State v. French

• Decision Date: 07 March 2001
• Docket Number: No. 97–429.,97–429.
• Citation: 146 N.H. 97,776 A.2d 1253
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire, v. Darrell J. FRENCH.

146 N.H. 97

776 A.2d 1253

The STATE of New Hampshire,

v.Darrell J. FRENCH.

No. 97–429.

Supreme Court of New Hampshire.

March 7, 2001.

Philip T. McLaughlin, attorney general (Constance N. Stratton, attorney, on the brief and orally), for the State.

Chris McLaughlin, public defender, of Keene, by brief and orally, for the defendant.

HORTON, J., retired, specially assigned under RSA 490:3.

The defendant, Darrell J. French, appeals his conviction, following a jury trial in the Superior Court (O'Neill , J.), of theft by deception. See RSA 637:4 (1996). We affirm.

The jury was entitled to find the following facts. On January 21, 1990, while employed by the State of New Hampshire Liquor Commission, the defendant slipped on a wet floor and injured his left knee. The State, which is self-insured for workers' compensation claims, paid workers' compensation benefits to the defendant from November 2, 1990, through March 6, 1992. The defendant's claim was eventually settled for a lump sum of $25,000.

On January 22, 1996, the defendant was indicted for felony theft by deception. The indictment alleged in part:

[The defendant] did purposely obtain worker[s'] compensation benefits, to wit: in excess of $1,000.00, the property of another, the State of New Hampshire, by creating or reinforcing an impression which was false and which he knew not to be true, in that he claimed to be unable to work, and when questioned by representatives of the State of New Hampshire, said that he was not working at all, when, in fact, he was able to work and was actually working at various jobs and being paid therefor.

The defendant moved for a bill of particulars, asking whether the State was alleging a common course of conduct, and, if so, what amounts were alleged to have been obtained pursuant to that course of conduct, and specifically whether the lump sum settlement was alleged to have been received pursuant to that course of conduct. The State provided a bill of particulars that stated, in part:

As a direct result of Defendant['s] false statements, he obtained worker[s'] compensation [benefits] from the State of New Hampshire from (10–03–90), until [ ] (02–12–92), and that the total amount of [these benefits was] in [excess of] $10,000.00. The Defendant also obtained a lump sum settlement from the State of New Hampshire on 02–21–92 for the amount of $25,000.00.

At the conclusion of a four-day trial, the jury returned a guilty verdict.

On appeal, the defendant argues that the trial court erred in: (1) denying the defendant's motion for a directed verdict; (2) instructing the jury on a "common course of conduct" when the State failed to allege the same in either the indictment or the bill of particulars; and (3) failing to answer in the affirmative a question asked by the jury during deliberations. We first address the defendant's argument that his motion for directed verdict should have been granted. "In reviewing denials of ... motions for directed verdicts, the evidence must be construed most favorably to the State, and the defendant must show that the evidence in its entirety was insufficient to prove he was guilty of the crime charged." State v. Burke , 122 N.H. 565, 569, 448 A.2d 962 (1982).

The defendant contends that he was entitled to a directed verdict because the State failed to prove that he obtained the entire $25,000 lump sum settlement through theft by deception. The defendant contends, and the State does not dispute, that the evidence showed that he would have been entitled to a portion of the lump sum settlement, namely, the permanent partial impairment award, regardless of whether he was working. The lump sum settlement proposal executed by the defendant and the State allocated $7,994 of the $25,000 payment to the permanent partial impairment award. The defendant therefore argues that "a rational trier of fact could not find beyond a reasonable doubt that [the defendant] was not entitled to $7,994.00 of the $25,000.00 lump sum settlement."

The value of the property taken is not an element of the crime of theft by deception. See RSA 637:4 (1996). In fact, "[a] person commits theft under [ RSA 637:4 ] notwithstanding that the victim has suffered no actual or net pecuniary loss." RSA 637:4, IV. The value of the property taken does, however, establish the grade of offense, see RSA 637:2, V(b) (1996), and "[t]heft constitutes a class A felony if ... [t]he value of the property ... exceeds $1,000." RSA 637:11 (1996). Thus, 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 $1,000.

