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Bar News - December 13, 2013

NH Supreme Court At-a-Glance: November 2013


Employment Law

Lawrence Leeds v. BAE Systems
No. 2012-599
Nov. 5, 2013
  • Whether the trial court erred in granting the defendant’s motion for summary judgment on the basis that the trial court should have allowed a jury to determine whether the plaintiff’s conduct satisfied the “public policy” element of an at-will employee wrongful discharge claim
The plaintiff, Lawrence Leeds, an at-will employee of the defendant, BAE Systems, was discharged from his employment following conduct the defendant deemed to be in violation of its employee code of conduct.

After an initial warning relating to verbally abusive behavior toward another employee, which the plaintiff disputed, the plaintiff was subsequently involved in an altercation with a third-party in the defendant’s parking lot. The altercation began during the plaintiff’s commute when a disgruntled motorist followed the plaintiff to his place of employment to confront him. During a confrontation in the parking lot, the plaintiff swatted the motorist’s cell phone out of her hand, purportedly under the mistaken impression that the phone could have been a weapon. Thereafter, a verbal altercation persisted. The plaintiff yelled obscenities at the motorist. After an internal investigation of the parking lot incident, the defendant discharged the plaintiff’s employment.

The plaintiff thereafter brought an action against the defendant for wrongful discharge. The defendant’s motion for summary judgment was granted by the trial court. On appeal, the plaintiff claimed that the trial court should have allowed a jury to determine whether the conduct resulting in his discharge constituted an “act that public policy would encourage,” which is considered one of the necessary elements of a wrongful discharge cause of action for an at-will employee.

In affirming the lower court’s decision, the Court held that the plaintiff had failed to “articulate a public policy that would encourage the conduct which led to his discharge.” The Court noted that the plaintiff’s claims of self-defense were immaterial to its conclusion and that it did not need to render a decision on whether self-defense could form the basis of an act of public policy because the remainder of the plaintiff’s conduct, for which the defendant based its decision to discharge him, did not constitute self-defense.

Jared O’Connor, Gawryl MacAllister & O’Connor, Nashua, for the plaintiff. Daniel E. Will, Laurel McClead, Devine, Millimet & Branch, Manchester, for the defendant.

Family Law – Custody

In re Deven O.
No. 2013-368
Nov. 7, 2013
  • Whether the trial court erred in terminating a father’s parental rights on the basis of abandonment and failure of support
A minor child’s parents separated in 2007, and the father’s contact with the child was limited following the separation. The father was subsequently incarcerated for armed robbery from December 2007 to June 2010. During that time, the child was brought by the mother to visit him on only a few occasions. Following the father’s release from prison, the mother attempted to limit contact between the father and the child, despite the father’s alleged repeated attempts to arrange visitation.

After these attempts, the father filed a parenting petition with the trial court in December 2011. The mother countered the petition by seeking to terminate the father’s parenting rights on the basis of abandonment and failure of support. The trial court terminated the father’s parenting rights on the basis of abandonment, failure of support, and that termination was in the child’s best interests.

Apparently persuasive to the trial court’s findings was the fact that the mother was involved in a new relationship with a person who had established a positive connection with the child. The father sought reconsideration of the order on the basis that he had no existing legal obligation of support to the child. The trial court denied the request for reconsideration without addressing the issue of obligation of support, as its termination order was based on additional legal grounds beyond just failure of support.

On appeal, the father argued that termination of his parenting rights had not been supported on either ground. RSA 170-C:5 provides that a parent’s intent to abandon may be assumed in the event that a six month period of time has occurred with no contact or support of the child.

Notwithstanding the father’s testimony that he had repeatedly attempted to contact the child, the Court deferred to the trial court’s judgment in its assessment that the presumption of abandonment had been triggered and that a six-month period had expired in which no appreciable contact had occurred.

Although acknowledging that the presumption had been triggered, the Court then analyzed whether the facts and circumstances of the case had rebutted the presumption. In doing so, the Court found that the evidence did not support a finding that the father had intended to abandon the child. In making its ruling, the Court cited the father’s previous efforts to obtain visitation and to make contact with the child through the mother, as well as the mother’s father. Additionally, the Court cited previous rulings in which it was established that parental rights are fundamental and inherent rights and, therefore, the heavy burden for terminating such rights had not been met by the mother.

In addressing the issue of failure of support, the Court ruled that the mother had not met the requisite burden of proving that the father was “financially able” to support the child, as is required by RSA 170-C:5. In reaching its finding regarding support, the Court noted the father’s limited employment history and criminal record.

