of legal
error; therefore, our standard of review is de novo.” State v. Vincelette, 172
N.H. 350, 354 (2019). “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.The defendant argues that “the State failed to prove beyond a reasonable
doubt that [he] created or reinforced the false impression that he was repairing
the alleged victims’ vehicles when he obtained money from them” because the
evidence failed to “establish that [he] was not working on each person’s
vehicle.” More specifically, the defendant argues that because the indictments
allege the deception element to be the creation or reinforcement of “the false
impression that he was repairing [the victims’] vehicle[s],” the State was
required to prove that he “had not done anything to ‘repair’ the cars when he
represented that he had.” He contends that the evidence established, to the
contrary, that he “was working on each person’s vehicle when he requested
money from them” even though he was “moving at a snail’s pace.”
Contrary to the defendant’s contention, the State was not required to
prove that he had done nothing to repair the victims’ cars. The State was
required to prove that the defendant “obtain[ed] or exercise[d] control over
property of another by deception and with a purpose to deprive him thereof.”
RSA 637:4. To prove the element of deception as charged, the State was
required to prove that the defendant purposely “[c]reate[d] or reinforce[d] an
impression which is false and which [the defendant] does not believe to be true,
including false impressions as to . . . intention or other state of mind.” RSA
637:4, II(a). As detailed below, the State proved that the defendant obtained
money from each victim by creating or reinforcing the false impression that the
money was going to be used to buy parts for, or otherwise applied to the repair
of, the victim’s vehicle, when, in fact, the defendant used the money for his own
purposes, including gambling at a casino.
In addition, “to obtain a conviction for class A felony theft by deception,
the State need only prove, in addition to the elements set forth in RSA 637:4, I,
that the property taken was valued at more than [$1,500].” State v. French,
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146 N.H. 97, 100 (2001); see RSA 637:11, I(a). Thus, the jury need not have
found that all of the money the defendant received from each victim was
obtained in violation of RSA 637:4; rather, it need only have found that at least
$1,500 from each victim was so obtained. See French, 146 N.H. at 98-99, 105
(noting, in appeal from conviction for theft by deception of workers’
compensation benefits, that “the State was not required to prove theft of the
entire $25,000 [lump sum settlement], and therefore the defendant’s
entitlement to a portion of the lump sum settlement is not inconsistent with a
verdict of guilty of the offense charged”).
With these principles in mind, we now examine the evidence with respect
to each victim.
A. A.M.
The jury could have credited A.M.’s testimony that the defendant often
asked her for more money, giving as reasons that “[p]arts [were] costing more,”
or “finding that more things that he needed would cost more than he had
estimated.” The jury heard extensive evidence of checks and wire transfers
from A.M. posting to the defendant’s bank account and withdrawals made at
various casinos so close in time to those deposits that the jury could
reasonably infer that the defendant intended to use that money for gambling
and knew that the reasons he gave A.M. for needing that money were false. To
give just one example, the jury could have found that on February 27, 2014,
the defendant’s bank account had a balance of “[n]egative $255.48.” On
February 28, the defendant made two balance inquiries on that account at
automated teller machines at Mohegan Sun Casino. That same day, a wire
transfer from A.M. in the amount of $2,500 posted to the defendant’s account.
Two withdrawals from that account were made that same day at Mohegan Sun
in the amounts of $2,000 and $604.50. Accordingly, the evidence was
sufficient to convict the defendant of class A felony theft by deception from
A.M.
B. J.M.
The jury could have credited J.M.’s testimony that the defendant asked
him for more money “[i]nitially, . . . because there was more rust in the car
than he had anticipated,” and later, “for various reasons: to buy parts or paint
or that he needed the additional money to complete the car.” As with regard to
A.M., the jury heard evidence of checks and wire transfers from J.M. posting to
the defendant’s bank account, followed closely by withdrawals at various
casinos. For example, the jury could have found that on February 19, 2013,
the balance in the defendant’s bank account was “[n]egative $450.54.” On
February 21, the defendant made four balance inquiries on that account at
Mohegan Sun. That same day, J.M. wire transferred $2,000 into that account,
and the defendant made a debit card purchase at Mohegan Sun in the amount
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of $1,065.95, and then a second in the amount of $604.50. Accordingly, the
evidence was sufficient to convict the defendant of class A felony theft by
deception from J.M.
