State v. Gagne

• Decision Date: 05 November 2013
• Docket Number: No. 2011–889,2011–889
• Citation: 165 N.H. 363,79 A.3d 448
• Parties: The STATE of New Hampshire v. Karen GAGNE
• Court: New Hampshire Supreme Court

165 N.H. 363

79 A.3d 448

The STATE of New Hampshire

v.Karen GAGNE

No. 2011–889

Supreme Court of New Hampshire.

Argued: March 14, 2013.

Opinion Issued: November 5, 2013.

Michael A. Delaney, attorney general (Jeffrey S. Cahill, senior assistant attorney general, on the brief and orally), for the State.

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

BASSETT, J.

The defendant, Karen Gagne, appeals her convictions following a jury trial in Superior Court (Smukler, J.) of nine counts of theft by unauthorized taking, see RSA 637:3 (2007), and two counts of theft by misapplication of property, see RSA 637:10 (2007). She argues that the trial court erred in denying her motion to dismiss for insufficient evidence. We affirm her convictions on nine counts, reverse her convictions on two counts, and remand.

The jury could have found the following facts. The defendant met the victim in the 1980s when the defendant performed landscaping services at the victim's home. The two became friends and subsequently lived together as companions in the victim's home for at least one year until the victim asked the defendant to move out.

In the summer of 2006, the defendant and the victim rekindled their friendship. The victim moved to Pleasant View Retirement Home (Pleasant View), and the defendant began driving the victim to doctors' appointments and nail appointments, and taking her to lunch. In addition, although the victim had previously had an accountant pay her larger bills, the defendant began handling the victim's bills, including payment of her rent at Pleasant View. At that time, the victim's monthly income was approximately $5,000, comprised of $900 from Social Security, $3,000 from an RBC annuity, $615 from a trust, and $400 from an OM Financial annuity. The victim also owned several properties, including a home in Florida.

On April 6, 2007, the victim's OM Financial annuity of $89,000 was liquidated and deposited into her Bow Mills bank account. The defendant endorsed the back of the annuity check "For deposit only." On April 13, the defendant and the victim opened a joint bank account (joint account) at Citizen's Bank. The victim understood that the purpose of the joint account was to allow the defendant to better assist her with paying bills or cashing checks. The victim never told the defendant that she could take money from the joint account for her own use. On April 18, $60,000 was transferred from the victim's Bow Mills account to the joint account. Shortly thereafter, the victim's RBC annuity, with a value in excess of $350,000, was liquidated and deposited into the joint account. The endorsement on the back of the liquidation check was in the defendant's handwriting. Between mid-April and September 2007, the defendant withdrew more than $180,000 from the joint account. This money was deposited in the defendant's personal accounts, and then used to pay various creditors of the defendant.

In October 2007, the defendant took out a loan in the amount of $90,000 from Merrimack County Savings Bank (MCSB). The loan was secured by a $100,000 certificate of deposit owned by the victim. The defendant and the victim were both present at the closing of the loan, at which the MCSB assistant branch manager explained to them each paragraph of the loan documents. Thereafter, in May 2008, at the victim's request, the defendant's loan was paid off using the funds from the victim's certificate of deposit.

In the fall of 2008, the victim fell behind in her rent payments at Pleasant View. The business office manager spoke with the defendant because the defendant "was picking up [the victim's] bills." The defendant first told the business office manager that there was a difficulty with one of the victim's bank accounts, but later said that the victim's grandson or nephew had stolen money from the victim "and that she and the family and the bank were trying to work [it] out." At some point in late 2008, during a conversation between the executive director of Pleasant View, the victim, and the defendant about the victim's bill, the victim stated that she had put her Florida property on the market and they were waiting for it to be sold. Pleasant View received "back payment" for the victim's unpaid rent in January 2009; however, following that payment, the victim again fell behind in her rent. The business office manager again contacted the defendant because, at that point, the defendant had notified her that the victim was misplacing the bills or throwing them away and the defendant said "that she would pick up the bill and make sure that it was paid."

