THE STATE OF NEW HAMPSHIRE SUPREME COURT

In Case No. 2013-0875, Alexey Obukhov v. John Bryfonski, the court on November 20, 2014, issued the following order:

Having considered the briefs and oral arguments of the parties, we conclude that a formal written opinion is unnecessary in this case. The

petitioner, Alexey Obukhov, appeals an order of the Circuit Court (Stephen, J.) upholding the decision of the respondent, John Bryfonski, Chief of the Bedford Police Department, to deny the petitioners application for a license to carry a concealed weapon. See RSA 159:6 (2014). We reverse and remand.

The trial court found or the record supports the following facts. On August 24, 2013, the petitioner was arrested following an alleged domestic violence assault against his wife. As a result, the Bedford Police Department

seized the petitioners firearms and ammunition from his home. Subsequently, the petitioners wife invoked her Fifth Amendment privilege against self-incrimination and all criminal charges against the petitioner stemming from

the August 24th incident were dismissed.

On October 10, 2013, the petitioner entered into an agreement with the State of New Hampshire whereby all of his firearms and ammunition would be returned to him. The agreement stated: The State has checked [the petitioners] record and he has no State or Federal disqualifiers for firearm possession. That same day, the petitioner applied to the respondent, the licensing authority, for a license to carry a concealed weapon. By letter dated October 18, 2013, the respondent denied the application based upon his determination that the petitioner is an unsuitable person to possess a license

to carry a concealed weapon. See RSA 159:6, I(a) (providing that, in order to obtain a license to carry a concealed weapon, applicant must demonstrate, in part, that applicant is a suitable person). The respondent explained that he based his decision upon [the petitioners] prior police contacts.

The petitioner appealed the denial to the trial court. See RSA 159:6-c (2014). On November 5, 2013, the court conducted a hearing at which the respondent testified. The respondent explained that he denied the petitioners application based upon his review of the Bedford Police Department incident and arrest report concerning the reported domestic violence in which [the

petitioners wife] alleged that she was assaulted by [the petitioner] on August 24, 2013. The respondent testified that he also reviewed photographs that were taken in connection with the investigation by the Bedford Police

Department and that [t]he photographs corroborated the information from the victim . . . concerning a domestic violence assault that [she alleged] occurred

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on August 24th. At this point, counsel for the petitioner objected on hearsay grounds. The court overruled his objection, finding:

[T]he standard is that the [issuing] . . . authority must demonstrate

by clear and convincing proof why a denial was justified, and the denial under the statute is in the sole discretion of the [respondent]. As to the determination, you have suitability or unsuitability in the

first instance, so this goes to the state of mind of the [respondent] in making the decision, so Im going to allow it in.

Shortly thereafter, the respondent explained:

I took the pictures into account by first determining whether or not the pictures corroborated the information provided by the victim concerning the domestic violence assault and her statements to

the investigating police officers on the evening of August 24, 2013. My review of those photographs indicated that they did corroborate

her statements indicating -- even though she indicated to the officers that she was struck in --

At this point, the petitioners counsel again objected on hearsay grounds, and the court again overruled the objection, stating that it would give the testimony its proper weight.

Although, on the record before us, it does not appear that the report was

admitted into evidence, the respondent testified as to the statements contained in the report that were attributed to the petitioners wife concerning the injuries she received, allegedly caused by the petitioner. Counsel for the respondent

then asked him what conclusion he had drawn with respect to the petitioners application. The petitioners counsel objected, and the court overruled the objection, stating:

I have to review the [respondents] thought process as to arriving at a decision to see if its justifiable and so I think it goes to his state of mind in making that decision. So its an exception here. Its not offered for the truth . . . .

(Emphasis added.) The respondent then testified:

The information depicted by the[] photographs led me to believe that the domestic violence assault did occur, that it corroborated

the victims statement that she was struck, and that it indicated to me that the applicant for the pistol revolver license, [the petitioner], reflected a history of violence and domestic violence, which is

inconsistent with, in my determination, makes him an unsuitable individual to possess a license to carry a pistol revolver concealed.

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Thereafter, the photographs of injuries sustained by the petitioners wife were admitted as an exhibit.

