State of New Hampshire v. Jamie J. Judkins

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0333, State of New Hampshire v. Jamie J. Judkins, the court on September 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, Jamie J. Judkins, appeals his conviction, following a jury trial in Superior Court (MacLeod, J.), for driving after being certified a habitual offender. See RSA 262:23, I (2024). The defendant argues that the trial court erred by admitting, over his hearsay objection, testimony that he had not requested a hearing to decertify him as a habitual offender. See RSA 262:24 (2024), N.H. Admin. R., Saf-C 1017.06, 1017.07. The defendant further argues that the trial court erred by denying his request to instruct the jury on the lesser-included offense of driving after revocation or suspension. See RSA 263:64 (2024) (amended 2024). We affirm. We first address whether the trial court erred by admitting testimony that the defendant had not requested a decertification hearing. "Hearsay" is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." N.H. R. Ev. 801(c). A "statement" is "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." N.H. R. Ev. 801(a). "Hearsay" is generally not admissible absent a statute or court rule to the contrary. N.H. R. Ev. 802; see State v. Dana, 175 N.H. 27, 32 (2022). "We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion." Dana, 175 N.H. at 32 (quotation omitted). To establish an unsustainable exercise of discretion, the defendant must show that the ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

In this case, the chief hearings examiner for the New Hampshire Department of Safety Bureau of Hearings, who is a custodian of motor vehicle records for the department, see RSA 260:14, II(b) (2024), testified that he certified the defendant as a habitual offender following a hearing in 2018, resulting in the revocation of the defendant's license, see RSA 262:19, I, III, that he read the certification order aloud to the defendant and gave him a copy of it at the hearing, and that he discussed the "decertification" process with the defendant at the hearing. "Decertification" is the process by which a driver whose license has been revoked pursuant to a habitual offender certification

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order may seek restoration of the driver's license after the revocation period specified in the certification order has expired. See RSA 262:19, III, :24; N.H. Admin. R., Saf-C 1017.06, 1017.07. It requires the certified habitual offender to request a decertification hearing in writing, following which the hearings examiner may either grant or deny decertification. The certification order in this case specifically ordered the defendant "NOT to drive a motor vehicle on the ways of this state until such time as you have been decertified following a Hearing, the Director of Motor Vehicles has restored your license/operating privileges in writing, and you hold a valid license." All decertification hearings are recorded and saved by the Bureau of Hearings.

Subject to the defendant's hearsay objection, the witness testified that he

"check[ed] the records to see if [the defendant] had ever requested a decertification hearing." The trial court overruled the objection, observing, in part, that testimony that the witness checked "the records" and did not find a request for a decertification hearing therein would not constitute testimony concerning an out-of-court "statement." In response to the question whether the defendant "had asked for a decertification hearing," the witness then testified, "[t]o my knowledge no request has been made." We conclude that the trial court did not unsustainably exercise its discretion. The witness's testimony established that he is, by statute, a custodian of motor vehicle records, that decertification requires a driver to request a decertification hearing in writing, and that all decertification hearings are recorded and saved. Testimony that the witness reviewed "the records" to determine if the defendant had submitted a written request for a decertification hearing, and that, to the witness's knowledge, the defendant did not request such a hearing, does not constitute testimony concerning an out-of-court "oral assertion," "written assertion," or "nonverbal conduct . . . intended . . . as an assertion." N.H. R. Ev. 801(a), (c). Accordingly, we agree with the State that, as a matter of law, the testimony was not "hearsay."

We next address whether the trial court erred by denying the defendant's request for a lesser-included-offense instruction. "A defendant is entitled to have the jury consider a lesser-included offense when 'the lesser offense is embraced within the legal definition of the greater offense' and 'the evidence adduced at trial provides a rational basis for a finding of guilt on the lesser offense rather than the greater offense.'" State v. Gauntt, 154 N.H. 204, 206 (2006) (brackets and ellipsis omitted) (quoting State v. Watkins, 148 N.H. 760, 765 (2002)). Driving after suspension or revocation is embraced within the legal definition of driving after certification as a habitual offender, and thus, the issue in this case is whether the evidence could provide a rational basis for convicting the defendant of driving after suspension or revocation rather than driving after certification as a habitual offender. Gauntt, 154 N.H. at 206-07.

