NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well 

as formal revision before publication in the New Hampshire Reports. Readers are 

requested to notify the Reporter, Supreme Court of New Hampshire, One Charles 

Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that 

corrections may be made before the opinion goes to press. Errors may be 

reported by e-mail at the following address: reporter@courts.state.nh.us. 

Opinions are available on the Internet by 9:00 a.m. on the morning of their 

release. The direct address of the court’s home page is: 

http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

2nd Circuit Court-Lebanon District Division

No. 2019-0539

THE STATE OF NEW HAMPSHIRE

v.

BRYAN WESTON LUIKART

Argued: September 24, 2020

Opinion Issued: May 4, 2021

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, 

assistant attorney general, on the memorandum of law and orally), for the 

State.

Simpson & Mulligan, P.L.L.C., of Lebanon (Gary Apfel, on the brief and 

orally), for the defendant.

HANTZ MARCONI, J. The defendant, Bryan Weston Luikart, appeals an 

order of the Circuit Court (Bamberger, J.) imposing a portion of his suspended 

sentence. The defendant argues the trial court erred in finding that the State 

met its burden of proving that he violated the good behavior condition of his 

suspended sentence by committing witness tampering. See RSA 641:5, I(b) 

(2016). We reverse. 
2

I

The pertinent facts before the trial court and the procedural posture of 

the case, established by the record from the motion hearing, are as follows.1 

See State v. Smith, 163 N.H. 13, 18 (2011) (explaining “the trial court must 

independently evaluate the evidence before it” to impose a suspended sentence

(quotation and brackets omitted)); State v. Gibbs, 157 N.H. 538, 539, 542 

(2008). On February 5, 2018, the defendant pled guilty to various charges and 

was sentenced to 90 days’ incarceration, suspended for a period of two years. 

Conditions on the defendant’s suspended sentence included that the defendant 

“complete [a] batterer’s intervention program and be of good behavior.”

Following his sentencing, the defendant enrolled in his first batterer’s 

intervention program, but his participation in the program ended on January 

24, 2019, for reasons irrelevant to this appeal. As a result of the defendant’s 

departure from the program, the State moved to impose the defendant’s 

suspended sentence on February 8. The defendant then enrolled in a second 

batterer’s intervention program on February 19, and the State withdrew its 

motion to impose on February 28.

Three days later, on March 3, the defendant sent the following e-mail to 

his ex-wife: “If you want to be on friendly communicating terms for the best 

interest of [our child] you might want to consider not trying to trigger the 

suspended sentence and not trying to continue hurting me. You are the 

abuser.” On March 7, the State filed a new motion to impose the defendant’s 

suspended sentence. A hearing on the State’s motion was held on July 23. 

The State’s evidence included the defendant’s e-mail, its withdrawn February 8 

motion, its March 7 motion, the defendant’s suspended sentence, and its offers 

of proof supporting its argument that the defendant committed witness 

tampering, see RSA 641:5, I(b), and, consequently, that he violated the good 

behavior condition of his suspended sentence. The trial court granted the 

State’s motion to impose, finding the evidence before it “sufficient to grant the 

State’s motion, at least generally.” The trial court imposed ten days of the 

defendant’s 90-day sentence, with the balance suspended for an additional 

year. Over the State’s objection, the trial court granted the defendant’s request 

for a stay of the imposition pending appeal. The defendant filed a motion to 

reconsider the trial court’s imposition of his suspended sentence, which was 

denied. This appeal followed.

 

1 In its memorandum of law, the State references evidence that was not before the trial court when 

it found that the defendant violated the good behavior condition of his suspended sentence. We 

do not rely upon evidence not before the trial court to determine whether it erred in so finding. 

