State of New Hampshire v. Chris Bonollo

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0589, State of New Hampshire v. Chris
Bonollo, the court on June 18, 2021, issued the following order:

Having considered the briefs, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). The defendant, Chris Bonollo, appeals a finding of guilty, following a
bench trial, for violation-level criminal trespass. See RSA 635:2 (Supp. 2020).
We construe the defendant’s briefs to argue that the Circuit Court (Vetanze, J.)
erred when it denied his motion to dismiss and found him guilty of criminal
trespass, because: (1) he had not been served with the complaint and warrant in
a timely manner; (2) his right to a speedy trial under the Federal Constitution1
had been violated, see U.S. CONST. amend VI; and (3) the evidence was
insufficient to support the trial court’s determination that he was guilty of the
offense. We affirm.

The pertinent facts are as follows. The incident giving rise to the criminal
trespass charge occurred on October 13, 2018. On November 19, 2018, following
an investigation, a deputy sheriff with the Carroll County Sheriff’s Department
swore to a complaint and arrest warrant alleging that the defendant, “knowing
that he was not licensed or privileged to do so,” remained upon private property
in Tuftonboro, “against the peace and dignity of the State.” At the time, the
defendant lived in Goffstown, and the trial court found that “[t]he [d]eputy
testified credibly that he traveled to Goffstown 2 or 3 times to attempt to make
contact with the [d]efendant and serve the warrant and complaint. When that
was not successful, he requested that the Goffstown Police Department complete
that process.” The defendant was eventually served with the complaint on
September 5, 2019. On November 26, 2019, the State filed the complaint in
circuit court, and the defendant was arraigned on January 15, 2020. On
January 15, the defendant moved to dismiss the complaint on the grounds of
“Hardship & time & delays,” arguing that the complaint should be dismissed
because of the delay between the date of the incident, the date the complaint was
issued, and the date on which he was served, and because “[t]he complaint . . .
had no case [number] or court date & time.” He also argued that, given that this
was only a violation-level offense, and given his personal difficulties in traveling
from his home to the trial court, the court should dismiss the case. After the

1 Because the defendant does not invoke Part I, Article 14 of the State Constitution on appeal,
we limit our speedy trial analysis to the Federal Constitution. See State v. Dellorfano, 128 N.H.
628, 632-33 (1986).
arraignment, the trial court denied his motion “[without] prejudice to further
argue the issue.”

The trial in this matter was originally scheduled for April 2020, but was
rescheduled due to the COVID-19 pandemic, and was eventually held in person
on November 18, 2020. After the trial, at which the deputy, three civilian
witnesses, and the defendant testified, the court found the defendant guilty of
violation-level criminal trespass, and sentenced the defendant to pay a fine of
$1,000 — of which $500 was suspended for one year — and a statutory penalty
assessment of $240 — of which $120 was suspended for one year. The court
also ordered that, for a period of one year, the defendant shall be of good
behavior, have no contact with the witnesses, and shall not enter the property
where the incident occurred. The defendant filed a motion for reconsideration,
arguing that the case should have been dismissed “on the basis of lack of speedy
trial,” and because of the delays in filing and serving the complaint. His motion
was denied, and this appeal followed.

We assume, without deciding, that the constitutional arguments raised by
the defendant apply to a violation-level charge of criminal trespass. But see RSA
625:9, II(b) (providing that a violation does not constitute a crime); State v.
Fitzgerald, 137 N.H. 23, 26-28 (1993) (setting forth the analysis for determining
whether a statutorily defined penalty is criminal or civil in nature, and holding
that certain traffic violations are civil in nature); cf. State v. Lake Winnipesaukee
Resort, 159 N.H. 42, 49 (2009) (suggesting that speedy trial analysis is
inappropriate for a civil violation).

In reviewing a trial court’s ruling on a motion to dismiss based upon a
denial of the right to a speedy trial, “we defer to the trial court’s factual findings
unless those findings are clearly erroneous, and consider de novo the court’s
conclusions of law in respect to those factual findings.” State v. Locke, 149 N.H.
1, 7 (2002). “To prevail upon a 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.” State v. Cable, 168
N.H. 673, 677 (2016). “In such a challenge, 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.” Id. (quotation and emphasis
omitted). “Because a challenge to the sufficiency of the evidence raises a claim of
legal error, our standard of review is de novo.” Id. “We defer to the trial court’s
determinations of credibility unless no reasonable person could have come to the
same conclusion after weighing the testimony.” State v. Livingston, 153 N.H.
399, 402 (2006) (quotation omitted).

We first consider the defendant’s argument that he had not been served
with the complaint and warrant in a timely manner. He contends that, due to
the deputy’s “lack of due [diligence],” the complaint was not served on him until

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approximately ten months after it had been issued; that there was “no legitimate
purpose” for this delay; and that the deputy was “[negligent] in failing to
apprehend [him] in a timely manner.”

We have recognized that, although the right to a speedy trial has not yet
attached, “an arbitrary delay between the time of an offense and the arrest or
indictment of a defendant may result in a denial of due process.” State v.
Philibotte, 123 N.H. 240, 244 (1983). “The United States Supreme Court has
directed that any [such] delay be evaluated in terms of the actual prejudice to the
defendant and the reasons for the delay.” Id. (citing United States v. Lovasco, 431 U.S. 783, 790 (1977); United States v. Marion, 404 U.S. 307, 324 (1971)).
“The Supreme Court has recognized that the statutes of limitations provide the
primary safeguard against the initiation of overly stale criminal charges.” Id.
“Because it can be presumed that timely prosecution has commenced if charges
are brought within the applicable statute of limitations, the defendant must
initially show that actual prejudice has resulted from a delay.” Id. (citation
omitted). “Once such a showing has been made, the trial court must then
balance the resulting prejudice against the reasonableness of the delay.” Id.

