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Bar News - April 4, 2003 NH Supreme Court Opinion Summaries GAMBLING – ACCOMPLICE LIABILITY – EXCESSIVE FINES DUGGAN, J. The defendant was convicted on eighty counts of gambling. See RSA 647:2 (1996). The court affirmed. The defendant ran a gambling operation from his home. He accepted eighty bets from one client from November 1997 to March 1998, for which he recorded the amount won or lost. The gambling records were kept in code with symbols and notations. Other people’s bets were also recorded in code. The defendant argued at trial that the records were inadmissible since they contained evidence of uncharged gambling activities. If admissible, the defendant argued for redaction of the portion of the records that regarded uncharged activities. The trial court found the records admissible and denied the defendant’s request for redaction. The defendant also argued that the case did not warrant expert testimony, and therefore filed a motion to exclude expert testimony. The State countered that expert testimony was necessary to decipher the code. The trial court denied the defendant’s motion to exclude expert testimony. The expert concluded that the operation was sophisticated. After the close of evidence, the State asked the court to instruct the jury on principal and accomplice liability, to which the court agreed. The jury found the defendant guilty on all eighty counts, and imposed a fine of $2000 per count. On appeal, the defendant argued that the Trial Court (Barry, J.) erred in: (1) ruling that unredacted gambling records seized from his residence were admissible; (2) denying his motion in limine seeking to exclude expert testimony; (3) denying his motion to strike the testimony of an accomplice; (4) giving a jury instruction on accomplice liability; and (5) imposing an excessive and disproportionate fine as part of sentencing. The court first declined to determine whether the admission of the records was error, because even if erroneous, it was harmless. The evidence of the defendant’s guilt was overwhelming. The court concluded that the unredacted records were merely cumulative and inconsequential in relation to the evidence of guilt. The court noted that the State conceded that the records could have been redacted, but did not change its conclusion that the error was harmless. As to the trial court’s denial of exclusion of the expert testimony, the court found that the expert’s testimony aided the jury in understanding complicated gambling functions. The court concluded that the trial court’s decision to admit the expert’s testimony was neither unreasonable nor untenable. The court agreed that the sole employee’s testimony was relevant, as he had personal knowledge of the situation. The court found that the trial court did not err in instructing the jury on accomplice liability. As to the final argument, the court found that the trial court considered traditional goals of sentencing and financial circumstances in its determination, and that the record did not support a finding that the fines imposed were excessive. Thus, there was no unsustainable exercise of discretion on the part of the trial court.
AGGRAVATED FELONIOUS SEXUAL ASSAULT DUGGAN, J. Following a jury trial in superior court, the defendant was convicted of one count of aggravated felonious sexual assault. See RSA 632-A:2, I(n) (Supp. 2001). The court reversed. The defendant worked as a correctional officer in the house of corrections where the complainant was detained. During the complainant’s detention, she and the defendant became friends, frequently talked, and flirted with each other. The complainant began to exhibit sexually-explicit behavior toward the defendant, and on one occasion she touched the defendant’s genitals, lifted her shirt and dropped her underpants, and asked him to have sex. The defendant digitally penetrated the complainant and the complainant willingly participated. The defendant also gave the complainant cigarettes and sent her letters and money when she was transferred to the state prison. Before trial, the defendant moved for a bill of particulars specifying the acts he used to coerce the complainant to submit to sexual penetration. During a hearing on the motion in Superior Court (Mohl, J.), the State argued that under RSA 632-A:2, I(n), coercion is not an element of the offense, but rather is implied in the relationship between the parties. The court denied the defendant’s motion. The State conceded in its opening statement that the complainant was a willing participant. The defendant moved to dismiss arguing that the State failed to prove its prima facie case. The State argued that its case was not defeated because it was enough that the defendant had used his authority to engage in the sexual relations. The Superior Court (T. Nadeau, J.) denied the motion to dismiss, stating that the State must demonstrate coercion by authority, but that coercion can come in many forms. On appeal the defendant argued that: (1) RSA 632-A:2(I(n) requires proof of actual coercion; (2) the evidence was insufficient to prove that he used his position of authority to coerce the complainant to submit; and (3) the trial court erred in denying his motion for a bill of particulars. The court concluded that the State’s interpretation of the statute was not supported by the statute’s language, and that coercion is clearly element of the offense. When consent is raised as a defense, the State has the burden to disprove consent beyond a reasonable doubt. The court next looked to whether the evidence was sufficient to establish that the defendant used his position of authority to coerce the complainant into submitting to the sexual acts. The court construed the word "coerce" broadly, and held that no reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt, and that the State failed to establish that the defendant used his authority to coerce the complainant to submit.
