2009-678, State of New Hampshire v. Horace W. Seymour, III

Michael A. Delaney

No. 2009-678

Hillsborough-southern judicial district

Seymour, III, was convicted of two counts of theft by unauthorized taking. See DALIANIS, C.J. Following a jury trial, the defendant, Horace W.

“person,” see RSA 637:2, IV (2007), :3, I; RSA 625:11, II (2007). We affirm. Cohen & Winters, PLLC the evidence was insufficient to establish that he took the property of another C:4, I, :5, II-a (2009), and his motion to dismiss the charges on the ground that erred by denying his motion to suppress his financial records, see RSA 359- RSA 637:3 (2007). On appeal, he argues that the Superior Court (Groff, J.)

brief), for the defendant. orally), and EF Nappen Attorney at Law PC, of Concord (Evan F. Nappen on the

attorney general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 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 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as p. 2 Right to Privacy Act. See records, arguing that they were obtained in violation of the New Hampshire Before trial, the defendant moved to suppress evidence of his financial

employer, Masstech, Inc., in the amount of $2,497.35. alleged that he exercised unauthorized control of funds belonging to his former unauthorized control of town funds in the amount of $135,000. The other unauthorized taking. One indictment alleged that the defendant exercised A grand jury indicted the defendant for two counts of theft by

executed search warrants for the town’s and the defendant’s bank records. discovered in her investigation. Thereafter, the chief investigator obtained and that prompted her investigation as well as the other transactions she had gave the chief investigator the defendant’s name and described the transaction general’s office returned the regional security officer’s call, the security officer bank by an elected official. When the chief investigator for the attorney call so that she could report information about possible wrongdoing at the Hampshire Attorney General’s Office and requested that someone return her indicated on the deposit slip. The security officer contacted the New into the defendant’s personal account, and not into the town’s account, as that there were at least six other transactions in which funds were deposited who reviewed the town’s and the defendant’s bank accounts and discovered The branch manager notified TD Banknorth’s regional security officer,

denied.

the incident. it at the office.” Later, she and her supervisor told the branch manager about the defendant, he told her to continue with the deposit, and that he would “fix listed the defendant’s personal account number. When the teller confronted specified, she discovered that, although the slip read “Town of Litchfield,” it However, when she began to deposit the withdrawn funds into the account he withdrawal from the town’s bank account that the defendant requested. Banknorth to make several transactions. The teller processed the first On February 21, 2008, the defendant went to the Hudson branch of TD

to transfer money from town bank accounts to his own accounts. Nor did he have the authority to commingle town funds with his own funds or bills or make disbursements without approval from the board of selectmen. responsible for signing town checks to vendors. He was not authorized to pay the town and depositing them into the town’s bank accounts. He was also 2008. His responsibilities included receiving the cash and checks collected by and chair of the recreation commission for the Town of Litchfield from 2005 to The record reveals the following facts. The defendant was the treasurer p. 3 RSA 359-C:2, II (2009). Towards this end, RSA 359-C:4, I, provides: between financial institutions and creditors and their respective customers.” The stated purpose of the Act “is to protect the confidential relationship

circumstances. See records, or the information they contain, except under certain specified receiving, and financial institutions from providing, customer financial or credit The Right to Privacy Act prohibits government officials from requesting or

485, 486 (2002). (3) injunctive relief, see RSA 359-C:14 (2009). See Cross v. Brown, 148 N.H. C:8, I(c), :10, I(b) (2009); (2) criminal penalties, see RSA 359-C:12 (2009); and the Act: (1) quashing of an administrative or judicial subpoena, see RSA 359-

been suppressed. See were unlawful, and the evidence seized pursuant to the warrants should have which presents a question of law that we review de contained in his financial records, the warrants based upon this information Resolving this issue requires that we engage in statutory interpretation, attorney general’s chief investigator from requesting or receiving information whole. Id motion to suppress. He contends that because RSA 359-C:4, I, precluded the. and phrases in isolation, but rather within the context of the statute as a The defendant first argues that the trial court erroneously denied his ___, ___ (decided November 30, 2010). Moreover, we do not consider the words erroneous. Our review of the trial court’s legal conclusions, however, is de overall purpose and avoid an absurd or unjust result. In re Alex C. its factual findings unless they lack support in the record or are clearly, 161 N.H. to include. Id “In reviewing the trial court’s order on a motion to suppress, we accept. We construe all parts of a statute together to effectuate its legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the ascribe the plain and ordinary meaning to the words used. Id. We interpret 160 N.H. 699, 702 (2010). When examining the language of a statute, we

novo.” State v. Johnson, 159 N.H. 109, 111 (2009).

