State of New Hampshire v. Bryan Clickner

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0682, State of New Hampshire v. Bryan
Clickner, the court on September 12, 2019, issued the following
order:

Having considered the opening and reply briefs filed by the defendant,
Bryan Clickner, the brief filed by the State, and the record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). The defendant appeals his conviction, following a bench trial in
Circuit Court (Rappa, J.), on one count of simple assault. We affirm.

The relevant facts follow. The defendant is an attorney whose primary
practice is bankruptcy law. The victim and her husband retained the
defendant to file a bankruptcy proceeding on their behalf and, thereafter, to file
an adversary action against a creditor for violating the automatic stay and
discharge protection of the bankruptcy court. The defendant represented the
victim and her husband in the adversary action on a contingency fee basis.

On the day in question, the defendant met the victim and her husband at
a local fast food restaurant. According to the defendant, he gave the victim a
check made payable to her and asked her to endorse the check and return it to
him so that he could deposit it in his trust account. When the victim refused
to do so, the defendant was heard shouting at the victim to “give [him his]
check back.” When she continued to refuse to relinquish the check, the
defendant placed his hands on her. According to the defendant, he merely
reached for her hand and held on to it. According to an eyewitness and the
victim’s husband, at a minimum, the defendant firmly grasped the victim’s
arm. The eyewitness testified that she heard the victim repeatedly ask the
defendant to “[p]lease let go.” The eyewitness testified that she asked
restaurant staff to call the police. She described the victim as sobbing and
visibly upset. The responding officer testified that the victim’s face was red,
that she was crying and shaking, and that she had several marks on her neck
and a scratch on her arm.

At the scene of the crime, the victim spoke to a police officer, and her
conversation was recorded by the officer’s body camcorder. The video of the
interview was not preserved, however. During the trial, the defendant moved to
dismiss the charge based upon the State’s failure to preserve the recording.
The trial court declined to do so. However, the court granted the defendant’s
alternative request for relief, which was to exclude the victim’s testimony. The
court stated that it did not consider the victim’s testimony in its decision. The
State did not object to the trial court’s exclusion of the victim’s testimony.

The defendant first contests the trial court’s determination that his
conduct was not justified under RSA 627:8 (2016), which provides, in pertinent
part: “A person is justified in using force upon another when and to the extent
that he reasonably believes it necessary to prevent what is or reasonably
appears to be an unlawful taking of his property, or criminal mischief, or to
retake his property immediately following its taking . . . .” The trial court found
that the defendant’s use of force was not justified because “[t]here were several
options available to the Defendant, . . . that would have been far superior to
physically assaulting his client.” The defendant contends that in so finding,
the trial court erred.

In effect, the defendant contends that the evidence was insufficient for
the trier of fact (here, the trial court) to have found that the State met its
burden of disproving his justification defense beyond a reasonable doubt. See
RSA 627:1 (2016) (providing that conduct that is justifiable under RSA chapter
627 “constitutes a defense to any offense”); RSA 626:7, I(a) (2016) (providing
that the State must disprove defenses beyond a reasonable doubt); see also
State v. Etienne, 163 N.H. 57, 81 (2011) (explaining that the legislature has
determined that defenses set forth in RSA chapter 627 constitute “pure
defenses, and, thus, negating such a defense becomes an element of the
offense that the State must prove beyond a reasonable doubt”). 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, 603-04 (2015). The trier of fact may
draw reasonable inferences from facts proved as well as from facts found as the
result of other inferences, provided they can be reasonably drawn therefrom.
Id. We examine each evidentiary item in the context of all the evidence, and
not in isolation. State v. Craig, 167 N.H. 361, 369 (2015). Because a challenge
to the sufficiency of the evidence raises a claim of legal error, our standard of
review is de novo. Id. at 370. When, as in this case, the proof involves both
direct and circumstantial evidence, a sufficiency challenge must fail if the
evidence, including the trier of fact’s credibility determinations, is such that a
rational trier of fact could find guilt beyond a reasonable doubt, even if the
evidence would support a rational conclusion other than guilt if the trier of fact
had resolved credibility issues differently. State v. Saunders, 164 N.H. 342,
351 (2012).

To disprove the defendant’s justification defense, the State had to prove,
beyond a reasonable doubt, that the defendant was not justified “in using
force” upon the victim because his belief that such force was necessary to
retake the check from the victim was unreasonable. See RSA 627:8; cf. State v.

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West, 167 N.H. 465, 470-71 (2017) (ruling that the trial court’s jury
instructions correctly explained “the requirement in RSA 627:7 that one using
force must reasonably believe the use of force is necessary to prevent or
terminate a criminal trespass”). “The operative word is ‘reasonable,’ which is
determined by an objective standard. A belief which is unreasonable, even
though honest, will not support the defense.” State v. Leaf, 137 N.H. 97, 99
(1993) (construing comparable language in statute justifying physical force by
persons with special responsibilities). “In other words, it is not enough for the
defendant to say, ‘I believed it reasonably necessary to use the force I used’; it
is for the [trier of fact] to determine whether the belief, even though honest, was
in fact reasonable under all the circumstances.” Id.

