State v. Zeta Chi Fraternity

CourtSupreme Court of New Hampshire
Citation142 N.H. 16,696 A.2d 530
Decision Date22 May 1997
Docket NumberNo. 94–774.,94–774.
Parties The STATE of New Hampshire v. ZETA CHI FRATERNITY.

Jeffrey R. Howard, Attorney General (John C. Kissinger, Jr., Assistant Attorney General, on the brief and orally), for State.

Nadeau Professional Offices, Portsmouth (James P. Nadeau on the brief), and Law Office of Joshua L. Gordon, Concord (Joshua L. Gordon on the brief and orally), for defendant.

HORTON, Justice.

The defendant, Zeta Chi Fraternity, appeals its convictions and sentence on the charges of selling alcohol to a person under the age of twenty-one, RSA 179:5 (1994) (amended 1996), and prostitution, RSA 645:2, I(e) (1996). The defendant argues that the evidence was not sufficient to support the convictions. The defendant also asserts that the Superior Court (Mohl, J.) erred in admitting into evidence the minutes of the defendant's meetings. Finally, the defendant challenges the constitutionality of its sentence for illegal sale of alcohol. We affirm the defendant's convictions but vacate and remand for resentencing.

On February 21, 1994, the defendant, a New Hampshire corporation and fraternity at the University of New Hampshire in Durham, held a "rush" at its fraternity house to attract new members. In order to encourage people to attend the rush, the defendant hired two female strippers to perform at the event. Fraternity brothers encouraged guests to give the strippers dollar bills so that they would continue to perform. The brothers also told guests that the more money the strippers were given, the more that they would do. One of the members of the fraternity was providing change for larger bills. As part of the performance, the dancers lay on a mattress brought out by members of the fraternity and simulated oral sex on each other. At one point, a guest gave five dollars to one of the strippers who sat on the guest's lap. When a brother moved the dancer along, the guest complained that he had given five dollars. The stripper took the guest to the mattress and pushed his head into her crotch. Two witnesses testified at trial that they saw guests being led to the mattress after they gave money, at which point the guests then performed oral sex on the dancer.

In addition, Andrew Strachan, a nineteen-year-old guest at the fraternity party, testified that at some point during the evening he learned that beer was available from a soda machine. He made his way to an apartment in another part of the fraternity house where the machine was located, waited in line with three or four other people, and purchased three to five cans of beer. Strachan also testified that he noticed someone making change for the machine. The fraternity's secretary testified that the fraternity members voted not to provide alcohol at the rush and that they moved the vending machine that contained beer to a separate apartment in another part of the fraternity house for the rush. He also testified, however, that the fraternity had control over the vending machine and its proceeds and that only fraternity members would have an interest in making change for the machine.

I. Sufficiency of Evidence
A. Illegal Sale of Alcohol

The defendant first argues the evidence was insufficient to convict it of selling alcohol to a person under the age of twenty-one. Specifically, the defendant contends that the testimony of the State's sole witness that he bought beer from the vending machine was uncorroborated; that even if the jury could find that beer was purchased from the machine, the State failed to prove that the defendant was responsible for the sale; and that the State failed to prove that the defendant acted recklessly. "When a defendant challenges the legal sufficiency of the evidence, we ask whether any rational trier of fact, viewing the evidence and reasonable inferences therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. Fitanides, 139 N.H. 425, 428, 655 A.2d 411, 413–14 (1995).

By arguing that Strachan's testimony that he purchased beer from a vending machine at the fraternity house is uncorroborated, the defendant is essentially asking this court to weigh the credibility of the witness. See State v. Champagne, 125 N.H. 648, 651–52, 484 A.2d 1161, 1163 (1984). "[T]he weight and credence to be given to the evidence at trial is the very essence of a jury's function." State v. Sands, 123 N.H. 570, 590, 467 A.2d 202, 214 (1983). When a defendant challenges the uncorroborated testimony of the State's witnesses, the decision to accept or reject the witnesses' testimony is "a matter which must be left to the trier of fact." Champagne, 125 N.H. at 652, 484 A.2d at 1163.

