2011-889, State of New Hampshire v. Karen Gagne

The defendant, Karen Gagne, appeals her convictions

and orally, for the defendant. Brianna M. Sinon, assistant appellate defender, of Concord, on the brief

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

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 business office manager that there was a difficulty with one of the victim’s

p. 2 the defendant “was picking up [the victim’s] bills.” The defendant first told the

Pleasant View. The business office manager spoke with the defendant because In the fall of 2008, the victim fell behind in her rent payments at

loan was paid off using the funds from the victim’s certificate of deposit.

documents. Thereafter, in May 2008, at the victim’s request, the defendant’s assistant branch manager explained to them each paragraph of the loan victim were both present at the closing of the loan, at which the MCSB

$100,000 certificate of deposit owned by the victim. The defendant and the

from Merrimack County Savings Bank (MCSB). The loan was secured by a In October 2007, the defendant took out a loan in the amount of $90,000

then used to pay various creditors of the defendant.

account. This money was deposited in the defendant’s personal accounts, and

September 2007, the defendant withdrew more than $180,000 from the joint liquidation check was in the defendant’s handwriting. Between mid-April and deposited into the joint account. The endorsement on the back of the

victim’s RBC annuity, with a value in excess of $350,000, was liquidated and

the victim’s Bow Mills account to the joint account. Shortly thereafter, the the joint account for her own use. On April 18, $60,000 was transferred from checks. The victim never told the defendant that she could take money from

was to allow the defendant to better assist her with paying bills or cashing

Citizen’s Bank. The victim understood that the purpose of the joint account defendant and the victim opened a joint bank account (joint account) at endorsed the back of the annuity check “For deposit only.” On April 13, the

liquidated and deposited into her Bow Mills bank account. The defendant On April 6, 2007, the victim’s OM Financial annuity of $89,000 was

properties, including a home in Florida. and $400 from an OM Financial annuity. The victim also owned several

$900 from Social Security, $3,000 from an RBC annuity, $615 from a trust,

that time, the victim’s monthly income was approximately $5,000, comprised of handling the victim’s bills, including payment of her rent at Pleasant View. At had previously had an accountant pay her larger bills, the defendant began

nail appointments, and taking her to lunch. In addition, although the victim

View), and the defendant began driving the victim to doctors’ appointments and friendship. The victim moved to Pleasant View Retirement Home (Pleasant In the summer of 2006, the defendant and the victim rekindled their

defendant to move out. companions in the victim’s home for at least one year until the victim asked the victim’s home. The two became friends and subsequently lived together as

victim in the 1980s when the defendant performed landscaping services at the The jury could have found the following facts. The defendant met the motion to dismiss is well established. State v. Marshall, 162 N.H. 657, 666 p. 3 Our standard of review of the trial court’s denial of the defendant’s

her of any of the charges.

motion to dismiss. She contends that there was insufficient evidence to convict

On appeal, the defendant argues that the trial court erred in denying her

denied the motion, and the jury returned a guilty verdict on all counts. dismiss the charges based upon insufficiency of the evidence. The trial court

was held in 2011. At the close of all of the evidence, the defendant moved to

taking and two counts of theft by misapplication of property. An eight-day trial The defendant was charged with nine counts of theft by unauthorized

director contacted the Attorney General’s Office.

happened that she was so far behind. Thereafter, Pleasant View’s executive the victim was “very upset” and that she did not understand how it had victim about her delinquent rent. The business office manager testified that

to the executive director and they both then had another conversation with the

so. When the victim’s bill remained unpaid, the business office manager went

get the victim’s bill paid. The business office manager gave her one week to do contacting the victim directly. The defendant responded that she was trying to victim was so far behind in her rent that the legal department would be In October 2009, the business office manager told the defendant that the

paid.” the defendant said “that she would pick up the bill and make sure that it was

notified her that the victim was misplacing the bills or throwing them away and

element, it must exclude all reasonable conclusions except guilt. State v.

finding of guilty beyond a reasonable doubt.” State v. Guay, 162 N.H. 375, 381 again contacted the defendant because, at that point, the defendant had payment, the victim again fell behind in her rent. The business office manager could have found guilt beyond a reasonable doubt.” Id. (quotation omitted). payment” for the victim’s unpaid rent in January 2009; however, following that