Viewing the evidence and all reasonable inferences drawn therefrom in
the light most favorable to the State, we conclude that there was sufficient
evidence for a rational trier of fact to find, beyond a reasonable doubt, that the
defendant’s belief that the force he used to retake the check from the victim
was unreasonable. The evidence before the trial court was that, to retake the
check, the defendant, who was the victim’s attorney, grabbed her arm so firmly
that an eyewitness thought it necessary to call the police. The force used was
such that the victim was described as distraught and shaking. Police observed
several marks on her neck and a scratch on her arm. From the defendant’s
own admission that he did not intend to hurt the victim, the trial court could
have reasonably concluded “that the defendant himself did not reasonably
believe that the force used was necessary.” Id. Viewing the evidence and all
reasonable inferences drawn therefrom in the light most favorable to the State,
we conclude that a rational trier of fact could have found, beyond a reasonable
doubt, that the defendant’s belief that the force he used was necessary was an
unreasonable belief.

To the extent that the defendant asserts that the trial court’s narrative
order is deficient because it “made no findings or mention as to whether the
State had addressed its subsequent burden of proof arising from the proffered
justification defense,” we conclude that this argument is not developed
sufficiently for our review. (Emphasis omitted.) See State v. Blackmer, 149
N.H. 47, 49 (2003).

The defendant next challenges the trial court’s decision to deny his
motion to dismiss, and, instead, to grant his request to exclude the victim’s
testimony. Before addressing the defendant’s appellate arguments on this
issue, we note that, like the trial court, we have not considered the victim’s
testimony in our decision. Accordingly, the defendant’s motion to strike the
State’s brief because the State summarized the victim’s testimony therein is
denied because that motion is moot.

In cases involving lost evidence, once a defendant demonstrates that the
State has lost or destroyed apparently relevant evidence, the State has the

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burden of demonstrating that it acted both with good faith, in the sense that it
was free of any intent to prejudice the defendant, and without culpable
negligence. State v. Giordano, 138 N.H. 90, 94 (1993). If the State carries that
burden, the defendant is not entitled to relief unless he demonstrates that the
lost evidence was material, to the degree that its introduction would probably
have led to a verdict of not guilty, and that its loss prejudiced him by
precluding the introduction of evidence that would probably have led to a
verdict in his favor. Id.

The trial court applied a different legal paradigm, however. It applied the
law that governs instances when the State has withheld exculpatory evidence.
When a defendant argues that the State denied him access to exculpatory
evidence, he has the initial burden to show that the evidence that was withheld
was favorable; if he meets that burden, he must then show that the State
knowingly withheld the evidence. State v. Etienne, 163 N.H. 57, 88 (2011). If
the defendant shows that the State knowingly withheld the evidence, there is a
presumption that the evidence withheld was material, and the burden shifts to
the State to prove, beyond a reasonable doubt, that the undisclosed evidence
would not have affected the verdict. Id. at 88-89. If, however, the defendant
fails to show that the State knowingly withheld the evidence, then the
presumption of materiality does not arise, and the defendant retains the
burden to prove materiality. Id. at 89. Doing so requires the defendant to
demonstrate a reasonable probability that, had the evidence been disclosed to
the defense, the result in the case would have been different. Id. Applying this
framework, the trial court denied the defendant’s motion to dismiss, finding
that: (1) the defendant “failed to show in the first instance that there was
exculpatory evidence on the lost video”; (2) the defendant “failed to prove that
anything on the video was material to his defense”; and (3) the defendant “did
not show that the State knowingly lost the evidence.”

Ordinarily, we would remand for the trial court to apply the correct law
to the defendant’s motion to dismiss. We elect not to do so in this case
because the parties have briefed the correct law and, based upon the record
submitted on appeal, we conclude that the trial court reached the correct
result as a matter of law. See State v. Nightingale, 160 N.H. 569, 575-76
(2010) (upholding trial court’s decision when it reached the correct result on
mistaken grounds because “valid alternative grounds support [its] decision”
(quotation omitted)); cf. State v. Sawyer, 145 N.H. 704, 706 (2001) (explaining
that we would decide, in the first instance, whether the defendant’s conduct
constituted consent for the police to enter her apartment because “the parties
fully litigated the issue below, and because the essential facts are not in
dispute”); Appeal of Cote, 139 N.H. 575, 580 (1995) (determining that, because
we had available to us the same documentary record that had been available to
the administrative agency, we would address a purely legal question in the first
instance).

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 We first address whether the State met its burden of showing that it
acted in good faith, meaning without the intent to prejudice the defendant.
Giordano, 138 N.H. at 94. The trial court specifically found, at trial, that the
officer did not act with “any malice” when she failed to preserve the video.
“This is essentially a finding that the [officer] acted in good faith.” State v.
Bruce, 147 N.H. 37, 40 (2001). That finding is supported by the record.

