2007-654, STATE OF NH v. PUTNAM BREED

The defendant, Putnam Breed, appeals his convictions

Christopher H.M. Carter on the brief, and Mr. Carter orally), for the defendant. Hinckley, Allen & Snyder LLP, of Concord (Michael J. Connolly and

the State. attorney general, on the brief, and Elizabeth C. Woodcock, attorney, orally), for Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2007-654 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 remains of other decedents when he had not done so. p. 2 the defendant had signed cremation certificates indicating he had viewed the indictments alleged that, for the purpose of receiving medical examiner fees,

recording.” The defendant contends that this statute is impermissibly vague

New Hampshire-appointed medical examiner. The two theft by deception

security instrument or other writing for which the law provides public anyone, he falsifies, destroys, removes or conceals any will, deed, mortgage, “A person is guilty of a class B felony if, with a purpose to deceive or injure

manner of death, when, in fact, he had not done so. viewed certain remains and had made personal inquiry into the cause and and were cremated in New Hampshire even though the defendant was not a to deceive, had signed other cremation certificates indicating that he had Examiner in connection with the cremations of twelve decedents who had died authorization and forwarding to the Massachusetts Office of the Chief Medical which he argued, Thereafter, he filed a motion to set aside the verdicts and for a new trial in

writing statute, RSA 638:2, is unconstitutionally vague. RSA 638:2 provides: The defendant first argues that the fraudulent handling of recordable

I. Fraudulent Handling of Recordable Writing Convictions Hampshire medical examiner. Two indictments alleged that he, with a purpose was denied, and this appeal followed. defendant with purposely submitting cremation fee forms to Bayview for inter alia, that his trial counsel was ineffective. The motion

Following a six-day trial, a jury convicted the defendant on all charges. the defendant had committed theft by deception,

signed certain cremation certificates that falsely indicated that he was a New

RSA 637:3. The theft by unauthorized taking indictment charged the cremation (cremation certificate). indictment alleging that he had committed theft by unauthorized taking, see defendant had fraudulently handled recordable writings. see RSA 637:4, and one In November 2006, a grand jury returned two indictments alleging that

Hampshire, which were both owned by the same individual. Massachusetts, and to the Bayview Crematorium (Bayview) in Seabrook, New services he provided to Simplicity Burial and Cremation in Salisbury,

Seven indictments alleged that the defendant, with a purpose to deceive, had

“recordable writing” at issue in each indictment was a medical certificate for

In July 2005, a grand jury returned nine indictments alleging that the

Bayview Crematory, 155 N.H. 781, 782 (2007).

examiner in Massachusetts. His convictions stem from medical examiner The record supports the following facts. The defendant is a medical provides public recording.”

p. 3 nature to the enumerated documents, and are not “writing[s] for which the law

meaning of the statute, the defendant’s conduct did not violate the statute. His

notice to all persons regarding the status of title to the property at issue.

involve a similar need for public notice. Therefore, they are not similar in enumerated by the specific words. land based upon any recordable but unrecorded instruments.”

deeds, mortgages and security instruments. The principle of

Because cremation certificates are not recordable writings within the

practice of deciding constitutional issues only when necessary, interests. The law provides for recording of these documents so as to give recordable writings within the meaning of the statute. In keeping with our

certificates, on the other hand, do not concern property interests and do not words are construed to embrace only objects similar in nature to those Id. Cremation purchasers and bona fide mortgagees against the assertion of prior claims to Their purpose “is to protect subsequent judgment creditors, bona fide for those diligent enough to conduct a search of title records.” provides public recording” follows an enumerated list that includes wills, Id. § 82, at 110. statutes pertaining to deeds and mortgages, for instance, “provide protection 66 Am. Jur. 2d Records and Recording Laws § 40, at 86 (2001). Recording import of their terms and to promote justice.” RSA 625:3 (2007). See

All of the enumerated documents are documents that affect property indictments fail to allege a crime because cremation certificates are not

provides that, where specific words in a statute follow general ones, the general

In RSA 638:2, the general phrase “other writing for which the law

criminal statutes, however, but rather construe them “according to the fair (State v. Laporte), 157 N.H. 229, 231 (2008). We do not strictly construe language according to its plain and ordinary meaning. Petition of State of N.H. effect, he asserts that the fraudulent handling of recordable writing look to the language of the statute itself, and, if possible, construe that Dansereau, 157 N.H. 596, 598 (2008). When interpreting a statute, we first intent as expressed in the words of the statute considered as a whole. State v. Horner, 153 N.H. 306, 309 (2006). We are the final arbiters of the legislative We review a trial court’s statutory interpretation de novo. State v.

defendant’s implied statutory claim because it provides him the relief he seeks. Wamala, 158 N.H. ___, ___ (decided Apr. 19, 2009), we will address only the

