State v. Luikart

• Decision Date: 04 May 2021
• Docket Number: No. 2019-0539,2019-0539
• Citation: 261 A.3d 928,174 N.H. 210
• Parties: The STATE of New Hampshire v. Bryan Weston LUIKART
• Court: New Hampshire Supreme Court

174 N.H. 210

261 A.3d 928

The STATE of New Hampshire

v.Bryan Weston LUIKART

No. 2019-0539

Supreme Court of New Hampshire.

Argued: September 24, 2020

Opinion Issued: May 4, 2021

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the memorandum of law and orally), for the State.

Simpson & Mulligan, P.L.L.C., of Lebanon (Gary Apfel, on the brief and orally), for the defendant.

HANTZ MARCONI, J.

The defendant, Bryan Weston Luikart, appeals an order of the Circuit Court (Bamberger, J.) imposing a portion of his suspended sentence. The defendant argues the trial court erred in finding that the State met its burden of proving that he violated the good behavior condition of his suspended sentence by committing witness tampering. See RSA 641:5, I(b) (2016). We reverse.

I

The pertinent facts before the trial court and the procedural posture of the case, established by the record from the motion hearing, are as follows.¹ See State v. Smith, 163 N.H. 13, 18, 35 A.3d 646 (2011) (explaining "the trial court must independently evaluate the evidence before it" to impose a suspended sentence (quotation and brackets omitted)); State v. Gibbs, 157 N.H. 538, 539, 542, 953 A.2d 439 (2008). On February 5, 2018, the defendant pled guilty to various charges and was sentenced to 90 days’ incarceration, suspended for a period of two years. Conditions on the defendant's suspended sentence included that the defendant "complete [a] batterer's intervention program and be of good behavior."

Following his sentencing, the defendant enrolled in his first batterer's intervention program, but his participation in the program ended on January 24, 2019, for reasons irrelevant to this appeal. As a result of the defendant's departure from the program, the State moved to impose the defendant's suspended sentence on February 8. The defendant then enrolled in a second batterer's intervention program on February 19, and the State withdrew its motion to impose on February 28.

Three days later, on March 3, the defendant sent the following e-mail to his ex-wife: "If you want to be on friendly communicating terms for the best interest of [our child] you might want to consider not trying to trigger the suspended sentence and not trying to continue hurting me. You are the abuser." On March 7, the State filed a new motion to impose the defendant's suspended sentence. A hearing on the State's motion was held on July 23. The State's evidence included the defendant's e-mail, its withdrawn February 8 motion, its March 7 motion, the defendant's suspended sentence, and its offers of proof supporting its argument that the defendant committed witness tampering, see RSA 641:5, I(b), and, consequently, that he violated the good behavior condition of his suspended sentence. The trial court granted the State's motion to impose, finding the evidence before it "sufficient to grant the State's motion, at least generally." The trial court imposed ten days of the defendant's 90-day sentence, with the balance suspended for an additional year. Over the State's objection, the trial court granted the defendant's request for a stay of the imposition pending appeal. The defendant filed a motion to reconsider the trial court's imposition of his suspended sentence, which was denied. This appeal followed.

II

The defendant argues that the trial court erred in finding he violated the good behavior condition of his suspended sentence by committing witness tampering, and in doing so characterizes his argument as a challenge to the "sufficiency of the evidence," which is consistent with language used in our prior cases. See, e.g., State v. Benner, 172 N.H. 194, 202, 211 A.3d 702 (2019) (deferred-sentence violation); Smith, 163 N.H. at 18, 35 A.3d 646 (suspended-sentence violation); State v. Kay, 162 N.H. 237, 243-44, 27 A.3d 749 (2011) (probation violation). On appeal, the defendant must show that the evidence, viewed in the light most favorable to the State, fails to support the trial court's decision. Benner, 172 N.H. at 202, 211 A.3d 702. Because a challenge to the sufficiency of the evidence raises a claim of legal error, our standard of review is de novo.² Id. ; see, e.g., State v. Folley, 172 N.H. 760, 771, 235 A.3d 107 (2020) ("Our review of the trial court's legal conclusions is de novo."); State v. Ducharme, 167 N.H. 606, 613, 116 A.3d 1281 (2015).

"[T]he imposition of a suspended sentence is the remedy for a defendant's noncompliance, not a punishment for the underlying acts," Gibbs, 157 N.H. at 541, 953 A.2d 439, and determining whether a defendant has violated a condition of his or her suspended sentence presents a "separate task" from determining whether the defendant may bear criminal liability for the same underlying acts, id. at 542, 953 A.2d 439 ; see State v. Dunn, 164 N.H. 268, 271, 55 A.3d 974 (2012) ("A jury acquittal of criminal charges is not dispositive as to whether a suspended sentence should be imposed." (quotation and brackets omitted)). Thus, in the context of considering a motion to impose a defendant's suspended sentence, the trial court must independently evaluate the evidence before it to determine whether the State proved, by a preponderance of the evidence, that violation of the suspension condition occurred. See Smith, 163 N.H. at 18, 35 A.3d 646 ; Gibbs, 157 N.H. at 542, 953 A.2d 439.

