2003-622, STATE of NH v. VINCENT SCHONARTH

that he did not want to rent the property bu t wanted to sell it. When the about renting property that Emerson owned. Emerson advised the defendant victim, Denley Emerson, in 1996 when the defendant contacted him to inquire The reco rd supports the following facts. The defendant first met the

We affirm. directed verdict; and (3) allowing a trial deposition of the victim prior to trial. seventeen indictments for trial; (2) denying his motions to dismiss and for he conte nds that the Trial Court (T. Nadeau, J.) erred in: (1) consolidating the on seventeen counts of theft by deception. See RSA 637:4 (1996). On appeal, DALIANIS, J. The defendant, Vincent Schonarth, appeals his convictions

brief and orally, for the defendant. Christophe r M. Johnson, chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Karen E. Huntress, assistant attorney

No. 2003 - 622 Carroll

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

purposes of joinder. granted the motion, finding that the acts constituted a common plan for would be inadmissible if the charges were tried separately. The trial court distinct and that joinder would allow the S tate to introduce evidence that defendant objected, arguing that each of the allegations was separate and indictments, citing our decision in State v. Ramos, 149 N.H. 118 ( p. 2 2003). The In March 2003, the State moved to consolidate the seventeen

deception with a purpose to deprive him of the funds. exercised control over varying amounts of funds belonging to Emerson by pursuant to a scheme or course of conduct, the defendant obtained or by deception. Se e RSA 637:4. In the indictments, the State alleged that, In p. 2 2002, the State charged the defendant with seventeen counts of theft

corporation and for related purposes. The corporation did not exist. He then solicited and obtained funds from Emerson for investment in the formed a corporation with his wife to buy radio stations in the Lakes Region. financing his purchase of the property. He also told Emerson that he had In p. 2 2002, the defendant advised Emerson that Providian would not be

purchase of the property. The defendant also did not use the loan procee ds for purposes related to the proceeds of the mortgage, he neither sought a mortgage nor repaid the loans. Although the defendant told Emerson that he would repay him with the

Emerson’s property. related to enabling the defendant to secure the mortgage for the purchase of and business - related expenses. Each of these loans was in some way allegedly going to jail, to pay a bond premium and employment security, and for utility court costs and fines, for repair expenses to the house, to pay debts to avoid piece of property contiguous to the one he was to purchase from Emerson, for loan. He also requested loans for the purchase price and closing costs for a money to satisfy requirements allegedly imposed by Providian to obtain the status. In the following years, the defendant asked Emerson t o lend him represent to Emerson that he had filed an application and reported on its Despite not having a pending application, the defendant continued to

Providian. p. 2 2002, neither the defendant nor his w ife filed a mortgage application with Bank and that Providian would give him the mortgage. Between 1996 and advised Emerson that the mortgage company had been bought by Providian obtained a mortgage. When the purported loan did not close, the defendant November 12, 1996. In 1999, the defendant advised Emerson that he ha d for five years. They signed a contract for sale of the property for $77,000 on defendant said that he had no money, Emerson agreed to finance the property p. 3 3

favorable to the State, the jury could have found that he made false (1996). The defendant concedes that viewing the e vidence in the light most another by deception and with a purpose to deprive him thereof.” RSA 6 p. 3 37:4, I “A person commits theft if he obtains or exercises control over property of

isolation. Id. examine each evidentiary item in the con text of all the evidence, not in State v. Flynn, 151 N.H. p. 3 378, 382 (2004). In reviewing the evidence, we favorable to the State, could have found guilt beyond a reasonable doubt. proving tha t no rational trier of fact, viewing the evidence in the light most challenging the sufficiency of the evidence, the defendant bears the burden of evidence that he committed theft by deception. To prevail in an appeal The defendant next argues that the State failed to present sufficient

II. Sufficiency of Evidence of Theft by Deception

Accordingly, we find no error in the trial court’s ruling. connected to the defendant’s alleged desire to repay his debt to the victim. to defraud the victim of his property through increasingly grandiose schemes all involved the same elderly victim; all were based upon the defendant’s ef forts consummation. See State v. Michaud, 150 N.H. p. 3 359, 361 (2003). The charges demonstrated a prior design that included the charged acts as part of its the charges. We disagree. Viewed objecti vely, the defendant’s actions The defendant argues that under McIntyre, the trial court erred in joining

