State of New Hampshire v. Brian K. Perry

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0399, State of New Hampshire v. Brian K.
Perry, the court on September 16, 2020, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, Brian K. Perry, appeals his convictions, following a jury
trial in Superior Court (Bornstein, J.), on two counts of operating a vehicle after
having been certified as an habitual offender. See RSA 262:23 (Supp. 2019).
We affirm.

The jury could have found the following facts. In June 2017, the
defendant was certified as an habitual offender and, as such, was barred from
driving a motor vehicle. The defendant knew of his status. In the afternoon of
June 3, a Berlin police officer, who is familiar with the defendant and with his
girlfriend, saw the defendant drive a bright orange “Chevy Aveo” owned by the
defendant’s girlfriend. The defendant drove the vehicle in one direction while
the officer drove in the other direction. The officer looked right at the
defendant and testified that there was “no question in his mind” that the
defendant was driving. The defendant was wearing a mesh baseball cap, which
the officer had observed him wear on more than one occasion. The officer
knew that the defendant was certified as an habitual offender and that he was,
therefore, not authorized to drive. Accordingly, the officer called the Berlin
police department and relayed the information about the defendant driving.

At around midnight on June 9, the officer again encountered the vehicle
owned by the defendant’s girlfriend. This time, he saw the vehicle traveling
west on Green Street in Berlin. Although the officer could not see the face of
the driver, he believed that the driver was the defendant because he is familiar
with the defendant and because the driver wore the mesh baseball cap that the
officer had observed the defendant wear previously.

The officer saw the vehicle turn into the parking lot of a local
convenience store. By the time the officer arrived on the scene, the vehicle was
no longer running, its lights were off, and the vehicle was empty. A passerby
told the officer that the vehicle’s driver had walked up Hillside Avenue. The
officer placed a “boot” on the vehicle and began searching for the defendant,
but was unsuccessful.
 The next morning, the officer drove to the defendant’s home and saw the
orange Chevy Aveo parked in the home’s driveway. The officer spoke with the
defendant’s girlfriend, who advised that the defendant was not home, and that
she had driven the vehicle the previous night. When asked if she had worn a
hat while driving, the defendant’s girlfriend said that she “had a hood on.” The
officer obtained a warrant for the defendant’s arrest, which the officer executed
in July 2018.

On appeal, the defendant first argues that the trial court erred when it
overruled his objection to the prosecutor’s closing argument. The arresting
officer testified that he initiated a call for services related to his pursuit of the
vehicle “just before midnight” on June 9, 2017. When asked whether he
verified to whom the vehicle belonged, the officer was shown “a call log for that
night,” and, after his recollection was refreshed, testified that the vehicle’s
owner was the defendant’s girlfriend and was the same vehicle he had seen the
defendant drive on June 3.

In his closing argument, the prosecutor stated that the jury could “verify”
the arresting officer’s testimony regarding the events of June 9 and June 10, by
“go[ing] to the call log.” The prosecutor told the jury that the arresting officer
testified, “after referencing his report and the call log[,] [t]hat at 2358, which is
11:58 p.m., on June 9th, he saw the suspicious vehicle.” Defense counsel
objected that the prosecutor was “reading verbatim from the dispatch log,”
which had not been entered into evidence. The prosecutor countered that he
was merely “summarizing testimony.” The trial court overruled the defendant’s
objection.

The defendant contends that “the prosecutor improperly bolstered the
testimony of a police officer by referencing a document that was not admitted
into evidence.” He argues that the prosecutor’s improper closing argument
requires reversal of his conviction.

Under New Hampshire law, “[a] prosecutor has great latitude in closing
argument to both summarize and discuss the evidence presented to the jury
and to urge the jury to draw inferences of guilt from the evidence.” State v.
Addison, 165 N.H. 381, 547 (2013) (quotation omitted). In deciding whether a
prosecutor’s closing argument requires reversal, we first determine whether the
challenged remarks amounted to improper advocacy. Id. To assess whether
the State advanced an improper argument, we consider the challenged remarks
in the context of the case. Id. at 548. We must be mindful that “[a]lthough
prosecutors may present their cases zealously, this latitude has its limits.” Id.
“Ultimately, determining the propriety of a prosecutor’s comments involves
balancing a prosecutor’s broad license to fashion argument with the need to
ensure that a defendant’s rights are not compromised in the process.” Id.
(quotation omitted).

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 If we conclude that the prosecutor’s argument amounted to improper
advocacy, we then determine whether the error requires reversal of the verdict.
Id. at 547. Making that determination entails balancing: (1) whether the
prosecutor’s misconduct was isolated or deliberate; (2) whether the trial court
gave a strong and explicit cautionary instruction; and (3) whether any
prejudice surviving the court’s instruction likely could have affected the
outcome of the case. Id. at 547-48. We will not overturn a trial court’s ruling
as to whether improper prosecutorial remarks warrant a mistrial or other
remedial action absent an unsustainable exercise of discretion. Id. at 549.

