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Bar News - May 17, 2017

Supreme Court At-a-Glance


April 2017

Criminal Law

State v. Jason Czekalski
No. 2014-0299
April 11, 2017

  • Whether the trial court erred by denying defendant’s motion to suppress evidence obtained from a recorded telephone call between the defendant and the victim
  • Whether the trial court erred by denying defendant’s motion to continue the trial due to disruption of trial preparation as a result of the state’s last-minute transfer of defendant from the county jail to the state prison
  • Whether the trial court erred by refusing to dismiss two indictments against defendant under the ex post facto clauses of the state and federal constitutions where statutory language describing the crime had changed after the offense was committed
  • Whether the trial court erred by allowing a juror to be seated who had not completed the juror questionnaire

Defendant Jason Czekalski was convicted by a jury on two counts of aggravated felonious sexual assault (AFSA) and one count of pattern AFSA.

Convictions were supported in part by a recorded telephone call between defendant and the adult victim, in which the defendant acknowledged having admitted to the sexual assault and apologized for his actions. After his arrest, the defendant admitted the sexual assault to police. Defendant sought to have the recorded call excluded from evidence, claiming the recording was not “done in such a way as to protect [it] from editing or alterations,” pursuant to RSA 570-A:9, VII(a). The NH Supreme Court agreed with the trial judge that RSA 570-A:9, VII (a) did not apply to the recording and held that the requirement in question applied only to court ordered recordings under 570-A:9, not to police intercepted communications without a court order under RSA 570-A:2, II(d).

The Court also agreed with the trial court’s decision not to continue the trial based on defendant’s claim that his transfer from the Cheshire County House of Corrections in Keene to the New Hampshire State Prison in Concord deprived him of papers, pens, legal files and access to counsel. Key to the trial court’s decision was defense counsel’s representation that he was ready to proceed to trial. Additionally, the trial court told the defendant and his counsel that it would accommodate their communications as reasonably possible and invited defendant and his counsel to ask for any additional time needed during the conduct of the trial. Based on these concessions, the Court found that the trial court did not abuse its discretion in denying a further continuance of the trial.

The Court found no issue with the change of statutory language between the time of the alleged conduct and the time of trial. At the time of the alleged conduct, RSA 632-A:2, II declared a person guilty of AFSA without penetration when he “intentionally touches the genitalia of a person under the age of 13.” At the time of the indictment, RSA 632-A:2, II had been amended to declare a person guilty of AFSA without penetration when he “intentionally touches whether directly, through clothing, or otherwise the genitalia of a person under the age of 13.”

The defendant claimed his indictment for touching the victim through her clothing exposed him to liability that was not part of the statute at the time of the incident. The Court explained, however, that even though the express “whether directly, through clothing, or otherwise” language was later added to the statute, the interpretation of the prior statute, at the time of the incident, extended to such conduct. In essence, the amendment merely codified the Court’s interpretation of the prior statute; it did not extend the statute ex post facto to prior non-criminal conduct.

Finally, the Court found no plain error in the trial court’s seating of a juror who allegedly failed to complete the juror questionnaire. First, the defendant identified no particular error that occurred as a result of the seating of the juror. Second, there was no evidence on the record that the juror at issue had in fact failed to complete the questionnaire.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the state. Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

State v. Max Wilson
No. 2015-0404
April 25, 2017
Affirmed in part, reversed in part, remanded

  • Whether the trial court erred by denying defendant’s motion to dismiss for insufficiency of evidence
  • Whether the trial court erred by denying defendant’s motion to dismiss on the grounds that RSA 632-A:10, I is void for vagueness either facially or as applied
  • Whether the trial court erred by entering multiple convictions or imposing multiple punishments

Defendant Max Wilson was previously convicted of sexual assault and had registered as a sex offender at least seven times between Oct. 4, 2012, and Dec. 27, 2013. The defendant’s prior conviction was a qualifying conviction under RSA 632-A:10, I, and at each registration, the defendant acknowledged that he could not “undertake employment or volunteer service involving the care, instruction or guidance of minor children.”

Around 2014, the defendant – who was a Bible study leader and who “had mentioned that he had counseled boys in the past from church activities” – was asked to provide guidance and mentoring to a troubled 14-year-old boy, who was friends with a child in the home where the defendant was living. The defendant talked on the phone with the boy, took him on outings and worked with the boy on models in the boy’s room.

