State v. Boggs

• Decision Date: 06 July 2018
• Docket Number: No. 2017–0345,2017–0345
• Citation: 191 A.3d 535,171 N.H. 115
• Parties: The STATE of New Hampshire v. Brittany BOGGS
• Court: New Hampshire Supreme Court

171 N.H. 115

191 A.3d 535

The STATE of New Hampshire

v.Brittany BOGGS

No. 2017–0345

Supreme Court of New Hampshire.

Argued: May 15, 2018

Opinion Issued: July 6, 2018

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

DONOVAN, J.

The defendant, Brittany Boggs, appeals two felony convictions of issuing bad checks following a jury trial before the Superior Court (Ignatius, J.). See RSA 638:4, I (2016). She first contends that the evidence presented at trial was insufficient to convict her of either felony. The defendant also argues that, as to one of the charges, the trial court violated her due process rights, as guaranteed by the State and Federal Constitutions, by instructing the jury on the presumption of knowledge set forth in RSA 638:4, II (2016). See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amend. XIV. We affirm in part, reverse in part, and remand.

The jury could have found the following facts. On December 13, 2014, the defendant was married and celebrated her nuptials with a reception at the Hobbs Tavern and Brewing Company (the Tavern). The Tavern provided the food, beverages, space, and associated labor for the party, and the defendant issued to the Tavern the two checks at issue as payment for the reception. On December 11, the defendant issued one check, in the amount of $8,517.27, to the Tavern as payment for the predetermined costs of the reception. This check was drawn against a TD Bank checking account held by an entity named the Wolfeborough Diner LLC, a New Hampshire limited liability company that the defendant managed. The Tavern deposited the TD Bank check into its account on December 12, but the check was returned by TD Bank on December 16 because the Wolfeborough Diner account had been closed as of November 19.

The defendant issued a second check to the Tavern on the night of her wedding in the amount of $1,315.73 as payment for the costs associated with the bar tab. This check was drawn against the defendant's personal checking account with Citizens Bank. On December 22, the second check was returned by Citizens Bank because the account lacked sufficient funds to pay it. The Tavern reported the returned checks to the defendant in due course, but when the debt remained unsatisfied as of December 31, the Tavern contacted the police.

In response to this complaint, a detective working for the sheriff's department contacted the defendant about the dishonored checks, and the defendant informed him that she "had taken care of it already." The detective, however, understood that the debt remained unsatisfied and issued a "14 day letter" to the defendant. See RSA 638:4, III (2016) (codifying an affirmative defense upon payment of the amount of a dishonored check, together with all costs and fees, within 14 days of defendant's receipt of notice that the check was dishonored). Thereafter, the defendant repeatedly promised the detective that she would satisfy the debt. By January 29, 2015, however, the debt remained unpaid, which prompted the detective to apply for a warrant for the defendant's arrest. He also obtained the defendant's bank records from TD Bank and Citizens Bank pursuant to a search warrant. On March 20, 2015, a Carroll County Grand Jury indicted the defendant on two felony counts of issuing bad checks, in violation of RSA 638:4 (2016).

At trial, the defense did not contest that the defendant had issued both checks, that TD Bank and Citizens Bank returned both checks, and that the debt had not otherwise been satisfied. Instead, the defense centered on whether the State could prove, beyond a reasonable doubt, the applicable mens rea—that the defendant acted knowingly and that she knew or believed that the checks would not be honored by either of the banks when she issued them to the Tavern. See RSA 638:4, IV(b). In an effort to prove the defendant's intent, the State highlighted the defendant's representation to the investigating detective that the Tavern debt had been "taken care of," the fact that the debt had not been satisfied, and the historical status of the two bank accounts at issue as documented by the bank records.

