State of New Hampshire v. Cody Gunseth

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0082, State of New Hampshire v. Cody
Gunseth, the court on June 29, 2023, issued the following
order:

The court has reviewed the written arguments, oral arguments, and the
record submitted on appeal, and has determined to resolve the case by way of
this order. See Sup. Ct. R. 20(2). The defendant, Cody Gunseth, appeals his
conviction following a jury trial in Superior Court (Delker, J.) on one felony
count of possession of cocaine. See RSA 318-B:2, I (Supp. 2022). He argues
that the trial court erred by denying his motion to dismiss because: (1) the
evidence was insufficient to prove that he possessed any substance that was
found to be cocaine; and (2) the State did not charge him with possessing any
cocaine found outside a safe located inside a bedroom closet where the
defendant was discovered hiding. We affirm.

The jury could have found the following facts. In March 2019, police
officers executed a search warrant at the rented residence of the defendant’s
girlfriend, Megan. Although the property owner rented the residence only to
Megan, the search warrant targeted both Megan and the defendant, seeking
“[e]vidence of drugs and sales of drugs.” When executing the search warrant,
the police announced their presence and Megan answered the door. After
initial questioning, she informed the police that the defendant was not in the
home. The officers proceeded to clear the home and in a bedroom on the
second floor an officer found the defendant hiding in a closet wearing only a
pair of boxers. The officer ordered the defendant out of the closet and asked for
his identification. The defendant responded that his wallet with his
identification was in a wooden box beside the bed.

The officers observed clothing and shoes scattered throughout the
bedroom. Inside the closet where the defendant had been hiding, officers
discovered a SentrySafe. The officers forcibly opened the safe and inside
discovered a significant amount of controlled drugs. Specifically, the State
later alleged that the safe contained, among other things, 75 grams of a
substance containing fentanyl and heroin, four orange pills of buprenorphine,
and four packages, each weighing approximately three grams, of crack cocaine.
The contents of the safe also included, among other things, baggies, scales,
multiple cell phones, multiple knives, a plethora of drug paraphernalia, and a
piece of paper with an IOU issued to Megan.
 In the bedroom, but outside the safe, officers found, among other things,
drug paraphernalia, smaller quantities of alleged controlled drugs and drug
residue, marijuana flowers, and $800 in cash hidden behind a picture on the
wall. Additionally, in the wooden box containing the defendant’s identification,
officers found a Narcan device, a suspected marijuana lollipop, a pink envelope
with the defendant’s name containing $296 in cash, and a black earbuds case
that contained a suspected drug consisting of a chunk of a small white
substance.

In January 2020, a grand jury indicted the defendant on one felony
count of possession of five grams or more of fentanyl with the intent to
dispense, one felony count of possession of five grams or more of heroin with
the intent to dispense, one felony count of possession of cocaine with the intent
to dispense, and one felony count of possession of buprenorphine. Specifically,
the indictment charging the defendant with possession of cocaine alleged that
“on or about the [30th] day of March 2019, at Antrim in the County of
Hillsborough,” the defendant committed the crime of “possession of a controlled
drug with intent to dispense.” (Emphasis omitted.) The State charged Megan
as a co-defendant, but she later absconded and remained at large when the
defendant’s case was tried.

At trial, the State elicited testimony from two of the officers who executed
the search warrant and discovered the controlled drugs in the bedroom.
During its direct examination of the officers, the State introduced photographs
of, among other things, numerous small white chunky substances found in a
baggie inside the safe (19-216-PR), as well as “a bag of off-white chunky
material” (19-115-PR) found in the bedroom.1 Further, the State introduced
some of the contents of the wooden box, including the small white chunky
substance in the black earbuds case alleged to be a controlled substance (19-
117-PR), as well as photographs of the wooden box and its contents.

The State then presented the testimony of a State Laboratory analyst,
qualified “as an expert in the analysis of controlled drugs,” who tested some of
the evidence seized in this case. As relevant here, the expert testified that 19-
216-PR contained four packages “that all appeared the same.” The expert then
randomly selected one substance to test, which documented the presence of
crack cocaine. The expert explained that she did not test all four packages
pursuant to a State Laboratory policy that directed analysts not to test every
suspected drug when numerous items appear similar and a test of one of the
items documents the presence of a controlled substance. The expert also
applied this policy to three other evidence bags in this case. Specifically, she
testified that, because 19-112-PR contained a white chunky substance and
testing of it documented the presence of cocaine, she did not test either 19-

1 We agree with the defendant that, based upon the record submitted on appeal, we are unable to

determine where in the bedroom the officers found 19-115-PR.

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113-PR or 19-115-PR because they also contained a similar white chunky
substance. The expert also testified that she could not comment on whether
19-117-PR contained any controlled drugs because it “didn’t come into the
laboratory” and was not tested.

