2026 N.H. 7, State v. Levier

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
Case Nos. 2023-0690
2024-0183
Citation: State v. Levier, 2026 N.H. 7
THE STATE OF NEW HAMPSHIRE
v.
DONALD LEVIER, JR.
Argued: October 9, 2025
Opinion Issued: February 13, 2026
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for
the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the respondent.
COUNTWAY, J.
[¶1] The respondent, Donald Levier, Jr., appeals orders issued by the
Superior Court (Will, J.) related to two civil commitment hearings pursuant to
RSA 135-E:5, II (2021). The trial court found that the respondent, who has

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been deemed incompetent to stand criminal trial, committed two charged acts
of attempted aggravated felonious sexual assault (AFSA) involving two different
victims, and that his incompetence did not substantially interfere with his
ability to assist in his defense at the civil commitment hearings. The
respondent challenges the trial court’s ruling that the State did not bear the
burden of proving that his incompetence did not affect the outcome of the
hearings. We affirm in part, vacate in part, and remand.
[¶2] The following facts are supported by the record or otherwise
undisputed. The respondent was charged in two separate dockets with two
attempted AFSAs and was later declared incompetent to stand trial. The State
then dismissed the criminal charges and filed two petitions — one for each
attempted AFSA — for the respondent’s civil commitment as a sexually violent
predator under RSA chapter 135-E (2021 & Supp. 2025). Pursuant to RSA
135-E:5, II, the trial court scheduled two evidentiary hearings (the 2023
Hearing and the 2024 Hearing, respectively) to consider whether the State’s
evidence proved beyond a reasonable doubt that the respondent committed the
charged acts.
[¶3] Prior to the 2023 Hearing, the trial court requested briefing on how it
should determine, as required by the statute, “the extent to which the
[respondent’s] incompetence affected the outcome of the hearing.” After
briefing from the parties, the trial court ruled that the statute does not impose
a burden of proof on either party with respect to the effect of the respondent’s
incompetence at the evidentiary hearings. Instead, the trial court concluded
that it need only consider this factor as part of its determination of whether the
State met its ultimate burden to prove beyond a reasonable doubt that the
respondent committed the charged acts.
[¶4] After the 2023 Hearing, the trial court found beyond a reasonable
doubt that the respondent committed the charged acts underlying the first
attempted AFSA, and also found that his incompetence did not substantially
interfere with his ability to assist his counsel. The respondent appealed.
[¶5] After the 2024 Hearing, the trial court found beyond a reasonable
doubt that the respondent committed the charged acts underlying the second
attempted AFSA, and also found that his incompetence once again did not
substantially interfere with his ability to assist his counsel. The trial court
further found that, even if the respondent’s incompetence substantially
interfered with his ability to assist his counsel at the 2024 Hearing, the State’s
evidence was strong enough to “foreclose[] the [respondent’s] incompetence
from having had a substantial impact” on that hearing. See RSA 135-E:5, II.
The respondent also appealed that ruling.
[¶6] In both appeals, the respondent argues that the trial court erred in
concluding that the State did not bear the burden of proof under RSA 135-E:5,

