State of New Hampshire v. Stephen Bassett

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0189, State of New Hampshire v. Stephen
Bassett, the court on February 16, 2021, 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, Stephen Bassett, appeals his conviction for class B
misdemeanor trespass. See RSA 635:2 (2016). He argues that the Trial Court
(LeFrancois, J.) erred by: (1) not allowing his expert adequate time to prepare
his report; (2) denying his motion to call the register of deeds as a rebuttal
witness; (3) failing to act “on a motion to Preclude Hearsay Testimony”; (4)
denying his motion to reconsider its earlier ruling denying his motion to call a
rebuttal witness; and (5) failing to consider testimony as to whether he believed
that he was licensed or privileged to enter the property. He also challenges the
sufficiency of the evidence and contends that the trial court should consider
revoking the site plan approval for the subject property. We affirm.

The following evidence was presented to the trial court. In the summer
of 2018, the owner of private property (Property) in Fremont filed a criminal
trespass letter with the Fremont Police Department indicating that the
defendant was not welcome on the Property. In September 2018, the Chief of
the Fremont Police Department met with the defendant and advised him that:
(1) the owner did not want the defendant on the Property; (2) this was an
official first warning; and (3) “if he was to go back again, he’d be subject to
arrest for criminal trespassing.” The defendant was arrested in December 2018
after he drove his vehicle onto the Property and blocked access by an employee
to the quarry located thereon. The trial court held a two-day bench trial at
which the defendant argued that his family had a right-of-way across the
Property that it had used for over 80 years to access its property. Following
trial, the court found the defendant guilty of class B misdemeanor trespass.

We begin by setting forth our rules of appellate review. To preserve an
issue for review before this court, the defendant, as the appealing party, must
demonstrate that he raised the issue before the trial court. Bean v. Red Oak
Prop. Mgmt., 151 N.H. 248, 250 (2004). These rules apply to all parties,
including those who are self-represented. State v. Porter, 144 N.H. 96, 100-01
(1999). A list of challenges to adverse rulings by the trial court without
developed legal argument is insufficient to permit judicial review. See State v.
Blackmer, 149 N.H. 47, 49 (2003).

With these principles in mind, we turn to the issues raised by the
defendant. The defendant’s brief contains a list of questions captioned
“Questions Presented for Review.” The argument which follows begins with a
numbered list of 12 statements. The first statement provides: “The Police never
read the Defendant his rights and then used his answers to their questions
against him in court.” We have reviewed the record before us and find no
indication that the defendant raised the issue before the trial court. In the
absence of both a developed factual record and legal argument, we are unable
to review this issue. See Bean v. Red Oak Prop. Mgmt., 151 N.H. at 250.

We answer in the negative the defendant’s sixth question: “Should the
Court consider revoking the Site Plan Approval for the Rislove property because
the approval as it stands now results in the Town creating 10 or more
landlocked parcels of land contrary to NH Law?” As the State observes, this
issue was not raised at trial; accordingly, the appellate record before us
contains no factual findings by the trial court. More importantly, any challenge
to the site plan approval would involve different parties who would be entitled
to present their case to the trial court, a civil matter governed by the process
established by the legislature and our case law.

We next consider the issues presented by the defendant that he argues
arose in the course of trial. The defendant contends that the trial court erred
in refusing to give him additional time to submit the report of his expert. The
record provides the following timeline: (1) the defendant was arrested on
December 7, 2018; (2) in a pretrial scheduling order, the court set October 4,
2019 as the deadline for him to submit his expert report; and (3) after listening
to preliminary testimony by the defendant’s expert on October 24, 2019, the
first day of trial, the court concluded that the defendant had failed to provide
the report required by its pretrial order. Nevertheless, the court extended its
earlier deadline and ruled that, if the defendant wished to call his expert to
testify, a written report, along with any supporting documentation that had not
already been provided to the State, must be provided to the State 30 days prior
to the second day of trial. The second day of trial was scheduled for January
13, 2020; the defendant did not submit his expert report until January 10,
2020. Despite his noncompliance with both earlier deadlines, the trial court
allowed the defendant’s expert to testify and admitted a report prepared by the
expert. Based upon the record before us, we affirm the trial court’s rulings
with respect to both pretrial discovery and admission of the report.

The defendant’s next claims of error challenge the trial court’s rulings on
his motions to preclude testimony by the arresting officer, to impeach that
officer’s testimony, and to recall on the second day of trial that officer and the
Chief of Police “as more questions are needed of [them].” The defendant bears

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the burden of demonstrating that these discretionary rulings were clearly
untenable or unreasonable to the prejudice of his case. See State v. Furgal, 164 N.H. 430, 438 (2012). The defendant explained to the trial court that he
sought to call the register of deeds as a witness to rebut certain testimony by
the arresting officer. The officer had testified about the results of his research
when he went to the registry of deeds to determine whether a right-of-way
existed across the Property to land owned by the defendant’s family.

Based upon the extensive record before us, we conclude that the trial
court’s rulings are sustainable. The arresting officer offered no legal
conclusions about the defendant’s asserted right-of-way; rather, he testified
that he was unable to find any record of it when he went to the registry to
investigate. The trial court also had before it an affidavit from the register
averring that she would not express an opinion as to whether property was
subject to an easement. Accordingly, to the extent that the defendant filed his
motions seeking to rebut any potential inference from the arresting officer’s
testimony that the register had opined that no easement existed, the trial court
had that evidence before it. The trial court explained its ruling: “The issue is
whether or not there was a right-of-way found on the records of the Registry,
and based on [the defendant’s expert]’s testimony [that he had not found a
right-of-way of record] today I don't see a basis to call another witness.”
Moreover, given the testimony of those witnesses who had conducted research
into the defendant’s asserted right-of-way, including the defendant’s expert,
that they had been unable to find any record of the defendant’s asserted right-
of-way over the Property, the defendant has failed to establish that any of the
challenged rulings prejudiced him. See id.

We turn to the defendant’s challenge to the sufficiency of the evidence. A
challenge to the sufficiency of the evidence raises a claim of legal error;
therefore, our standard of review is de novo. State v. Vincelette, 172 N.H. 350,
354 (2019). To prevail upon his challenge to the sufficiency of the evidence, the
defendant must demonstrate that no rational trier of fact, viewing all of the
evidence and all reasonable inferences from it in the light most favorable to the
State, could have found guilt beyond a reasonable doubt. Id.

“A person is guilty of trespass if, knowing that he is not licensed or
privileged to do so, he enters or remains in any place.” RSA 635:2 (2016).
Criminal trespass is a misdemeanor if the person “knowingly enters or remains
. . . [i]n any place in defiance of an order to leave or not to enter which was
personally communicated to him by the owner or other authorized person.”
RSA 635:2, III (b)(2). The evidence in this case included that the defendant was
issued a no-trespassing order when he went to the Fremont Police Department

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in September 2018 and that he drove his vehicle onto the Property on
December 7, 2018 and blocked access to the quarry by one of the employees.

Given the extensive record before us, we affirm the defendant’s
conviction.
Affirmed.

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

Timothy A. Gudas,
Clerk

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