Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2018-0336

September 22, 2021

Affirmed

 

  • Whether the defendant’s convictions on one count of financial exploitation of an elderly person and two counts of theft by unauthorized taking were based on sufficient evidence.

 

Following a bench trial, the defendant was convicted of one count of financial exploitation of an elderly person and two counts of theft by unauthorized taking. The defendant challenged the sufficiency of evidence on all three of her convictions.

Relating to the financial exploitation of an elderly person conviction, the defendant argued that the State was required to prove she acted in a fiduciary capacity or exercised a fiduciary power after January 1, 2015, pursuant to RSA 361:9. The Court disagreed that the State had to prove that the defendant acted in a fiduciary capacity or exercised fiduciary power after January 1, 2015. Rather, in this instance, the Court concluded that the State was required to prove that the defendant acted in breach of a fiduciary obligation recognized by law and that the defendant’s actions were not authorized by the instrument establishing the fiduciary obligation. The Court held that evidence showing the defendant used the victim’s funds for her own benefit was contrary to a fiduciary obligation, and that nothing precluded the defendant from raising the victim’s authorization as a defense. The defendant also raised a double jeopardy argument in relation to the theft by unauthorized taking charges, which the Court rejected highlighting the charges’ different elements.

Relating to the theft by unauthorized taking convictions, the defendant argued the State was required to prove that she knew her actions were unauthorized, and that the evidence was insufficient to exclude the possibility that her son deceived her into believing that the victim authorized her to transfer money between accounts to spend on personal purchases. The Court held that the defendant’s alternative explanation was not sufficiently reasonable to prevent the trier of fact from finding that the evidence, and inferences drawn therefrom, failed to support a conclusion that the defendant did not know her actions were unauthorized.

Gordon J. MacDonald, attorney general (Brandon H. Garod, senior assistant attorney general, on the brief and orally) for the State. Thomas Barnard, senior assistant appellate defender, Concord, on the brief and orally for the defendant.