2004-615, STATE OF NH v. ELEANOR T. EMERY

Lancaster Construction, which he had owned as a sole proprietorship since Lancaster hired the defendant to work as a laborer in his demolition business, defendant and her daughter moved into Lancaster’s home. In June 2001, Lancaster met and began dating the defendant. Sometime thereafter, the The jury could have found the following facts. In early 2001, John

theft by deception, RSA 637:4 (1996). We affirm. by unauthorized taking or transfer, RSA 637:3 (1996), and one count charging after a jury trial in Superior Court (T. Nadeau, J.) on nine counts charging theft DUGGAN, J. The defendant, Eleanor T. Emery, appeals her conviction

Paul J. Ga rrity, of Londonderry, by brief and orally, for the defendant.

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Robert S. Carey, assistant attorney

No. 2 004 - 615 Rockingham

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

name on the documents, which did not indicate that a power of attorney was her sister in Maine notarize the documents. The defendant signed Lancaster’s to be notarized locally. The defendant then used the power of attorney to have would not be able to attend a closing, and offered to arrange for the d ocuments on the mortgage, the defendant told MultiState Title Company that Lancaster that the lender, Investment One, would not accept a power of attorney to close of Lancaster’s homes. After MultiState Title C ompany informed the defendant time to arrange for a $153,300 mortgage from MultiState Title Company on one In November p. 2 2002, the defendant again used the power of attorney, this

defendant had authority to sign checks on this account. the new corporate name, Lancaster Construction and Demolition. T he Lancaster Construction account was closed and a new account was opened in that she had loaned to the business. Once the conversion was completed, the $55,000 deposit to the Lancaster Construction account was her own money company’s finances. During that process, the defendant told him that the shareholders. In preparation for the conversion, an accountant reviewed the propr ietorship to a corporation, with the defendant and Lancaster as the sole In July p. 2 2002, Lancaster Construction was converted from a sole

of or authorize the loans. account and the $11,500 check in the joint account. Lancaster did not know endorsed them and deposited the $55,000 check in the Lancaster Construction arranged for a second loan of $11,500. When she received the check s, she thereafter, the defendant called John Hancock Life Insurance again and against the cash surrender value of Lancaster’s life insurance policy. Shortly Lancaster,” and, using the power of attorney, arranged for a $55,000 loan defendant called John Hancock Life Insurance, identified herself as “Mrs. behalf in both personal and business - related matters. The next day, the been prepared by his lawyer, that gave the defendant authority to act on his On January p. 2 22, 2002, Lancaster signed a power of attorney, which had

opened a separate joint checking account at Community Bank and Trust. handling of the finances for either account. The defendant and Lancaster also on the Lancaster Properties account. Lancaster rarely involved himself in the given authority to sign checks on the Lancaster Construction account but not Bank. The defendant handled the bookkeeping for both accounts. She was the Community B ank and Trust; the other for Lancaster Properties at Fleet The business had two bank accounts: one for Lancaster Construction at

defendant had assumed responsibility for handling the business’s finances. the bookkeeper with the business’s finances. By September p. 2 2001, the 1981. Shortly thereafter, the defendant began working in the office, assisting p. 3 3

continue. State during the w eek preceding trial as well as her alternative motion to erroneously denied her motion in limine to exclude evidence disclosed by the error; (2) insufficient evidence supports her conviction; and ( p. 3 3) the trial court On appeal, the defendant argues that: (1) a jury instruction was plain

Lancaster did not authorize the use of his business or personal f unds. which he was aware, the defendant told him that she had used her own funds; Lancaster was unaware of some of these transactions, and as for those of and to make cash payments to Wilson toward the purchase of a boat. trailer and four snowmobiles, one of which was purchased in Wilson’s name, also used Lancaster’s business and personal funds to purchase a snowmobile had obtained from the Lancaster Construction and Demolition account. She opened in Lancaster’s name. She sent money to her sister in Virginia tha t she these funds to pay her credit card bills, as well as bills for a credit card she had and Demolition, and Lancaster Properties accounts. Specifically, she used as well as from funds in the Lancaster Construction, Lancaster Construction expenses with the money that she obtained from the loans and the mortgage, Throughout her entire employment, the defendant paid her personal

