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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Rockingham
No. 2018-0441


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                 JAMES CASTINE

                           Submitted: June 18, 2019
                        Opinion Issued: August 21, 2019

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief), for the State.


      David M. Rothstein, deputy director public defender, of Concord, on the
brief, for the defendant.

      LYNN, C.J. The defendant, James Castine, appeals his convictions and
sentences following a jury trial in the Superior Court (Delker, J.) on three
counts of sale of a controlled drug. See RSA 318-B:2, I (2017). On appeal, the
defendant challenges: (1) the sufficiency of the evidence to support his
convictions; and (2) the trial court’s consideration at sentencing of evidence
that he was the leader of a drug enterprise. We affirm.
                                                 I

       The jury could have found the following facts based upon the evidence at
trial and all reasonable inferences drawn therefrom. In early 2017, a sheriff’s
deputy with the Rockingham County Drug Task Force entered into a
cooperation agreement with an individual who had been arrested for
possessing heroin. This confidential informant (CI) told the deputy that he
could purchase heroin from the defendant. The CI agreed to conduct three
controlled drug buys from the defendant.

      All three drug buys, which occurred on separate days, were executed in
the same fashion. First, the CI arrived at the Epping police station and met
with the deputy and other law enforcement officers. At their direction, the CI,
using his cellphone, called the defendant and requested the purchase of a set
quantity of drugs from him at the defendant’s residence, which was a garage.
Following the cellphone call, the deputy searched the CI and his vehicle. After
confirming that neither money nor drugs were on the CI or in his car, the
deputy gave the CI the money he needed to purchase the drugs.1 The CI then
drove from the police station to the defendant’s residence, followed by the
deputy in another car. Once at the defendant’s residence, the CI exited his car
and entered the garage through a side door. The deputy, who was located
nearby, witnessed the CI exit his car and enter the garage. Two other law
enforcement officers watched from across the street.

      After entering the garage, the CI asked the defendant for the drugs he
had requested. The defendant weighed and packaged the drugs, and handed
them to the CI, who gave the defendant the money that had been supplied to
him by law enforcement. Two other individuals, a male and a female, were
present when the first two sales took place. During the third sale, only the
female was present.

      After the exchange, the CI entered his car and called the deputy to tell
him that he had the drugs. Next, the CI drove to the Epping police station,
followed by the deputy. Once at the police station, the deputy collected the
drugs from the CI and searched both the CI and his car. After the deputy
confirmed that there were no additional drugs or money on the CI or in his car,
the CI related to the deputy what had happened inside the garage. The drugs
purchased from the defendant were tested, and all three samples were
determined to contain a mixture of fentanyl and cocaine. Both the CI and the
deputy testified that they were unable to differentiate between heroin and
fentanyl.



1For the third buy, the deputy also set up the CI’s cellphone to audio record the transaction.
However, the recording was inaudible.


                                                 2
      After hearing testimony from the CI, the deputy, and the criminalist who
tested the drugs, the jury found the defendant guilty on all three counts. At
sentencing, the trial court imposed two consecutive stand-committed sentences
of seven-and-a-half to 15 years on the first two drug convictions, and a
consecutive suspended sentence of seven-and-a-half to 15 years on the third
drug conviction. This appeal followed.

                                        II

       We first address the defendant’s argument that the State presented
insufficient evidence to prove his guilt beyond a reasonable doubt. Our
standard of review of sufficiency claims is well established. “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. Roy, 167 N.H. 276, 292 (2015) (quotation omitted). It is the
defendant who bears the burden of demonstrating that the evidence was
insufficient to prove guilt. Id. Where, as here, the State presents both direct
and circumstantial evidence of guilt, “a sufficiency challenge must fail if the
evidence, including the jury’s credibility determinations, is such that a rational
trier of fact could find guilt beyond a reasonable doubt, even if the evidence
would support a rational conclusion other than guilt if the jury had resolved
credibility issues differently.” State v. Saunders, 164 N.H. 342, 351 (2012).
“The evaluation of witness credibility and the weight given to witnesses’
testimony [are] issues for the jury to resolve.” State v. Oakes, 161 N.H. 270,
276 (2010) (quotation omitted).

