Argued: October 14, 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.
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.
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 ...