State of New Hampshire v. Michael Moraros

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0202, State of New Hampshire v. Michael
Moraros, the court on August 22, 2016, issued the following
order:

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

The defendant, Michael Moraros, appeals an order of the Superior Court
(O’Neill, J.) denying his motion for bail pending his appeal of his convictions,
following a jury trial, on charges of second degree assault, see RSA 631:2 (Supp.
2015), and simple assault, see RSA 631:2-a (2007). He contends that the trial
court erred because: (1) prior to his trial, he was released on $4,000 cash bail
and abided by his bail conditions; and (2) the trial court did not provide reasons
for the denial, see RSA 597:1-a, V (2001).

RSA 597:1-a, III(a) (Supp. 2015) provides that a person found guilty of a
felony who intends to appeal his conviction “shall . . . be detained, unless” he
establishes: (1) “[b]y clear and convincing evidence . . . that [he] is not likely to
fail to appear . . . or to pose a danger to himself . . . or to any other person or the
community”; and (2) “[b]y a preponderance of the evidence that the appeal will
not likely be frivolous or taken merely for delay.” The trial court must consider
the length of the sentence imposed and the nature of the crime. RSA 597:1-a,
III(a)(1); see State v. Blum, 132 N.H. 396, 401-02 (1989).

Whether to grant bail pending an appeal rests in the trial court’s
discretion. Moses v. Helgemoe, 115 N.H. 672, 672 (1975). To show that the trial
court’s exercise of discretion was unsustainable, 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). We will not
disturb the trial court’s decision “except on evidence of a compelling nature.”
Moses, 115 N.H. at 672.

For the purpose of this appeal, the State concedes that the defendant is
not a flight risk and that his appeal of his convictions is not frivolous. However,
the trial court denied bail pending the appeal because “the Defendant . . . failed
to show by clear and convincing evidence that he does not pose a danger to the
safety of another person in the community.”
 The defendant concedes that the night before the trial began he called the
victim’s home phone. Although the defendant described this as “inadvertent,”
the trial court was not obliged to accept his explanation. See State v. Carr, 167
N.H. 264, 275 (2015) (stating fact finder is free to reject any portion of a witness’s
testimony). The record supports that on the day the victim was to testify, the
defendant moved his vehicle from where it was initially parked in the court house
parking lot to a space next to her vehicle. Although the defendant argues that, a
few days later, the victim parked a few spaces away from him, the trial court
could have reasonably concluded that this did not affect the defendant’s
intention in parking next to her on the day she was to testify. Furthermore, the
defendant was convicted of violent crimes. Thus, we cannot conclude that the
trial court unsustainably exercised its discretion by denying the defendant bail
pending his appeal. See Moses, 115 N.H. at 672.

The defendant argues that “New Hampshire law favors bail pending
appeal.” However, the cases he relies upon were decided under a prior statute,
which provided that, generally, bail would be granted unless there was “a
substantial risk that the person will not appear . . . , or that the person is likely
to commit a serious crime, intimidate witnesses or otherwise interfere with the
administration of justice.” State v. Marini, 117 N.H. 71, 73 (1977); see State v.
Seeley, 116 N.H. 57, 57 (1976). The current statute is much more restrictive
regarding the circumstances under which release pending appeal is allowed.

The defendant argues that the fact that he abided by his bail conditions
prior to his conviction meets “the standard of clear and convincing evidence that
he should be afforded bail pending his appeal.” However, he does not cite, nor
are we aware of, any authority for this proposition. The defendant argues that
the denial of bail may render his appeal meaningless because “[w]hatever the
outcome of [the] appeal is, [he] will likely have served half or more of his sentence
by the time a decision i[s] rendered.” However, the length of the sentence is only
one factor that the trial court must consider. See Blum, 132 N.H. at 401; cf.
State v. Gross, 116 N.H. 527, 527-28 (1976) (decided under prior statute and
reversing denial of bail pending appeal when defendant was sentenced to three
months’ confinement for violating injunction prohibiting entry into Seabrook
Nuclear Power Plant and was New Hampshire bar member, was regularly
employed by New Hampshire Legal Assistance, had no criminal record, and was
not affiliated with organization opposing construction of nuclear power plant).

To the extent that the defendant argues that the trial court’s order does not
sufficiently articulate the reasons for its denial, we conclude that this issue is not
preserved for our review. The trial court must have had the opportunity to
consider any issues asserted by the appellant on appeal; thus, to satisfy this
preservation requirement, any issues which could not have been presented to the
trial court prior to its decision must be presented to it in a motion for
reconsideration. Super. Ct. R. Crim. 59-A(1); see N.H. Dep’t of Corrections v.
Butland, 147 N.H. 676, 679 (2002). The record does not reflect that the

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defendant apprised the trial court that he considered the explanation of its
reasons for denial insufficient, either in connection with the trial court’s initial
denial of his request for bail following the verdict or its denial of his subsequent
motion for bail.

Affirmed.

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

Eileen Fox,
Clerk

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