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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Carroll
No. 2014-0576


                       THE STATE OF NEW HAMPSHIRE

                                       v.

                                MARIANNE KING

                          Argued: October 14, 2015
                      Opinion Issued: November 10, 2015

      Joseph A. Foster, attorney general (Patrick J. Queenan, assistant
attorney general, on the memorandum of law and orally), for the State.


      Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      DALIANIS, C.J. The defendant, Marianne King, appeals her conviction
by a jury on one count of theft by unauthorized taking. See RSA 637:3 (2007).
She argues that the Superior Court (Garfunkel, J.) erred by giving the jury a
portion of the instruction we endorsed in State v. Germain, 165 N.H. 350, 360-
61 (2013). We affirm.
      In Germain we exercised our “supervisory jurisdiction over the trial
courts of New Hampshire” by endorsing “the following model instruction
regarding direct and circumstantial evidence”:

            There are two types of evidence — direct and circumstantial.
      Direct evidence is direct proof of a fact, such as the testimony of a
      witness based upon personal knowledge — that is, what the
      witness actually saw, heard or otherwise directly experienced.
      Circumstantial evidence is indirect evidence which tends to prove a
      disputed fact by proof of other facts. Let me give you a brief
      example to demonstrate the difference between direct and
      circumstantial evidence. [Insert example.]

            That is all there is to circumstantial evidence. On the basis of
      reason and common sense you infer from an established fact the
      existence or non-existence of another fact.

             You should consider both types of evidence. There is no
      legal distinction between the weight of direct evidence as compared
      to circumstantial evidence. You are permitted to give equal weight
      to both, but you must decide how much weight to give any
      evidence, whether it be direct or circumstantial. However, there is
      a rule relating to circumstantial evidence that you must keep in
      mind. If the State presents only circumstantial evidence to prove
      one or more elements of the charged offense, then in order to
      convict, you must find that the totality of the evidence excludes all
      reasonable conclusions other than guilt. This means that if it is
      reasonable to arrive at two conclusions, one consistent with guilt
      and one consistent with innocence, then you must choose the
      reasonable conclusion consistent with innocence. In determining
      whether all reasonable conclusions other than guilt have been
      excluded, you should not consider any item of circumstantial
      evidence in isolation. Rather, you should consider each item of
      circumstantial evidence in the context of all the other evidence.

              You must understand, however, that this circumstantial
      evidence rule does not apply to direct evidence. Therefore, if there
      is a conflict between witnesses who offer direct evidence
      concerning certain facts, you must decide which witness to believe.
      For example, suppose there are two eye witnesses to a crime, and
      one testifies that the defendant committed the crime and the other
      testifies that the defendant did not commit the crime. This
      presents a situation where there is a conflict in the direct evidence.
      In this situation, you, the jury, must decide which witness to
      believe, and whether — based upon all of the evidence — the State
      has proven the defendant’s guilt beyond a reasonable doubt.


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           In summary, you should consider all the evidence in the case
      and decide whether the State has proven the defendant guilty
      beyond a reasonable doubt.

Germain, 165 N.H. at 360-61.

       At trial, the defendant argued that it was error to instruct the jury that “if
there is a conflict between witnesses who offer direct evidence concerning
certain facts, you must decide which witness to believe.” Id. at 361. She
asserted that this instruction, which, for the purposes of this appeal, we refer
to as “the Germain direct-evidence instruction,” was “misleading” because it
conflicted with the State’s burden to prove the elements of the crime beyond a
reasonable doubt:

      It’s our position . . . that the way this is worded seems to inquire,
      let’s say in this case the jury is deciding whether to believe [a
      witness] over [the defendant], [and] is called upon to make a
      conclusion as to -- final conclusion as to a certain fact. It is
      certainly possible that the jury could find either that it’s more
      likely that [the defendant] is telling the truth or more like[ly] that
      [the witness] is telling the truth, but not sufficiently.

            So to get to the beyond a reasonable doubt certainty, the
      jury should not be instructed, they must choose basically an
      absolute certainty as to that fact, that that is misleading, resulting
      in a question of whether or not the verdict was based on a finding
      of beyond a reasonable doubt.

The trial court overruled the defendant’s objection to the instruction, stating:
“As we discussed, the New Hampshire Supreme Court has instructed us to give
this instruction exactly as it appears, and so the instruction will remain.”

     In addition to giving the jury the entire instruction we endorsed in
Germain, the trial court instructed:

            In deciding whether the State has proven the charge against
      the Defendant beyond a reasonable doubt, you must consider the
      credibility of witnesses. That is, it is up to you to decide who to
      believe.

            If there is any conflict between the witnesses, then you must
      resolve the conflict and decide what the truth is. Simply because a
      witness has taken an oath to tell the truth, does not mean that you
      have to accept the testimony as true.