AGGRAVATED FELONIOUS SEXUAL ASSAULT – IMMATURITY DEFENSE NADEAU, J. In this interlocutory transfer from the Superior Court (Galway, J.), the court considered the criminal responsibility of a twenty-two-year-old defendant for acts allegedly committed when the defendant was thirteen years old. The court remanded the case to the superior court for further proceedings. The defendant was indicted for aggravated felonious sexual assault, a crime he allegedly committed when he was between eleven and thirteen years old. The defendant filed a notice of immaturity defense and request for pretrial ruling. The superior court dismissed the indictments for acts that allegedly occurred before the defendant’s thirteenth birthday, and held in abeyance the ruling on the indictments alleging offenses that occurred after the defendant reached age thirteen. Pursuant to Supreme Court Rule 9, the superior court transferred the following question of law to the Supreme Court: Whether RSA 628:1, which provides that a person between the ages of thirteen and fifteen may be held criminally responsible for aggravated felonious sexual assault if his case is transferred to the superior court pursuant to RSA 169-B:24, bars the prosecution of a twenty-two year-old defendant who allegedly committed aggravated felonious sexual assault when the was thirteen years old? The defendant argued that since he was thirteen years old at the time of the alleged offenses, the State cannot prosecute him without first certifying him to the superior court. See RSA 628:1, I, II. Since the State could not do that pursuant to RSA 169-B, which does not apply to adult defendants, the indictments should be dismissed. The State argued that the defendant’s argument ignored RSA 169-B:4, VII which grants the superior court jurisdiction over the defendant without the certification requirement. The court held that RSA 628:1 does not bar prosecution of the defendant and the certification requirement must be satisfied despite the language of RSA 160-B:4, VII.
DRIVING AFTER HABITUAL OFFENDER CERTIFICATION NADEAU, J. The defendant appealed the felony sentence imposed upon him following his conviction for driving after having been certified a habitual offender. See RSA 262:23 (1993) (amended 2000, 2001). The court affirmed. A grand jury indicted the defendant for violating RSA 262:23. The indictment alleged that the defendant drove while his permit or privilege to drive was suspended or revoked after having been found to be a habitual offender and while the order finding him as such was still in effect. The defendant was convicted and sentenced. On appeal, the defendant argued that the trial court erred in imposing a felony sentence where the indictment did not charge, as an element of the crime, a prior misdemeanor motor vehicle offense or a driving under the influence offense, which the defendant contends is required under RSA 262:23 to make the charged crime a felony. The defendant further argued that the statute creates two offense classes, one a felony and the other a misdemeanor, and thus the indictment must specifically apprise the defendant which class of offense he allegedly committed. In addition, because of differing punishments, the State must prove beyond a reasonable doubt that prior convictions exist. The defendant argued that a prior conviction described in RSA 262:23, III is an element of a separate felony-level offense. The State countered that such a prior conviction is merely a sentencing factor that need not be alleged in the indictment or proved beyond a reasonable doubt. Looking first to the statutory language, the court concluded that such a prior conviction is a sentencing factor and not an element of the offense. Next the court considered whether use of such a prior conviction as a sentencing factor is constitutional, notwithstanding the legislature’s intent to make the existence of a specified prior conviction a sentencing factor. The court concluded that the defendant’s prior convictions need not have been alleged in the indictment nor proved to the jury beyond a reasonable doubt. The elements alleged in the indictment were sufficient to subject the defendant to a felony sentence under RSA 262:23, I.
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