State of New Hampshire v. Tammy Dunn

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0363, State of New Hampshire v. Tammy
Dunn, the court on April 6, 2015, issued the following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, Tammy Dunn, appeals her conviction following a jury
trial in Superior Court (O’Neill, J.) on one count of perjury. We affirm.

The perjury charge arose from the defendant’s testimony in a circuit
court case regarding her ability to pay a judgment, which had been issued
against her in a prior proceeding. In the circuit court case, the defendant was
questioned about properties that were not listed on her financial affidavit,
including the Belmont property at issue in the instant case. Regarding those
properties, the defendant testified that, although she was “on [those] properties
with [her] children,” she did not “collect any rent” and had “nothing to do with
them anymore.” Based upon the evidence before it, the circuit court
determined that the defendant lacked a present ability to pay the judgment.
Thereafter, the defendant was charged with having committed perjury when
she testified that she was “on the properties with [her] children,” but did not
“collect any rent” and had “nothing to do with them anymore.”

On appeal, she argues that the superior court erred by denying her
motions to dismiss and for a directed verdict based upon insufficient evidence.
Because both analyses necessarily involve the consideration of the sufficiency
of the evidence presented at trial, we address both arguments together. State
v. Chapman, 149 N.H. 753, 758 (2003). When reviewing the sufficiency of the
evidence, we ask whether, based upon all the evidence and all reasonable
inferences from it, considered in the light most favorable to the State, any
rational trier of fact could have found beyond a reasonable doubt that the
defendant was guilty. Id. “In reviewing the evidence, we examine each
evidentiary item in the context of all the evidence, not in isolation.” State v.
Germain, 165 N.H. 350, 355 (2013). “Circumstantial evidence may be
sufficient to support a finding of guilty beyond a reasonable doubt.” Id.
(quotation omitted). “Further, the trier may draw reasonable inferences from
facts proved and also inferences from facts found as a result of other
inferences, provided they can be reasonably drawn therefrom.” Id. (quotation
omitted). The defendant bears the burden of demonstrating that the evidence
was insufficient to prove guilt. Id.
 To convict the defendant of perjury, the State had to prove that she: (1)
knowingly made a false, material statement under oath or affirmation, in an
official proceeding (here, a prior circuit court evidentiary hearing) that (2) she
did not believe to be true. See RSA 641:1, I (2007).

The defendant first argues that the evidence was insufficient for any
rational finder of fact to have found, beyond a reasonable doubt, that her
statements that she does not “collect rent” and has “nothing to do with [the
Belmont property] anymore,” were false and that she made those allegedly false
statements knowingly. There was evidence that the defendant receives the
rental income from the Belmont property, that she pays the mortgage, taxes,
insurance, and escrow on that property, and that she signed the tenant’s lease
and rental agreement as the property owner and landlady. From that evidence,
viewed in the light most favorable to the State, a rational fact finder could
reasonably have found that the defendant’s statements that she did not “collect
rent” and had “nothing to do with [the property] anymore” were false. A
rational fact finder also could have reasonably found from that evidence,
viewed in the light most favorable to the State, that the defendant made the
false statements knowingly.

The defendant next asserts that the evidence was insufficient for any
rational finder of fact to have found, beyond a reasonable doubt, that her false
statements were “material.” To be “material,” a false statement must be
“capable of affecting the course or outcome of the proceeding.” RSA 641:1, II
(2007). Here, a rational fact finder could have found, viewing the evidence in
the light most favorable to the State, that the defendant’s statements that she
did not “collect rent” and had “nothing to do with [the Belmont property]
anymore” were “capable of affecting” the determination of her ability to pay the
prior judgment. Although the defendant suggests that to be “material,” the
false statement had to have actually affected the circuit court proceeding, her
argument is contrary to the plain meaning of RSA 641:1, II. Under that
statute, to be material, the statement only has to be “capable” of affecting a
proceeding.

To the extent that the defendant argues on appeal that the trial court
erred when it allowed the jury to decide materiality, we conclude she has failed
to preserve this argument for our review. In the trial court, the State argued
that materiality “is a question of law to be determined by the Court, . . . not the
jury.” Id. However, the defendant argued that materiality is “a jury question.”
See United States v. Gaudin, 515 U.S. 506, 509, 522-23 (1995). Accordingly,
without objection by the defendant, the court allowed the jury to decide

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materiality. Based upon this record, the defendant has failed to preserve her
appellate argument that, by allowing the jury to decide materiality, the trial
court erred.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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