State of New Hampshire v. Edward Bou-Nassif

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0474, State of New Hampshire v. Edward
Bou-Nassif, the court on November 30, 2023, 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 defendant, Edward Bou-Nassif, appeals his conviction,
following a trial in the Circuit Court (Tenney, J.), on two class B misdemeanor
charges of knowingly making a false entry in, or false alteration to, a public or
private record or writing with the purpose to deceive or injure another. See
RSA 638:3 (2016). With respect to one conviction, the trial court imposed a
fine of $500 plus a penalty assessment of $120, with an additional $500 and
penalty assessment of $120 suspended for two years, and with respect to the
other conviction, it imposed a fine of $1,000 plus a penalty assessment of
$240, all of which it suspended for two years. The defendant argues that the
evidence was insufficient to support his convictions. The State counters, in
part, that because the defendant failed to seek dismissal of the case based
upon insufficient evidence, his arguments are not preserved. We agree that the
defendant’s arguments are not preserved, and therefore, we affirm.

It is well settled that to preserve an argument that the evidence was
insufficient to support a criminal conviction, the defendant generally must
challenge the sufficiency of the evidence to support the conviction by
appropriate motion at the close of the evidence. See State v. McAdams, 134,
N.H. 445, 446-47 (1991); see also State v. Wood, 150 N.H. 233, 236 (2003)
(holding that motion to dismiss for insufficient indictments did not preserve
challenge to sufficiency of the evidence). In this case, the defendant does not
dispute that at no point prior to the close of the evidence did he seek dismissal
of either criminal charge on the basis that the State had failed to submit
sufficient evidence to support a conviction. Nor does he argue that, under the
circumstances of this case, his conviction on the class B misdemeanor charges
amounts to a plain error affecting his substantial rights. Sup. Ct. R. 16-A; see
State v. Leroux, 175 N.H. 204, 210 (2022) (declining to address issue as plain
error when the defendant failed to raise plain error rule); but cf. State v. Guay, 162 N.H. 375, 380-84 (2011) (holding that conviction on felony charge of
aggravated felonious sexual assault based on insufficient evidence amounted to
plain error affecting the defendant’s substantial rights). Indeed, we note that
addressing the defendant’s insufficiency of evidence arguments would require
us to engage in statutory interpretation of RSA 638:3, a statute we have not yet
had occasion to interpret. See State v. Emery, 152 N.H. 783, 787 (2005)
(holding that trial court’s alleged error in instructing jury that defendant could
be convicted of stealing from her own joint account could not have been “plain”
because we had never addressed whether a party may be convicted of stealing
by making unauthorized withdrawals from a joint account).

Instead, the defendant argues that the requirement that he seek
dismissal of the charges on insufficiency of the evidence grounds to preserve
his insufficiency of the evidence arguments on appeal should not apply
because, he asserts, the policy underlying the requirement does not apply in a
bench trial. To the contrary, the rationale underlying our preservation rules
applies equally to cases tried to a jury and to those tried to a trial judge. See
Leroux, 175 N.H. at 209-10 (finding issue not preserved in a bench trial, and
noting policy rationale underlying preservation requirement); McAdams, 134
N.H. at 446-47 (discussing policy rationale for preservation requirement).
Because the defendant did not preserve his insufficiency of the evidence
arguments, we affirm his convictions.

Affirmed.

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

Timothy A. Gudas,
Clerk

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