Although the defendant couches his argument in constitutional terms, in

which the law provides public recording.” because it fails to give notice that cremation certificates are “other writing[s] for perform.”

p. 4 defendant had the “conscious object to obtain money for services he did not this indictment in its jury instructions by directing the jury to determine if the defendant argues, and the State does not dispute, that the trial court amended

not, conducted by a New Hampshire-appointed medical examiner. The which he received compensation from the Commonwealth of Massachusetts. juror could not have found that the defendant did not perform the services for

he conducted of New Hampshire decedents that should have been, but were

could not have found that the defendant committed this offense. A rational

of Massachusetts by submitting medical examiner fee forms for examinations alleged that the defendant improperly obtained money from the Commonwealth him thereof.” RSA 637:3, I. The theft by unauthorized taking indictment it in the light most favorable to the State, we conclude that a rational juror

establishes that the defendant “did not provide the service[ ] for which he The State contends that the evidence was sufficient because it

unauthorized taking and theft by deception. the State, could have found guilt beyond a reasonable doubt. the evidence and all reasonable inferences from it in the light most favorable to unauthorized control over the property of another with a purpose to deprive Considering the evidence and all reasonable inferences to be drawn from evidence, the defendant must prove that no rational trier of fact, viewing all of

exclude all rational conclusions except guilt.

We now turn to his arguments regarding his convictions for theft by

commits theft by unauthorized taking or transfer “if he obtains or exercises of the theft offenses. To prevail upon his challenge to the sufficiency of the We first examine the theft by unauthorized taking charge. A person

1. Theft by Unauthorized Taking

and examine each evidentiary item in context, not in isolation. Id. however, we still consider the evidence in the light most favorable to the State

150 N.H. 416, 424 (2003). When the evidence is solely circumstantial, it must

The defendant argues that there was insufficient evidence to convict him

A. Sufficiency

In light of our decision, we need not address the defendant’s remaining

reversed. fraudulent handling of recordable writing convictions, therefore, must be these decedents before they were cremated, he did not do so.

p. 5 medical examiner fees. for services he failed to perform.

could also have found that although the defendant claimed to have examined respect to the decedents named in the indictments were false. A rational juror even uncontroverted evidence. could have found that the cremation certificates that the defendant signed with

not done so, and that he engaged in this conduct for the purpose of receiving defendant of the theft by unauthorized taking offense, we examine the that the defendant collected money from the Commonwealth of Massachusetts indicating he had viewed the remains of certain other decedents when he had deception indictments alleged that the defendant signed cremation certificates

persuasiveness and credibility of evidence and was not compelled to believe could have found that the defendant committed these offenses. A rational juror

we view the evidence in context.

Having concluded that the evidence was insufficient to convict the favorable to the State, we conclude that a rational juror could not have found fact, viewed these bodies. Accordingly, viewing this evidence in the light most [the] person does not believe to be true.” RSA 637:4, II(a). The two theft by 439 (2008). viewing bodies before they were cremated in New Hampshire and that he, in In re Guardianship of Luong, 157 N.H. 429,

(2004). As the trier of fact, the jury was in the best position to measure the it in the light most favorable to the State, we conclude that a rational juror evidence were for the jury to resolve. State v. Wiggin, 151 N.H. 305, 309-10

isolation. When addressing a sufficiency of the evidence argument, however, by deception offenses, the defendant examines each piece of evidence in In arguing that the evidence was insufficient to convict him of the theft

637:4, I. Deception includes creating “an impression which is false and which requested and received payment from the Commonwealth of Massachusetts for

Considering the evidence and all reasonable inferences to be drawn from

of another by deception and with a purpose to deprive him thereof.” RSA with New Hampshire law. Rather, the evidence shows that the defendant the crime of theft by deception “if he obtains or exercises control over property Massachusetts was in any way contingent upon his examinations complying We next examine the theft by deception indictments. A person commits demonstrate that the defendant’s compensation from the Commonwealth of

2. Theft by Deception

The evidence, however, viewed in the light most favorable to the State, does not charged, i.e., an examination that complied with the New Hampshire statutes.” p. 6 Chief Medical Examiner in Massachusetts.