Accordingly, the trial court’s decision was reversed.

Edward C. Mosca, Mosca Law Office, for the petitioner. John J. A. Schrepfer, Law Office of John J. A. Schrepfer, for the respondent.

Torts – Municipal Immunity

Steven P. Dichiara, Jr. v. Sanborn Regional School District
No. 2012-576
Nov. 8, 2013
  • Whether the trial court erred in ruling that governmental immunity prevented the prosecution of the plaintiff’s tort claim based on its determination that RSA 507-B:2 did not provide a blanket exception for bodily injury resulting from negligence of a governmental unit
Plaintiff Steven P. Dichiara was injured while participating in tryouts for Sanborn Regional High School’s basketball team. He brought an action against the team’s basketball coach, individually, as well as the school district, under the theory of respondent superior. The trial court granted the defendants’ motion for summary judgment on the basis that the defendants were immune from liability in the asserted action, pursuant to the provisions of RSA 507-B.

The plaintiff appealed the ruling, arguing that the trial court misinterpreted the language of RSA 507-B:2, which provides an exception to governmental immunity in certain cases. RSA 507-B:2 provides that “[a] governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.” The plaintiff asserted that the comma in the aforementioned language of the statute preceding the word “arising” should be interpreted in such a way that the language following the comma does not modify the preceding language, thereby effectively creating a blanket negligence exception for governmental units. Additionally, the plaintiff argued that any other interpretation of the statute would lead to an absurd result.

In affirming the trial court’s decision, the Court, citing its previous interpretations of RSA 507-B:2, as well as the Legislature’s purpose for the enactment of the statute, interpreted the statute to allow an exception to governmental immunity only in cases where a nexus existed between the claim and the governmental unit’s ownership, occupation, maintenance or operation of motor vehicles or premises. The Court also disagreed with the plaintiff’s assertion that the Court’s interpretation of RSA 507-B:2 did not provide any exception to personal injury actions, stating that there are hypothetical factual circumstances in which a plaintiff could recover for a personal injury resulting from the negligent operation motor vehicle by a governmental unit’s employee.

Christopher T. Hilson, Donahue, Tucker & Ciandella, Exeter, for the plaintiff. Samantha D. Elliot and Charles P. Bauer, Gallagher, Callahan & Gartrell, for the defendant.

Criminal Law

State of New Hampshire v. Guilbert P. Germain
No. 2012-145
Nov. 5, 2013
  • Whether the trial court erred in denying the defendant’s motion to dismiss a charge of criminal threatening with a deadly weapon on the basis that (1) the evidence was insufficient to prove that he had used a deadly weapon and (2) that based on the circumstantial nature of the evidence, the jury had not foreclosed all rational conclusions of innocence
The state brought criminal charges of criminal threatening with a deadly weapon against the defendant, Guilbert P. Germain, relating to a 2011 incident. The defendant had entered the home of an acquaintance seeking to collect a purported debt. Upon determining that the occupants were attempting to deceive him, the defendant pulled a gun from his waistband and pointed it at the victim’s head. The defendant thereafter struck the victim, with either the gun or his hand, causing the victim to lose consciousness.

After leaving the premises, the defendant was apprehended the following day and was in possession of a silver and black .40 caliber Ruger SR40 semiautomatic pistol in his waistband. At trial, the victim testified that he was not certain whether the gun produced by the defendant on the day of the incident was a firearm or a pellet gun. The testimony of two other witnesses in the house reflected that the gun they saw had a resemblance to the gun found on the defendant’s person by the police.

At the conclusion of the state’s case, the defendant moved to dismiss the case on the basis that the evidence presented was insufficient to prove he had used a firearm rather than a pellet gun. The trial court denied his motion to dismiss, and the jury convicted him.

On appeal, the defendant argued that his conviction was primarily based on circumstantial evidence and that the jury had not foreclosed all other rational conclusions of innocence. The court progressed to its ruling under the assumption, but not decision, that the eyewitness testimony relating to the description of the gun constituted circumstantial evidence rather than direct evidence. In doing so, the court cited its rule that all rational conclusions other than guilt must be foreclosed in cases relying on circumstantial evidence. The parties were in conflict on the appropriateness of the application of that standard for a jury assessing circumstantial evidence.