Following closing arguments, the trial court held a bench conference for the purpose of discussing final jury instructions. During that conference, the State proposed, for the first time, an instruction regarding the presumption set forth in RSA 638:4, II. Initially, defense counsel objected to the instruction because it "shifts the burden to the [d]efense." He also argued that the presumption did not apply to the case because the defendant "would need to know that she [did not] have an account." Defense counsel also argued that, if the instruction were to be given, the trial court should include language informing the jury that the presumption applied only "if [the defendant] knew the account had been closed." The defense renewed its objection to the instruction just prior to the trial court's jury charge by articulating that it "shifts the burden of proof ... contrary to Part I, Article [15] of the New Hampshire Constitution and ... the United States Constitution." The trial court overruled the defendant's objections and instructed the jury that "for purposes of [the TD Bank] charge, a person who issues a check for which payment is refused by the drawee is presumed to know that such check would not be paid if the person had no account with the drawee at the time of issue." Following the instruction and jury deliberations, which lasted just 45 minutes, the jury returned guilty verdicts on both indictments.

The defendant raises two issues on appeal. First, she argues that, with respect to the TD Bank conviction, the trial court erred when it instructed the jury on the mandatory presumption set forth in RSA 638:4, II in violation of her due process rights under the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amend. XIV. Second, she asserts that both convictions must be overturned because the evidence presented at trial was insufficient to prove her intent beyond a reasonable doubt. The State counters that, as a threshold matter, the defendant failed to preserve and insufficiently develops her constitutional claims on appeal. The State also maintains that the evidence introduced at trial was more than sufficient to establish the defendant's guilt beyond a reasonable doubt. We address the State's preservation arguments first.

I. Preservation and Waiver

The State's preservation arguments suggest that the defendant's burden-shifting claim, as asserted in the trial court, is distinct and separate from her mandatory presumption argument on appeal. According to the State, the defendant's objection to the jury instruction could not and did not adequately preserve her mandatory presumption argument on appeal, and, further, the defendant's appellate arguments regarding a mandatory presumption insufficiently develop any constitutional arguments that the jury instruction improperly shifted the burden of proof to the defendant. The State also maintains that the defendant somehow waived or failed to preserve her objection to the jury instruction by proposing an alternative instruction to which the State objected and the trial court rejected. We disagree with each of these assertions.

We reject the State's premise that a burden-shifting objection and an argument against instructing a jury on a mandatory presumption represent two distinct and unrelated claims such that neither assertion preserves the other. Both assertions articulate a due process claim that a jury charge that includes a mandatory presumption relieves the State of its burden of proof on the presumed element. See Francis v. Franklin, 471 U.S. 307, 313–14, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Whether an objection is premised on the burden-shifting effect or the mandatory character of the presumption, they each adequately and sufficiently preserve a due process claim under the State and Federal Constitutions, assuming the objection was timely and properly asserted.

We next address whether the defendant's objections in this case were so properly and timely raised. To preserve a state constitutional claim for appellate review, a defendant must: (1) raise it in the trial court; and (2) on appeal, specifically invoke a provision of the State Constitution in his or her brief. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163 (1986). Relying on Berliner v. Clukay, 150 N.H. 80, 83–85, 834 A.2d 297 (2003), the State argues that the defendant failed to preserve her jury instruction claim because she proposed an instruction that included the language "is presumed." This argument, however, is based upon a faulty premise. Although the defendant requested a modification to the State's proposed instruction based upon the language of RSA 638:4, II, the trial court rejected her request and adopted the State's instruction in total. In response, the defendant asserted a formal objection to the instruction, arguing that the State's instruction "shifts the burden of proof and that's contrary to Part I, Article [15] [of] the New Hampshire Constitution and ... the United States Constitution."

By doing so, the defendant fulfilled the two essential prerequisites to appellate review of a state constitutional claim. First, defense counsel alerted the trial court to the defendant's contention that the disputed instruction improperly shifted to her the burden of proof as to an element of the offense. Further, defense counsel formally stated his objection on the record and referenced Part I, Article 15 of the New Hampshire Constitution and the Federal Constitution. Defense counsel thus afforded the trial court an opportunity to consider the issue now raised on appeal and provided it with an opportunity to correct the...