Hampshire entity, for authorization, and then forwarded to the Office of the

medical examiner cremation fee forms were submitted to Bayview, a New

medical examiner cremation fee forms requesting payment for these views. The cremation certificates stating that he viewed the bodies and by submitting in fact, examined. he, in fact, did not do so. He perpetrated this deception by filling out

false impression that he had examined bodies in New Hampshire that he never, deceived the Commonwealth of Massachusetts by claiming to view bodies when forms to a New Hampshire entity, Bayview, in New Hampshire, that gave the from the Commonwealth of Massachusetts by submitting medical examiner fee 6

theft by deception and fraudulent handling offenses. We will uphold the trial

Hampshire before they were cremated here. The defendant was alleged to have examiner who received fees from Massachusetts for viewing bodies in New deception itself took place, at least in part, here. The defendant took money thereof.” RSA 637:4, I. In this case, the defendant is a Massachusetts medical

The defendant next contends that the trial court erred when it joined the

C. Joinder with Fraudulent Handling Charges

State.” within its ambit any crime which is committed wholly or partly within this

New Hampshire had jurisdiction over these offenses because the over property of another by deception and with a purpose to deprive him

committed in New Hampshire, jurisdiction in New Hampshire was proper.

substantially conforms to the Model Penal Code regarding jurisdiction, brings

A person commits theft by deception “if he obtains or exercises control

Commonwealth of Massachusetts was the alleged victim of the thefts. in New Hampshire. We conclude that because this offense was partly occurred in the Commonwealth of Massachusetts and because the whether any part of the statutory offense of theft by deception was committed jurisdiction over the theft by deception offenses because they allegedly by State v. Kelly, 125 N.H. 484 (1984). The question in this case, therefore, is State v. Harlan, 116 N.H. 598, 605 (1976), overruled on other grounds

result which is such an element occurs within this state.” “Our statute, which Hampshire laws if “[e]ither conduct which is an element of the offense or the RSA 625:4, I(a) (2007) allows a person to be convicted under New

The defendant next argues that the trial court lacked territorial

B. Territorial Jurisdiction

deception charges. remainder of the defendant’s arguments only as they pertain to the theft by p. 7 7

committed their alleged conduct as to one victim, but not to another, and still desire to repay his debt to the victim. common plan by the defendants.

creating false impressions about St. Jude’s services. included the charged acts as part of its consummation.” were part of a common plan because they “demonstrated a prior design that

were not part of a common plan because “[t]he defendants could have through increasingly grandiose schemes connected to the defendant’s alleged Id. The trial court found that the charges join fifteen complaints made by fifteen different victims, the State alleged a

Certain patients complained that the defendants had obtained their money by supposed drug and alcohol treatment center. San Giovanni, 154 N.H. at 6 p. 7 72. same elderly victim. We ruled that, viewed objectively, the defendant’s actions involved different victims. The defendants operated St. Jude’s Residence, a the State’s motion to join fifteen theft by deception indictments, which all Giovanni), 154 N.H. 671 (2007), we affirmed the trial court’s decision to deny By contrast, in Petition of State of New Hampshire (State v. San

absolute right to sever unrelated charges. Id. in the plan’s execution. all based upon the defendant’s efforts to defraud the victim of his property true plan in the defendant’s mind, which includes the charged crimes as stages at 562. Not only did the charges all involve the same victim, but they were also

error because the theft and fraudulent handling offenses were “independent offenses were part of a common plan. The defendant contends that this was the consolidation of seventeen counts of theft by deception, all against the In State v. Schonarth, 152 N.H. 560, 562 (2005), for instance, we upheld single criminal episode, or a common plan. with what follows, such that the charged acts are mutually dependent. Id. examined in retrospect is not enough; the prior conduct must be intertwined joinder before Superior Court Rule 9 p. 7 7-A became effective gave a defendant an Id. That a sequence of acts resembles a design when

The distinguishing characteristic of a common plan is the existence of a

joinder was proper in this case because the theft and fraudulent handling

(200 p. 7 7). Related offenses were those that were based upon the same conduct, a

as it existed before the rule became effective on January 1, 2008. The law of Rule 9 p. 7 7-A governs this case, we examine his joinder arguments under the law Because the defendant does not contend on appeal that Superior Court

unreasonable to the prejudice of his case. Id. defendant must demonstrate that the ruling was clearly untenable or 118, 120 (2003). To show that the trial court’s decision is unsustainable, the constitutes an unsustainable exercise of discretion. State v. Ramos, 149 N.H. court’s decision to join the charges unless we conclude that the decision premeditation in his scheming.”

p. 8 opportunities as they arose, but instead was “exhibit[ing] forethought and could have found that the defendant was not merely taking advantage of this way, the charges were mutually dependent. The trial court reasonably

plan of furthering his increasingly profitable relationship with Bayview, and, in

transaction or theft in which the defendant engaged was part of an overarching upon these findings, the trial court reasonably found that each fraudulent to carry out their own ends of processing as many bodies as possible. Based

participated in, the more reliant Bayview’s operators became upon his services reasonably competent assistance of counsel.

ineffective assistance claims that concern his theft by deception convictions.

