2018-0130, The State of New Hampshire v. David Vincelette

civil contempt proceedings. Judge Bornstein presided over the criminal contempt trial but did not preside over the previous 1

violated the court’s order.” We affirm. finding that the State presented sufficient evidence that [he] intentionally Town - owned nature preserve. The defendant argues th at “[t] he court erred by with the Town of Hanover’s efforts to remove debris from a right of way and violating a January 2016 trial court order that prohibited him from interfering Superior Court (Bornst e i n, J.) finding that he committed criminal contempt by 1 BASSETT, J. The defendant, David Vincelette, appeals a decision of the

and Anthony Naro, public defender, orally, for the defendant. Eric S. Wolpin, assistant appellate defender, of Concord, on the brief,

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

No. 2018 - 0130 Grafton

address of the court’ s home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by e - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to pre ss. Errors may be reported 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 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 as 2

approximately five minutes, the defendant sat on, or stood near, the wood vehicles to remove the debris, and repeatedly ordered them to leave. For be held liable for engaging in illegal activity, declared that they could not use Town employees while yelling and swearing at the m, told them that they would for maintenance or emergencies. The defendant stood in close proximity to the right of way, the Town was allowed to drive vehicles on the right of way solely deed creating the right of way allowed him to drive his personal vehicle on the could not use vehicles to remove the debris. He asserted that, although the order and read portions of it aloud. The defendant responded that the Town Sheriff ’s Department, gave the defendant a copy of t he January p. 2 2016 court recorded by the police in a forty - five minute video. Lieutenant Kelly, from the encountered the defendant and a confrontation ensu ed, much of which was right of way and the nature preserve. When they entered the right of way, they the right of way with heavy equipment intending to remove the debris from the accompanied by members of the Grafton County Sheriff’s Department, went to In May 2016, employees of the Hanover Department of Public Works,

[debris] from the right of way and the [Town ’s] property.” interfering with the [Town ’s] exercise of its right s to remove the defendant’s his truck after 10 - 15 minutes, it ordered the defendant “t o immediately cease declin ed to find the defendant in contempt because the defendant had moved conduct “was in violatio n of the October p. 2 29, 2015 order.” Althou gh t he court another order in which it concluded that the defendant’s November 2015 held a hearing in January 2016. After the hearing, t he trial court issued yet nature preserve. The Town filed a third motion for contempt and the court right of way, which blocked the Town’s access to the right of way and the In November 2015, the defendant parked his pickup truck across the

defendant’s debris.” property,” and provided that “[t]he [Town] may resume removing the remove the defendant’s materials from the right of way and the [Town ’s] “to immediately cease interfering with the [Town ’s] exercise of its rights to the defendant in civil contempt for a second time. The trial court ordered him defendant had failed to comply with the September order, the trial court found debris from the right of way and nature preserve. In October p. 2 2015, when the of court for violating the May order, and again ordered him to remove the In September 2015, the trial court found the defendant in civil contempt

the debris by June 1, p. 2 2015. access the [T] own’s property.” The trial court ordered the defendant to remove of way was “narrow [ed]. . . to such a width that it is difficult for a vehicle to appliances on the nature preserve and on the right of w ay such that the right numerous objects,” including wood pallets, abandoned vehicles, boats, and resides. In May 2015, the trial court found that the defendant had “placed accessed by a deeded right of way that crosses land where the defendant T he pertinent facts are as follows. The Town - owned nature preserve is p. 3 3

the Federal or State Constitutions. The trial court imposed a four - month concluded that none of the charged conduct was protected speech under either tone of voice, manner, and demeanor” from the video. The trial court also contempt, noting that it “was able to observe the defendant’s conduct, speech, that he acted purposely.” The trial court found the defendant guilty of criminal intentionally committed each of the charged acts in violation of the Order and evidence established beyond a reasonable doubt that the defendant In January 2018, the trial court issued an order concluding that “[t] he