C. J.K.
The jury could have credited J.K.’s testimony that he sent his vehicle to
the defendant’s garage for restoration on November 17, 2015. The plan for
restoration was to “sandblast [the car], get rid of and repair all the rust, the
body work, the ruffles, paint it, and basically give [J.K.] back a show car.” The
original estimate for the job was $8,000 plus an additional $1,000 for
sandblasting, for a total of $9,000, with a payment schedule of $1,000 per
month. Nevertheless, J.K. testified, “[t]he first month, [the defendant] had
already tried to hit me up twice for payments. Twice more the month after
that.” The defendant “would call [J.K.] up, requesting money for this, that, the
other thing,” getting “to the point where [the defendant] was harassing [him] for
money.” Between November 17, 2015 and May 3, 2016, J.K. made eleven
payments totaling $11,520.59 to the defendant with the understanding that
the money “was going to work on [his] car.”
The defendant verbally “gave [J.K.] indication that there was work being
done on [his] car” and “sent [J.K.] false photos of cars that he claimed was
[J.K.’s] car that he had done work on.” At some point, J.K. told the defendant
he was coming to inspect his car. The defendant said he needed another week,
which J.K. gave him. When J.K. “went up and inspected [his] car, . . . what
[he] found was not a sandblasted prime[d] car, which [the defendant] had sent
[him] a photo of.” The car was “stripped down to the bare shell” and all the
defendant had done was take off the pan, cut off the rear apron and “just
rubbed some paint thinner on it, some paint stripping, to make it look like he
had been doing some work,” but which J.K. thought anyone could have done in
45 minutes. J.K. gave the defendant 30 days to “get his act together and get
some work done,” but when J.K. picked up his car in June 2016, after the
defendant’s landlord told J.K. he had to retrieve his car, “maybe a half hour[’s]
worth of [additional] work” had been done.
From this evidence, the jury could have found that J.K., under the
impression that the money “was going to work on [his] car,” paid the defendant
more than $1,500 over: (1) the total contract price ($9,000); (2) the total
payments due between November 2015 and May 2016 ($7,000); and (3) the
established minimal value of the work the defendant performed on J.K.’s car.
The jury also could have found that the defendant created the false impression
that he was performing more work on J.K.’s car than he actually was, and that
he needed more money to continue restoration work that was not actually
being performed. In J.K.’s words, the defendant “sent me pictures of other
people’s cars and said it was mine to show that there was work being done on
my car, which . . . clearly . . . there wasn’t. To show me that hey, I’m doing
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work, I need more money.” From this and other evidence, the jury could have
found that the defendant acted purposely in putting over $1,500 of J.K.’s
money to his own personal use rather than toward repairing the car.
Accordingly, the evidence was sufficient to convict the defendant of class A
felony theft by deception from J.K.
D. J.T.
The jury could have credited J.T.’s testimony that he shipped his car to
the defendant in January 2011 to modify it into a “hot rod.” The project
included work “to replace the motor, and do some body work, and new interior,
new top,” with an initial estimate of 8 to 12 months for completion and an
initial budget of “around 25- to 30,000” dollars. Within three weeks of
shipping the vehicle, J.T. paid the defendant $20,000 to get the project started,
thinking that “most of it would be for the motor and the body work.”
Thereafter, the defendant asked J.T. for more money, “always for parts.”
Sometimes the defendant asked J.T. to send the money to another person,
ostensibly for parts for J.T.’s car. One of the third parties to whom J.T. was
asked to send money “for parts” was J.K., although J.K testified that he never
sold car parts to the defendant. The evidence showed that between January
17, 2011, and August 2, 2016, J.T. made 24 payments totaling $55,055 to the
defendant or to others at the defendant’s direction.