Following the hearing, the trial court denied the appeal, finding that the

respondent had met his burden of proving that there was sufficient cause to justify [his] decision to deny the Petitioners application. In doing so, the trial court relied upon the respondents testimony, stating:

[The respondent] testified that the pictures demonstrating the alleged [domestic violence] assault the Petitioner was arrested for

corroborate the statements received from the alleged victim. . . . [Counsel for the petitioner] argued that the [respondents] case should be discounted in that the [respondent] did not get the statement of the Petitioner on what he claims transpired on that occasion. The [respondent] did, however, review [the petitioners] statements in the reports to the responding officers.

The [respondent] testified that he has 35 years of law enforcement experience investigating domestic violence cases. He further testified that the statements of the alleged victim coupled with the

pictures led him to a conclusion that the Petitioner is an unsuitable person. It is apparent from the testimony (and the [respondents] determination of unsuitability) that the [respondent] believes the Petitioner caused the injuries to his wife. Considering the experience of the [respondent], his testimony that the pictures

corroborated the alleged victims statements and the Courts observance of pictures demonstrating a significant injury, the Court can reach only one conclusion, that the [respondents] decision is reasonable.

Further, the Court made an independent determination that the Petitioner is not a suitable person at this time under the meaning of the statute. The petitioners motion to reconsider was denied, and this appeal followed. We first consider the relevant provisions of RSA chapter 159 and the standard of review in RSA 159:6-c appeals. RSA 159:6 directs the relevant

licensing authority to issue a license to carry a concealed weapon to an applicant if it appears that the applicant has good reason to fear injury to the applicants person or property or has any proper purpose, and that the applicant is a suitable person. Pursuant to RSA 159:6-c, [a]ny person whose application for a license to carry a loaded pistol or revolver has been denied

pursuant to RSA 159:6 may petition the trial court to determine whether the petitioner is entitled to a license.

Under the statute, when a person appeals a decision of the issuing authority,

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[t]he court shall conduct a hearing . . . [and] [d]uring this hearing the burden shall be upon the issuing authority to demonstrate by

clear and convincing proof why any denial . . . was justified, failing which the court shall enter an order directing the issuing authority

to grant . . . the petitioners license. RSA 159:6-c. We have previously held that the statute contemplates that the [trial] court [will] hear evidence and make its own determination whether the petitioner is entitled to a license, and that, unlike many other appeal statutes, there is no requirement under RSA 159:6-c that any presumption of

reasonableness be accorded the decision of the issuing authority. Kozerski v. Steere, 121 N.H. 469, 472 (1981) (quotation omitted); see also Bleiler v. Chief,

Dover Police Dept, 155 N.H. 693, 697 (2007). On appeal, the petitioner contends that the rules of evidence apply to

hearings under RSA 159:6-c and argues that the trial court erred by allowing the respondent to testify as to the statements attributed to the petitioners wife contained in the August 24th arrest report because those statements constituted inadmissible hearsay. Alternatively, the petitioner asserts that, even if the evidence was admissible, there was insufficient evidence to support

the trial courts finding that he is an unsuitable person under RSA 159:6. The respondent counters that, under the standard of review established

by RSA 159:6-c, the trial court was allowed to consider the record that was before the respondent, regardless of whether it would be hearsay in another context. He further observes that the questions presented in the petitioners notice of appeal do not include the question of whether there was sufficient evidence to support the trial courts finding that [the petitioner] is an unsuitable person under the statute, and he, therefore, does not address this issue.

We begin by addressing the respondents observation that the specific questions presented in the petitioners notice of appeal do not include the alternative question presented in his brief regarding whether there was sufficient evidence to deny his application. Although the petitioners notice of appeal did not include the question of whether the evidence was sufficient to

justify denial of the petitioners license, the plain error rule allows us to exercise our discretion to correct errors that were not raised in the notice of

appeal. See Sup. Ct. R. 16-A; see also State v. Dodds, 159 N.H. 239, 244 (2009). To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must

seriously affect the fairness, integrity or public reputation of judicial proceedings. Randall v. Abounaja, 164 N.H. 506, 510 (2013) (quotation omitted). The rule should be used sparingly, its use limited to those

circumstances in which a miscarriage of justice would otherwise result. Id.

