2014-0264, State of New Hampshire v. Christopher Boisvert

at 40 High Street in Bristol in 2009 or 2010. The defendant’s name was the father of Carrie Gray’s two children. He and Gray moved into Apartment 1 The record before us contains the following evidence. The defendant is

request to give an accomplice liability jury instruction. We affirm. motion to dismiss that challenged the sufficiency of the evidence; and (2) his argues that the Superior C ourt (O’Neill, J.) erred by denying: (1) the defendant’s for welfare fraud. See RSA 167:17 - b, I (a) (2014); RSA 167:17 - c, I(a) (2014). He CONBOY, J. The defendant, Christopher Boisvert, appeals his conviction

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2 014 - 0264 Belknap

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, Concor d, 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 p. 2 22 as 2

“false statement or misrepresentation” that he was “homeless,” we must Because the defendant was charged with welfare fraud based upon his

166 N.H. 705, 709 ( p. 2 2014). State, could have found guilt beyond a reasonable doubt. State v. Costella, evidence and all reasonable inferences from it in the light most favorable to the the defendant must establish that n o rational trier of fact, viewing all of the was homeless. To prevail on his challenge to the sufficiency of the evidence, reasonable doubt that he made a misrepre sentation when he reported that he The defendant first argues that the State failed to prove beyond a

stamp, and cash assistance.” entitled, for N.H. Department of Health and Human Services medical, food abetting [Gray] in obtaining payment assistance to which [Gray] was not he was homeless to N.H. Department of Health and Human Services, aiding or defendant “by means of a false statement or misrepresentation, reported that to which he is not entitled.” The indictment in this case alleged that the in obtaining any assistance or benefit or payment under RSA 161 or RSA 167 fraudulent act or device, obtain or attempt to o btain, or aid or abet any person intentionally false statement or misrepresentation or by impersonation or other RSA 167:17 - b, I(a) provides that no person shall “[b] y means of an

t he jury found the defendant guilty. T his appeal followed. Gray during the relevant time period. The trial court denied the motion, and that the State had failed to present sufficient evidence that he was living with close of the State’s case, the defendant moved to dismiss the charge, arguing a class A felony. See RSA 167:17 - c, I(a). The case went to trial, and a t the fraudulently obtained payments exceeded $1, 000, the offense was classified as count of welfare fraud. Because it was alleged that the value of the c ounty a ttorney’s o ffice. The defendant was subsequently indicted on one defendant, the investigator concluded that the case should be referred to the After interviewing witnesses and reviewing records provided by Gray and the an d human services received an allegation of welfare fraud concerning Gray. At some point, the special investigations unit of the department of health

benefits if the defendant had disclosed that he was living in the apartment. and her children. She would not have been eligible for the same level of she received was calculated based upon a househol d consisting only of Gray food stamp, and cash public assistance. The total amount of assistance that homeless. Between December p. 2 2010 and March 2012, Gray received medical, intervals, and again reported in June 20 1 1 and December 2011 that he was receive benefits. The defendant was recertified for benefits at six - month and stated that he was homeless and had no resources; he was certified to 2011, he met with a department of health and human services representative 2010, the defendant filed an application for public assistance. On January 14, removed from the lease at some point prior to late 2010. On December p. 3 31, 3

subsequently asked to have his name placed back on the lease. Bris tol Police that although the defendant moved out of the apartment prior to 2011, he week.” The individual who administered the leases for the complex testified she saw the defendant outside playing w ith his children “four or five times a apartment. Another witness, who lived in the apartment complex, testified that also testified that the defendant reported to him maintenance problems in the the indictment, he s aw the defendant at the apartment “pretty much daily.” He High Street apartment complex, who testified that during the period covered by The evidence included the testimony of the property manager for the

evidence that the defendant resided in Apartment 1 was solely circumstantial. and circumstantial evidence. We will assume, without deciding, that the except guilt). The State asserts that the evidence at trial included both direct must establish that evidence does not exclude all reasonable conclusions to one or more elements of charged offense is solely ci rcumstantial, defendant (holding that to prevail on challenge to sufficiency of evidence when evidence as conclusions except guilt. See State v. Germain, 165 N.H. p. 3 350, 361 (2013) the relevant period, the circums tantial evidence must exclude all reasonable State presented no direct evidence that he resided in Gray’s apartment during In support of his argument, t he defendant asserts that, because the

challenge to the sufficiency of the evidence. 1082. We consider these definition s in our assessment of t he defendant’s habitually occupied by a family: one’s principal place of residence.” Id. at in pertinent part, as “the house and grounds with their appurtenances time: an act of making one’s home in a place.” Id. at 19 p. 3 31. “H ome” is defined, pertinent part, as “the act or fact of abiding or dwelling in a place for some International Dictionary 1083 (unabridged ed. 2002). “Residence” is defined, in “having no home or permanent place of residence.” Webster’s Third New Webster’s Third New International Dictionary defines “home less” as

definition. definitions of “homeless” that may differ from its commonly understood Accordingly, we decline the defendant’s suggestion that we consider statutory dictionary definition to determine plain and ordinary meaning of “explicitly”). that in absence of statutory definition or relevant case law, court would utilize “homeless.” Cf. Magoon v. Thoroughgood, 1 p. 4 48 N.H. 1 p. 3 39, 142 (2002) (holding defendant’s argume nt, we apply the commonly understood meaning of those definitions are not controlling in our analysis here. In addressing the how the legislature has defined “homeless” for the purpose s of other statute s, fraud statute does not address the issue of homelessness. Thus, regardless of this question in rendering [its] verdict.” We note at the outset that th e welfare response that the jury “utilize the evidence submitted at trial in response to definition of “homeless.” The parties agreed to the trial court’s proposed evidence. During deliberations, the jury requested that the tri al court provide a determine the meaning of the word “homeless” t o assess the sufficiency of the 4

