John Doe v. New Hampshire Division of State Police & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0424, John Doe v. New Hampshire
Division of State Police & a., the court on December 10, 2024,
issued the following order:

The court has reviewed the written 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 plaintiff, John Doe, appeals an order from the Superior
Court (Schulman, J.) dismissing his complaint against the New Hampshire
Division of State Police (the Division) and the New Hampshire Attorney
General’s Office (collectively, the State). The plaintiff argued in his complaint
that he was improperly placed on the Exculpatory Evidence Schedule (EES)
pursuant to RSA 105:13-d (2023) because the conduct described in his
personnel file was not potentially exculpatory. On appeal, the plaintiff argues
that the trial court erred when it failed to consider the arguments advanced in
his motion to reconsider regarding the impact of his disability on his memory.
We affirm.

We accept the following factual allegations set forth in the plaintiff’s
pleadings as true for the purposes of this appeal. See Barufaldi v. City of
Dover, 175 N.H. 424, 425 (2022). In 2018, while working as a trooper for the
Division, the plaintiff arrested a woman whom he later contacted — by text
message using his personal cellphone — regarding personal property that she
had left in his police cruiser. The text communication was reported to the
Division.

In June 2018, the plaintiff’s supervising lieutenant met with the plaintiff
and told him that he should not use his personal cellphone to contact members
of the public. The lieutenant asked if the plaintiff had previously contacted
other members of the public using his personal cellphone. The plaintiff
answered in the negative.

In July 2018, the lieutenant became aware of a lengthy text exchange
between the plaintiff and a different arrestee using the plaintiff’s personal
cellphone that began in May 2018 (the May 2018 text messages). When the
lieutenant confronted the plaintiff about the newly discovered text messages,
the plaintiff apologized for not being “truthful” during the June 2018 meeting.
The Division opened an internal investigation, during which the plaintiff again
apologized for not being “truthful” with the lieutenant in June 2018 when he
denied previously using his personal cellphone to communicate with members
of the public.
 The plaintiff subsequently met with three Division officers to discuss the
contents of the text messages and his admissions that he had been untruthful
with the lieutenant. He failed to rebut the allegations and he was terminated
from his position. Shortly thereafter, the plaintiff’s name was added to the
EES.

In 2021, the plaintiff filed a complaint in which he argued that he is
entitled to removal from the EES because his conduct is not potentially
exculpatory under RSA 105:13-d. He argued that his conduct is not potentially
exculpatory because he “was not thinking about” the May 2018 text messages
when he answered the lieutenant and, rather, was truthfully representing that
he was not at that time contacting other arrestees. Further, the plaintiff
argued that his July 2018 apologies for being untruthful with the lieutenant do
not warrant his inclusion on the EES because he was merely adhering to his
military training when he accepted responsibility for his actions after he was
confronted by superiors.

The State filed a motion to dismiss. The trial court granted the State’s
motion, ruling that the plaintiff had “lied in the course of an official
investigation into his alleged misconduct,” which is “grounds for inclusion on
the EES” regardless of whether he lied to the lieutenant initially or lied about
lying to the lieutenant during the subsequent investigation.

The plaintiff then moved for reconsideration. He argued, for the first
time, that his placement on the EES is improper because he suffers from a
disability that caused him to forget the prior text messages. He further argued
that the symptoms of his disability, including “anxiety” and “impaired
judgment,” resulted in him admitting to lying despite not having done so, and
that he did not intentionally misstate the truth. The trial court denied the
motion on the grounds that the plaintiff had lied during the investigation into
his alleged misconduct.

On appeal, the plaintiff argues that the trial court erred when it declined
to consider his arguments — raised for the first time in his motion to
reconsider — regarding the impact of his disability on his memory when
determining that his admissions to being untruthful warranted placement on
the EES. Whether to receive further evidence on a motion for reconsideration
rests in the sound discretion of the trial court. Lillie-Putz Trust v. Downeast
Energy Corp., 160 N.H. 716, 726 (2010). We review the trial court’s ruling for
an unsustainable exercise of discretion and will not overturn it unless the
plaintiff can show the court’s ruling was clearly untenable or unreasonable to
the prejudice of his case. See id. Assuming, without deciding, that the trial
court should have considered the plaintiff’s new facts and arguments, we
conclude that the trial court did not err because the plaintiff’s disability does
not negate the potentially exculpatory nature of his conduct.

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 When reviewing a trial court’s ruling on a motion to dismiss, we consider
whether the allegations in the pleadings are reasonably susceptible of a
construction that would permit recovery. Doe v. N.H. Attorney Gen. (Activity
Logs), 176 N.H. 806, 812 (2024), 2024 N.H. 50, ¶13. We assume the pleadings
to be true and construe all reasonable inferences in the light most favorable to
the plaintiff. Id. We then engage in a threshold inquiry that tests the facts in
the complaint against the applicable law. Id. We will uphold the granting of a
motion to dismiss if the facts pled do not constitute a basis for legal relief. Id.