       Viewing the evidence and all reasonable inferences drawn therefrom in
the light most favorable to the State, we hold that the evidence was sufficient
for a rational trier of fact to have found, beyond a reasonable doubt, that the
defendant was guilty of selling a controlled drug on three occasions. See Roy,
167 N.H. at 292. Here, the jury heard evidence that, on three occasions, the CI
requested heroin from the defendant and that law enforcement provided the CI
with the money to purchase the heroin. The jury also heard the CI’s testimony
that, on three occasions, he met with the defendant to complete the drug
purchases and, on those occasions, the defendant gave the CI drugs in
exchange for the money supplied to the CI by law enforcement. Finally, the
criminalist testified that the drugs purchased from the defendant tested
positive for fentanyl and cocaine. Based upon this evidence and all reasonable
inferences to be drawn therefrom, viewed in the light most favorable to the
State, we conclude that a rational trier of fact could have found, beyond a
reasonable doubt, that the defendant sold a controlled drug to the CI on three
occasions.




                                        3
       The essence of the defendant’s argument is that the evidence was
insufficient because the CI was the only witness who testified that the
defendant sold him drugs on the three occasions at issue. The defendant
asserts that one or the other of two individuals, who were present when the
transactions occurred, could have made the sales. He notes that one of these
individuals had a prior arrest record, and the other was on a list of targeted
dealers known to the police. He further suggests that the CI became an
informant because he “hoped to save himself” by reducing or eliminating his
own liability for criminal conduct, and that, because the defendant “was at the
top of the Task Force’s list” of targeted dealers, the CI understood that naming
the defendant as the seller was the “best chance of avoiding his own drug
charges.” The defendant also contends that the Task Force officers themselves
doubted the CI’s veracity, which is why, he theorizes, they decided, after the
first two sales, to audio record the third sale.

       The short answer to all of these arguments is that, although they may
have provided fruitful fodder for cross-examination of the State’s witnesses and
argument to the jury, they fail to demonstrate, as a matter of law, that a
rational fact finder could not have found the evidence sufficient to prove the
defendant’s guilt beyond a reasonable doubt. See Oakes, 161 N.H. at 276
(stating that the evaluation of witness credibility and the weight given to
witnesses’ testimony are issues for the jury).

                                       III

      The defendant next argues that the trial court erred in considering the
evidence related to his alleged status as a “drug enterprise leader,” RSA 318-
B:2, XII (2017); see RSA 318-B:26, VI (2017), in imposing sentence.

      In a sentencing memorandum filed prior to the sentencing hearing, the
State referenced the defendant’s criminal history, including a pending case
charging him with two counts of being a drug enterprise leader. The State
explained that the defendant was “utiliz[ing] a number of individuals or
‘runners’ to buy drugs in Massachusetts, transport drugs, and sell drugs on
his behalf and/or at his behest.” The memorandum identified seven
individuals as “runners” for the defendant, and 36 individuals who purchased
drugs from or through him.

       Based on this memorandum, the State argued at sentencing that the
defendant not only conducted the three controlled drug sales for which he was
convicted, but also that he was connected with an “extensive network” of
individuals who assisted him in purchasing and distributing drugs. With the
aid of a flow chart, the State described how the defendant enlisted others to
both buy and sell drugs. The State explained that the defendant recruited
addicts to purchase drugs out of state and transport them to his residence.
According to the State, the defendant instructed these individuals as to the


                                       4
quantity of drugs to purchase, where to go, and from whom to buy the drugs,
and also provided money for the purchases.

       In addition, upon accessing the defendant’s Facebook account pursuant
to a search warrant, the State discovered that he used this account, along with
other methods, to contact potential buyers. The State explained that the
individuals used Facebook to reach out to the defendant, or someone who sold
drugs for him, with requests for specific quantities of drugs. After receiving
such a request, the defendant set the price, supplied an individual with the
drugs, and sent that individual to sell the drugs to the buyer. As he did with
his purchasers, the defendant informed the seller of the identity of the buyer,
where to go, what quantity to sell, and the amount to get for payment. If the
buyer did not have the necessary payment, the seller did not have the authority
to sell to the buyer without first obtaining approval from the defendant. The
State further explained that proceeds from the sales went directly to the
defendant.

