State v. Bell
| Decision Date | 16 August 2022 |
| Docket Number | 2019-0047 |
| Citation | 175 N.H. 382,288 A.3d 411 |
| Parties | The STATE of New Hampshire v. Brim BELL |
| Court | New Hampshire Supreme Court |
Office of the Attorney General (Weston R. Sager, attorney, on the brief, and Elizabeth C. Woodcock, senior assistant attorney general, orally), for the State.
Anthony J. Naro, assistant appellate defender, of Concord, on the brief, and Thomas A. Barnard, senior assistant appellate defender, orally, for the defendant.
Brim Bell, the defendant, filed a supplemental brief with permission of the court.
The defendant, Brim Bell, appeals his convictions, following a jury trial in Superior Court (Howard, J.), on four class A felony counts of theft by deception. See RSA 637:4, :11, I (2016). We affirm.
The jury could have found the following facts. The defendant ran a business at several New Hampshire locations restoring primarily Volkswagen vehicles. Between January 1, 2011 and November 17, 2015, each of the victims, A.M., J.M., J.K., and J.T., hired the defendant to restore a vehicle. During the time the defendant had their vehicles, he repeatedly asked each of the victims to send him more money, ostensibly for parts or other expenses related to the restoration of their vehicles. Each victim made a series of payments to the defendant, totaling the following amounts: $81,900 from A.M.; $24,100 from J.M.; $11,521 from J.K.; and $55,055 from J.T. None of the victims received a restored car back from the defendant.
The defendant testified to a series of events that negatively affected his business during 2010 and 2011 and increased his debt. As a result, at the end of 2011, the defendant started gambling at casinos. He testified that his "plan was to save the business." The defendant admitted that he gambled with some of his customers’ money and that none of them gave him permission to do so. Instead, he "thought it made sense to keep it a classified situation" and "not something to advertise and boast to [his] clients about." In 2016, the defendant left New Hampshire, owing the landlord of one of his facilities between $150,000 and $180,000.
In 2018, the defendant was indicted on six counts of class A felony theft by deception. The indictments were substantially similar, alleging, in relevant part, that "pursuant to one scheme or course of conduct," the defendant:
obtain[ed] or exercise[d] unauthorized control over U.S. currency, the property of [the identified victim] by deception, with a purpose to deprive [the victim] thereof, in that [the defendant] created or reinforced the false impression that he was repairing [the victim's] vehicle, which was false and which [the defendant] did not believe to be true, in order to continue to receive payments for repairs that were not being performed, the value of which exceeded $1,500.00.
The State moved to join the offenses for trial, arguing that they were: (1) "part of a common scheme or plan"; (2) "so logically and factually connected that they cannot reasonably be separated for the purposes of trial"; and (3) "connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct." See N.H. R. Crim. P. 20. The defendant objected. The trial court granted the State's motion, concluding that "the charges are so clearly part of a common scheme or plan as to defy further explanation."
Following a jury trial, the defendant was convicted on four counts and acquitted on two. He now appeals his convictions, arguing that the evidence was insufficient to convict him and that the trial court erred in granting the State's motion for joinder. He raises additional issues in a pro se supplemental brief filed with this court's permission. See State v. Belton, 150 N.H. 741, 750, 846 A.2d 526 (2004).
We first address the defendant's challenges to the sufficiency of the evidence. "A challenge to the sufficiency of the evidence raises a claim of legal error; therefore, our standard of review is de novo." State v. Vincelette, 172 N.H. 350, 354, 214 A.3d 158 (2019). "To prevail upon a challenge to the sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt." Id.
The defendant argues that "the State failed to prove beyond a reasonable doubt that [he] created or reinforced the false impression that he was repairing the alleged victims’ vehicles when he obtained money from them" because the evidence failed to "establish that [he] was not working on each person's vehicle." More specifically, the defendant argues that because the indictments allege the deception element to be the creation or reinforcement of "the false impression that he was repairing [the victims’] vehicle[s]," the State was required to prove that he "had not done anything to ‘repair’ the cars when he represented that he had." He contends that the evidence established, to the contrary, that he "was working on each person's vehicle when he requested money from them" even though he was "moving at a snail's pace."
