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Bar News - March 9, 2007

NH Supreme Court At-a-Glance: January 2007




State v. Crie, No. 2005-568

Appeal from Rockingham, Modified January 11, 2007



Defendant was convicted on four counts of being a felon in possession of a dangerous weapon (RSA 159:3). Defendant appealed, arguing that: (1) the trial court’s jury instructions were erroneous; (2) the evidence was insufficient to prove possession of firearms; (3) his prior conviction did not involve the possession, use, or attempted use of a deadly weapon, as allegedly required by RSA 651:2 (criminal sentences and limitations); (4) the mandatory minimum sentencing provisions of RSA 651:2, II-g are not applicable to his convictions; and (5) the trial court’s application of RSA 651:2, II-g denied him due process.



(1)     The trial court’s use of the word “firearm” in the jury instructions was not plain error.

(2)     The jury instructions correctly stated the applicable law defining “control” of weapons.

(3)     There was sufficient evidence for the jury to find beyond a reasonable doubt that Defendant possessed the four firearms found in his home.

(4)     Under the minimum mandatory sentence of 3 years (in RSA 651:2, II-g) for Defendant’s conviction, the nature of Defendant’s prior felony conviction is immaterial.

(5)     That the caption of the indictment read “Felon in Possession of a Dangerous Weapon,” rather than “deadly” weapon, is not dispositive despite the reference in RSA 651:2, II-g only to “deadly” weapons.

(6)     Defendant has not satisfactorily explained how the due process guarantee creates a right to a sentence inconsistent with the plain meaning of the sentencing statute.

State v. Holmes, No. 2005-883

Appeal from Strafford, January 19, 2007



Defendant was convicted for felonious sexual assault of a person between 13 and 15 years old (RSA 632-A:3, II). Defendant admitted to sexual intercourse, but alleged that the victim, who was actually 15 years old, claimed she was 17. At the end of trial, Defendant moved to dismiss on the ground that the State failed to prove he knew that the victim was less than 16 years old. Relying upon State v. Goodrow, which held that statutory rape is a strict liability crime, the Superior Court denied the motion. Defendant appealed, arguing that Goodrow should be re-examined because: (1) related principles of law have developed such that the Goodrow is no more than an abandoned doctrine; and (2) facts have changed such that the Goodrow rule has no significant application or justification.



(1)     A defendant’s knowledge of the victim’s age is not a material element of statutory rape, as previously held in State v. Goodwin and unaltered by legislative changes to the relevant statute.

(2)     The statutory rape statute remains good law, despite decreased regulation of adult consensual sexual activity, because the justification of protecting young people remains viable.

(3)     Goodrow is not contrary to the modern judicial trend of judicial decisions in this area.

(4)     While legitimate policy concerns may support a reasonable mistake of age defense, it remains the province of the legislature, not the courts, to create one.




State v. Flagg, No. 2005-927

Appeal from Jaffrey-Peterborough, January 17, 2007

Reversed and remanded.


During a traffic stop, an officer observed an open beer can in Defendant’s car as well as persons she believed to be minors. The officer picked up the can and noted it was three-quarters empty and cool to the touch, and poured the contents on the ground. Defendant was charged with possession (RSA 179:10) and transportation of alcohol by a minor (RSA 265:81-a). Defendant moved to dismiss on the basis that the State failed to preserve evidence as constitutionally required. The trial court granted the motion on the basis that a can containing only a few drops of liquid might be deemed “empty,” while one containing more might satisfy the State’s burden of proof. The State appealed, arguing that the evidence was not material and its loss was not prejudicial to Defendant.



(1)     Under RSA 179:10 and RSA 265:81-a, even a de minimis amount of alcohol is sufficient to trigger a violation for possession and transportation of alcohol by a minor.

(2)     The District Court’s grant of Defendant’s motion to dismiss was erroneous.


