State of New Hampshire v. Donald Levier, Jr.

On September 5, 2021, the defendant was charged with attempted aggravated felonious sexual assault, two class A misdemeanor counts of sexual assault, felony second -degree assault – strangulation, simple assault, and false imprisonment. SA 3. 1 On October 5, 2022, the defendant filed a Motion to Determine Competency. SA 7; DA 12.

On March 22, 2023, the superior court (Will, J.) held a competency hearing. SA 9. On the same day, the court found the defendant not competent to stand trial and not restorable. SA 9; Supp. 36. On August 8,

2023, in accordance with RSA 135:17 -a, I, the State entered nolle prosequi on the criminal charges. SA 9 -10.

On May 30, 2023, the State petitioned to have the defendant civilly committed as a sexually violent predator under RSA 135 -E. SA 11. The court thus proceeded under that chapter in accordance with RSA 135:17 -a, V, and held a hearing pursuant to RSA 135 -E:5, II. See 11-16; Supp. 36, 40. Before that hearing was held, the court determined that neither party bore a particular burden under RSA 135 -E:5, II to demonstrate the extent to which the defendant’s incompetence impacted the outcome of the proceeding. Supp. 36-39. Rather, the statute simply directed the court to consider that factor. Id.

The court’s ruling on that issue gave rise to the question presented in this appeal.

The couch was large, and the victim sat on it some distance away. Tr. 11. The two began discussing various topics, and the defendant told the victim he could get drugs from someone he met recently at Hampton Beach. Tr. 11 -13, 23, 55-56. After talking for ten or fifteen minutes, the defendant slid toward the victim on the couch a nd put his hand on her thighs while touching himself with his other hand through his pants pocket and saying, “let me get that.” Tr. 13-15. He pulled out cash and offered it to her, but she said she did not want his money and put the cash into his cigarette pack. Tr. 14, 45-46. The defendant, however, continued to slide closer to her on the couch and grope her. Tr. 15. The victim stood up, went to the door, and opened the door to get him to leave. Tr. 13 -14, 15-17. The defendant walked over and slammed the door shut. Tr. 17. The victim then attempted to place a bookshelf and a DVD rack between herself and the defendant, but he grabbed her by the throat and began backing her down the hallway toward the bedroom. Tr. 15, 17-19, 90. While he was strangling her with one hand and moving her down the hallway, the defendant used his other hand to begin to undress himself. Tr. 18 -19, 63-64, 66. She screamed for help and banged on the walls. Tr. 19, 22 -23.

When they reached the bedroom at the end of the hallway, the defendant threw the victim on the bed. Tr. 19. Her back was on the mattress and her knees were bent, with her thighs pressed to her chest. Tr. 19, 23. The defendant, who was naked at this point, continued choking her and tried to remove her pants. Tr. 23 -25. He said, “let me get in there, let me taste that.” Tr. 28. She continued screaming and attempted to fight him off; he struck her in the face with his hand and broke her nose. Tr. 24, 26 -27, 34, 57, 90-91; see Tr. 170 (treating physician).

A neighbor and his girlfriend heard the screaming and called the police. Tr. 80 -81, 139-40, 142, 146. When the police arrived, the two officers heard the victim screaming from inside her mobile home. Tr. 82 - 83, 151. They announced themselves and she called for them to come in. Tr. 83. The defendant stopped when he heard the officers, and the victim pushed him off her and ran out of the bedroom. Tr. 29 -30. The officers entered, finding the victim disheveled, emotionally distraught, and in a fetal position on the couch. Tr. 32, 83 -84, 87, 108 -09, 122, 152, 154. She told them a man had tried to rape her and pointed down the hallway. Tr. 84 -85, 151-52. The offi cers ordered the defendant to come out, but he did not comply, apparently pretending to be using the toilet. Tr.

85-86, 152-53. After failing to comply with further orders to come out, the officers approached and found him naked in the bathroom. Tr. 153. They handcuffed him and, after he put on a pair of shorts, one officer escorted him outside while the other photographed the victim’s injuries. Tr. 86, 92- 95, 120-21, 127, 153.