The State introduced evidence of transactions posted to one of the
defendant’s bank accounts through admission of the bank records as a full
exhibit and the testimony of the detective who subpoenaed the defendant’s
bank records, which highlighted certain transactions contained in those
records. As detailed below, the jury could have found from that evidence that
during a time frame in which the defendant was gambling at Mohegan Sun, he
received a substantial sum of money from J.T. and used at least $1,500 of it at
the casino for his own purposes.
According to the detective’s testimony, the defendant’s bank records
showed transactions at Mohegan Sun on September 5 and 6, 2013, leaving him
with an account balance of “[n]egative $184.33.” On September 9, a $7,500
wire transfer from J.T. posted to the account. That same day, the defendant
withdrew $600 from an automated teller machine in Dover and then spent
$44.50 at Mohegan Sun. On September 10, there was a debit withdrawal from
the account in the amount of $2,800. Although the detective did not testify as
to the location of the withdrawal, his testimony indicates that the location
would have been shown on the bank records themselves. As the appealing
party, the defendant had the burden to provide this court with a record
sufficient to decide his issues on appeal. Bean v. Red Oak Prop. Mgmt., 151
N.H. 248, 250 (2004); see State v. Sachdev, 171 N.H. 539, 549 (2018) (citing
same). Because the defendant failed to provide us with the bank account
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exhibits, we must assume that the bank records support the jury’s verdict. See
Sachdev, 171 N.H. at 549. Accordingly, from this and other evidence, the jury
could have found that the defendant used at least $1,500 he obtained from
J.T., under the false impression that it would be used to buy parts for J.T.’s
car, in order to gamble. Thus, the evidence was sufficient to convict the
defendant of class A felony theft by deception from J.T.
The defendant nevertheless argues that “[t]o the extent that the trial
court relied on a finding that the evidence supported a finding, beyond a
reasonable doubt, that the money was not used for parts, but rather to gamble,
the State’s indictments did not contain any such allegation.” The State was not
required, however, to allege how the defendant ultimately used the money he
obtained from his victims, because an indictment “need not state the specific
means by which the crime was carried out.” State v. Hermsdorf, 135 N.H. 360,
366 (1992). Rather, “[a]n indictment is generally sufficient if it uses the
language of the applicable statute.” Id. “The question is not whether the
indictment could be more certain and comprehensive, but whether it contains
the elements of the offense and enough facts to warn the accused of the
specific charges against him.” Id. (quotations and ellipsis omitted). An
allegation that the defendant used money he deceptively obtained from his
victims “to gamble” was not required in order to meet that standard.
II. Joinder
The defendant next argues that the trial court erred in granting the
State’s motion for joinder. “We will uphold the trial court’s decision to join the
charges unless we conclude that the decision constitutes an unsustainable
exercise of discretion.” State v. Breed, 159 N.H. 61, 68 (2009). “To show that
the trial court’s decision is unsustainable, the defendant must demonstrate
that the ruling was clearly untenable or unreasonable to the prejudice of his
case.” Id.Rule 20 of the Rules of Criminal Procedure provides that “[i]f a defendant
is charged with two or more related offenses, either party may move for joinder
of such charges. The trial judge shall join the charges for trial unless the trial
judge determines that joinder is not in the best interests of justice.” N.H. R.
Crim. P. 20(a)(2). The rule further provides:
Two or more offenses are related if they:
(A) Are alleged to have occurred during a single criminal episode;
or
(B) Constitute parts of a common scheme or plan; or
(C) Are alleged to have occurred during separate criminal episodes,
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but, nonetheless, are logically and factually connected in a manner
that does not solely demonstrate that the accused has a propensity
to engage in criminal conduct.
N.H. R. Crim. P. 20(a)(1).
Here, the trial court found that the charged offenses were “part of a
common scheme or plan.” We have not yet had occasion to consider what
constitutes a “common scheme or plan” under the rule. Prior to adopting a
court rule regarding joinder of criminal charges, we adopted, as a matter of
common law, the ABA standards for joinder and severance of criminal offenses
in State v. Ramos, 149 N.H. 118, 127 (2003). See State v. Brown, 159 N.H.
544, 550 (2009) (Brown II) (outlining history of our joinder jurisprudence).
