State of New Hampshire v. John Edward Barbuto

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0631, State of New Hampshire v. John
Edward Barbuto, the court on September 17, 2018, issued the
following order:

The State’s motion to strike all documents attached to the defendant’s brief
that were not admitted at trial by the trial court is granted.

Having considered the briefs and those portions of the record properly
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). We affirm. The defendant, John Edward Barbuto,
appeals his conviction, following a bench trial in the Circuit Court (Gordon, J.),
on a charge of driving under the influence. See RSA 265-A:2 (2014). We
construe his brief to contend that: (1) the evidence was insufficient to convict
him; (2) the trial court erred by considering his refusal to submit to a chemical
breath test; (3) he was injured during his arrest; and (4) his attorney was
ineffective.

We first address whether the evidence was sufficient to support the
defendant’s conviction. We assume, without deciding, that this issue is
preserved. 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 from it in the light
most favorable to the State. State v. Sanborn, 168 N.H. 400, 412 (2015). The
defendant bears the burden of demonstrating that the evidence was insufficient
to prove guilt. Id. We examine each evidentiary item in the context of all the
evidence, not in isolation. Id. at 413. Further, the trier of fact 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.
Because a challenge to the sufficiency of the evidence raises a claim of legal error,
our standard of review is de novo. State v. Cable, 168 N.H. 673, 677 (2016).

In this case, the state trooper who arrested the defendant testified that: (1)
he smelled alcohol on the defendant’s breath; (2) the defendant told him that he
put a cough drop into his mouth to mask the smell of the alcohol; (3) the
defendant’s eyes were glassy and bloodshot; (4) the defendant was slurring his
words; (5) the defendant’s performance on three standardized and two non-
standardized field sobriety tests indicated that he was impaired; (6) a drink
containing alcohol and ice was on the front passenger seat, and the defendant
said that he had moved it from the center console so the trooper would not see it;
and (7) the defendant refused the trooper’s request to take a chemical breath
test, stating, “Why am I going to do this to help you out?”

Although the defendant provided contradictory and explanatory testimony,
the trial court was free to believe the trooper. See State v. Saunders, 164 N.H.
342, 356 (2012) (stating that we defer to trial court’s credibility determinations).
On this record, we conclude that the evidence, viewed in the light most favorable
to the State, was sufficient to support the trial court’s determination that the
defendant was driving under the influence. See Sanborn, 168 N.H. at 412. To
the extent that the defendant argues that he was injured during the arrest, he
has not established why that fact is material to whether he was driving under the
influence. To the extent that the defendant argues that the trial court erred by
considering his refusal to submit to a breath test, RSA 265-A:10 (2014)
authorizes the trial court to do so.

To the extent that the defendant argues that the fact that the trooper put
the wrong year on a form called into question the trooper’s judgment, we decline
to address this argument because the defendant did not raise it in the trial court.
See State v. Brum, 155 N.H. 408, 417 (2007). Nor can we say, after reviewing the
record, that the argument raises a plain error affecting the defendant’s
substantial rights. See Sup.Ct. R. 16-A.

To the extent that the defendant argues that his trial counsel was
ineffective, we have been directed to no part of the record that sets forth whether
or not trial counsel’s challenged conduct was part of a reasonable trial strategy;
accordingly, we decline to address this argument. See State v. Thompson, 161
N.H. 507, 527 (2011) (stating direct appellate review of ineffective assistance of
counsel claim permitted only in extraordinary case where factual basis of claim
appears indisputably on trial record). This ruling is without prejudice to any
proper collateral proceeding. See id.

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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