State of New Hampshire v. Dennis Allen, Jr.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0211, State of New Hampshire v. Dennis
Allen, Jr., the court on June 19, 2020, 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, Dennis Allen, Jr., appeals his conviction, following a jury
trial, of operating a motor vehicle after being certified as an habitual offender.
See RSA 262:23 (Supp. 2019). He argues that the Superior Court (Schulman,
J.) erred in: (1) not dismissing the case for insufficient evidence; and
(2) admitting his motor vehicle records into evidence.

We first address the defendant’s challenge to the sufficiency of the
evidence. “To prevail upon a challenge to the sufficiency of the evidence, the
defendant must prove that no rational trier of fact, viewing all the evidence and
all reasonable inferences from it in the light most favorable to the State, could
have found guilt beyond a reasonable doubt.” State v. Vincelette, 172 N.H.
350, 354 (2019).

The record shows that on October 24, 2017, a trooper served the
defendant at his home with an order to appear for a hearing on November 17,
2017, to determine whether he would be certified as an habitual offender. The
order informed the defendant that failure to appear for this hearing “shall
result in the revocation of your driver license and/or driving privileges,” and,
upon such default, shall “result in your being certified as an Habitual
Offender.” On November 16, 2017, the day before the hearing, the defendant
contacted the Bureau of Hearings (bureau) and requested a continuance. The
bureau e-mailed the defendant that a request for a continuance must be in
writing and must include a new date and time when he would be available to
appear. That evening, the defendant replied by e-mail, stating that he did not
have a date in mind. On November 29, 2017, the bureau e-mailed the
defendant, “Please provide a new date and time you can appear, otherwise we
have to default you.” The defendant did not respond.

On March 1, 2018, the bureau mailed the defendant an order notifying
him that, based upon his failure to appear for a hearing, he had been certified
as an habitual offender effective March 11, 2018. On March 6, 2018, the
Division of Motor Vehicles mailed the defendant a notice of suspension,
notifying him that his driving privileges had been suspended effective March
11, 2018, as a result of an habitual offender certification hearing. Although
the bureau’s order was returned, there was no evidence that the DMV notice
was returned, and both documents were mailed to the defendant at his correct
home address.

On April 11, 2018, one month after the defendant’s certification as an
habitual offender became effective, a trooper stopped him for driving 80 miles
per hour in a 50-mile-per-hour zone. The trooper first activated his cruiser’s
emergency lights, but when the defendant did not pull over promptly, he
activated his siren. When the trooper asked the defendant why he did not pull
over right away, the defendant stated that he had been wearing earbuds. After
checking the defendant’s license, the trooper learned that he had been certified
as an habitual offender and arrested him.

Later that day, after being released, the defendant e-mailed the bureau in
response to its November 29, 2017 email stating, “I only rec[ei]ved this email
today.” The defendant further stated that he “tried to call[ ] about a month
ago,” and asked the bureau to “kindly give [him] a call.” On April 13, 2018,
having received no response, the defendant e-mailed the bureau stating, “My
mail box has been down for a month since the snow storm. I didn’t expect mail
[and] didn’t think to fix [i]t.”

The defendant argues that the evidence was insufficient to prove that he
knew that he was certified an habitual offender on April 11, 2018. Proof of a
defendant’s state of mind often depends entirely upon circumstantial evidence.
State v. Vincelette, 172 N.H. at 354. “When the evidence as to an element of
proof is solely circumstantial, it must exclude all reasonable conclusions except
guilt.” Id. “However, the proper analysis is not whether every possible
conclusion consistent with innocence has been excluded, but, rather, whether
all reasonable conclusions based upon the evidence have been excluded.” Id.
We assume, without deciding, that the evidence of the defendant’s knowledge
was solely circumstantial.

The jury is responsible for evaluating witness credibility, resolving
conflicts in the testimony, and determining the weight to be given to the
evidence. State v. Alwardt, 164 N.H. 52, 57 (2012). In this case, the jury could
have reasonably concluded that the defendant received and read the bureau’s
November 29, 2017 e-mail shortly after it was delivered, not five months later,
on the day he was arrested, and that he received and read the DMV’s March 6,
2018 notice that he had been certified as an habitual defender shortly after it
was mailed. The jury also could have reasonably concluded that the
defendant’s failure to pull over promptly on April 11, 2018, evidenced his
consciousness of guilt, rather than distraction caused by wearing earbuds.
See State v. Etienne, 163 N.H. 57, 85-86 (2011) (flight and false exculpatory
statements are evidence of consciousness of guilt). Assuming that the jury

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resolved these credibility issues in favor of the State, see State v. Boggs, 171
N.H. 115, 125 (2018), we conclude that the defendant’s alternative
hypothesis—that he never knew about his habitual offender status prior to
April 11, 2018—was not reasonable, see Vincelette, 172 N.H. at 356.

We next address the defendant’s argument that the trial court erred in
admitting his motor vehicle records. We review the trial court’s evidentiary
rulings under our unsustainable exercise of discretion standard. State v.
Colbath, 171 N.H. 626, 632 (2019). Under this standard, the defendant must
demonstrate that the trial court’s decision was clearly untenable or
unreasonable to the prejudice of his case. Id. The trial court found that the
motor vehicle records were admissible because the defendant’s e-mail
correspondence with the bureau showed that he was challenging the fairness of
the qualifying convictions without identifying the convictions. Moreover, the
record shows that the defendant did not agree to the State’s proposal to redact
references to the fairness issue in the e-mails. Based upon this record, we
conclude that the defendant has failed to demonstrate that the trial court’s
decision was clearly untenable or unreasonable to the prejudice of his case.
See id.

Affirmed.

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

Timothy A. Gudas,
Clerk

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