404(b) for purposes of the common plan relatedness test for joinder. 67, we adopte d the definition of “plan” under New Hampshire Rule of Evidence criminal episode or a common plan. Id. In State v. McIntyre, 151 N.H. at 466 - Related offenses are those that are based upon the same conduct, a single Ramos, 149 N.H. at 128. Unrelated offenses are those that are not related. Id. A defendant has an absolute right to severance of unrelated off enses.

prejudice of his case. Id. demonstrate that the ruling was clearly untenable or unreasonable to the that a trial court’s decision was unsustainable, the defendant must consolidate charges. State v. McIntyre, 151 N.H. 465, 466 (2004). To establish exercise of discretion, we will affirm a trial court’s decision to sever or consolidating the seventeen charges for trial. Absent an unsustainable On appeal, the defe ndant first argues that the trial court erred in

1. Consolidation of Charges p. 4 4

shown. (b) To insure a fair trial, avoid surprise or for other good cause reluctance to cooperate; or available for trial due to illness, absence from the jurisd iction or (a) To preserve the testimony of any witness who is unlikely to be

deposition is necessary: defendant, when the court finds by a preponderance of the evidence that the party in a criminal case to take the deposition of a ny witness, other than the RSA 517:13, II (1997) provides that the trial court may permit either

Sargent, 1 p. 4 48 N.H. 571, 573 (2002). ruling under an unsustainable exercise of discretion standard. State v. State to take the trial deposition of the victim. We r eview the trial court’s Finally, the defendant argues that the trial court erred in permitting the

III. Trial Deposition of Victim

obtained substantial monies from the victim by deception. conclusion that the evidence supported the jury’ s finding that the defendant least in part to improvements made by the defendant does not alter our the victim retained ownership in land that may have increased in value due at mortgage with the P rovidian Bank,” the victim replied, “Of course not.” That defendant] all this money . . . if you knew that he had never applied for a inaccurate. In response to the State’s question, “Would you have loaned [the would not have entered notes in his checkbook that he believed to be he said,” that he “believed him very thoroughly for several years,” and that he The victim testified that he provided money to the defendant “based upon what testimony in whole or in part. See State v. Giles, 1 p. 4 40 N.H. 714, 718 (1996). taken out of context. Moreover, the jury was free to accept or reject his We note that much of the victim’s testimony cited by the defendant is

evidence and his legal conclusion. statements.” We disagree with both the defendant’s interpretation of the of the land’s value, as on [the defendant’s] increasingly implausible false that the victim “relied at least as much on his knowledge of his legal rights and of the land had increased due to improvements made by the defendant and retain legal ownersh ip of the land that the defendant occupied, that the value as a result of deception. In support, he offers that the victim continued to statements and therefore that the defendant exercised control over the property the victim’s transfers of property were the consequence of the defendant’s false least some of his statements. He argues, however, that the State failed to prove statements, that the victim gave him money and that the victim believed at p. 5 5

DUGGAN and GALWAY, JJ., concurred.

discretion in granting the State’s request for a trial deposition. supported by the record, we conclude that the trial court properly exercised its standard set forth in RSA p. 5 517:13, II(b). Because the court’s findings are address death. The factors cited by the trial court satisfied the good cause ruling. While RSA 517:13, II(a) addresses illness, it does not specifically RSA 517:13, II must be read separately, we find no error in the trial court’s assume that the defendant is correct in arguing that the two subsections of the same factors in findi ng good cause under RSA 517:13, II(b). Even if we the specific criteria set forth in 517:13, II(a), the trial court erred by considering separately from RSA 517:13, II(b) and that because the State failed to satisfy victim’s test imony. The defendant argues that RSA 517:13, II(a) must be read and found that good cause existed to ensure that the jury could hear the court noted the several delays that had occurred in scheduling the case for trial eighty - three years old and had exceeded the life expectancy for males. The the trial court found that although the victim was in good hea lth, he was In granting the State’s request to preserve the victim’s testimony for trial,