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Bar News - December 18, 2009

NH Supreme Court At-a-Glance - November 2009


Criminal Law

State v. Michelle Chrisicos, No. 2009-062
November 17, 2009
Reversed and Remanded for Resentencing
  • Whether the trial court erred in determining that the defendant was not eligible for a sentence of home confinement (RSA 262:23).
In a consolidated proceeding, Chrisicos pled guilty to two separate offenses of driving after certification as a habitual offender. In an earlier appeal, the Supreme Court had determined that RSA 262:23, allowing sentencing under home confinement, was not unconstitutional even though Hillsborough County was the only New Hampshire county at the time without a home confinement program. Because Hillsborough County did not have such a program, however, the Court did not reach the interpretation of the statute on the first appeal.

Hillsborough County thereafter implemented a program just prior to the conclusion of the first appeal. Thus, the trial court determined that the issue was then ripe for adjudication, allowing this second appeal to follow.

The State had argued that RSA 262:23 was ambiguous, as it was susceptible to both the construction attributed to it by the State and the defendant. In particular, the defendant argued that the statuteís language "Habitual offenders shall only be eligible for the home confinement program once per lifetime" meant that the defendant, as a habitual offender, can be sentenced to home confinement one time in her lifetime. The State argued, that its construction that this language prevents home confinement upon a second conviction was also reasonable.

The Court found that the statute was not ambiguous, and that regardless, the Stateís construction was not reasonable. In so doing, the Court rejected the Stateís argument that punishment was the prime purpose of the habitual offender statute, instead finding that "foster[ing] safety on the highways" was. The Court found that the plain language permitted a sentencing of home confinement to any habitual offender one time in his/her lifetime. The Court then remanded the matter for sentencing and the trial courtís discretionary determination into whether a sentence of home confinement would be imposed over other alternatives, and whether her sentence would run concurrently or consecutively.

Justices Dalianis and Conboy concurred, but Justices Broderick and Duggan dissented separately. Justice Broderick specifically analyzed the statuteís use of the word "eligible," in opining that while the defendant may have been "eligible" for home sentencing upon conviction of the first offense, she would not be eligible for home sentencing on the second. Justice Broderick stated that the defendantís construction would violate equal protection because it would treat defendantís eligibility differently depending upon whether their indictments had been consolidated or not, allowing the defendant in a consolidated proceeding to remain eligible even on the second conviction while the defendant tried and convicted in two proceedings would become ineligible for home sentencing for the second conviction, even though both defendants would be facing convictions on charges from two separate criminal episodes. Justice Duggan also found that a defendant should be determined ineligible upon a second conviction on two separate indictments.

Adam Bernstein, Bernstein, Bartis & Mello of Nashua for the defendant.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general), for the State.

State v. Ralph C. Flodin, No. 2008-675
November 17, 2009

  • Whether the evidence was insufficient to support the defendantís conviction of aggravated felonious sexual assault under RSA 632-A:2, I(g)(1); I (a).
The defendant was a "spiritual services coordinator" at the Strafford County House of Corrections when the alleged incidents took place. He had had no formal ministry training, and was not ordained as a member of any religious organization. He also had no training in the diagnosis or treatment of mental health or behaviors. At Strafford County, the defendantís jobs included coordinating spiritual activities for the inmates, performing religious training for the inmates and staff, and meeting individually with the inmates for "spiritual counseling."

During his spiritual counseling of one female inmate, the defendant engaged in a sexual relationship with the inmate. He had learned during his spiritual counseling meetings with her, that she had a mental health diagnosis, and the staff asked him to encourage her to take her medication.

