Introduction

In State of New Hampshire v. Douglas Collins (No. 2023-0092), decided June 4, 2025, the New Hampshire Supreme Court affirmed a superior court’s findings of three probation violations following a violation-of-probation (VOP) hearing. The defendant’s principal arguments on appeal were (1) that the trial court violated due process by referencing the judge’s prior Liquor Commission experience and by equating “edibles” with marijuana when assessing the evidence; and (2) that, excluding those alleged due process errors, the evidence was insufficient to prove he both used marijuana and was untruthful about attending sex-offender counseling.

The Supreme Court disposed of the appeal by order pursuant to Supreme Court Rule 20(3). While the case raises an important due process concern about trial judges relying on extra-record experience or assumptions, the Court resolved the appeal on preservation and plain-error grounds. It held that because the defendant failed to preserve his arguments (both at the hearing and by post-hearing motion), his claims were reviewable only for plain error. Assuming error arguendo, the Court nevertheless found that the record independently sufficed to support the violations and that the stringent plain-error test was not met.

• Court: Supreme Court of New Hampshire
• Date: June 4, 2025
• Lower Court: Superior Court (St. Hilaire, J.)
• Posture: Appeal from VOP findings; disposition by order under Sup. Ct. R. 20(3)
• Outcome: Affirmed
• Key Issues:
  • Preservation and plain-error review in probation revocations
  • Sufficiency of the evidence for drug-use and “truthfulness” violations
  • Due process challenge to a judge’s use of professional experience and terminology in findings

Summary of the Opinion

The defendant was on probation in October 2022, subject to Rule 1 (truthful responses to the probation/parole officer, or PPO) and Rule 10 (no illegal drug use, sale, possession, or presence, and no alcohol use). He was also required to complete sex-offender counseling. The PPO alleged multiple violations; three are material here:

• Rule 1 violation (untruthfulness about drug use) on September 21, 2022: the defendant initially denied illegal drug use on a reporting form but changed his response after further questioning.
• Rule 10 violation (illegal drug use): the defendant admitted to using marijuana on August 3, 2022 and September 21, 2022; he had no medical marijuana card.
• Rule 1 violation (untruthfulness about counseling): the defendant represented he was attending or had switched to an evening sex-offender counseling group; the evidence showed missed sessions and that a switch was conditional upon two weeks of successful attendance, which did not occur.

At the VOP hearing, the defendant testified he was “smoking flower” and taking “edibles” containing “under eight percent” Delta‑8 THC legally purchased in New Hampshire, which he disclosed to the PPO to explain possible urine-test results. The PPO testified that the defendant denied illegal drug use on the September 21 reporting form but, after questioning, admitted marijuana use and amended the form.

The trial court found the three challenged violations true. It inferred from the defendant’s use of the term “edibles” that the products were marijuana (not CBD) and, drawing on the judge’s prior Liquor Commission experience, concluded that the defendant’s THC-percentage claims were inconsistent with Delta‑8 products, undermining his credibility.

On appeal, the defendant argued that those two aspects of the trial court’s findings violated due process and that, without them, the evidence was insufficient. The Supreme Court held that none of the arguments were preserved (no contemporaneous objection when the findings were announced and no motion for reconsideration), so review was for plain error under Sup. Ct. R. 16‑A. Assuming error without deciding on the due process points, the Court concluded the record independently supported the violations:

• Drug use and untruthfulness: The defendant admitted use and altered his reporting form from “no” to “yes” after questioning; the factfinder could believe his admissions about THC “edibles” and “flower” while rejecting his “Delta‑8 and legal purchase” qualifier.
• Counseling untruthfulness: Even if the PPO asked about “enrollment” rather than “attendance,” the defendant’s statement that he switched to an evening class was untrue because that switch depended on two weeks of successful attendance, and he missed sessions on September 14 and 21.

The Court also observed that, independent of any untruthfulness finding, the defendant’s failure to attend counseling itself constituted a probation violation. Finding no miscarriage of justice, it affirmed. Chief Justice MacDonald and Justice Countway concurred; Justice Bassett concurred specially, agreeing that the arguments were unpreserved and that plain-error relief was unavailable.