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II with respect to the effect of his incompetence at the evidentiary hearings.
The State counters that the statute does not impose this burden on either
party, and even if it did, the burden should be borne by the respondent.
[¶7] As a threshold argument, the State also contends that whether RSA
135-E:5, II imposes a burden of proof with respect to the effect of the
respondent’s incompetence is “an academic question with no practical
implications” in this case. It asserts that the issue is hypothetical with respect
to the 2023 Hearing because the trial court found that the evidence
“demonstrated that the [respondent’s] incompetence did not affect the outcome
of the hearing” and “[p]lacing the burden with the State would not have
changed that evidence.” We disagree.
[¶8] Placing the burden of proof on the State as to the effect of the
respondent’s incompetence could have changed the evidence submitted at the
2023 Hearing and, ultimately, the trial court’s ruling. A burden of proof places
upon one party the obligation to prove a disputed assertion or charge, see
Roberts v. Town of Windham, 165 N.H. 186, 190 (2013), and thereby
determines which party is responsible for presenting evidence and persuading
the factfinder of the truth of its claim, see, e.g., Black’s Law Dictionary 243
(12th ed. 2024) (defining burden of proof in part as “a proposition regarding
which of two contending litigants loses when there is no evidence on a
question”). A party’s burden of proof includes both the burden of production
and burden of persuasion. See id.
[¶9] At the 2023 Hearing, the respondent — not the State — presented
evidence of the effect of the respondent’s incompetence at the hearing. Had the
trial court put the burden of proof on the State, the respondent would have had
no obligation or incentive to offer such evidence, and we cannot speculate as to
what evidence the State would have offered to meet its burden under those
circumstances. Accordingly, contrary to the State’s assertion, placing the
burden of proof on the State could have altered the evidence the parties
submitted and ultimately the trial court’s ruling. Moreover, even if the same
evidence was submitted, placing the burden of proof on the State could have
changed how the trial court assessed the evidence. See Appeal of Jackson, 142
N.H. 204, 207 (1997) (“We cannot speculate whether the board would have
reached the same decision had it . . . properly allocated the burden of proof.”).
We therefore disagree that whether one party bears the burden of proof
regarding the impact of the respondent’s incompetence is a hypothetical matter
as to the 2023 Hearing.
[¶10] Specific to the 2024 Hearing, the State also argues that the
placement of the burden of proof is immaterial because the trial court made an
additional finding in that case that satisfied the statute — that, even assuming
that the respondent’s incompetence substantially interfered with his ability to
assist counsel, the strength of the State’s case foreclosed the respondent’s

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limitations from substantially impacting the proceedings. Although we do not
agree with the State that the placement of the burden of proof was immaterial,
we nevertheless affirm the outcome of the 2024 Hearing as explained below in
[¶28] and [¶29].
[¶11] Having determined that the allocation of the burden of proof to the
State could have changed the outcome of the 2023 Hearing, we now turn to
whether the statute assigns the burden of proof to either party. Resolving the
issue of which party, if any, bears the burden of proof with respect to the effect
of a person’s incompetence at a RSA 135-E:5, II hearing requires that we
interpret that statute. The interpretation of a statute presents a question of
law, which we review de novo. State v. Parr, 175 N.H. 52, 55 (2022). We first
look to the language of the statute itself, and, if possible, construe the language
according to its plain and ordinary meaning. Doe v. N.H. Attorney Gen.
(Activity Logs), 176 N.H. 806, 813 (2024), 2024 N.H. 50, ¶15. We interpret the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. We construe all
parts of a statute together to effectuate its overall purpose and to avoid an
absurd or unjust result. Id.
[¶12] RSA chapter 135-E sets forth the procedure for the civil
commitment of sexually violent predators. See RSA ch. 135-E; RSA 135-E:1
(2021); State v. DeCato, 156 N.H. 570, 571-72 (2007) (explaining purpose of
RSA chapter 135-E). RSA 135-E:5, II, at issue here, governs the first step in
the process when the State petitions to civilly commit an individual who was
charged with a sexually violent offense and then deemed incompetent to stand
trial. The statute provides in relevant part that the trial court
shall first hear evidence and determine whether the person did
commit the act or acts charged. The hearing on this issue shall
comply with all the procedures specified in this section. After
hearing evidence on this issue, the court shall make specific
findings on whether the person did commit the act or acts charged
beyond a reasonable doubt. In determining whether the state has
met its burden, the court shall consider the extent to which the
person’s incompetence or developmental disability affected the
outcome of the hearing, including the person’s ability to assist his
or her counsel by recounting the facts, identifying witnesses,
testifying in his or her own defense, or providing other relevant
information or assistance to counsel or the court. If the person’s
incompetence substantially interferes with the person’s ability to
assist his or her counsel, the court shall not find the person
committed the act or acts charged unless the court can conclude
beyond a reasonable doubt that the acts occurred, and that the
strength of the state’s case, including physical evidence,
eyewitness testimony, and corroborating evidence, is such that the

