THE STATE OF NEW HAMPSHIRE SUPREME COURT

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. James Rand, the court on August 13, 2014, issued the following order: The defendant, James Rand, appeals his convictions on five counts of receiving stolen property, see RSA 637:7 (2007), arguing that the trial court erred in: (1) joining charges in two separately docketed cases for one trial; and (2) denying his motion to dismiss the charges for insufficiency of the evidence. We affirm. The record shows that on the afternoon of August 8, 2011, a resident of an apartment complex in Concord arrived home from work to find that his apartment had been burglarized. He discovered that a credit card had been stolen, among other things. The next day, he contacted his credit card company and learned that the stolen credit card had been used on the day of the burglary at a gas station and convenience store not far from the apartment complex. The resident reported this information to the Concord police, who contacted the store manager. The manager isolated the video surveillance footage relating to the transaction, which had been recorded with the store s security cameras. Photographs derived from the video footage showed a man at a gas pump standing next to a silver Saturn sedan with a sunroof and a rear spoiler, and then standing at the convenience store counter. A police detective searched the parking lot of the apartment complex and found a matching silver Saturn vehicle in the parking lot. Another police detective, who knew the defendant, identified him as the man in the photographs. Motor vehicle records showed that the vehicle was registered to the defendant s wife, who lived with the defendant and their daughter in an apartment directly above the apartment that had been burglarized. The police then obtained search warrants for the defendant s apartment and his wife s vehicle. The Saturn contained documents with the names of both the defendant and his wife. In the trunk of the vehicle, the police found a duffle bag containing two checkbooks belonging to people who testified that they had been lost or stolen. The bag also contained a notary public stamp that had been stolen in 2009 and a passport bearing the name of someone who had reported the theft of a violin. When the police searched the defendant s apartment, they found the stolen violin. In case number CR (the credit card charge), the defendant was charged with receiving the stolen credit card. In case number

2 CR (the 759 charges), the defendant was charged with receiving the stolen checkbooks, the stolen notary public stamp, and the stolen violin. The defendant first argues that the trial court erred in joining for trial the credit card charge with the 759 charges because the charges were not sufficiently related, and joinder was not in the best interests of justice. See Super. Ct. Crim. R. 97-A(I). Superior Court Rule 97-A governs the joinder of criminal offenses and distinguishes between charges that are related and unrelated. State v. Brown, 159 N.H. 544, 548 (2009). The record shows that the State filed a motion to consolidate the two cases, asserting that they were directly related. The trial court granted the motion pursuant to Superior Court Rule 97-A and denied the defendant s motion to reconsider. When a party moves to join related charges, the trial court is required to join them unless it determines that joinder is not in the best interest of justice. Id. (quotation omitted). We will uphold the trial court s decision to join multiple charges unless the decision constitutes an unsustainable exercise of discretion. Id. at 550. To show that the trial court s decision was unsustainable, the defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case. Id. they: Pursuant to Superior Court Rule 97-A, two or more offenses are related if (i) (ii) (iii) are alleged to have occurred during a single criminal episode; or constitute parts of a common scheme or plan; or are alleged to have occurred during separate criminal episodes, but nonetheless, are logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct. Super. Ct. Crim. R. 97-A(I)(A). [W]hether offenses that occur during separate criminal episodes are logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct is largely determined by the close relationship among the offenses with respect to both the underlying charged conduct and the evidence to be used to prove the charges. Brown, 159 N.H. at 551. In Brown, we adopted the following factors to determine whether charges arising from separate criminal episodes are related: (1) the temporal and spatial relationship among the underlying charged acts; (2) the commonality of the victim(s) and/or participant(s) for the charged offenses; 2

3 (3) the similarity in the defendant s mode of operation; (4) the duplication of law regarding the crimes charged; and (5) the duplication of witnesses, testimony and other evidence related to the offenses. See id. at We held that no single factor is dispositive on the question of relatedness. Id. at 552. Rather, the factors outlined above are intended to serve as guidelines that must be sensibly applied in accord with the purposes of joinder, id., which are to achieve efficiency and economy for both the government and the defendant, id. at 554. Because the trial court may be required to join related offenses under Superior Court Rule 97-A over the defendant s objection, unless joinder is not in the best interests of justice, we conclude[d] that a close relationship must exist among offenses alleged to have occurred during separate criminal episodes in order to consider them related. Id. at 553. The defendant argues that the first factor, the temporal and spatial relationship among the underlying charged acts, does not support joinder because the State charged the defendant with five counts of receiving stolen property on or about August 8, 2011, the date on which the credit card was stolen, and the evidence showed that the items relating to the 759 charges had been stolen years earlier, from various locations. The defendant also asserts that there was no evidence of a common plan or scheme connecting the thefts, and that one of the items, a checkbook, was reported lost, not stolen. Other facts, however, support a temporal and spatial relationship among the underlying charged acts. Most significantly, proof of the credit card theft involved evidence of the defendant s use of the stolen credit card to purchase gasoline for a vehicle registered in his wife s name, and three of the four stolen items relating to the 759 charges were found in the trunk of the same vehicle just days later, as a result of the police investigation into the credit card theft. The fourth item, a child s violin, was stolen from a person whose missing passport also was found in the trunk of the vehicle. The police found the violin in the apartment the defendant shared with his wife and daughter. The defendant also asserts that evidence of the burglary and theft of the credit card would have been inadmissible in a separate trial of the 759 charges, and that evidence of the theft of the items relating to the 759 charges would be inadmissible in a separate trial of the credit card charge. However, we believe that evidence relating to the credit card charge likely would have been admissible under New Hampshire Rule of Evidence 404(b) in a separate trial of the 759 charges as proof that the defendant knew that he was in possession of stolen property. See N.H. R. Ev. 404(b) (evidence of other crimes may be admissible as proof of knowledge). Moreover, in Brown, we expressly rejected 3