Analysis

Precedents Cited and Their Use

• State v. Kay, 162 N.H. 237 (2011): Establishes that probation may be revoked upon proof by a preponderance of the evidence (more likely than not) that the defendant violated probation terms. Collins relies on Kay for the evidentiary burden governing VOP findings.
• State v. Stanin, 170 N.H. 644 (2018): States that sufficiency-of-the-evidence claims are reviewed de novo. In Collins, the Court notes this general standard but proceeds to review “each of the defendant’s arguments” under the plain-error rule due to lack of preservation. The juxtaposition clarifies that unpreserved sufficiency challenges in VOP cases are not reviewed de novo; they are constrained by plain error.
• N.H. Dep’t of Corrections v. Butland, 147 N.H. 676 (2002): Holds that issues which could not feasibly be objected to at the time must be raised via a motion for reconsideration to be preserved. Collins applies Butland to reject the defendant’s claim that he had no opportunity to object during bench findings; he neither objected after announcement nor moved for reconsideration.
• State v. Sullivan, 142 N.H. 399 (1997): Requires a specific, contemporaneous objection to preserve issues for appellate review. Collins uses Sullivan alongside Butland to underscore preservation failures here.
• State v. Hodges, 176 N.H. 751 (2024): Articulates the four-part plain-error test: (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Collins applies Hodges, assuming error arguendo yet holding prongs (3) and (4) unmet given the sufficiency of the record.
• In the Matter of Aube & Aube, 158 N.H. 459 (2009): Affirms that factfinders may accept or reject testimony in whole or part and need not credit even uncontroverted evidence. Collins uses Aube to explain why the trial court could believe the defendant used THC “edibles” and “flower” while rejecting his “these were legal Delta‑8 products” qualifier.

Legal Reasoning

The Court’s reasoning proceeds in three steps: preservation, assumed error, and independent sufficiency.

1. Preservation and Standard of Review: Although insufficiency claims are usually reviewed de novo, the Court explicitly held that all of the defendant’s arguments—including sufficiency—were unpreserved because he neither objected when the trial court announced its findings nor filed a motion for reconsideration. That failure invoked the plain-error framework of Sup. Ct. R. 16‑A and Hodges. This is a salient clarification for probation revocation appeals: de novo review of sufficiency presumes preservation; otherwise, review is under the demanding plain-error standard.
2. Assumed Error Regarding the Judge’s Extra-Record Experience and the Meaning of “Edibles”: The Court recognized the defendant’s due process complaint that the trial judge drew on prior Liquor Commission experience and equated “edibles” with marijuana products. Without deciding whether that conduct was error, the Court assumed it and asked whether, under the remaining record evidence, the plain-error test could be met. This “assume without deciding” approach avoided resolving the precise boundaries of permissible reliance on judicial experience in VOP findings.
3. Independent Sufficiency of the Record (No Plain Error):
   • Drug use and truthfulness: The defendant’s own in-court testimony admitted consuming “edibles” containing THC and “smoking flower,” coupled with his acknowledged change to the reporting form after PPO questioning. The trial court could accept those admissions yet disbelieve his claim that the products were legally purchased Delta‑8. Under Aube, factfinders may parse credibility in this manner. The altered reporting form, together with his admissions, amply supports both the Rule 10 drug-use violation and the Rule 1 untruthfulness finding (initial denial, subsequent correction).
   • Counseling untruthfulness: Even accepting the defense’s semantic distinction (“enrolled” vs. “attending”), the defendant told the PPO he had “switched to an evening class,” which the record shows was conditioned on two weeks of successful attendance—conditions unmet because he missed sessions on September 14 and 21. Thus, his representation was untruthful either way. The Court added that, separate from truthfulness, the missed sessions themselves constituted a violation of probation, further underscoring the absence of a miscarriage of justice.
   Given this record, any assumed error did not affect substantial rights or the integrity of proceedings, and plain error was not established.

