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Bar News - November 19, 2004 NH Supreme Court 3JX Panel Orders 2003-0506 The court on September 24, 2004, issued the following order: Following a jury trial, the defendant, Gregorio B. Guardarramos-Cepeda, was convicted of possession of five grams or more of heroin with intent to sell and conspiracy to sell five grams or more of heroin. On appeal, he contends that the trial court erred when it denied: (1) his motion to dismiss the conspiracy charge for lack of sufficient evidence; and (2) his request to charge the jury on the testimony of informants. We affirm. "A person is guilty of conspiracy if, with a purpose that a crime defined by statute be committed, he agrees with one or more persons to commit or cause the commission of such crime, and an overt act is committed by one of the conspirators in furtherance of the conspiracy." RSA 629:3, I (1996). The defendant contends that the conspiracy indictment charged that the conspiracy was between the defendant and his wife, Sanny Montas, and that the State failed to prove any agreement between them to sell heroin. To be sufficient to convict, circumstantial evidence must exclude all rational conclusions other than the guilt of the defendant in a case where there is only circumstantial evidence to support the conviction. See State v. Chapman, 149 N.H. 753, 758 (2003). The evidence included that Montas drove the defendant to New Hampshire to deliver heroin, that a receipt for the phone used to make the sale arrangements had Montas’ name on it, that materials consistent with those used to package the heroin, including paper towels and part of a Walmart shopping bag were found on the floor of the truck that Montas drove to New Hampshire, that Montas drove the defendant to the location where the drugs were hidden, then to the meeting place with the buyer/informant (informant) and then followed him back to where the drugs were hidden. While Montas was driving the defendant to New Hampshire, the defendant had more than one conversation with the informant. Although the defendant contends that the evidence presented permits a rational conclusion that Montas thought the trip to New Hampshire was to purchase cabinets, the remains of the materials used to wrap the heroin and the actual locations to which she drove belie such a conclusion. We therefore conclude that the evidence excluded all rational conclusions except that Montas agreed to assist the defendant in the sale of heroin. The defendant also contends that the trial court erred by failing to give a jury instruction on informant testimony. We note that the defendant did not submit such an instruction. Even if we assume without deciding, however, that the issue has been preserved for our review and that the trial court should have given an informant instruction, we conclude on the facts of this case that the failure constituted harmless error. See State v. Mason, 150 N.H. 53, 62 (2003) (error may be harmless beyond reasonable doubt if alternative evidence of defendant’s guilt is of an overwhelming nature, quantity, or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State’s evidence of guilt). The evidence presented included the heroin and the remains of the packaging materials found in the truck, the transcripts of conversations between the informant and the defendant, and the testimony of the police. In addition, defense counsel engaged in extensive questioning designed to impeach the informant, including the issues of his prior convictions and false statements. Based on the record in this case, we conclude that any error caused by the failure to give an informant instruction was harmless beyond a reasonable doubt. Affirmed. * * * * * * * * * * * * 2003-0706 The court on October 4, 2004, issued the following order: The petitioner, Elena Buchholz, appeals the provision of the parties’ divorce decree awarding them joint custody of their son. She contends that the failure of the guardian ad litem (GAL) to advise her that he was equivocal in his report recommendation that she receive primary physical custody constituted unfair surprise. We affirm. Citing Part I, Article 2 of the New Hampshire Constitution, the petitioner argues that her due process rights were violated because she did not receive notice that the GAL would deviate from his recommendation during trial, thereby providing her inadequate notice of adverse evidence. We have reviewed the record presented on appeal, including the transcript of the hearing, and conclude that the GAL’s testimony was consistent with his report; that is, he concluded that both parties were good parents and he recommended that primary physical custody be awarded to the mother. That he testified on cross-examination that he was not strong and steadfast in his recommendation does not alter our conclusion. Contrary to the petitioner’s assertion, we also find no evidence of bias. In divorce cases involving contested custody, the trial court must resolve conflicts in testimony and determine