In re State

• Decision Date: 17 January 2007
• Docket Number: No. 2005-040.,2005-040.
• Citation: 154 N.H. 671,919 A.2d 762
• Court: New Hampshire Supreme Court
• Parties: Petition of the STATE of New Hampshire (State v. San Giovanni).

154 N.H. 671

919 A.2d 762

Petition of the STATE of New Hampshire (State v. San Giovanni).

No. 2005-040.

Supreme Court of New Hampshire.

Argued: Oct. 3, 2006.

Opinion Issued: Jan. 17, 2007.

Kelly A. Ayotte, attorney general (Robert S. Carey and Karen A. Gorham, assistant attorneys general, on the brief, and Elizabeth A. Dunn, assistant attorney general, orally), for the State.

Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for defendant Joseph San Giovanni.

DUGGAN, J.

The State filed a petition for writ of certiorari, see Sup.Ct. R. 11, challenging an order of the Superior Court (O'Neill, J.) denying its motion to join multiple offenses in a single trial against the defendants, Joseph San Giovanni and Farid Kim Tari. The State's petition concerns only the indictments pending against San Giovanni. We deny the petition.

The record supports the following facts. In 2002, San Giovanni filed an application with the New Hampshire Department of Health and Human Services (DHHS) for a residential or health care license to open St. Jude's Residence (St.Jude's) in Ossipee. According to the application, the primary mission of St. Jude's was "to provide therapeutic residential supports to individuals with special needs. The targeted population [was to] be individuals that have suffered an acquired brain injury

." St. Jude's was to provide various services, including, among other things, assistance with: (1) personal care; (2) developing an appropriate wardrobe for all seasons; (3) maintaining personal space and common areas in an acceptable manner; and (4) accessing community resources.

Soon thereafter, the defendants opened St. Jude's, which they marketed as a drug and alcohol treatment facility. One brochure described St. Jude's as a "Residential Inpatient Recovery Center" that "offer[ed] inpatient care services to individuals suffering from addiction, and in need of our assistance, to help them reach their goal of recovery." According to another brochure, the services offered at St. Jude's included vocational training, substance abuse recovery and "the opportunity to learn, practice and generalize skills across a variety of functional settings."

In May 2004, both defendants were charged by indictment with fifteen counts of theft by deception. One of the indictments against San Giovanni alleges that:

[P]ursuant to a scheme or course of conduct, and acting in concert with and aided by Farid Kim Tari, Joseph San Giovanni obtained or exercised control over property valued at more than $1,000 belonging to Robert Reczek by deception and with the purpose to deprive Robert Reczek of these funds.

San Giovanni created or reinforced the impression, which was false and which he did not believe to be true, that the St. Jude's Residence in Ossipee, New Hampshire, was a drug and alcohol treatment facility that would provide such treatment to Mr. Reczek's son. As a result of this impression, San Giovanni obtained approximately $18,670.00 from Mr. Reczek, with a purpose to deprive Mr. Reczek of those funds.

The fifteen indictments are identical, except for the names of the victims and the amounts of money paid either by the victims or their families. The amounts of money range from $4,500 to $45,000. Each indictment also alleges a different time period, although all of the alleged offenses occurred during a sixteen-month period between December 2002 and April 2004.

The State filed motions to join both defendants as well as all of the offenses for trial. In support of its motions to join the offenses for trial, the State argued that they were based upon a common plan under State v. Ramos, 149 N.H. 118, 818 A.2d 1228 (2003). The State also argued that the offenses were "not so numerous or complex that a jury [would] be unable to distinguish the evidence and apply the law intelligently." Both defendants objected, arguing that the offenses were unrelated, and that joining them would be unfairly prejudicial.

