009-703, State of New Hampshire v. Jennifer Long

Following her conviction for resisting arrest, see

___________________________ Officer Sullivan was speaking with an individual regarding the domestic dispatched to 348 Main Street for a domestic disturbance complaint. While 7, 2008, Officer Timothy Sullivan of the Alton Police Department was The jury could have found the following facts. On the evening of October

Pamela E. Phelan

prior conviction for attempted fraudulent use of a credit card. We affirm. Court (McGuire, J.) permitting the State to impeach her credibility with her (Supp. 2010), the defendant, Jennifer Long, appeals a ruling of the Superior

and orally, for the defendant.

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 under an unsustainable exercise of discretion standard.” Holmes p. 2 “We review a trial court’s ruling to admit evidence of prior convictions

conviction should have been inadmissible under Rule 609(a)(2). of a credit card does not require proof of a dishonest act and that the Rule 609(a)(2). Second, she argues that the crime of attempted fraudulent use card to the facts underlying the conviction in determining admissibility under looked beyond the statutory elements of attempted fraudulent use of a credit On appeal, the defendant first argues that the trial court erred when it

Prior to trial, the State moved in

card. The jury convicted her of resisting arrest. This appeal followed. impeached with her prior conviction for attempted fraudulent use of a credit At trial, the defendant took the stand in her own defense and was

the prejudice of his case.” Id. demonstrate that the court’s ruling was clearly untenable or unreasonable to 175. “To show an unsustainable exercise of discretion, the defendant must

stop, and the officers eventually had to subdue her. disturbance complaint. She ignored several instructions from Tremblay to agitated” manner while they were attempting to handle the domestic The defendant subsequently approached the officers in a “hostile and card conviction. property conviction but denied as to the attempted fraudulent use of a credit use the card. The defendant’s motion was granted as to the receiving stolen was using a credit card that was stolen and that she unsuccessfully tried to the underlying charging documents, which alleged that the defendant knew she an act of dishonesty or false statement. The trial court apparently relied upon asserted that the statutory elements of an attempt crime do not require proof of was the attempted fraudulent use of a credit card conviction. The defendant that not only was the receiving stolen property conviction inadmissible, but so the court to reconsider its prior ruling in light of the new decision. She argued Hampshire Rule of Evidence 609(a)(2). On the day of trial the defendant asked involving an act of dishonesty or false statement for purposes of New 159 N.H. 173 (2009), which held that receiving stolen property is not a crime without objection. Just prior to trial, we issued our opinion in State v. Holmes, credit card to impeach her if she chose to testify. The motion was granted convictions for receiving stolen property and attempted fraudulent use of a

police officers. high speed from which the defendant emerged, shouting obscenities at the two made the domestic disturbance call. A car then pulled onto the property at disturbance, Officer Tracy Tremblay arrived and spoke with the woman who dishonesty or false statement. Where the deceitful nature of the p. 3 statutory elements of the crime will indicate whether it is one of admit, an act of dishonesty or false statement. Ordinarily, the the conviction required the factfinder to find, or the defendant to The amendment requires that the proponent have ready proof that

states: amendment is persuasive in interpreting this state’s 2007 amendment. It 2006 federal amendment. Thus, the committee note to the 2006 federal As noted above, the 2007 amendment to Rule 609(a)(2) is identical to the

dishonesty or false statement by the witness.” N.H. R. Ev. establishing the elements of the crime required proof or admission of an act of conviction for impeachment purposes “if it readily can be determined that According to the plain language, the court must admit a witness’s prior conviction.”). deceit, if the government has to prove deceit or dishonesty to obtain the within Rule 609(a)(2), even though the statutory elements do not include Evidence § 609.04[2][b] (J. McLaughlin, ed., 2d ed., 2010) (“[C]rimes come elements of the crime. See 4 J. Weinstein & M. Berger, Weinstein’s Federal should look to what the State actually needed to prove to establish the plain and ordinary meaning of the words used, the rule suggests that a court meaning of the words. Holmes 609(a)(2). By the When interpreting a rule of evidence we will first look to the plain

N.H. R. Ev.

interpreter of our rules. Id witness.. at 175-76. interpreting analogous New Hampshire Rules of Evidence, we are the final proof or admission of an act of dishonesty or false statement by the piecemeal. Id. While decisions of the federal courts may be helpful in Hampshire Rule of Evidence 102. Id. We construe rules in their entirety, not look to the rule’s history to aid in our interpretation, consistent with New ambiguous, or where more than one reasonable interpretation exists, we will

