2026 N.H. 7, State v. Levier

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

the State. general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Levier, 2026 N.H. 7

2024 - 0183

Case No s. 2023 - 0690 Strafford

THE SUPREME COURT OF NEW HAMPSHIRE

https://www.courts.nh.gov/our - courts/supreme - court 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 may be reported by email at the following address: reporter@courts.state.nh.us. order that corrections may be made before the opinion goes to press. Errors Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in are requested to notify the Reporter, Supreme Court of New Hampshire, One as formal revision before publication in the New Hampshire Reports. Readers NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

concluding that the State did not bear the burden of proof under RSA 135 - E:5, [¶6] In both appeals, t he respondent argues that the trial court erred in

The respondent also appealed that ruling. from having had a substantial impact” on th at hearing. See RSA 135 - E:5, II. evidence was strong enough to “foreclose[] the [respondent ’s] incompetence interfere d with his ability to assist his counsel at the p. 2 2024 Hearing, the State’s further found that, even if the respondent ’s incompetence substantially substantially interfere with his ability to assist his counsel. The trial court attempted AFSA, and also found that his incompetence once again did not doubt that the respondent committed the charged acts underlying the second [¶5] After the 2024 Hearing, the trial court found beyond a reasonable

interfere with his ability to assist his counsel. The respondent appealed. attempted AFSA, and also found that his incompetence did not substantially doubt that the respondent committed the charged acts underlying the first [¶4] After the p. 2 2023 Hearing, the trial court found beyond a reasonable

respondent committed the charged acts. State met its ultimate burden to prove beyond a reasonable doubt that the that it need only consider this factor as part of its determin ation of whether the incompetence at the evidentiary hearings. Instead, the trial court concluded a burden of proof on either party with respect to the effect of the respondent ’s briefing from the parties, the trial court ruled that the statute does not impose [respondent ’s] incompetence affected the outcome of the hearing.” After should determine, as required by the statute, “the extent to which the [¶3] Prior to the p. 2 2023 Hearing, the trial court requested briefing on how it

charged act s. evidence proved beyond a reasonable doubt that the respondent committed the Hearing and the p. 2 2024 Hearing, respectively) to consider whether the State’s 135 - E:5, II, the trial court scheduled two evidentiary hearings (the 2023 predator under RSA chapter 135 - E (2021 & Supp. 202 5). Pursuant t o RSA attempted AFSA — for the respondent ’s civil commitment as a sexually violent then dismissed the criminal charges and filed two petitions — one for each attempted AFSAs and was later declared in competent to stand trial. The State undisputed. The respondent was charged in two separate dockets with two [¶2] The following facts are supported by the record or otherwise

hearings. W e affirm in part, vacate in part, and remand. burden of proving that his incompetence did not affect the outcome of the respondent challenges the trial court’s ruling that the State did not bear the ability to assist in his defense at the civil commitment hearings. The victims, and that his incompetence did not substantially interfere with his of attempted aggravated felonious sexual assault (AFSA) involving two different been deemed incompetent to stand criminal trial, committed two charged acts p. 3 3

assist counsel, the strength of the State’s case foreclosed the respondent’s that the respondent’s incompetence substantially interfered with his ability to additional finding in that case that satisfied the statute — that, even assuming placement of the burden of proof is immaterial because the trial court made an [¶10] Specific to the 2024 Hearing, the State also argues that the

as to the 202 p. 3 3 Hearing. regarding the impact of the respond ent’s incompetence is a hypothetical matter We therefore disagree that wh ether one party bears the burden of proof reached the same decision had it . . . properly allocated the burden of proof.”). N.H. 204, 207 (1997) (“We cannot speculate whether the board would have changed how the trial court assessed the evidence. See Appeal of Jackson, 142 evidence was submitted, placing the burden of proof on the State could have submitted and ultimately the trial court’s ruling. Moreover, even if the same burden of proof on the State could have altered the evid ence the parties circumstanc es. Accordingly, contrary to the State’s assertion, placing the what evidence the State would have offered to meet its burden under those no obligation or incentive to offer such evidence, and we cannot speculate as to trial court put the burden of proof on the State, the respondent would have had evidence of the effect of the respondent’s incompetence at the hearing. Had the [¶9] At the 2023 Hearing, the respondent — not the State — presented