See State v. Gibbs, 157 N.H. 538, 539, 542 (2008). 
3

II

The defendant argues that the trial court erred in finding he violated the 

good behavior condition of his suspended sentence by committing witness 

tampering, and in doing so characterizes his argument as a challenge to the 

“sufficiency of the evidence,” which is consistent with language used in our 

prior cases. See, e.g., State v. Benner, 172 N.H. 194, 202 (2019) (deferredsentence violation); Smith, 163 N.H. at 18 (suspended-sentence violation); 

State v. Kay, 162 N.H. 237, 243-44 (2011) (probation violation). On appeal, the 

defendant must show that the evidence, viewed in the light most favorable to 

the State, fails to support the trial court’s decision. Benner, 172 N.H. at 202. 

Because a challenge to the sufficiency of the evidence raises a claim of legal 

error, our standard of review is de novo.

2 Id.; see, e.g., State v. Folley, 172 N.H. 

760, 771 (2020) (“Our review of the trial court’s legal conclusions is de novo.”); 

State v. Ducharme, 167 N.H. 606, 613 (2015). 

“[T]he imposition of a suspended sentence is the remedy for a defendant’s 

noncompliance, not a punishment for the underlying acts,” Gibbs, 157 N.H. at 

541, and determining whether a defendant has violated a condition of his or 

her suspended sentence presents a “separate task” from determining whether 

the defendant may bear criminal liability for the same underlying acts, id. at 

542; see State v. Dunn, 164 N.H. 268, 271 (2012) (“A jury acquittal of criminal 

charges is not dispositive as to whether a suspended sentence should be 

imposed.” (quotation and brackets omitted)). Thus, in the context of 

considering a motion to impose a defendant’s suspended sentence, the trial 

court must independently evaluate the evidence before it to determine whether 

the State proved, by a preponderance of the evidence, that violation of the 

suspension condition occurred. See Smith, 163 N.H. at 18; Gibbs, 157 N.H. at 

542.

Accordingly, to prevail on a challenge asserting that the trial court erred 

in finding a violation of a suspension condition, a defendant must show that 

the evidence before the trial court on a motion to impose, viewed in the light 

most favorable to the State, fails to support the trial court’s decision that the 

State met its burden to prove, by a preponderance of the evidence, that a 

violation of a condition of the suspended sentence occurred. See Kay, 162 N.H. 

at 243-45; Benner, 172 N.H. at 202; see also Smith, 163 N.H. at 18; Gibbs, 157 

N.H. at 540, 542. 

 

2 In Kay, we distinguished our review of whether the evidence was sufficient to establish that a

violation occurred, which we review under a de novo standard, from our review of the trial court’s 

decision regarding the appropriate sanction to be imposed after a violation has been found, which 

we review for an unsustainable exercise of discretion. See Kay, 162 N.H. at 244 (probation 

violation case). The State, for its part, does not dispute that we should be reviewing the 

sufficiency of the evidence to support the trial court’s finding of a good behavior violation under a 

de novo standard. 
4

Here, we conclude that, even when viewed in the light most favorable to 

the State, the evidence adduced at the motion hearing fails to establish, by a 

preponderance of the evidence, that the defendant committed witness 

tampering. See RSA 641:5, I(b). Witness tampering was the only theory 

advanced by the State in support of its March 7 motion alleging that the 

defendant violated his condition to be of good behavior, and we do not interpret 

the trial court’s ruling as having independently found, from the evidence before 

it, that the defendant’s behavior amounted to another type of criminal conduct

which violated the good behavior condition.

3 See Smith, 163 N.H. at 18; Gibbs, 

157 N.H. at 542; see also Kay, 162 N.H. at 242 (“Our interpretation of a trial 

court order is a question of law, which we review de novo.”). Because the 

evidence does not support the trial court’s decision that the defendant violated 

his condition to be of good behavior, we conclude that the trial court erred in 

granting the State’s motion to impose his suspended sentence. See Kay, 162 

N.H. at 244. 

“[G]ood behavior” means “conduct conforming to the law.” State v. 