The Court found that the defendant was not providing "therapy" to the victim at the time of the sexual contact, and thus could not be convicted under the therapy variant of the aggravated felonious sexual assault statute. The Court examined the statute and found that it required the State to establish three elements: (1) that the defendant engaged in sexual contact with the victim; (2) that the defendant provided "therapy" to the victim and that the conduct occurred during such therapy; and (3) that the defendantís actions were "not Ďprofessionally recognized as ethical or acceptable.í"

The Court found that in order to satisfy the statutory definition, the "treatment" must have been directed to remedying a "disorder" and involve a "systematic cause or measure, procedure, or technique or particular approach in order to cure, remove, counteract, relieve, or abate that disorder." The defendantís spiritual counseling did not meet this definition, and his conviction was reversed.

Andrew R. Schulman, Getman, Stacey, Schulthess & Steere, P.A. of Bedford for the defendant.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general), for the State.

State v.Christopher Howe, No. 2008-445
November 17, 2009

  • Whether the trial court erred in admitting evidence of what was learned of a search of CDs left behind in a dresser drawer of the room the defendant occupied shortly prior.
  • Whether the trial court erred in admitting the defendantís finger print card from an earlier arrest.
  • Whether the trial court erred in admitting more than 30 pages of pornographic material taken off a computer of someone who had allowed the defendant access to the computer during the time period in which the pornographic materials were downloaded to it.
Howe was convicted of six counts of child pornography under RSA 649-A:3, I(e). He had been renting a room from a Ms. Turner, who, upon Howeís failure to continue to pay rent for the room, told him to leave on June 23, 2006. Ms. Turner gave the defendant 7 days in which to remove his belongings from the room. Despite returning two times thereafter to take belongings from the room, the defendant left and did not return for a bureau and a number of other items. On the twelfth day after the defendant was told to move out, Ms. Turner began cleaning out the room and the furniture left behind.

During the clean up, Ms. Turner found five CDs, memory cards, ID badges, and a manila folder with images within it, 21 of which were of child pornography images. This led Ms. Turner to call the police, who took custody of the items. The investigators played the CDs and learned that at least one contained a child pornographic video, and acquired a fingerprint from one of the printed photographs. Upon questioning, the defendant denied ownership of the material involving children, but stated that he had downloaded the other images from a computer owned by people who had allowed him access to a computer before his move from the rented room, and with whom he had vacationed with shortly thereafter. Using a forensic tool kit (FTK), the investigating detectives discovered that the computer had been used to visit child pornography websites and to download some images.

The defendant moved to suppress evidence found on the CDs as the fruits of an illegal search and seizure. He claimed that he had not abandoned the belonging he left in the room so the search required a warrant. The Supreme Court could not find that the trial court was clearly erroneous in finding that the defendant had no continuing reasonable expectation of privacy in the CDs as he had left them behind past the time period given to him by Ms. Turner, had not given Ms. Turner reason to believe he was returning for the items, and provided no contact information for where he was going. Thus, it could be found that it was "virtual certainty" he was not returning, and the abandonment was a permanent one, thereby giving up any expectations of privacy therein.

The defendant also objected to the admission of a fingerprint card that was acquired when the defendant was arrested on a prior occasion on the grounds that the card was inadmissible hearsay evidence and for failure of the State to lay a proper foundation. The Court found that the testifying officer need not identify himself as the "keeper of records," when he had personal knowledge of understanding of how the fingerprint cards were filed, stored, and retrieved. It did not need to be shown that fingerprint cards were always prepared for each arrestee, only that it was a regular practice.

The defendant further argued that the trial court erred in admitting computer images printed from the download files from the computer, on the grounds that it constituted improper character evidence. More specifically, the defendant contended that there was an absence of proof that the defendant was the downloader, and that the evidence was more prejudicial than probative. In examining this argument, the Court looked to the three prongs of N.H. rule of evidence 404(b). Though the trial court made no specific findings under Rule 404(b), the Court found that there was clear proof that the downloads were performed during the time period the defendant had access to the computer, and that it was relevant to show that the defendant "knowingly" possessed the offending materials. Because the probative value was found not be outweighed by any unfair prejudice, the evidence was determined to have been properly admitted.