State v. Huffman, No. 2005-646

Appeal from Rockingham, January 17, 2007

Reversed and remanded


Defendant was indicted for theft by misapplication of property after collecting his father’s income, which included Medicaid benefits, and placing most of it into two joint bank accounts rather than making the obligatory payments to the nursing home where his father was a resident. Prior to the indictment, the grand jury received Defendant’s financial records after the State mailed subpoenas for the records to the banks, but did not formally serve them. Prior and during trial, Defendant made the following motions: (1) motion to suppress the records on the basis that the State violated the Privacy Act (RSA 359-C:10) by failing to properly serve the subpoenas; (2) motion to exclude the records, arguing that the State did not comply with the authentication requirements of NH Rule of Evidence 902(11); (3) motion to dismiss, arguing that the State failed to prove an element of the alleged crime. The trial court denied the motions. Defendant was subsequently convicted, and appealed the trial court’s denial of all three motions.



(1)     Suppression of evidence is not an appropriate remedy for failure to comply with the Privacy Act’s in-person service requirement unless such failure violates rights conferred on Defendant by the Act.

(2)     One (of the two) bank certifications of the authenticity of its bank records failed to meet Rule 902(11)’s authentication requirements because it did not indicate that the records were made near the time of the occurrence of the matters set forth.

(3)     Sufficient evidence existed to allow the jury to conclude beyond a reasonable doubt that Defendant withheld payments from the nursing home and dealt with his father’s money as his own, thus satisfying that element of the crime.




Petition of the State of NH, No. 2005-040

Appeal from Carroll, January 17, 2007

Petition denied


Defendants opened a residence for persons with addiction. Several months later, both were charged with 15 counts of theft by deception. All indictments were identical except for the names of the victims and the amounts of money involved. The State filed a motion to join both Defendants and all offenses. Defendants objected, arguing that the offenses were unrelated and joinder would be prejudicial. The Superior Court granted the State’s motion to join Defendants, but denied the State’s motion to join the offenses. State appealed, arguing that Defendants had a “common plan” to defraud the named residents, as defined in NH Rule of Evidence 404(b). Specifically, the State argued that Defendants used money from earlier thefts to commit later thefts against different victims. Defendant argued that the State failed to establish that the charges constituted a common plan because the charges were not mutually dependent.



(1)     Joinder of the offenses is not appropriate in this case because the alleged crimes were committed against different victims, and because the State failed to establish a sufficient connection between the money collected from earlier victims and thefts committed against later victims.




Duquette v. Warden, NH State Prison, No. 2006-079

Appeal from Merrimack, January 19, 2007



Petitioner was convicted on seven counts of sexual assault, and the Superior Court sentenced him to serve consecutive sentences. After the Superior Court dismissed his petition for habeas corpus, petitioner appealed, arguing that: (1) the Superior Court had no statutory authority to impose consecutive sentences; (2) the consecutive sentences violated constitutional due process guarantee; (3) the sentences violated the state guarantee of proportionality in sentencing; and (4) the sentences violated constitutional separation of powers.



(1)     Absent statutory dictates to the contrary, courts have the common law authority to impose consecutive sentences.

(2)     Through its repeal of former RSA 651:3 III (requiring concurrent sentences for nearly all crimes), the legislature intended to restore this common law authority to impose consecutive sentences.

(3)     The consecutive sentences did not violate due process, because a person of ordinary intelligence would understand that a person guilty of multiple counts of sexual assault could be subject to separate sentences for each count.

(4)     The consecutive sentences do not violate proportionality in sentencing as guaranteed by Part I, Art. 18 of the State Constitution due to any alleged lack of objective factors set forth by statute to guide judicial discretion in sentencing.

(5)     The consecutive sentences do not violate the separation of powers doctrine, as the legislature has not acted to curb the trial court’s common law authority to impose such sentences.


Domestic Relations


In the Matter of Choy and Choy, No. 2005-776

Appeal from Derry Family Division, January 18, 2007



Following a divorce decree, the Choys were awarded joint custody of their son. Shortly following the decree, the father moved for sole custody. The mother also sought a modification of the original decree, including a later motion for sole custody. In response, the trial court appointed a guardian ad litem for the son. After an investigation, the guardian filed a report recommending that primary custody be awarded to the mother and that a new custody schedule be implemented. After a hearing, the trial court agreed to the modification, relying upon RSA 458:17V(a)(3) to conclude that clear and convincing evidence existed to allow the decree modification. The father appealed, arguing that: (1) the standard established by Perreault v. Cook requires a finding of a change in circumstances to modify the decree; (2) the trial court ignored evidence supporting his assertions and casting doubt on the mother’s assertions; and (3) the trial court relied too heavily on the guardian’s report.



