Edited by Paul Nolette

Criminal Law

State v. Taylor, No. 2004-659

Appeal from Merrimack County, November 15, 2005

Defendant was indicted on two counts of possession of a firearm by a felon, and pled guilty to both indictments. The Superior Court sentenced Defendant to the mandatory minimum sentence specified by RSA 651:2, II-g, applicable to felony conviction in which an element of the felony is “possession, use, or attempted use” of a firearm. Defendant appealed, arguing that the minimum sentence was not applicable because the indictments alleged only that he had the firearms “under his control”, not that he “possessed a firearm” as required by statute.

Held:

(1) When the phrase “under his control”, rather than “possession”, is used in a criminal indictment for firearm possession, the mandatory minimum sentence specified by RSA 651:2, II-g does not apply.

Vacated and remanded for sentencing.

The Court, Nadeau, J., held that the Superior Court’s application of the mandatory minimum sentence constituted plain error. To assist its interpretation of RSA 651:2, II-g, the Court noted that RSA 159:3, I(a) creates a felony if a person has various weapons “in his possession or under his control.” Citing the presumption that the legislature does not enact unnecessary and duplicative provisions, the Court held that the phrases “under his control” and “in his possession” have independent meanings. Thus, because the indictments alleged only that Defendant has a firearm “under his control”, the mandatory minimum for “possession, use, or attempted use” of a firearm did not apply.

State v. Emery, No. 2004-615

Appeal from Rockingham County, November 30, 2005

Defendant was convicted on nine counts of theft by unauthorized taking or transfer. The Defendant had allegedly deposited and subsequently withdrew several sums of the employer’s money into and out of her personal checking account without the employer’s knowledge. This personal account was jointly held by her and her employer. The Defendant appealed on three grounds: (1) a jury instruction was plain error, (2) insufficient evidence supported her conviction, and (3) the Superior Court erroneously denied both her motion in limine to exclude evidence disclosed by the State and her alternative motion to continue.

Held:

(1) The Superior Court’s jury instructions were not erroneous.

(2) Sufficient evidence existed to support a guilty verdict on several charges of theft by unauthorized taking or transfer.

(3) The Superior Court’s denials of Defendant’s motion in limine and motion to continue were not erroneous.

Affirmed.

The Court, Duggan, J., first rejected Defendant’s argument, not raised before the Superior Court, that the jury should have been instructed that Defendant could not be convicted of stealing from her own checking account. To support this argument, the Defendant had contended that each holder of a joint account is legally “privileged to infringe” the interest of the other joint holder. The Court held that because this legal issue remained unsettled at the time of appeal, the Superior Court’s decision to not so instruct the jury was not plain error.

Second, the Court rejected Defendant’s argument that the funds received from her employer were “gifts”, and thus did not constitute theft. The Court held that Defendant cited nothing in the record to support this testimony, and thus had not carried her burden of proving that no rational trier of fact could have found guilt.

Finally, the Court rejected Defendant’s argument that, because certain discovery items were not turned over to Defendant until a week before trial, the Superior Court improperly admitted these items into evidence. The Court held that Defendant did not satisfy her burden of showing that she was prejudiced by the late disclosure.

State v. Lucier, No. 2004-594

Appeal from Coos County, November 30, 2005

Defendant was convicted of burglary, violation of a protective order, and simple assault. At trial, the State sought to show that after Defendant’s girlfriend had obtained a restraining order and it was served upon Defendant at 8:45PM, Defendant called the girlfriend at 9:04PM the same day. To support this allegation, the State sought to admit a police photograph of a caller ID box. The Superior Court denied Defendant’s motion in limine to exclude this evidence. Defendant appealed, arguing that the Superior Court should have required the State to prove reliability with expert testimony before admitting the photograph.

Held:

(1) As a matter of first impression, admission of caller ID evidence does not require expert testimony to prove reliability.

Affirmed.

Recognizing that the admissibility of caller ID evidence was a matter of first impression, the Court, Nadeau, J., approvingly cited other state courts in concluding that the reliability of caller ID technology was a matter of common knowledge. Thus, the trial court could admit the evidence without expert testimony.

State v. Simone, No. 2004-279

Appeal from Hillsborough County South, November 30, 2005

Defendant was charged with stalking under RSA 633:3-a, I(a). Under this statute, the State had to prove at trial that, inter alia, Defendant’s conduct would cause a reasonable person to fear for her personal safety, and that the conduct actually placed the victim in fear of her personal safety. The State produced evidence showing that Defendant, in violation of a restraining order, had made repeated telephone calls to the victim over two years, had sent the victim several packages, and had expressed that he was emotionally unstable and suicidal. On this evidence, the jury convicted. Defendant appealed on two grounds: (1) the jury’s verdict was not supported by sufficient evidence, and (2) the Superior Court erred in denying his motions to dismiss and/or set aside the verdict.

Held:

(1) Sufficient evidence existed to support a guilty verdict for stalking under RSA 633:3-a, 1(a), even though Defendant never explicitly threatened the victim with violence.

(2) The trial court’s denials of Defendant’s motions to dismiss and/or set aside the verdict were not erroneous.

