State v. Lisa A. Tagalakis Fedor

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2014-0607

THE STATE OF NEW HAMPSHIRE

v.

LISA A. TAGALAKIS FEDOR

Argued: September 10, 2015
Opinion Issued: November 10, 2015

Joseph A. Foster, attorney general (Jason A. Casey, attorney, on the brief
and orally), for the State.

Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief
and orally), for the defendant.

DALIANIS, C.J. The defendant, Lisa A. Tagalakis Fedor, appeals her
conviction by jury of knowingly keeping or maintaining a common nuisance.
See RSA 318-B:16 (2011). On appeal, she argues that the Superior Court
(Abramson, J.) erred by denying her motion for judgment notwithstanding the
verdict (JNOV), or, in the alternative, to set aside the verdict. We affirm.

Viewed in the light most favorable to the State, the record establishes the
following facts. The defendant lived in Manchester with her boyfriend,
Kristopher White, and her two children. In January 2013, White approached
the defendant about allowing Robert Doane to move in with them. Doane was
an acquaintance of White’s from whom White had purchased heroin. The
defendant agreed to allow Doane to move into a spare bedroom in exchange for
$100 per week. The defendant knew that Doane sold drugs and allowed him to
continue to do so after he moved in, but asked him not to sell drugs inside the
house.

After moving in, Doane began selling heroin on the street outside of the
residence. When a prospective buyer stopped on the street, Doane would meet
the buyer, and an exchange would occur. Inside the residence, Doane installed
a padlock on his bedroom door, but the defendant had witnessed Doane in his
bedroom, packaging heroin into “individual baggies.” Doane, despite being a
convicted felon, also obtained a stolen firearm that he kept in the house.

The defendant was charged with one count of conspiracy to commit the
sale of a controlled drug and one count of knowingly keeping or maintaining a
common nuisance. Following a four-day trial, the jury convicted her of
maintaining a common nuisance and acquitted her of conspiracy.
Subsequently, the defendant moved for JNOV, or, in the alternative, to set
aside the verdict. The trial court denied her requests for relief, and this appeal
followed.

The defendant first argues that the trial court erred when it denied her
motion for JNOV. Specifically, she argues that the evidence presented at trial
was insufficient to prove that her residence was “used for the selling of the
controlled drug heroin” because “drugs were not sold from inside the
residence.” She also argues that the evidence was insufficient to support a
finding that she “maintained a common nuisance under RSA 318-B:16”
because she “did not control or ‘maintain’ Doane’s padlocked room.”

On a motion for JNOV based upon evidentiary insufficiency, the trial
court must uphold the jury’s verdict unless no rational trier of fact could have
found guilt beyond a reasonable doubt, considering all the evidence and all
reasonable inferences therefrom in the light most favorable to the State. State
v. Spinale, 156 N.H. 456, 463 (2007). In considering a motion for JNOV, the
trial court may not weigh the evidence or inquire into the credibility of the
witnesses, and, if the evidence adduced at trial is conflicting, or if several
reasonable inferences may be drawn, the motion should be denied. Id. The
question of whether a JNOV is required because of insufficient evidence is a
question of law. Id. at 464. On appeal, we review the record to determine
whether any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt. Id. Because a challenge to the sufficiency of the
evidence raises a claim of legal error, our standard of review is de novo. State
v. Lisasuain, 167 N.H. ___, ___, 117 A.3d 1154, 1158 (2015).

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 RSA 318-B:16 provides that:

Any store, shop, warehouse, dwellinghouse, building, vehicle, boat,
aircraft, or any place whatever which is resorted to by drug-
dependent persons for the purpose of using controlled drugs or
which is used for the illegal keeping or selling of the same shall be
deemed a common nuisance. No person shall knowingly keep or
maintain such a common nuisance.

(Emphasis added.) The indictment alleged that the defendant “knowingly kept
or maintained a common nuisance, specifically, her home . . . was used for the
illegal keeping or selling of controlled drugs.” (Bolding omitted.) Because
neither RSA 318-B:16, nor the penalty provision of the Controlled Drug Act,
RSA 318-B:26 (2011) (amended 2013), provides a specific penalty for violating
RSA 318-B:16, the defendant was charged with a class B felony. See RSA
318-B:26, XI (“Any person who violates any provision of this chapter for which
a penalty is not provided . . . shall be guilty of a class B felony if a natural
person . . . .”).