The State also contended that the rule did not apply to this case because at least one element of the alleged crime was support by direct evidence. Recognizing that the court’s rule on circumstantial evidence has caused confusion, the court took the opportunity to endorse model jury instructions relating to direct and circumstantial evidence and detailed its model instructions within its written opinion. The court also clarified its standard of review relating to the assessment of circumstantial evidence, stating, in part, that “[the proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded.”

After its analysis, the court determined that the defendant had not met his burden that no reasonable trier of fact, viewing the evidence in light most favorable to the state, could have found the defendant guilty of criminal threatening beyond a reasonable doubt. The court noted that the jury did not need to give credence to the defendant’s theory that the gun could have been a pellet gun because, given the eyewitness testimony and the presence of the firearm on the defendant the day after the incident, the jury could have found that the defendant’s theory was not reasonable.

Michael A. Delaney, Susan P. McGinnis, for the State. Thomas Barnard, Concord, for the defendant.

State of New Hampshire v. Karen Gagne
No. 2011-889
Nov. 5, 2013
Affirmed in part, Reversed in part
  • Whether the trial court erred in denying the defendant’s motion to dismiss criminal charges of unauthorized taking and misapplication of property
Defendant Karen Gagne had established a personal relationship with a woman, the victim, whereby the victim entrusted the defendant to handle some of her financial affairs. From 2006 to 2009, the defendant had taken over for the victim’s accountant to routinely handle paying the victim’s “larger bills.” In 2007, the victim and defendant established a joint bank account and initially deposited $60,000, and later an additional $350,000 of the victim’s funds into the joint account.

The defendant used more than $180,000 of the funds in the joint bank account to pay her personal creditors. The defendant also took out a loan secured by the victim’s certificate of deposit account. The loan was established in the victim’s presence and, after the establishment of the loan, the victim directed that the defendant’s loan be paid off from funds in the certificate of deposit.

Later that year, the victim began falling behind in her rental payments to her retirement housing complex. The business manager for the retirement home, knowing that the defendant had been handling the victim’s affairs, maintained contact with the defendant regarding the status of the delinquent payments. After unsuccessfully working with the defendant to bring the victim’s account current, retirement home personnel contacted the victim directly.

Determining that the victim was upset and unsure how her account could be so delinquent, the retirement home contact the Attorney General’s Office, and charges of unauthorized taking and theft by misapplication of property were brought against the defendant. The defendant’s motion to dismiss the charges on the basis of insufficient evidence to convict was denied, and the defendant appealed following her convictions.

In addressing the charge of theft by unauthorized taking relating to the allegation that the defendant had taken $26,750 from the victim without authorization, the court reversed the conviction, ruling that a rational trier of fact could not have found beyond a reasonable doubt that the victim did not authorize the withdrawals. The victim had signed each check at issue, and the state had not presented any evidence that the checks were blank when the victim signed them. Further, the victim testified that she did not sign paperwork she didn’t understand.

The court also reversed the charges relating to the alleged unauthorized taking of the certificate of deposit funds to pay off the defendant’s loan, on the basis that the victim was present at the loan closing where she had been explained the terms of the loan in detail by the bank’s assistance branch manager and also that the victim personally went to the bank to request that the certificate of deposit, which had been used as collateral, be used to satisfy the balance of the loan.

The defendant’s appeal of other convictions for unauthorized taking were based on the proposition that a joint bank account could not be deemed “property of another” within the meaning of RSA 637:2, IV. The court dismissed the defendant’s arguments, ruling that a joint account could be deemed “property of another” within the meaning of the statute.

Persuasive to the court’s ruling was the language of RSA 637:2, IV which defines “property of another,” in relevant part, as “property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property.” The court further cited the legislative history of the statute, as well as the Model Penal Code, in reaching its conclusion. The court affirmed the convictions and ruled that the evidence was sufficient to prove that the victim did not authorize the defendant to withdraw from the joint bank account for her own personal use, and the defendant was not privileged to infringe upon the victim’s interest in the account.

The defendant argued that her convictions on charges of misapplication of property should be reversed because she had no legal obligation to pay the victim’s bills and that the funds in the victim’s accounts had not been designated specifically for the payment of her retirement home rent. In affirming the convictions, the court sided with the state’s argument that, although no written agreement existed, the facts and circumstances of the case demonstrate that the defendant had a legal obligation to act in the victim’s best interests and use her funds to pay her rent to the retirement housing complex.