                                         3
      In deciding which witnesses to believe, you should use your
common sense and judgment, and I suggest you consider a
number of factors, the witness’s age, intelligence, and experience;
whether the witness appeared to be candid; whether the witness
appeared worthy of belie[f]; the accuracy of the witness’s memory;
the appearance and demeanor of the witness while testifying;
whether the witness has an interest in the outcome of the case;
whether the witness has any reason for not telling the truth;
whether what the witness said seemed reasonable or probable;
whether what the witness said seemed unreasonable or
inconsistent with the other evidence in the case; and whether the
witness had any friendship or animosity towards other people in
the case.

        You should consider these factors in deciding the credibility
of all the witnesses, whether they happen to be ordinary citizens or
police officers. In short, you should consider the testimony of each
witness and give it the weight that you think it deserves.

      You can accept all of what a witness says, you can reject all
of what a witness says, or you can accept some of it and reject
some of it, it is up to you.

       In deciding whether to believe a witness and how much of
his or her testimony to believe, you should consider both the direct
and cross-examination of the witness.

       You need not believe a witness’s testimony simply because it
is un-contradicted. As I said, the determination of witness
credibility is up to you. If you believe that a witness testified
falsely as to part of his or her testimony, you may choose to
distrust other parts also, but you are not required to do so.

      You should bear in mind that inconsistencies and
contradictions in a witness’s testimony or between his or her
testimony and that of others, do not necessarily mean that you
should disbelieve the witness, memory failures and mistaken
memories are common and may explain some inconsistencies and
contradictions.

       It is also common for two honest people to witness the same
event and to see and hear things differently. You should evaluate
inconsistencies and contradictions and determine whether they
relate to important or unimportant facts.




                                  4
      On appeal, the defendant asserts that the Germain direct-evidence
instruction “improperly constrained the jury’s factual findings and credibility
determinations.” She argues that, because of that instruction, “the jury was
precluded from finding that there was some truth” to her testimony and that of
another witness. Although in the trial court the defendant relied upon the
State and Federal Constitutions, she does not do so on appeal.

      Whether a particular jury instruction is necessary, and the scope and
wording of the instruction, are within the sound discretion of the trial court.
State v. Noucas, 165 N.H. 146, 154 (2013). We review the trial court’s
decisions on these matters for an unsustainable exercise of discretion. Id. In
determining whether a ruling is a proper exercise of judicial discretion, we
consider whether the record establishes an objective basis sufficient to sustain
the discretionary decision made. Id. at 158. The defendant bears the burden
of demonstrating that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of her case. See id. “When reviewing jury
instructions, we evaluate allegations of error by interpreting the disputed
instructions in their entirety, as a reasonable juror would have understood
them, and in light of all the evidence in the case.” Id. at 154 (quotation
omitted). “We determine whether the jury instructions adequately and
accurately explain each element of the offense and reverse only if the
instructions did not fairly cover the issues of law in the case.” Id. (quotation
omitted).

       The defendant has failed to demonstrate that the trial court’s decision to
give the Germain direct-evidence instruction “was clearly untenable or
unreasonable to the prejudice of [her] case.” Id. at 158. The defendant
contends that the Germain direct-evidence instruction incorrectly instructed
the jury how to “assess[ ] conflicting direct evidence.” She argues that her
testimony and that of the executive director of the non-profit organization for
whom she previously worked conflicted and constituted “direct evidence.” We
disagree that the testimony upon which she relies constituted conflicting direct
evidence. While the defendant’s testimony was direct evidence that she did not
commit the crime, the executive director’s testimony was merely circumstantial
evidence that she did commit it.

      Moreover, the testimony upon which the defendant specifically relies
does not conflict. The defendant testified that, when she received a cash
payment, she put the cash and its corresponding receipt into an envelope that
she left for the executive director to retrieve. The executive director agreed that
when the defendant received a cash payment, she “would put the money and
receipts in an envelope” that the executive director would either retrieve or that
the defendant would deliver to her.

      Because the testimony upon which the defendant relies does not
constitute conflicting direct evidence, she has failed to demonstrate that the


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trial court’s decision to give the Germain direct-evidence instruction caused
prejudice to her case. Absent such prejudice, we uphold the trial court’s
decision to issue that instruction.

       Although the instant case does not require us to reconsider the Germain
direct-evidence instruction, and although the parties have not asked us to
overrule Germain, in the exercise of our supervisory authority, we revise that
instruction as follows (new language in bold):

              You must understand, however, that this circumstantial
      evidence rule does not apply to direct evidence. Therefore, if there
      is a conflict between witnesses who offer direct evidence
      concerning certain facts, you should resolve the conflict. For
      example, suppose there are two eye witnesses to a crime, and one
      testifies that the defendant committed the crime and the other
      testifies that the defendant did not commit the crime. This
      presents a situation where there is a conflict in the direct evidence.
      In this situation, you, the jury, should resolve the conflict, and
      must decide whether — based upon all of the evidence — the
      State has proven the defendant’s guilt beyond a reasonable doubt.

      All issues that the defendant raised in her notice of appeal, but that she
did not brief, are deemed waived. See In re Estate of King, 149 N.H. 226, 230
(2003).

                                                  Affirmed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




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