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person’s limitations could not have had a substantial impact on
the proceedings. If, after the conclusion of the hearing, the court
finds, beyond a reasonable doubt, that the person did commit the
act or acts charged, the court shall enter a final order, appealable
to the supreme court on that issue.
RSA 135-E:5, II (emphases added).
[¶13] We agree with the respondent that the State bears the burden of
proof as to the effect of a person’s incompetence at the RSA 135-E:5, II hearing.
The statute first provides that “the court shall make specific findings on
whether the person did commit the act or acts charged beyond a reasonable
doubt.” Id. The next sentence begins with the language: “In determining
whether the state has met its burden . . . .” Id. (emphasis added). We construe
these sentences together and in the context of the entire statute as establishing
that the State bears the ultimate burden of proving beyond a reasonable doubt
that the person committed the charged acts. The State concedes that it bears
this ultimate burden. We thus read the remainder of the statutory language
with this ultimate burden in mind. See, e.g., Doe (Activity Logs), 176 N.H. at
813, 2024 N.H. 50, ¶15 (stating that we will construe all parts of statute
together to effectuate its overall purpose and will not consider words and
phrases in isolation, but rather within context of statute as a whole).
[¶14] After establishing the State’s ultimate burden of proof, the statute
provides that, “[i]n determining whether the state has met its burden, the court
shall consider the extent to which the person’s incompetence or developmental
disability affected the outcome of the hearing.” RSA 135-E:5, II (emphases
added). Viewed in isolation, this sentence could be read to instruct the trial
court to merely consider as a factor in its decision the impact of the person’s
incompetence on the proceedings. Reading the language in the context of the
entire provision, however, we construe it and the language that follows it as
requiring that, in order for the State to satisfy its ultimate burden of proof, it
also bears the burden of demonstrating that the person’s incompetence did not
substantially impact the outcome of the hearing.
[¶15] The statute sets forth two ways in which the State can meet that
burden. First, it can show that the person’s incompetence did not
substantially interfere with the person’s ability to assist counsel. See id. The
statute provides: “If the person’s incompetence substantially interferes with the
person’s ability to assist his or her counsel, the court shall not find the person
committed the act or acts charged . . . .” Id. Cognizant of the State’s ultimate
burden, we construe this language to mean that, if the trial court finds that the
State failed to prove that the person’s incompetence did not substantially
interfere with his or her ability to assist counsel, the trial court shall not find
that the State has met its burden of proving beyond a reasonable doubt that
the person committed the charged acts. Articulated from the State’s

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perspective, the statute requires that, in order to satisfy its ultimate burden of
proof, the State must prove that the person’s incompetence did not
substantially interfere with the person’s ability to assist counsel at the hearing.
[¶16] In the alternative, the statute allows the State to instead
demonstrate that its case is so strong that the person’s limitations could not
have had a substantial impact on the proceedings. It provides that “the court
shall not find the person committed” the charged acts — in other words, the
State cannot satisfy its ultimate burden of proof — if the person’s
incompetence substantially interfered with his or her ability to assist counsel
“unless the court can conclude beyond a reasonable doubt that the acts
occurred, and that the strength of the state’s case . . . is such that the person’s
limitations could not have had a substantial impact on the proceedings.” Id.
(emphasis added).
[¶17] Both of the above findings relate to the “extent” of the impact the
person’s limitations had upon “the outcome of the hearing,” id., and we
therefore construe them as alternative means of proving that the limitations did
not substantially impact the outcome. Construing the statute as a whole, we
conclude that proof that the person’s incompetence did not substantially
impact the outcome of the proceedings is elemental to the State’s ability to
demonstrate that the person committed the charged acts. Cf. RSA 625:11,
III(c) (2016) (defining element of offense as “conduct, or such attendant
circumstances, or such a result of conduct as . . . [n]egatives an excuse or
justification for such conduct”); State v. Qualters, 121 N.H. 484, 486-87 (1981)
(holding that non-applicability of statutory exemptions to otherwise criminal
conduct constituted elements of offense and that State bore burden of proving,
beyond reasonable doubt, that exemptions did not apply). Because the lack of
a substantial impact on the proceedings due to the person’s incompetence is
elemental to the State’s case, the State must bear the burden of its proof. Cf.
Ulster County Court v. Allen, 442 U.S. 140, 156-57 (1979) (distinguishing
elemental facts, which must be proved by State beyond a reasonable doubt in a
criminal case, from basic or evidentiary facts, which need not necessarily be
proved); Stock v. Byers, 120 N.H. 844, 848 (1980) (stating that “[a]n essential
element of the plaintiff’s cause of action” in civil case was missing and thus the
trial court erred by not directing a verdict for the defendant).
[¶18] We are not persuaded by the State’s arguments to the contrary.
First, the State argues that we should not analogize an RSA 135-E:5, II hearing
to the criminal process in considering whether the statute imposes a burden of
proof. But our interpretation is based on the statute’s plain text, not on
equating civil commitment proceedings for incompetent persons with criminal
prosecutions. See RSA 135-E:5, II; see also State v. Ploof, 162 N.H. 609, 620,
622 (2011); State v. Diole, No. 2022-0588 (non-precedential order at 3-4, 6),
2024 WL 3374647 (N.H. July 11, 2024).