(2011) (quotation omitted). When the evidence is solely circumstantial as to an

N.H. 678, 686 (2007). “Circumstantial evidence may be sufficient to support a We review the evidence in context, and not in isolation. State v. Huffman, 154

and all reasonable inferences from it in the light most favorable to the State, market and they were waiting for it to be sold. Pleasant View received “back defendant must prove that no rational trier of fact, viewing all of the evidence (2011). “To prevail upon [her] challenge to the sufficiency of the evidence, the

victim’s bill, the victim stated that she had put her Florida property on the the executive director of Pleasant View, the victim, and the defendant about the to work [it] out.” At some point in late 2008, during a conversation between

money from the victim “and that she and the family and the bank were trying bank accounts, but later said that the victim’s grandson or nephew had stolen p. 4 There was no evidence that the victim signed the checks before the defendant trusting that the defendant would properly handle the rest.” We disagree.

jury to find that [the victim] would not have hesitated to sign blank checks,

testified that the defendant helped her pay her bills, “[i]t was reasonable for the victim signed each check. The State contends that, because the victim Although the payee section was filled out in the defendant’s handwriting, the

from the victim’s Bow Mills bank account were made payable to the defendant. The State presented evidence that from January to April 2007, six checks

the defendant committed this offense.

favorable to the State, we agree that the evidence was insufficient to prove that

A. Unauthorized Control

another. We address each argument in turn. evidence and all reasonable inferences to be drawn from it in the light most

See RSA 637:3; see also RSA 637:2, IV (2007) (defining “property of another”).

788 (2005) (holding that evidence was sufficient to prove that use of funds was without first reviewing the payee section. Cf. State v. Emery, 152 N.H. 783, filled them out. Nor was there any evidence that the victim signed the checks

prove that the property at issue in the remaining charges was the property of accounts . . ., and used the proceeds for her own benefit.” Considering the transactions, transferred the money without authorization to [the defendant’s] from a Bow Mills Bank account belonging to [the victim] through a series of

property of another; (3) with the purpose to deprive the other of the property. the defendant (1) obtained or exercised unauthorized control over; (2) the a purpose to deprive him thereof.” Thus, the State was required to prove that

unauthorized. She further contends that there was insufficient evidence to

of the charge which alleged, in relevant part, that the defendant “took $26,750 The defendant argues that there was insufficient evidence to convict her

1. Bow Mills Account

he obtains or exercises unauthorized control over the property of another with

evidence was insufficient to prove that the transactions at issue were The defendant maintains that, with respect to two of the charges, the

Germain, 165 N.H. __, __ (2013). We emphasize, however, that the proper

RSA 637:3, I, a person is guilty of the crime of theft by unauthorized taking “if to convict her of the nine charges of theft by unauthorized taking. Pursuant to The defendant first argues that the State introduced insufficient evidence

whether other reasonable conclusions have been excluded. Id. analysis is not whether every possible conclusion has been excluded, but p. 5 [the victim], or actively deceived her, with regard to the loan related documents

supports the inference “that the defendant either purposely did not explain to

addition, the State cites evidence related to other charges that it contends deposit to be used as collateral for, or to pay off, the defendant’s loan. In “relative frugality” that she did not authorize the money from the certificate of The State argues that the jury could reasonably infer from the victim’s

collateral be used to pay off the defendant’s loan. She stated that the victim later came into the bank and requested that the

the closing of the loan and that the victim was aware of the amount of the loan.

defendant and the victim. She further testified that the victim was present at the loan. She stated that she would have explained the paperwork to both the victim signed the paperwork assigning the certificate of deposit as collateral for

for the defendant’s loan, and further testified that she was present when the

manager confirmed that the victim’s certificate of deposit was used as collateral deposit the remainder into her checking account. The MCSB assistant branch bank to use her certificate of deposit to pay off the defendant’s loan, and to her. The victim acknowledged that she sent a letter to MCSB directing the

2. Certificate of Deposit

conviction on this charge. did not authorize the checks at issue and we therefore reverse the defendant’s rational juror could not have found beyond a reasonable doubt that the victim

signed the paperwork without first having read it or having it “translated” to

this evidence in the light most favorable to the State, we conclude that a

deposit as collateral for the defendant’s loan, and further acknowledged that it At trial, the victim testified that she authorized use of her certificate of

me but not cold, not just here, sign this paper. No way.” Accordingly, viewing victim stated, “Not unless she explained it in detail. If it was well explained to she would sign something if the defendant recommended that she do so, the

defendant’s use of these funds. the bank to repay the loan using her certificate of deposit,” she authorized the application[,] . . . attended the closing of the loan, and . . . personally directed

without first “perus[ing] it somewhat.” Indeed, when questioned as to whether

loan from MCSB. She maintains that because the victim “signed the loan

she would not sign paperwork presented to her unless she understood it and defendant “might fill out a check and I would sign it.” She further testified that usually look at checks that he signed). Rather, the victim testified that the

