State of New Hampshire v. Jeremy Corning

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0284, State of New Hampshire v. Jeremy
Corning, the court on January 14, 2020, issued the following
order:

Having considered the brief filed by the defendant, Jeremy Corning, the
memorandum of law 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 for driving under the influence, a class B
misdemeanor offense, following his bench trial in Circuit Court (Spath, J.). See
RSA 265-A:2, I, :18, I(a) (2014). We affirm.

On appeal, the defendant first argues that the trial court erred by
denying his motion to dismiss the case “for lack of a complete record.” The
defendant observes that, after the first day of trial, the trial court informed the
parties that, because of an issue with the court’s audio recording equipment, “a
great deal of the arresting officer’s testimony was not recorded.” Thereafter, the
trial court held a status conference, and the trial was continued to another
day.

The defendant subsequently moved to dismiss the case for lack of a
record, asserting that “[w]ithout a complete record, an appeal would be
fruitless.” The trial court denied the motion on the ground that, because the
defendant did not request a record under RSA 599:1-c, I (2001), whether the
sound recording system malfunctioned was “not futile to the case.”

RSA 599:1-c, I, provides: “Any person charged with any violation or class
B misdemeanor may, at least 5 days prior to trial, request the [circuit] court
that a sound recording be kept of all proceedings in his trial. If such a request
is made, the [circuit] court shall make the sound recording at no cost to the
person requesting it.” Here, the defendant concedes that he did not request
that a sound recording be made. Under these circumstances, we conclude that
the trial court did not err by denying the defendant’s motion to dismiss.

Although the defendant argued in the trial court that the lack of a record
deprived him of due process, he has not briefed a due process argument on
appeal. Therefore, we deem that argument to be waived. See In re Estate of
King, 149 N.H. 226, 230 (2003).

The defendant next asserts that the trial court erred by denying his
motion to sequester the State’s expert witness. He argues that the trial court’s
ruling violates New Hampshire Rule of Evidence 615(a), which requires the
court to sequester a witness at a party’s request except under certain
circumstances such as that a party has shown that the witness’s presence is
“essential to presenting the party’s claim or defense.” N.H. R. Ev. 615(a)(3).

We are unable to review this issue substantively because we lack a
sufficient record. As the appealing party, the defendant had the burden of
providing this court with a record sufficient to decide his issues on appeal.
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). The defendant
argues that he should be relieved of this burden. He asserts that the failure to
preserve the record “was . . . not [his] fault.”

To the contrary, as one charged with a class B misdemeanor, the
defendant was required by statute to submit a request, at least five days before
trial, that a sound recording of the trial be made. See RSA 599:1-c (2001). By
his own admission, he failed to make that request. Moreover, Supreme Court
Rule 15 makes clear that the appealing party is responsible for having a
transcript prepared, if that party believes that a transcript is necessary for the
appeal. See Sup. Ct. R. 15(3) (“If the moving party intends to argue in the
supreme court that a finding or conclusion is unsupported by the evidence or
is contrary to the evidence, the moving party shall include in the record a
transcript of all evidence relevant to such finding or conclusion.”). In this case,
the defendant failed to have any portions of the trial transcribed, including any
proceedings related to his motion to sequester.

Under these circumstances, therefore, we conclude that the defendant
was not relieved of his burden of providing this court with a record sufficient to
decide his appeal issues. Without a transcript, we have no way of reviewing
the trial court’s denial of the defendant’s motion to sequester the State’s expert
witness, and, therefore, must uphold that decision. See State v. Brenes, 151
N.H. 11, 11 (2004) (affirming defendant’s conviction where we were unable to
review his appellate arguments because “there is neither a transcript of his
trial nor an adequate transcript substitute”).

Affirmed.

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

Timothy A. Gudas,
Clerk

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