State v. King, 2014–0576

Citation168 N.H. 340,127 A.3d 1255
Decision Date10 November 2015
Docket NumberNo. 2014–0576,2014–0576
Parties The STATE of New Hampshire v. Marianne KING
CourtSupreme Court of New Hampshire

Joseph A. Foster, attorney general (Patrick J. Queenan, assistant attorney general, on the memorandum of law and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

DALIANIS, C.J.

The defendant, Marianne King, appeals her conviction by a jury on one count of theft by unauthorized taking. See RSA 637:3 (2007). She argues that the Superior Court (Garfunkel, J.) erred by giving the jury a portion of the instruction we endorsed in State v. Germain, 165 N.H. 350, 360–61, 79 A.3d 1025 (2013). We affirm.

In Germain we exercised our "supervisory jurisdiction over the trial courts of New Hampshire" by endorsing "the following model instruction regarding direct and circumstantial evidence":

There are two types of evidence—direct and circumstantial. Direct evidence is direct proof of a fact, such as the testimony of a witness based upon personal knowledge—that is, what the witness actually saw, heard or otherwise directly experienced. Circumstantial evidence is indirect evidence which tends to prove a disputed fact by proof of other facts. Let me give you a brief example to demonstrate the difference between direct and circumstantial evidence. [Insert example.]
That is all there is to circumstantial evidence. On the basis of reason and common sense you infer from an established fact the existence or non-existence of another fact.
You should consider both types of evidence. There is no legal distinction between the weight of direct evidence as compared to circumstantial evidence. You are permitted to give equal weight to both, but you must decide how much weight to give any evidence, whether it be direct or circumstantial. However, there is a rule relating to circumstantial evidence that you must keep in mind. If the State presents only circumstantial evidence to prove one or more elements of the charged offense, then in order to convict, you must find that the totality of the evidence excludes all reasonable conclusions other than guilt. This means that if it is reasonable to arrive at two conclusions, one consistent with guilt and one consistent with innocence, then you must choose the reasonable conclusion consistent with innocence. In determining whether all reasonable conclusions other than guilt have been excluded, you should not consider any item of circumstantial evidence in isolation. Rather, you should consider each item of circumstantial evidence in the context of all the other evidence.
You must understand, however, that this circumstantial evidence rule does not apply to direct evidence. Therefore, if there is a conflict between witnesses who offer direct evidence concerning certain facts, you must decide which witness to believe. For example, suppose there are two eye witnesses to a crime, and one testifies that the defendant committed the crime and the other testifies that the defendant did not commit the crime. This presents a situation where there is a conflict in the direct evidence. In this situation, you, the jury, must decide which witness to believe, and whether—based upon all of the evidence—the State has proven the defendant's guilt beyond a reasonable doubt.
In summary, you should consider all the evidence in the case and decide whether the State has proven the defendant guilty beyond a reasonable doubt.

Germain, 165 N.H. at 360–61, 79 A.3d 1025.

At trial, the defendant argued that it was error to instruct the jury that "if there is a conflict between witnesses who offer direct evidence concerning certain facts, you must decide which witness to believe." Id. at 361, 79 A.3d 1025. She asserted that this instruction, which, for the purposes of this appeal, we refer to as "the Germain direct-evidence instruction," was "misleading" because it conflicted with the State's burden to prove the elements of the crime beyond a reasonable doubt:

It's our position ... that the way this is worded seems to inquire, let's say in this case the jury is deciding whether to believe [a witness] over [the defendant], [and] is called upon to make a conclusion as to—final conclusion as to a certain fact. It is certainly possible that the jury could find either that it's more likely that [the defendant] is telling the truth or more like[ly] that [the witness] is telling the truth, but not sufficiently.
So to get to the beyond a reasonable doubt certainty, the jury should not be instructed, they must choose basically an absolute certainty as to that fact, that that is misleading, resulting in a question of whether or not the verdict was based on a finding of beyond a reasonable doubt.

The trial court overruled the defendant's objection to the instruction, stating: "As we discussed, the New Hampshire Supreme Court has instructed us to give this instruction exactly as it appears, and so the instruction will remain."

In addition to giving the jury the entire instruction we endorsed in Germain, the trial court instructed:

In deciding whether the State has proven the charge against the Defendant beyond a reasonable doubt, you must consider the credibility of witnesses. That is, it is up to you to decide who to believe.
If there is any conflict between the witnesses, then you must resolve the conflict and decide what the truth is. Simply because a witness has taken an oath to tell the truth, does not mean that you have to accept the testimony as true.
In deciding which witnesses to believe, you should use your common sense and judgment, and I suggest you consider a number of factors, the witness's age, intelligence, and experience; whether the witness appeared to be candid; whether the witness appeared worthy of belie[f]; the accuracy of the witness's memory; the appearance and demeanor of the witness while testifying; whether the witness has an interest in the outcome of the case; whether the witness has any reason for not telling the truth; whether what the witness said seemed reasonable or probable; whether what the witness said seemed unreasonable or inconsistent with the other evidence in the case; and whether the witness had any friendship or animosity towards other people in the case.
You should consider these factors in deciding the credibility of all the witnesses, whether they happen to be ordinary citizens or police officers. In short, you should consider the testimony of each witness and give it the weight that you think it deserves.
You can accept all of what a witness says, you can reject all of what a witness says, or you can accept some of it and reject some of it, it is up to you.
In deciding whether to believe a witness and how much of his or her testimony to believe, you should consider both
...

To continue reading

Request your trial
7 cases
  • State v. DePaula
    • United States
    • New Hampshire Supreme Court
    • June 22, 2017
    ...the home invasion. See State v. Germain, 165 N.H. 350, 359, 79 A.3d 1025 (2013), modified in part on other grounds by State v. King, 168 N.H. 340, 345, 127 A.3d 1255 (2015). It is doubtful that the victims could have excluded the assaults from their retelling of the home invasion without ap......
  • State v. Boggs
    • United States
    • New Hampshire Supreme Court
    • July 6, 2018
    ...doubt." State v. Germain, 165 N.H. 350, 362, 79 A.3d 1025 (2013) (quotation omitted), modified on other grounds by State v. King, 168 N.H. 340, 345, 127 A.3d 1255 (2015) ; see also State v. Gagne, 165 N.H. 363, 367, 79 A.3d 448 (2013) (emphasizing that when evidence as to an element is sole......
  • State v. Carnevale
    • United States
    • New Hampshire Supreme Court
    • November 26, 2019
    ...conclusions except guilt." State v. Germain, 165 N.H. 350, 361, 79 A.3d 1025 (2013), modified on other grounds by State v. King, 168 N.H. 340, 345, 127 A.3d 1255 (2015). "The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, w......
  • State v. Stanin
    • United States
    • New Hampshire Supreme Court
    • March 30, 2018
    ...of innocence." State v. Germain, 165 N.H. 350, 362, 79 A.3d 1025 (2013), modified in part on other grounds by State v. King, 168 N.H. 340, 345, 127 A.3d 1255 (2015) (quotation omitted). "The proper analysis is not whether every possible conclusion consistent with innocence has been excluded......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT