2005-646, STATE OF NH v. FREDERICK HUFFMAN

The defendant, Frederick Huffman, appeals the Superior

the defendant. Theodore Lothstein, assistant appellate defender, of Concord, by brief, for

general, on the brief), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Philip B. Bradley, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-646 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the defendant guilty of theft by misapplication of property.

p. 2 General. 2

property under RSA 637:10 (1996). his: (1) motion to suppress; (2) motion grand jury subsequently indicted the defendant for theft by misapplication of the banks nonetheless gave the defendant’s financial records to the State. The

the defendant unsuccessfully renewed his motion to dismiss. The jury found

Sunbridge contacted the Medicaid Fraud Unit in the Office of the Attorney requirements. The trial court denied the motion. We address each issue in turn.

On appeal, the defendant argues that the trial court erred by denying

mailed the subpoenas to the banks instead of formally serving them; however, witnesses. of the procedural rights of witnesses (the banks) that were not asserted by the ruling that the defendant did not have standing to complain about a violation crime. The trial court denied the motion. At the close of the defendant’s case, to dismiss, arguing that the State failed to prove an element of the alleged A jury trial ensued. At the close of the State’s case, the defendant moved

2003, the defendant owed $37,345.62 to Sunbridge. Due to this arrearage, able to obtain some of Huffman’s money from social security; however, by July defendant argued that the State did not comply with the rule’s authentication in September 2001, and an equal amount in October 2001. Sunbridge was inter alia, upon a violation of New Hampshire Rule of Evidence 902(11). The The defendant also moved in limine to exclude the bank records based,

defendant’s financial records at Newburyport Bank and the NFCU. The State

jury subpoenas upon the banks. The trial court denied the defendant’s motion, Act (Privacy Act), RSA 359-C:10 (1995), by failing to properly serve the grand arguing, inter alia, that the State violated the New Hampshire Right to Privacy Prior to trial, the defendant moved to suppress the financial records,

defendant made only two payments of Huffman’s money to Sunbridge: $1,900

In November 2004, a grand jury issued a subpoena duces tecum for the (NFCU), which they also held jointly. deposited Huffman’s income into an account at the Navy Federal Credit Union (Newburyport Bank) that he jointly held with Huffman. The defendant later

payments, was obligated to Sunbridge. Despite this understanding, the month of Huffman’s income, including social security, pension, and Medicaid It is undisputed that the defendant understood that all but $50 per

deposited the money into an account at Newburyport Five Cents Savings Bank Huffman eligible for benefits. As the defendant received Huffman’s income, he information set forth in the subpoena. p. 3 resolution, any person as its agent for purposes of receiving signature of the clerk of court. The grand jury may appoint, by

instead of in person.

duces tecum only if: pursuant to a subpoena duces tecum bearing the authenticating RSA 359-C:4, I(d), pursuant to a judicial subpoena or subpoena

or mailed to the customer . . . . that RSA 359-C:10, II permits grand jury subpoenas to be issued by mail

a majority of its members, obtain financial or credit records department thereof may obtain financial or credit records under grand jury is authorized to and may, upon a resolution adopted by II. Without limiting in any way the authority of the grand jury, a

. . . .

legislature did not see fit to include. served upon the financial institution or creditor and served upon State’s mailing of the subpoenas violated this requirement. The State responds not consider what the legislature might have said or add language that the (a) The subpoena or subpoena duces tecum is issued and financial records on an out-of-state witness, the defendant argues, and the Privacy Act and RSA 613:3 (2001) require in-person service of a subpoena for

I. An officer, employee or agent of a state or local agency or

following: The provision of the Privacy Act at issue, RSA 359-C:10, states the

need not look beyond it for further indication of legislative intent, and we will words used. Id. When a statute’s language is plain and unambiguous, we comply with the Privacy Act’s requirements for serving the subpoenas. The statute, and, where possible, ascribe the plain and ordinary meanings to the statute considered as a whole. Id. We first examine the language of the are the final arbiters of the legislature’s intent as expressed in the words of the novo. Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 72 (2005). We The interpretation of a statute is a question of law, which we review de

Newburyport Bank and NFCU financial records because the State failed to The defendant argues that the trial court should have suppressed the

I. Motion to Suppress evidence seized by the State.

p. 4 595-A, which governs search warrants, do not require the suppression of

appropriate remedy.

recognized that purely technical violations of a different statute, RSA chapter 4 the statute that does not infringe upon the defendant’s rights. We have person. Failure to properly serve the banks is purely a technical violation of

admissibility is not required with respect to the following: upon any rights granted by the act to the defendant, suppression is not the

Rule 902(11) provides, in pertinent part:

if the grand jury’s subpoena to the banks is mailed instead of delivered in. . .

the act. Extrinsic evidence of authenticity as a condition precedent to State’s violation of the Privacy Act was purely technical and did not infringe

authenticating them pursuant to New Hampshire Rule of Evidence 902(11). introduce bank records from Newburyport Bank and NFCU without properly The defendant argues that the trial court erred by allowing the State to

defendant’s confidential relationship with the banks receives no less protection institutions and creditors and their respective customers.” RSA 359-C:2. The appropriate remedy to vindicate the purpose behind the legislature’s passage of of the act is “to protect the confidential relationship between financial suppression of evidence obtained in violation of the Privacy Act is an We conclude that the same reasoning applies in the instant case. Because the records is the appropriate remedy. We have previously held that the

failure to comply with the Privacy Act’s in-person service requirement violated

violate any right granted to the defendant by RSA chapter 359-C. The purpose The State’s service to the banks by mail, instead of in person, does not of RSA 359-C:10, that does not mean that suppression of the defendant’s bank

defendant may only suppress the evidence obtained by the State if the State’s also assume without deciding that RSA 359-C:10 requires in-person service. violated.” State v. Sheedy, 124 N.H. 738, 740 (1984). Accordingly, the shown that the rights conferred on the defendant by the Privacy Act were however, that “[f]or the defendant to be entitled to that remedy, it must be

State v. Stearns, 130 N.H. 475, 484 (1988). We have also held,

Even assuming that the State violated the in-person service requirement

Privacy Act applies to the service of a subpoena upon an out-of-state bank. We For the purposes of our analysis below, we assume without deciding that the of the occurrence by a person with knowledge. p. 5 monthly statements to customers and that those records are made at the time

that the trial court could have properly taken judicial notice that banks send

of these bank records, the certifications were sufficient.” The State also argues both banks’ declarations comply with Rule 902(11)(C) because, “in the context forth and were prepared by a person with knowledge. The State argues that

records were made by the regularly conducted activity as a regular practice.

that the statements were prepared at or near the time of the occurrences set

with Rule 902(11)(C) because neither certification establishes that the bank 5 certification from Newburyport Bank nor the certification from NFCU complies knowledge of those matters. The defendant further argues that neither the

statements that bore the dates of the transactions at issue, thereby showing

records were made by or from information transmitted by a person with

evidentiary ruling exclusively upon the certifications: the nature of bank statements. The record shows that the trial court based its Rule 902(11)(A) because the records sought to be admitted were monthly bank bank records in conjunction with the certifications nor took judicial notice of Despite the State’s arguments, the trial court neither considered the

the occurrence of the matters set forth, nor is there a statement that the because nothing in it states that the records were made at or near the time of with knowledge of those matters; Newburyport Bank failed to comply with Rule 902(11)(A), the defendant argues,

The State responds that Newburyport Bank’s declaration complies with

and

matters set forth, by or from information transmitted by, a person satisfied the clear requirements of Rule 902(11). The certification from The defendant argues that the State failed to provide certifications that certifies under oath – practice. (C) was made by the regularly conducted activity as a regular

(B) was kept in the course of the regularly conducted activity;

(A) was made at or near the time of the occurrence of the

and which the custodian thereof or another qualified person conducted activity, which would be admissible under Rule 803(6), The original or a duplicate of a domestic record of regularly (11) Certified domestic records of regularly conducted activity. – that business” requirement in Rule 803(6) is satisfied by testimony regarding

p. 6 near the time of the act, condition or event.

make the [proffered] memorandum, report, record, or data compilation.” 6

p. 6 near the time of the transaction recorded”). Just as the “regular practice of

were prepared from records which were themselves prepared at or FEDERAL CREDIT UNION in the ordinary course of business and records were prepared by the custodian or the personnel of NAVY

requires, in part, that it be “the regular practice of that business activity to

document, and . . . that it was made in the regular course of business at or testimony regarding “the identity and mode of preparation of the proffered the business records exception requires the proponent of the document to elicit practice. Powell v. Catholic Med. Ctr. were made by the regularly conducted activity as a regular, 145 N.H. 7, 17 (2000) (stating that the entirety of that the proffered document “was made in the regular course of business.” R. Ev. 803(6). We have held that this requirement is satisfied by testimony the Subpoena / Customer Consent / Authorization Form. Said

from Rule 803(6), the business records exception to the hearsay rule, which 902(11)(C); however, the language of Rule 902(11)(C) is similar to language The defendant argues that this certification fails to comply with Rule

decision was clearly unreasonable to the prejudice of his case. kept in the course of regularly conducted activity and that they

records. The enclosed is a true copy of all the records described in authentication absent an unsustainable exercise of its discretion.” FEDERAL CREDIT UNION and has the authority to certify said The undersigned is a duly authorized custodian of records of NAVY

Certification Statement

The certification submitted by NFCU states:

152 N.H. 780, 781 (2005).

exercise of discretion was unsustainable, the defendant must show that the records were made at the time of the occurrence, that they were Knapp notarized certificates, they essentially indicated to us that these, 150 N.H. 36, 37 (2003) (citation omitted). To show that the trial court’s the entire statements made by these keepers of the record, in their State v. considerable deference, and will not reverse the trial court’s ruling on “We generally review the trial court’s rulings on evidentiary matters with

It is this ruling that we must address.

B, and C, specifically as they’re quoted there, but in the context of They may not have used the magic words referred to in 902:11 A, the trial court’s exercise of discretion was unsustainable. p. 7 the evidence for this purpose or argue harmless error. Thus, we conclude that benefit instead of paying Sunbridge. The State does not refute that it offered

State and Federal Constitutions would preclude a remand for a new trial. because, if the evidence were insufficient, the Double Jeopardy Clauses of the purpose of proving that the defendant withdrew Huffman’s money for his own

to the erroneous admission of the bank records, we must decide this issue prejudiced the defendant’s case because the State presented them for the erred in admitting them. The admission of those records clearly unreasonably Bank records solely upon this certification, we conclude that the trial court upon agreement, or subject to a known legal obligation, to make a I. A person commits theft if he obtains property from anyone . . .

RSA 637:10 provides, in pertinent part:

State v. Sweeney, 151 N.H. 666, 672-73 (2005).

misapplication of property. Although we reverse the defendant’s conviction due dismiss because the State failed to prove a required element of theft by The defendant argues that the trial court erred in denying his motion to matters set forth. As the trial court based the admission of the Newburyport III. Motions to Dismiss

are true copies, and that I am the Keeper of Records. 902(11)(C).

proffered records were made at or near the time of the occurrence of the comply with Rule 902(11)(A). The certification does not indicate that the the certification from NFCU. Newburyport Bank’s certification states: As the defendant correctly argues, the Newburyport Bank certification does not

regular course of bank business. I further certify that the enclosed properly ruled that NFCU’s bank records satisfied the requirements of Rule that the enclosed copies were made in good faith during the were prepared “in the ordinary course of business.” Accordingly, the trial court 63 State Street, Newburyport, Massachusetts 01950, hereby certify course of business. The NFCU certification states that the proffered records I, Susan J. Cormier, of the Newburyport Five Cents Savings Bank,

subpoena. Enclosed please find copies of bank documents requested per your

The certification submitted by Newburyport Bank is less complete than

certified statement that the proffered records were prepared in the ordinary the ordinary course of business, so too should Rule 902(11)(C) be satisfied by a withdrew.