(1)     The Perreault v. Cook standard, requiring proof of a change in circumstances affecting the welfare of a child, was superceded by the legislature’s adoption of a revised RSA 458:17V that did not include any “change in circumstances” requirement.

(2)     The trial court did not unsustainably exercise its discretion by ignoring evidence favorable to the father or unfavorable to the mother.

(3)     The trial court did not give unreasonable weight to the guardian’s report.


In Re Juvenile 2005-212, No. 2005-212

Appeal from Manchester, January 26, 2007

Vacated and remanded


Petitioner filed a child in need of services (CHINS) petition against her ten year-old son, alleging that he suffered from various disorders and had violent outbursts. During an adjudicatory hearing, the trial court found that the son was not competent to commit the acts alleged in the CHINS petition. The trial judge then dismissed the CHINS petition, noting that RSA 169-D:18-a failed to specify a course of action following a finding of incompetence, concluding that it lacked the authority to provide CHINS services and that services must instead be provided by the mental health system. Petitioner appealed, arguing that nothing in the statute prohibited a finding against the child even if he is found incompetent. In response, the State argued that: (1) the appeal was moot because it had been providing voluntary services to the son, and (2) the CHINS statute requires dismissal upon a finding of incompetence.



(1)     Petitioner’s appeal was not moot because the State’s voluntary services were not the equivalent of a court-ordered placement.

(2)     RSA 169-D:18-a does not require competence as a predicate to a CHINS determination.

(3)     A CHINS competency evaluation may be used, in the trial court’s discretion, in either the adjudicatory phase and/or in the dispositional phase of the CHINS proceeding.




Hartley v. Electric Ins. Co., No. 2005-903

Appeal from Merrimack, January 17, 2007

Reversed and remanded


Petitioner was involved in an accident while driving a truck. Petitioner was forced to stop quickly to avoid a vehicle, causing the straps holding a large saw in the truck to break. When Petitioner examined the saw, he noticed gasoline pouring from it and attempted to move it. He suffered injuries for which he sought coverage under the uninsured motorist provision of his auto insurance policy. The provision provided coverage for “bodily injury…caused by an accident.” The trial court concluded that when Petitioner acted to move the saw, it broke the chain of causation such that the accident did not cause the bodily injury and did not trigger coverage. Petitioner appealed.



(1)     Policy language covering an “injury caused by an accident” does not require that the causal relationship between the accident and injury be a direct proximate cause.

(2)     In this case, the accident caused the injuries of Petitioner such that the injury was covered under the insurance policy.


Professional Conduct/Conflicts of Interest


State v. Veale, No. 2006-043

Appeal from Hillsborough-North, January 19, 2007

Motion denied without prejudice; appeal remanded in part.


After the trial court dismissed charges against the defendant on the basis of the defendant’s incompetence to stand trial, the defendant filed a pro se appeal, claiming that the court-appointed public defender had provided ineffective assistance. An appellate defender was appointed to represent the defendant on this appeal. The appellate defender than moved to withdraw due to a conflict of interest arising from the ineffective assistance claim made against a public defender.



(1)     The offices of the public defender and appellate defender qualify as a single firm for the application of the rules of professional conduct.

(2)     Public defenders and appellate defenders are not exempt from the conflict of interest rules for claims of ineffective assistance of counsel.

(3)     A claim of ineffective assistance against a public defender, standing alone, is not sufficient to require an appellate defender’s disqualification.

(4)     If, on appeal, an appellate defender is appointed as counsel to a defendant raising a claim of ineffective assistance against a public defender, the appeal will be stayed absent special conditions and the claim will be adjudicated on its merits in the Superior Court.




Eldertrust of Florida, Inc. v. Town of Epsom, No.2005-706

Appeal from Merrimack, January 18, 2007



Plaintiff, a non-profit corporation that established and operated health care facilities, purchased two facilities in the Town of Epsom. Plaintiff sought a tax exemption under RSA 72:23, V, which provides a tax exemption for property owned and operated by charitable organizations. The Town denied the exemption, but Plaintiff was granted the exemption by the Superior Court on appeal. The Town appealed, arguing that the Superior Court erred in determining that Plaintiff met the requirements of RSA 72:23, V.