By means of a special verdict form, the jury found that the State had
proven beyond a reasonable doubt that the defendant “knowingly kept or
maintained her residence, that was used for” both the “keeping” and the
“selling” of a controlled drug. The defendant asserts that “[a]lthough the State
presented evidence that the defendant’s residence was used for the illegal
keeping of a controlled drug, there was insufficient evidence that the dwelling
itself was used for the illegal selling of drugs.” The defendant maintains that,
with regard to “keeping” controlled drugs, the legislature superseded RSA
318-B:16 when it passed RSA 318-B:26, III(a). See RSA 318-B:26, III(a)
(stating that a person who “[c]ontrols any premises . . . where he knows a
controlled drug or its analog is illegally kept or deposited” shall be guilty of a
misdemeanor). The defendant argues that, if the evidence is insufficient for a
rational trier of fact to have concluded that a sale of heroin occurred in the
residence, the defendant’s felony conviction must be vacated and we must
remand for sentencing as a misdemeanor under RSA 318-B:26, III(a).

The State concedes that RSA 318-B:26, III(a) supersedes RSA 318-B:16
in cases in which the only allegation is that a controlled substance was “kept”
on the premises. However, the State asserts that “maintaining a place used for
the illegal selling of controlled drugs continues to be a class B felony prohibited
by RSA 318-B:16.” Accordingly, we will assume, without deciding, that RSA
318-B:26, III(a) supersedes RSA 318-B:16 regarding “keeping” controlled drugs,
and focus our analysis upon whether the evidence was sufficient to support the
jury’s conclusion that the defendant’s house was “used for the . . . selling” of
controlled drugs. RSA 318-B:16.

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 Resolution of this issue requires us to engage in statutory interpretation.
The interpretation of a statute is a question of law, which we review de novo.
State v. Thompson, 164 N.H. 447, 448 (2012). In matters of statutory
interpretation, we are the final arbiters of the legislative intent as expressed in
the words of the statute considered as a whole. Id. When examining the
language of the statute, we ascribe the plain and ordinary meaning to the
words used. Id. We construe all parts of a statute together to effectuate its
overall purpose and to avoid an absurd or unjust result. State v. Maxfield, 167
N.H. ___, ___, 117 A.3d 704, 706 (2015). We construe the Controlled Drug Act
(Act) so as to carry out, not defeat, the manifest objective sought by the statute
— the regulation of controlled drugs in all of its aspects. State v. Berger, 125
N.H. 83, 87 (1984).

Although the Act does not define the term “selling,” the term “[s]ale” is
defined as “barter, exchange or gift, or offer therefor, and each such
transaction made by any person whether as principal, proprietor, agent,
servant, or employee.” RSA 318-B:1, XXX (2011). Additionally, “used” is
defined, in relevant part, as “employed in accomplishing something.” Webster’s
Third New International Dictionary 2524 (unabridged ed. 2002). Thus, the
statute prohibits a broader range of behavior than just the physical exchange
of a controlled drug. Under the plain language, the statute does not require
that a “sale” take place inside the particular “dwellinghouse” in order for it to
be deemed a common nuisance. See RSA 318-B:16. Rather, the statute
provides that a dwellinghouse that is used to accomplish the selling of a
controlled drug is a common nuisance. See id.

Here, viewing the evidence in the light most favorable to the State, a
rational trier of fact could have found beyond a reasonable doubt that Doane
used the defendant’s residence to accomplish the sale of the controlled drug
heroin. The defendant admitted to the police that she allowed Doane to move
into the residence, knowing that he sold heroin, and with the agreement that
he could continue selling heroin after moving in. Although, in her testimony,
the defendant denied knowing that Doane sold heroin, the jury could have
disregarded her explanation if it questioned her credibility. State v. Hull, 149
N.H. 706, 713 (2003).

After he moved in, Doane made the physical transfer of heroin outside
the residence. There was testimony of approximately a dozen instances in
which Doane sold heroin in this manner. On one occasion, the police observed
a man who fit Doane’s physical characteristics exit the residence, walk to a
vehicle parked directly in front of the residence, and put his hands inside the
passenger side window of the vehicle. When the man saw the police, he
immediately went back inside the residence. The occupant of that vehicle
admitted that he was attempting to purchase heroin from a man named “Rob.”

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 Additionally, in the residence, Doane installed a padlock on his bedroom
door. The defendant admitted to the police that she witnessed Doane in his
bedroom, packaging heroin into individual bags. Finally, Doane purchased a
stolen handgun that was recovered from inside the residence.