The defendant was animated outside the house. Tr. 121, 153. He yelled within earshot of the victim not to lie, that this was not going to be pinned on him, and that she had snorted a pill and was having a mental breakdown. Tr. 97, 122-23, 153-54. The victim did not appear to be intoxicated. Tr. 95 -96, 122, and the officer inside the residence saw no residue from a crushed pill, rolled up cash bills or paper, or straws that might be used for nasal inhalation of drugs. Tr. 1 35-36.

On January 20, 2023, the court granted the State’s motion for a second competency evaluation. SA 8; see RSA 135:17, II.

The court held a competency hearing on March 22, 2023. SA 9. On the same day, the superior court ruled that the defendant was not competent to stand trial, could not be restored to competency within a one -year period, and that he was dangerous. SA 9; Supp. 36; DB 7. Accordingly, on May 30, 2023, the State filed a petition to civilly commit the defendant as a sexually violent predator (SVP) under RSA 135 -E. SA 9-10, 11; see RSA 135:17-a,

To involuntarily commit a person as an SVP, the State must prove by clear and convincing evidence that the person: (1) has been “convicted of a sexually violent offense; ” and (2) suffers from a “mental abnormality” that makes the person “likely to engage in acts of sexual violence” if not confined in a secure facility for long -term control, care, and treatment. See RSA 135 -E:2, XII; RSA 135 -E:11. The ultimate determination of whether a person qualifies as an SVP is to be made by a jury, assuming either the State or defendant demands a jury trial. RSA 135 -E:9. Before the ultimate question can be put to a jury, however, the “court shall first” conduct an evidentiary hearing to “determine whether the person did commit the act or acts charged.” RSA 135 -E:5, II. In that preliminary hearing, the State has the burden to prove that “the person did commit the act or acts charged beyond a reasonable doubt.” Id. In resolving that factual question, the court “shall consider the extent to which the person’s incompetence... affected the outcome of the hearing, including the person’s ability to assist his or her counsel” in certain respects. Id. If the court finds that the person’s incompetence “substantially interfere[d] with the person’s ability to assist his or her counsel, ” then the court “shall not find the person committed the act or acts charged unless the court can conclude beyond a reas onable doubt that the acts occurred, and that the strength of the state’s case... is such that the person’s limitations could not have had a substantial impact on the proceedings. ” Id. At a prehearing conference held on August 23, 2023, the State agreed that it bore “the ultimate burden to prove, beyond a reasonable doubt, that the defendant committed the charged acts.” Supp. 37; see H 7-8. However, each party contended that the other party bore a “subsidiary burden of proof on whether the defendant’s incompetence substantially interfered with his ability to assist his counsel.” Supp. 37; see H 3-10. On August 29, 2023, the superior court ordered the parties to provide briefing on their respective positions regarding “the determination of the extent to which the defendant’s incompetence affected the outcome of the hearing, pursuant to RSA 135 -E:5, II.” DA 3; see also Supp. 37. The parties submitted the requested briefing on August 30, 2023. DA 4 -6, 7-10. The State argued that it could not “reasonably be expected to anticipate where, if anywhere, the Defendant’s lack of competence hindered the Defense’s preparation.” DA 5. The State proposed that “[f]ollowing the State’s presentation of evidence... the D efense, should it wish, call its investigator to testify to any work that the Defense was unable to do that it would have normally done.” Id.

The defendant took the position that “[a]s the State bears the overall burden of proof in these proceedings, it is therefore the State’s burden to introduce evidence regarding... [the] limitations [the defendant] possesses that cause him to be unable to meaningfully consult with Counsel about his case, or assist the Court.” DA 8. The defendant further argued that “[t]he evidence regarding [the defendant’s] incompetence can only be admitted through live testimony of a witness who examined [him]...” DA 9. On September 2 1, 2023, the superior court issued an order analyzing the fourth sentence of RSA 135 -E:5, II, which provides:

developmental disability affected the outcome of the hearing, including the person’s ability to assist his or her counsel by recounting the facts, identifying witnesses, testifying in his or her own defense, or providing other relevant information or assistance to counsel or the court.

