THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2023-0729, State of New Hampshire v. Ghenton Doty, the court on March 25, 2025, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, Ghenton Doty, appeals his conviction, following a jury trial in Superior Court (Colburn, J.), on a charge of bail jumping for knowingly failing to appear at a court hearing as required by the conditions of his release. See RSA 642:8, I(a) (2016). He argues that the evidence was insufficient to support the jury's finding that he acted knowingly when he failed to appear at the relevant hearing. We reverse. A challenge to the sufficiency of the evidence raises a question of law that we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). When considering a challenge to the sufficiency of evidence to support a conviction, we objectively review the entire record, construing the evidence, and all reasonable inferences from it, in the light most favorable to the State, and determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. Id. We examine each item of evidence in the context of the entire case, not in isolation. Id. The trier of fact is entitled to draw reasonable inferences from the facts proved as well as from facts found as the result of other inferences so long as they can reasonably be drawn therefrom. See id. The defendant bears the burden of demonstrating that the evidence was insufficient to prove guilt. State v. Saintil-Brown, 172 N.H. 110, 117 (2019). When the evidence as to one or more of the elements is solely circumstantial, the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt. Id. The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but whether all reasonable conclusions based on the evidence have been excluded. Id. When solely circumstantial evidence is at issue, "the critical question is whether, even assuming all credibility resolutions in favor of the State, the inferential chain of circumstances is of sufficient strength that guilt is the sole rational conclusion." Seibel, 174 N.H. at 445 (quotation omitted).
To convict the defendant in this case, the State was required to prove that, following his pretrial release in a criminal matter, he "knowingly fail[ed] to appear before a court as required by the conditions of his release." RSA 642:8, I(a). Specifically, the State was required to prove that the defendant knowingly
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failed to appear at a show cause hearing held in the superior court on March 30, 2022, as required by bail conditions in connection with a criminal matter. The evidence establishes that on November 22, 2019, the defendant was accused of certain criminal conduct, following which his then-spouse told him to leave their home. On November 27, 2019, when the defendant returned to the home and collected personal belongings, police were dispatched to the home on a complaint of an "[u]nwanted subject," and the defendant told an officer that he had returned to the home against an attorney's advice, that the criminal allegations were going to ruin his life, and that he was distraught. On December 6, 2019, an attorney, who was not the defendant's attorney at the time of trial, entered an appearance on the defendant's behalf in superior court on his pending criminal charges. On January 9, 2020, the trial court issued an order setting personal recognizance bail subject to a condition requiring that he "appear at all court proceedings as ordered."
On October 1, 2021, nearly two years after the criminal proceedings commenced, the trial court issued a notice of jury trial requiring the defendant to attend a trial management conference on March 25, 2022. The attorney who had entered an appearance for the defendant in December 2019 was copied on the jury trial notice. Although the State claims in its brief that the defendant did not appear at the trial management conference, there was no testimony at trial regarding who did or did not attend the trial management conference, including the defendant or his attorney.
On March 25, 2022, the trial court issued a notice of show cause hearing to occur on March 30, 2022, again copying the defendant's then-attorney on the notice. The clerk of court testified that a show cause hearing may be scheduled for any number of reasons, including a party's failure to attend a prior hearing, and that this show cause hearing notice "was created and likely sent on" March 25, 2022, the same day as the trial management conference. Although the State again failed to introduce direct testimony regarding who did or did not attend the March 30 show cause hearing, the defendant did not object to the introduction into evidence of his arrest warrant, issued by the superior court on March 30, 2022, as a full exhibit. The warrant stated that it was being issued based upon the defendant's failure to appear at a "status hearing" on March 30, 2022. It is the failure to attend the March 30 show cause hearing for which the defendant was charged with bail jumping. At trial, the clerk of court testified generally that, when a hearing is scheduled, a notice of the hearing is prepared by the clerk's office, the clerk's office "check[s] off the names of the attorneys that the notice would be sent to,"
and the notice is sent electronically through the "file and serve program" to counsel of record copied on the notice. The clerk further testified that under the file and serve program, the clerk has the ability to "check to see if
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something has been properly delivered and . . . who, as part of that case, has opened that filing." Although the clerk testified that the defendant's attorney who had filed an appearance in December 2019 and who was copied on the show cause hearing notice was counsel of record, there was no testimony that the clerk ever determined that the show cause hearing notice was in fact
"properly delivered" to, or opened by, the defendant's then-counsel. Nor did the State introduce any other evidence that either the defendant's then-counsel, or the defendant himself, received the show cause hearing notice. Following trial, the jury acquitted the defendant of the criminal charges underlying the bail jumping charge, but convicted him of bail jumping. On appeal, the defendant argues that, because the evidence that he acted
"knowingly" in failing to appear at the show cause hearing was solely circumstantial, and because it did not exclude a reasonable conclusion that he never received notice of the show cause hearing, the evidence was insufficient to sustain his conviction. We agree.
"A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist." RSA 626:2, II(b) (2016).
"Awareness is . . . central to the concept of acting 'knowingly.'" State v. Hall,
148 N.H. 394, 398 (2002). In this case, we agree with the defendant that the evidence that he knowingly failed to attend the show cause hearing was solely circumstantial — it required the jury to infer, from evidence that his then- counsel's name was on the hearing notice, that (1) the notice in fact was sent to counsel by the file and serve program, (2) counsel opened the notice, and (3) counsel notified the defendant of the hearing. Cf. State v. Kelley, 159 N.H. 449, 453-54 (2009) (distinguishing direct from circumstantial evidence). Although the clerk of court testified that hearing notices are generally sent electronically to counsel of record copied on the notices, and that the clerk has the ability through the file and serve program to determine whether a specific notice was in fact sent to, or opened by, an intended recipient, there was no testimony that the clerk ever determined whether the show cause hearing notice here was actually sent to or opened by the defendant's then- counsel. Nor was there evidence, beyond the mere presence of the defendant's then-counsel's name on the show cause hearing notice and the clerk's testimony as to what generally happens, from which the jury reasonably could have inferred that his counsel actually received the notice. For instance, there was no testimony that the defendant's then-counsel actually attended either the show cause hearing or the earlier trial management conference. Nor was there testimony that the email address to which the file and serve program served the hearing notice upon defense counsel was the same address that counsel had provided upon filing the appearance. Under these circumstances, even after resolving all credibility issues in favor of the State, we conclude that
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the circumstantial evidence did not exclude a reasonable conclusion that the defendant was never made aware of the March 30, 2022, show cause hearing. See Seibel, 174 N.H. at 445.
In its brief, the State invites us to rely upon the common law presumption that "a properly addressed mailed communication has been received in the absence of other evidence to the contrary." Cote v. Cote, 123 N.H. 376 (1983). Even if we assume, without deciding, that this presumption applies to electronically served documents, or that it may establish a criminal defendant's state of mind, but see Hall, 148 N.H. at 398 (holding that jury instruction creating mandatory presumption of criminal intent violates due process), there was no evidence that this hearing notice was "properly addressed" to the defendant's then-counsel through the file and serve program. The State further relies upon the evidence that, in November 2019, the defendant told a police officer that he had returned to his house against the advice of an attorney and was distressed, to argue that the jury reasonably could have found that the defendant did not want to face trial on the charges and was willing to ignore his attorney's advice. The mere fact that the defendant was distraught and ignored an attorney's advice more than two years prior to March 25, 2022, however, does not render unreasonable a conclusion, under the circumstances of this case, that neither the defendant nor his counsel received the March 25, 2022 show cause hearing notice. Reversed.
MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.
Timothy A. Gudas, Clerk