Affirmed.

The Court, Dalianis, J., first rejected Defendant’s argument that because he never assaulted the victim or threatened her with violence, a reasonable person would have no reason to fear for her personal safety. The Court held that evidence of Defendant’s unrelenting phone calls and packages to the victim, as well as his articulated history of emotional instability, were sufficient to cause a reasonable person to fear for her personal safety.

Second, the Court rejected Defendant’s argument that the State failed to prove that the victim actually feared for her safety. In so doing, the Court cited the victim’s testimony at trial, as well as the Superior Court’s ruling that the victim’s demeanor on the witness stand gave rise to a reasonable inference that she actually feared the defendant.

Municipal Regulation

Caparco v. Town of Danville, No. 2004-711

Appeal from Rockingham County, November 15, 2005

Petitioners, including individuals and businesses seeking to construct homes, sought relief from impact fee ordinances adopted in Respondent towns. Petitioners argued that provisions granting planning board authority to adjust impact fees periodically violated both the innovative land use controls statute, RSA 674:21, and the New Hampshire Constitution. The Superior Court ruled in favor of the towns, and Petitioners appealed.

Held:

(1) Under RSA 674:21, town ordinances may grant planning boards the power to periodically adjust impact fees, so long as sufficient standards guide the boards’ fee adjustments.

(2) The impact fee ordinances in question did not violate the New Hampshire Constitution.

Affirmed.

The Court, Broderick, C.J., rejected Petitioners’ argument that because RSA 674:21 contains no explicit sections allowing planning boards to adjust impact fees, the boards had no such power. The Court noted that the statute allows impact fee ordinances to “provide for administration…by the planning board.” The Court concluded that “administration” may include the power to periodically adjust impact fees, as long as the ordinance provides the planning board with “sufficient standards” to guide its fee adjustments.

The Court also rejected Petitioners’ argument the ordinances violated the New Hampshire Constitution because they allegedly permitted “charges” to be established without the consent of the people. The Court noted that the residents of Respondent towns had voted to accept the planning boards’ power to adjust the impact fees, and thus the “charges” had the people’s consent.

Insurance

Broom v. Continental Casualty Co., No. 2004-869

Appeal from Merrimack County, November 16, 2005

Petitioners purchased business liability insurance from Respondent including coverage for legal liability for “personal injury” damages. The policy defined “personal injury” as including injury arising out of slanderous or libelous written publication. After this policy expired in April 1999, Petitioners were named by certain plaintiffs in a lawsuit alleging, inter alia, that petitioners had slandered them in various memoranda. Petitioners made a request for defense from Respondents in December 2001. Respondents declined coverage, and Petitioners brought suit in Superior Court, claiming that Respondents had a duty to defend them. In 2004, the Superior Court granted summary judgment for Respondents and denied Petitioners’ motion for reimbursement of defense costs from Respondent. Petitioners appealed.

Held:

(1) The Superior Court erred in granted summary judgment to Respondents, because Respondents had a “potentially covered claim” triggering a duty to defend under the terms of its liability insurance contract.

(2) The issue of reimbursement was not a matter for the Court in the first instance.

Reversed in part, vacated in part, and remanded.

The Court, Dalianis, J., held that Petitioners had a “potentially covered claim” triggering Respondent’s duty to defend. The Court noted that the underlying plaintiff’s pleadings did not identify the dissemination dates of the memoranda until an amended pleading on December 2002, and the Superior Court’s summary judgment order did not resolve the coverage issue until 2004. Prior to these dates, there existed a reasonable possibility that the underlying claim fell within the policy’s coverage, and at this time Respondents owed Petitioners a defense. The Court thus concluded that the Superior Court’s summary judgment order was in error. The Court also held that the issue of reimbursement of defense costs was not a matter for the Court in the first instance, and vacated the Superior Court’s order.

Jurisdictional Issues

Appeal of St. Joseph Hosp., No. 2004-824

Appeal from Health Services Planning and Review Board, November 16, 2005

Northeast Rehabilitation Hospital proposed relocation of several of its rehabilitation beds from its facility in Salem to a facility in Nashua. Northeast requested a determination from the Health Services Planning and Review Board (the “Board”) that this relocation was not subject to Board review under RSA 151-C. This statute requires Board review whenever a “new institutional health service” is developed in the state. After a hearing, the Board determined that the relocation was not subject to review. After the Board reconsidered and upheld its order, petitioner, another hospital in the state, appealed.

Held:

(1) The Health Services Planning and Review Board did not err in deciding that the relocation of rehabilitation beds was not subject to Board review.

Affirmed.

The Court, Duggan, J., rejected all three arguments in favor of Board review presented by Petitioner: (1) that the relocation was a “new institutional health service”; (2) that the regulation constituted a “transfer” under Board regulations; and (3) that this transfer changes the scope of Northeast’s original Certificate of Need.

