2017-0345, The State of New Hampshire v. Brittany Boggs

part, reverse in part, and remand. (20 16). See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV. We affirm in instructing the jury on the presumption of knowledge set forth in RSA 638:4, II due process rights, as guaranteed by the State and Federal Constitutions, by defendant also argues that, as to one of the charges, the trial court violated her evidence presented at trial was insufficient to convict her of eit her felony. The Court (I gnatius, J.). See RSA 638:4, I (2016). She first contends that the convictions of issuing bad checks following a jury trial before the Superior DONOVAN, J. The defendant, Brittany Boggs, appeals two felony

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

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

No. 2 017 - 0345 Carroll

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

intent, the State highlighted the d efendant’s representation to the investi gating to the T avern. See RSA 638:4, IV(b). In an effort to prove the defendant’s the checks would not be honored by either of the ban ks when she issued them rea — that the defendant acted knowingly and that she knew or believed that whether the State could prove, beyond a reasonable doubt, the applicable mens debt had not otherwise been satisfied. Instead, the defense centered on checks, that TD Bank and Citizens Bank returned both checks, and that the At trial, the defen se did not contest that the defendant had issued both

i ssuing b ad c hecks, in violation of RSA 638:4 ( p. 2 2016). Carroll County Grand Jury indicted the defendant on two felony counts of Bank and Citizens Bank pursuant to a search warrant. On March 20, 2015, a defendant’s arrest. He also obtained the de fendan t ’ s bank records from TD remained un paid, which prompted the detective to apply for a warrant for the that she would satisfy the debt. By January 29, 2015, however, the debt was dishonored). Thereafter, the defendant repeatedly promised the detective costs and fees, within 14 days of defendant’s receipt of notice that the check defense upon payment of the amount of a dishonored check, together wi th all letter” to the defendant. See RSA 638:4, III (2016) (codifying an affirmative however, understood that the debt rema ined unsatisfied and issued a “14 day defendant informed him that she “had taken care of it already.” The detective, department contacted the defendant about the dishonored checks, and the In response to this complaint, a detective working for the sheriff’s

police. the debt remained unsatisfied as of December 31, the Tavern contacted the T avern reported the returned checks to the defendant in due course, but when by Citizens Bank because the account lacked sufficient funds to pay it. The account with Citizens Bank. On December p. 2 22, the second check was returned the bar tab. This check was drawn against the defendant’s personal checking wedding in the amount of $1,315.73 as pa yment for the costs associated with The defendant issued a second check to the Tavern on the night of her

November 19. December 16 because the Wolfeborough Diner account had been closed as of account on December 1 p. 2 2, but the check was returned by TD Bank on the defendant managed. The Tavern deposited the TD Bank check into its the Wolfeborough Diner LLC, a New Hampshire limited liability company that check was drawn against a TD Bank checking account held by an entity named the Tavern as payment for the predetermined cos ts of the reception. This December 11, the defendant issued one check, in the amount of $8,517.27, to issued to the Tavern the two checks at issue as payment for the reception. On food, beverages, space, and associated labor for the party, and t he defendant Hobbs Tavern and Brewing Company (the Tavern). The Tavern provided the the defendant was married and celebrated her nuptials with a reception at the The jury could have found the following facts. On December 1 p. 3 3, 2014, 3

insufficiently develop any constitutional arguments that the jury instruction defendant’s appellate arguments regarding a mandatory presumption preserve her mandatory presumption argument on appeal, and, further, the defendant’s objection to the jury instruction could not and did not adequa tely mandatory presumption argument on appeal. According to the State, the shifting claim, as asserted in the trial court, is distinct and separate from her The State’ s preservation argument s suggest that the defendant’s burden -

I. Preservation and Waiver

preservation arguments first. defendant’s guilt beyond a reasonable doubt. We address the State’s the evidence introduced at trial was more than sufficient to establish the develop s her constitutional claim s on appeal. The State also maintains that that, as a threshold matter, the defendant fai led to preserve and insufficiently insufficient to prove her intent beyond a reasonable doubt. The State counters convictions must be overturned because the evidence presented at trial was CONST. pt. I, art. 15; U.S. CONST. amend. XIV. Second, she asserts t hat both due process rights under the State and Federal Constitutions. See N.H. jury on the mandatory presumption set forth in RSA 6 p. 3 38:4, II in violation of her r espect to the TD Bank conviction, the trial court erred when it instructed the The defendant raises two issue s on appeal. First, she argues that, with