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Turning to the first prong of the plain error test, we review the evidence to determine whether it was, as the petitioner contends, insufficient to

demonstrate that he is an unsuitable person to be licensed under RSA 159:6. As explained above, in the context of an RSA 159:6-c appeal, the burden is

upon the issuing authority to demonstrate by clear and convincing proof why the denial was justified. RSA 159:6-c. Clear and convincing evidence is defined as [e]vidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, . . . but less than evidence beyond a reasonable doubt. Blacks Law Dictionary 674 (10th ed. 2014). Thus, the respondent had the burden of

showing, by clear and convincing proof, why his conclusion that the petitioner is not a suitable person to be licensed was justified. RSA 159:6-c. RSA chapter 159 does not define suitable person. However, RSA 159:3 (2014) and RSA 159:3-a (2014) provide that certain convicted felons are unsuitable for the purpose of obtaining a license to carry a concealed weapon. Bleiler, 155 N.H. at 702. Further, we have found no error in a trial courts decision to uphold a license denial when an individual had a significant and unexplained arrest history. Silverstein v. Town of Alexandria, 150 N.H. 679, 683 (2004).

In the present case, we agree with the petitioner that there was insufficient evidence to demonstrate that the denial of the petitioners license was justified. There was no evidence that the petitioner is a convicted felon as enumerated in RSA 159:3 or :3-a. Nor was there evidence of a significant

unexplained arrest history. See Silverstein, 150 N.H. at 683. Rather, the only evidence presented was the respondents testimony regarding what he read in the August 24th police incident report, the photographs taken in connection

with the report, and the respondents conclusion based upon his review of the report and the photographs. The respondent did not offer any evidence that he had confirmed the accuracy or reliability of the petitioners wifes statements described in the report. Cf. State v. Ploof, 162 N.H. 609, 620 (2011) (noting that, even in proceedings in which rules of evidence do not apply, we have nonetheless required some degree of trustworthiness in order for evidence to be admissible). Thus, without more, the respondents testimony constitutes no more than unsubstantiated allegations. Moreover, the photographs alone are

insufficient to justify the denial of the petitioners license because they have evidentiary value only when considered in conjunction with the petitioners wifes statements described in the report alleging that the petitioner caused the injuries seen in the photographs.

Furthermore, although the respondent testified that the photographs

corroborated the statements in the report and led him to the conclusion that the domestic violence assault had occurred, this testimony was not received for the truth, but only to show the respondents thought process in determining that the petitioner is unsuitable. Thus, this testimony did not

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serve as substantive evidence upon which the trial court could base its independent determination. We conclude, therefore, that the evidence

presented by the respondent was insufficient, as a matter of law, to support the trial courts independent determination that the petitioner is an unsuitable person to be licensed. Therefore, it was error for the trial court to uphold the respondents decision.

Our next consideration is whether the error was plain. Plain is synonymous with clear or, equivalently, obvious. State v. Guay, 162 N.H. 375, 384 (2011) (quotation omitted). We conclude that the error here was plain. As

discussed above, the evidence was insufficient to prove that the petitioner is not a suitable person to be licensed under RSA 159:6. See RSA 159:6-c.

Under these circumstances, the respondent failed to meet his burden of proof and, as a result, the trial court should not have upheld his determination of unsuitability. See Guay, 162 N.H. at 384 (concluding that error was plain

where evidence was insufficient to prove element of charged crime and, thus, State could not have met its burden of proof and the charge should not have been submitted to the jury).

As to the third prong of the plain error test, we conclude that the error

affected the petitioners substantial rights because the trial courts decision led to the denial of his license. See State v. Mueller, 166 N.H. 65, 70 (2014) ([T]o satisfy the burden of demonstrating that an error affected substantial rights,

the [petitioner] must demonstrate that the error was prejudicial, i.e., that it affected the outcome of the proceeding. (quotation omitted)). Finally, the fourth prong is satisfied because the petitioner was denied his license based upon insufficient evidence of unsuitability; to allow the decision denying the petitioner his license to stand would seriously affect the fairness and integrity

of the judicial proceedings. Accordingly, we reverse and remand with instructions to the trial court to direct the respondent to issue the petitioner a license.

In light of our decision herein, we need not address the petitioners remaining argument that he is a suitable person to be licensed as a matter of law based upon the language on the reverse side of the license application form.

Reversed and remanded.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

Eileen Fox, Clerk