Auger, 147 N.H. 752, 753 (2002) (quotation omitted). To impose a suspended 

sentence on the ground that the defendant has violated a condition of good 

behavior, a trial court must find that “the defendant engaged in criminal 

conduct.” Id. at 753-54 (concluding that “trial court may not impose the 

defendant’s suspended sentences upon proof that he committed a violationlevel offense” because a violation does not constitute a crime). However, proof 

of a criminal conviction is not necessary to prove a good behavior violation 

because the State’s burden to prove a violation of a suspended sentence is by a 

preponderance of the evidence; it need not “establish criminal liability” beyond 

a reasonable doubt. Stapleford v. Perrin, 122 N.H. 1083, 1089 (1982); see

Gibbs, 157 N.H. at 540, 542 (distinguishing the “separate task[s]” of a jury 

determination of whether evidence established the defendant committed the 

alleged crimes beyond a reasonable doubt, and a trial court’s evaluation of 

whether the evidence established a violation of the suspension conditions by a 

preponderance of the evidence).

The defendant was not convicted of, or charged with, witness tampering. 

In the absence of a criminal conviction for the acts that allegedly constitute the 

good behavior violation, the State can satisfy its burden by proving “the 

commission of the underlying acts.” Gibbs, 157 N.H. at 540 (quotation 

omitted); see Moody v. Cunningham, 127 N.H. 550, 553-54 (1986) (holding 

evidence of criminal indictment was insufficient, standing alone, to justify 

imposing suspended sentence because “[i]n the absence of a criminal 

 

3 Although the trial court noted that it found “the language in [the defendant’s] email to be 

threatening,” we do not understand the trial court to have independently determined that the 

evidence before it demonstrated that the defendant violated his condition to be of good behavior by 

engaging in any criminal conduct other than the State’s sole claim of witness tampering. See

Smith, 163 N.H. at 18; see also Gibbs, 157 N.H. at 542; Kay, 162 N.H. at 242.
5

conviction, the fact-finder must make an independent determination that the 

defendant committed the alleged violations”). 

Although the State need not “establish criminal liability” to prove a good 

behavior violation, Stapleford, 122 N.H. at 1089, the State must still establish 

that the defendant engaged in criminal conduct, i.e., conduct not in 

conformance with the law, Auger, 147 N.H. at 753-54. Thus, the court must 

look to the law as articulated to determine whether the defendant’s behavior 

was not in conformity therewith. See, e.g., id. (looking to RSA 265:81-a (1993) 

to evaluate the conduct allegedly supporting the State’s motion to impose and 

concluding the defendant’s conduct amounted to only a violation-level offense 

per the statute); Gibbs, 157 N.H. at 542 (concluding that the trial court’s 

determination that defendant violated a condition of his suspended sentence 

was “properly premised solely upon the evidence adduced at [his criminal] 

trial,” despite defendant being acquitted, given the lesser burden of proof on a 

motion to impose).

To the extent our prior case law on this issue is unclear, we take this 

opportunity to clarify that in order to prove a violation of good behavior in the 

absence of a criminal conviction, the State has the burden to prove the 

essential elements of the criminal conduct that amounts to the alleged good 

behavior violation, and must do so by a preponderance of the evidence. See

Gibbs, 157 N.H. at 542 (“[T]he motion to impose is a separate proceeding [from 

a criminal prosecution], with a different, lesser, burden of proof.”).

III

Here, the State argued that the defendant violated the good behavior 

condition of his suspended sentence by committing witness tampering, and the 

trial court granted the State’s motion to impose. See RSA 641:5, I(b). 

Pursuant to the relevant provisions of New Hampshire’s witness tampering 

statute, a person has committed witness tampering if, “[b]elieving that an 

official proceeding . . . or investigation is pending or about to be instituted, he 

attempts to induce or otherwise cause a person to . . . [w]ithhold any 

testimony, information, document or thing.” Id.; see RSA 641:1, II (2016) 

(defining “official proceeding”). 

On appeal, the defendant argues: (1) the belief of the “mere possibility” 

that a motion to impose a suspended sentence could be brought is inadequate

to satisfy the mens rea element of RSA 641:5 as a matter of law; (2) the State 

failed to prove the defendant believed an official proceeding or investigation was 

pending or about to be instituted; and (3) the State failed to prove the 

defendant attempted to induce his ex-wife to “[w]ithhold any testimony, 

information, document or thing.” RSA 641:5, I(b); see RSA 641:5, I (2016). 
6

The defendant’s first argument raises an issue of statutory 

interpretation. The interpretation of a statute presents a question of law, 

which we review de novo. See State v. Thiel, 160 N.H. 462, 465 (2010). In 

matters of statutory interpretation, this court is the final arbiter of the intent of 

the legislature as expressed in the words of a statute considered as a whole.