From this evidence, a rational trier of fact could have concluded that
buyers traveled to the specific residence in order to purchase heroin.
Furthermore, the jury could also have determined that Doane used the
residence to prepare heroin for sale and to protect himself and the drugs he
sold. Therefore, based upon all of the circumstances, we hold that the record
contains sufficient evidence for a rational trier of fact to have concluded that
the residence was “used for the . . . selling” of a controlled drug. RSA
318-B:16.

Additionally, we are not persuaded that, as the defendant argues, the
evidence was insufficient for the jury to have concluded that the defendant
“maintain[ed]” a common nuisance under RSA 318-B:16. The defendant,
relying upon case law from another jurisdiction, equates the statute’s use of
the term “maintain” with “constructive possession” and argues that, “[b]ecause
the State failed to prove that [she] exercised dominion or control over heroin in
Doane’s padlocked room,” the motion for JNOV should have been granted.

The plain language of RSA 318-B:16 does not support the defendant’s
interpretation. The statute states that “[n]o person shall knowingly keep or
maintain . . . a common nuisance.” RSA 318-B:16. The term “maintain”
applies to the place deemed a common nuisance, not to controlled drugs. See
id. The statute does not require the defendant to have had possession, actual
or constructive, of controlled drugs. See id. Further, a common nuisance is
statutorily defined as “[a]ny store, shop, warehouse, dwellinghouse, building,”
used for the illegal conduct, and the statute sets forth no limitation as to illegal
conduct occurring within rooms of a building. Id. In this case, the indictment
alleged that the common nuisance was the defendant’s “home” and not Doane’s
bedroom. Thus, the fact that Doane had a padlock on his bedroom door does
not change our analysis. For these reasons, we are not persuaded that the
trial court erred when it denied the defendant’s motion for JNOV.

Finally, the defendant argues that the trial court erred by denying her
motion to set aside the verdict “because the weight of the evidence supported a
finding that [the defendant] did not know that Doane was using her home to
sell heroin.” “Although a verdict may be supported by sufficient evidence, a
trial court may nevertheless conclude that the judgment is against the weight
of the evidence.” Spinale, 156 N.H. at 465 (quotation omitted). “The weight of
the evidence is its weight in probative value, not the quantity or amount of
evidence.” Id. (quotation omitted). The trial court’s assessment is basically a
determination “that a greater amount of credible evidence supports one side of
an issue or cause than the other.” Id. (quotation omitted). “[A] motion

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addressed to the weight of the evidence primarily presents a question of fact for
the trial court” and, therefore, we “will uphold the trial court’s decision unless
it was made without evidence or constituted an unsustainable exercise of
discretion.” Id. at 465-66.

Here, a police officer testified that the defendant admitted that she and
Doane “had an agreement that he could sell heroin from the residence, but . . .
she didn’t want him to sell it from the house.” Thus, there was direct evidence
that the defendant had knowledge that Doane used the residence to sell heroin.
Although both White and the defendant testified that the defendant had no
such knowledge, this does not compel a finding that the judgment was against
the weight of the evidence, as the trial court could reasonably have found the
testimony not credible. The defendant testified that she had “[e]verything”
riding on the outcome of this case and the trial court could reasonably have
concluded that this undermined her credibility. The trial court also could
reasonably have found that White’s credibility was questionable in light of his
testimony that she was “the best thing that happened in [his] life.”

The defendant also argues that, because the jury found the defendant
not guilty of conspiracy to commit the sale of a controlled drug, it is
“inconsistent and against the weight of that same evidence” to have found her
guilty of common nuisance. However, the conspiracy charge required the State
to prove that the defendant acted “purposely,” while the common nuisance
charge required the State to prove that the defendant acted “knowingly.”
Compare RSA 629:3, I (2007) with RSA 318-B:16. “‘Knowingly’ is a lesser
mental state than ‘purposely.’” State v. Morabito, 153 N.H. 302, 306 (2006).
Thus, the fact that the jury found the defendant not guilty of the conspiracy
charge, but guilty of common nuisance, does not mean that the verdicts were
inconsistent or against the weight of the evidence. The jury may simply have
determined that the State had not proven beyond a reasonable doubt that the
defendant acted with the higher culpable mental state of “purposely” to support
a guilty finding on the conspiracy charge.

For these reasons, we conclude that the trial court’s denial of the
defendant’s motion to set aside the verdict was supported by the evidence at
trial, and did not constitute an unsustainable exercise of discretion.

Affirmed.

CONBOY, LYNN, and BASSETT, JJ., concurred.

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