4 an interpretation of Rule 97-A(I)(A)(iii) that requires the State to affirmatively prove that the charges would be mutually admissible in hypothetical separate trials under Rule 404(b) in order to comprise related offenses. See id. at Other factors also support a finding of relatedness: the charges all involved the same offense, receiving stolen property in violation of RSA 637:7, and the testimony of at least one of the State s witnesses related to all charges. Based upon this record, we conclude that the credit card charge and the 759 charges are logically and factually connected in a manner that does not solely demonstrate that the defendant has a propensity to engage in criminal conduct. See id. at 551. The defendant further argues that even if the offenses are related for purposes of Superior Court Rule 97-A, joinder was not in the best interests of justice because it allowed the State to create an impression that he had a propensity to steal. As previously noted, when a party moves to join related offenses for trial, the trial court is required to join them unless it determines that joinder is not in the best interests of justice. Id. at 555; Super. Ct. Crim. R. 97-A(I)(B). Any potential prejudice is a factor for the trial court to consider under the best interests of justice prong of Rule 97-A(I)(B). Brown, 159 N.H. at 554. We review the trial court s decision as to whether joinder is in the best interests of justice under our unsustainable exercise of discretion standard. See id. at 555. We are not persuaded by the defendant s argument that joinder greatly enhanced the chance of conviction on the 759 charges, for which the evidence was circumstantial. As previously noted, we believe that evidence relating to the credit card charge, including photographs from the surveillance footage identifying the defendant, likely would have been admissible under Rule 404(b) in a separate trial of the 759 charges. Other evidence, including the registration of the vehicle in the defendant s wife s name, and the document bearing the defendant s name that was found in the vehicle, also demonstrated the defendant s connection to the vehicle. Based upon our review of the record, we conclude that the defendant has failed to establish that the trial court s decision to join the charges was clearly untenable or unreasonable to the prejudice of his case. See id. at 557. The defendant next argues that the evidence was legally insufficient to support the convictions. To prevail on such a claim, the defendant must establish that no rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Alwardt, 164 N.H. 52, 55 (2012). We do not examine each evidentiary item in isolation, but rather in the context of all the evidence presented. Id. When the evidence as to one or more elements of the charged offense is solely circumstantial, the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt. State v. Germain, 165 N.H. 350, 361 (2013). The proper analysis is not whether every possible conclusion consistent with innocence has been 4

5 excluded, but, rather, whether all such reasonable conclusions based upon the evidence have been excluded. Id. We first address the sufficiency of the evidence supporting the defendant s conviction for receiving the stolen credit card. The victim testified that he learned from his credit card company that the missing card had been used on the date of the theft to make a purchase at a local gas station and convenience store. The victim provided this information to a police detective, who contacted the store manager. The store manager isolated the video surveillance footage relating to the transaction, recorded with the store s security cameras. Photographs derived from the video recordings showed a man at a gas pump standing next to a silver Saturn sedan with a sunroof and a rear spoiler and then standing at the convenience store counter. The police detective showed the photographs to another detective, who identified the defendant as the man in the photographs. Shortly thereafter, the police found a matching silver Saturn sedan in the parking lot of the apartment complex where the defendant lived with his wife and daughter and determined that the vehicle was registered to the defendant s wife. Based upon this record, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the defendant guilty of receiving the stolen credit card beyond a reasonable doubt. See Alwardt, 164 N.H. at 55. We next address the sufficiency of the evidence supporting the defendant s convictions for receiving the four stolen items relating to the 759 charges. Three of the four items were found in a duffle bag in the Saturn s trunk. The fourth item, the violin, was found in the defendant s apartment. The violin had been stolen from a person whose passport was found in the Saturn s trunk. The defendant asserts that the evidence failed to exclude the rational conclusion that he did not know what was in the trunk or the duffle bag and that he did not act with a purpose to deprive the owners of the property. The evidence showed that shortly after the credit card theft, the police located the Saturn, which was registered to the defendant s wife, in the parking lot of their apartment complex. The evidence showed that the defendant used the stolen credit card to purchase gasoline for the vehicle, and surveillance photographs showed him either driving the vehicle or riding as a passenger in the vehicle after he purchased gasoline for the vehicle. The police found a document with the defendant s name on it in the passenger compartment of the vehicle. Based upon this record, we conclude that the jury reasonably could have concluded that the defendant had access to the trunk of his wife s vehicle, that he knew what was in the duffle bag, that he knew the violin was in his apartment, and that he knew that the items were stolen. Thus, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the defendant guilty of receiving the four stolen items beyond a reasonable doubt, see id., and that all reasonable 5

6 conclusions other than the defendant s guilt were excluded, see Germain, 165 N.H. at 362. HICKS, CONBOY and LYNN, JJ., concurred. Affirmed. Eileen Fox, Clerk 6