See id. “We construe provisions of the Criminal Code according to the fair 

import of their terms and to promote justice.” Id. (quotation omitted); see RSA 

625:3 (2016). We first look to the language of the statute itself, and, if possible, 

construe that language according to its plain and ordinary meaning. Thiel, 160 

N.H. at 465.

The defendant’s argument centers on the proper interpretation of the 

mens rea element of the New Hampshire witness tampering statute, which 

requires a “[b]elie[f] that an official proceeding . . . or investigation is pending or 

about to be instituted.” RSA 641:5, I. The defendant argues that evidence 

showing his belief of the “mere possibility” that a motion to impose his

suspended sentence could be brought is inadequate to satisfy the mens rea

element of RSA 641:5 because the phrase “about to be instituted” requires that 

the actor “believe not only that a proceeding or investigation is possible; he 

must also believe that it is probable.” “Said another way,” the defendant 

contends, “the statute requires imminence.” As support for his argument, the 

defendant relies upon the commentary to the Model Penal Code. 

RSA 641:5, like much of our Criminal Code, is derived from the Model 

Penal Code. See, e.g., State v. Formella, 158 N.H. 114, 117 (2008); see also

Commission to Recommend Codification of Criminal Laws, Report of 

Commission to Recommend Codification of Criminal Laws § 586:5 at 91 (1969). 

“Accordingly, we look to the Model Penal Code and its commentaries for 

guidance” when interpreting analogous New Hampshire statutes. Formella, 

158 N.H. at 117. RSA 641:5 is substantially derived from section 241.6 of the 

Model Penal Code. See RSA 641:5, I; Model Penal Code & Commentaries § 

241.6(1), at 162-63 (1985); cf. State v. Kilgus, 125 N.H. 739, 743 (1984) (“[T]he 

New Hampshire Legislature excluded the terms ‘witness’ and ‘informant’ used 

in the Model Penal Code provision on witness tampering, and instead used the 

broader term ‘person.’”). Like our witness tampering statute, the Model Penal 

Code requires the “belie[f] that an official proceeding or investigation is pending 

or about to be instituted.” Model Penal Code & Commentaries § 241.6(1), at 

162; see RSA 641:5, I. Comment 2 to section 241.6(1) explains the drafters’ 

intent behind the use of this language. See Model Penal Code & Commentaries

§ 241.6 cmt. 2, at 166-67.

According to the drafters of the Model Penal Code, the model was worded

“to eliminate the purposeless quibbling invited by laws requiring that a 

proceeding or investigation actually be pending or in fact be contemplated by 

the authorities.” Id. at 166. Thus, “[t]he prosecution must establish that the 

defendant held the specified belief but need not prove that a proceeding or 
7

investigation was in fact pending or about to be instituted.” Id. at 166-67. 

Under the Model Penal Code, “[i]n assessing such belief, the word ‘about’ as it 

appears in [section 241.6(1)] should be construed more in the sense of 

probability than of temporal relation” because “[w]hat is important is not that 

the actor believe that an official proceeding or investigation will begin within a 

certain span of time but rather that he recognize that his conduct threatens 

obstruction of justice.” Id. at 167. 