State would have had to prove “that Gray had the purpose to commit the crime On appeal, the defendant argues that, under his proposed instruction, the

$1,000. p. 4 4. That the value of said payment assistance exceeded

welfare payment as sistance; and 3. That the other person was not entitled to said

obtaining welfare payment assistance; and misrepresentation, aided or abetted another person in 2. The Defendant, by means of a false statement or

1. The Defendant acted purposely; and

reasonable doubt. Thus, the State must prove: elements. The State must prove each part or element beyond a The definition of the crime of welfare fraud has four parts or

trial court denied his request, and gave the following instruction: contains this variant, accomplice liability is “directly a part of the sta tute.” The the aid/abet variant of welfare fraud. He contended that because the statute that he was entitled to the instruction because the State had charged him with asked the court to instruct on the principles of accompli ce liability. He argued request to give an accomplice liability jury instruction. At trial, the defendant The defendant also argues that the trial court erred by denying his

the defendant’s motion to dismiss. except guilt. See id. at 361. Accordingly, the trial court did not err by denying failed to establish that the evidence did not exclude all reasonable conclusions was homeless. Given the record before us, we conclude that the defendant has lied when he reported to the departm ent of health and human services that he a reasonable doubt, that the defendant was living in Apartment 1 and that he The testimony of the various witnesses supports the conclusion, beyond

context of all the evidence. See id. at 361 - 62. address, the jury was free to assess the veracity of this statement in the defendant noted on one document that the High Street address was his mailing defendant’s address as Apartment 1, p. 4 40 High Street, Bristol. Although the pending d uring the period covered by the ind ictment; the document s listed the documents in other cases in which the defendant was a party that were The deputy clerk for the second circuit court in Plymouth identified court arrested on the evening of February 17, 2012, he was arrested in Apartment 1. defendant in the apartment. He further testified that when the defendant was conducting surveillance of Gray’s apartment for unrelated reasons, he saw the Chief Lewis testified that on the evening of December 16, 2011, while he was p. 5 5

“or” would violate our established principles of statu tory construction. See currently before us. Moreover, to ignore the legislature’s use of the disjunctive in Hermsdorf, and our holding in Hermsdorf did not address the issue words “aid” and “abet” in RSA 167:17 - b, I (a), was not the focus of our analysis Hermsdorf requires such a conclusion. T he conjunction used between the State need not prove abetting if it can prove a iding. We disagree that of ‘aid’ and ‘abet’ with a disjunctive ‘or’” to supp ort the conclusion that the “and” in H ermsdorf to argue that we should not rely upon “the statute’s linking statute ― “aid or abet.” The defendant cites our insertion of the conjunction RSA 167:17 - b, I(a) as “aid and abet” as opposed to the actual language of the In reaching this conclusion, the Hermsdorf court cited the language of

not improperly amended the indictment. Id. at 368. Viewing the instructions in their entirety, we concluded that the trial court had indictment when i t included the word “solicited” in its instructions. Id. at 367. appeal, Hermsdorf argued that the trial co u rt had impermissibly amended the indicted and convicted of Medicaid fraud. Hermsdorf, 13 p. 5 5 N.H. at 362. On In Hermsdorf, Gary Hermsdorf and the Queen City Pharmacy were

provides little guidance here. principal also committed the elements of the charged crime.” Hermsdorf ‘aiding/abetting’ variant of RSA 167:17 - b, I(a), the jury must find that the his contention that when “the State charges a defendant with committing the The defendant cites State v. Hermsdorf, 13 p. 5 5 N.H. 360 (1992) to supp ort

uses of computer). incorporate the “attempt” statute into separate statute criminal izing certain acts. See State v. Moscone, 1 61 N.H. 3 p. 5 55, 359 - 60 (2011) (declining to mental state of the third party who will benefit from the def e ndant’s fraudulent Criminal Code. Nor does it contain a requirement that the State prove the The welfare fraud statute, RSA 167:17 - b (2014), is not included in the

have said or add language that it did not see fit to include. Id. from the statute as written and will not consider what the legislature might advanced by the entire statutory scheme. Id. We interpret legislative intent the legislature’s intent in enacting them, and in light of the policy sought to be to its plain and ordinary meaning. Id. Our goal is to appl y statutes in light of language of the statute itself, and, if possible, construe that language according N.H. 329, 332 (201 p. 5 5). When we interpret a statute, we look first to the statutory interpretation. Our review is therefore de novo. State v. Balch, 167 As the defendant correctly observes, this issue presents a question of

entitled.” prove only that he “intended that Gray receive benefits to which she was not of welfare fraud”; in cont rast, under the court’s instruction, the State had to p. 6 6

DALIANIS, C.J.