the locks on the office doors. his home. Before the defendant returned from Key West, Lancaster changed documents relating to the loan on his life insurance policy and the mortgage on business, as well as some of Lancaster’s personal records, including several bo xes of documents. Among those documents were records for the defendant left for Key West, Lancaster went to the airport and found in her car whom the defendant had been seeing behind Lancaster’s back. After the Virginia, but was instead going to Key West with her boyfriend, Greg Wilson, Lancaster’s secretaries informed him that the defendant was not going to Virginia to see her sister. However, shortly before the defendant left, In April 200 p. 3 3, the defendant told Lancaster that she was going to

pay and never authorized the overtime payments. signed. Lancaster was not aware that the defendant was receivi ng overtime signed all of her paychecks, he usually did not look at the checks that he actually worked in the calculation of her weekly pay. Although Lancaster In January 2002, the d efendant began including overtime hours not

joint account. account. Lancaster was not aware of the mortgage or of the deposit into the the amount of $91,789.06, she endorsed it and deposited it into the joint used. When the defendant received a check from MultiState Title Company in p. 4 4

be convicted of stealing from the other party to the account by making never addressed whether a party to a joint checking account may or may not the sense that the governing law was clearly settled to the contrary”). We have reverse for plain error only if the error “w as or should have been ‘obvious’ in 2002); United States v. Gilberg, 75 F.3d 15, 18 (1 Cir. 1996) (court may st error. See, e.g., 28 Moore’s Federal Practice § 652.0 p. 4 4[3], at 652 - 19 (3d ed. unsettled at the tim e of appeal, a decision by the trial court cannot be plain Generally, when the law is not clear at the time of trial, and remains

contrary precedent in the State. definition of “property of another,” citing legislative intent and the lack of an interest in the property” s erves to include jointly owned property within the that the inclusion of the language “regardless of the fact that the actor also has taking of the property of the other from the joint account. The State contends the account, and thus neither holder may be convicted of the unauthorized holder of a joint account is “privileged to infringe” the interest of the other in property.” RSA 637:2, IV (Supp. 2005). The defendant contends that each infringe, regardless of the fact that the actor also has an interest in the person other than the actor has an interest which the actor is not pr ivileged to definition of “property of another,” which “includes property in which any account. In support of this assertion, the defendant relies upon the statutory the defendant could not be convicted of steal ing from her own joint checking issue before the trial court, the trial court should have instructed the jury that On appeal, the defendant argues that, although neither party raised the

rule to inform our application of the State rule. See id. States Supreme Court’s standards for the application of the federal plain error reputation of judicial proceedings.” Id. at 737. We have looked to the United rights; and ( p. 4 4) the error must seriously affect the fairness, integrity or public an error; (2) the error must be plain; (3) the error must affect sub stantial 732, 736 - 37 (2005). Thus, to fall within the plain error rule: “(1) there must be miscarriage of justice would otherwise result.” State v. MacInnes, 151 N.H. should be used sparingly, its use limited to tho se circumstances in which a attention of the trial court or not raised in the notice of appeal. Id. “[T]he rule The plain error rule allows us to consider errors either not brought to the

16 - A. review the trial court’s jury instruction und er the plain error rule. Sup. Ct. R. 1 p. 4 49 N.H. 47, 48 (2003). Nevertheless, the defendant argues that we should court, and has therefore not been preserved for our review. State v. Blackmer, defendant concedes, h owever, that this issue was not raised before the trial that she could be convicted of stealing from her own joint account. The The defendant argues that the trial court erroneously instructed the jury

I. Plain Error p. 5 5

that he gave the defendant the authority to do anything she chose with the finances, even with great latitude, does not require a reasonable jury to find fact that Lancaster gave the defendant the authority to handle the business the business and was purportedly responsible for keeping it afloat. First, the finances, and from the testimony that she purportedly put her own money into the fact that Lancaster entrusted her with full responsibility for the business The defendant apparently conte nds that we should infer ratification from