any evidence obtained in violation of the Right of Privacy Act is proper remedy).

motion, and this appeal followed. meaning of RSA 625:11, II. See RSA 637:2, IV, :3, I. The trial court denied the doubt, that either the town or Masstech, Inc. was a “person” within the charges on the ground that the State had failed to prove, beyond a reasonable At the close of the State’s case, the defendant moved to dismiss the records, copies thereof, or the information contained therein if the p. 4 state or local agency or department thereof any financial, or credit authorize another to provide to an officer, employee or agent of a nor any director, officer, employee, or agent thereof may provide or 359-C:8, 359-C:9 or 359-C:10, no financial institution or creditor,

Except in accordance with requirements of RSA 359-C:7,

RSA 359-C:5, I (2009) similarly provides:

(Emphasis added.)

C:10. judicial subpoena or subpoena duces tecum pursuant to RSA 359- (d) Such financial records are disclosed in response to a

or search warrant meeting the requirements set forth in RSA 359-C:9;

(c) Such financial records are disclosed in response to a

administrative subpoena meeting the requirements set forth in

(b) Such financial records are disclosed in response to an

RSA 359-C:7; precludes a financial institution from providing, a bank customer’s financial precludes the government from requesting or receiving, and RSA 359-C:5, I, Thus, when a criminal or civil investigation is pending, RSA 359-C:4, I,

(a) Such customer has authorized such disclosure under

(Emphasis added.)

of the investigation giving rise to such request and:

formal judicial or administrative proceedings. whether or not such investigation is being conducted pursuant to connection with a civil or criminal investigation of the customer, financial or credit records or information are being requested in creditor knows or has reasonable cause to believe that such director, officer, employee or agent of the financial institution or

particularity and are consistent with the scope and requirements

creditor unless the financial or credit records are described with credit records of any customer from a financial institution or receive copies of, or the information contained in, the financial or

formal judicial or administrative proceedings, may request or whether or not such investigation is being conducted pursuant to connection with a civil or criminal investigation of a customer, agent of a p. 4 state or local agency or department thereof, in Except as provided in RSA 359-C:11, no officer, employee, or financial or credit information which is not identified with, or identifiable as p. 5 chapter” prohibits a financial institution from “disseminat[ing] . . . any customer’s authorization. RSA 359-C:11, I, provides that “[n]othing in this financial institution may disclose information even without legal process or the Similarly, RSA 359-C:11, I, and RSA 359-C:5, II-a explain when a

closed.

(f) Date account opened and, if applicable, date account

signature card;

(e) A copy of the signature appearing on a customer’s

account balance on such dates;

(d) The dates and amounts of deposits and debits and the

to pay overdrafts; credit arrangement between the financial institution and customer

paid which created overdrafts and a statement explaining any

(c) The dollar volume of such dishonored items and items

(b) The number of items paid which created overdrafts;

(a) The number of items dishonored;

occurrence of the alleged illegal act involving the account: of 30 days prior to and up to 30 days following the date of by the police or sheriff’s department or county attorney for a period following information with respect to a customer account specified a financial institution shall supply, a statement setting forth the county attorney may request a financial institution to furnish, and institution in this state, such police or sheriff’s department or use of drafts, checks or other orders drawn upon any financial

crime report has been filed which involves the alleged fraudulent in this state certifies to a financial institution in writing that a

process or the customer’s authorization. See information when a criminal or civil investigation is pending without legal the county attorney may obtain a customer’s otherwise confidential financial RSA 359-C:11, II explains the circumstances under which law enforcement or 359-C:5, I, are contained in RSA 359-C:11 (Supp. 2010) and RSA 359-C:5, II-a. The exceptions to the prohibitions set forth in RSA 359-C:4, I, and RSA