(1)      RSA 72:23, V requires an evaluation of the following four factors in determining an organization’s qualification for a charitable tax exemption: whether (i) the organization was established and is administered for a charitable purpose; (ii) an obligation exists to perform the organization’s stated purpose to the public; (iii) the land is owned, occupied, and used directly for the stated charitable purposes; and (iv) the organization’s income or profits are used for any purpose other than that for which the organization was established, including whether any officers or members received any pecuniary benefit.

(2)      Plaintiff qualified under the first factor, because Plaintiff’s articles of incorporation adequately demonstrate that Plaintiff was established for a charitable purpose.

(3)      Plaintiff qualified under the second factor, as Plaintiff’s articles of incorporation sufficiently limit its discretion and define an enforceable charitable obligation even without an express reference to low income persons.

(4)      Plaintiff qualified under the third factor, despite Plaintiff’s charging its residents fees, because Plaintiff allowed residents to remain despite an inability to pay and because many residents paid substantially below the advertised rate for housing and services they received.

(5)      Plaintiff qualified under the fourth factor, despite that two members of Plaintiff’s board both held stock in two for-profit entities that were involved in Plaintiff’s transactions with the facilities.

(6)      Thus, Plaintiff satisfied the four-factor test and qualified for a charitable tax exemption under RSA 72:23, V.


Torts/Negligent Infliction of Emotional Distress


St. Onge v. MacDonald, No. 2006-317

Appeal from Hillsborough-South, January 26, 2007



Plaintiff was involved in a six month relationship with his girlfriend, but the two did not live with each other and were not able to financially support one another. Following a vehicle crash allegedly involving the Defendant, the girlfriend died. Plaintiff filed suit against Defendant, which included a claim of negligent infliction of emotional distress, alleging that Defendant’s negligent operation of his vehicle caused the crash. The trial court granted summary judgment in favor of Defendant on the emotional distress claim, on the basis that Plaintiff and his girlfriend were not “closely related” as required by Graves v. Estabrook for bystander recovery in negligent infliction of emotional distress claims. Plaintiff appealed.



(1)     While Defendant and his girlfriend may have been to some degree mutually dependent and emotionally reliant on one another, the six month relationship between the two does not establish that Defendant and his girlfriend were “closely related” for the purpose of determining bystander recovery in negligent infliction of emotional distress.




Community Resources for Justice, Inc. v. City of Manchester, No. 2006-609

Appeal from Hillsborough-North, January 24, 2007

Reversed and remanded.


Plaintiff, an organization operating “halfway houses,” purchased a property in the City of Manchester. Plaintiff applied for a building permit to operate a halfway house, which the building commissioner denied on the ground that this use constituted a non-permitted “correctional facility.” Plaintiff appealed to the ZBA and requested a variance, which the ZBA denied. Plaintiff appealed to Superior Court, arguing that the ZBA, when making findings on unnecessary hardship, had applied an overly restrictive standard beyond that required by Simplex Tech. v. Town of Newton. Simplex set forth a 5-prong test to determine “unnecessary hardship, the first prong of which is whether the variance is consistent with public interest. The Superior Court reversed the ZBA and granted the variance. The City appealed, arguing, inter alia, that the trial court erred by finding that Plaintiff met the first prong of the Simplex test. Plaintiff further argued on appeal that the City’s ordinance banning correctional facilities exceeded the City’s authority under the state zoning enabling act (RSA 674:16) and violates constitutional due process and equal protection guarantees.



(1)     Plaintiff did not meet the first prong of the Simplex test, because it did not provide adequate evidence that its proposed use was reasonable.

(2)     Contrary to the City’s contentions, privately run correctional institutions implicate the general welfare within the meaning of the enabling legislation.

(3)     Under the rational basis test, the ordinance could serve legitimate governmental interests and thus does not violate substantive due process.

(4)     Overruling Carson v. Maurer, the current intermediate level scrutiny applied in equal protection determinations is no longer valid, and the test will now require that the challenged legislation be “substantially related to an important government objective.”


McKenzie v. Town of Eaton ZBA, No. 2005-778

Appeal from Carroll, January 31, 2007


Duggan, J. concurred specially, suggesting an alternative approach to applying the rational basis test in cases such as this.


The Town of Eaton issued a building permit to a woman, allowing her to build a storage shed on her property 59 feet from an abutting lake. After the shed was built, the Town increased the setback requirements to 125 feet from the shore of the lake. Several years later, the shed was destroyed by wind. More than a year following, the woman was granted a building permit by the Town’s selectmen to rebuild the shed within the 125 feet, on the grounds that the shed location was grandfathered. Plaintiff, an abutter, appealed the selectmen’s decision to the Eaton ZBA. The ZBA eventually affirmed the issuance of the permit. Plaintiff appealed to the Superior Court, which reversed the ZBA’s decision on the grounds that because the woman had failed to reconstruct the shed within one year as required by a Town ordinance, she abandoned the nonconforming use. The ZBA appealed, arguing, inter alia, that when determining abandonment of a nonconforming use, consideration of subjective intent is required by the NH Constitution.



(1)     The abandonment test established in Lawlor v. Town of Salem, requiring a consideration of subjective intent, is not applicable here because an ordinance directly allows abandonment without such a consideration.

(2)     Under the rational basis test, the ordinance’s purpose of reducing nonconforming uses is a legitimate governmental interest and thus does not violate substantive due process.


Feins v. Town of Wilmot, No. 2005-832

Appeal from Merrimack, January 18, 2007

Reversed and remanded


Petitioners owned commercially-zoned property in the Town of Wilmot, and received cluster subdivision approval to divide the property for use as an office park. Several years later the land was not developed, and Petitioners sought approval for multi-family residential dwellings. The Town’s planning board denied the applications, claiming: (1) the application does not meet the density requirements in the Wilmot Zoning Ordinance; and (2) the application is not consistent with the original intent of the commercial use of the property. On appeal, both the Wilmot ZBA and Superior Court affirmed. Petitioners then appealed to the Supreme Court, claiming that: (1) the proper consideration of the planning board is whether the new proposal meets zoning requirements, not whether the proposal meets the original intent of the subdivision; (2) the Town’s zoning ordinance no longer contains density requirements on multi-family housing.



(1)      Petitioners are entitled to planning board review of the proposal on its own merits, unconstrained by prior subdivision approval.

(2)      Due to the Town’s elimination of an explicit per-unit density requirement in the zoning ordinance, the Court cannot infer that the ordinance includes a per-unit density restriction on multi-family housing.

(3)      Thus, the trial court erred in upholding the planning board’s decision.


Property Portfolio Group v. Town of Derry, No. 2005-867

Appeal from Rockingham, Modified January 25, 2007



Petitioner, a corporation, sought restraining orders and declaratory judgment in Superior Court against an abutting corporation following the planning board’s approval for a site plan determination. The claims were filed 5 months following the planning board’s approval. The Town filed a motion to dismiss, which the Superior Court granted on the basis that the claims were an untimely appeal of the planning board’s decision under the 30-day appeal period established by RSA 677:15, I. Petitioner appealed, arguing that the 30-day appeal period did not apply because: (1) the planning board’s decision was not final; (2) the trial court had jurisdiction to decide the appeal under RSA 676:4, IV; (3) the declaratory judgment action should have been permitted.



(1)     The planning board action was final, because the proposal application could be appealed and because no condition precedent was attached to it.

(2)     Petitioner’s reliance on RSA 676:4, IV is misplaced because that provision does not address the planning board appellate process.

(3)     The 30-day window applies to the declaratory judgment action because Petitioner’s challenge contested the panning board’s exercise of administrative discretion, and did not raise a question of law.

(1)      (4)Thus, the trial court did not err when it ruled that it lacked jurisdiction to decide the appeal, because the appeal was untimely under RSA 677:15, I.


Paul Nolette is legal counsel for the Joint Committee on Labor and Workforce Development in the Massachusetts State House.  He has been a member of the NH Bar since 2004.


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