the jury returned guilty verdicts on both indictments. Following the instruction and jury deliberations, which last ed just 45 minutes, not be paid if the person had no ac count with the drawee at the time of issue.” payment is refused by the drawee is presumed to know that such check would purposes of [the TD Bank] charge, a person who issues a check for which cou rt overruled the defendant’s objections and instructed the jury that “for Hampshire Constitution and. . . the United States Constitution.” The trial “shifts the burden of proof. . . contrary to Part I, A rticle [15] of the New instruction just prior to the trial court’s jury charge by articulating that it the account had been closed.” The defense renewed its objection to the informing the jury that the presumption applied only “if [the defendant] knew the instruction w ere to be given, the trial court should include language know that she [did not] have a n account.” Defense counsel also argued that, if presumption did not apply to the case because the defendant “would need to because it “shifts the burden to the [d] efense.” He also argued that the for th in RSA 6 p. 3 38:4, II. Initially, defense counsel objected to the instruction State proposed, for the first time, an instruction regarding the presumption set the purpose of discussing final jury instructions. During that conference, the Following closing arguments, the trial court held a bench conference for

issue as documented by the bank records. had not been satisfied, and the historical status of the two bank accounts at detective that the T avern debt had been “taken care of,” the fact that the debt p. 4 4

the New Hampshire Constitution on appeal, thereby satisfying the second objection). Second, the defendant has specifically invoked Part I, A rticle 15 of did not preserve jury instruction issue because counsel never made a formal 163 N.H. 790, 792 (2012); cf. Berliner, 150 N.H. at 8 p. 4 4 - 85 (holding defendant correct the error. See State v. Mouser, 168 N.H. 19, 27 (2015); State v. Town, consider the issue now raised on appeal and provide d it with an opportunity to C onstitution. D efense counsel thus afforded the trial court an opportunity to referenced Part I, A rticle 15 of the New Hampshir e Constitution and the Federal Further, defense counsel formally stated his objection on the record and improperly shifted to her the burden of proof as to an element of the offense. the trial court to the defendant’s contention that the disputed instruction appellate review of a state constitutional claim. First, defense cou nsel alerted By doing so, the defendant fulfilled the two essential prerequisites to

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

assuming the objection was timely and properly asserted. preserve a due pro cess claim under the State and Federal Constitutions, mandatory character of the presumption, they each adequately and sufficiently Whether an objection is p remised on the burden - shifting e ffect or the the presumed element. See Francis v. Franklin, p. 4 471 U.S. 307, 313 - 14 (1985). includes a mandatory presumption relieves the State of its burden of proof on othe r. Both assertions articulate a d ue process c laim that a jury charge that two distinct and unrelated claims such that neither assertion preserves the argument against instructing a jury on a m andatory presumption represent We reject the State’s premise that a burden - shifting objection and an

these a ssertions. which the State objected and the trial court rejected. We disagree with each of objection to the jury instruction by proposing an alternative instruction to maintains that the defendant somehow waived or failed to preserve her improperly shifted the burden of p roof to the defendant. The State also p. 5 5

presumption was permissive, not mandatory. Accordingly, we do not view the included in its request language that explained to the jury that the the trial court to instruct the jury on the presumption, it should also have treated as permissive rather t han mandatory. Thus, when the State requested in the criminal law context, when the law creates a presumption, it is to be RSA 626:7, II(b) (emphas e s added). The effect o f th is statute is to insure that,

the following consequences: respect to a ny fact which is an element of an offense, it has II. When th is code establishes a presumption with

statute provides, in pertinent part, that: mandatory presumption on an element of the offense in its jury charge. That RSA 626:7, II(b) highlights the issue of the trial court’s inclusion of a

require the jury to find that the defendant had such knowledge. accomplished the task of informing the jury that the presumption itself did not when she issued the check — language which would, in essence, have presumption applied only if the defendant knew that the account was closed defendant did propose included the words “is presumed,” it also said that the alternative one. Furthermore, although the alternati ve instruction the defendant must not only object to the instruction but also propose an the proposition that to avoid a waiver of a jury instruction challenge a accurate, the State has not cited nor are we aware of any authority supporting the words “is presumed.” Althoug h the State’s factual assertions may be and (2) she proposed an alternative instruction to the tri al court that included relying on RSA 626:7, II(b) (2016) that would have cured any alleged infirmity; instruction bec ause: (1) she should have proposed an additional instruction argues that the defen dant “waived” her right to appeal the trial court’s jury somehow waived or insufficiently briefed this issue on appeal. The State We find equally unavailing the State’s claims that the defendant