and burden of p ersuasion. See id. question”). A party’s burden of proof includes both the burden of p roduction which of two contending litigants loses when there is no evidence on a (12th ed. 2024) (defining burden of proof in part as “a proposition regarding the factfinder of the truth of its claim, see, e.g., Black’s Law Dictionary 24 p. 3 3 determines which party is responsible for presenting evidence and persuading Roberts v. Town of Windham, 165 N.H. 186, 190 (2013), and thereby upon one party the obligation to prove a disputed assertion or charge, see 2023 H earing and, ultimately, the trial court’s ruling. A burden of proof places respondent’s incompetence could have changed the evidence submitted at the [¶8] Placing the burden of proof on the State as to the effect of the

cha nged that evidence.” We disagree. of the hearing” and “[p]lacing the burden with the Stat e would not have “demonstrated that the [respondent’s] incompetence did not affect the outcome to the 202 p. 3 3 Hearing because the trial court found that the evidence implications” in this case. It asserts that the issue is hypothetical with respect respondent’s incompetence is “an academic question with no practical 135 - E:5, II imposes a burden of proof with respect to the effect of the [¶7] As a threshold argument, t he State also contends that whether RSA

party, and even if it did, the burden should be borne by the respondent. The State counters that the statute does not impose this burden on either II with respect to the effect of his incompetence at the evidentiary hearings. p. 4 4

eyewitness testimony, and corroborating evidence, is such that the strength of the stat e’ s case, including physical evidence, beyond a reasonable doubt that the acts occurred, and that the committed the act or acts charged unless the court can conclude assist his or her counsel, the court shall not find the person incompetence substantially interferes with the perso n’ s ability to information or assistance to counsel or the court. If the perso n’ s testifying in his or her own defense, or providing other relevant or her counsel by recounting the facts, identifying witnesses, outcome of the hearing, including the perso n’ s ability to assist his perso n’ s incompetence or developmental disability affected the met its burden, the court shall consider the extent to which the beyond a reasonable doubt. In determining whether the state has findings on whether the person did commit the act or acts charged hearing evidence on this issue, the court shall make specific comply with all the procedures specified in this section. After commit the act or acts charged. The hearing on this issue shall shall first hear evidence and determine whether the person did

trial. The statute provides in relevant part that the trial court charged with a sexually violent offense and then deemed incompetent to stand the process when the State petition s to civilly commit a n individual who was RSA ch apter 135 - E). RSA 135 - E:5, II, at issue here, governs the first step in (2021); State v. DeCato, 156 N.H. 570, 571 - 72 (2007) (explaining purpose of commitment of sexually violent predators. See RSA ch. 135 - E; RSA 135 - E:1 [¶12] RSA chapter 135 - E sets forth the procedure for the civil

absurd or unjust result. Id. parts of a statute together to effectuate its overall purpose and to avoid an add language that the legislature did not see fit to include. Id. We construe all statute as written and will not consider what the legislature might have said or (Activity Logs), 176 N.H. 806, 813 (202 p. 4 4), 2024 N.H. 50, ¶ 15. We interpret the according to its plain and ordinary meaning. Doe v. N.H. Attorney Gen. look to the language of the statute itself, and, if possible, construe the language law, which we review de novo. State v. Parr, 175 N.H. 52, 55 (2022). We first interpret that statute. The interpretation of a statute presents a question of of a person’s incompetence at a RSA 135 - E:5, II hearing requires that we issue of which party, if any, bears the burden of proof with respect to the effect whether the statute assigns the burden of proof to either party. Resolving the State could have changed the outcome of the 2023 Hearing, we now turn to [¶11] Having determined that the allocation of the burden of proof to the

[¶28] and [¶29]. we nevertheless affirm the outcome of the 202 p. 4 4 Hearing as explained below in agree with the State that the placement of the burden of proof was immaterial, limitations from substantially impacting the proceedings. Although we do not p. 5 5

the person committed the charged acts. Articulated from the State’s that the State has met its burden of proving beyond a reasonable doubt that interfere with his or her ability to assist counsel, the trial court shall not find State failed to prove that the person’s incompetence did not substantially burden, we construe this language to mean that, i f the trial court finds that the committed the act or acts charged . . . .” Id. Cognizant of the State’s ultimate perso n’ s ability to assist his or her counsel, the court shall not find the person statute provides: “If the perso n’ s incompetence substantially interferes with the substantially interfere with the person’s ability to assist counsel. See id. The burden. First, it can show that the person’s incompetence did not [¶1 p. 5 5] The statute sets forth two ways in which the State can meet that