      The State described how the individuals who worked for the defendant
were generally addicts, and that, to evade law enforcement, he paid them in
drugs. This arrangement also allowed the defendant to withhold drugs if
someone did not perform as instructed. The State further explained that the
defendant sold drugs to certain buyers knowing that they had recently
overdosed, and that, in the past, he had traded drugs for firearms and sex. In
addition, the State noted that an individual to whom the defendant had
recently sold drugs died in a car accident with heroin in her system.

       On appeal, the defendant argues that the trial court should not have
considered the evidence presented by the State that suggested a drug scheme
beyond the three buys made by the CI. Trial courts have broad, but not
unlimited, discretion in determining the evidence to be considered at a
sentencing hearing, State v. Willey, 163 N.H. 532, 541 (2012), and we generally
review their sentencing decisions using the familiar unsustainable exercise of
discretion standard, State v. Lambert, 147 N.H. 295, 296 (2001).2 “To show
that the trial court’s decision [was] not sustainable, the defendant must
demonstrate that the court’s ruling was clearly untenable or unreasonable to
the prejudice of his case.” Id. (quotation omitted). Except with respect to
privileges, the rules of evidence do not apply at sentencing hearings, see N.H.
R. Ev. 1101(d)(3), which means that the court may consider hearsay. See State
v. Tufts, 136 N.H. 517, 519 (1992); cf. State v. Benner, 172 N.H. ___, ___
(decided May 17, 2019) (slip op. at 1, 8-9) (hearsay admissible at hearing to
2 When the defendant asserts that his constitutional rights have been violated as the result of the
trial court’s sentencing decision, we review that decision de novo. Willey, 163 N.H. at 541.
Although the defendant contends that the “court’s consideration of improper evidence affected
[his] rights and the fairness of his sentence,” we do not find this argument sufficiently developed
to warrant a constitutional analysis. See State v. Gubitosi, 157 N.H. 720, 728 (2008) (declining to
address constitutional argument that was not adequately briefed).


                                                 5
impose deferred sentence). However, we have cautioned that it is improper for
courts to rely upon allegations of other crimes committed by the defendant
when such allegations are “unsubstantiated, resolved by acquittals, or the
product of speculation.” Tufts, 136 N.H. at 519 (quotation omitted).
Specifically, we have explained that evidence of other criminal conduct
considered by the trial court at sentencing must “at least rise to the level of
probability.” Id. at 520; see also State v. Cobb, 143 N.H. 638, 660-61 (1999).

       The defendant argues that the trial court erred in considering evidence of
the defendant’s drug enterprise charges at sentencing. We disagree. In
addressing the defendant’s argument, we note initially that, in the trial court,
the defendant did not challenge the State’s evidence on the basis of reliability,
but rather on relevancy grounds. Although, on appeal, the defendant asserts
that his trial court argument was sufficient to preserve his appellate argument,
we need not decide whether he is correct because we reject his appellate
argument on the merits. Cf. State v. Coppola, 130 N.H. 148, 156 (1987)
(suggesting that, at some point, evidence can be so unreliable as to be
irrelevant).

      First, the State argues, and the defendant does not dispute, that, at the
time of sentencing, he had been indicted on the drug enterprise charges.
Moreover, the sentencing transcript reveals that the trial court was aware of
these charges at the time of sentencing. A grand jury’s decision to indict
“conclusively determines the existence of probable cause” to believe that the
defendant committed the crime with which it charged him. Ojo v. Lorenzo, 164
N.H. 717, 723 (2013) (quotation omitted). Probable cause is more than
speculation or innuendo; it means that there is “sufficient, trustworthy
information to warrant a reasonable person to believe that the [defendant]
committed a crime.” State v. Lantagne, 165 N.H. 774, 777 (2013) (quotation
omitted).

       In addition, the State presented a detailed sentencing memorandum that
referenced various Facebook communications between the defendant and
potential buyers, and identified seven individuals as his “runners” and 36
individuals who purchased drugs from or through him. The State possessed
sufficiently detailed information about the makeup of the defendant’s drug
enterprise that it was able to depict the same in a flow chart, which the State
provided as an exhibit at sentencing. Given the trial court’s knowledge of the
indictments, as well as the other information provided by the State, the court
had a reliable basis upon which to conclude that the defendant was involved in
a drug enterprise that extended beyond the three buys made by the CI. We,
therefore, find no error.

                                                  Affirmed.

      HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.


                                        6