Accordingly, to prevail on a challenge asserting that the trial court erred in finding a violation of a suspension condition, a defendant must show that the evidence before the trial court on a motion to impose, viewed in the light most favorable to the State, fails to support the trial court's decision that the State met its burden to prove, by a preponderance of the evidence, that a violation of a condition of the suspended sentence occurred. See Kay, 162 N.H. at 243-45, 27 A.3d 749 ; Benner, 172 N.H. at 202, 211 A.3d 702 ; see also Smith, 163 N.H. at 18, 35 A.3d 646 ; Gibbs, 157 N.H. at 540, 542, 953 A.2d 439.

Here, we conclude that, even when viewed in the light most favorable to the State, the evidence adduced at the motion hearing fails to establish, by a preponderance of the evidence, that the defendant committed witness tampering. See RSA 641:5, I(b). Witness tampering was the only theory advanced by the State in support of its March 7 motion alleging that the defendant violated his condition to be of good behavior, and we do not interpret the trial court's ruling as having independently found, from the evidence before it, that the defendant's behavior amounted to another type of criminal conduct which violated the good behavior condition.³ See Smith, 163 N.H. at 18, 35 A.3d 646 ; Gibbs, 157 N.H. at 542, 953 A.2d 439 ; see also Kay, 162 N.H. at 242, 27 A.3d 749 ("Our interpretation of a trial court order is a question of law, which we review de novo."). Because the evidence does not support the trial court's decision that the defendant violated his condition to be of good behavior, we conclude that the trial court erred in granting the State's motion to impose his suspended sentence. See Kay, 162 N.H. at 244, 27 A.3d 749.

"[G]ood behavior" means "conduct conforming to the law." State v. Auger, 147 N.H. 752, 753, 802 A.2d 1209 (2002) (quotation omitted). To impose a suspended sentence on the ground that the defendant has violated a condition of good behavior, a trial court must find that "the defendant engaged in criminal conduct." Id. at 753-54, 802 A.2d 1209 (concluding that "trial court may not impose the defendant's suspended sentences upon proof that he committed a violation-level offense" because a violation does not constitute a crime). However, proof of a criminal conviction is not necessary to prove a good behavior violation because the State's burden to prove a violation of a suspended sentence is by a preponderance of the evidence; it need not "establish criminal liability" beyond a reasonable doubt. Stapleford v. Perrin, 122 N.H. 1083, 1089, 453 A.2d 1304 (1982) ; see Gibbs, 157 N.H. at 540, 542, 953 A.2d 439 (distinguishing the "separate task[s]" of a jury determination of whether evidence established the defendant committed the alleged crimes beyond a reasonable doubt, and a trial court's evaluation of whether the evidence established a violation of the suspension conditions by a preponderance of the evidence).

The defendant was not convicted of, or charged with, witness tampering. In the absence of a criminal conviction for the acts that allegedly constitute the good behavior violation, the State can satisfy its burden by proving "the commission of the underlying acts." Gibbs, 157 N.H. at 540, 953 A.2d 439 (quotation omitted); see Moody v. Cunningham, 127 N.H. 550, 553-54, 503 A.2d 819 (1986) (holding evidence of criminal indictment was insufficient, standing alone, to justify imposing suspended sentence because "[i]n the absence of a criminal conviction, the fact-finder must make an independent determination that the defendant committed the alleged violations").

Although the State need not "establish criminal liability" to prove a good behavior violation, Stapleford, 122 N.H. at 1089, 453 A.2d 1304, the State must still establish that the defendant engaged in criminal conduct, i.e., conduct not in conformance with the law, Auger, 147 N.H. at 753-54, 802 A.2d 1209. Thus, the court must look to the law as articulated to determine whether the defendant's behavior was not in conformity therewith. See, e.g., id. (looking to RSA 265:81-a (1993) to evaluate the conduct allegedly supporting the State's motion to impose and concluding the defendant's conduct amounted to only a violation-level offense per the statute); Gibbs, 157 N.H. at 542, 953 A.2d 439 (concluding that the trial court's determination that defendant violated a condition of his suspended sentence was "properly premised solely upon the evidence adduced at [his criminal] trial," despite defendant being acquitted, given the lesser burden of proof on a motion to...