609(a)(2).

determined that establishing the elements of the crime required shall be admitted regardless of the punishment, if it readily can be witness, evidence that any witness has been convicted of a crime For the purpose of attacking the character for truthfulness of a

Id. The amended rule provides in relevant part: amended to mirror the 2006 amendment to Federal Rule of Evidence 609(a). New Hampshire Rule of Evidence 609(a)(2). In October 2007, Rule 609(a) was This is the first occasion we have had to examine the amended version of the defendant attempted to fraudulently use a credit card, the State had to p. 4 substantial step toward the commission of the crime.” In order to prove that circumstances as he believes them to be, is an act or omission constituting a that a crime be committed, he does or omits to do anything which, under the I (2007), a person is “guilty of an attempt to commit a crime if, with a purpose fraudulent use of a credit card statute is of no consequence. Under RSA 629:1, That the defendant was charged under the attempt variant of the

else, conviction under this statute clearly falls within Rule 609(a)(2).

services. Because this act necessarily involves falsely claiming to be someone that a defendant knowingly used a stolen credit card to obtain goods or stolen.” In establishing the elements of RSA 638:5, I(a), the State must prove the purpose of obtaining property or services with knowledge that [t]he card is crimen person is guilty of fraudulent use of a credit card if [s]he uses a credit card for or false statement. We disagree. RSA 638:5, I(a) (2007) provides that “[a] use of a credit card does not require proof or admission of an act of dishonesty Second, the defendant argues that a conviction for attempted fraudulent

proceeding to determine whether the crime was in the nature of

nature of a criminal conviction. Cf of charging documents and jury instructions in establishing the deceitful determine whether Rule 609(a)(2) applies to a prior conviction. It is thus clear from the committee note that the rule anticipates the use discretion when it looks beyond the statutory elements of the crime to the defendant’s argument that a court commits an unsustainable exercise of confirmed by the defendant, or a comparable judicial record). We thus reject between judge and defendant in which the factual basis for the plea was document’s terms, the terms of a plea agreement or transcript of colloquy plea admitted certain elements, court was limited to using the charging States trial” in which the court plumbs the record of the previous, 544 U.S. 13, 26 (2005) (in determining whether a defendant’s guilty instructions to ascertain the nature of a prior offense); Shepard v. United convicted. . . . But the amendment does not contemplate a “mini- (1990) (providing that a trial court may look to a charging instrument or jury

Fed. R. Ev. 609 advisory committee’s note on 2006 amendment.

falsi.

dishonesty or false statement in order for the witness to have been factfinder had to find, or the defendant had to admit, an act of statement of admitted facts, or jury instructions to show that the — a proponent may offer information such as an indictment, a guilt for a statutory offense that does not reference deceit expressly — as, for example, where the conviction simply records a finding of crime is not apparent from the statute and the fact of the judgment p. 5 5

Affirmed

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

Rule 609(a)(2). false statement may properly be admitted for impeachment purposes under under an attempt variant of a crime requiring proof of an act of dishonesty or grounds, 96 P.3d 974 (Wash. 2004). Accordingly, we hold that a conviction of dishonesty, which is per se admissible under Rule 609(a)(2)), aff’d on other P.3d 402, 409 (Wash. Ct. App. 2003) (finding that attempted robbery is a crime culpability and dishonesty as does the crime of forgery itself”); State v. Teal, 73 1989) (“under Utah law, the crime of attempted forgery involves the same of impeaching his credibility.”); State v. Ross, 782 P.2d p. 5 529, 531 (Utah Ct. App. evidence of the defendant’s prior convictions for those offenses for the purpose and that the trial court therefore did not err in permitting the introduction into theft and attempted receiving stolen property are offenses involving dishonesty 482 (Ohio Ct. App. 1981) (“We hold that the offenses of attempted forgery, petty attempt comes within Rule 609(a)(2). See State v. Taliaferro, 442 N.E.2d 481, Thus, because the ultimate purpose is to commit an act of dishonesty, the else and using that person’s stolen credit card to obtain goods and services. statement, the act is done with the purpose of ultimately posing as someone attempt, e.g., entering a store, is not itself an act of dishonesty or false the credit card fraud actually be committed. Even if the act constituting the credit card fraud, and that she took that substantial step with the purpose that prove that the defendant took a substantial step toward the commission of the