We likewise conclude that the legislature intended the phrase “about to 

be instituted” in RSA 641:5, I, to be understood more in the sense of 

probability than of temporal relation. RSA 641:5, I; see Model Penal Code & 

Commentaries § 241.6 cmt. 2, at 166-67. Therefore, to the extent the 

defendant argues, by equating the concepts of “probability” and “imminence,” 

that RSA 641:5, I, requires the belief that the institution of an official 

proceeding or investigation was probable — and also the belief that it “will 

begin within a certain span of time” — we disagree. We conclude that the 

legislature, like the drafters of the Model Penal Code, intended to distinguish

the considerations of probability and temporal relation, and emphasize the

import of the former over the latter. See RSA 641:5, I; Model Penal Code & 

Commentaries § 241.6 cmt. 2, at 166-67. Nevertheless, given our 

interpretation of the phrase “about to be instituted” in RSA 641:5, I, we agree 

with the defendant that evidence demonstrating a belief in the “mere 

possibility” that a motion to impose could be brought is inadequate as a matter 

of law to satisfy the mens rea element of witness tampering. 

We next turn to the defendant’s second argument, that the State failed to 

prove he believed an official proceeding or investigation was pending or about 

to be instituted. At the hearing, the State’s evidence included its February 8 

motion to impose and the facts surrounding its withdrawal, the defendant’s 

March 3 e-mail, the fact that the defendant was under a suspended sentence,

and its March 7 motion. The State argued that even though the February 8 

motion had been withdrawn, because the defendant was “under a suspended 

sentence” when he sent the e-mail, “there was a possibility for a motion to be 

filed at any moment for any other reason that would have been a justified 

reason to file one.” According to the State, the defendant “still blamed” his exwife for the State’s first motion to impose and “[i]f it was true that [the] 

defendant believed that the [ex-wife] could ‘trigger’ his suspended sentence, he 

clearly understood that proceedings could be imminent if he failed to satisfy 

the terms of his suspended sentence.” And thus, the State contends, the 

defendant’s e-mail served as a “request that [his ex-wife] remain silent about 

future infractions.” 

Even when viewed in the light most favorable to the State, the evidence 

before the trial court shows only the defendant’s belief of the “mere possibility” 

of an official proceeding or investigation being instituted, not the defendant’s 

belief that either was probable. There was evidence showing that the defendant 
8

understood the nature of what it means to be subject to a suspended sentence 

— as the State articulates, that the defendant “clearly understood that 

proceedings could be imminent if he failed to satisfy the terms of his 

suspended sentence” — and that he believed that his ex-wife “could ‘trigger’” a 

motion to impose by reporting information to the prosecution, as he believed 

she had done once already. There was also evidence showing that the 

defendant’s belief that his ex-wife could trigger another motion to impose 

prompted his March 3 e-mail, stating, “If you want to be on friendly 

communicating terms for the best interest of [our child] you might want to 

consider not trying to trigger the suspended sentence and not trying to 

continue hurting me. You are the abuser.” However, the defendant’s implied 

“request that [his ex-wife] remain silent about future infractions,” simply does 

not show that the defendant believed the institution of an official proceeding or 

investigation was probable, or was pending. 

Consequently, we hold that the evidence before the trial court does not 

support a finding that the defendant believed an official proceeding or 

investigation was pending or about to be instituted when he sent the March 3 

e-mail, when the evidence is viewed in the light most favorable to the State. 

See RSA 641:5, I. As a result of this conclusion, we need not address the 

defendant’s other arguments on appeal. 

IV

In sum, we conclude that evidence showing that the defendant believed 

there was a “mere possibility” for the institution of an official proceeding or 

investigation does not satisfy the mens rea element of RSA 641:5, I, as a matter 

of law. See id. We also conclude that the evidence adduced at the motion 

hearing, viewed in a light most favorable to the State, fails to support, by a 

preponderance of the evidence, the conclusion that the defendant believed an 

official proceeding or investigation was pending or about to be instituted. See

id. Accordingly, because the State failed to prove the essential elements of 

witness tampering by a preponderance of the evidence, it advanced no other 

argument as to why the defendant violated the good behavior condition of his 

suspended sentence, and we do not understand the trial court to have found 

that the defendant engaged in any other type of criminal conduct which 

violated the good behavior condition, the State failed to meet its burden of 

proving that the defendant violated the good behavior condition of his 

suspended sentence. Therefore, the trial court erred when it granted the 

State’s motion, and we reverse the court’s order imposing a portion of the 

defendant’s suspended sentence.

Reversed.

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