State of New Hampshire v. Cody M. Frye

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0205, State of New Hampshire v. Cody
M. Frye, the court on September 26, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Cody M. Frye, appeals a decision from the Superior Court (Attorri,
J.) ordering him preventively detained without bail pursuant to RSA 597:1-c
(Supp. 2022) or, in the alternative, RSA 597:2, III(a) (Supp. 2022). The
defendant argues that the court erred in finding that the State proved, by clear
and convincing evidence, that: (1) pursuant to RSA 597:1-c, the “proof is
evident” or the “presumption great” that the defendant violated RSA 318-B:26,
IX (Supp. 2022); and (2) pursuant to RSA 597:2, III(a), the defendant’s release
would endanger the safety of the public. Based upon the record before us, we
conclude that the State failed to meet its burden of proof required by RSA
597:1-c and accordingly reverse the trial court’s ruling on that issue. Because
we cannot determine the extent to which the trial court’s RSA 597:1-c
determination factored into its RSA 597:2, III(a) dangerousness ruling, we
vacate and remand.

The following facts are agreed upon by the parties or are otherwise
supported by the record. On July 31, 2022, the body of the decedent, Joshua
Smith, was discovered. It was later determined that the decedent died from
fentanyl toxicity. Police found the decedent’s body surrounded by drug
paraphernalia, including two baggies, one filled with a white powdery
substance and the other filled with a tan powdery substance. Officers also
found the decedent’s cell phone in a bathroom. Testing at the state laboratory
determined that the white substance was cocaine and the tan substance was
fentanyl.

After reviewing the decedent’s text messaging history, Detective
Gaudreau learned that, within days of his passing, the decedent had been
communicating with a man named Walter Peek-Antolin. Gaudreau testified
that he believed that the defendant ordered “four different types of drugs” from
Peek-Antolin: “pretty,” which is cocaine, two grams of “dirty,” which is fentanyl,
a “zip,” which is a baggie of marijuana, and marijuana edibles.

Text messages between the defendant and Peek-Antolin and between
Peek-Antolin and the decedent, as well as other evidence, established that on
July 29, the defendant delivered drugs to the decedent’s residence. Although
the decedent ordered four different drugs from Peek-Antolin, Gaudreau
believed that the defendant only delivered fentanyl, cocaine, and possibly the
edibles. Gaudreau testified regarding a text message conversation between
Peek-Antolin and the decedent in which Peek-Antolin “says that basically he
forgot the zip and he would deliver it himself the following day.” The evening of
July 29, following the delivery, the decedent suffered a non-fatal overdose.
When the decedent’s mother found her son overdosing that night, she
destroyed some of his drug paraphernalia and drugs, which Gaudreau believed
to be most likely the cocaine.

The following day, on July 30, another text message conversation and
phone calls between the decedent and Peek-Antolin took place. The decedent
told Peek-Antolin that he had “leaned on” what he had and needed more of the
“pretty,” leading Gaudreau to believe that the decedent was “asking for more of
the cocaine.” Although these text messages demonstrate that Peek-Antolin and
the decedent discussed another drug delivery, Gaudreau testified that he
“cannot confirm that th[e] transaction did actually happen” and the
investigation uncovered no evidence that the defendant was involved in any
sort of delivery on July 30. That same day, from approximately 1 p.m. until
9:30 or 10 p.m., the decedent covered a shift at the restaurant where he
worked. After work, the decedent met up with his co-worker and a friend
outside of the restaurant. The decedent’s friend was a former drug user who
had previously acquired drugs from the decedent to give to other people. The
decedent, who according to his friend had been struggling with an opiate
addiction for years, left the restaurant in the early morning hours of July 31.
That morning, the decedent’s body was found in his residence.

The defendant was charged with sale of a controlled drug resulting in
death in violation of RSA 318-B:26, IX. In March 2023, the defendant had a
bail hearing in superior court. At the close of the hearing, the court found that
the State met its burden of proof and ordered the defendant detained without
bail pursuant to RSA 597:1-c, or, in the alternative, that the defendant’s
release would pose a danger to the community. See RSA 597:2, III(a). The
court noted, however, that it would continue to consider the issue. The
defendant filed a subsequent motion for clarification as to whether the order
made from the bench was final.

