No. 2019-0539

Supreme Court At-a-Glance Contributor Laura D. Devine, Civil Litigation Attorney, Boyle Shaughnessy Law, Manchester, NH

May 4, 2021



  • Whether the State met its burden proving that the defendant violated the good behavior condition of his suspended sentence by committing witness tampering


The defendant was convicted of various charges and received a suspended sentence. The suspended sentence included: (1) the defendant must complete a batterer intervention program; and (2) be of good behavior.

The Court noted the relevant facts as follows. The defendant stopped participating in a qualifying batterer intervention program. The State subsequently moved to impose the defendant’s suspended sentence. Shortly thereafter, the defendant re-enrolled in a qualifying intervention program and then sent an e-mail to his ex-wife, in part accusing her of trying to trigger the suspended sentence, and in part accusing her of being the abuser. The State again moved to impose the suspended sentence, this time, it cited a violation of his good behavior obligation. Specifically the state argued the defendant engaged in witness tampering, because of the e-mail to his ex-wife.

The trial court granted the State’s motion to impose the sentence, to impose ten of the ninety days. This ruling was stayed pending the appeal.

In its decision, the Court observed that good behavior means conduct conforming to the law and a violation of good behavior occurs when a defendant engages in criminal conduct, which is conduct beyond a violation level offense. The Court noted that the State’s burden in proving a violation sufficient to trigger the imposition of a suspended sentence is to prove the violation by a preponderance of evidence, not beyond a reasonable doubt.

The Court reversed the trial court’s imposition of ten days of the suspended sentence. In reaching its decision, the Court noted that the defendant was neither convicted of nor charged with witness tampering. The Court based its decision upon the fact that the trial court record lacked the mental state required for witness tampering. Specifically there was no evidence that the defendant believed the institution of an official proceeding or investigation was probable or pending.

The Court held that the evidence before the trial court, in the light most favorable to the State did not support a finding that the defendant believed an official proceeding or investigation was pending or about to be instituted when he sent the e-mail to his ex-wife. In sum, the State could not meet its burden that by a preponderance of the evidence the defendant had engaged in witness tampering.


Gary Apfel, Simpson & Mulligan, Lebanon, for the defendant. Gordon MacDonald, attorney general (Elizabeth Woodcock, assistant attorney general) for the State.