In addressing the designation of funds argument, the court found that the victim had sold her Florida real estate with the intent of designating the proceeds for the payment of arrearage on her rent and that the defendant had failed to fully apply the proceeds to such arrearage. Accordingly, as the statute required the value of the misapplied property to exceed $1,000, and the proceeds from the sale of the Florida property exceeded that amount, there existed sufficient evidence for the jury to convict.

Michael A. Delaney, Jeffrey S. Cahill, for the state. Brianna M. Sinon, Concord, for the defendant.

State of New Hampshire v. Michael G. Cheney
No. 2011-465
Nov. 7, 2013
  • Whether the trial court erred in denying the defendant’s motion to dismiss on the basis that the indictments failed to allege an essential element of the crime and that under the facts of the case, the reckless driving statute, under RSA 265:79, precluded prosecution of reckless conduct under RSA 631:3
Defendant Michael G. Cheney was convicted of aggravated felonious sexual assault, kidnapping, theft by unauthorized taking, aggravated driving while intoxicated, disobeying an officer, and reckless conduct relating to a December 2008 incident during which the defendant sexually assaulted, tied up, and stole the vehicle of a female victim. Prior to his convictions, the defendant sought dismissal of the sexual assault indictments, on the basis that the indictments did not contain an essential element of the crime charged.

In addressing the defendant’s argument on appeal, the court detailed the constitutional requirements that an indictment must, with sufficient specificity, contain all essential elements of a crime charged to properly allow the defendant to identify and prepare. The defendant argued that the indictment failed to include the specific language of RSA 632-A:2: “threatening to use physical violence or superior physical strength on the victim.” Instead, the indictment stated that the defendant knowingly engaged in sexual penetration with the victim “by coercing her to submit to [a particular act of penetration] by showing her a knife, grabbing her, and/or threatening to slash her face, cut her, or drag her down the stairs if she refused, and [the victim] believed that [the defendant] had the present ability to execute one or more of those threats.”

The defendant contends that because the indictment alleged three separate acts constituting threats of physical violence or superior physical strength, separated by commas and the term “and/or,” then each act must independently form the basis of satisfying the element of the crime. Specifically, he argued that the act of grabbing, by itself, could not be deemed a threat of physical violence or superior physical strength.

The court invalidated the defendant’s argument, ruling that, under the statute, only the threat of physical violence or superior physical strength was required, and that the act of grabbing alone could satisfy the element of the crime. Accordingly, the court ruled that the indictments relating to sexual assault charges were not insufficient.

The court next addressed the defendant’s argument that the trial court erred in denying his motion to dismiss the three counts of reckless conduct pursuant to RSA 631:3. The defendant argued that the reckless driving statute, RSA 265:79, prohibited prosecution under RSA 631:3 “for reckless driving upon a way.”

The defendant argued that the statutes contain the same elements, and because RSA 259:79 applied to a more narrow set of circumstances, it encapsulated the elements of RSA 631:3, thereby prohibiting prosecution of RSA 631:3 in cases involving reckless driving upon a way.

In affirming the trial court’s decision, the court ruled that the statutes each required proof of conduct that the other statute did not. In its analysis, the court described the differences between the two statutes, including that the reckless driving statute did not require the use of a deadly weapon, whereas the reckless conduct statute does. The court also concluded the defendant’s argument that the Legislature intended RSA 265:79 to “supersede” RSA 631:3 was without merit.

Michael A. Delaney, Susan P. McGinnis, for the State. Christopher M. Johnson, Concord, for the defendant.

State of New Hampshire v. Robert Dupont
No. 2012-158
Nov. 21, 2013
  • Whether the trial court erred in failing to provide jury instructions specifically describing the state’s burden to disprove self-defense as an “element” of the charged criminal offenses, and whether the manner in which the court provided the instructions misled the jury to believe that a conviction verdict could be reached without consideration of self-defense
The State of New Hampshire brought criminal charges of knowing and reckless second-degree murder, as well as three lesser offenses, against the defendant, Robert Dupont, in connection with the October 2008 stabbing death of his wife.

The defendant contended that the stab wounds causing his wife’s death resulted from a domestic physical altercation in which she was the aggressor. At trial, the defendant proposed that the court instruct the jury that the state’s burden of disproving self-defense was an element of each offense charged against the defendant.

The trial court declined to adopt the defendant’s proposed instructions, electing instead to instruct the jury on the state’s burden to disprove self-defense at the conclusion of its instructions of the elements of all individual offenses. Additionally, the court had adopted an “acquittal first” pattern in instructing the jury, essentially prefacing its jury instructions by stating that the jury must find the defendant not guilty of a greater offense before considering a verdict on lesser offenses.