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[¶19] Alternatively, the State suggests that, even if the statute imposes a
burden to prove the effect of the respondent’s incompetence on one party, that
burden should rest with the respondent. According to the State, unless the
respondent testifies, “only the [respondent] and his counsel would have direct,
personal knowledge” of the extent to which his limitations affected his ability to
assist counsel in his defense. It further contends that placing this burden on
the State would potentially require calling the respondent’s attorney as an
essential witness, thereby implicating privilege issues.
[¶20] We are not persuaded that the legislature intended to impose this
burden on the respondent. Nothing in the statute’s plain text suggests this
proposition. See RSA 135-E:5, II. This argument also fails to consider that the
State bears the burden of proving a criminal defendant’s competency to stand
trial, see State v. Moncada, 161 N.H. 791, 795 (2011), which similarly requires
the State to discover and prove facts that are more easily accessible to defense
counsel. Moreover, as the State acknowledged at oral argument, there are no
barriers to the State obtaining an expert evaluation addressing the factors
enumerated in RSA 135-E:5, II, such as the respondent’s “ability to assist his
or her counsel by recounting the facts, identifying witnesses, testifying in his or
her own defense, or providing other relevant information or assistance to
counsel or the court.” RSA 135-E:5, II. Lastly, even if there are practical
challenges to proving that the respondent’s incompetence did not substantially
interfere with the ability to assist counsel, our construction of the statute
provides another avenue for the State to meet its burden of proving that the
person’s limitations did not substantially impact the hearing — by showing
“that the strength of the state’s case . . . is such that the person’s limitations
could not have had a substantial impact on the proceedings.” Id.
[¶21] Having concluded that RSA 135-E:5, II imposes a burden of proof
on the State with respect to the effect on the hearing of the respondent’s
incompetence, we now consider the applicable standard of proof. “‘The
function of a standard of proof, as that concept is embodied in the Due Process
Clause and in the realm of factfinding, is to instruct the factfinder concerning
the degree of confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication.’” Ploof, 162 N.H. at
623 (quoting Addington v. Texas, 441 U.S. 418, 423 (1979)).
[¶22] RSA 135-E:5, II is a civil statute. In a civil action, the standard of
proof by which the plaintiff must generally prove its case is by a preponderance
of the evidence. See Dunlop v. Daigle, 122 N.H. 295, 298 (1982). The language
of RSA 135-E:5, II, however, sets forth a higher standard of proof in some
respects. It requires that the State must meet its ultimate burden by proving
beyond a reasonable doubt that the respondent committed the charged acts.
See RSA 135-E:5, II. As explained above, an element of the State’s case is
proof that the person’s limitations did not substantially interfere with the
outcome of the proceedings, which the State can prove in one of two ways: (1)