Impact and Significance

Although issued by order, Collins carries several practical and doctrinal implications for probation revocation litigation in New Hampshire:

• Preservation is decisive—even in VOP sufficiency appeals. Collins reinforces that defendants must object to problematic findings when announced or promptly move for reconsideration. When sufficiency and due process claims are unpreserved, the usual de novo sufficiency review gives way to plain-error review.
• Harmlessness via independent record sufficiency. The decision exemplifies how appellate courts will avoid resolving delicate due process issues (e.g., judicial reliance on extra-record expertise or terminology) when the record independently supports the result. For trial practitioners, it underscores that a clean, self-sufficient record will sustain VOP findings even if some judicial reasoning is arguably flawed.
• Credibility slicing is permitted. Relying on Aube, Collins confirms that factfinders may accept admissions to core conduct while rejecting exculpatory qualifiers. Here, that meant accepting drug-use admissions while rejecting the claim that the products were legal Delta‑8.
• “Enrollment” vs. “attendance” semantics will not immunize misleading answers. Where a transfer to an evening counseling program was clearly conditional and the conditions were not met, a representation of having “switched” was untruthful. Collins warns against parsing words to mask noncompliance with counseling obligations.
• Independent violations matter. The Court’s note that failure to attend counseling was itself a violation demonstrates a pragmatic approach: even if a particular untruthfulness finding were debatable, a separate, unchallenged substantive violation can sustain revocation, weakening any claim of a miscarriage of justice.
• Unresolved due process contours. Because the Court assumed rather than decided the propriety of the trial judge’s reliance on prior Liquor Commission experience and on the colloquial meaning of “edibles,” future cases may need to squarely address when a judge crosses the line from permissible common-sense inference or judicial notice into improper extra-record reliance.

Complex Concepts Simplified

• Preponderance of the Evidence: The standard in probation revocations. It requires showing that a violation is more likely than not. It is a lower threshold than “beyond a reasonable doubt.”
• Preservation: To “preserve” an issue for appeal, a party must timely object when the issue arises. If an objection is infeasible (e.g., the judge is issuing findings from the bench), the party must file a motion for reconsideration to alert the trial court and create a record for appeal.
• Plain Error (Sup. Ct. R. 16‑A; Hodges): An appellate safety valve for unpreserved errors, requiring four showings: an error that is clear or obvious; that affects substantial rights (i.e., likely changed the outcome); and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. It is “used sparingly” and reserved for preventing miscarriages of justice.
• Sufficiency of the Evidence (De Novo Review): Ordinarily, appellate courts review whether the evidence, viewed in the State’s favor, could support the trial court’s findings under the proper standard of proof. In Collins, that typical de novo review was supplanted by plain-error review because the arguments were unpreserved.
• Factfinder’s Credibility Discretion (Aube): A court can accept certain parts of a witness’s testimony and reject others, even if uncontradicted, based on credibility and the record as a whole.
• Assume Without Deciding: A judicial technique where a court proceeds on the assumption that a contested point is erroneous, yet affirms because the party cannot establish prejudice or meet the relevant standard (here, plain error).

Conclusion

State v. Collins reinforces two central principles in New Hampshire probation litigation. First, preservation is paramount: even sufficiency-of-the-evidence challenges in VOP cases must be preserved by timely objection or motion for reconsideration, or they will be reviewed only for plain error. Second, where the record independently supports VOP findings, appellate courts will affirm without reaching sensitive due process questions—such as a judge’s reliance on extra-record professional experience or assumptions about terminology—by assuming error and finding no prejudice under the stringent plain-error standard.

The Court’s application of Kay, Stanin, Butland, Sullivan, Hodges, and Aube provides a clear roadmap: the burden at a VOP hearing is preponderance; sufficiency review is de novo when preserved; unpreserved claims face the high bar of plain error; and credibility determinations, including partial acceptance of a witness’s testimony, are entitled to deference. Practically, Collins encourages defense counsel to make contemporaneous objections (or promptly move for reconsideration) and cautions that semantic distinctions will not shield misrepresentations about compliance. While the precise limits on judicial reliance on extra-record knowledge remain for another day, Collins makes plain that unpreserved claims will rarely warrant reversal where the record itself amply demonstrates probation violations.

The judgment was affirmed. Chief Justice MacDonald and Justice Countway concurred; Justice Bassett concurred specially, agreeing that the claims were unpreserved and that plain error was not shown.