The superior court heard argument on the motions and subsequently issued an order denying the State's motions to join offenses for trial, but granting the State's motions to join the defendants for trial. With respect to the motions to join offenses, the court concluded that:

While each of the defendants' charged offenses are, when viewed in retrospect, a cohesive plan, the State has not presented evidence that satisfies the Ramos /ABA standards. Specifically, the State has not shown that the defendants' alleged defrauding of each of the individual victims was "intertwined with" or "mutually dependent" on the other victims. The defendants could have committed their alleged conduct as to one victim, but not to another, and still succeeded as to the first. As such, the defendants ['] alleged acts are not a "plan" for purposes of consolidations. Therefore, the offenses are unrelated and the defendants have an absolute right to have them severed for trial.

(Citations omitted.) The State then filed this petition for writ of certiorari challenging the superior court's ruling.

Certiorari is an extraordinary remedy that is not granted as a matter of right, but rather at the discretion of the court. Petition of State of N.H. (State v. Theodosopoulos), 153 N.H. 318, 319, 893 A.2d 712 (2006) ; see Sup.Ct. R. 11. We exercise our power to grant the writ sparingly and only where to do otherwise would result in substantial injustice. Petition of State of N.H., 153 N.H. at 319, 893 A.2d 712. Certiorari review is limited to whether the trial court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. Id. at 319-20, 893 A.2d 712.

The State argues that the superior court's conclusion that the offenses were not related was error, and relies upon several factual allegations to support its position that the defendants had a common plan to defraud the residents named in the indictments. In addition, the State asserts that the superior court's decision is at odds with the legislature's intent to aggregate theft offenses committed pursuant to a scheme or course of conduct under RSA 637:2, V(a) (1996). It also contends that joinder is appropriate because the jury would be able to distinguish the evidence pertaining to each offense and apply the law intelligently.

In response, San Giovanni contends that the superior court correctly determined that the State failed to establish that the charges constituted a common plan. He points out that the State's arguments as to why the charges were mutually dependent-and therefore formed a common plan-were unsupported by any factual basis. Further, San Giovanni asserts, as an alternative ground for affirming the superior court's decision, that severance was appropriate in this case in order to promote a fair determination of his guilt or innocence.

We will uphold the superior court's decision not to join charges in this case unless we conclude that the decision constitutes an unsustainable exercise of discretion. State v. Abram, 153 N.H. 619, 623, 903 A.2d 1042 (2006). To show that the superior court's decision is error, the State must show that the ruling was clearly untenable or unreasonable to the prejudice of its case. Id.

In State v. Ramos, we adopted the ABA standards for joinder and severance of criminal offenses, holding that "any two or more offenses committed by the same defendant may be joined for trial, upon the application of the prosecuting attorney or the defense." Ramos, 149 N.H. at 128, 818 A.2d 1228. We further explained that:

Whenever two or more unrelated offenses have been joined for trial, the prosecuting attorney or the defendant shall have a right to severance of them. "Unrelated" offenses are those that are not "related." "Related" offenses are those that are based upon the same conduct, upon a single criminal episode, or upon a common plan.

Id. (citations omitted).

For the purposes of the relatedness test outlined above, we recently adopted the definition of "common plan" as set forth in New Hampshire Rule of Evidence 404(b). State v. McIntyre, 151 N.H. 465, 466-67, 861 A.2d 767 (2004). In McIntyre we stated:

The distinguishing characteristic of a common plan under Rule 404(b) is the existence of a true plan in the defendant's mind which includes the charged crimes as stages in the plan's execution. That a sequence of acts resembles a design when examined in retrospect is not enough; the prior conduct must be intertwined with what follows, such that the charged acts are mutually dependent.

Id. at 467, 861 A.2d 767 (citations omitted).

The State argues that the offenses are mutually dependent for two reasons: first, without the money from the earlier thefts, the defendants could not have committed the later thefts; second, the offenses are interconnected because if the earlier victims had reported the defendants to law enforcement, the later thefts would not have occurred.

Both of these arguments rely upon the same legal theory; namely, that the charges are mutually dependent because the success of the later-occurring crimes depends upon the success of the earlier crimes. In two recent sexual assault cases, we found joinder to...