State of New Hampshire v. Bruce Shanks

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0623, State of New Hampshire v. Bruce
Shanks, the court on December 30, 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, Bruce Shanks, appeals his conviction by a jury of
second-degree assault, see RSA 631:2 (Supp. 2019), criminal restraint, see RSA
633:2 (2016), and domestic violence, see RSA 631:2-b (Supp. 2019). He argues
that the Superior Court (McNamara, J.) erred in denying his pretrial motion for
in camera review of the victim’s counseling records. He also argues that it was
plain error for the trial court to convict him on a charge of criminal restraint,
where the restraint was merely incidental to the second-degree assault and act
of domestic violence.

The defendant first argues that the trial court erred in denying his
motion for in camera review of the victim’s counseling records. We review the
court’s decision to deny the defendant’s motion for in camera review under our
unsustainable exercise of discretion standard. State v. Eaton, 162 N.H. 190,
193 (2011). Under this standard, the defendant must show that the court’s
ruling was clearly untenable or unreasonable to the prejudice of his case.
State v. King, 162 N.H. 629, 631 (2011).

Although the threshold necessary to trigger an in camera review is “not
unduly high,” State v. Graham, 142 N.H. 357, 363 (1997), the defendant must
establish a “reasonable probability that the records contain information that is
material and relevant to his defense,” Eaton, 162 N.H. at 193 (quotation
omitted). The defendant must “provide the court with a logical factual basis for
his request, based on information independently obtained, that the information
sought may yield relevant evidence.” State v. Ellsworth, 142 N.H. 710, 714
(1998).

In his motion for in camera review, the defendant asserted that the
victim falsely accused him of sexual assault in a moment of anger and jealousy.
He also noted that the victim gave a different description of the events after
arriving at the hospital than she gave to the officer who reported to the scene.
The trial court found that the defendant provided no reasonable basis to “make
the leap from his theory that the [victim] lied to the police about [the
defendant’s] assaulting her because she was jealous, to the conclusion that
there is reasonable probability that there is evidence in the [victim’s] therapist’s
file that is relevant and material to his claim that [the victim] falsely accused
him of sexually assaulting her.”

On appeal, the defendant argues that “[i]t was reasonable to theorize that
[the victim], while in a confidential setting with her therapist, made additional
inconsistent statements about the incident, had a candid moment wherein she
described why she lied about her consensual sexual encounter with [the
defendant], or that she made the allegations influenced by anger and jealousy.”
The State counters that the defendant has not demonstrated that there was
any realistic or substantial likelihood that the counseling records contained
evidence helpful to his defense. We conclude that the defendant’s theoretical
supposition fails to demonstrate that the trial court’s ruling constituted an
unsustainable exercise of its discretion. See Eaton, 162 N.H. at 193.

The defendant next argues that it was plain error to convict him on a
charge of criminal restraint, asserting that, under the “merger doctrine,” the
restraint was merely incidental to the second-degree assault and act of
domestic violence. The plain error rule allows us to consider arguments the
defendant did not raise in the trial court. State v. Woodbury, 172 N.H. 358,
362 (2019); Sup. Ct. R. 16-A. However, “[t]he rule is used sparingly and is
limited to those circumstances in which a miscarriage of justice would
otherwise result.” Woodbury, 172 N.H. at 362-63. “To find plain error:
(1) there must be an error; (2) the error must be plain; (3) the error must affect
substantial rights; and (4) the error must seriously affect the fairness, integrity
or public reputation of judicial proceedings.” State v. Noucas, 165 N.H. 146,
160 (2013) (quotation omitted). The defendant bears the burden of
demonstrating plain error. State v. Fiske, 170 N.H. 279, 291 (2017).

Although the defendant argues that this court adopted the merger
doctrine for “restraint offense” in State v. Brooks, 164 N.H. 272, 294 (2012),
that case involved a kidnapping conviction. We held that a “kidnapping
conviction cannot rest on ‘unlawful confinements or movements incidental to
the commission of other felonies.’” Id. We have never extended this rationale
to the offense of criminal restraint. “‘Plain’ as used in the plain error rule is
synonymous with clear or, equivalently, obvious.” State v. Ortiz, 162 N.H. 585,
591 (2011) (quotation omitted). “When the law is not clear at the time of trial
and remains unsettled at the time of appeal, a decision by the trial court
cannot be plain error.” Id. (quotation omitted). Therefore, even assuming,
without deciding, that there was error in this case, the error cannot be plain.
Moreover, the defendant’s argument is based upon his claim that the jury
found, consistent with his expert’s testimony, that he broke the victim’s wrist
while restraining her on the couch. However, the jury was not required to
accept the expert’s testimony, see State v. Thomas, 154 N.H. 189, 193 (2006),
and could have reasonably concluded that the defendant broke the victim’s

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wrist by slamming the door on it. Accordingly, we find no plain error. See
Fiske, 170 N.H. at 291.

Affirmed.

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

Timothy A. Gudas,
Clerk

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