The defendant next argues that the State failed to prove that the defendant caused alcohol to be sold to Strachan. See RSA 179:5. The defendant asserts that because the fraternity voted not to provide beer at the rush and the soda machine was moved from the main area in the fraternity house to a separate apartment at the back of the house, the defendant did not have control over the machine, and, therefore, could not have caused the sale of alcohol from the machine. Essentially, the defendant is arguing that the individuals responsible for making the beer available for sale to Strachan were not acting on behalf of the corporation or within the scope of their authority. We begin by noting that the only defendant in this case is a corporate entity. "A corporation is a jural person, but not a person in fact. It is an artificial creature, acting only through agents...." State v. Luv Pharmacy, Inc., 118 N.H. 398, 404, 388 A.2d 190, 194 (1978). A corporation may be held criminally liable for criminal acts performed on its behalf by agents or employees acting within the scope of their authority or employment. See State v. Pinardville Athletic Club, 134 N.H. 462, 465, 594 A.2d 1284, 1286 (1991). The criminal conduct need not have been "performed, authorized, ratified, adopted or tolerated by the corporation['s] directors, officers or other ‘high managerial agents' " in order to be chargeable to the corporation. See Com. v. L.A.L. Corp., 400 Mass. 737, 511 N.E.2d 599, 601 (1987) (quotation omitted).

In fact, a corporation can be convicted for actions of its agents even if it expressly instructed the agents not to engage in the criminal conduct. See State v. Hy Vee Food Stores, Inc., 533 N.W.2d 147, 150 (S.D.1995). The agents, however, must have been acting within the scope of their actual or apparent authority. See United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004–07 (9th Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973) ; see also 19 C.J.S. Corporations § 738 (1990). Actual authority can be either express or implied. See Demetracopoulos v. Strafford Guidance Ctr., 130 N.H. 209, 213, 536 A.2d 189, 192 (1987). Express authority exists when the principal explicitly manifests its authorization for the agent to act. Id . Implied authority is the "reasonable incident or construction of the terms of express authority or results from acquiescence by the principal in a course of dealing by the agent." Id . at 215, 536 A.2d at 193 (quotation and ellipses omitted). Apparent authority, on the other hand, "exists where the principal so conducts [itself] as to cause a third party to reasonably believe that the agent is authorized to act." Id . (quotation omitted); see United States v. Bi–Co. Pavers, Inc., 741 F.2d 730, 737 (5th Cir.1984). It is the rare case in which the corporate leadership explicitly authorizes its agents to engage in criminal conduct. "Of necessity, the proof [of] authority to so act must rest on all the circumstances and conduct in a given situation and the reasonable inferences to be drawn therefrom." Commonwealth v. Beneficial Finance Co., 360 Mass. 188, 275 N.E.2d 33, 82–83 (1971), cert. denied, 407 U.S. 910, 914, 92 S.Ct. 2433, 2435, 2434, 32 L.Ed.2d 683, 689 (1972).

Evidence at trial indicates that the defendant had control over the apartment in which the vending machine was located, even though it had voted to make the apartment separate from the fraternity house. More importantly, however, witnesses testified that the defendant had control over the soda machine; that only the defendant had an interest in the proceeds from the machine; that only fraternity members had keys to the apartment in which the machine was located; that someone was making change for the machine; and that no one would have an interest in making change except a member of the fraternity. We believe that from these facts the jury could reasonably have found that an agent of the defendant sold beer from the vending machine and that this agent was acting on behalf of the corporation and within the scope of his authority. See Pinardville Athletic Club, 134 N.H. at 465, 594 A.2d at 1286.

The defendant next argues that the evidence was insufficient for the jury to find that the defendant acted recklessly, the mens rea charged in the indictment. Because the defendant is a corporation, its mental state depends on the knowledge of its agents. See United States v. T.I.M.E.–D.C., Inc., 381 F.Supp. 730, 738 (W.D.Va.1974). "[T]he corporation is considered to have acquired the collective knowledge of its employees and is held responsible for their failure to act accordingly." Id .; see United States v. Bank of New England, N.A., 821 F.2d 844, 856 (1st Cir.), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 356 (1987).

A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation.

RSA 626:2, II(c) (1986).

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  • State v. Zeta Chi Fraternity, 94-774
    • United States
    • New Hampshire Supreme Court
    • 22 Mayo 1997
    ...696 A.2d 530 119 Ed. Law Rep. 1019 The STATE of New Hampshire v. ZETA CHI FRATERNITY. No. 94-774. Supreme Court of New Hampshire. May 22, 1997. Page 533 Jeffrey R. Howard, Attorney General (John C. Kissinger, Jr., Assistant Attorney General, on the brief and orally), for State. Nadeau Profe......
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    • United States
    • New Hampshire Supreme Court
    • 20 Mayo 2010
    ...of her probation, she signed a form consenting to searches of her residence by her probation officer. See State v. Zeta Chi Fraternity, 142 N.H. 16, 30, 696 A.2d 530, cert. denied, 522 U.S. 995, 118 S.Ct. 558, 139 L.Ed.2d 400 (1997). Although Harwood consented to the search, the defendant a......

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