Here, the trial court analyzed whether the prosecution of the defendant
was barred by the three-month statute of limitations. See RSA 625:8, I(d) (Supp.
2020). Because the prosecution of the defendant commenced approximately one
month after the date of the offense charged, when the complaint and warrant
were issued, see RSA 625:8, V, and because the statute of limitations is tolled
“[d]uring any time when a prosecution is pending against the accused,” RSA
625:8, VI(b), the trial court correctly determined that prosecution of the
defendant was not time-barred, and that “any delay in actually arresting the
Defendant is not relevant to the analysis.” See State v. Maxfield, 167 N.H. 677,
680-81 (2015) (observing that the statute does not require that a warrant, once
issued, be executed within a reasonable period of time, nor that it be executed
prior to the expiration of the limitations period). Accordingly, the defendant
cannot prevail on this claim of error unless he can show that “actual prejudice
has resulted from [the] delay.” See Philibotte, 123 N.H. at 244. Here, however,
the trial court expressly found that “there was no prejudice to the Defendant,”
and, because the defendant has not provided a transcript of the trial, “we must
assume that the evidence was sufficient to support the result reached by the trial
court.” Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

Next, we consider the defendant’s argument that his right to a speedy trial
was violated as a result of the delays in this case. He contends that, following his
arrest, the complaint was not filed with the trial court in a timely manner
pursuant to New Hampshire Rules of Criminal Procedure 3(c), 4(a), 4(b), 10(a),
and 10(c), as well as 18 U.S.C. § 3161 (2018), and that, had the State filed the
complaint as required, the trial would have taken place before it became
necessary to delay it further due to the COVID-19 pandemic. Further, he argues
that the right to a speedy trial is intended, at least in part, “to minimize anxiety

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and concern accompanying public accusation,” United States v. Ewell, 383 U.S.
116, 120 (1966), and notes that the complaint that he was served with contained
an incorrect trial date — one that was before the State had filed the complaint —
and that that error caused him considerable stress and anxiety when he learned
that there were no court proceedings on that date. He notes that he feared the
prospect of “a possible warrant for his arrest being issued because of missed date
on a fictitious court date issued by [the deputy],” and that he “pleaded with the
Court Clerk as to any effort he could make to prevent his potential arrest.” In
sum, he argues that the State’s “egregious persistence in failing to prosecute
undoubtedly indicates prejudice towards the defendant,” and that the State’s
“lack of due diligence, [and] bad faith efforts combine to present an oppressive
delay.”

In determining whether a defendant’s right to a speedy trial has been
violated under the Federal Constitution, we apply the four-part test articulated in
Barker v. Wingo, 407 U.S. 514, 530 (1972). State v. Lamarche, 157 N.H. 337,
342 (2008). “The test requires that we balance four factors: (1) the length of the
delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a
speedy trial; and (4) the prejudice to the defendant caused by the delay.” Id. “We
defer to the trial court’s factual findings unless those findings are clearly
erroneous, and consider de novo the court’s conclusions of law with respect to
those factual findings.” Id. at 342-43.

Here, an analysis of the defendant’s speedy trial claims would necessarily
require us to consider whether the evidence was sufficient to support the trial
court’s challenged findings that, for example: “there was no prejudice to the
Defendant”; that “the reason for the trial delay is a valid reason not attributable
to either the State or the Defendant”; and that, “[u]ntil today, [the defendant] has
not asserted a speedy trial violation with regard to scheduling his trial.”
However, without a transcript of the trial, “we must assume that the evidence
was sufficient to support the result reached by the trial court.” Bean, 151 N.H.
at 250. Accordingly, with respect to this issue, we must find that the defendant,
as the appealing party, has failed to carry his burden of demonstrating reversible
error. See Gallo v. Traina, 166 N.H. 737, 740 (2014).2

2 We also note that 18 U.S.C. § 3161 does not govern state court proceedings. State v. Cole, 118 N.H. 829, 831 (1978) (observing that “unlike the federal courts, our courts do not work
under fixed deadlines in speedy trial cases”). Additionally, the defendant’s reliance on Rules 4
and 10 of the New Hampshire Rules of Criminal Procedure is misplaced because: (1) Rule 10
only applies to the superior court, see N.H. R. Crim. P. 10; (2) the complaint was filed more
than 14 days in advance of the arraignment, see N.H. R. Crim. P. 4(a)(1); and (3) the
arraignment took place more than thirty-five days after the defendant was served, see N.H. R.
Crim. P. 4(b)(1).
With respect to Rule 3(c) — which provides, in pertinent part, that, “[w]hen a person is
arrested with a warrant, the complaint, and the return form documenting the arrest shall be
filed in a court of competent jurisdiction without unreasonable delay” — we cannot conclude,
without a transcript of the trial, that the State’s delay in filing the complaint was unreasonable

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 Lastly, we consider the defendant’s argument that the evidence was
insufficient to support the trial court’s determination that he was guilty of
criminal trespass. See RSA 635:2. He contends that a video of the incident,
which was introduced as evidence at trial, demonstrates that he did not “remain”
on the property long enough to constitute criminal trespass. However, absent a
copy of the video, and absent a transcript of the hearing, “we must assume that
the evidence was sufficient to support the result reached by the trial court,”
Bean, 151 N.H. at 250, and therefore conclude that a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. See
Cable, 168 N.H. at 677.

Affirmed.

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

Timothy A. Gudas,
Clerk

as a matter of law, especially in light of the court’s finding that the defendant suffered no
prejudice.

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