RSA 105:13-d, I, provides that “[t]he department of justice may
voluntarily maintain an [EES]” which “shall consist of a list of all current or
former law enforcement officers whose personnel information contain
potentially exculpatory evidence.” The statute further provides that an officer
may challenge his or her placement on the EES in the superior court, and “the
individual’s name and corresponding information will become public” unless “a
court issues an order finding that the underlying misconduct is not potentially
exculpatory” or “[a] court issues an order finding that the law enforcement
agency erred in recommending that the officer be placed on the [EES].” RSA
105:13-d, II(a)-(d).

At issue in this case is whether the plaintiff’s conduct constitutes
“potentially exculpatory evidence” as contemplated by RSA 105:13-d, I.
Recently, in Doe v. New Hampshire Attorney General (Activity Logs), we held
that “potentially exculpatory evidence” under RSA 105:13-d, I, “is evidence,
including impeachment evidence, that is reasonably capable of being material
to guilt or to punishment.” Doe (Activity Logs), 176 N.H. at 814, 2024 N.H. 50,
¶18. In reaching our conclusion, we explained that the considerations bearing
upon the admissibility of evidence are relevant to the determination of whether
information is “potentially exculpatory” such that an officer’s inclusion on the
EES is warranted. Id. at 815, 2024 N.H. 50, ¶20. “If there is no reasonably
foreseeable case in which ‘potentially exculpatory evidence’ relating to an
officer’s conduct would be admissible,” then an officer’s inclusion on the EES is
not warranted. Id.

Here, the plaintiff claims that he forgot the May 2018 text messages due
to his disability and, therefore, that he was not lying when he told the
lieutenant in June 2018 that he had not texted other members of the public.
He further claims that he falsely admitted to being untruthful with the
lieutenant after he was confronted by the lieutenant in July 2018 with the
additional text messages and during the July 2018 internal investigation. The
plaintiff argues that his false admissions were caused by a combination of his
disability impairing his ability to process the information and respond correctly
and his adherence to his military training to accept responsibility when
confronted by superiors.

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 Regardless of the justifications offered by the plaintiff, his conduct
warrants inclusion on the EES because it reflects on his “general credibility.”
See id. (noting that the conduct’s “materiality to an officer’s general credibility”
factors into whether inclusion on the EES is warranted); see also Gantert v.
City of Rochester, 168 N.H. 640, 650 (2016). The plaintiff’s misstatements of
fact justify his placement on the EES because they “reflect[] on the plaintiff’s
general credibility” even if “the plaintiff did not intentionally falsify” his
answers. Gantert, 168 N.H. at 643, 650; see also Doe (Activity Logs), 176 N.H.
at 815, 2024 N.H. 50, ¶20.

Further, despite the plaintiff’s assertion that his disability caused him to
admit that he had been untruthful with the lieutenant, his admissions to being
untruthful with the lieutenant could still foreseeably be the subject of inquiry
for impeachment purposes. See State v. Kornbrekke, 156 N.H. 821, 826-27
(2008) (concluding that witness’s seven-year-old statements were probative of a
character for truthfulness, despite State arguing the witness had not lied,
because “inconsistency exists between the complainant’s original allegation
and her later recantation, and this inconsistency can be used to impeach her
credibility”). Therefore, whether the plaintiff’s conduct was caused by his
disability, his military training, or a combination of both, it does not negate the
potentially exculpatory nature of his conduct because it is still “reasonably
foreseeable” that his conduct could be used in a future case to impeach his
credibility and because it is “reasonably capable of being material to guilt or to
punishment.” Doe (Activity Logs), 176 N.H. at 814-16, 2024 N.H. 50, ¶¶18, 20-
24. Accordingly, the plaintiff’s placement on the EES is proper.

The plaintiff raises two more arguments in his brief. First, he references
the Americans with Disabilities Act, 42 U.S.C. § 12101, and summarizes New
Hampshire law prohibiting unlawful discrimination against people with
disabilities in the workplace. However, as the State notes, the plaintiff offers
no analysis beyond quoting the statutes. Therefore, we conclude that the
argument is insufficiently briefed for our review. See State v. Roy, 167 N.H.
276, 292 (2015) (declining to address an insufficiently developed argument).

Second, the plaintiff argues that, even if his name and corresponding
information were rightly included on the EES, the designation next to his name
on the EES should be changed from “credibility” to “medical condition” because
it is more “probable than not” that his disability caused his actions than
dishonesty. However, this argument is raised for the first time in the plaintiff’s
brief. We have consistently held that we will not consider issues raised on
appeal that were not presented in the trial court. See LaMontagne Builders v.
Brooks, 154 N.H. 252, 258 (2006). Therefore, we decline to address this
argument.

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 For the foregoing reasons, we conclude that the trial court did not err
when it granted the State’s motion to dismiss and denied the plaintiff’s motion
to reconsider. Accordingly, we affirm.

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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