Pamela E. Phelan, of Manchester Public Defender for the defendant.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general), for the State.

State v. James Kelly, No. 2008-868
November 17, 2009

  • Did the lower court err in imposing the suspended portion of the defendantís sentence for one conviction upon a subsequent conviction that was not final because of a pending appeal
The defendant was convicted of violating a protective order in 2006. For that conviction, he was given a deferred 12-month sentence. He was convicted in 2008 by jury trial of another violation of a protective order, the underlying conduct having been alleged to have occurred in October 2006. The defendant appealed the 2008 conviction and this appeal was still pending at the time of the Courtís decision regarding the defendantís 2006 sentencing.

Upon subsequent conviction in 2008, the trial court agreed with the State that the deferred 12- month sentence could be imposed.

The Court agreed, finding that "a condition of good behavior [is] implied in deferred and suspended sentences." Such "good behavior" is "limited to conduct conforming to the law." Upon proof of criminal conduct, by a preponderance of the evidence, a deferred sentence may be imposed.

Accordingly, the Court followed the majority of jurisdictions who permit deferred sentences to be imposed upon a conviction, even when that conviction is subject to a pending appeal and therefore non-final. In part, the Court found it significant that a contrary rule would work a "íconstitutional anomalyí" in that the defendant who had been convicted by a jury but brought an appeal would have a delay in imposition of a deferred sentence, while the defendant who was shown by a preponderance of the evidence to have violated the condition at a revocation hearing would not enjoy the same treatment.

The defendant had not served any of his deferred sentence at the time of this appeal, and the Court noted the Stateís argument that any defendant can petition for a stay of his sentence based on the particular facts pertinent to his situation. Thus, the Court declined to accept a blanket rule that a deferred sentence cannot be imposed on a non-final conviction. Moreover, the Court would not issue an advisory opinion regarding the effect of any reversal of the defendantís 2008 conviction on his deferred 2006 sentence. The Court further found that any additional arguments had been waived by the defendant.

Paul Borchardt, assistant appellant defender of Concord for the defendant.

Orville B. Fitch, II, attorney general (Stephen D. Fuller, senior assistant attorney general and Elizabeth C. Woodcock, assistant attorney general), for the State.

Criminal Procedure

State v. Nathaniel Ericson, No. 2008-751
November 17, 2009

  • Whether the trial court should have dismissed an indictment charging the pattern variant of aggravated felonious sexual assault.
  • Whether the trial court should have dismissed the indictment because there was insufficient evidence.
  • Whether the trial court should not have permitted the minor victim to testify while holding Silly Putty.
  • Whether the trial court erred in allowing evidence that the defendant showed the victim pornographic videos and rubber body parts that the defendant owned.
The defendant was indicted in two counties on a total of six counts of aggravated felonious sexual assault, and one count of felonious sexual assault. At least one of these indictments was dismissed before the defendant went to a consolidated trial on the charges. The defendant was convicted by the jury of the two non-pattern charges and one pattern charge of the Hillsborough County indictments. The defendant argued that the pattern indictment was insufficient to apprise him of the charges against him with the requisite specificity.

The Court examined RSA 623-A:2, III, which sets forth the pattern variant of aggravated sexual assault. The indictment provided an alleged a time period, place, and allegations that the defendant "ídid knowingly engage in a pattern of sexual assault on the victim, a child under the age of 16, by committing more than one act of [aggravated felonious sexual assault] or felonious sexual assault or both over a period of two months or more and within a period of five years."í

The defendant contended that this was insufficient, arguing that the indictment failed to "allege the predicate acts comprising the pattern of sexual assault." The Court disagreed that an indictment for the pattern variant of aggravated felonious sexual assault must alleged the individual acts underlying the pattern. Instead, the Court found that such individual acts "do not constitute elements of the pattern crime, and, therefore, need not be alleged." Instead, only the "pattern itself" needs to be alleged. Here, the defendant had not requested a bill of particulars, and thus, the original pattern indictment was sufficient.