The officer testified that when an officer returns to the police station after
having captured a video on the body camcorder, the video is automatically
uploaded to a website, where it is stored. If an officer wants to “save” the video
for evidentiary purposes, the officer must do so, manually, via the website. If
the video is not marked to be “saved” for evidentiary purposes, it is
automatically deleted from the website after 90 days. The officer testified that
she forgot to save the video of the victim’s interview. She testified that because
she forgot to save the video, it was automatically deleted. There is no evidence
in the record that the officer at issue acted with any intent to prejudice the
defendant.

We next address whether the State met its burden of showing that it did
not act with culpable negligence. See Giordano, 138 N.H. at 94. “Culpable
negligence is something more than ordinary negligence, mere neglect, or the
failure to use ordinary care — it is negligence that is censorious, faulty, or
blamable.” Giordano, 138 N.H. at 95. “Although the trial court made no
express finding on the issue of culpable negligence, the evidentiary record of
what is known about the loss of evidence is sufficient to indicate that there was
none.” State v. Dukette, 127 N.H. 540, 547 (1985).

Here, as the trial court found, and as the record supports, the officer at
issue made “a rookie mistake.” The officer testified that, when the incident
occurred, she was a recent graduate of the police academy, having graduated
only a month prior to the incident. She merely forgot to save the video on the
website. Such a mistake does not rise to the level of culpable negligence, as a
matter of law. See Bruce, 147 N.H. at 40-41 (deciding that the unexplained
loss by the police of certain photographs, “without more, does not amount to
culpable negligence”); Giordano, 138 N.H. at 95 (concluding that the State was
not culpably negligent in losing photographs where the officer who took them
delivered them to the evidence room and then, several months later, was
unable to locate them); State v. Smagula, 133 N.H. 600, 603-04 (1990)
(determining that State’s destruction of photographic array and detective’s
failure to record which photographs comprised the array did not constitute
culpable negligence where array was disassembled in accordance with
departmental policy and detective’s actions failed “to show more than mere
negligence”).

Because we conclude that the State has carried its initial burden, to
prevail, the defendant must show “that the loss of evidence prejudiced him and

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that the evidence was material in proving his innocence.” Bruce, 147 N.H. at
41. Assuming without deciding that the defendant has shown that the lost
video was material in proving his innocence, he has failed to demonstrate that
the loss of the video prejudiced him by precluding the introduction of evidence
that would probably have led to a verdict in his favor. Giordano, 138 N.H. at
94.

“The crucial point in evaluating the prejudice suffered by a defendant is
whether the loss of physical evidence eliminates whatever exculpatory value
this evidence might have had.” Bruce, 147 N.H. at 41 (quotation omitted). To
prevail, the defendant must rely upon “[m]ore than mere speculation.”
Giordano, 138 N.H. at 96. In Giordano, we concluded that misplacing
photographs did not prejudice the defendant because other evidence provided
the same facts as the photographs would have supplied. Bruce, 147 N.H. at
41; see Giordano, 138 N.H. at 95-96. We reached a similar conclusion in
Bruce. Bruce, 147 N.H. at 41. In this case, the State offered testimony from
the victim’s husband, the police officer who responded to the scene, and an
eyewitness to establish what occurred. This evidence “obviated any prejudice
to the defendant” from the loss of the video of the victim’s statement. Id.

Moreover, to the extent that the defendant argues that the video’s loss
was prejudicial because he could not use it to his benefit when cross-
examining the victim, we observe that, at his request and without objection
from the State, the trial court excluded the victim’s testimony. Before doing so,
the trial court explained that excluding the victim’s testimony “eliminates
[defense counsel’s] opportunity to cross-examine her, which could be much
more powerful than a video that may or may not confirm what she’s saying
today.” Defense counsel stated: “I understand that. I understand the risk,
and I’ve spoken with my client about it. And he wants me to proceed with what
I think is best. And I think excluding her testimony in its entirety, stricken
from the record, is the fair remedy here.” Because the victim’s testimony was
excluded in its entirety, her credibility was not an issue, and, thus, we
conclude, as a matter of law, that the unavailability of the video to cross-
examine the victim was not prejudicial to the defendant.

Alternatively, the defendant argues that “[t]he current standard of
culpable negligence is largely unworkable and almost impossible for an
accused to satisfy,” and that “[r]equiring a defendant to somehow demonstrate
the nature and potential effect of the loss of [videotaped] evidence presents an
all but impossible burden.” To the extent that the defendant intends this
argument as an invitation to overrule Dukette and its progeny, we decline his
invitation. We have identified four factors to be considered in determining
whether precedent should be overruled. State v. Quintero, 162 N.H. 526, 532-
33 (2011). The defendant has failed to brief those factors, and, therefore, has
not persuaded us to reconsider our precedent. See State v. Smith, 166 N.H.
40, 45 (2017). We have reviewed the defendant’s remaining arguments and

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conclude that they do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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