unauthorized to use the victim’s certificate of deposit to secure and repay her The defendant further argues that the State failed to prove that she was

checks before he signed them and there was testimony that victim did not unauthorized where “nothing in the record” indicated that victim looked at unauthorized withdrawals. See Emery, 152 N.H. at 787 (addressing similar

p. 6 be convicted of stealing from the other party to the account by making

have never directly addressed whether a party to a joint checking account may of RSA 637:2, IV, defining ‘property of another,’ excludes joint accounts.” We of theft by unauthorized taking from the joint account because “[t]he language The defendant argues that there was insufficient evidence to convict her

merits of the argument. Thus, we conclude that the argument was properly preserved and address the

close or move funds.” The defendant makes the same argument on appeal.

justice.” RSA 625:3 (2007). B. Property of Another language that the legislature did not see fit to include. Id. We construe the defendant’s conviction on this charge is, accordingly, reversed. meaning to the words used. Id. We interpret legislative intent from the statute

legislature as expressed in the words of a statute considered as a whole. Id.

placed into a joint account, “each person has complete authority to withdraw, each [has] equal and total rights to the account,” and, therefore, once money is “fundamental [principle] of a joint account [is] that it is jointly owned and that Criminal Code “according to the fair import of [its] terms and to promote

as written and will not consider what the legislature might have said or add used the funds from the victim’s certificate of deposit to pay off her loan. The When examining the language of the statute, we ascribe the plain and ordinary

matters of statutory interpretation, we are the final arbiters of the intent of the which we review de novo. State v. Thompson, 164 N.H. 447, 448 (2012). In in statutory interpretation. The interpretation of a statute is a question of law, issue under plain error rule). Resolution of this issue requires that we engage

insufficient evidence, the charges related to the joint account because a

based in order to preserve the issue for appeal. Guay, 162 N.H. at 380. Here, A motion to dismiss must state the specific ground upon which it is prove that the defendant committed theft by unauthorized taking when she Under these circumstances, we conclude that the evidence was insufficient to The State contends that this argument is not preserved for appellate review. authorize the use of her certificate of deposit to pay off the defendant’s loan.

at the close of all of the evidence, the defendant moved to dismiss, for

taking was the property of another because it was held in the joint account. not sufficient to establish, beyond a reasonable doubt, that the victim did not that the property at issue in the remaining charges of theft by unauthorized she signed.” However, in light of the evidence presented, these inferences are The defendant next argues that there was insufficient evidence to prove p. 7 Laws, Report of Commission to Recommend Codification of Criminal Laws §

give rise to theft liability.” Commission to Recommend Codification of Criminal

has an interest in the property.” Thus, . . . [p]arties to joint bank

other interests in the same property [that the thief also has an interest in] can

property held by another “regardless of the fact that the actor also the definition of “property of another” that includes an interest in theft under Section 223.2. This result follows from the provision in

explained that it establishes “the general rule that unauthorized dealing with the Commission to Recommend Codification of Criminal Laws (Commission) “[p]roperty of another” includes a joint bank account. In drafting the statute,

considered the owner of property may nevertheless be convicted of There are circumstances when a person ordinarily

“[p]roperty of another” includes a joint bank account. See Com. v. Mescall, 592

privileged to infringe.” Obviously, this concept includes any deemed ambiguous, we would not interpret the statute as the defendant Moreover, even assuming that the term “property of another” could be

language of the statute thus supports the conclusion that the definition of

property in which more than one person has an interest – e.g., partnership purpose of RSA 637:2, IV is to include within the sweep of the Criminal Code person other than the actor has an interest which the actor is not defines “property of another” to include any property “in which any prior case law “holding that a partner cannot steal partnership property.” Id. property is irrelevant). commentary to the Model Penal Code explains that this section Commission to Recommend Codification of Criminal Laws, supra. The relevant of another” adopts section 223.0(7) of the Model Penal Code. See Report of Furthermore, as the Commission recognized, our definition of “property

common. State v. Marion, 122 N.H. 20, 22 (1982). the person charged has an interest in the property is irrelevant. The plain property, leased property, and property held by joint tenancy or by tenancy in in the property.” The plain language of the statute makes clear that whether privileged to infringe, regardless of the fact that the actor also has an interest

Consistent with the Commission’s report, we have since observed that the

582:2 cmts. at 62 (1969). The Commission explained that this rule reversed same language and concluding that whether defendant may have an interest in

in which any person other than the actor has an interest which the actor is not RSA 637:2, IV defines “property of another,” in relevant part, as “property