Supp. 36 (quoting RSA 135 -E:5, II).

The superior court found that, while RSA 135-E:5, II imposes the burden on the State to prove beyond a reasonable doubt that the charged acts occurred, the fourth sentence does not impose a subsidiary burden on any party, but instead directs the court to consider certain factors in evaluating whether th e State carried its burden. Supp. 39. In so finding, the superior court noted that RSA 135 -E:5 is a civil, not a criminal statute, and its fourth sentence does not appear to create an affirmative defense. Supp. 38. The superior court concluded: [N]either party bears a particular burden to prove that the defendant’s lack of competence affected the outcome of the RSA 135 -E:5, II proceeding.

Instead, each party may introduce otherwise admissible evidence on that issue in their case as they see fit. The evidence could take the form of expert testimony or could come from fact witness(es) who can testify from personal knowledge how the defendant’s incompetence actually affected or substantially interfered with the defendant’s ability to assist counsel as the statute describes. As the statute directs, the Court will consider all of the evidence on this issue and determine whether the d efendant’s incompetence affected the outcome as part of its larger determination of whether the State has met its ultimate burden to prove that the defendant committed the charged acts.

Supp. 39 (footnote omitted).

On September 27 and 28, 2023, the superior court held an evidentiary hearing pursuant to RSA 135 -E:5, II to determine whether the defendant committed the charged acts. Supp. 40. The State presented testimony from the victim, a witness who lived in the same trailer park as the victim, police officers, and an emergency room physician who treated the victim. Supp. 41-42; Tr. 4-5, 80-81, 137-40, 150-51, 166-67. The defendant presented no witnesses but Before the hearing concluded, the parties presented oral argument regarding the extent to which the defendant’s incompetence affected the outcome of the hearing. The State argued that while the defendant was unable to understand the legal pro cess, he could assist his counsel by recounting facts and identifying witnesses. Tr. 216 -17. The State also argued that the defendant could have testified in his own defense and denied the victim’s version of events, much as he had attempted to do outside the victim’s mobile home immediately after the attack. Tr. 218 -20. The defendant argued that his incompetence impaired his ability to testify because it prevented him from listening to the State’s eviden ce and deciding how, or whether, to rebut it. Tr. 221 -22.

On October 25, 2023, the superior court issued a decision finding that “the State proved, beyond a reasonable doubt, that the defendant committed the acts charged and that the defendant’s incompetence did not substantially interfere with his ability to as sist his counsel in preparation of his defense.” Supp. 57. With respect to the charged acts, the court credited the testimony of the victim about the events on the night of September 5, 2021. Supp. 46. With respect to the defendant’s competence,

The superior court found that the evidence before it proved the defendant’s incompetence did not affect the outcome of the RSA 135 -E:5, II evidentiary hearing to determine whether he committed the charged acts. The defendant does not challenge the sufficiency of that evidence. Consequently, this Court need not address whether the fourth sentence of RSA 135 -E:5, II assigns a subsidiary burden of proof to a party and, if so, which party, because it is an academic question with no practical implications for the case. Irrespective of the answer, the result would remain the same.

Even if the burden of proof issue is reached, though, the statutory text does not support the defendant’s contentions. The fourth sentence of RSA 135 -E:5, II simply directs the superior court to consider the effect of the defendant’s incompetence on the outcome of the evidentiary hearing. It does not, by its terms, assign a subsidiary burden of proof to a party. If it did, however, that burden of proof would m ost logically rest with the defendant, not the State.

The defendant is the only party in a position to know whether and to what extent he was able to assist his attorney, and he could control the disclosure of information as he saw fit without breaching the attorney -client privilege. By contrast, if the burden is with the State, then the State would be placed in the awkward position of having to marshal evidence on this issue likely by questioning defense counsel, a result complicated by the attorney -client privilege that the legislature likely did not intend. Accordingly, the superior court’s decision below should be affirmed.