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by showing that the person’s incompetence did not substantially interfere with
the person’s ability to assist counsel; or (2) by showing that its case is so
strong “that the person’s limitations could not have had a substantial impact
on the proceedings.” Id.
[¶23] As to the first method of proving this element, RSA 135-E:5, II
requires that the trial court make a factual finding as to whether the person’s
incompetence substantially interfered with the person’s ability to assist
counsel. See id. The statute is silent as to the standard of proof applicable to
this finding. See id. When a statute is silent with respect to the applicable
standard of proof, factual findings in a civil proceeding need only be proven by
a preponderance of the evidence. In the Matter of Sutton & Sutton, 176 N.H.
709, 712-13 (2024); 2024 N.H. 39, ¶8. Accordingly, we conclude that the
preponderance of the evidence standard applies to this finding. See id.;
Dunlop, 122 N.H. at 298.
[¶24] As to the second method of proving this element, the statute
requires that the State show “beyond a reasonable doubt that the acts
occurred, and that the strength of the state’s case . . . is such that the person’s
limitations could not have had a substantial impact on the proceedings.” RSA
135-E:5, II (emphases added). We construe this passage to mean that the
State bears the burden of proving beyond a reasonable doubt that the strength
of its case “is such that the person’s limitations could not have had a
substantial impact on the proceedings.” Id.
[¶25] Thus, we hold that in order for the State to meet its ultimate
burden under RSA 135-E:5, II of proving that the person committed the
charged acts, the State must: (1) prove beyond a reasonable doubt that the
charged acts occurred; and either (2) prove by a preponderance of the evidence
that the person’s incompetence did not substantially interfere with his or her
ability to assist counsel at the hearing; or (3) prove beyond a reasonable doubt
that the evidence that the charged acts occurred is so strong “that the person’s
limitations could not have had a substantial impact on the proceedings.” Id.
[¶26] With this statutory framework in mind, we now consider whether
the trial court committed reversible error with respect to the 2023 and 2024
Hearings. The interpretation of a trial court order presents a question of law
for us to decide. State v. Hinkley, 174 N.H. 414, 421 (2021). As the appealing
party, the respondent bears the burden of demonstrating reversible error. See
In the Matter of Nadeau & Nadeau, 177 N.H. 126, 136 (2024); 2024 N.H. 68,
¶27. “Within the context of a non-criminal appeal, this generally requires the
appealing party to demonstrate how the alleged error affected the outcome of
the case, regardless of whether the error is grounded upon a constitutional or
statutory right.” Id. at 136-37; 2024 N.H. 68, ¶27 (quotation omitted).

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[¶27] We conclude that the respondent has demonstrated reversible error
with respect to the 2023 Hearing. As noted above, the respondent — not the
State — introduced evidence concerning the effect of the respondent’s
incompetence at the 2023 Hearing. Had the trial court placed the burden of
proof on the State consistent with our construction of RSA 135-E:5, II, the
respondent may not have offered such evidence. We cannot speculate about
what evidence the State would have introduced or whether the trial court
would have reached the same decision in the absence of the respondent’s
evidence and the burden of proof. Because the respondent was prejudiced by
the trial court’s failure to properly allocate the burden of proof with respect to
the effect of the respondent’s incompetence, we must vacate the order resulting
from the 2023 Hearing and remand for further proceedings consistent with this
opinion.
[¶28] On the other hand, we conclude that the respondent has not
demonstrated reversible error with respect to the 2024 Hearing. There, in the
trial court’s alternative analysis, it assumed that the respondent’s limitations
substantially interfered with his ability to assist counsel. It then found that
the strength of the State’s case was such that the respondent’s incompetence
could not have had a substantial impact on the proceedings.
[¶29] Notwithstanding the trial court’s erroneous pre-hearing ruling that
neither party bore a burden of proof with respect to the impact of the
respondent’s incompetence, its alternative analysis was consistent with our
interpretation of the statute in that the trial court placed the burden on the
State to prove beyond a reasonable doubt that its case was so strong that the
respondent’s incompetence could not have had a substantial impact on the
outcome of the hearing. The trial court recounted the State’s “strong” evidence
— including DNA evidence that “alone establishe[d] beyond a reasonable doubt”
that the respondent was present at the scene of the assault — before finding
that the State had proved beyond a reasonable doubt that the respondent
committed the charged acts. The trial court then “easily” concluded that the
strength of the State’s case foreclosed the respondent’s incompetence from
having had a substantial impact on the proceedings. Based on our reading of
the trial court’s order, we conclude that the trial court found that the State
proved beyond a reasonable doubt that the strength of its case was “such that
the person’s limitations could not have had a substantial impact on the
proceedings.” RSA 135-E:5, II. This determination was consistent with the
second method by which the State can prove that the person’s limitations did
not substantially interfere with the outcome of the proceedings as outlined in
this opinion. Because the respondent has not demonstrated reversible error,
we affirm the trial court’s order following the 2024 Hearing. See Matter of
Nadeau, 177 N.H. at 136-37; 2024 N.H. 68, ¶27.
[¶30] If the legislature disagrees with our interpretation of RSA 135-E:5,
II, it is free to amend the statute as it sees fit within constitutional bounds.

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Attorney General v. Hood, 177 N.H. 176, 188 (2025); 2025 N.H. 3, ¶31. Any
issues the respondent raised in his notices of appeal but did not brief are
deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).
Affirmed in part; vacated in part;
and remanded.
MACDONALD, C.J., and DONOVAN and GOULD, JJ., concurred.