2006-011, STATE OF NH v. WALTER BEEDE

theft by unauthorized taking,

RSA 651:2, V(a) (2007). We affirm. term exceeding that permitted by statute for his misdemeanor convictions, see N.H. R. Ev. 803(6); and (2) the trial court erred in sentencing him to a probation various bank records under the business records exception to the hearsay rule, Superior Court (Vaughan, J.). He argues: (1) the trial court improperly admitted

class A felony counts, one class B felony count and two misdemeanor counts of HICKS, J. The defendant, Walter Beede, appeals his conviction of seven

the defendant. James T. Brooks, assistant appellate defender, of Concord, on the brief, for

general, on the brief), for the State. reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 2006-011 corrections may be made before the opinion goes to press. Errors may be Belknap Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles ___________________________

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their

as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well account. Howland received none of the money deposited into the GVB account. p. 2 along with nine other checks written to JHE had been deposited into the GVB with the sheriff’s department discovered that the Ames and LeBoeuf payments worked for GVB and lacked knowledge of their practices. The defendant objected acquired GVB in October 2005. While LSB held GVB’s records, Sanborn never deposited into the account; and nine pages of monthly account statements. LSB

building supply company. The account was closed in September 1999. 2 of JHE, including one to the defendant’s former girlfriend and another to a

contacted the Belknap County Sheriff’s Department to investigate. A detective LeBoeuf for $25,801.74. Howland contacted an attorney who subsequently was sold to David Ames for $31,325.50, or for a boatslip that was sold to Steven form; two checks drawn from the account; seven checks and two money orders Howland nor either of his companies had received payment for Lot 209, which included: a business account agreement and a sole proprietorship resolution records created at GVB and subsequently transferred to LSB. That evidence security at LSB, as a witness. Through Sanborn, the State introduced several At trial, the State called Shaun Sanborn (Sanborn), vice president of

were also written from the account for purposes totally unrelated to the business were deposited into the account. Two checks bearing the defendant’s signature unaware of the existence of this account, although checks made payable to JHE was subsequently purchased by Laconia Savings Bank (LSB). Howland was

Howland in 1999, Howland’s bookkeeper, Mary Adams, realized that neither others hired in developing the properties. Upon dissolution of the business relationship between the defendant and reimburse himself for the costs of running the office and to pay contractors and

Beede [d/b/a] Jay Howland Realty” at Gilford Village Bank & Trust (GVB), which On April 1, 1997, an account was opened under the name “Walter F[.]

had authority to access the two business accounts to pay his own salary, to alone had authority to open bank accounts for JHE and JHR, but the defendant that all payments be sent to the corporate office in Massachusetts. Howland company’s Citizens Bank account in New Hampshire, but later Howland required [Howland].” Initially, the defendant deposited payments to JHE into the payments relating to sales of portions of the Parcels shall be paid to Owner The contract between JHE and the defendant provided that: “All sums and

defendant worked primarily out of the local office JHE maintained in Gilford. Realty (JHR) under JHE, through which the developed lots were sold. The properties purchased in Laconia. Howland subsequently created Jay Howland contracted with the defendant to manage the development, marketing and sale of in land in New Hampshire for purposes of developing and selling it. JHE (JHE), which was under the sole ownership of Jay Howland (Howland), invested The jury could have found the following. In 1994, Jay Howland Enterprises

I. Background p. 3 GVB.

omitted)). that have independent legal significance, and are nonhearsay.” (quotation (“Signed instruments such as wills, contracts, and promissory notes are writings Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 540 (5th Cir. 1994) that an individual submitted the application to the particular business.”); see also Ill. Feb. 3, 1986) (mem.) (“[A]n [account] application may be admitted to prove Cf. United States v. Marrinson, No. 85 CR 225, 1986 WL 2123, at *3 (N.D. the limited purpose of establishing that some individual submitted the forms to resolution form were themselves admissible as legally operative verbal conduct for such. Likewise, the business account agreement and the sole proprietorship the signatures contained therein, are not hearsay. from the GVB account are legally operative statements that were admissible as written from the account was unnecessary because these documents, as well as Therefore, the checks and money orders made out to JHE and the checks drawn F.3d 1187, 1192 (9th Cir.) (citations omitted), cert. denied, 543 U.S. 943 (2004). verbal acts that are not barred by the hearsay rule.” United States v. Pang, 362 considered ‘verbal acts.’ Checks fall squarely in this category of legally–operative offered as evidence of legally operative verbal conduct are not hearsay. They are context of the identical federal rule of evidence, “out-of-court statements that are matter asserted.” N.H. R. Ev. 801(c). However, as one court has explained in the testifying at the trial or hearing, offered in evidence to prove the truth of the “‘Hearsay’ is a statement, other than one made by the declarant while

checks and two money orders deposited into the account and the two checks The trial court’s application of the business records exception to the seven closing argument.