The question presented in this appeal concerns the interpretation of RSA 135 -E:5, II. Questions of statutory interpretation are reviewed de novo. In re Juvenile 2007 -150, 156 N.H. 800, 801 (2008). When interpreting a statute, this Court examines the words of the statute considered as a whole and applies the plain and ordinary meaning of the language where possible. State v. Gubitosi, 157 N.H. 720, 723-24 (2008). This Court interprets statutes as written and will not consider what the legislature might have said or add language the legislature did not see fit to include. Id. at 724. All parts of a statute are to be construed together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, this Court does not consider words or phrases in isolation, but rather within the context of the statute as a whole. Id.

As a threshold matter, the outcome of this appeal does not turn on which party, if any, bears the burden of proof regarding the effect of the defendant’ s incompetence on the outcome of his RSA 135 -E:5, II hearing. The superior court found that the evidence before it — —demonstrated that the defendant’s incompetence did not affect the outcome of the hearing.

Placing the burden with the State would not have changed that evidence, and the defendant does not challenge its sufficiency. 3 Accordingly, whether the court erred in concluding that neither party bore a burden of proof under RSA 135 -E:5, II regarding the effect of the defendant’s incompetence on the outcome of the hearing is of no consequence and an entirely hypothetical matter. This Court, therefore, should not address the issue. See State v. Kelly, 159 N.H. 390, 394 (2019) (“This court... decides actual cases, not hypothetical ones.”) (citation, quotation marks omitted).

The defendant argues without benefit of supporting precedent that “someone must” bear the burden of proof regarding the effect of his incompetence on the outcome of his RSA 135 -E:5, II hearing because “[a] court that must resolve a factual question without a burden of proof would have no way to decide a factual dispute that it perceives to be in equipoise, either because the evidence introduced is evenly balanced or because no party introduced evidence on the question.” 4 DB 26. That contention gets no foothold in this appeal, however. Evidence was introduced on the question at issue, and the superior court did not find it was in equipoise. See DH 9-10; Tr. 177-78; Supp. 55-57. In effect, as above, the defendant is seeking to raise a hypothetical matter that does not impact the outcome of his case. The Court, accordingly, should not address it. See Kelly, 159 N.H. at 394.

Regardless, the defendant’s argument fails. If the evidentiary record were such that the superior court was unable to determine “the extent to which the person’s incompetence or developmental disability affected the outcome of the hearing, ” RSA 135 -E:5, II — which is not what occurred here — the court presumably would have proceeded to the fifth sentence of the paragraph. That sentence, as relevant here, directs the court to examine “the strength of the state’s case [on the charged acts], including physica l evidence, eyewitness testimony, and corroborating evidence, ” and not to “find the person committed the... acts charged unless the court can conclude... the person’s limitations could not have had a substantial impact on the proceedings.” RSA 135 -E:5, II. In other words, although this Court need not reach the issue here, the text of RSA 135 -E:5, II itself allays any concerns about the defendant’s abstract scenario in which a future court may be unable to determine whether the defendant’s incompetence affected the outcome of the hearing.

Further, the text of the fourth sentence of RSA 135 -E:5, II does not support the defendant’s argument. That sentence provides:

developmental disability affected the outcome of the hearing, including the person’s ability to assist his or her counsel by recounting the facts, identifying witnesses, testifying in his or her own defense, or providing other relevant information or assistance to counsel or the court.

Id.

On a plain reading, that sentence does not impose a burden on any party regarding the defendant’s incompetence. Rather, it commands the court to consider the extent of the person’s incompetence and ability to assist his or her counsel when deciding whether the State proved beyond a reasonable doubt that the defendant committed the acts charged. There is no reason to interpret a legislative directive to the court as imposing a burden of proof on the State. Had the legislature intended to assign a party an additional burden of proof regarding whether the State met its burden of proving the acts ch arged, it would have said so. The defendant, in effect, reads words into the statute that are not there. State v. Fournier, 158 N.H. 441, 449 (2009) (“[I]n construing a statute, we will neither consider what the legislature might have said nor add words that it did not see fit to include”).