Those standards “categorize offenses as either ‘related’ or ‘unrelated’” and
“grant[] the prosecution and the defense an absolute right to sever unrelated
charges.” Ramos, 149 N.H. at 125. “‘Related’ offenses are those based upon
the same conduct, upon a single criminal episode, or upon a common plan”
and “‘[u]nrelated’ offenses are those that are not ‘related.’” Id. (quotation
omitted). Subsequently, in State v. McIntyre, 151 N.H. 465, 466-67 (2004), “we
adopted the definition of common plan prescribed under New Hampshire Rule
of Evidence 404(b).” Brown II, 159 N.H. at 550.
The defendant’s argument in this case relies upon our construction of
the term “common plan” in cases decided prior to the adoption of Rule 20(a).
Accordingly, for purposes of addressing the defendant’s argument, we assume
without deciding that “common scheme or plan” under Rule 20(a)(1)(B) has the
same meaning as “common plan” had under our common law joinder
jurisprudence.
“The distinguishing characteristic of a common plan is the existence of a
true plan in the defendant’s mind, which includes the charged crimes as stages
in the plan’s execution.” Breed, 159 N.H. at 69 (decided under common law).
Accordingly, we have noted that it is insufficient “[t]hat a sequence of acts
resembles a design when examined in retrospect.” Id. Rather, “the prior
conduct must be intertwined with what follows, such that the charged acts are
mutually dependent.” Id.
The defendant attempts to avail himself of the requirement that the
charged acts be “mutually dependent.” Id. He contends that the trial court
erred in finding a “common scheme or plan” because it failed to find, and the
State failed to offer evidence to support a finding of, “a mutual dependency
between the charges.” He argues that “[e]ach indictment alleged a discrete
offense against an individual alleged victim, and the success of no offense
hinged on the success of others.”
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“Historically, we have required a substantial degree of
interconnectedness before offenses may be joined as mutually dependent.”
Petition of State of N.H. (State v. San Giovanni), 154 N.H. 671, 677 (2007). In
some cases, we have found such interconnectedness when “the success of the
later-occurring crimes depends upon the success of the earlier crimes.” Id. at
675. Often, such cases involved the grooming of a sexual assault victim
through “a clear progression in the level of abuse, allowing a reasonable person
to make an objective finding of a common plan.” McIntyre, 151 N.H. at 468;
see also State v. Abram, 153 N.H. 619, 626 (2006) (noting that defendant’s
success in the final properly-joined offense “was dependent upon his having
desensitized the [child victims] to engaging in sex by regularly subjecting them
to severe acts of sexual abuse”). In such cases, we held that it was “reasonable
to conclude that the acts . . . were mutually dependent, because the occurrence
of the final assaults hinged upon the success of the earlier incidents.”
McIntyre, 151 N.H. at 467.
The defendant’s argument presupposes that in order to find a common
plan, the success of a defendant’s later crimes must have depended upon the
success of those preceding them. Admittedly, some of our cases could be read
to support that view. See, e.g. State v. Brown, 156 N.H. 440, 442-44 (2007)
(Brown I). We have not, however, relied upon that form of mutual dependency
in all cases.
For instance, in State v. Schonarth, 152 N.H. 560 (2005), the defendant
was convicted on seventeen counts of theft by deception. Schonarth, 152 N.H.
at 561. The defendant falsely represented to the victim that he had filed a
mortgage application in connection with his purchase of property from the
victim. Id. “In the following years, the defendant asked [the victim] to lend him
money to satisfy requirements allegedly imposed by [the bank] to obtain the
loan.” Id. He also asked the victim for other loans, each “in some way allegedly
related to enabling the defendant to secure the mortgage for the purchase of
[the victim’s] property.” Id. Eventually, the defendant told the victim that the
bank would not finance his purchase of the property, but solicited additional
funds from the victim for investment in a corporation that did not, in fact,
exist. Id. at 561-62.
The trial court consolidated the seventeen indictments for trial, “finding
that the acts constituted a common plan for purposes of joinder.” Id. at 562.