claims for our review. Accordingly, we find that the defend ant properly preserved her jury instruction prerequisite for appellate review. See Dellorfano, 128 N.H. at p. 6 632 - 33. 6

issue in advanc e of closing arguments. court would have profited from a prior disclosure and, if necessary, a briefing on this particular final instructions and its deliberations. With the benefit of hindsight, the parties and the trial issue of first impression in this jurisdiction after closing arguments while the jury was awaiting frequently occur in jury trials. In this case, for example, the trial court was required to address an We note that issues concerning jury instructions can be exacerbated by time constraints that 1

or inference). instruction violated due process by creating an unconstitutional presumption 500 F.3d 840, 847 (9 th Cir. 2007) (reviewing de novo a claim that a jury instruc tion red uced State’s burden of proof); see also United States v. Lopez, (applying de novo review when resolving a defendant’s claim that jury review such matters de novo. See State v. Etienne, 1 p. 6 63 N.H. 57, 71 (2011) instruction raises a question of law relating to the State’s burden of proof, we Noucas, 165 N.H. 146, 154 (2013). However, when a particular jury generally fall within the sound discretion of the trial court. See State v. The necessity and the particular scope and wording of a jury instruction

to aid our analysis. State v. Ball, 124 N.H. 22 p. 6 6, 231 - 33 (1983). address this issue first under the State Constitution, relying on federal law only not shift the burden of proof or violate the defendant’s due process rights. We the bur den of proving all of the elements of the offense on the State, and did claims that the trial court’s charge, when viewed in its entirety, properly placed the presumption, as required by RSA 626:7, II (a) (2016). The State further found that it had presented sufficient evidence to establish the facts supporting State maintains that it was entitled to the instruction, because the tria l court Constitution. See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV. The Constitution and the Fourteenth Amendment to th e United States due process rights, as guaranteed by Part I, A rticle 15 of the New Hampshire shifted the burden of proof to her on the element of intent in violation of her Bank check charge created an impermissible, mandatory presumption that court’s inclusion of RSA 638:4, II’s language in its jury instruction on the TD We now turn to the merits of the defendant’s contention that the trial

II. RSA p. 6 638:4, II Instruction

developed for our review. 1 instruction and further find that her constitutional arguments are sufficiently that the defendant did not waive her right to appeal the trial court’s jury be en fully developed by the defendant before this c ourt. We, therefore, find shifting argument. T he constitutional questions initially raised at trial have sufficiently devel op on appeal the constitutional elements of her burden - Similarly, we reject the State’s contention that the defendant has failed to

her advocacy for an alternative presumption as a waiver. defendant’s failure to alert the trial court to alternative, statutory language or p. 7 7

the disputed instruction unquestionably “‘ created an unconstitutional burden - Hall, 148 N.H. at 399 (quoting Sandstrom, 442 U.S. at 515). Standing alone, could “‘ infer that conclusion; they were told only that the law presume d it. ’” Hall and Sandstrom, the jurors “‘ were not told that they had a choice, ’” or defendant issued the check knowing t hat the check would not be paid. As in juror c ould have understood to mean precisely what the words state — that the challenged language created a mandatory presumption that a n y reasonable circumstances exist.” RSA 626:2, II(b) (2016). Read in isolation, the in that she was “aware that [her] conduct is of such nature or that such statute thus requires the S tate to prove that the defendant acted “knowingly,” knowing or believing that the che ck would not b e paid by the drawee.” The prosecution, the State “shall prove that the person issued or passed the check the time of issue.” RSA 638:4, IV(b) mandates that, in any felony bad check such check would not be paid if the person had no account with the drawee at check for which payment is refused by the drawee is presumed to know that informed the j ury that “[f] or p urposes of this charge, a person who issues a The trial court’s jury instruction with respect to the TD Bank check