The defendant likens this case to State v. Lake, 125 N.H. 820 (1984). In
that case, defense counsel argued that the arresting officer “exaggerated his
observations to secure a conviction against the defendant” and that “when it
came to recollecting evidence that might be favorable to the defendant, . . . the
officer’s memory became ‘fuzzy.’” Lake, 125 N.H. at 821. To counter that
argument, the prosecutor stated in his closing argument that the officer’s
recollection of the evidence was “very precise because he reread his report
before testifying.” Id. at 822 (quotation and ellipsis omitted). We observed
that, in fact, “no police report was mentioned during trial,” and held that the
prosecutor’s comment was not a reasonable inference that could be drawn from
the facts proved. Id.

In the instant case, by contrast, the arresting officer had been shown the
call log during his testimony to refresh his recollection. Although the log was
not itself entered into evidence, the jury was aware that it existed and that it
was used to refresh the officer’s recollection. Moreover, even if we assume that
the prosecutor’s comment was improper, it was isolated and there is no
evidence that it was deliberately made. Under these circumstances, we
conclude that the prosecutor’s comment, even if improper, does not require
reversal of the defendant’s convictions.

The defendant next asserts that the trial court erred when it admitted a
certified record of his girlfriend’s convictions for theft by deception into
evidence only for impeachment purposes. Before trial, once notified that the
defendant intended to call his girlfriend as a witness, the State moved in limine
under New Hampshire Rule of Evidence 609(a)(2) to admit into evidence for
impeachment purposes only her two March 2019 convictions for theft by
deception. The defendant did not object to the motion, and the trial court
granted it.

On the first day of trial, the trial court discussed the motion with
counsel:

THE COURT: Before I adjourn to do that, the State had also
filed a motion to impeach a witness with a prior criminal
conviction. Will the Defense be objecting to that if the

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 Defense calls this witness?

[DEFENSE COUNSEL]: I don’t believe so. Of course, the copy looks
like a certified copy. If the Court is satisfied this is a certified copy
of the conviction, I don’t see any basis to be able to object, so.

When the prosecutor confirmed that the exhibit constituted a certified
copy of the convictions, defense counsel stated that he did not “have any
reason to believe” that the exhibit was not the official record and that he
did not anticipate objecting to it.

The prosecutor subsequently questioned the defendant’s girlfriend about
the convictions, without objection by the defendant. When the prosecutor
sought to enter the certified record of the convictions into evidence as a full
exhibit, defense counsel objected, stating that he did not realize that the
exhibit would be entered as a full exhibit. The trial court ruled that the exhibit
was admissible for impeachment purposes only. Accordingly, the court
instructed the jury before the defendant’s girlfriend left the witness stand that
the evidence of her convictions “for theft by deception . . . has been admitted
solely for the purposes of attacking [her] credibility” and “may not be
considered by you[ ] for any other purpose.” The court reiterated this
instruction when it gave the jury its final instructions, stating: “Now, evidence
has been introduced that [the defendant’s girlfriend] has previously been
convicted of two crimes. You may use a prior criminal conviction only in
deciding whether you believe a witness’s testimony. You must not consider the
prior convictions for any other purpose.”

Rule 609(a)(2) provides that, to “attack[ ] a witness’s character for
truthfulness by evidence of a criminal conviction” evidence of the conviction
“must be admitted if the court can readily determine that establishing the
elements of the crime required proving--or the witness’s admitting--a dishonest
act or false statement.” The defendant concedes that the convictions for theft
by deception include the requisite element of a dishonest act or false
statement. He also concedes that Rule 609(a)(2) “permitted the prosecutor to
use the prior convictions to impeach [the defendant’s girlfriend].” Further,
although the defendant maintains that the certified record of his girlfriend’s
convictions was admitted as “a full exhibit,” the trial court twice instructed the
jury that it could use the evidence of those convictions for impeachment
purposes only. Under those circumstances, the exhibit was not entered as a
“full exhibit,” but was entered with limitations.

The defendant argues that the record of his girlfriend’s convictions was
inadmissible because she admitted that she had been convicted of the two
offenses. He asserts that “[i]n light of this testimony, it was entirely
unnecessary for the prosecutor to introduce, as a full exhibit, the eight-page
record of these convictions.” He contends that when, as in this case, a witness

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has “fully and unqualifiedly admit[ted] the conviction, including the nature
thereof if inquired about, then the record [of the conviction] becomes
inadmissible.” (Quotation omitted.) The defendant also argues that the trial
court erred by allowing the prosecutor to elicit details about the convictions
during the defendant’s girlfriend’s testimony. He asserts that the trial court
should have limited the questioning “to the basic facts reflected on the face of
the judgment.” (Quotation omitted.)