p. 8 the defendant had established to receive Huffman’s money that the defendant evidence that the police investigation did not find another bank account that evidence showed that it did not go to Sunbridge. The State also presented

accounts. Once the money was withdrawn, there were no records of it, but

Woods, Sunbridge’s administrator, who testified that he spoke with the

showing that he withdrew thousands of dollars of Huffman’s money from the withdrew more money in cash from the accounts than he had put in, thus Sunbridge. Evidence presented at trial included testimony that the defendant but never spent it. The State, however, presented testimony from Steven

his own. 8

solely circumstantial.

undisputed that all but $50 per month of Huffman’s income was to go to he withdrew the money and held it in protest of Sunbridge’s care of Huffman, reasonable doubt that he was guilty of the crime charged.

account controlled by the defendant cannot prove that he treated the money as

the manner most favorable to the State, even when the evidence presented is

Newburyport Bank and NFCU to help administer Huffman’s finances, it is The defendant argues that the State did not exclude the possibility that inferences drawn in the State’s favor, was insufficient to prove beyond a

but whether other rational conclusions have been excluded.

Huffman’s income, the defendant’s depositing of Huffman’s money into an as his own. The defendant argues that, as the representative payee for to dismiss, we view the evidence and reasonable inferences arising therefrom in the rational possibility that the defendant did not deal with Huffman’s money

Although the defendant shared joint accounts with Huffman at establishing that the evidence, viewed in its entirety and with all reasonable

proper analysis is not whether every possible conclusion has been excluded, all rational conclusions except guilt. Id. We emphasize, however, that the in isolation. Id. When the evidence is purely circumstantial, it must exclude

153 N.H. 670, 672 (2006). When reviewing the trial court’s denial of a motion defendant argues, however, that the evidence presented at trial did not exclude

To succeed on a motion to dismiss, the defendant bears the burden of deals with the property obtained or withheld as his own. recklessly fails to make the required payment or disposition and reserved in an equivalent or agreed amount, if he purposely or

Sunbridge, and that he did not make required payments to Sunbridge. The power of attorney, that he knew that Huffman’s income was obligated to The defendant concedes that he exercised control over Huffman’s income by

from that property or its proceeds or from his own property to be specified payment or other disposition to a third person, whether and investigated the quality of care that Huffman received. p. 9 that, had the defendant sent the letters to DHHS, they would have seen them he sent regarding his father’s care at Sunbridge. The DHHS employees testified

they never received multiple letters of complaint that the defendant alleged that

department of health and human services (DHHS), both of whom testified that

Additionally, the State presented testimony from two employees of the and that he would send Sunbridge a check for at least $27,653 for arrearages. defendant never stated that he was unhappy with Huffman’s care at Sunbridge

spoke to the defendant on June 25, 2003. The manager testified that the

testimony from the business office manager at Sunbridge, who stated that she between the falls and the withholding of payment. The State also presented defendant continued to withhold payments, thus weakening the correlation

also testified that, even when Huffman did not fall for sixteen months, the

Huffman’s money as his own.

withheld payments because he was concerned about quality of care. Woods money from the defendant, he had no reason to believe that the defendant Huffman’s Social Security payments to Sunbridge in November to protect the

that the defendant withheld payments from Sunbridge and dealt with

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

overdue payments to Sunbridge. Woods testified that, when he routed

reasonable doubt that the evidence excluded all rational conclusions except of the record, we conclude that a rational jury could have found beyond a Viewing all inferences in a light most favorable to the State, after a review

withholding payments, and, to the contrary, stated that he would send the complain about the quality of Huffman’s care, made no statement about times. Woods testified that, during these phone calls, the defendant did not

of 2001, after Huffman had stayed at Sunbridge for months and had fallen five defendant on the telephone on July 16, August 13, August 29, and October 16