State of New Hampshire v. John P. Stacy

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0239, State of New Hampshire v. John P.
Stacy, the court on March 31, 2016, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, John Paul Stacy, appeals his conviction, following a jury
trial, on one count of burglary. See RSA 635:1, I (2007) (amended 2014). He
argues that the Superior Court (Schulman, J.) erred in: (1) finding the
evidence sufficient to prove burglary; and (2) failing to strike certain statements
in the prosecutor’s closing argument.

The defendant first argues that the evidence was insufficient to prove
that he committed burglary. “When considering a challenge to the sufficiency
of the evidence, we objectively review the record to determine whether any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, considering all the evidence and all reasonable
inferences therefrom in the light most favorable to the State.” State v. Francis, 167 N.H. 598, 604 (2015). “It is the defendant who bears the burden of
demonstrating that the evidence was insufficient to prove guilt.” State v.
Thelusma, 167 N.H. 481, 487 (2015) (quotation omitted). “In reviewing the
evidence, we examine each evidentiary item in the context of all the evidence,
not in isolation.” Id. (quotation omitted). “Further, the trier may draw
reasonable inferences from facts proved and also inferences from facts found as
a result of other inferences, provided they can be reasonably drawn therefrom.”
Id. (quotation omitted).

Viewed in the light most favorable to the State, see Francis, 167 N.H. at
604, the jury was entitled to find the following facts. In 2013, the forty-year-
old defendant was living with his parents. In November 2013, his father was
admitted to the hospital, and in December 2013, his mother obtained a
protective order against the defendant. The order prohibited the defendant
from entering his parents’ house unless accompanied by a peace officer, and
only upon reasonable notice to his mother and for the purpose of retrieving his
personal property. On December 12, 2013, a police officer served the
protective order on the defendant and “went through” it “line by line.”

On January 4, 2014, the defendant asked a friend to drive him to his
parents’ house to retrieve some clothes. When they arrived, no one was home.
The friend parked in the driveway and waited in the car while the defendant
entered the house through a garage door. Within five minutes, the defendant
emerged from the house with a garbage bag containing clothes and a strongbox
containing his father’s coin collection. The defendant asked his friend to drive
him to a pawn shop. He told the friend that the box “was his,” but that he was
“popping [the lock] with a knife” because he “lost the key.” After several
minutes, the defendant was able to pry the strongbox open with the knife. He
“pulled . . . some coins out of the bag” inside the box and told his friend that
they were “what he was looking for” and “what he wanted to bring to the pawn
shop.” The defendant left the coins with the pawn shop as collateral for a $400
loan. Under the terms of the loan, the proprietor could sell the coins if the
defendant failed to pay the $400 plus interest and a fee within thirty days.

After the defendant left the pawn shop, he admitted to his friend that the
coins belonged to his father. The friend told the defendant that what he did
“was wrong.” She left the defendant at the home of a mutual friend. The
defendant left the strongbox, some documents contained in it, and the bag of
clothes in the friend’s car. The friend returned to the defendant’s parents’
house, showed the mother the strongbox and empty coin bag, and told her
what happened.

“The crime of burglary consists of two elements: (1) unauthorized entry;
and (2) an intent to commit a crime therein.” State v. Zubhuza, 166 N.H. 125,
129-30 (2014) (quotation omitted); see RSA 635:1, I. The defendant argues
that the evidence was insufficient to prove that, when he entered the house, he
intended to commit a theft inside. A defendant’s intent often must be proven
by circumstantial evidence. Id. at 130. “When the evidence is solely
circumstantial, it must exclude all reasonable conclusions except guilt.” Id.
(quotation omitted). However, in reviewing the sufficiency of circumstantial
evidence, we do not determine whether another possible hypothesis that has
been suggested by the defendant could explain the events in an exculpatory
fashion. Id. Rather, we evaluate the evidence in the light most favorable to the
State and determine whether the alternative hypothesis is sufficiently
reasonable that a rational juror could not have found proof of guilt beyond a
reasonable doubt. Id.

The defendant argues that there were three reasonable, alternative
hypotheses that the evidence failed to exclude. First, he may have entered the
house intending to retrieve only his clothes and then decided, after entering, to
take the coin collection. Second, his father may have given him permission to
take the coin collection. Third, even if he entered the house intending to use
the coin collection as collateral for a loan without his father’s permission, he
could have intended to pay the loan, retrieve the coins, and return them to his
father. See RSA 637:2, III (Supp. 2015) (defining “purpose to deprive” under
the theft statute, as applicable here, to require the conscious object to withhold

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property “permanently” or to dispose of it “under circumstances that make it
unlikely that the owner will recover it”).

The defendant entered the house without a peace officer, in violation of
the protective order. His stated reason for entering the house was to retrieve
clothing. However, after pawning the coin collection, he left the clothing in his
friend’s car. There is no evidence that the defendant asked his father for
permission to take the coins. He lied to his friend by telling her that the
strongbox belonged to him. Finally, even if the defendant had the financial
means to pay the loan and retrieve the coins from the pawn shop, the evidence,
construed most favorably to the State, does not suggest that he intended to
return the coins to his father. We conclude that a rational jury could have
found that, at the time the defendant entered the house, he intended to steal
the coins and that the defendant’s alternative hypotheses were not reasonable.
See Zubhuza, 166 N.H. at 131.