Even if this Court were to conclude that RSA 135 -E:5, II’s fourth sentence assigns a burden of proof to a party, the text in no way compels the conclusion that it rests with the State. In fact, it focuses on matters that are uniquely within the purview of the defendant and his counsel, suggesting that the legislature intended to place the burden of proof (assuming it intended to create one at all) with the defense. While the superior court might be able to observe a defendant’s general demeanor and behavior at an evidentiary hearing, unless he testified, only the defendant and his counsel would have direct, personal knowledge of his “ability to assist his [ ] counsel by recounting the facts, identifying witnesses, ... or providing other relevant in formation....” RSA 135 -E:5, II. Given that unique knowledge, it would make sense to assign the burden of proof to the defense, which could provide pertinent information to the court as it sees fit. Placing the burden on the State, however, may put the State in the awkward position of having to call the defendant’s attorney as an essential witness, potentially raising complex legal and privilege issues — a result the legislature likely did not intend. The defendant also argues that the State must bear the burden of proving that his incompetence did not affect he outcome of his RSA 135 - E:5, II hearing because the statute aims “to replicate the criminal process, ” and seeks to answer the question “did the defendant commit the charged crime?” DB 29. He is in error.

As a general matter, this Court has long classified “the care, treatment and indeterminate commitment of persons who are insane, mentally deranged, emotionally or mentally ill... [as] a civil rather than a criminal proceeding.” In re Moulton, 96 N.H. 370, 373 (1950). More particularly, this Court has repeatedly declined to equate RSA 135 -E with criminal statutes.

In Ploof, for example, this Court held that due process does not require the rules of evidence to apply with full force in a hearing held under RSA chapter 135 -E. 162 N.H. at 621. This Court explained that “[b]ecause the primary focus of an involuntary commitment proceeding is the mental condition and dangerousness of the person sought to be committed rather than determination of guilt or innocence, the full range o f protections afforded by the State and federal due process provisions does not come into play.” Id. at 620 (quotations omitted).

More recently, in State v. Diole, 2024 N.H. LEXIS 137 (Jul. 11, 2024) (unpublished), this Court reviewed another due process challenge to RSA 135 -E:5, II on the ground that it allowed a conviction without a jury trial. The Court rejected that argument, ruling that [t]he purpose of the RSA 135 -E:5 hearing is not to adjudicate guilt or innocence — the primary inquiry for the court is to determine whether the respondent “did commit the act or acts charged.”

RSA 135 -E:5, II... RSA 135 -E:5 contains no mens rea requirement because, unlike the criminal laws, RSA chapter 135 -E is not concerned with whether a sexually violent predator harbored a guilty mind when they committed a sexually violent act.

Id. at *6 (internal quotation marks, brackets omitted). This Court’s reasoning in Ploof and Diole applies here. Notwithstanding the defendant’s contentions to the contrary, RSA 135 -E:5, II does not “replicate” the criminal process or seek to determine whether the defendant committed a crime. Indeed, aside from the anodyne commonality that both involve factual determinations adjudicated under the same standard or proof, the differences between the two processes are far more pronounced than their similarities. Fo r example, unlike the criminal process, RSA 135 -E:5, II requires the factfinder to be the court, does not require a finding of mens rea, and operates under a relaxed set of evidentiary rules.

Finally, the defendant contends that the repetition of the word “That” in the fifth sentence of RSA 135 -E:5, II “indicates that the beyond -a- reasonable -doubt burden of proof applies to both the inquiries following the word ‘that.’” DB 30. But the defendant’s argument is misplaced. The fifth sentence of RSA 135 -E:5, II, like the fourth sentence, is a legislative direct to the court, not an assignment of a burden of proof. In essence, the sentence tells the court that it must not find that a person committed the charged acts if the person’s incompetence substantially impacted the outcome of the hearing, unless the State’s evidence was so strong that the person’s incompetence could not have had such an impact. See RSA 135-E:5, II. Accordingly, the defendant’s argument fails.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State requests a fifteen -minute oral argument.

I, Sam M. Gonyea, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 4, 983 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

June 16, 2025 /s/ Sam M. Gonyea Sam M. Gonyea

I, Sam M. Gonyea, hereby certify that a copy of the State’s brief shall be served on Christopher Johnson, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

June 16, 2025 /s/ Sam M. Gonyea Sam M. Gonyea