the weight to be given the evidence. See Richelson v. Richelson, 130 N.H. 137, 143 (1987). A GAL report is not binding on the trial court "because the difficult decision regarding custody must be made on the basis of all the evidence." Id. (quotation and emphasis omitted). In this case there was sufficient evidence to support the trial court’s order. Accordingly, we find no error. Affirmed. * * * * * * * * * * * * 2003-0778 In the Matter of Susan E. Sayers and Gerald H. Sayers, Jr. The court on October 4, 2004, issued the following order: The respondent, Gerald H. Sayers, Jr., appeals an order of the trial court finding him in contempt for failing to comply with the parties’ divorce decree. We affirm. The contempt power of the trial court is discretionary; the proper inquiry is not whether we would have found the respondent in contempt, but whether the trial court unsustainably exercised its discretion in doing so. See In the Matter of Giacomini & Giacomini, 150 N.H. 498, 500 (2004). The parties were divorced in March 2003; no appeal was filed. The finding of contempt was made in September 2003. The record reflects that the respondent failed to comply with certain financial provisions of the decree. The record contains no financial affidavit of the respondent and only a broad statement made by his counsel at the hearing that he had no ability to pay the amount ordered in the decree. Cf. Super Ct. R. 197. Based upon the record before us, we find no error in the trial court’s finding of contempt. The respondent also argued that the trial court erred in failing to find the petitioner in contempt for enrolling the parties’ children in the Portsmouth school system without consulting with him. After oral argument, he filed a motion to withdraw this issue. His motion is hereby granted. Affirmed. * * * * * * * * * * * * 2003-0642 Edward L. Hahn v. Cohas Brook Associates & a. The court on October 15, 2004, issued the following order: The defendants, Justin Bielagus, Karl Norwood and John Bielagus, principals of Cohas Brook Associates, appeal a finding by the trial court that they owe Edward L. Hahn $40,524.48 plus interest. They contend that the trial court misconstrued various agreements and stipulations and erred in allowing substitution of Hahn for the original plaintiff corporation (corporation). We affirm. The proper interpretation of an agreement is ultimately a question of law; we therefore review the trial court’s interpretation of the agreement de novo. See Royal Oak Realty Trust v. Mordita Realty Trust, 146 N.H. 578, 581 (2001). "When interpreting a written agreement, we give the language used by the parties its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole." Id. In this case, the defendants and the corporation executed a settlement agreement in 1995 under which the defendants agreed to pay $55,000 to the corporation in twelve quarterly installments. The agreement was amended by court order in 1996; the settlement amount remained $55,000. Counsel for the corporation and the Internal Revenue Service (IRS) subsequently executed a stipulation. In 1997, the defendants and the corporation executed an agreement reducing the amount of the installment payments and requiring that they be made on a monthly basis. The amount to be paid to counsel for the corporation was also reduced. The defendants argue that the stipulation and the 1997 agreement reduced the 1995 settlement amount. We disagree. The stipulation between counsel for the corporation and the IRS did not address the amount of the settlement but instead provided that the first four installments were to be paid to counsel and the remainder "are subject to the United States federal tax liens against the property of the plaintiff" and that payments should be made to the IRS "until such time as the levy is released." The 1997 agreement executed by the defendants and the corporation referred to the "outstanding judgment" but contains no language providing for a modification of the amount of the judgment. The language that modified the payments due to counsel for the corporation did not use the words "outstanding judgment." We therefore conclude that the agreement did not modify the amount of the judgment. The defendants also contend that the trial court erred in granting the corporation’s motion to substitute Edward Hahn as plaintiff because the corporation had been dissolved. Assuming without deciding that the defendants have standing to raise this issue and that the dissolution predated the corporation’s assignment of its rights in the action to Hahn, we disagree that the trial court erred. Cf. RSA 293-A:14.21 (b) (1999) (amended 1999) (dissolved corporation may carry on as necessary to wind up and liquidate business). In this case, the trial court had evidence that Hahn was the sole stockholder of the corporation and had paid the IRS on behalf of the corporation and that the corporation had assigned its interest in the lawsuit to Hahn in 1996. Accordingly, we find no error. Affirmed. * * * * * * * * * * * * 