The defendant argues, however, that because the State specified the amount of $25,000 in its bill of particulars, it was required to prove beyond a reasonable doubt that he acquired the entire amount in violation of RSA 637:4. The defendant relies on State v. Boire , 124 N.H. 622, 474 A.2d 568 (1984). In Boire we stated: "Though subject to amendment, the terms of a bill of particulars are exact allegations that must be proved as elements of the offense charged. A bill of particulars limits proof to what it specifies, and requires proof of what it specifies." Boire, 124 N.H. at 624, 474 A.2d 568. Boire has therefore come to stand for the proposition "that the allegations in a bill of particulars become elements of the crime, which the State must prove beyond a reasonable doubt." State v. Desmarais , 140 N.H. 196, 197, 665 A.2d 348 (1995).

The case before us, however, illustrates that our language in Boire was unnecessarily broad. Taken literally, it has the absurd effect of making every factual averment in a bill of particulars, however insignificant or immaterial, an element of the crime that the State must prove beyond a reasonable doubt. Therefore, we now reexamine our law on bills of particulars.

"A bill of particulars is, in this State, a tool for clarifying an inadequate indictment or complaint...." State v. Chick , 141 N.H. 503, 506, 688 A.2d 553 (1996). It is instructive, therefore, to consider how an allegation would be treated if it appeared in the indictment rather than a bill of particulars.

We have generally referred to allegations in an indictment as being either matters of form or matters of substance, in accordance with the rule that indictments "may be amended in form, but not in substance." State v. Erickson , 129 N.H. 515, 519, 533 A.2d 23 (1987). The elements of the charged offense are "automatically considered part of the substance of an indictment," id ., and therefore cannot be altered except as directed by the grand jury. State v. Bell , 125 N.H. 425, 429, 480 A.2d 906 (1984). In contrast are "cumulative or superfluous details ... [that may be] properly disregarded as surplusage," State v. Wright , 126 N.H. 643, 649, 496 A.2d 702 (1985), in a permissible amendment of form. See State v. Hutchinson , 137 N.H. 591, 594, 631 A.2d 523 (1993).

Between these extremes are allegations that do not constitute elements of the offense, but have "the effect of specifying and circumscribing the scope of the allegations." Erickson , 129 N.H. at 519, 533 A.2d 23. These allegations may still form part of the indictment's substance that may not be constructively amended at trial. Id .; cf . State v. Fennelly , 123 N.H. 378, 388, 461 A.2d 1090 (1983) (such allegations, even if not matters of substance, may be protected from amendment if defendant would be prejudiced thereby). "[T]he test for determining whether changing such an allegation causes an impermissible amendment of the indictment is whether the change prejudices the defendant either in his ability to understand properly the charges against him or in his ability to prepare his defense." State v. Elliott , 133 N.H. 759, 764, 585 A.2d 304 (1990) (quotation omitted).

These principles also apply to variances between the allegations in an indictment and the evidence presented at trial; failure of proof as to an allegation can be considered a constructive amendment of the indictment. See Bell , 125 N.H. at 429, 480 A.2d 906. Thus, while the elements of the charged offense must, of course, be proved beyond a reasonable doubt, see RSA 625:10 (1996), "immaterial or superfluous allegations contained in a[n] ... indictment need not be proven at trial," State v. LeClair , 126 N.H. 479, 480, 493 A.2d 498 (1985). With respect to allegations not obviously falling within the categories of element or surplusage, we look to whether the defendant has been prejudiced to determine if there has been an improper variance between the indictment and the proof offered at trial. See State v. Keegan , 106 N.H. 152, 155, 207 A.2d 427 (1965).

We now ask whether there is any reason to treat identical allegations differently regarding the State's burden of proof, depending upon whether they are presented in an indictment or in a bill of particulars. We hold that there is not. "The purpose of a bill of particulars is to protect a defendant against a second prosecution for an inadequately described offense and to enable him to prepare an intelligent defense." State v. Dixon , 144 N.H. 273, 275, 741 A.2d 580 (1999) (quotation omitted). We conclude that inquiry into whether the defendant has been prejudiced by an amendment to, or failure to prove an allegation in, a bill of particulars adequately safeguards these functions, as it does for allegations in an indictment.

Accordingly, we partially overrule Boire . We recognize that in Boire itself, a variance between the date of offense alleged in the bill of particulars and the evidence as to date produced at trial might well have prejudiced the defendant, who "based his request [for a bill of particulars] on the possibility of an alibi defense."

Boire , 124 N.H. at 623, 474 A.2d 568. We now clarify, however, that every allegation in a bill of particulars does not automatically become an element of the crime charged. We hold that, in addition to...