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Bar News - January 4, 2002 NH Supreme Court Opinion Summaries CRIMINAL – AGGRAVATED FELONIOUS SEXUAL ASSAULT The State of New Hampshire v. Roger A. Fortier BrodericK, J. The defendant appeals his conviction on numerous sexual assault charges. He argues that the superior court erred by failing to dismiss two indictments for aggravated felonious sexual assault (ASFA) alleging a pattern under RSA 632-A:2, III (Supp. 2000) because they: (1) were duplicitous; (2) infringed upon his right to a unanimous jury verdict; and (3) violated the State and federal constitutional prohibitions against double jeopardy. The supreme court affirmed. In 1991, the defendant was a priest. He met both victims, J.K. and A.Y., through their involvement with the church. J.K. testified that over the course of a year, the defendant sexually assaulted him one to three times per month. The defendant subjected A.Y. to the same type of activity on weekends throughout the summer and into the fall of 1997. Only the defendant’s convictions for the pattern AFSA and coercion AFSA indictments are on appeal. The supreme court concluded that the defendant was not entitled to jury unanimity on each predicate act within the pattern because conviction under the pattern statute requires only that the jury unanimously agree that a defendant engaged in the proscribed criminal pattern of behavior. The supreme court also concluded that the defendant suffered no infringement upon his right to be free from double jeopardy because he was not sentenced on any FSA indictment alleging that he committed a sexual assault within the same time period as alleged in the pattern indictments. The supreme court concluded that the evidence supports a finding that the defendant used his respected position of authority to employ a tactic a manipulation and exertion of subtle pressure to succeed in sexually assaulting each boy. According, a rational jury could have found beyond a reasonable doubt that the defendant used his position of authority to coerce the victims to submit to his sexual assaults. GROFF, J., dissenting: By labeling RSA 632-A:2, III as a course of conduct crime, the court abandons the concerns raised in State v. Patch, 135 N.H. 127, 129 (1991) by effectively allowing duplicitous indictments. Consequently, juries will be allowed to convict a defendant without reaching a unanimous verdict on the individual acts of sexual assault comprising the pattern. This creates the anomalous result that a defendant may be convicted of the crime of committing two or more acts of sexual assault when the jury could not unanimously agree that he had committed any sexual assault at all.
CONSUMER PROTECTION ACT - PRIVATE CAUSE OF ACTION - SELLERS Milford Lumber Company, Inc. v. RCB Realty, Inc. & a. NADEAU, J. RCB Realty, Inc., Century 21 Team Berube and Richard Berube appeal the decision of the trial court awarding judgment for the plaintiff under R.S.A. 358-A (1995 & Supp. 2000). The supreme court affirmed. The plaintiff supplied building materials to the defendants, who were engaged in the construction business. In 1996, the defendants stopped paying the invoices. Berube repeatedly assured the plaintiff that he would pay the invoices; but, he eventually claimed that he was not responsible for payment and that the plaintiff would have to submit invoices to one of the builders. The plaintiff sued alleging, among other claims, violation of the Consumer Protection Act (Act). The trial court found for the plaintiff. The defendants contend that the Act limits its protections to consumers and does not afford a private right of action to sellers such as the plaintiff. The supreme court held that the defendants’ claim that the statute forecloses a seller from a private cause of action is unsupported by a plain reading of the statute which broadly defines who may bring an action. Furthermore, the legislature, while specifically exempting certain transactions, did not exempt private causes of action by sellers. The supreme court recognized that, while its reading of the Act was broad, the Act did not bar sellers from availing themselves of its protection when transactions take place in a trade or business context. Justice Duggan dissented arguing that Milford Lumber, as a seller, is not protected by the Act because the unlawful conduct specified under the statute only protects buyers. The dissent stated that most sellers have the same, or greater, bargaining power than consumers and have wholly adequate common law remedies.
UNFAIR LABOR PRACTICE - FACT FINDING Appeal of Inter-Lakes School Board (New Hampshire Public Employee Labor Relations Board) BROCK, C.J. The Inter-Lakes School Board appeals the decision of the New Hampshire Public Employee Labor Relations Board finding that it committed an unfair labor practice when it submitted fact finders’ recommendations to the legislative body, through multiple warrant articles. The supreme court affirmed. The school board conducted negotiations with the Inter-Lakes Education Association, NEA-New Hampshire (teachers’ association) and the Inter-Lakes Support Staff, NEA-NH (support staff association). With respect to negotiation with the teachers’ association, a neutral fact finder issued findings and recommendations on certain issues. The school board rejected the recommendations. Negotiations with the support staff association also resulted in a neutral issuing findings and recommendations. These recommendations were rejected by the support staff. The school board then placed the recommendations from both fact finders on the warrant for the annual meeting; however, it split the recommendations into different warrant articles. The supreme court held that language of R.S.A. 273-A:12, suggests that the legislature intended that the negotiating teams, the association membership and the board of the public employer, consider the fact finder’s recommendations as a total package. No language suggests that any of these entities may reject or accept some of the recommendations. The supreme court found that the fact finder’s role would be undermined if these various entities were permitted to pick through the fact finder’s findings and recommendations, accepting only those recommendations they deemed favorable and rejecting those they found disagreeable.
CRIMINAL MISCHIEF - EXCULPATORY EVIDENCE - LESSER INCLUDED OFFENSE DUGGAN, J. The defendant appeals his conviction of misdemeanor criminal mischief claiming the trial court erred in not dismissing the charges when it was revealed that certain photographs had not been turned over to the defense; instructing the jury on the lesser-included offenses; and convicting him of a class A misdemeanor instead of a class B. The supreme court affirmed. The defendant, who was working with a paving crew, became upset when a vehicle owned by William Douglass, blocked his tractor trailer truck. The defendant used a front end loader to move Mr. Douglass’ vehicle about eighty feet down the road. At trial, the State presented evidence that it would cost over $1,500 to repair Mr. Douglass’ vehicle. The defendant argued that since certain photographs of the damage had been lost and not been turned over to the defense, the charge against him should be dismissed. The supreme court found that there was ample evidence to support the trial court’s finding that the photographs had been misfiled and that the actions of the police were not "maliciously motivated." The defendant failed to show that he was prejudiced by not having access to the photographs as evidence was presented at trial, by way of the investigating officer and an auto body estimator, both of whom testified to the damage. With respect to the defendant’s claim that the jury should not have been instructed on the lesser included offense, the supreme court held that the criminal mischief statute on its face gave the defendant notice that recklessly causing damage to property is a lesser-included offense of purposely causing damage. Further, by the defendant’s own testimony, the jury could have concluded that he acted recklessly and not purposely. Finally, the supreme court found that since criminal mischief is not specifically designated as a class B misdemeanor, it must be categorized as a class A misdemeanor under R.S.A. 625:9, IV(a)(2)(Supp. 2000).
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