After the State concluded its case-in-chief, the defendant moved to
dismiss all of the charges. The defendant argued that the State had not met its
burden of proving that he had control or authority sufficient to establish his
possession over the evidence found in the safe and some of the evidence found
in the bedroom. The defendant acknowledged that he likely had control over
the contents of the wooden box containing his identification, but argued that
the State Laboratory did not test 19-117-PR containing the white chunky
substance located inside the wooden box. Therefore, he argued, the State had
not met its burden of proving that the wooden box contained a controlled
substance. Additionally, the defendant asserted that because the evidence was
circumstantial, the State had not excluded all rational conclusions other than
guilt. The State countered that the circumstantial evidence supported the
defendant’s constructive possession of all the items found in the bedroom.
Alternatively, the State argued that, even if there was insufficient evidence to
prove that the defendant had control or possession of the items in the safe,
evidence concerning the other alleged contraband found in the bedroom was
sufficient to support the State’s charges.

The trial court denied the defendant’s motion. The court found that
“viewing the evidence and all reasonable inferences in the light more favorable
to the State, a rational jury can conclude that the [d]efendant exercised control
over the drugs, including the drugs in the safe.” The court relied upon
evidence supporting the defendant’s cohabitation in the bedroom, his
consciousness of guilt in hiding from the police, and much of the evidence in
plain sight, as supporting its decision that the defendant “generally had access
to drugs in the house.” The court further found that this evidence included the
contents of the wooden box, which although not tested, appeared “very similar
to other drugs that were tested and found to be controlled substances.”

Thereafter, the defendant called one witness at trial, the owner of the
property, who testified that he leased the property only to Megan and he did
not know the defendant. After the defendant rested his case, he renewed his
motion to dismiss, which the trial court denied. At the conclusion of the two-
day trial, the jury found the defendant guilty on one lesser-included offense of
possession of cocaine. This appeal followed.

On appeal, the defendant first argues that the trial court erred by
denying his motion to dismiss because the evidence was insufficient to convict
him. He “concedes that the evidence was sufficient to prove that he possessed
the contents of the wooden box containing his identification,” but asserts that
the evidence was insufficient to establish, beyond a reasonable doubt, that the

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“small chunk of a white substance” found inside the wooden box was cocaine.
We disagree.

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. Norman, 171 N.H. 103, 112
(2018). 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. State v. Saintil-Brown, 172 N.H. 110, 117 (2019).
We examine each evidentiary item in the context of all the evidence, and not in
isolation. Id. Because the defendant chose to present a case, we review the
entire trial record to determine the sufficiency of the evidence. Id. On appeal,
the defendant bears the burden of proving that the evidence was insufficient to
prove guilt. Id.

When, as in this case, the evidence to prove one of the elements of the
crime is solely circumstantial, the defendant must establish that the evidence
fails to exclude all reasonable conclusions except guilt. Id. The proper
analysis is not whether the evidence excludes every possible conclusion
consistent with innocence, but whether it has excluded all reasonable
conclusions other than guilt. Id. We do not determine whether the defendant
has suggested another possible hypothesis that could explain the events in an
exculpatory fashion. State v. Roy, 167 N.H. 276, 292 (2015). Rather, we
evaluate the evidence in the light most favorable to the State and determine
whether the alternative hypothesis is sufficiently reasonable that a rational
trier of fact could not have found proof of guilt beyond a reasonable doubt. Id.
“[W]here solely circumstantial evidence is at issue, the critical question is
whether, even assuming all credibility resolutions in favor of the State, the
inferential chain of circumstances is of sufficient strength that guilt is the sole
rational conclusion.” State v. Ruiz, 170 N.H. 553, 569 (2018) (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. State v. Cable, 168 N.H. 673, 677 (2016).

Viewing the evidence and all reasonable inferences therefrom in the light
most favorable to the State, we conclude that it was sufficient for a rational
trier of fact to have found, beyond a reasonable doubt, that the “small chunk of
a white substance” found inside the wooden box was cocaine. Although the
substance inside the wooden box was not tested, such testing is not required to
establish that a substance is a controlled drug. See State v. Boutin, 168 N.H.
623, 628 (2016). As we explained in Boutin, “although the State must
establish guilt beyond a reasonable doubt on all the essential elements of the
charged offense, it may rely on circumstantial, rather than direct, evidence,”
and there is “no reason why this rule should not apply to proof that a

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substance is a controlled drug.” Id. (quotation and brackets omitted); see
United States v. Walters, 904 F.2d 765, 770 (1st Cir. 1990) (explaining that
“[p]roof based on scientific analysis or expert testimony is not required to prove
the illicit nature of a substance”).