When any police or sheriff’s department or county attorney

482-83 (1988). It provides:

by judicial subpoena or subpoena duces tecum). financial records by search warrant), :10 (2009) (process for obtaining records administrative subpoena or summons), :9 (2009) (process for obtaining obtaining customer’s authorization), :8 (2009) (process for obtaining or with the customer’s authorization. See RSA 359-C:7 (2009) (process for records or the information contained therein except pursuant to legal process financial records, as provided in RSA 359-C:9. See p. 6 lawfully applied for and obtained warrants for the defendant’s and the town’s RSA 359-C:5, II-a. Armed with this information, the attorney general’s office confidential financial information to the attorney general’s chief investigator. to “defraud” the town, the regional security officer revealed the defendant’s “reasonable cause to believe” that the defendant was using the bank’s services Disclosure was permissible pursuant to RSA 359-C:5, II-a. Having

defendant’s otherwise confidential financial information. regional security officer from providing the attorney general’s office with the 359-C:5, I, also does not apply. RSA 359-C:5, I, therefore, did not preclude the report his misconduct, or when the chief investigator returned her call, RSA conducted about the defendant when she called the attorney general’s office to reasonable cause to believe a civil or criminal investigation was being Similarly, because the regional security officer did not know and had no

defendant’s otherwise confidential financial information. prohibit the attorney general’s office from requesting or receiving the upon it is misplaced. Contrary to his assertions, RSA 359-C:4, I, did not the defendant, RSA 359-C:4, I, does not apply, and the defendant’s reliance officer’s call. Because there was no pending criminal or civil investigation of security officer contacted it or when the chief investigator returned the security civil or criminal investigation of the defendant either when the bank’s regional In the instant case, the attorney general’s office was not engaged in a

defraud the institution or any other person.

or other person, is utilizing the services of the institution to

financial institution has reasonable cause to believe the customer,

of a customer or any other person, or the information contained either of their authorized designees, the financial or credit records the warrants issued based upon the information the bank disclosed pursuant from disclosing to the county attorney or the attorney general, or 738, 740-42 (1984). Therefore, the statutory scheme was complied with, and This section is not intended to prevent a financial institution State v. Sheedy, 124 N.H.

359-C:5, II-a provides: cause to believe that the customer is using its services to commit fraud. RSA attorney or attorney general when the financial institution has reasonable disclose a customer’s otherwise confidential financial information to the county Additionally, under RSA 359-C:5, II-a, a financial institution may

that is not identifiable with a particular customer. Under this provision, therefore, a financial institution may provide information being derived from, the financial or credit records of a particular customer.” the meaning of RSA 625:11, II. See p. 7 reasonable doubt, that both the town and Masstech, Inc. were “persons” within State, we hold that a rational trier of fact could have found, beyond a all reasonable inferences from it, viewed in the light most favorable to the ample evidence that Masstech, Inc. is a corporation. Given this evidence and There was abundant evidence that the town is a town. There was also Affirmed

DUGGAN, HICKS and CONBOY, JJ., concurred.

doubt, that both the town and Masstech, Inc. were persons under this statute. conclude that a rational trier of fact could have found, beyond a reasonable reasonable inferences from it in the light most favorable to the State, we within the meaning of RSA 625:11, II. See constitutes a “person” under the Criminal Code, viewing the evidence and all deciding, that RSA 625:11, II, sets forth a comprehensive list of what 7 prove, beyond a reasonable doubt, that he took the property of a “person” corporation or an unincorporated association.” Even if we assume, without contends that to convict him of theft by unauthorized taking, the State had to RSA 625:11, II defines a “person” to “include any natural person and, a

individuals.”). ‘person’ may extend and be applied to bodies corporate and politic as well as to prosecute and defend, in any court or elsewhere.”); RSA 21:9 (2000) (“The word corporate and politic, and by its corporate name may sue and be sued,

We assume, without deciding, that the defendant is correct when he

record to make that determination.” State v. Hull appeal . . . is the sufficiency of the evidence and we review the entire trial to present a case after unsuccessfully moving to dismiss, . . . the issue on “person” within the meaning of RSA 625:11, II. “Because the defendant chose that the State failed to prove that either the town or Masstech, Inc. was a motion to dismiss the charges at the close of the State’s case on the ground The defendant next asserts that the trial court erroneously denied his

(discussing sufficiency of evidence burden of proof generally). defined by RSA 625:11, II. See State v. Evans, 150 N.H. 416, 424 (2003) beyond a reasonable doubt, that the town and Masstech, Inc. were “persons” as inferences from it in the light most favorable to the State, could have found, that no rational trier of fact, viewing all of the evidence and all reasonable prevail upon his sufficiency of the evidence claim, the defendant must prove

(2003).

not err when it denied the defendant’s motion to suppress. to RSA 359-C:5, II-a were not invalid. We hold, thus, that the trial court did