substantially impact the outcome of the hearing. also bears the burden of demonstrating that the person’s incompetence did not requiring that, in order for the State to satisfy its ultimate burden of proof, it entire provision, however, we construe it and the language tha t follows it as incompetence on the proceedings. Reading the language in the context of the court to merely consider as a factor in its decision the impact of the person’s added). V iewed in isolation, this sentence could be read to instruct the trial disability affected the outcome of the hearing.” RSA 13 p. 5 5 - E:5, II (emphas e s shall consider the extent to which the perso n’ s incompetence or developmental provides that, “[i]n d etermining whether the state has met its burden, the court [¶14] After establishing the State’s ultimate burden of proof, the statute

phrases in isolation, but rather within context of statute as a whole). together to effectuate its overall purpose and will not consider words and 813, 2024 N.H. p. 5 50, ¶15 (stating that we will construe all parts of statute with this ultimate burden in mind. See, e.g., Doe (Activity Logs), 176 N.H. at this ultimate burden. We thus read the remainder of the statutory language that the person committed the charged acts. Th e State concedes that it bears that the State bears the ultimate burden of proving beyond a reasonable doubt these sentences together and in the context of the entire statute as establishing whether the state has met its burden . . . .” Id. (emphasis added). We construe doubt.” Id. The next sentence begins with the language: “In determining whether the person did commit the act or acts charged beyond a reasonable The statute first provides that “the court shall make specific findings on proof as to the effect of a person’s incompetence at the RSA 135 - E:5, II hearing. [¶13] We agree with the respondent that the State bears the burden of

RSA 13 p. 5 5 - E:5, II (emphases added).

to the supreme court on that issue. act or acts charged, the court shall enter a final order, appealable finds, beyond a reasonable doubt, that the person did commit the the proceedings. If, after the conclusion of the hearing, the court perso n’ s limitations could not have had a substantial impact on p. 6 6

2024 WL 3374 p. 6 647 (N.H. July 11, 2024). 622 (2011); State v. Diole, No. 2022 - 0588 (non - precedenti al order at 3 - 4, 6), prosecutions. See RSA 135 - E:5, II; see also State v. Ploof, 162 N.H. 609, 620, equating civil commitment proceedings for incompetent persons with criminal proof. B ut our interpretation is based on the statute’s plain text, not on to the criminal process in considering whether the statute imposes a burden of First, the State argues that we should not analogize an RSA 135 - E:5, II hearing [¶18] We are not persuaded by the State’s arguments to the contrary.

trial court erred by not directing a verdict for the defendant). element of the plaintif f’ s cause of action” in civil case was missing and thus the prove d); Stock v. Byers, 120 N.H. 844, 848 (1980) (stating that “[a]n essential criminal case, from basic or evidentiary facts, which need not necessarily be elemental facts, which must be proved by State beyond a reasonable doubt in a Ulster County Court v. Allen, 442 U.S. 140, 15 p. 6 6 - 57 (1979) (distinguishing elemental to the State’s case, the State must bear the burden of its proof. Cf. a substantial impact on the proceedings due to the pe rson’s incompetence is beyond reasonable doubt, that exemptions did not apply). Because the lack of conduct constituted elements of offense and that State bore burden of proving, (holding that non - applicability of statutory exemptions to otherwise criminal justification for such conduct”); State v. Qualters, 121 N.H. 484, 486 - 87 (1981) circumstances, or such a result of conduct as . . . [n]egatives an excuse or III(c) (2016) (defining element of offense as “conduct, or such attendant demonstrate that the person committed the charged acts. Cf. RSA 625:11, impact the outcome of the proceedings is element al to the State’s ability to conclude that proof that the person’s incompetence did not substantially not substantially impact the outcome. Construing the statute as a whole, we therefore construe them as alternative means of proving that the limitations did person’s limitations had upon “the outcome of the hearing,” id., and we [¶17] Both of the above findings relate to the “extent” of the impact the