2004-0190 The court on October 15, 2004, issued the following order: The respondent, John Hauser, appeals an order of the trial court granting summary judgment to the petitioner, Michael H. Vogel, on his motion for specific performance of a purchase and sale agreement. He contends that a genuine issue of material fact existed as to whether the agreement was based on negligent or fraudulent misrepresentation and whether the agreement contained an ambiguity concerning development rights. We affirm. "In reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." Godbout v. Lloyd’s Ins. Syndicates, 150 N.H. 103, 105 (2003). "If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper." Id. We will assume without deciding that the respondent retains standing to pursue this appeal following his conveyance of the property that is the subject of this appeal. He first argues that the petitioner misrepresented that the abutting property owners in the condominium development did not object to the scope of the proposed development on the conveyed lot. We will assume without deciding that the statement was false and material. The trial court found that the respondent was the principal owner and developer of the condominium development and as such could have verified this representation. See Bursey v. Clement, 118 N.H. 412, 415 (1978) (buyer’s competence and opportunity to investigate truth of material fact is factor in ascertaining liability). Moreover, the purchase and sale agreement contained an integration clause stating that all representations, statements and agreements previously made between the parties were incorporated and that neither party relied on any statements or representations not embodied therein. We therefore find no error based on the respondent’s first argument. Nor do we find the purchase and sale agreement ambiguous. The respondent argues that he reserved the development rights to the land that is the subject of the purchase and sale agreement. In addition to the integration clause, the agreement provided it was for "[l]and only" and contained no reference to a reservation of development rights under "Additional Conditions." Rather, listed as an additional condition was the provision that the "Buyer agrees to construct no more than four (4) dwelling units on the property." Accordingly, we find no error based on the respondent’s second argument. We find the respondent’s third argument concerning the appellee’s alleged lack of cooperation to be without merit and warranting no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). Affirmed. * * * * * * * * * * * * 2003-0555 The court on October 20, 2004, issued the following order: Following a jury trial, the defendant, Jason J. Porter, was convicted of operating a vehicle after certification as a habitual offender. See RSA 262:23 (2004). On appeal, he contends that the trial court erred, after conducting an in camera review, in failing to disclose information in a police personnel file. We affirm. Absent an unsustainable exercise of discretion, we will not reverse a trial court’s determination on the discoverability of evidence. State v. Sargent, 148 N.H. 571, 572-73 (2002). In this case, the trial court determined that the personnel file contained no evidence that would undermine the credibility of one of the arresting officers. See State v. Gagne, 136 N.H. 101, 104 (1992) (trial court must permit defendants to use privileged material if essential and reasonably necessary to permit counsel to adequately cross-examine for the purpose of showing unreliability or bias). Having conducted our own review of the records, we find the trial court’s exercise of discretion sustainable. The records predate the arresting officer’s employment at the time of the arrest and contain no information about the defendant or his arrest. Moreover, even if we assume without deciding that Gagne would require disclosure of any portion of the records, we find any error in the trial court’s ruling to be harmless. See State v. Goodale, 144 N.H. 224, 232 (1999) (to determine whether error was harmless court considers strength of State’s evidence presented at trial and character of excluded evidence, including whether it was inconsequential in relation to State’s evidence). The defendant was charged with operating after certification as a habitual offender. The evidence consisted of two police officers and a civilian police observer, all of whom testified that they saw the defendant operating the vehicle and then observed him change seats with his female passenger when stopped by the police. In addition, the seat change was captured on the video camera in one of the cruisers. Given the strength of the alternative evidence, we find any error in the trial court’s ruling to be harmless. Affirmed. Orders issued by the 3JX panels of the New Hampshire Supreme Court are without precedential effect and may not be cited for any proposition of law or as an example of the proper resolution of any issue.
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