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Conviction on a charge of driving after certification as a habitual offender requires proof "(1) that an habitual offender order barring the defendant from driving a motor vehicle was in force; (2) that the defendant drove a motor vehicle on the ways of this State while that order remained in effect; and (3) that the defendant did so with knowledge of his status as an habitual offender."

Id. at 207 (quotation omitted). Conviction on a misdemeanor charge of operating after suspension or revocation requires proof "(1) that the defendant's license to drive had been suspended or revoked; (2) that the defendant drove a motor vehicle after such suspension; and (3) that the defendant did so with knowledge of revocation or suspension of his license to drive." Watkins, 148 N.H. at 766 (quotation omitted). Here, the defendant argues that the evidence provided a rational basis to find that the defendant did not drive with knowledge of his status as a habitual offender, likening the case to Gauntt. In Gauntt, the defendant testified at trial that (1) although he was aware that his license was suspended, he thought that his habitual offender status had been "wiped out" due to his prior incarceration for driving after being certified a habitual offender; (2) a division of motor vehicles employee advised him on how to reinstate his suspended license, but did not mention his habitual offender status; and (3) he had memory problems, had little recollection of his certification hearing, and did not understand that his habitual offender status would continue until removed in writing by the department of safety. Gauntt, 154 N.H. at 205-06. Based on this testimony, we held that there was a rational basis for the jury to have found that the defendant did not subjectively know that he was still certified a habitual offender at the time of his arrest for driving while certified a habitual offender, and thus, that the trial court erred by denying his request for a lesser- included-offense instruction. Id. at 207-08. In so holding, we distinguished Watkins on the basis that the defendant in Watkins offered no evidence or testimony regarding his state of mind. See id. at 207.

In Watkins, the defendant likewise argued that he was entitled to a lesser-included-offense instruction because he had challenged the State's proof that he knew of his habitual offender status. See Watkins, 148 N.H. at 766. In rejecting this argument, we emphasized that the sole license revocation of which there was any evidence at trial was the one imposed as a result of the defendant's certification as a habitual offender. See id. We further observed that "[t]he only evidence that formed a basis for the defendant's knowledge of the revocation was that he was served with notice of his certification hearing, attended the hearing, and was served with a copy of the certification order indicating that his license was revoked." Id. Under these circumstances, we reasoned that "the only evidence upon which the jury could rationally find that the defendant knew his license had been revoked also supported the finding that the defendant knew of his status as a habitual offender," and did not

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provide a rational basis to find him guilty of the lesser offense rather than the greater offense. Id.

The defendant argues that, like Gauntt, the evidence in this case supports a rational finding that he thought his license "was merely suspended"

without knowing of his habitual offender status. We disagree. As the State observes, although the parties stipulated that the defendant had sufficient driving offenses to certify him as a habitual offender, there was no evidence as to the nature of those offenses or any penalties imposed, including license suspension or revocation, as a result. Instead, as in Watkins, the only evidence of a license suspension or revocation imposed upon the defendant was the revocation imposed as a result of the habitual offender certification. Thus, the evidence upon which the jury rationally could have found that the defendant knew his license had been suspended or revoked also supported the finding that he knew of his status as a habitual offender. See id. Moreover, unlike Gauntt, there was no testimony or evidence regarding the defendant's state of mind that, if credited, would support a finding that he did not subjectively know he was still certified at the time of his arrest. See Gauntt,

154 N.H. at 207. We note that the period of time between the defendant's certification hearing and arrest in Watkins was longer than the six years between certification and arrest in this case. See Watkins, 148 N.H. at 761. Based on the evidence in this case, we conclude that the trial court did not err by declining to give a lesser-included-offense instruction.¹ Affirmed.

MacDonald, C.J., and Donovan, Countway, and Gould, JJ., concurred.

Timothy A. Gudas, Clerk

1 In their briefs, the parties dispute whether the standard of review as to this issue is the unsustainable exercise of discretion standard as applied in Gauntt, 154 N.H. at 206, or de novo review in accordance with State v. Brooks, 177 N.H. ___, ___ (2025), 2025 N.H. 12, ¶¶8-