Here, the evidence presented at trial included the white chunky
substance found inside the safe in exhibit 19-216-PR, and the State’s expert
testified that testing of it had documented the presence of crack cocaine. The
State also introduced 19-115-PR, which, according to the State’s expert,
appeared similar to the “off-white chunky material” identified as 19-112-PR.
Although 19-112-PR was not admitted into evidence, the State’s expert testified
that she tested the substance and determined that the testing also documented
the presence of cocaine. The State also admitted 19-117-PR, the “small chunk
of a white substance” found inside the wooden box. We agree with the trial
court that by comparing this evidence a rational jury could conclude that the
“small chunk of a white substance” in the wooden box appeared “very similar
to other drugs that were tested and found to be controlled substances.”
Therefore, we conclude that from this evidence and the reasonable inferences
to be drawn therefrom, viewed in the light most favorable to the State, a
rational trier of fact could have found, beyond a reasonable doubt, that the
“small chunk of a white substance” was cocaine and, therefore, that the
defendant was in control of and possessed cocaine.

The defendant next asserts that he could not be convicted of possession
of cocaine based upon the wooden box’s contents because he was charged only
with possession of substances found in the safe and the box was not in the
safe. As the State correctly observes, the defendant did not make this
argument in the trial court. Nevertheless, the defendant argues that because
the trial court ruled that the evidence was sufficient to prove that the
defendant possessed the cocaine inside the safe, it would have been futile for
trial counsel to argue that the defendant was not charged with possessing any
cocaine outside the safe. We disagree.

We have recognized a limited exception to the preservation rule when it
would have been futile for the defendant to object under the law in effect at the
time of trial. State v. Brown, 138 N.H. 649, 652-53 (1994). Here, the record
demonstrates that the defendant argued to the trial court that the evidence was
insufficient to prove that he possessed anything found outside the safe.
Contrary to the defendant’s argument on appeal, nothing prevented him at that
time from also arguing that he was not charged with an offense alleging that he
possessed any contraband found outside the safe. Therefore, we conclude that
the defendant’s argument is not preserved for our review. See id.

Accordingly, we review the record for plain error. See Sup. Ct. R. 16-A;
State v. Leroux, 175 N.H. 204, 207 (2022). To find plain error: (1) there must
be error; (2) the error must be plain; (3) the error must affect substantial rights;

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and (4) the error must seriously affect the fairness, integrity, or public
reputation of judicial proceedings. State v. Hanes, 171 N.H. 173, 182 (2018).
The plain error rule is used sparingly, however, and is limited to those
circumstances in which a miscarriage of justice would otherwise result. Id.
We have previously held that, unless the exact location of a criminal event is a
necessary part of the description of the offense, there is no need to allege it in
the indictment. State v. Maguire, 129 N.H. 165, 168 (1987). When a
defendant is “charged with possession of a controlled drug, cocaine, the State
properly puts the defendant on notice of the offense against which he or she
must defend by setting forth the date and city where the alleged offense
occurred.” Id. at 168-69. If for some reason the defendant believed there was
a need for greater specificity, he had the right to move for a bill of particulars.
Id. at 169.

Here, the indictment specified that the defendant possessed cocaine with
an intent to dispense on March 30, 2019 in the town of Antrim, New
Hampshire. We recognize that the contents of the safe contained most of the
contraband and quantity of controlled drugs traditionally associated with a
possession with intent to dispense charge. However, “proof of intent to
distribute does not require some minimum quantity as a matter of law,” State
v. Cartier, 133 N.H. 217, 221 (1990), and nothing in the plain language of the
indictment limited the charges to just the contraband found inside the safe.

At no point did the defendant request a bill of particulars to clarify the
alleged insufficiency of the indictment. At trial, the defendant did not object to
the admission of any of the evidence found outside the safe. Additionally, in
moving to dismiss the charges, he argued that the evidence was insufficient to
establish that he possessed the controlled drug located in the wooden box, and
he acknowledged that the trial court could consider whether he possessed
drugs found in the apartment, but not in the safe. Consequently, the record
demonstrates that, when defending against the charges at trial, the defendant
understood that the indictment alleged his possession of cocaine based upon
the evidence seized from the bedroom and not just the safe. We therefore
conclude that the defendant has failed to establish any error with respect to
the sufficiency of the State’s indictment. See Leroux, 175 N.H. at 209
(concluding that the complaint was not prejudicial because “the record does
not support a finding that the complaint limited the defendant’s ability to
prepare for trial”). Accordingly, we affirm the defendant’s conviction. Any

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issues that the defendant raised in his notice of appeal, but did not brief, are
deemed waived. State v. Bazinet, 170 N.H. 680, 688 (2018).

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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