conducted the requisite examinations. The more fraudulent transactions he Amendment to the Federal Constitution guarantee a criminal defendant the crematory, by, for example, signing cremation certificates when he had not examination fees he could collect. To do this, he maximized his availability to

recordable writings and theft by unauthorized taking, we address only his

Both Part I, Article 15 of the State Constitution and the Sixth

exclusive relationship with the operators of Bayview to increase the number of

we have reversed the defendant’s convictions for fraudulent handling of that his trial counsel rendered constitutionally effective assistance. Because Finally, the defendant contends that the trial court erred when it found

D. Ineffective Assistance of Counsel

say that the trial court unsustainably exercised its discretion by joining the

record supports the trial court’s finding that the defendant strove to develop an

depend upon the success of any other sale.”

on two different occasions to another cooperating person. four different occasions to one person who was cooperating with the police, and constituted mutually dependent acts that were part of a prior design. The could have found that the theft by deception and fraudulent handling charges In the instant case, we are persuaded that the trial court reasonably

be mutually dependent because “the success of any individual sale did not involved different people.” Id. at 443. The sales were not so intertwined as to “each of the sales committed by the defendant was a discrete event and 441. All the charges were joined for trial. Id. We reversed, observing that

were not part of a common plan. In that case, the defendant sold drugs on In Brown, as in San Giovanni, we concluded that the charges at issue

against multiple victims.” Id. at 676. decision, noting that the indictments involved “discrete offenses committed succeeded as to the first.” Id. at 674 (quotation omitted). We upheld this linking [him] to that conduct is obvious.” p. 9 wrongful conduct at Bayview,” the defendant asserts that “the prejudice of alleged to have played any part.” Because of the “inflammatory nature of the

publicized atrocities committed by Bayview – conduct in which [he] was not

defendant by] attempting to portray him as a co-conspirator in the widely the prosecutor’s objective was to try to bolster the State’s case against [the thing.” The defendant contends that “[i]t is clear from these arguments that

at Bayview” and told the jury that the defendant “helped Bayview do their

in the way it was.” In his closing, the prosecutor referred to the “shenanigans

whether counsel’s performance was deficient.”

really shouldn’t have been there, and business shouldn’t have been conducted that when the police investigated Bayview, they found “a lot of stuff . . . that that the defendant “had an exclusive business relationship with Bayview,” and

confidence in the outcome.”

it is easier to dispose of an ineffectiveness claim on the ground of lack of 318 (2001) (quotation and ellipsis omitted); see Strickland, 466 U.S. at 697 (“If

defendant is unable to demonstrate such prejudice, we need not even decide We first address the prejudice prong of the Strickland test. “If the

Bayview.” For example, in his opening statement, the prosecutor told the jury

different. A reasonable probability is a probability sufficient to undermine

review the ultimate determination of whether each prong is met not supported by the evidence or are erroneous as a matter of law, and we outcome of the case. and, second, that counsel’s deficient performance actually prejudiced the and fact.

because they implied that the defendant “was part of a larger conspiracy with assistance. He contends that the prosecutor’s arguments were improper counsel’s unprofessional errors, the result of the proceeding would have been statements in the prosecution’s opening and closing arguments was ineffective The defendant argues that his trial counsel’s failure to object to

Therefore, we will not disturb the trial court’s factual findings unless they are

State v. Whittaker, 158 N.H. ___, ___ (decided June 3, 2009).

must show, first, that counsel’s representation was constitutionally deficient Both prongs of the ineffectiveness inquiry involve mixed questions of law

defendant “must show that there is a reasonable probability that, but for v. Washington, 466 U.S. 668, 687-88 (1984). To meet the second prong, the representation fell below an objective standard of reasonableness.” Strickland the first prong of this test, the defendant “must show that counsel’s

To prevail upon a claim for ineffective assistance of counsel, a defendant

226, 231-33 (1983). Constitution, citing federal opinions for guidance only. State v. Ball, 124 N.H. 269 (2007). We first address the defendant’s claims under the State p. 10 10

under the State Constitution. result of the proceeding would have been different,”

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

necessarily, we reach the same result under the Federal Constitution as we do remarks is “obvious,” fails to demonstrate “a reasonable probability that the ineffective assistance of counsel is the same under both constitutions, Because the standard for determining whether a defendant has received

statements, the defendant cannot prevail upon his ineffective assistance claim. his trial would have been different had his counsel objected to the prosecutor’s 279. Having failed to demonstrate a reasonable probability that the result of that they were improper, they were only marginally so, see Kepple, 155 N.H. at not evidence, see State v. Flynn, 151 N.H. 378, 390 (2004), and, to the extent prosecutor’s statements. Trial counsel’s opening and closing arguments are (quotation and ellipsis omitted), had his trial counsel objected to the

The defendant’s conclusion that any prejudice from the prosecutor’s

followed.”). sufficient prejudice, which we expect will often be so, that course should be