We decline to address the merits of the defendant’s appellate arguments
because he did not preserve them for our review. As the appealing party, the
defendant has the burden of providing this court with a record that
demonstrates that he raised his appellate issues before the trial court. Bean v.
Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). In the trial court, the
defendant did not object when the prosecutor elicited details about the theft by
deception convictions from the defendant’s girlfriend. Moreover, although he
objected to the record of the convictions being entered as a full exhibit, he did
not do so on the ground that he now asserts on appeal -- that it was
inadmissible because his girlfriend admitted that she had been convicted of the
two crimes.

The defendant next asserts that the trial court erred by allowing the
State to cross-examine his girlfriend about her car’s owner’s manual. The
defendant’s girlfriend testified that it was she, and not the defendant, who
drove the vehicle on June 9, 2017. She testified that at some point during the
drive, her vehicle began to overheat. She testified that she believed that it was
overheating because the temperature gauge “was in the red.” The prosecutor
asked her whether she had ever read the owner’s manual for her vehicle, to
which she responded that she had not. Defense counsel objected on relevance
grounds. The prosecutor explained, “Well, it’s relevant because [the
defendant’s girlfriend] . . . claims that her vehicle overheated. I think at this
point, I [may] . . . inquire as to how exactly she came to that determination.”
The prosecutor further explained that, according to the owner’s manual, when
the temperature gauge is in the red zone, the vehicle is not overheating. The
trial court overruled the objection and allowed the questioning.

The defendant argues that in so doing, the trial court unsustainably
exercised its discretion. He asserts that “[w]hat mattered was whether [his
girlfriend] believed that her car was overheating,” and that impeaching her
testimony by referencing the owner’s manual was prejudicial because it
suggested to the jury that her testimony was not credible.

Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.H. R. Ev. 401.
“Whether evidence is relevant is a question for the trial court’s sound
discretion, and we will not overturn its determination absent an unsustainable

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exercise of discretion.” State v. Rice, 169 N.H. 783, 800 (2017) (quotation
omitted). “To show an unsustainable exercise of discretion, the defendant
must demonstrate that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case.” Id.

We conclude that the trial court did not unsustainably exercise its
discretion by allowing the State to question the defendant’s girlfriend about the
owner’s manual for her vehicle as a mode of impeaching her credibility.
Evidence that impeaches a witness’s credibility is relevant as a matter of law.
State v. Woolverton, 159 P.3d 985, 990 (Kan. 2007).

Finally, the defendant argues that the evidence was insufficient to
convict him of the charge alleging that he drove on June 9, 2017. 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. Saintil-Brown, 172 N.H. 110, 117 (2019). 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. Id. Because a challenge to the sufficiency of the evidence
raises a claim of legal error, our standard of review is de novo. Id. Because, in
this case, the defendant chose to present a case, we review the entire trial
record to determine the sufficiency of the evidence. Id.

The defendant has the burden of demonstrating that the evidence was
insufficient to prove guilt. Id. When the evidence as to one or more elements
of the charged offense is solely circumstantial, a defendant challenging
sufficiency must establish that the evidence does not exclude all reasonable
conclusions except guilt. Id. 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.
Even when the evidence as to one or more elements is solely circumstantial, we
still consider it in the light most favorable to the State, and we examine each
evidentiary item in the context of all of the evidence, not in isolation. Id. at
118.

The defendant concedes that, viewed in the light most favorable to the
State, the evidence established that: (1) he and his girlfriend lived together as
long-term partners; (2) the defendant drove his girlfriend’s car on June 3, 2017,
while wearing a mesh baseball hat; (3) someone other than his girlfriend drove
her car on June 9 while wearing a mesh baseball hat; (4) the person who drove

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the vehicle on June 9 resembled him more than his girlfriend; and (5) the
defendant’s girlfriend falsely claimed that she was the driver on June 9.

The defendant argues that this evidence was insufficient to prove that he
drove his girlfriend’s vehicle on June 9 because it was “possible” that she
permitted a third person to drive her car. 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. Here, there was no evidence that a third
person drove the vehicle on June 9. Even if the evidence was solely
circumstantial as to whether the defendant drove the vehicle on June 9, viewed
in the light most favorable to the State, we hold that the evidence was sufficient
for the jury to find, beyond a reasonable doubt, that it was he.

Affirmed.

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

Timothy A. Gudas,
Clerk

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