The defendant next argues that the trial court erred in failing to strike
improper statements in the prosecutor’s closing argument. We review the trial
court’s ruling on the propriety of closing argument under our unsustainable
exercise of discretion standard. State v. Collins, 168 N.H. 1, 6 (2015). “To
show that the trial court’s decision is not sustainable, the defendant must
demonstrate that it was clearly untenable or unreasonable to the prejudice of
his case.” Id. (quotation omitted).

At trial, a police officer testified that, during the investigation, he spoke
with the defendant’s father, who passed away on May 17, 2014, prior to trial.
The court sustained the defendant’s objection to the admission of any
statements the father made to the officer. In the prosecutor’s closing, he
argued:

Now, this issue with permission, about whether or not somebody
gave [the defendant] permission, it’s unfortunate that [the father] is
not here because we don’t know what he would say. But what you
do know is that [the father] talked to [the police officer]. They had
a conversation at some point. We don’t know what they talked
about, but what we do know is that we’re all still here and that the
investigation continued after that point.

The standard is proof beyond a reasonable doubt, and that means
exactly what it sounds like. Use your reason and use your
common sense. If he had been given permission, do you really
think we’d all be here today? If he had been given permission,
when [the father] talked to [the officer], don’t’ you think –

The defendant objected, arguing that the prosecutor was asking the jury to
speculate as to what the father may have said, evidence that was not in the

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record. The court overruled the objection, concluding that the prosecutor was
asking the jury to make a reasonable inference from the evidence.

Following a sidebar conference, the prosecutor resumed his argument as
follows:

As I was saying, use your common sense when you’re thinking
about this. Think about if [the defendant] had been given
permission, does it make any sense that we’re all still here today,
that all of these witnesses testified today, that this investigation
continued, and that we’re all here today? That doesn’t make
sense.

The defendant argues that the State’s argument improperly implied that
his father told the officer that he did not give the defendant permission to take
the coin collection. The State may not ask the jury to base its decision upon
evidence not in the record. State v. Scott, 167 N.H. 634, 641 (2015).
“However, a prosecutor may draw reasonable inferences from the facts proven
and has great latitude in closing argument to both summarize and discuss the
evidence presented to the jury and to urge them to draw inferences of guilt
from the evidence.” Id. at 641-42 (quotation omitted). We conclude that the
prosecutor did not ask the jury to base its decision upon evidence not in the
record; rather, he asked the jury to draw reasonable inferences from the
evidence. See id. Thus, we conclude that the defendant has failed to show
that the trial court unsustainably exercised its discretion in overruling his
objection to the prosecutor’s argument. See Collins, 168 N.H. at 6.

The defendant also argues that the trial court’s decision to allow the
prosecutor’s argument violated the presumption of innocence and his right to
be confronted with adverse witnesses, rights guaranteed by the state and
federal constitutions. The State argues that the defendant failed to preserve
his constitutional issues because he did not raise them in the trial court.
When the defendant raises a constitutional claim, it must be brought to the
attention of the trial court to preserve the issue for appeal. State v. Winstead, 150 N.H. 244, 246 (2003). The defendant concedes that he did not cite the
state or federal constitutions in his objection. He asserts, nevertheless, that he
sufficiently alerted the trial court to his constitutional issues. However, as the
State argues, the defendant’s objection referred neither to case law nor to
constitutional rights. Nothing alerted the trial court that the basis for his
objection was the presumption of innocence or his right to confront adverse
witnesses. Accordingly, we agree with the State that the constitutional issues
are not preserved. See State v. Ericson, 159 N.H. 379, 387 (2009).

The defendant argues that even if the constitutional grounds for the
objection were not preserved, the court’s failure to strike the argument as
violative of the presumption of innocence and his confrontation rights

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constituted plain error. Under the plain error rule, we may consider errors not
raised in the trial court. State v. Rawnsley, 167 N.H. 8, 11 (2014). “The rule
should be used sparingly, its use limited to those circumstances in which a
miscarriage of justice would otherwise result.” Id. For us to find plain error,
the defendant must establish, among other requirements, that the error
affected substantial rights. See id. “Generally, to satisfy the burden of
demonstrating that an error affected substantial rights, 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) (quotation omitted).
“We will find prejudice . . . when we cannot confidently state that the jury
would have returned the same verdict in the absence of the error.” Id.

The defendant argues that the trial court’s failure to strike the
prosecutor’s argument was prejudicial because the prosecutor acted
deliberately, and he repeated the argument after the defendant’s objection and
sidebar conference, which “signaled to the jury that the State’s argument was
proper.” Moreover, he argues, the court gave no cautionary instruction.
However, immediately following the State’s closing, the court gave its final
instructions to the jury, which included the instruction that:

First of all, the fact that the Defendant has been arrested, charged
and brought to stand trial is not evidence of guilt. . . . In your
deliberations, you must not consider the Defendant’s arrest,
indictment or information or the fact that he’s been brought to trial
as evidence.

The court also instructed the jury that, “Under our constitutions, all
Defendants in criminal cases are presumed to be innocent unless proven guilty
beyond a reasonable doubt.” We presume the jury followed the court’s
instructions. State v. Willis, 165 N.H. 205, 225 (2013).

In light of the strength of the State’s case, the reasonableness of the
contested inference, and the court’s final instructions to the jury, we conclude
that the defendant has failed to show that the trial court’s error, if any, in
failing to strike the prosecutor’s argument affected the outcome of the
proceedings. Accordingly, we conclude that the defendant has failed to
establish plain error. See Mueller, 166 N.H. at 70.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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