Contrary to the defendant's contention, the State was not required to prove that he had done nothing to repair the victims’ cars. The State was required to prove that the defendant "obtain[ed] or exercise[d] control over property of another by deception and with a purpose to deprive him thereof." RSA 637:4. To prove the element of deception as charged, the State was required to prove that the defendant purposely "[c]reate[d] or reinforce[d] an impression which is false and which [the defendant] does not believe to be true, including false impressions as to ... intention or other state of mind." RSA 637:4, II(a). As detailed below, the State proved that the defendant obtained money from each victim by creating or reinforcing the false impression that the money was going to be used to buy parts for, or otherwise applied to the repair of, the victim's vehicle, when, in fact, the defendant used the money for his own purposes, including gambling at a casino.
In addition, "to obtain a conviction for class A felony theft by deception, the State need only prove, in addition to the elements set forth in RSA 637:4, I, that the property taken was valued at more than [$1,500]." State v. French, 146 N.H. 97, 100, 776 A.2d 1253 (2001) ; see RSA 637:11, I(a). Thus, the jury need not have found that all of the money the defendant received from each victim was obtained in violation of RSA 637:4 ; rather, it need only have found that at least $1,500 from each victim was so obtained. See French, 146 N.H. at 98-99, 105, 776 A.2d 1253 ().
With these principles in mind, we now examine the evidence with respect to each victim.
The jury could have credited A.M.’s testimony that the defendant often asked her for more money, giving as reasons that "[p]arts [were] costing more," or "finding that more things that he needed would cost more than he had estimated." The jury heard extensive evidence of checks and wire transfers from A.M. posting to the defendant's bank account and withdrawals made at various casinos so close in time to those deposits that the jury could reasonably infer that the defendant intended to use that money for gambling and knew that the reasons he gave A.M. for needing that money were false. To give just one example, the jury could have found that on February 27, 2014, the defendant's bank account had a balance of "[n]egative $255.48." On February 28, the defendant made two balance inquiries on that account at automated teller machines at Mohegan Sun Casino. That same day, a wire transfer from A.M. in the amount of $2,500 posted to the defendant's account. Two withdrawals from that account were made that same day at Mohegan Sun in the amounts of $2,000 and $604.50. Accordingly, the evidence was sufficient to convict the defendant of class A felony theft by deception from A.M.
The jury could have credited J.M.’s testimony that the defendant asked him for more money "[i]nitially, ... because there was more rust in the car than he had anticipated," and later, "for various reasons: to buy parts or paint or that he needed the additional money to complete the car." As with regard to A.M., the jury heard evidence of checks and wire transfers from J.M. posting to the defendant's bank account, followed closely by withdrawals at various casinos. For example, the jury could have found that on February 19, 2013, the balance in the defendant's bank account was "[n]egative $450.54." On February 21, the defendant made four balance inquiries on that account at Mohegan Sun. That same day, J.M. wire transferred $2,000 into that account, and the defendant made a debit card purchase at Mohegan Sun in the amount of $1,065.95, and then a second in the amount of $604.50. Accordingly, the evidence was sufficient to convict the defendant of class A felony theft by deception from J.M.
The jury could have credited J.K.’s testimony that he sent his vehicle to the defendant's garage for restoration on November 17, 2015. The plan for restoration was to "sandblast [the car], get rid of and repair all the rust, the body work, the ruffles, paint it, and basically give [J.K.] back a show car." The original estimate for the job was $8,000 plus an additional $1,000 for sandblasting, for a total of $9,000, with a payment schedule of $1,000 per month. Nevertheless, J.K. testified, ...
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