could have interpreted the instruction.”). his constitutional rights depends upon the way in which a reasonable juror Montana, 442 U.S. 510, 514 (19 p. 7 79) (“[W] hether a defendant has been accorded then consider it in the context of the charge as a whole. Id.; see Sandstrom v. been understood as creating such a presumption on the element of intent, we created a mandatory presumption. Id. If th at language could reasonably have determine whether the challenged jury instruction, when read in isolation, Hall, 148 N.H. at 398. Pursuant to Hall, our analysis requires that we first State prove every element of a criminal ch arge beyond a reasonable doubt.” presumption of criminal intent violates the due process requirement that th e We have ruled that “[a]n instruction that cr eates a mandatory

violated due process. instruction issued in this case constituted a mandatory presumption that presumed fact; rather, the issue we must decide is whether the particular the State’s evidence was sufficient to submit to the jury the existence of a as sufficient evidence” (emphase s added)). The issue before us is not whether doubt” and that the jury “may regard the facts giving rise to the presumption that presumed fact “must, on all the evidence, be proved beyond a reasonable that, when a presumed fact is submitted to the jury, trial court “shall charge” offense. See State v. Hall, 14 p. 8 8 N.H. 394, 398 (2002); RSA 626: p. 7 7, II(b) (providing instruction establishing a mandatory presumption on an element of the to an instruction regarding the presumption, it was not entitled to an State’s argument misses t he mark. Although the State may have been entitled the State had presented sufficient evidence supporting the presumption. The presumpt ion under RSA 626:7, II(a) because the trial court correctly found that The State maintains that it was entitled to the instruction regarding the 8

error and, accordingly, we assess the claim under a de novo standard of review. offenses. A challenge to the sufficiency of the evidence raises a claim of lega l insufficient evidence of intent to convict her of either of the issuing bad check We now address the defendant’s contention that the State presented

I II. Insuf ficiency of the Evidence

argument). N.H. 276, 292 (2015) (declining to address an insufficiently developed this argument is insufficiently briefed for our review. See State v. Roy, 167 jury instruction was harmless beyond a reasonable doubt, we conclude that applies to this type of error, and that the error associated with the trial court’s To the extent that the State argues that our harmless error analysis

endows the accused.” Sandstrom, 442 U.S. at 523 (quotations omitted). “conflict with the overriding pres umption of innocence with which the law potentially invade the fact - finding function assigned solely to the jury and presumptions not only shift the burden of proof to the defendant, they element of an offense is unconstitutional. Unqualified m andatory without explanation or qualification, that a presumption of guilt applie s to an the se cases support our conclusion that a jury instruction that informs a jury, Merriweather, 625 S.W.2d 256, 25 p. 8 8 (Tenn. 1981). The analyses set forth in State v. Adams, 443 N.E.2d 1047, 1053 (O hio Ct. App. 1982); State v. Ct. App. 2011); State v. Forrester, 657 P.2d 432, 437 - 39 (Ariz. Ct. App. 1983); due process rights. See, e.g., Durham v. State, 74 S o. 3d 908, 914 - 15 (Miss. statutory language creating mandatory presumptions concerning intent violate jurisdictions have similarly concluded that jury instructions based upon In the context of theft and issuing bad check cases, state courts in other

N.H. at 400. violated the defendant’s state constitution al right to due process. See Hall, 14 p. 8 8 whole, did not explain or cure this deficiency, we hold that the instruction TD Bank conviction, and because the trial court’s instructions, read as a shifted the burden to the defendant on the element of intent with respect to the understood the jury instruction to create a mandatory presumption that Sprague, 166 N.H. 29, 37 (2014). Because a reasonable juror could have contrary, we presume that jurors follow jury instructions. See State v. instruction or interpreted it as a rebutta b l e or permissive presumption. To the defendant, we cannot conclude that a reasonable juror could have ignored the offense and the presumption of innocence that must be applied to the instructed the jury as to the State’s burden of proving the elements of the the context of the trial court’s entire charge. Although the trial court properly Our conclusion is not altered by a review of the challenged language in

Franklin, 471 U.S. at 31 p. 8 8). shifting presumption with respec t to the element of intent. ’” Id. (quoting p. 9 9

through no fault of the party issuing check). T he sole issue left for the jury to where a legal stop payment order is issued or where drawee refuses payment the defendant. See RSA 638:4, I (providing for exceptions to criminal liability su ggesting that the exception s within RSA 638:4, I, applied or w ere asserted by institutions, refused each of the checks. No evidence was introduced at trial issue for the payment of money; and (2) the drawee s, the defendant’s banking both offense s. T he defendant did not contest that: (1) she passed the checks at evidence to prove beyond a reasonable doubt that the defendant committed most favorable to the State, we conclude that the State presented sufficient Viewing the evidence and the reasonable inferences therefrom in the light

would not be paid by the drawee.” RSA 638:4, IV(b). the person issued or passed the check “knowing or believing that the check In any felony prosecution under the statute, the State is required to prove that

through no fault of the person who issued or passed the check. issued or where the drawee refuses payment for any other reaso n drawee, except in cases where a legal stop payment order has been check for the payment of money and payment is refused by the A person is guilty of issuing a bad check if he issues or passes a