with Town employees and law enforcement. introduced into evidence the forty - five minute police video of his interactions withdraw from the area and come back at another day.” The defendant escalating. And we made a decision where it was the safety of everybody to and his mannerisms were escalating; they weren’t de - escalating, they were is and how he was acting.” Kelly also testified that the defendant’s “attitude employees] were concerned about the safety risk of him, not knowing where he the heavy equipment” which “stop ped what was going on because [T own testified that the defendant had yelled and cursed, and “walk [ed] in between equipment, and made the situation “unstable” and “not . . . safe.” Kelly to remove the debris, was “very a ggressive,” moved within five feet of the heavy of Public Works testified that the defendant, in response to the Town’s attempts December 2017. The Operations Manager for the Town of Hanover Department The trial court conducted a two - day bench trial that concluded in

by Town of Hanover employees.” walking up to and/or behind and/or in between the heavy machinery brought interfered with the Town’s actions by “[c]reating a dangerous situation by defendant’s physical acts. The State alleged that the defendant physically preserve. Five acts involved the defendant’s statements and one involved the removal of the defendant’s debris from the right of way and the nature 16, 2016, the defendant committed six acts which interfered with the Town’s contempt for violating the January 2016 order. The State alleged that, on May the Grafton County Attorney’s Office. The defendant was charged with criminal defendant in civil contempt of court for a third time, and referred the case to contempt, the trial court held another hearing. The trial court found the In September 2016, after the Town had filed another motion for

allow them to remove the debris. decided to leave after the defendant repeatedly said that he was not going to to stop working. T he T own employees and law enforcement officers ultimately defendant’s close proximity to the Town’s vehicles caused the Town employees no, no, no trucks down here . .. hey stop.” On multiple occasions, t he one point the defendant approached a moving dump truck while shouting, “no, which Kelly positioned himself between the defendant and the employee. At remove. H e also made repeated physical contact with a T own employee, after pallets that the trial court had previously decreed the Town had a right to p. 4 4

he acted with the requisite intent. We are not persuaded. evidence to prove that his actions on May 16, 2016, violated the order and that contends that the State has failed to meet its burden to adduce sufficient validity of the January 2016 order, or his knowledge thereof. R ather, he Linsky, 117 N.H. 866, 872 (1977). The defendant does not challenge the defendant’ s intentional failure to comply with the order. Id.; see also State v. the existence of a valid order, the defendant’ s knowledge of t he order, and the indirect criminal contempt, the State must prove beyond a reasonable doubt having personal knowledge of every element of contempt. Id. at 19. To prove contempt is committed outside the presence of the judge, without the judge defendant had knowledge. State v. Smith, 163 N.H. 13, 18 - 19 (2011). Indirect defendant has intentionally failed to comply with a valid order of which the Criminal contempt is a sanction imposed by the trial court when a

hypothesis of innocence. Id. consistent with guilt and inconsistent, on the whole, with any reas onable 362. Rather, we must consider whether the circumstances presented are evidentiary fragments support a reasonable hypothesis other than guilt. Id. at discrete pieces in an effort to establish that, when viewed in isolation, these not review each circumstance proved in isolation or break the evidence into modified on other grounds by State v. King, 168 N.H. 3 p. 4 40, 345 (2015). We do the evidence have been excluded. State v. Germain, 165 N.H. 350, 361 (2013), has been exclude d, but, rather, whether all reasonable conclusions based upon analysis is not whether every possible conclusion consistent with innocence conclusions except guilt. See Morrill, 169 N.H. at 718 - 19. However, t he proper element of proof is solely circumstantial, it must exclude all reasonable State v. Zubhuza, 166 N.H. 125, 130 (2014). When the evidence as to an and may be inferred from the defendant’s conduct under all the circumstances. A defendant’s intent often must be proved by circumstantial evidence

reasonable doubt. Id. the light most favorable to the State, could have found guilt beyond a trier of fact, viewing all of the evidence and all reasonable inferences from it in to the sufficiency of the evidence, the defendant must prove that no rational novo. State v. Morrill, 169 N.H. 709, 718 (2017). To prevail upon a challenge the evidence raises a claim of legal error; therefore, our standard of review is de and that he acted with the requisite intent. A challenge to the sufficiency of evidence to prove that, on May 16, 2016, he violated the January 2016 order, On appeal, the defendant argues that the State introduced insufficient

court denied the defendant’s motion to reconsider, and this appeal followed. continu e treatment through the U.S. Department of Veteran s Affairs. The trial had already served, on the condition that he remain of good behavior and sentence. It suspended, for two years, all but the eight days that the defendant p. 5 5