A.2d 687, 691 (Pa. Super. Ct. 1991) (interpreting Pennsylvania statute with p. 8 II. Theft by Misapplication of Property

joint account were the “[p]roperty of another.” Accordingly, we conclude that the evidence was sufficient that the funds in the defendant to make withdrawals from the joint account for her own needs.

with “big bills.” The victim further testified that she never authorized the

the purpose of the joint account was to allow the defendant to better assist her appropriate the victim’s interest in those funds. Here, the victim testified that the account, however, does not mean that the defendant was privileged to

defendant did not need the victim’s permission in order to withdraw funds from

permission for her to withdraw funds from the account. The fact that the defendant argues that the terms of the account did not require the victim’s in the joint account for the defendant’s own use. RSA 637:2, IV. The

account.” Id. at 169.

defendant was not privileged to infringe upon the victim’s interest in the funds

owner may be convicted of stealing “by unauthorized withdrawals from the account in the circumstances under which that owner withdrew them, that provide one owner of the account with a privilege to take funds from the

Here, we conclude that the evidence was sufficient to prove that the

owner); State v. Gard, 742 N.W.2d 257, 262 (S.D. 2007) (recognizing that “the

arrangement. With respect to a joint account, if the arrangement does not conceal money from wife and committed theft by doing so); State v.

examining similar statutory language. See, e.g., LaParle v. State, 957 P.2d Our interpretation is supported by the decisions of other courts

when he misappropriates funds from his partnership”). law in most states today is that a partner can be found guilty of embezzlement

owner of corporation was not privileged to infringe upon interest of another co- Radzvilowicz, 703 A.2d 767, 779-80 (Conn. App. Ct. 1997) (holding the cofunds were the property of another, we look to the privilege established by the asset, was “property of another,” and thus, husband was not privileged to established by the arrangement.” Id. Thus, to determine whether a person 330, 333 (Alaska Ct. App. 1998) (holding that money, which was a marital

the owner is immaterial. Id. at 168. Instead, what is important is that “the “property of another,” the formality of the arrangement between the thief and The commentary further explains that, for purposes of the definition of

Model Penal Code § 223.2 cmt 4, at 168-69 (Official Draft and Revised

unauthorized withdrawals from the account. was privileged to appropriate funds in a joint account, and, hence, whether the accounts . . . may be convicted of stealing from each other by

thief sets out to appropriate a property interest beyond any privilege

Comments 1980) (footnote omitted). money.” The victim stated that she believed the defendant to be a good

p. 9 taken over paying her bills and that “[a]ny major bill, she paid out of my

A. Legally Obligated

she and the victim could “do that.” The victim testified that the defendant had the defendant intimated that the victim did not need the accountant and that “pressure” from the defendant, the victim terminated that relationship because

own. disposition and deals with the property obtained or withheld as his

to assist her with paying bills. However, in December 2006, as a result of

purposely or recklessly fails to make the required payment or

evidence, that for many years, the victim relied upon her long-time accountant payment” to Pleasant View. RSA 637:10, I. At trial, the State presented agreement, or subject to a known legal obligation, to make a specified

property to be reserved in an equivalent or agreed amount, if he

had to prove that the defendant obtained property from the victim “upon To convict the defendant of theft by misapplication of property, the State

View.” We agree.

whether from that property or its proceeds or from his own to make a specified payment or other disposition to a third person, employee upon agreement, or subject to a known legal obligation,

best interests in handling funds that were designated for payment to Pleasant

if he obtains property from anyone or personal services from an

demonstrate that “she had the requisite legal obligation to act in [the victim’s]

property RSA 637:10, I, provides that a person commits theft by misapplication of

serving the victim in a fiduciary capacity,” the facts of the case amply document that, by its terms, technically established that the defendant was rent at Pleasant View.” The State counters that, although “there was no

victim’s] account at [Pleasant View] to fall into arrears.” pay for personal expenses “that did not benefit [the victim], allowing [the recklessly failed to use the money to pay [Pleasant View] and instead” used it to

