State of New Hampshire v. Jack B. Flanagan, III

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0168, State of New Hampshire v. Jack B.
Flanagan, III, the court on October 17, 2018, issued the
following order:

Having considered the defendant’s brief, the State’s 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, Jack B. Flanagan, III, appeals his conviction, following a
trial in the Circuit Court (Crocker, J.), on a charge of violating RSA 265:22
(2014) by crossing a solid center line of a road. He argues that, in finding that
there was no “emergency” that would have justified his action in crossing the
center line, see RSA 265:22, I(a) (allowing a driver to cross a solid center line
“[i]n an emergency”), the trial court erred by: (1) not finding that he reasonably
believed that there was an emergency that justified his action; (2) not ruling
that the term “emergency” is unconstitutionally vague; and (3) allegedly ruling
that the existence of an emergency was the only circumstance that would have
justified his action. He further argues that the trial court erred by: (1) allegedly
not considering, or allowing him to raise, defenses under RSA 265:16 (2014)
and RSA 265:37-a (Supp. 2017); (2) not finding that he met the requirements of
RSA 265:16 and RSA 265:37-a as a matter of law; and (3) violating his
constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, including his privilege against self-
incrimination and his rights to due process, equal protection, and a fair trial.

It is a longstanding rule that parties may not have review of issues that
they did not raise in the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H.
248, 250 (2004). It is the appealing party’s burden to provide this court with a
record sufficient to decide the issues being raised, and to demonstrate that
those issues were also raised in the trial court. Id. The trial court must have
had the opportunity to consider any issues raised 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. N.H. R. Crim. P. 43(a); see N.H. Dep’t of Corrections v.
Butland, 147 N.H. 676, 679 (2002). These rules are not relaxed for self-
represented parties. See In the Matter of Birmingham & Birmingham, 154 N.H.
51, 56-57 (2006).

The defendant has not provided a trial transcript. Under these
circumstances, we assume that a transcript would support the trial court’s
decision, and review its decision for errors of law only. See Bean, 151 N.H. at
250. The portions of the record that the defendant has provided do not
establish that he raised any of the arguments that he now raises other than his
arguments that the trial court erred by not considering RSA 265:37-a, and by
not finding that, as a matter of law, his conduct was justified by RSA 265:37-a.
Accordingly, we decline to address the defendant’s arguments other than the
arguments he raised at trial concerning RSA 265:37-a. Bean, 151 N.H. at 250.

In his motion for reconsideration, the defendant argued that he
reasonably believed at the time that he crossed the solid center line and passed
the police officer in front of him that the officer was in the process of making a
traffic stop because the officer had activated his emergency lights and had
pulled to the right of the roadway. Thus, he contended that under RSA
265:37-a, I(d), he was obligated to “[g]ive [the officer] wide berth,” and that his
action in crossing over the center line to pass the officer was justified. In
denying the motion, the trial court explained that it had taken “into
consideration all testimony and [had] found the defendant’s recitation of the
facts implausible.”

Under these circumstances, the trial court did not fail to consider
whether the defendant’s conduct was permissible under RSA 265:37-a.
Rather, it considered the argument, and rejected it because it did not find the
factual basis for the argument to be credible. Nor was it compelled to find that
the defendant’s conduct was justified under RSA 265:37-a. To the contrary, it
was within the province of the trial court to evaluate the defendant’s credibility
and to find his account of the facts, including his claim that he thought the
officer was in the process of making a traffic stop when he decided to pass the
officer, “implausible.” State v. Carr, 167 N.H. 264, 275 (2015); State v. Dodds, 159 N.H. 239, 247 (2009) (trier of fact is in best position to measure
persuasiveness and credibility of evidence and is not required to believe even
uncontested evidence).

Affirmed.

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

Eileen Fox,
Clerk

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