The court subsequently issued a written order affirming the decision
delivered from the bench. The court found that the State clearly and
convincingly proved that the defendant delivered drugs, including fentanyl and
cocaine, to the decedent on the evening of July 29. The court further found
that, although the State “may not have proven . . . to a mathematical certainty”
that the drugs the defendant delivered to the decedent on July 29 were the
same drugs that caused the decedent’s death on July 31, “the presumption is
great.” The court reasoned that the “temporal proximity of the delivery,
coupled with the fact that drugs of the same kind were found near the

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decedent’s body, raises a strong presumption.” The court also found that “[t]he
defense’s speculation notwithstanding, there is no evidence that the decedent
received fentanyl from any other source in the interval between his receipt from
the defendant and his death.”

In the alternative, the court found that the defendant’s release would
endanger the safety of the public pursuant to RSA 597:2, III(a). The court
reasoned that the “influx of fentanyl into New Hampshire poses a serious
danger to the citizens and communities of this state,” that the defendant
traveled from Maine to New Hampshire to deliver the drugs, that the
defendant’s “role in the transaction was impersonal and businesslike,” and that
“this was not an isolated instance.” The court denied the defendant’s motion to
reconsider, and this appeal followed.

On appeal, the defendant argues that the State failed to satisfy its
burden pursuant to RSA 597:1-c. The State argues that we should review the
trial court’s decision under our unsustainable exercise of discretion standard.
See State v. Spaulding, 172 N.H. 205, 207 (2019). We disagree. We recognize
that we review a trial court’s decision to order preventive detention pursuant to
RSA 597:2, III(a) under an unsustainable exercise of discretion standard. See
id. (stating that the court has “broad discretion to order a defendant to be held
without bail”). However, RSA 597:1-c does not grant the trial court discretion
but, rather, mandates that “[a]ny person arrested for an offense punishable by
up to life in prison . . . shall not be allowed bail” if the “proof is evident or the
presumption great.” RSA 597:1-c (emphasis added); see also State v. Furgal, 161 N.H. 206, 209-10 (2010) (“RSA 597:1-c leaves the court with no discretion
where the proof is evident or the presumption great. In such cases, a person
‘shall not be allowed bail.’”). In other words, RSA 597:1-c precludes the
exercise of discretion by requiring the court to deny bail if the State proves by
clear and convincing evidence that the defendant committed the charged
offense. See Furgal, 161 N.H. at 209-10, 216. Thus, unlike a bail decision
pursuant to RSA 597:2, III(a), the trial court has not made a discretionary
decision when it orders a defendant preventively detained under RSA 597:1-c.
Accordingly, we will review the trial court’s decision to detain the defendant
pursuant to RSA 597:1-c under our sufficiency of the evidence standard.

To prevail upon this challenge, the defendant must demonstrate that no
rational trier of fact, viewing all of the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the State, could have found the
essential elements of the offense by clear and convincing evidence. See State v.
Butler, 175 N.H. 444, 447 (2022); see also RSA 597:1-c; Furgal, 161 N.H. at
216 (holding that the State bears the burden of proof under RSA 597:1-c by
clear and convincing evidence). 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 by clear and convincing evidence. See Butler,
175 N.H. at 447; Furgal, 161 N.H. at 216. Because a challenge to the

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sufficiency of the evidence raises a claim of legal error, our standard of review
is de novo. Butler, 175 N.H. at 447.

RSA 597:1-c “is an exception to the general rule that all persons are
eligible to be released pending trial.” Furgal, 161 N.H. at 209. It provides that
“[a]ny person arrested for an offense punishable by up to life in prison, where
the proof is evident or the presumption great, shall not be allowed bail.” RSA
597:1-c. The statute “requires the State to show first that the person is
charged with an offense punishable by up to life in prison and then show that
the proof is evident or the presumption great.” Furgal, 161 N.H. at 211. The
“presumption great” analysis requires that “‘the circumstances are such that
the inference of guilt naturally to be drawn from them is strong, clear, and
convincing.’” Id. at 217 (quoting 8 C.J.S. Bail § 28 (2005)). The State must
prove that the presumption is great by clear and convincing evidence. Id. at
216. Clear and convincing evidence is “[e]vidence indicating that the thing to
be proved is highly probable or reasonably certain.” Black’s Law Dictionary
698 (11th ed. 2019).

Here, the defendant is charged with violating RSA 318-B:26, IX, which
states that:

Any person who manufactures, sells, or dispenses methamphetamine,
lysergic acid, diethylamide phencyclidine (PCP) or any other controlled
drug classified in schedules I or II, or any controlled drug analog thereof,
in violation of RSA 318-B:2, I or I-a, is strictly liable for a death which
results from the injection, inhalation or ingestion of that substance, and
may be sentenced to imprisonment for life or for such term as the court
may order.