RSA 638:4, I, provides:

(quotation omitted). demonstrating that the evidence was insufficient to prove guilt.” Id. at 412 (quotation omitted). Nonetheless, the defendant “bears the burden of evidence have been excluded.” State v. Sanborn, 168 N.H. 400, 413 (2015) excluded, but, rather, whether all reasonable conclusions based upon the whether every possible conclusion consistent with innocence has been proof of guilt beyond a reasonable dou bt.” Id. “The proper analysis is not conclusion is sufficiently reasonable that a rational juror could not have found light most favorable to the State and determine whether the alternative 168 N.H. at 271 (quotation omitted). “Thus, we evaluate the evidence in the evidence “must exclude all reaso nable conclusions except guilt.” Houghton, presented at trial was solely circumstantial. Under these circumstances, the trial. Accordingly, we assume, without deciding, that the intent evidence State relied solely on circumstantial evidence to prove the defenda nt’s intent at T he defendant argues on appeal, and the State does not contest, that the

Saunders, 164 N.H. 342, 351 (2012). We also assume “all credibility resolutions in favor of the State.” State v. reasonable inferences therefrom, in the light most favorable to the State. Id. crime beyond a reasonable doubt. Id. We consider all of the evidence, and all whether any rati onal trier of fact could have found the essential elements of the the sufficiency of the evidence, we objectively review the record to determine State v. Houghton, 168 N.H. 26 p. 9 9, 271 (2015). When considering a challenge to p. 10 10

the Citizens Bank account records also esta blish that the defendant had a maintained insufficient balances to cover the face amount of the che ck. Third, leading up to the defendant issuing the check to the Tavern, the account TD Bank acco unt. Second, Citizens Bank records reveal that in the days the defendant opened the Citizens Bank account the day after the closing of the isolation, th e evidence was s ufficient to establish the defendant’s intent. First, honored when she issued it to the Tavern. When viewed in context and not in second check, drawn from her person al Citizens Bank account, would not be beyond a reasonable doubt, that the defendant knew or believed that the Similarly, the evidence presented at trial was sufficient to establish,

issued). satisfied solely by evidence of insufficient funds at the time the check is many issuing bad check cases a jury may find that the mens rea element is excluded. See State v. Stewart, 155 N.H. 212, 217 (200 7) (observing that in conclusion s based upon the evidence consistent with innocence had been circumstantial, a rational juror could have found that all reasonable been closed. Although the evidence as to the defendant’s intent was supports a rational inference that she knew th at the TD Bank account had Citizens Bank account the day after the T D Bank account was closed, which issued the TD Bank check. Moreover, the defendant opened her personal the substantial history of insufficient funds and returned items before she the defenda nt knew or believed that the check would not be honored in light of favorable to the State, a rational trier of fact could reasonably conclude that when she issued the check. However, viewing the evidence in the light most therefore, it is rational to infer that she did not know the status of the account Bank notified her that the Wolfeborough Diner account had been closed and, The defendant argues that no evidence was presented indicating that TD

account the day after the TD Bank account was closed. check to the Tavern. Moreover, the de fendant opened her Citize ns Bank the account was closed 22 days before the defendant issued the TD Bank closed, it had maintained a negative balance for more than a month and that insuff icient funds. The TD Bank records establish that when the account was had been continuously overdrawn, with dozens of items returned due to 14 and November 19, 2014, when TD Bank closed the account, the account account. An examinatio n of the TD Bank records reveals that between October manager of the Wolfeborough Diner, the entity identified as owning the that the defendant exercised control and authorization over the account as the With respect to the TD Bank checking account, the evidence established

not be honored. See RSA 638:4, I, IV(b). reasonable doubt, that the defendant knew or believed that both checks would wh ether the evidence presented to the jury was sufficient to establish, beyond a determin e was the defendant’s intent. Th e question on appeal is, thus, p. 11 11

LYNN, C.J.