(emphasis added). limitations could not have had a substantial impact on the proceedings.” Id. occurred, and that the strength of the state’s case . . . is such that the person’s “unless the court can conclude beyond a reasonable doubt that the acts incompetence substantially interfered with his or her ability to assist counsel State cannot satisfy its ultimate burden of proof — if the person’s shall not find the person committed” the charged acts — in other words, the have had a substantial impact on the proceedings. It provides that “the court demonstrate that its case is so strong that the person’s limitations could not [¶1 p. 6 6] In the alternative, the statute allows the State to instead

substantially interfere with the person’s ability to assist counsel at the hearing. proof, the State must prove that the person’s incompetence did not perspective, the statute requires that, in order to satisfy its ultimate burden of p. 7 7

outcome of the proceedings, which the State can prove in one of two ways: (1) proof that the person’s limitations did not substantially interfere with the See RSA 135 - E:5, II. As explained above, an element of the State’s case is beyond a reasonable doubt that the respondent committed the charged acts. respects. It requires that the State must meet its ultimate burden by proving of RSA 135 - E:5, II, however, sets forth a higher standard of proof in some of the evidence. See Dunlop v. Daigle, 122 N.H. 295, 298 (1982). The language proof by which the plaintiff must generally prove its case is by a preponderance [¶22] RSA 135 - E:5, II is a civil statute. In a civil action, the standard of

623 (quoting Addington v. Texas, 441 U.S. 418, 423 (19 p. 7 79)). factual c onclusions for a particular type of adjudication.’” Ploof, 162 N.H. at the degree of confidence our society thinks he should have in the correctness of Clause and in the realm of factfinding, is to instruct the factfinder concerning function of a standard of proof, as that concept is embodied in the Due Process incompetence, we now consider the applicable standard of proof. “‘The on the State with respect to the effect on the hearing of the respondent’s [¶21] Having concluded that RSA 135 - E:5, II imposes a burden of proof

could not have had a substantial impact on the proceedings.” Id. “that the strength of the state’s case . . . is such that the person’s limitations person’s limitations did not substantially impact the hearing — by showing provides another avenue for the State to meet its burden of proving that the interfere with the ability to assist counsel, our construction of the statute challenges to proving that the respondent’s incompetence did not substantially counsel or the court.” RSA 135 - E:5, II. Lastly, even if there are practical her own defense, or providing other relevant information or assistance to or her counsel by recounting the facts, identifying witnesses, testifying in his or enumerated in RSA 135 - E:5, II, such as the respondent’s “ability to assist his barriers to the State obtaining a n expert evaluation addressing the factors counsel. Moreover, as the State acknowledged at oral argument, there are no the State to discover and prove facts that are more easily accessible to defense trial, s ee State v. Moncada, 161 N.H. p. 7 791, 795 (2011), which similarly requires State bears the burden of proving a criminal defendant’s competency to stand proposition. See RSA 135 - E:5, II. This argument also fails to consider that the burden on the respondent. Nothing in the statute’s plain text suggests this [¶20] We are not persuaded that the legislature intended to impose this

essential witness, t hereby implicating privilege issues. the State would potentially require calling the respondent’s attorney as an assist counsel in his defense. It further contends that placing this burden on personal knowledge” of the extent to which his limitations affected his ability to respondent testifies, “only the [respondent] and his counsel would have direct, burden should rest with the respondent. According to the State, unless the burden to prove the effect of the respondent’s incompetence on one party, that [¶19] Alternatively, the State suggests that, even if the statute imposes a p. 8 8

statutory right.” Id. at 136 - 37; 2024 N.H. 6 p. 8 8, ¶27 (quotation omitted). the case, regardless of whether the error is groun ded upon a constitutional or appealing party to demonstrate how the alleged error affected the outcome of ¶27. “Within the context of a non - criminal appeal, this generally requires the In the Matter of Nadeau & Nadeau, 177 N.H. 126, 136 (2024); 2024 N.H. 68, party, the respondent bears the burden of demonstrating reversible error. See for us to decide. State v. Hinkley, 174 N.H. 414, 421 (2021). As the appealing Hearings. The interpretation of a trial court order presents a question of law the trial court committed reversible error with respect to the 2023 and 2024 [¶26] With this statutory framework in mind, we now consider whether

limitations could not have had a substantial impact on the proceedings.” Id. that the evidence that the charged acts occurred is so strong “that the perso n’ s ability to assist counsel at the hearing; or (3) prove beyond a reasonable doubt that the person’s incompetence did not substantially interfere with his or her charged acts occurred; and either (2) prove by a preponderance of the evidence charged acts, the State must: (1) prove beyond a reasonable doubt that the burden under RSA 135 - E:5, II of proving that the person committed the [¶25] Thus, we hold that in order for the State to meet its ultimate

substantial impact on the proceedings.” Id. of its case “is such that the person’s limitations could not have had a State bears the burden of pro ving beyond a reasonable doubt that the strength 135 - E:5, II (emphases added). We construe this passage to mean that the limitations could not have had a substantial impact on the proceedings.” RSA occurred, and that the strength of the state’s case . . . is such that the person’s requires that the State show “beyond a reasonable doubt that the acts [¶24] As to the second method of proving this element, the statute