State v. Gordon, 148 N.H. 710, 721 (2002) (quotation omitted). favorable to the State, could have found guilt beyond a reasonable doubt.” proving that no rational trier of fact, viewing the evidence in the light most challenging the sufficiency of the evidence, the defendant carries the burd en of points to no testimony in the record to support her argument. “In an appeal practices as criminal after the relationship soured. However, the defendant Lancaster “accepted and ratified” her spending practi ces, and only viewed those companion,” which Lancaster “knew [of] and willingly paid.” She contends that from Lancaster were gifts – “the costs [of] keeping an energetic young Lancaster’s funds was u nauthorized. She argues that the funds she received The defendant argues that there was insufficient evidence that her use of

II. Sufficiency of the Evidence

does not fall within the plain error rule. affected substantial rights. Therefore, we conclude that this jury instruction unlawfully. Thus, the defendant has not shown that the purported error than $100,000 that she had deposited into it after obtaining the funds were connected to the joint account dealt with the defendant’s use of the more took out of accounts other than the joint ac count, and those convictions that which the defendant was convicted charged her with spending money that she jury instruction affected the outcome of the trial. Eight of the ten counts on upon as not being af fected.” However, she has failed to demonstrate how the “[n]one of the charges for which [the jury] found Ms. Emery guilty can be relied whole trial was tainted by the allegedly erroneous jury instruction; as a result, transa ction for which she stood trial involved the joint account, and thus the supra; Olano, p. 5 507 U.S. at 735. The defendant asserts that almost every that it affected the outcome of the proceeding. 28 Moore’s Federal Practice, this burden, the defendant must demonstrate that the error was prejudicial – see United States v. Olano, 507 U.S. 725, 734 - 35 (1993). Generally, to satisfy substantial rights. 28 Moore’s Federal Practice, supra § 652.04[4], at 652 - 21; was plain, the burden is on the defendant to prove that the error affected Furthermore, even if we assu me that there was error, and that the error

accounts was plain error. Cf. MacInnes, 1 p. 5 51 N.H. at 737. failure to give an alternative instruction sua sponte on theft from joint checking unauthorized withdrawals from it. Thus, we cannot say that the trial court’s p. 6 6

“very crucial information that I believe is going to be used at trial.” statements and other documents that trial counsel characterized as containing Insurance Company, a s well as 132 pages of discovery, including witness conversations between the defendant and representatives of John Hancock May 13, 2004, defendant’s trial counsel received an audiotape of a series of thereafter, nor on the computer disk furnished by the State. In addition, on records were neither on the computer when the police returned it to her shortly demolition business when she turned it over to the police, but that the relevant defendant claims that the computer contained relevant records for the computer when she turned it over to t hem in April or May of 2003. The asserts is a copy of all files found by the Kingston Police on the defendant’s State, including Lancaster. He also received a computer disk, which the State prior to trial, he received the criminal records of potential witnesses for the counsel received a number of discovery items. On May 10, 2004, one week During the week preceding the scheduled trial date, defendant’s trial

them. improperly denied her motion to continue the trial to allow her time to review to the defendant until a week, or less, before trial, and that the trial court admitted into evidence several items of discovery, which were not turned over We now turn to the defendant’s arguments that the trial court improperly

III. Discovery Motions

and not ratified by Lanca ster. spending practices for which the defendant was convicted were unauthorized, favorable to the State, was sufficient to support the jury’s finding that the convicted. We hold that the evidence, when considered in a light most ended, and that he did not authorize the acts for which the defendan t was the defendant’s spending practices until the relationship between the couple There is ample testimony in the record that Lancaster was unaware of

signing them. credible the testimony that he did not regularly look at paychecks before looked at each paycheck before he signed it. Thus the jury was free to find nothing in the record, and we find nothing, that indicates that Lancaster looking at and approving the amount. However, the defendant points to paychecks, the jury could not possibly have believed that he did so without The defendant also argues that, because Lancaster initialed each of her

practices for which the defendant was convicted. doubt that Lancaster did not know about, accept or ratify the spending practices. Our review of the record supports a finding beyond a reasonable business are irrelevant to whether Lancaster accepted or ratified her spending fu nds. Second, the defendant’s claims that she put her own money into the p. 7 7

BRODERICK, C.J.