In October 2009, the business office manager told the defendant that the victim was so far behind in her rent that the legal department would be contacting the victim directly. The defendant responded that she was trying to get the victim's bill paid. The business office manager gave her one week to do so. When the victim's bill remained unpaid, the business office manager went to the executive director and they both then had another conversation with the victim about her delinquent rent. The business office manager testified that the victim was "very upset" and that she did not understand how it had happened that she was so far behind. Thereafter, Pleasant View's executive director contacted the Attorney General's Office.

The defendant was charged with nine counts of theft by unauthorized taking and two counts of theft by misapplication of property. An eight-day trial was held in 2011. At the close of all of the evidence, the defendant moved to dismiss the charges based upon insufficiency of the evidence. The trial court denied the motion, and the jury returned a guilty verdict on all counts.

On appeal, the defendant argues that the trial court erred in denying her motion to dismiss. She contends that there was insufficient evidence to convict her of any of the charges.

Our standard of review of the trial court's denial of the defendant's motion to dismiss is well established. State v. Marshall, 162 N.H. 657, 666, 34 A.3d 540 (2011). "To prevail upon [her] 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. (quotation omitted). We review the evidence in context, and not in isolation. State v. Huffman, 154 N.H. 678, 686, 918 A.2d 1279 (2007). "Circumstantial evidence may be sufficient to support a finding of guilty beyond a reasonable doubt." State v. Guay, 162 N.H. 375, 381, 33 A.3d 1166 (2011) (quotation omitted). When the evidence is solely circumstantial as to an element, it must exclude all reasonable conclusions except guilt. State v. Germain, 165 N.H. ––––, ––––, ––– A.3d ––––, 2013 WL 5912500 (2013). We emphasize, however, that the proper analysis is not whether every possible conclusion has been excluded, but whether other reasonable conclusions have been excluded. Id.

I. Theft by Unauthorized Taking

The defendant first argues that the State introduced insufficient evidence to convict her of the nine charges of theft by unauthorized taking. Pursuant to RSA 637:3, I, a person is guilty of the crime of theft by unauthorized taking "if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof." Thus, the State was required to prove that the defendant (1) obtained or exercised unauthorized control over; (2) the property of another; (3) with the purpose to deprive the other of the property. See RSA 637:3 ; see also RSA 637:2, IV (2007) (defining "property of another").

The defendant maintains that, with respect to two of the charges, the evidence was insufficient to prove that the transactions at issue were unauthorized. She further contends that there was insufficient evidence to prove that the property at issue in the remaining charges was the property of another. We address each argument in turn.

A. Unauthorized Control

1. Bow Mills Account

The defendant argues that there was insufficient evidence to convict her of the charge which alleged, in relevant part, that the defendant "took $26,750 from a Bow Mills Bank account belonging to [the victim] through a series of transactions, transferred the money without authorization to [the defendant's] accounts ..., and used the proceeds for her own benefit." Considering the evidence and all reasonable inferences to be drawn from it in the light most favorable to the State, we agree that the evidence was insufficient to prove that the defendant committed this offense.

The State presented evidence that from January to April 2007, six checks from the victim's Bow Mills bank account were made payable to the defendant. Although the payee section was filled out in the defendant's handwriting, the victim signed each check. The State contends that, because the victim testified that the defendant helped her pay her bills, "[i]t was reasonable for the jury to find that [the victim] would not have hesitated to sign blank checks, trusting that the defendant would properly handle the rest." We disagree. There was no evidence that the victim signed the checks before the defendant filled them out. Nor was there any evidence that the victim signed the checks without first reviewing the payee section. Cf. State v. Emery, 152 N.H. 783, 788, 887 A.2d 123 (2005) (holding that evidence was sufficient to prove that use of funds was unauthorized where "nothing in the record" indicated that victim looked at checks before he signed them and there was testimony that victim did not usually look at checks that he signed). Rather, the victim testified that the defendant "might fill out a check and I would sign it." She further testified that she would not sign paperwork presented to her unless she understood it and without first "perus[ing] it somewhat."...