The defendant further argued that the evidence was insufficient to indict him, or convict him. The Court disagreed. The defendantís contentions that the victim was unable to recall details on cross-examination and changed her story over time were found to go to the victimís credibility, not to render such evidence insufficient. Further, the Court disagreed with the defendantís argument that the evidence was "solely circumstantial," instead finding that the testimony of the victim established direct evidence.

The Court found that the defendant failed to properly preserve his objection to the victim holding silly putty while she testified. Though the defendant had objected on the grounds that she would have looked "ímore helpless," and that the State had not "establish[ed] a Ďa compelling needí" for the victim to hold the putty, the defendant failed to put the trial court on notice that he was raising a constitutional violation, such as the right to due process, fair trial, or the right to confront.

The defendant also argued that evidence of the defendantís use of rubber body parts and pornographic videos was inadmissible character evidence. However, under the three-prong test of Rule 404(b), the Court found that the evidence was relevant for how the defendant "desensitized" the victim in preparation for his assaults on her, that the defendantís statements that he owned rubber parts coupled with the victimís statements showed clear proof that the defendant committed the acts, and the evidence was not unfairly prejudicial.

Mark L. Sisti, Sisti Law Offices of Chichester for the defendant.

Orville B. Fitch, II, attorney general (Thomas E. Bocian, assistant attorney general), for the State.

State v. Jose Hernandez, No. 2008-883
November 17, 2009

  • Did the trial court improperly instruct the jury that the police officers may resort to deception in questioning a suspect.
  • Did the trial court err in permitting an officer who was working undercover on a different case at the time of trial to wear a ski mask during his testimony against he defendant.
The defendant was convicted of aggravated felonious sexual assault by having penetrated a child under the age of 13. The defendant initially denied the assault, but the investigating officers told the defendant that his hairs would be found on the victim and that other tests would prove the charges, which prompted the defendant to admit to the assault. The defendant contended that this statement was not voluntary and objected to the Courtís jury instruction as one essentially condoning the officerís method of obtaining the confession. Additionally, during trial, one of the testifying officers wore a mask over his face to protect his identity as he was at that time working undercover on a different assignment. The defendant objected arguing that the officerís wearing of the mask violated his rights to confront the witness. The Court provided a limiting instruction regarding the masked officerís testimony.

The Court found that the jury instruction given at the defendantís trial regarding the confession was permissible because it was "a pure statement of law" and did not constitute or include any factual findings by the trial court. Further, the Court had also specifically instructed the jury to consider all facts and circumstances in evaluating whether the confession was voluntary.

Before reaching the defendantís argument that allowing the officer to testify while wearing a mask violated his constitutional right to confrontation, the Court analyzed the Stateís argument that any such error would nevertheless have been harmless. The Court agreed with the State, finding that the officerís testimony was "merely cumulative or inconsequential" compared to the "overwhelming" evidence of the defendantís guilt through his confession, the victimís testimony, and the testimony of the victimís sister, including testimony regarding the defendantís apology to the victimís sister.

The Court held that trial courts reaching the issue of whether or not to allow a witness to testify with a disguise or mask in the future "must make specific findings that the disguise is necessary to further "an important State interest and that the reliability of the evidence is otherwise assured." The later inquiry must involve a "respect [of] the four elements of confrontation: physical presence, oath, cross-examination, and observations of demeanor at trial." Such findings must have the same level of specificity as that required with respect to a trial courtís decision to close a courtroom. In other words, the findings "ímust be specific enough that a reviewing court can determine whether the Öorder was properly entered.í"

David M .Rothstein, deputy chief appellate defender of Concord for the defendant.

Orville B. Fitch, II, attorney general (Thomas E. Bocian, assistant attorney general), for the State.

Shenanne R. Tucker is an attorney with Bouchard Kleinman & Wright in Hampton. She has been a NH Bar member since 2002.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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