State v. Gunseth

1

State of New Hampshire v. Cody Gunseth,

No. 2022-0082

Supreme Court of New Hampshire

June 29, 2023

ORDER

The court has reviewed the written arguments, oral arguments, and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The defendant, Cody Gunseth, appeals his conviction following a jury trial in Superior Court (Delker J.) on one felony count of possession of cocaine. See RSA 318-B:2, I (Supp. 2022). He argues that the trial court erred by denying his motion to dismiss because (1) the evidence was insufficient to prove that he possessed any substance that was found to be cocaine; and (2) the State did not charge him with possessing any cocaine found outside a safe located inside a bedroom closet where the defendant was discovered hiding. We affirm.

The jury could have found the following facts. In March 2019 police officers executed a search warrant at the rented residence of the defendant's girlfriend, Megan. Although the property owner rented the residence only to Megan, the search warrant targeted both Megan and the defendant, seeking "[e]vidence of drugs and sales of drugs." When executing the search warrant, the police announced their presence and Megan answered the door. After initial questioning, she informed the police that the defendant was not in the home. The officers proceeded to clear the home and in a bedroom on the second floor an officer found the defendant hiding in a closet wearing only a pair of boxers. The officer ordered the defendant out of the closet and asked for his identification. The defendant responded that his wallet with his identification was in a wooden box beside the bed.

The officers observed clothing and shoes scattered throughout the bedroom. Inside the closet where the defendant had been hiding, officers discovered a SentrySafe. The officers forcibly opened the safe and inside discovered a significant amount of controlled drugs. Specifically, the State later alleged that the safe contained, among other things, 75 grams of a substance containing fentanyl and heroin, four orange pills of buprenorphine, and four packages, each weighing approximately three grams, of crack cocaine. The contents of the safe also included, among other things, baggies, scales multiple cell phones, multiple knives, a plethora of drug paraphernalia, and a piece of paper with an IOU issued to Megan.

In the bedroom, but outside the safe, officers found, among other things, drug paraphernalia, smaller quantities of alleged controlled drugs and drug residue, marijuana flowers, and $800 in cash hidden behind a picture on the wall. Additionally, in the wooden box containing the defendant's identification, officers found a Narcan device, a suspected marijuana lollipop, a pink envelope with the defendant's name containing $296 in cash, and a black earbuds case that contained a suspected drug consisting of a chunk of a small white substance.

In January 2020, a grand jury indicted the defendant on one felony count of possession of five grams or more of fentanyl with the intent to dispense, one felony count of possession of five grams or more of heroin with the intent to dispense, one felony count of possession of cocaine with the intent to dispense, and one felony count of possession of buprenorphine. Specifically, the indictment charging the defendant with possession of cocaine alleged that "on or about the [30th] day of March 2019, at Antrim in the County of Hillsborough," the defendant committed the crime of "possession of a controlled drug with intent to dispense." (Emphasis omitted.) The State charged Megan as a co-defendant, but she later absconded and remained at large when the defendant's case was tried.

At trial, the State elicited testimony from two of the officers who executed the search warrant and discovered the controlled drugs in the bedroom. During its direct examination of the officers, the State introduced photographs of, among other things, numerous small white chunky substances found in a baggie inside the safe (19-216-PR), as well as "a bag of off-white chunky material" (19-115-PR) found in the bedroom.^[1] Further, the State introduced some of the contents of the wooden box, including the small white chunky substance in the black earbuds case alleged to be a controlled substance (19-117-PR), as well as photographs of the wooden box and its contents.

The State then presented the testimony of a State Laboratory analyst, qualified "as an expert in the analysis of controlled drugs," who tested some of the evidence seized in this case. As relevant here, the expert testified that 19-216-PR contained four packages "that all appeared the same." The expert then randomly selected one substance to test, which documented the presence of crack cocaine. The expert explained that she did not test all four packages pursuant to a State Laboratory policy that directed analysts not to test every suspected drug when numerous items appear similar and a test of one of the items documents the presence of a controlled substance. The expert also applied this policy to three other evidence bags in this case. Specifically, she testified that, because 19-112-PR contained a white chunky substance and testing of it documented the presence of cocaine, she did not test either 19-113-PR or 19-115-PR because they also contained a similar white chunky substance. The expert also testified that she could not comment on whether 19-117-PR contained any controlled drugs because it "didn't come into the laboratory" and was not tested.

After the State concluded its case-in-chief, the defendant moved to dismiss all of the charges. The defendant argued that the State had not met its burden of proving that he had control or authority sufficient to establish his possession over the evidence found in the safe and some of the evidence found in the bedroom. The defendant acknowledged that he likely had control over the contents of the wooden box containing his identification, but argued that the State Laboratory did not test 19-117-PR containing the white chunky substance located inside the wooden box. Therefore, he argued, the State had not met its burden of proving that the wooden box contained a controlled substance. Additionally, the defendant asserted that because the evidence was circumstantial, the State had not excluded all rational conclusions other than guilt. The State countered that the circumstantial evidence supported the defendant's constructive possession of all the items found in the bedroom. Alternatively, the State argued that, even if there was insufficient evidence to prove that the defendant had control or possession of the items in the safe, evidence concerning the other alleged contraband found in the bedroom was sufficient to support the State's charges.

The trial court denied the defendant's motion. The court found that "viewing the evidence and all reasonable inferences in the light more favorable to the State, a rational jury can conclude that the [d]efendant exercised control over the drugs, including the drugs in the safe." The court relied upon evidence supporting the defendant's cohabitation in the bedroom, his consciousness of guilt in hiding from the police, and much of the evidence in plain sight, as supporting its decision that the defendant "generally had access to drugs in the house." The court further found that this evidence included the contents of the wooden box, which although not tested, appeared "very similar to other drugs that were tested and found to be controlled substances."

Thereafter, the defendant called one witness at trial, the owner of the property, who testified that he leased the property only to Megan and he did not know the defendant. After the defendant rested his case, he renewed his motion to dismiss, which the trial court denied. At the conclusion of the two-day trial, the jury found the defendant guilty on one lesser-included offense of possession of cocaine. This appeal followed.

On appeal, the defendant first argues that the trial court erred by denying his motion to dismiss because the evidence was insufficient to convict him. He "concedes that the evidence was sufficient to prove that he possessed the contents of the wooden box containing his identification," but asserts that the evidence was insufficient to establish, beyond a reasonable doubt, that the "small chunk of a white substance" found inside the wooden box was cocaine. We disagree.

When considering a challenge to the sufficiency of the evidence, we objectively review the record to determine whether any rational trier of fact could have found the essential elements of the crime, beyond a reasonable doubt, considering all the evidence and all reasonable inferences therefrom in the light most favorable to the State. State v. Norman, 171 N.H. 103, 112 (2018). The trier of fact may draw reasonable inferences from facts proved as well as from facts found as the result of other inferences, provided they can be reasonably drawn therefrom. State v. Saintil-Brown, 172 N.H. 110, 117 (2019). We examine each evidentiary item in the context of all the evidence, and not in isolation. Id. Because the defendant chose to present a case, we review the entire trial record to determine the sufficiency of the evidence. Id. On appeal, the defendant bears the burden of proving that the evidence was insufficient to prove guilt. Id.

When as in this case, the evidence to prove one of the elements of the crime is solely circumstantial, the defendant must establish that the evidence fails to exclude all reasonable conclusions except guilt. Id. The proper analysis is not whether the evidence excludes every...