and Money Orders II. Business Account Agreement, Sole Proprietorship Resolution Form, Checks

case. Id. court's rulings were clearly untenable or unreasonable to the prejudice of his qualified to testify under New Hampshire Rule of Evidence 803(6). 691, 694 (2005). Therefore, the defendant must demonstrate that the trial defendant’s objection that the exception did not apply because Sanborn was not an unsustainable exercise of discretion standard. State v. Ainsworth, 151 N.H. We review the trial court’s decisions on the admissibility of evidence under

prejudiced his case because the prosecutor relied upon them heavily in his inadmissible double hearsay. He contends that the records’ admission well as information contained within them each constituted hearsay, resulting in aforementioned documents under Rule 803(6) because the records themselves as On appeal, the defendant argues that the trial judge erred in admitting the

the records under the business records exception to the hearsay rule over the to the introduction of each bank record as hearsay. The court, however, admitted party-opponent admission. p. 4 satisfy the above test to be admitted as an exception to the hearsay rule as a

are commercial paper, are self-authenticating under Rule 902(9) and therefore support the decision.” correct result on mistaken grounds, we will affirm if valid alternative grounds

Accordingly, the signatures contained within the checks and money orders, which 4 “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility.” first time on appeal. We disagree, because “where [the] trial court reaches [the] relating thereto to the extent provided by general commercial law” do not require and the prosecution did not raise Rule 801(d)(2) below, it cannot be raised for the defendant had signed the records. We disagree. Upon review of the record, we records were admitted under the business records exception to the hearsay rule Rule 801(d)(2) because there was sufficient independent evidence to prove the 801(d)(2) and are therefore admissible. The defendant argues that since the and the sole proprietorship resolution form also constitute admissions under The State argues that the signatures on the business account agreement

902(9) provides that “[c]ommercial paper, signatures thereon, and documents defendant].” Vigneau, 187 F.3d at 74-75. New Hampshire Rule of Evidence authenticated such as through “independent evidence that the writer was [the constitute party-opponent admissions under New Hampshire Rule of Evidence A signature falls under the exception in Rule 801(d)(2) if it is otherwise

reached the correct result and reversal is not warranted.”). conduct [the correct evidentiary] analysis . . . its decision to admit the evidence State v. Berry, 148 N.H. 88, 93 (2002) (“[E]ven though the trial judge did not

federal courts, interpreting the identical federal rule of evidence, holding that it definition of hearsay, we recognize the overwhelming weight of authority from the

We find that the signatures contained within the checks and money orders

it falls under an exception to the hearsay rule. proceed under the assumption that a signature can be considered hearsay unless v. Cestnik, 36 F.3d 904 (10th Cir. 1994). For purposes of this case, therefore, we See, e.g., United States v. Vigneau, 187 F.3d 70 (1st Cir. 1999); United States

question whether a signature can be considered a “statement” under the We next address the signatures contained in these records. While we

hearsay. without deciding, that the information written and typed on the records is on the records; and (2) the signatures contained within the records. We assume, argument addresses two types of information: (1) that which is written or typed matter[s] asserted, i.e., that the account’s owner was Walter Beede.” This person who completed the forms” and were “offered to prove the truth of the hearsay because it consists of “out-of-court statements that were made by the within these records, such as the signature “Wal[ly] Beede,” is inadmissible The defendant further argues, however, that the information contained trustworthiness.

p. 5 circumstances of preparation indicate lack of

unless the source of information or the method of [or]

testimony of the custodian or other qualified witness, . . . record, or data compilation, all as shown by the that business activity to make the memorandum, report,

business activity, and if it was the regular practice of

subsumed. “relied upon in [the] day-to-day operations” of the business into which they are 5 that the records were integrated into the second business’s records and are knowledge, if kept in the course of a regularly conducted

from information transmitted by, a person with opinions, or diagnoses, made at or near the time by, or

statements: The trial court heard the following testimony before admitting the account

(1st Cir. 1992). denied, 469 U.S. 1213 (1985); see also United States v. Doe, 960 F.2d 221, 223 opponent admission exception under Rule 801(d)(2). United States v. Mendel, 746 F.2d 155, 166 (2d Cir. 1984), cert.