626:2, II(a) (2016). cause the result or engage in the conduct that comprises the element.” RSA respect to a material element of an offense when his conscious object is to (2016). RSA 626:2, II(a) establishes that “[a] person acts purposely with synonymous wi th “purposely.” See, e.g., State v. Thomas, 168 N.H. p. 5 589, 601 purposes of determining the mens rea for an offense, “intentionally” is “intentionally” failed to comply with the order. Smith, 163 N.H. at 18 - 19. F or guilty of criminal contempt, the State must prove that the defendant evidence to prove that he acted with the requisite intent. T o find the defendant The defendant next argues that the State did not adduce sufficient

Morrill, 169 N.H. at 718. and nature preserve for the purpose of remov ing the defendant’s debris. See that the defendant interfered with the Town ’s ability to access the right of way favorable to the State, we conclude that a rational fact - finder could have found on this ev idence, and all reasonable inferences from it viewed in the light most employees to “withdraw from the area and come back at another day.” Based as Kelly testified at the hearing, the “safety of everybody” required the defendant’s conduct, the Town ceased its efforts to remove the debris because, enforcement officers and T own employees to leave. Indeed, i n reaction to the physical contact with a T own employee; and belligerently ordered th e law that the Town could not operate vehicles on the right of way; repeatedly made had authorized the Town to remove; repeatedly — and aggressively — asserted it s safe operation; sat on a pile of wood pallets that previous trial court orders defendant approached and stood near th e heavy equipment, which prevented interfered with the Town’s ability to remove debris. The video shows that the acts interfered with the Town’s vehicular access to the right of way and The police video shows that on May 16, 2016, the defendant ’s physical

the right of way would constitute a contemptuous act. 201 p. 6 6 order plainly stated that interf ering with the Town’s vehicular access to continue to interfere with the [Town’s] lawful actions.” Therefore, the January contempt or on other grounds should he threaten the [Town ’s] employees or warned the defendant that he “risk[ed] arrest and criminal prosecution for found in contempt and possibly incarcerated on that basis.” The trial court right to access the right of way and/or its removal [of] his [debris] he may be “caution[ed] the defendant that should he in terfere further with the [Town ’s] the defendant’s [debris] from the right of way and the [Town ’s] property,” and immediately ce ase interfering with the [Town ’s] exercise of its rights to remove order.) The January 2016 order commanded “the defendant . . . yet again to access to the right of way and the nature preserve. (Quoting October 1 p. 5 5, 2015 parked his vehicle a cross the right of way — block ing the Town’s vehicular a previous order requiring him “to immediately cease interfering” when he had The January 2016 order explicitly stated that the defendant had violated 6

way between the two Town vehicles exclaiming “you’re not bringing any truck to avoid him. For several minutes, t he defendant stood in the right of moving dump truck and a backhoe and the Town employee had to stop the whic h forced it to stop. He subsequently stood on the right of way between a trucks down here . . . hey stop.” He then passed within inches of the truck, defendant approached a moving dump truck while shouting “no, no, no, no and give context to his physical acts. The police video also shows that the steal” — statements which provide insight into the defen dant’s mental state “you’re not gonna take the stuff that’s not yours” and “you’re not allowed to 201 p. 6 6, shows, the defendant told Town employees and law enforcement that contemptuous act. An d yet, undeterred, as the police video from May 16, way, or interfering with the Town’s removal of his debris, would be a established that interfering with the Town’s vehicular access to the right of remove the defendant’s debris from the right of way and nature preserve, and The January 2016 order plainly stated that the Town had the right to

