State v. Gruber

• Decision Date: 09 August 1989
• Docket Number: No. 87-491,87-491
• Citation: 132 N.H. 83,562 A.2d 156
• Parties: The STATE of New Hampshire v. Paul GRUBER.
• Court: New Hampshire Supreme Court

Page 156

562 A.2d 156

132 N.H. 83

The STATE of New Hampshire v. Paul GRUBER.

No. 87-491.

Supreme Court of New Hampshire.

Aug. 9, 1989.

Stephen E. Merrill, Atty. Gen. (Brian T. Tucker, Associate Atty. Gen., on the brief and orally), for the State.

Brennan Professional Association, Manchester (William E. Brennan, on the brief and orally and Yolande N.L. Caron on the brief), for defendant.

THAYER, Justice.

The defendant, Paul Gruber, was found guilty after a jury trial in Superior Court (Temple, J.) of the crime of theft by deception, RSA 637:4, II(c), when he was found to have withheld information from his insurance company that was pertinent to the disposition of property that he alleged to have been stolen and for which he was compensated. On appeal of his conviction, the defendant raises questions concerning the introduction of inadmissible evidence, the unconstitutionality of a provision of the theft by deception statute, RSA 637:4, IV (Supp.1988), the sufficiency of the evidence, prosecutorial overreaching, and the trial court's failure to admit certain evidence. For the reasons that follow, we affirm.

This case arises from a reported theft of the defendant's property on October 30, 1986. The record of the trial testimony indicates that the following facts could be found. Suzanne Venezia testified that she had known the defendant for approximately ten years. During their relationship, the defendant had given Ms. Venezia cash, checks, gifts, and the use of a State telephone credit card number, issued to the defendant as Clerk of Grafton County Superior Court, in exchange for sex.

The record indicates that on October 30, 1986, the defendant arranged to meet Suzanne Venezia at the Hearthside Motel in Bethlehem, where she resided with her then husband, Thomas Venezia. When the defendant arrived, it appeared to Ms. Venezia that the defendant had been drinking. Suzanne Venezia's husband and her friend, Elizabeth Dube, were also present that evening. The four drank and played strip poker before leaving the motel and going to the defendant's home.

At the defendant's home, the four had more to drink. During the course of the evening, the defendant fell down injuring his nose and lip on a coffee table. Later that evening the defendant went up to his bedroom with Suzanne Venezia and Elizabeth Dube and told them that they could have the jewelry in the bedroom and money if they went to bed with him. The defendant then fell asleep, at which time Elizabeth Dube and the Venezias left the defendant's home, taking with them a VCR, frozen meat, jewelry, piggy banks and blank checks from a joint account held by the defendant and his wife.

The next day the defendant called Suzanne Venezia and asked her to destroy the checks taken, because his wife would prosecute if any of the checks were cashed. Suzanne Venezia testified that she subsequently burned the checks. The defendant also called the Bethlehem police on October 31, 1986, and reported that he had been beaten and robbed.

That same day, the defendant also called his insurance agent at the Hadlock Agency and reported that his house had been burglarized. The defendant told the clerk at the agency that two men had come into his bedroom late on October 30, 1986, cut up his face and knocked him unconscious. He reported several items stolen including a VCR, money and frozen meat. The defendant's claim was processed by American International Adjustment Company, which adjusts claims filed by those holding policies with New Hampshire Insurance Company (NHIC), the defendant's insurer. American International Adjustment Company processed the defendant's claim and issued a draft made payable to the defendant and his wife in the amount of $530.25. The supervisor who signed the draft testified that he would not have issued the draft if he had been provided with information indicating that the defendant knew who had stolen the property.

In January of 1987, after the police had spoken with Thomas Venezia, search warrants were issued for the residences of Elizabeth Dube and Suzanne Venezia. Pursuant to the execution of the searches some of the property reported stolen was recovered, and the defendant's attorney was informed by the police on January 8, 1987, of the recovery. Subsequently, on February 12, 1987, the defendant's trial counsel presented the defendant's insurance agent with a check from the defendant, in the amount of $530.25. The check was deposited into the insurance company's account. The defendant had never inspected the recovered property prior to making the repayment.