We affirmed that ruling on appeal, holding:
Viewed objectively, the defendant’s actions demonstrated a prior
design that included the charged acts as part of its
consummation. The charges all involved the same elderly victim;
all were based upon the defendant’s efforts to defraud the victim of
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his property through increasingly grandiose schemes connected to
the defendant’s alleged desire to repay his debt to the victim.
Id. (citation omitted). We said nothing about the success of the later
frauds depending upon the success of the previous ones. See id.
Notwithstanding that Schonarth did not rely upon the “success of
later crimes” theory, a fact we acknowledged in San Giovanni, 154 N.H.
at 676, dicta in some of our subsequent cases attempts to fit Schonarth
into that mold. For instance, in San Giovanni, we opined that even with
no express reliance upon the theory, “there is no question that in
[Schonarth], the success of the later frauds depended upon the success
of the earlier frauds.” San Giovanni, 154 N.H. at 676. Similarly, in
Brown I, we opined that “[e]ach time Schonarth attempted to defraud his
victim, his success was dependent on his previous schemes such that
the acts were so intertwined as to be mutually dependent.” Brown I, 156
N.H. at 443. We now reiterate that the “success of later crimes” theory
played no cogent part in Schonarth’s holding.
Nor did we rely on that theory in State v. Breed. In that case, the
defendant, a medical examiner in Massachusetts, was convicted on nine
counts of fraudulent handling of recordable writings, two counts of theft
by deception, and one count of theft by unauthorized taking. Breed, 159
N.H. at 63. His convictions stemmed from medical examiner services he
provided to certain facilities including Bayview Crematorium (Bayview).
Id.
On appeal, the defendant challenged, among other things, the joinder of
the theft by deception and fraudulent handling offenses. Id. at 68. The theft
by deception counts “alleged that, for the purpose of receiving medical
examiner fees, the defendant had signed cremation certificates indicating he
had viewed the remains of [certain] decedents when he had not done so.” Id. at
64. Seven of the fraudulent handling indictments “alleged that the defendant,
with a purpose to deceive, had signed certain cremation certificates that falsely
indicated that he was a New Hampshire medical examiner.” Id. at 63. The
other two fraudulent handling indictments “alleged that he, with a purpose to
deceive, had signed other cremation certificates indicating that he had viewed
certain remains and had made personal inquiry into the cause and manner of
death, when, in fact, he had not done so.” Id. at 63-64.
The defendant challenged the trial court’s ruling that “joinder was proper
. . . because the theft and fraudulent handling offenses were part of a common
plan,” and contended, to the contrary, that those “offenses were independent
and not mutually dependent or part of a common plan.” Id. at 69 (quotation
omitted). We upheld the trial court’s ruling:
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In the instant case, we are persuaded that the trial court
reasonably could have found that the theft by deception and
fraudulent handling charges constituted mutually dependent acts
that were part of a prior design. The record supports the trial
court’s finding that the defendant strove to develop an exclusive
relationship with the operators of Bayview to increase the number
of examination fees he could collect. To do this, he maximized his
availability to the crematory, by, for example, signing cremation
certificates when he had not conducted the requisite examinations.
The more fraudulent transactions he participated in, the more
reliant Bayview’s operators became upon his services to carry out
their own ends of processing as many bodies as possible. Based
upon these findings, the trial court reasonably found that each
fraudulent transaction or theft in which the defendant engaged
was part of an overarching plan of furthering his increasingly
profitable relationship with Bayview, and, in this way, the charges
were mutually dependent. The trial court reasonably could have
found that the defendant was not merely taking advantage of
opportunities as they arose, but instead was exhibiting forethought
and premeditation in his scheming.
Id. at 70 (quotation and brackets omitted). As in Schonarth, we said nothing
about the success of later charged offenses depending on the success of the
earlier ones. Rather, the individual offenses constituted part of an “overarching
plan” and, presumably, contributed not to the success of each other, but to the
success of that plan’s ultimate goal “of furthering [the defendant’s] increasingly
profitable relationship with Bayview.” Id.; cf. State v. Kirsch, 139 N.H. 647,
655 (1995) (noting that, under the common plan exception to Rule of Evidence
404(b), the “other bad acts must be constituent parts of some overall scheme[;]
. . . there must be some overall scheme of which each of the crimes is but a
part” (quotation and citation omitted)).