The trial court found that, pursuant to RSA 597:1-c, the State proved clearly
and convincingly that “the presumption is great” that the drugs the defendant
delivered to the decedent on July 29 were the same drugs that caused the
decedent’s death on July 31. See RSA 597:1-c; RSA 318-B:26, IX. Although
we acknowledge that the trial court was presented with a close call, we disagree
with its conclusion. Based on the record before us, we conclude that no
rational trier of fact could have found that the evidence clearly and
convincingly demonstrated that the fentanyl delivered by the defendant on July
29 caused the decedent’s death on July 31. See Butler, 175 N.H. at 447.

We first note that approximately thirty-six hours elapsed from the time
that the defendant delivered drugs to the decedent to the time of the discovery
of the decedent’s body.1 There is evidence that the decedent ingested some of
the drugs he received on July 29, specifically a portion of the cocaine and
fentanyl, soon after the delivery, and that he suffered a non-fatal overdose that

1 The record does not include any evidence concerning the time of the decedent’s death.

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same evening. Detective Gaudreau testified that the decedent’s mother
admitted to destroying drug paraphernalia and, most likely, the cocaine upon
finding the decedent overdosing on the night of July 29. The following day, on
July 30, the decedent informed Peek-Antolin that he had “leaned on” what was
delivered on July 29 and asked about purchasing more drugs, specifically
cocaine. That evening, the decedent met up with a few people after work, one
of whom had a history of using and distributing drugs.

On July 31, the decedent died from fentanyl toxicity and his body was
found with baggies of cocaine and fentanyl next to it. The fact that the
decedent sought to acquire more cocaine on July 30 from Peek-Antolin and
that a baggie of cocaine was found next to his body the next morning credibly
supports the supposition that the decedent may have acquired additional
drugs after the defendant’s delivery on July 29. Although the record supports
the inference that, at minimum, the decedent received more cocaine between
July 30 and his death, the record provides no further information about what
transpired and does not foreclose the possibility that the decedent acquired
additional fentanyl. Yet, Gaudreau testified at the bail hearing that no
evidence connected the defendant to any drug deliveries to the decedent after
July 29.

Moreover, the State presented no evidence as to the amount of fentanyl
found at the scene. The trial court attempted to elicit this information during
the hearing when it asked the detective if he knew “the quantity of the dirty
that was recovered in that bag.” The detective responded that it was “part of
the toxicology or the lab result report,” but that he did not “remember off the
top of [his] head what the quantity was.” When the court asked the detective
whether, given that he was at the scene of the decedent’s death, he could “form
a rough estimate of . . . the quantities of powder” based on his “training and
experience,” the detective responded that he could not tell the court “how much
it was,” but clarified that “[i]t wasn’t like a massive amount or anything crazy.”
Nor did the State present evidence as to whether two grams of fentanyl — the
amount that the decedent appears to have received on July 29 — would have
been sufficient to induce two overdoses or would have been enough to sustain
a long-time opiate addict like the decedent for thirty-six hours.

The trial court also attempted to elicit this information by specifically
asking Gaudreau, “do you know how many uses two dirty . . . do you have any
way of knowing how many personal usages that would comprise?” to which the
detective responded, “I do not know.” Therefore, given: (1) the extended period
of time between the July 29 delivery and the decedent’s death on July 31; (2)
that within this timeframe the decedent used fentanyl at least twice; (3) the
implication that another drug transaction occurred after July 29; and (4) the
State’s failure to present evidence regarding the amount of fentanyl found at
the scene of the decedent’s death or how long two grams of fentanyl would have
sustained the decedent, we conclude that no rational trier of fact could have

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found that the State met its burden of proving, by clear and convincing
evidence, that the fentanyl the defendant delivered on July 29 was the cause of
the decedent’s death.

On this record, we conclude that it is not “highly probable or reasonably
certain,” Black’s Law Dictionary, supra at 698, that the decedent died after
using the same fentanyl that the defendant delivered on July 29. See RSA
597:1-c; RSA 318-B:26, IX. Because we cannot determine, on this record,
whether the trial court’s ruling of dangerousness pursuant to RSA 597:2, III(a)
was influenced by its RSA 597:1-c ruling, we vacate and remand.

Reversed in part; vacated in
part; remanded.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;
HANTZ MARCONI, J., concurred in part and dissented in part.

Timothy A. Gudas,
Clerk

HANTZ MARCONI, J., concurring in part and dissenting in part. I agree
with my colleagues that the standard of review under RSA 597:1-c is de novo
when a defendant’s appeal challenges the sufficiency of the evidence. I
disagree that, on this evidence, the clear and convincing standard is not met. I
would affirm the order of the trial court.

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