The defendant was indicted in February of 1987 by the Grafton County Grand Jury for the crime of theft by deception. RSA 637:4. The jury trial resulted in a verdict of guilty. The defendant appeals that verdict and raises the following issues on appeal: (1) whether the trial court erred in allowing the introduction of evidence concerning an illicit sexual relationship, alleged criminal acts, wrongs and prior bad acts of the defendant, thereby violating New Hampshire Rules of Evidence 404(a) and (b); (2) whether RSA 637:4, IV (Supp.1988) is unconstitutional because it is "vague, ambiguous, and/or contradictory to RSA 637:2, 637:4, and/or 637:11"; (3) whether the trial court erred in denying the defendant's motion to set aside the verdict as against the great weight of the evidence; (4) whether the prosecutor's opening statement and closing argument constituted prosecutorial overreaching; and (5) whether the trial court erred in not allowing the introduction of the defendant's insurance policy in evidence.

The first issue raised by the defendant is whether the trial court erred in allowing the State to introduce evidence of the defendant's prior relationship with Suzanne Venezia in violation of New Hampshire Rules of Evidence 404(a) and (b). The defendant first contends that evidence of his relationship with Suzanne Venezia was neither relevant nor material to the crime of theft by deception. The defendant next asserts that even if it was relevant, the State's probing into the defendant's giving Ms. Venezia checks, cash and use of a credit card in exchange for sex would have a negative impact on the jurors, and thus any probative value would be outweighed by the prejudicial effect. The defendant lastly argues on this issue that the evidence is inadmissible evidence of character under New Hampshire Rule of Evidence 404 because, contrary to the State's contention that it was evidence of intent, the evidence was meant to show the defendant's disposition or propensity to commit the crime charged.

Under the New Hampshire Rules of Evidence, evidence of prior offenses or bad acts is not admissible "to prove the character of a person in order to show that the person acted in conformity therewith." N.H.R.Ev. 404(b). Such evidence is admissible, however, for other purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.

This court has previously established a three-pronged test to determine the admissibility of prior offense or bad act evidence under Rule of Evidence 404(b). State v. Trainor, 130 N.H. 371, 540 A.2d 1236 (1988). We have noted that "[t]he decision to admit such evidence lies within the sound discretion of the trial court upon a determination that the evidence is relevant for a purpose other than character or disposition, that there is clear proof that the defendant committed the prior offenses," Trainor, 130 N.H. at 374, 540 A.2d at 1238 (citing State v. Barker, 117 N.H. 543, 546, 374 A.2d 1179, 1180 (1977)), and that the prejudice to the defendant does not substantially outweigh the probative value of the evidence, Trainor, 130 N.H. at 375, 540 A.2d at 1239. Upon a review of the record, we hold that the evidence in question satisfies the above criteria, and therefore is admissible under New Hampshire Rule of Evidence 404(b).

The evidence of the defendant's prior relationship with Suzanne Venezia meets the first prong of the test as it was relevant, and was admitted for a purpose other than to show character or disposition. See Trainor, 130 N.H. at 374, 540 A.2d at 1238. The rules of evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H.R.Ev. 401. Under our statute, theft by deception occurs when a person "obtains or exercises control over property of another by deception and with a purpose to deprive him thereof." RSA 637:4, I. The statute further provides that such deception occurs when a person purposely "[p]revents another from acquiring information which is pertinent to the disposition of the property involved." RSA 637:4, II(c).

Evidence of the defendant's relationship with Suzanne Venezia demonstrates that the defendant knew who took the property and where it was likely to be located, and thus made it more probable that the defendant intended to withhold information, intentionally deceive, and purposely prevent NHIC from acquiring information as to the property, when the defendant informed his agent that he had been beaten and robbed. It further established that the defendant intended Ms. Venezia to keep the property, as she had done with the defendant's other gifts to her, and thus made it more probable as well that the defendant intended to deprive NHIC of its property. Accordingly, we hold that the evidence was relevant and material, and was not being offered to demonstrate the defendant's propensity to commit the crime for which he was charged. See N.H.R.Ev. 404(b).

Furthermore, we find that there is clear proof, as required by the second prong of Trainor, 130 N.H. at 374, 540 A.2d at 1238, that the defendant had committed the prior "bad acts." Although the defendant contends that there was no clear proof,...