In accordance with our decisions in Schonarth and Breed, we reject the
defendant’s premise that joinder of offenses under the “common plan or
scheme” provision of Rule 20 of the Rules of Criminal Procedure requires, in all
cases, a finding that the success of later charged offenses depended upon the
success of earlier ones. We reiterate that “[t]he distinguishing characteristic of
a common plan is the existence of a true plan in the defendant’s mind, which
includes the charged crimes as stages in the plan’s execution.” Breed, 159
N.H. at 69 (decided under common law). This analysis ensures that “the
defendant was not merely taking advantage of opportunities as they arose, but
instead was exhibiting forethought and premeditation in his scheming.” Id. at
70 (quotation and brackets omitted); cf. State v. Melcher, 140 N.H. 823, 828
(1996) (noting, in Rule of Evidence 404(b) case, that “[v]iewed objectively, the
other bad acts must clearly tend to show that the defendant had a definite
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prior design or system which included the doing of the act charged as a part of
its consummation” (quotation omitted)). Having rejected its premise, we
necessarily reject the defendant’s argument challenging joinder.
Finally, in his pro se supplemental brief, the defendant presents two
questions for our review. The first is “[w]hether the evidence used at trial was
admissible?” The State argues that the defendant failed to preserve this issue
for appellate review.
“As the appealing party, the defendant has the burden of providing this
court with a record sufficient to demonstrate that he raised all of his appeal
issues before the trial court.” State v. Adams, 169 N.H. 293, 299 (2016). The
defendant asserts that he preserved this issue at his allocution during his
sentencing hearing. We conclude that raising the issue at that time was
insufficient to preserve it.
Our preservation requirement “reflects the general policy
that trial forums should have an opportunity to rule on issues and to correct
errors before they are presented to the appellate court.” State v. Cavanaugh,
174 N.H. 1, 12-13 (2020). “Generally, a party should make an objection to
evidence at the time it is offered, or at the earliest opportunity after the reason
for objection becomes apparent.” Broderick v. Watts, 136 N.H. 153, 168
(1992). Because the defendant failed to raise his challenge to the admissibility
of evidence in a timely manner, it is not preserved and we will not address it.
See id. at 169 (plaintiff’s contention that defendant asked improper questions
while cross-examining two of plaintiff’s witnesses was not preserved when
raised for the first time in a post-trial motion).
The second question is “[w]hether the Court erred by not allowing the
Defendant to be present at all stages of trial?” Specifically, the defendant was
not present when the trial court, prosecutor, and defense counsel discussed a
question posed by the jury during its deliberations. Defense counsel opined at
the time that the defendant need not be present. Accordingly, the defendant
raises this issue as plain error.
“For us 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. Pinault, 168
N.H. 28, 33 (2015) (quotation omitted). We need not address whether the first
two prongs are met, because the defendant has failed to satisfy the third. See
id. at 34 (assuming, without deciding, that the first two prongs were met and
determining that the defendant failed to satisfy the third). “In order for a
defendant to prevail under the third prong, the defendant must demonstrate
that the error was prejudicial, i.e., that it affected the outcome of the
proceeding.” Id. (quotation omitted). Here, we agree with the State that the
defendant “does not articulate how . . . his absence affected the verdicts or
otherwise prejudiced him.” Accordingly, we conclude that the defendant failed
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to meet his burden to show plain error. See id. (finding alleged deficiency in
complaint was not shown to constitute plain error where defendant “made no
showing, nor even argued, that the complaint limited her ability to prepare for
trial or that she would have prepared for trial differently” absent the alleged
deficiency (emphasis added)).
To the extent the defendant raises other issues in his pro se brief, we
conclude that: he has failed to demonstrate that the issues are preserved, see
Adams, 169 N.H. at 299; the issues are inadequately briefed, and therefore
waived, see State v. Papillon, 173 N.H. 13, 28, n.1 (2020); or they lack merit
and warrant no further discussion, see Vogel v. Vogel, 137 N.H. 321, 322
(1993).
Affirmed.
BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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