obstruction as he had done in the past.” vehicles, “he would have used his person or property to create an immovable had intended to violate the order by physically interfering with the Town’s subjective intent was not to violate the order. He further contends that, if he and “I’m not blocking you [and] the road’s not blocked” — as proof that his want [and] take anything you want . . . no equipment, just look at the deed,” — specifically, “I’ve told you a hundred times you ca n come down anytime you statements he made to law enforcement and Town employees on May 1 p. 6 6, 2016 violation of the trial court’s order.” He urges us to take into account the interfere with what he perceived as unlawful actions was not an intentional interfere with the Town’s removal of his property,” “[a]ny action he took to unlawful under the deed that created the right of way, “even if he intended to because he believed that the Town’s use of vehicles on the right of way was from interfering with the Town’s “lawful actions.” However, he argues that, The defendant acknowledges that the January 2016 order prohibited him

reasonable doubt. Germain, 1 p. 6 65 N.H. at 361 - 62. reasonabl e that the trier of fact c ould not have found proof of guilt beyond a namely that it was not his conscious object to violate the order — is sufficiently determine whether the alternative hypothesis advanced by the defendant — We must also e valuate the evidence in the light most favorable to the State to few to which the defendant directs our attention. See Morrill, 169 N.H. at p. 7 718. of the defendant’s words and actions from May 16, 2016 — not just the select intended to violate the order through his physical actions, we must consider all we review the totality of the evidence as to whether the defendant subjectivel y surrounding the occurrence.” 17 C.J.S. Contempt § 6, at 15. Therefore, w hen necessarily be ascertained from all the acts, words, and circumstances established by circumstantial evidence, see Linsky, 117 N.H. at 875, and “must . . . .” 17 C.J.S. Contempt § 6, at 15 (2011). However, intent can be “Intent for purposes of criminal contempt is subjective, not objective 7

criminal contempt even if the order is ultimately ruled incorrect.” Meyers, 419 U.S. at 458. “[p]ersons who make private determinations of the law and refuse to obey an order generally risk in his own case . . . .” Walker v. City of Birmingham, 388 U.S. 30 p. 7 7, 320 (1967). Therefore, Townsend, 120 N.H. 836, 839 (1980). “[I]n the fair administration of justice no man can be judge stay, the person must comply with the order pending appeal. Id.; see also City of Lebanon v. proper remedy is to appeal the order. Maness v. Meyers, 419 U.S. 449, 458 (1975). Absent a right of way was unlawful, he is mistaken. If a person believes a court order is incorrect, the subjective intent to violate the or der because he actually believed that Town use of vehicles on the To the extent that the defendant is arguing that, as a matter of law, he could not have had a 2

concurred. LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,

230 (2003). appeal and thus we deem them waived. See In re Estate of King, 149 N.H. 226, T he defendant did not brief the additional issues raised in his notice of

sufficient with respect to any one of the acts charged”). several acts in the conjunctive . . . the verdict stands if the evidence is general rule that when a defendant is found guilty, “on an indictment charging affirm. See Turner v. United States, 396 U.S. 398, 420 (19 p. 7 70) (observing the defendant purposely violated the order through his physical acts, we must charged acts. T herefore, because the evidence is sufficient to prove that the contempt if it concluded that he purposely committed any one of the six alternative, the trial court could have found the defendant guilty of criminal conceded at oral argument, because the State charged the defendant in the arguments where holding on one issue is dispositive). A s d efense counsel Manchester, 134 N.H. 225, 230 (1991) (declining to address parties’ other the defendant committed in violation of the order. Dionne v. City of evidence pertaining to the fi ve speech - based acts that the trial court found that not consider his remaining arguments, which relate to the sufficiency of the the defendant purposely violated the order through his physical acts, we need Because we have concluded that the evidence is sufficient to prove that

Januar y 2016 order. See RSA 626:2, II(a); Germain, 165 N.H. at 362. 2 the debris — the defendant’s subjective, conscious object was to violate the reasonable doubt that — by physically interfering with the Town’s removal of to demonstrate that no rational trier of fact could have found beyond a favorable to the State, we conclude that the defendant has not met his burden Given the totality of the evidence, and viewing the evidence in the light most machines down to f**k with me” and “get these f**king machines out of here.”