Dunlop, 122 N.H. at 29 p. 8 8. preponderance of the evidence standard applies to this finding. See id.; 709, 712 - 13 (2024); 2024 N.H. 39, ¶8. Accordingly, we conclude that the a preponderance of the evidence. In the Matter of Sutton & Sutton, 176 N.H. standard of proof, factual findings in a civil proceeding need only be proven by this finding. See id. When a statute is silent with respect to the applicable counsel. See id. The statute is silent as to the standard of proof appli cable to incompetence substantially interfered with the person’s ability to assist requires that the trial court make a factual finding as to whether the person’s [¶23] As to the first method of proving this element, RSA 135 - E:5, II

on the proceedings.” Id. strong “that the person’s limitations could not have had a substantial impact the person’s ability to assist counsel; or (2) by showing that its case is so by showing that the person’s incompetence did not substantially interfere with p. 9 9

II, it is free to amend the statute as it sees fit within constitutional bounds. [¶30] I f the legislature disagrees with our interpretation of RSA 135 - E:5,

Nadeau, 177 N.H. at 136 - 37; 2024 N.H. 68, ¶27. we affirm the t rial court’s order following the 2024 Hearing. See Matter of this opinion. Because the respondent has not demonstrated reversible error, not substantially interfere with the outcome of the proceedings as outlined in second method by which the State can prove that the person’s limitations did proceedings.” RSA 135 - E:5, II. This determination was consistent with the the person’s limitations could not have had a substantial impact on the proved beyond a reasonable doubt that the strength of its case was “such that the trial court’s order, we conclude that the trial court found that the State having had a substantial impact on the proceedings. Based on our reading of strength of the State’s case foreclose d the respondent’s incompetence from committed the charged acts. The trial court then “easily” concluded that the that the State had proved beyond a reasonable doubt that the respondent that the respondent was present at the scene of the assault — before finding — including DNA evidence that “alone establishe[d] beyond a reasonable doubt” outcome of the hearing. The trial court recounted the State’s “str ong” evidence respondent’s incompetence could not have had a substantial impact on the State to prove beyond a reasonable doubt that its case was so strong that the interpretation of the statute in that the trial court placed the burden on the respondent’s incompetence, its alternative analysis was consistent with our neither party bore a burden of proof with respect to the impact of the [¶2 p. 9 9] Notwithstanding the trial court’s erroneous pre - hearing ruling that

could not have had a substantial impact on the proceedings. the strength of the State’s case was such that the respondent’s incompetence substantially interfered with his ability to assist counsel. It then found that trial court’s alternative analysis, it assumed that the respondent’s limitations demonstrated reversible error with respect to the 2024 Hearing. There, in the [¶28] O n the other hand, w e conclude that the respondent has not

opinion. from the 2023 Hearing and remand for further proceedings consistent with this the effect of the respondent’s incompetence, we must vacate the order resulting the trial court’s failure to properly allocate the burden of proof with respect to evidence and the burden of proof. B ecause the respondent was prejudiced by would have reache d the same decision in the absence of the respondent’s what evidence the State would have introduced or whether the trial court respondent may not have offered such evidence. We cannot speculate about proof on the State consistent with our construction of RSA 135 - E:5, II, the incompetence at the 2023 Hearing. Had the trial court placed the burden of State — introduced evidence concerning the effect of the respondent’s with respect to the 2023 Hearing. As noted above, the respondent — not the [¶27] We conclude that the respondent has demonstrated reversible error p. 10 10

M AC DONALD, C.J., and DONOVAN and GOULD, JJ., concurred.

deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003). issues the respondent raised in his notice s of appeal but did not brief are Attorney General v. Hood, 177 N.H. 176, 188 (2025); 2025 N.H. 3, ¶31. Any