After the boy’s mother became uneasy about the defendant’s relationship with her son, a family member discovered defendant’s registration as a sex offender. The relationship was terminated, and the defendant was indicted on four counts of violating RSA 632-A:10, I, based on his “volunteer service involving the care, instruction or guidance of minor children.”

A jury convicted the defendant on all four counts. He received a sentence of 7-1/2 to 15 years imprisonment on the first conviction, and terms of imprisonment on the other three convictions to run concurrent with the first. He additionally pleaded guilty to charges of having sexually assaulted the boy during the same period.

The NH Supreme Court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss for lack of sufficient evidence, specifically, that there was no evidence that defendant’s conduct was undertaken as a result of volunteering “through an organization.” The Court reasoned that the statute did not expressly limit the prohibited volunteer service to such activities rendered solely through an organization, even though all of the examples provided in the statute seemed to be incidents of organizational volunteerism.

Similarly, the Court rejected defendant’s argument that the statute was void for vagueness in the manner in which “volunteer service” was described, leaving it open to multiple interpretations. The Court held that people of ordinary intelligence had a reasonable opportunity to understand what conduct was prohibited, and that the defendant himself reasonably understood that his conduct in helping the victim with studies, counseling and other teachings fell clearly within the statute’s prohibitions “involving… instruction or guidance of minor children.”

The Court did, however, agree with defendant’s argument about multiple convictions under the statute. Defendant argued that the statute prohibited the “undertak[ing] [of] employment or volunteer service,” not the individual actions that fell under the umbrella of such employment or service. The Court looked to the stated statutory purpose – thwarting the attempts of “those who seek to exploit and abuse children... to create opportunities for themselves to do so” – to hold that it is the act of setting up the employment or volunteer relationship, not the subsequent individual actions undertaken consistent with the employment, that creates the unwanted opportunity.

Thus, the defendant could have only undertaken the one volunteer service role, even though he had performed several individual actions (helping with studies, providing guidance, teaching about models and woodworking) within that role. The record, however, was unclear as to the nature of the four indictments for the violation of the statute and they are assumed to have been duplicative. The matter was reversed and remanded for vacation of the three concurrent sentences.

Joseph A. Foster, attorney general (Sean P. Gill, attorney, on the brief and orally), for the State. Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

Zoning and Planning

Dartmouth Corporation of Alpha Delta v. Town of Hanover
No. 2016-0304
April 11, 2017

  • Whether the trial court erred in denying prior-existing, non-conforming use status to the dwelling owned by a derecognized fraternity in upholding the town’s order that the fraternity cease and desist use of the dwelling as a dwelling for more than three unrelated members

Plaintiff Alpha Delta had been a fraternity for students at Dartmouth College since the 1840s and had used its most-recent property continuously for the housing of 18-22 undergraduate students since about 1920. In 1931, the Town of Hanover enacted its first zoning ordinance, which put the house in the “Educational District” in which an “[e]ducational use, or dormitory… incidental to and controlled by an educational institution” was permitted as of right.

In 2015, Dartmouth College revoked recognition of the fraternity as a student organization. As a result, the town notified Alpha Delta that its use of the house as a dorm facility was no longer recognized under the zoning bylaws. The fraternity appealed the decision to the ZBA, which upheld the determination, finding that Alpha Delta had never operated the property other than as an affiliated entity of the college.

As such, the fraternity’s use had always been consistent with zoning from its inception in 1931, Plaintiff was therefore never a prior existing non-conforming use, and Alpha Delta was not entitled to grandfather protection. As a result, the zoning laws limited occupancy of the house to no more than three unrelated adults.

The Court agreed in upholding the ZBA’s decision: “A non-confirming use is a lawful use existing since prior to the adoption of a zoning ordinance prohibiting such use, and that does not conform to the requirements of the ordinance.” Citing Town of Salem v. Wickson (2001). Here, the plaintiff’s use was legal at the time zoning was enacted and legal under the enacted bylaw, so grandfathering would not have been implicated.

Cole Associates Civil Law, of Lebanon (Carolyn K. Cole on the brief and orally), for the plaintiff. Mitchell Municipal Group, of Laconia (Laura Spector-Morgan on the brief and orally), for the defendant.

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