have been transferred from one business to another, the party must establish of the statements and signatures on these records was harmless error. Where a party seeks to admit business records under this exception that

compilation, in any form, of acts, events, conditions,

We find, therefore, that the signatures in these records do not meet the party-

this information was not redacted. However, as we discuss below, the admission records in their entirety based erroneously upon the business records exception, A memorandum, report, record, or data would have cured this problem; however, since the trial court admitted the Rule 803(6) excepts from the definition of hearsay:

admitted as evidence under the business records exception to the hearsay rule. We next address whether the bank account statements were properly

does not reveal that such a comparison was ever made at trial by any witness. III. Bank Account Statements agreement and the sole proprietorship resolution form. The record, however, was sufficient to prove that it was also the defendant’s signature on the account

account agreement and sole proprietorship resolution form before admitting them Redacting the statements and signatures contained in the business

admitted without objection that contain the defendant’s signature and that this can find no such evidence. The State argues that there were several records p. 6 6

evidence presented at trial and the character of the contested evidence. other evidence introduced at trial. the sole proprietorship resolution form were merely cumulative in relation to the account statements, and the information in the business account agreement and not affect the verdict. In this case, evidence of the defendant’s guilt was overwhelming; the bank

inadmissible evidence itself. State v. Pseudae, 154 N.H. 19 p. 6 6, 202 (2006). consider the alternative evidence presented at trial as well as the character of the strength of the State’s evidence of guilt. Id. In making this determination, we contested evidence is merely cumulative or inconsequential in relation to the hearsay, their admission was harmless. We agree. the defendant’s guilt is of an overwhelming nature, quantity or weight, and if the error may be harmless beyond a reasonable doubt if the alternative evidence of

of whether the State has met its burden involves consideration of the alternative exception, and we can find no other hearsay exception that applies. bears the burden of proving that an error is harmless. Id. The evaluation court erred in admitting the account statements under the business records State v. Barnes, 150 N.H. 715, 717 (2004). The State foundational requirements of Rule 803( p. 6 6) were not met. Accordingly, the trial An error is harmless if we can say beyond a reasonable doubt that it did further note that even if integration had been established, the balance of the to establish that LSB had integrated GVB’s records and relied upon them. We IV. Harmless Error were admitted. We agree with the defendant that this testimony was insufficient

2007). The State argues that even if the account statements were inadmissible reversal.” State v. Hammell, 155 N.H. ___, ___, 917 A.2d 12 p. 6 67, 1271 (March 6, However, “[t]he admission of inadmissible evidence does not always require

defendant’s objection to admission of these account statements and the records There was no other evidence of integration. The trial judge overruled the

[Sanborn:] Yes.

statements of Mr. Beede before coming to court today? [Counsel:] And did you have an opportunity to review the bank

Realty. statements in the name of Walter F. Beede d/b/a Jay Howland [Sanborn:] They’re copies of Village Bank and Trust account

[Counsel:] Can you tell us what [they] are?

[Sanborn:] Yes, I do.

[Counsel:] Do you recognize [these] nine pages? company as payment on an account opened by the defendant. p. 7 7 on the account was made payable, testified that the check was received by his

and overwhelming evidence of the defendant’s” guilt. records been excluded, the jury would still have had before it “uncontroverted

motion to amend his probation sentence to two years. the class A misdemeanors because the trial court granted the defendant’s erred when it sentenced him to concurrent three-year probation terms for We need not address the defendant’s argument that the trial court

harmless beyond a reasonable doubt. error the trial court may have made in admitting them in their entirety was The accountant for the building supply company, to which the other check drawn Id. at 203. Therefore, any cashed the check and that the signature on it appeared to be the defendant’s. payable to the defendant’s ex-girlfriend, she testified that she had endorsed and two checks written from this account and signed by the defendant. Had these deposited. When shown one of these checks, in the amount of $1,800 and made maintained the account with GVB was cumulative because the jury had before it resolution form for purposes of proving that the defendant opened and information in the business account agreement and the sole proprietorship account statements was merely cumulative. Similarly, the admission of the Howland testified that he never received these payments. Given this evidence, any evidence of transactions shown on the GVB mailed to the New Hampshire office or personally handed to the defendant.

Beede,” as well as the dates they were processed by the banks where they were The two checks written from the GVB account contain the signature “Wally stipulated that Howland did not write those endorsements. the following handwritten endorsement: “Jay Howland Ent.” The defendant showing it was deposited into the GVB account on a certain date. They also bore out to and intended for JHE, and all but one testified that the check was either each testified that he or she wrote a particular check, that the check was written JHE never received the money. The drawers of the remaining checks at issue purchased a boat slip in December 1998, priced at $28,000, from JHE but that purchase of Lot 209 from JHE. Mary Adams testified that Steven LeBoeuf defendant, in the amount of $31,325.80 and dated October 28, 1998, for the David Ames testified that he had personally handed a check to the

deposited into one of his accounts. Each check and money order bore a stamp never received by his business, although all such payments were supposed to be checks and two money orders made out to JHE which Howland testified were JHE and JHR, and had never done so at GVB. The evidence contained seven Howland testified that he had the sole authority to open bank accounts for p. 8 8

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,