“owed [the victim] a legal obligation as her financial representative to pay her

of the victim’s money, the value of which was more than $1,000, “but

obligation to help the victim pay her bills,” the State failed to prove that she The defendant first argues that, although she “may have had a moral

purpose of paying her monthly bill at Pleasant View, obtained certain amounts that the defendant, while serving as the victim’s financial representative for the her of the charges of theft by misapplication of property. These charges alleged The defendant next argues that the evidence was insufficient to convict were then deposited into the defendant’s personal bank account. Viewing all

p. 10 were three withdrawals from the joint account totaling at least $23,000 that

evidence further shows that within eight days of the March 2009 deposit, there $22,000, and the funds were used to pay the defendant’s creditors. The deposit, there were seven withdrawals from the joint account totaling over

paid to Pleasant View. Instead, within two weeks of the November 2008

637:10 to pay the victim’s rent at Pleasant View. See RSA 637:10, I; State v. deposited each $25,000 payment into the joint account, but the money was not November 25, 2008, and March 19, 2009, respectively. The defendant two payments of $25,000 each were received from the sale proceeds, on

the defendant had an “agreement, or . . . known legal obligation” under RSA favor of the State, we conclude that there was sufficient evidence to prove that understand why she was so far behind. Drawing all reasonable inferences in market and they were waiting for the property to be sold. Following the sale,

met with the victim regarding the bills, the victim was “very upset” and did not informed the executive director that she had put her Florida property on the with the victim and the defendant about the victim’s bills and the victim occasion, paid the bills. In late 2008, the executive director had a conversation

account. When the business office manager and the executive director finally bills paid, at one point stating that she would pay the bills from her own defendant told the business office manager that she was working on getting the defendant received the victim’s bills for the rent at Pleasant View and, on At trial, the evidence established that, in late 2008 and early 2009, the

manager that she would make sure that Pleasant View was paid. The

victim’s Florida home “subject to delivering them to Pleasant View.” evidence to prove that the defendant obtained the proceeds from the sale of the

repeatedly contacted the defendant, the defendant assured the business office behind with her rent payments, and after the business office manager and, in fact, the defendant had been paying the bills. When the victim fell

[the victim’s] rent.” The State disagrees, and contends that there was sufficient

Pleasant View that she would make sure that the victim’s bills would get paid,

specified in the indictments was designated for, and entrusted to [her] to pay, The defendant next argues that the State failed to prove that “the money

B. Designated Funds

misapplication of property). home’s mishandling of patient’s personal use funds constituted theft by Pleasant Hill Health Facility, Inc., 496 A.2d 306, 308 (Me. 1985) (nursing

View to deliver the victim’s bills to the defendant, that the defendant had told The State also presented evidence that the defendant had asked Pleasant

knew.” businessperson and characterized her as “one of the brightest women I ever offense, see RSA 637:2, V(b) (2007), and “[t]heft constitutes a class A felony if . . p. 11 the victim’s money, the value of the property taken affects only the grade of the Although the indictment alleged that the defendant obtained $150,014 of

victim’s Florida home. indictment were derived from the November 2008 proceeds from the sale of the

the crime charged. failed to show that the evidence was insufficient to prove that she was guilty of required to prove to support a class A felony conviction, the defendant has

theft by misapplication of property, and that the funds referred to in that

Since that amount clearly exceeds the $1,000 amount that the State was

that the certificate of deposit funds were not relevant to the charges alleging

Pleasant View, and that the defendant instead used the funds as her own. sale of the victim’s Florida home were designated for payment of her rent at beyond a reasonable doubt that more than $1,000 of the proceeds from the

the victim’s rent at Pleasant View. At trial, however, the State acknowledged to prove that the funds specified in the indictment were designated for paying 11 used to pay off the defendant’s loan, the defendant asserts that the State failed

excess of $1,000. Here, there was sufficient evidence for the jury to find

the defendant’s loan at MCSB. Because the victim allowed those funds to be

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

designated for payment of the victim’s rent at Pleasant View – had a value in part; and remanded.

from the victim’s certificate of deposit, which the victim agreed to use to pay off indictments alleging theft by misapplication of property included the funds Finally, the defendant argues that the $150,014 specified in one of the

elements set forth in RSA 637:10, I, only that the misapplied property – property, it was necessary for the State to prove, in addition to the other order to obtain a conviction for a class A felony of theft by misapplication of (amended 2010). See State v. French, 146 N.H. 97, 99-100 (2001). Thus, in pay, the victim’s rent at Pleasant View. Cf. Huffman, 154 N.H. at 686-87 . [t]he value of the property . . . exceeds $1,000,” RSA 637:11, I (2007) victim’s Florida home were designated for, and entrusted to the defendant to all reasonable conclusions except that the proceeds from the sale of the

was treated by defendant as his own). held by defendant in protest of nursing home’s care of his father, but instead nursing home was not withdrawn by defendant from his father’s account and

jury could have found beyond a reasonable doubt that the evidence excluded inferences in a light most favorable to the State, we conclude that a rational

(evidence sufficient that money designated to pay defendant’s father’s rent at