In its “acquittal first” pattern of instructions, the trial court did not mention self-defense. Following a conviction verdict, the defendant appealed on the basis that the “acquittal first” manner in which the instructions were provided misled the jury into thinking that self-defense was not a necessary consideration in arriving at a conviction verdict.

In affirming the lower court’s decision, the NH Supreme Court, citing previous similar case law, held that the defendant was not unfairly prejudiced by the trial court’s jury instructions because the instructions, taken as a whole, clearly explained that the state had the burden of disproving self-defense.

The court ruled that the term “element” did not carry such special meaning in an average juror’s mind to render it essential within the description of each offense. Additionally, in determining that the jury could not have reasonably been misled by the “acquittal first” pattern, the court referenced the fact that the trial court clarified to the jury that if the jury had a reasonable doubt as to whether the defendant had acted in self-defense, he must be found not guilty.

Michael A. Delaney, for the State. Carl D. Olson, Londonderry, for the defendant.

State of New Hampshire v. David J. Fischer
No. 2011-451
Nov. 26, 2013
  • Whether the trial court erred in six different regards relating to the defendant’s convictions of second-degree assault resulting in extended terms of imprisonment
Defendant David J. Fischer was indicted on three counts of second-degree assault stemming from a domestic incident in which the defendant allegedly assaulted his wife by stepping on her head, dragging her by her hair and sweatshirt, and fracturing her finger by slamming a door on it.

The alleged altercation started in the couple’s living room and moved to the kitchen. The slamming of the fingers in the door occurred the following morning.

After the defendant moved to dismiss the case based on insufficient evidence, the jury convicted him on two counts and acquitted him on the assault charge relating to the broken finger.

The defendant argued that the trial court erred in admitting witness testimony under the “excited utterance” hearsay exception. The court ruled that the trial court did err in allowing the testimony. It should have been excluded because the trial court had previously excluded witness testimony relating to a telephone call preceding the events of the allowed “excited utterance,” the court found. The court did not, however, reverse the conviction based on the trial court’s error, as the record established that overwhelming evidence of guilt existed, rendering the erroneous testimony inconsequential.

The court next dismissed the defendant’s argument that sufficient evidence did not exist to prove that he had shown extreme indifference to the value of human life. The court ruled that a rational jury could have found the defendant guilty beyond a reasonable doubt.

The defendant next argued that the trial court had erroneously failed to sufficiently instruct the jury about the element of “extreme indifference to the value of human life.” The court found no error in the trial court’s instructions because “extreme indifference to the value of human life” was defined as demonstrating a “blatant disregard for the risk to human life.” The court also stated that the trial court was under no requirement to use the language the defendant requested.

Citing federal law but relaying on the State Constitution, the court also dismissed the defendant’s argument that he had been subject to double jeopardy because the two counts of second-degree assault on which he was convicted related to the same bodily injury. Specifically, the court stated that the charges related to two separate incidents of assault, one in the kitchen and one in the living room, and the fact that the separate assaults resulted in the same injury is not necessarily material.

The court next address the defendant’s argument that his extended prison sentence, based upon RSA 651:6, III(a), was improperly imposed because the statute is unconstitutionally vague. Citing the Court’s findings in State v. Matton, the court noted that to impose an extended sentence, a court must find that the defendant was previously imprisoned twice, resulting in two sentences in excess of one year.

The defendant argued that the statute requires either “two prior non-continuous periods of imprisonment” or an “extension of one continuous period of incarceration” that “arises out of an offense committed after the defendant’s first sentencing.” The court ruled that, although the defendant’s separate prior convictions may have run concurrently with each other, the wording of the statute did not support the argument.

The defendant also argued that the trial court had committed plain error by not instructing the jury that it must unanimously agree on the specific bodily injury caused by his conduct. The court concluded that the trial court did err, as the jury merely needed to find that the defendant reckless caused “bodily injury,” without regard to the specific bodily injury that was caused.

Michael A. Delaney, Susan P. McGinnis, for the State. Christopher M. Johnson, Concord, for the defendant.

Editor’s Note: Read an analysis by defense attorney David Ruoff of the 263-page Addison decision issued by the NH Supreme Court in November

David. E. Haughton

Attorney David. E. Haughton is an associated attorney at DeBruyckere Law Offices of Londonderry, NH. He is licensed to practice law in Massachusetts and New Hampshire.

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