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 petitioner’s 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 petitioner’s firearms and ammunition from his home. Subsequently,
the petitioner’s 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
petitioner’s] 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 petitioner’s] 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 petitioner’s
application based upon his review of the “Bedford Police Department incident
and arrest report concerning the reported domestic violence in which [the
petitioner’s 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
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 I’m 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 petitioner’s 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 petitioner’s 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 petitioner’s
application. The petitioner’s counsel objected, and the court overruled the
objection, stating:

I have to review the [respondent’s] thought process as to arriving at

a decision to see if it’s justifiable and so I think it goes to his state
of mind in making that decision. So it’s an exception here. It’s 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 victim’s 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 petitioner’s 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 Petitioner’s application.” In doing so, the trial
court relied upon the respondent’s 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 [respondent’s] 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 petitioner’s]
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
[respondent’s] 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 victim’s statements and the Court’s
observance of pictures demonstrating a significant injury, the
Court can reach only one conclusion, that the [respondent’s]
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
petitioner’s 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
applicant’s 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 petitioner’s 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 Dep’t, 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 petitioner’s 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 court’s 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 petitioner’s
notice of appeal do not include the question of “whether there was sufficient
evidence to support the trial court’s finding that [the petitioner] is an
unsuitable person under the statute,” and he, therefore, “does not address this
issue.”

We begin by addressing the respondent’s observation that the specific

questions presented in the petitioner’s 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 petitioner’s notice of
appeal did not include the question of whether the evidence was sufficient to
justify denial of the petitioner’s 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.” Black’s 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 court’s
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 petitioner’s 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 respondent’s testimony regarding what he read in
the August 24th police incident report, the photographs taken in connection
with the report, and the respondent’s 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 petitioner’s wife’s 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 respondent’s testimony constitutes no
more than unsubstantiated allegations. Moreover, the photographs alone are
insufficient to justify the denial of the petitioner’s license because they have
evidentiary value only when considered in conjunction with the petitioner’s
wife’s 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 respondent’s “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 court’s independent determination that the petitioner is an unsuitable
person to be licensed. Therefore, it was error for the trial court to uphold the
respondent’s 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 petitioner’s substantial rights because the trial court’s 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 petitioner’s

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