First, the Court held that because Salem and Nashua are in the same regional service area as defined in the Board regulations, the relocation was not a “new institutional health service” requiring Board review. Second, the Court held that though Board regulations require a “transfer” of beds to receive Board approval, “transfer” in this context refers to a “transfer of ownership” of the Certificate of Need for beds, rather than a transfer in physical location of the beds. Third, the Court held that because Northeast’s original Certificate of Need specified a service area including southern New Hampshire, it did not change the scope of the Certificate. Thus, the Board did not err in deciding that Northeast’s relocation was not subject to Board review.

Eminent Domain

Pennichuck Corp. v. City of Nashua, No. 2004-717

Appeal from Hillsborough County South, November 16, 2005

Plaintiff, a private utility company, entered into a merger agreement with another corporation. Shortly thereafter, Defendant’s board of aldermen voted to acquire Plaintiff’s water works system under RSA 38, which allows municipalities to take privately owned utilities by eminent domain. It was not until over a year after the vote that Defendant filed a condemnation petition with the Public Utilities Commission. Plaintiff then sought a declaratory judgment to terminate or limit the condemnation efforts. The Superior Court granted summary judgment for Defendant, and Plaintiff appealed.

Held:

(1) The procedures of RSA 38 did not constitute a per se inverse condemnation in violation of the New Hampshire Constitution.

(2) The City filed its condemnation petition with the New Hampshire Public Utilities Commission within a reasonable time.

(3) The City’s condemnation petition was not barred by the doctrine of laches.

Affirmed.

The Court, Duggan, J., rejected all three of Plaintiff’s arguments on appeal. First, the Court rejected Plaintiff’s contention that RSA 38’s taking procedures amounted to a per se inverse condemnation because they substantially interfered with Plaintiff’s “investment-backed expectations” for operating its utility. The Court held that because Plaintiff was able to operate while subject to condemnation proceedings, and because any alleged fluctuation in the value of Plaintiff’s assets during the proceedings were not a taking, no unconstitutional inverse condemnation occurred.

Second, the Court held that Defendant filed its condemnation petition within a reasonable time. In so doing, the Court concluded that the time limitations found in other condemnation statutes and in separate procedures governed by RSA 38 do not apply to the filing of a condemnation petition. The Court further held that a reasonable fact finder would have had to find Defendant’s delay in filing the petition to be reasonable, thus making summary judgment appropriate.

Third, the Court rejected Plaintiff’s laches claim, holding that Plaintiff offered no evidence either that Defendant’s delay resulted in its financial losses or that there were “extraordinary or compelling circumstances” permitting a laches claim against a municipality.

Professional Negligence/Hospital Liability

Carlisle v. Frisbie Memorial Hosp., et al. No. 2004-555

Appeal from Strafford County, November 30, 2005

Plaintiff arrived at Defendant hospital in a drunken state, seeking treatment for her alcoholism and depression. Defendant doctor recommended treatment at a mental illness organization, but Plaintiff declined because the organization was related to her work. Without Plaintiff’s knowledge, the doctor then contacted the police. An officer arrived and arrested Plaintiff for intoxication. Plaintiff brought suit against the hospital and the doctor, alleging statutory violations against the hospital and professional negligence against the doctor. After a trial, the jury awarded a verdict for Plaintiff. Defendants appealed, arguing that the Superior Court erroneously (1) submitted Plaintiff’s claims to the jury, (2) gave improper jury instructions, (3) refused to allow Defendant doctor’s deposition to be read at trial, and (4) refused Defendant’s motion for remittitur.

Held:

(1) The Superior Court did not err by submitting Plaintiff’s claims to the jury.

(2) The Superior Court’s jury instructions were proper.

(3) Defendant doctor’s deposition was properly excluded.

(4) The Superior Court denial of Defendant’s motion for remittitur was not error.

Affirmed.

The Court, Galway, J., first rejected Defendant’s contention that the Superior Court erroneously submitted to the jury Plaintiff’s claim under the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”). The Court held that (1) because Defendants failed to raise sufficiency of the evidence objections until after jury instructions, Defendants waived this objection; (2) the Superior Court’s denial of Defendant hospital’s directed verdict motion was proper; (3) that EMTALA preempts conflicting NH law under this case’s circumstances; and (4) that the Superior Court’s jury instructions regarding EMTALA were proper. The Court also rejected another statutory objection brought by Defendant hospital, holding that the New Hampshire Patient’s Bill of Rights Act explicitly provides for private relief against a hospital.

Further, the Court held that the Superior Court did not err in submitting the professional negligence claim to the jury. The Court rejected Defendant’s arguments that RSA 329:31, creating a physician’s duty to warn, and RSA 627, allowing persons to use force to thwart a suicide, provided a complete defense to civil liability. In so doing, the Court held that RSA 329:31 does not apply to threats of suicide. The Court also held that the Superior Court’s jury instructions on this issue were not erroneous.

The Court also held that (1) Defendant doctor’s deposition was properly excluded because Defendant’s letter that he could not appear at trial was not sufficient to show Defendant was “unavailable”; (2) Defendants waived their objections to Plaintiff’s claims for emotional distress damages; and (3) the Superior Court did not err in denying Defendant’s motion for remittitur because the jury’s damage award was not manifestly exorbitant.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer