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Bar News - September 5, 2008


NH Supreme Court 3JX Summaries – January - March 2008

JANUARY

Find the full text of these orders at: http://www.courts.state.nh.us/supreme/3jx/index.htm.

Juvenile – TPR – Due process

In Case No. 2007-0132, In re Juvenile 2007-0132, the court on January 3, 2008, issued the following order:

The mother and father of Juvenile 2007-0132 appeal the termination of their parental rights. The mother argues that: (1) she did not receive adequate notice of the conditions that she was required to correct to regain custody of her daughter; (2) DCYF and the Family Division initially failed to follow closely her progress in correcting the conditions; and (3) DCYF and the Family Division failed to follow their own protocols with respect to providing services. The father argues that: (1) he did not receive a descriptive notice of the conditions that led to the finding of neglect, which violated both his statutory and due process rights; and (2) the trial court erred in terminating his rights when he complied with all applicable court orders. We affirm.


Possession – Felon in Possession - Evidence

In Case No. 2006-0856, State of New Hampshire v. Jared Brooks, the court on January 4, 2008, issued the following order:

Following a bench trial, the defendant, Jared Brooks, was found guilty of possession of a controlled drug, RSA 318-B:2 (2004), possession of a controlled drug in a motor vehicle, RSA 265:80 (2004), and felon in possession of a deadly weapon, RSA 159:3 (2002). On appeal, the defendant argues the trial court erred in denying his motions to suppress because: (1) the scope of the initial traffic stop was unlawfully expanded; (2) he did not consent to the pat-down frisk of his person; and (3) the subsequent search warrant was insufficient. We affirm.


Takings - Just compensation – Jury trial right

In Case No. 2007-0208, Town of Newport v. Thaddeus Dymon, the court on January 9, 2008, issued the following order:

The petitioner, Town of Newport (Newport), appeals an order of the trial court finding that the respondent, Thaddeus Dymon, was entitled to a jury trial on the issue of just compensation for the land that Newport sought to acquire pursuant to RSA 38:30. Newport argues that RSA 38:30 does not provide the respondent with a right to a jury trial and that, even if it could be so construed, the respondent has waived any such right. We reverse and remand.


Domestic violence – Simple assault – ‘Opening the door’

In Case No. 2006-0764, State of New Hampshire v. Andrew S. Cook, the court on January 10, 2008, issued the following order:

The defendant, Andrew S. Cook, appeals his conviction in superior court on charges of simple assault, see RSA 631:2-a (2007), arising out of an incident of domestic violence. He argues that the trial court erred by admitting evidence of another domestic abuse incident, which was the subject of separate criminal charges, upon the basis that he had "opened the door" to such evidence. We affirm.


Zoning amendments – Parking fee ordinances

In Case No. 2007-0172, Dennis P. Prue, Trustee of Dover Realty Trust v. City of Portsmouth, the court on January 15, 2008, issued the following order:

The petitioner, Dennis P. Prue, Trustee of Dover Realty Trust, appeals the trial court’s order upholding the decision of the City Council of the defendant, the City of Portsmouth, to enact two zoning amendments. One amendment rezoned the property of the intervenor, Harborcorp, LLC, and the other granted relief from certain parking fee ordinances. We affirm.


Administrative hearing - compliance

In Case No. 2007-0327, Appeal of Rochester Tire & Automotive, the court on January 22, 2008, issued the following order:

The respondent, Rochester Tire & Automotive, appeals a decision of the hearings examiner for the petitioner, the New Hampshire Department of Safety, Division of Motor Vehicles, Bureau of Hearings, finding that the respondent failed to comply with a prior order of the petitioner and fining the respondent $2,000. We affirm.


Insurance – ice damage - exclusion

In Case No. 2007-0270, Ossipee Marine, Inc. d/b/a Ossipee Lake Marina v. Marine MGA, Inc. & a., the court on January 22, 2008, issued the following order:

The defendants appeal an order of the superior court declaring that the plaintiff is entitled to insurance coverage for damages to boat engines caused by ice, despite an exclusion for damages caused by "freezing or . . . ice which might form within . . . engines." They argue that the trial court erred by finding that the exclusion conflicted with the defendants’ agreement to provide coverage so as to render the exclusion inapplicable under the terms of the policy. We reverse and remand.


Administrative – Auto inspection license

In Case No. 2007-0068, Appeal of Rochester Tire & Automotive, the court on January 22, 2008, issued the following order:

The respondent, Rochester Tire & Automotive, appeals a decision of the hearings examiner for the petitioner, the New Hampshire Department of Safety, Division of Motor Vehicles, Bureau of Hearings, finding that the respondent violated pertinent regulations when it issued an inspection sticker to a certain vehicle and suspending the respondent’s inspection privileges for thirty days. We affirm.


Administrative – notice of issues

In Case No. 2007-0368, Appeal of ASCA, Inc., the court on January 22, 2008, issued the following order:

The employer, ASCA, Inc. (ASCA), appeals an order of the Department of Employment Security Appellate Board (board) finding that the claimant had not received adequate notice of the issues to be determined at an appeal tribunal hearing. Based upon its finding of inadequate notice, the board remanded the case to an appeal tribunal chairperson for a de novo hearing. We dismiss the appeal.


Burglary – Robbery – Theft – Jury instructions

In Case No. 2006-0828, State of New Hampshire v. Guy Michael Wheeler, the court on January 22, 2008, issued the following order:

The defendant, Guy Michael Wheeler, appeals his convictions for burglary, robbery and theft of a firearm. He argues that the trial court erred when it failed to instruct the jury that to be sufficient, circumstantial evidence must exclude all rational conclusions consistent with innocence. We affirm.


Theft by taking – Expert testimony - Evidence

In Case No. 2006-0681, State of New Hampshire v. Louise M. Staples, the court on January 30, 2008, issued the following order:

The defendant, Louise Staples, appeals her conviction in Coos County Superior Court of two counts of theft by unauthorized taking contrary to RSA 637:3 (2007). She argues that: (1) State’s witness Theresa Fortier was unqualified to testify as an expert; (2) the standards and protocols devised by Fortier were not sufficiently reliable to be admitted under RSA 516:29-a (2007) and New Hampshire Rules of Evidence 702; (3) the State presented insufficient evidence to prove her guilt beyond a reasonable doubt; and (4) the trial court’s order that she pay $117,255.38 in restitution to the Town of Carroll was error. We affirm.


AFSA - Evidence

In Case No. 2005-0692, State of New Hampshire v. Donald Spinner, the court on Jan. 31, 2008, issued the following order:

The defendant, Donald Spinner, appeals his conviction on six counts of aggravated felonious sexual assault and one count of felony indecent exposure and lewdness. See RSA 632-A:2, I(l), III (2007); RSA 645:1, II(a) (2007). He argues that the trial court erred in: (1) admitting evidence of uncharged conduct; (2) admitting the victim’s out-of-court statement; (3) overruling his objection to a statement made by the prosecutor during closing argument; (4) precluding him from introducing information provided to the victim’s physician for purposes of medical diagnosis; (5) granting the State’s pre-trial motion to exclude his statements to the police; (6) denying his motion to dismiss the indictments for insufficiency of the evidence; (7) denying his motion to set aside the verdict based upon the State’s failure to disclose evidence prior to trial; and (8) denying his motion to merge the indictments for sentencing. We affirm.


AFSA – Admission of divorce findings - evidence

In Case No. 2007-0015, State of New Hampshire v. Kerwin D. Dimitroff, the court on January 31, 2008, issued the following order:

The defendant, Kerwin Dimitroff, appeals his convictions for felonious sexual assault. He argues that the trial court erred in admitting: (1) testimony about findings made by the divorce court in his divorce proceedings; and (2) two photographs of the victim taken when she was a child. We reverse and remand.


FEBRUARY


Driveway permit – Superior Court appeal

In Case No. 2007-0181, Fred Lowell & a. v. City of Portsmouth Planning Board & a., the court on February 12, 2008, issued the following order:

The petitioners, Fred Lowell and Al McElaney, sought a writ of certiorari in superior court to review the decision of the City Council for respondent City of Portsmouth (City) to deny their application for a driveway permit. The Superior Court (McHugh, J.) granted the requested relief. The City appeals this decision. We reverse and remand.


Attempted murder – Felon in possession - evidence

In Case No. 2007-0156, State of New Hampshire v. Ian Maranda, the court on February 20, 2008, issued the following order:

The defendant, Ian Maranda, appeals his convictions for attempted murder, first degree assault, felon in possession of a firearm and falsifying physical evidence. He argues that the trial court erred in: (1) failing to dismiss the charge of falsifying physical evidence for lack of sufficient evidence; (2) overruling his objection to testimonial hearsay; (3) failing to dismiss the charge of first degree assault involving victim White for lack of sufficient evidence; and (4) imposing separate sentences for his convictions for attempted murder and first degree assault. The State concedes that the evidence was insufficient to support a first degree assault conviction with respect to victim White; we reverse that conviction. The State also concedes that the trial court’s imposition of consecutive sentences on the attempted murder conviction and first degree assault conviction with respect to Addo-Gyang was error; we vacate the first degree assault conviction. We therefore address only whether the evidence was sufficient to support a conviction for falsifying physical evidence and whether the trial court erred in admitting certain statements of the defendant’s girlfriend. We affirm in part, reverse in part, vacate in part and remand.


MARCH

AFSA - evidence

In Case No. 2007-0250, State of New Hampshire v. Leonard Valliere, the court on March 6, 2008, issued the following order:

The defendant, Leonard Valliere, appeals his convictions for aggravated felonious sexual assault, felonious sexual assault, indecent exposure, attempted sexual assault and endangering the welfare of a child. He argues that the trial court erred in: (1) admitting evidence that the victim’s sister was upset after talking with her; (2) allowing the prosecutor to refresh the victim’s recollection; and (3) ruling that the State’s second bill of particulars provided sufficient factual specificity for three of the indictments. We affirm.


Credit for bail time – Electronic monitoring

In Case No. 2007-0432, State of New Hampshire v. Guy A. Priel, the court on March 6, 2008, issued the following order:

The defendant, Guy A. Priel, appeals an order of the trial court denying his request for pre-sentencing confinement credit for time spent released on bail under conditions requiring electronic monitoring. He argues that he should be credited 1,074 days, which includes the time he was released subject to electronic monitoring, because under the terms of his release he was a "prisoner." We affirm.


Zoning – lack of standing

In Case No. 2007-0534, Harborsquare Corporation v. City of Portsmouth & a., the court on March 7, 2008, issued the following order:

The petitioner, Harborsquare Corporation, appeals an order of the trial court dismissing its appeal from a decision of the Portsmouth Zoning Board of Adjustment for lack of standing. Based upon the record before us and the oral argument of the parties, we find no error. For the reasons set forth in the trial court’s order, we affirm.


AFSA – Expert testimony – Motions New counsel – New trial

In Case Nos. 2006-0664 and 2007-0184, State of New Hampshire v. Gordon A. Fuller, Jr., the court on March 12, 2008, issued the following order:

The defendant, Gordon A. Fuller, Jr., appeals his convictions after a jury trial of three counts of aggravated felonious sexual assault and one count of felonious sexual assault. On appeal, he argues that the trial court erred by: (1) allowing the State to present the testimony of the physician who examined the victim; (2) denying his motion for new counsel; and (3) denying his motion for a new trial. We affirm in part, vacate in part and remand.


Municipal employment – Retirement enrollment – untimely action

In Case No. 2007-0391, Jane Ireland & a. v. Town of Rye, the court on March 12, 2008, issued the following order:

The petitioners, employees of the respondent, the Town of Rye, appeal an order of the superior court dismissing their petition for specific performance and monetary relief relative to the town’s alleged failure to enroll them in the New Hampshire Retirement System (NHRS). They argue that the trial court erred by ruling, pursuant to Petition of Goffstown Educ. Support Staff, 150 N.H. 795 (2004), that they are not entitled to recover lost retirement benefits, and by concluding that the action is time-barred. Because we agree that the action is untimely, we affirm.


Site plan approval – summary judgment - cease and desist

In Case Nos. 2006-0912 and 2007-0140, 1808 Corporation v. Town of New Ipswich & a., the court on March 12, 2008, issued the following order:

The petitioner, 1808 Corporation, appeals two superior court orders. In the first order, the superior court granted the cross-motion for summary judgment filed by the respondent, Town of New Ipswich (Town), and ruled that the Town’s planning board had lawfully and reasonably partially revoked the petitioner’s site plan approval. In the second order, the superior court granted the Town’s motion to enforce the Town’s cease and desist order, thereby ordering the petitioner to remove its new sign and assessing civil penalties against the petitioner. We reverse and remand.


Driving After Revocation – Mens rea finding

In Case No. 2007-0413, State of New Hampshire v. Elaine Lavalette, the court on March 14, 2008, issued the following order:

The defendant, Elaine Lavalette, appeals her conviction for driving after revocation or suspension. She argues that the trial court erred in finding her guilty without finding a mens rea as to driving and/or in refusing to dismiss the complaint for failure to allege a mens rea. We reverse and remand.


Property division – child support – attorneys’ fees

In Case No. 2007-0090, In the Matter of Henry Flickinger and Tracy Flickinger, the court on March 18, 2008, issued the following order:

The petitioner, Henry Flickinger, appeals and the respondent, Tracy Flickinger, cross-appeals the trial court’s order denying the petitioner’s motion to modify the parties’ property division, granting his motion to modify child support, and denying his request for attorney’s fees and costs. We affirm.


Insurance - Declaratory judgment

In Case No. 2007-0457, R.S. Audley, Inc. v. Pike Industries, Inc., the court on March 18, 2008, issued the following order:

Pike Industries, Inc. (Pike) appeals an order of the trial court granting the petition for declaratory judgment filed by R.S. Audley, Inc. (Audley). Pike argues that the trial court erred in granting "declaratory judgment summarily on its own" and in denying its motion for summary judgment. We affirm.


Unfair labor practice - PELRB

In Case No. 2007-0339, Appeal of the Tamworth Educational Support Personnel Association, the court on March 24, 2008, issued the following order:

The Tamworth Educational Support Personnel Association (TESPA) appeals the order of the New Hampshire Public Employee Labor Relations Board (PELRB), in which the PELRB ruled that the Tamworth School District (district) did not engage in an unfair labor practice by terminating the employment of head cook, Margaret DeLong. We affirm.

 

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