State of New Hampshire v. William Patten

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0011, State of New Hampshire v. William
Patten, the court on December 9, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, William Patten, appeals his conviction, following a jury
trial in Superior Court (Vaughan, J.), on charges of theft by deception. See
RSA 637:4 (2016). He argues that: (1) the witness through whom the State
introduced certain bank records pursuant to the business records exception to
the hearsay rule was not qualified to provide the foundation for the records;
and (2) the evidence was insufficient to establish that the property at issue was
“property of another” within the meaning of RSA 637:4 and RSA 637:2 (2016).

We first address whether the trial court erred by admitting the bank
records. New Hampshire Rule of Evidence 803(6) provides that the following
documents are not excluded by the hearsay rule:

A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made at
or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business
activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or
other qualified witness, . . . unless the source of information or the
method of circumstances of preparation indicate lack of
trustworthiness.

N.H. R. Ev. 803(6). This rule requires “the custodian of the record, or another
qualified witness, to testify about the identity and mode of preparation of the
proffered document, and to testify that it was made in the regular course of
business at or near the time of the transaction recorded.” State v. Howe, 159
N.H. 366, 374 (2009) (quotation omitted). “Verification of the authenticity,
regularity and correctness of such records by the official having them in
charge, or by another qualified witness, constitutes the proper foundation for
admission of the proffered record.” Id. (quotation omitted). “The ‘qualified
witness’ . . . need only be someone who understands the system of how the
document was made, and need not have participated in the document’s
creation or know who created it.” Id. (quotation omitted).

The bank records at issue consist of checks deposited into an account
controlled by the defendant, and corresponding deposit slips. We assume,
without deciding, that such records would have been barred by the hearsay
rule but for the trial court’s ruling under Rule 803(6). But see State v. Beede, 156 N.H. 102, 105 (2007) (holding that checks deposited into an account
constituted verbal acts that were not barred by the hearsay rule). We will
uphold the trial court’s ruling absent an unsustainable exercise of discretion.
Howe, 159 N.H. at 374. To establish an unsustainable exercise of discretion,
the defendant must demonstrate that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. Id.

In this case, the State introduced the records at issue through a vice
president of the subject bank whose obligations included investigating fraud
and complying with subpoenas. He testified that, upon receiving a subpoena,
he requests any one of ten bank departments to retrieve the requested records,
that the department retrieves the records from the bank’s computer system
“either by customer name, date of birth, Social, account number, or loan
number” and provides them to him, and that he examines the records retrieved
to ensure compliance with the subpoena before producing them. With respect
to checking account records, he testified that he requests such records from
the bank’s deposit services department. He further testified that he received a
subpoena in this case for records, within a specific time frame, from checking
accounts belonging to the defendant and a company that the defendant owned,
that he retrieved the requested records, that the records he retrieved reflected
transactions that were completed close in time to the dates on the records, and
that the bank relied upon the records and maintained them in the ordinary
course of its business.

The defendant objected to the introduction of the records, arguing that
because the witness “never worked as a teller, never worked in the checking
department, never worked as a data entry person,” but merely retrieved the
documents from others, he lacked sufficient personal knowledge to satisfy the
foundation requirements of Rules 602 and 803(6). The trial court rejected this
argument, ruling that “the issues raised in . . . [Rule 803(6)] have been covered
appropriately by the State.” On appeal, the defendant again argues that the
witness lacked sufficient personal knowledge to establish the foundation
requirements of Rule 803(6). We disagree.

The witness’s testimony establishes that his regular duties include
investigating fraud and responding to subpoenas, that he is required to know
which of ten possible bank departments maintains requested records, and that
checking account records are maintained by the deposit services department.
His testimony further establishes his personal knowledge that such records are

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maintained on the bank’s computer system, and that they are accessible by
customer name, date of birth, social security number, account number, or loan
number. According to the witness, he regularly reviews records demanded by
subpoena before producing them to ensure their compliance with the
subpoena. Under these circumstances, the trial court reasonably could have
found that the witness had sufficient knowledge of how the bank creates and
maintains checking account records so as to be able to verify the authenticity,
regularity, and correctness of the checking account records that he produced
pursuant to the State’s subpoena. See Howe, 159 N.H. at 374. Accordingly,
we conclude that the trial court did not unsustainably exercise its discretion by
admitting the records pursuant to Rule 803(6).

We next address whether the evidence was sufficient to prove that the
defendant stole “property of another” for purposes of RSA 637:4. We note that
the defendant has not provided the numerous exhibits submitted at trial,
which included the bank records discussed above as well as other checks,
proposals, invoices, e-mails, and photographs, as part of the record on appeal.
Accordingly, we assume that the exhibits support the jury’s verdict. See Bean
v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

“When considering a challenge to the sufficiency of the evidence, we
objectively review the record to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State.” State v. Sanborn, 168 N.H. 400, 412
(2015) (quotation omitted). We examine each item of evidence within the
context of all the evidence, and not in isolation. Id. at 413. The jury “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 his guilt. Id. at 412.

Under RSA 637:4, I, “[a] person commits theft [by] obtain[ing] or
exercis[ing] control over property of another by deception and with a purpose to
deprive him thereof.” “‘Property’ means anything of value, including . . .
tangible . . . personal property . . . .” RSA 637:2, I. “‘Property of another’
includes property in which any person other than the actor has an interest
which the actor is not privileged to infringe . . . .” RSA 637:2, IV.

The property at issue in this case consisted of items of heating
equipment that the defendant sold to, and installed in the homes of, other
persons. The indictments alleged that the equipment was the property of the
defendant’s employer. The evidence at trial establishes that the defendant was
employed as a branch manager for a company that supplies home heating fuel,
and that both services and sells home heating equipment. His obligations
included selling home heating equipment to the employer’s customers, which

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involved ordering the equipment through the employer’s vendors and
overseeing its installation. The employer specifically prohibited its employees
from engaging in “side work” in competition with it.

With respect to the equipment at issue, the evidence establishes that the
defendant ordered the equipment through the employer, which purchased and
paid for the equipment. The defendant and a colleague, who also was
employed by the employer as a branch manager, then installed the equipment
in the homes of the employer’s customers. The customers, in requesting
quotes for the equipment, approached the defendant as an agent of the
employer. When the defendant and his colleague installed the equipment, they
drove to the customers’ properties in the employer’s trucks. However, the
defendant never billed the customers on behalf of the employer, but instead
instructed them either to pay a separate company that he controlled, or to pay
him directly. The defendant then split the proceeds with the colleague. Thus,
although the employer had paid for the equipment, the employer never received
reimbursement for it. The employer discovered the scheme when one of its
customers requested that it service a furnace for which it had no record of
selling, but had a record of purchasing.

The defendant moved to dismiss at the close of the evidence, arguing
that, although “the evidence of record shows that the property was ordered
through” the employer, the property was “never in the possession of” the
employer. Because the employer never had physical possession of the
equipment, and because the evidence showed that the employer paid for the
equipment after it was installed, the defendant asserted that the employer
never had an ownership interest in it. The trial court denied the motion. On
appeal, the defendant again argues that because the employer never
“possessed, controlled, or touched” the equipment, it could not have been the
employer’s property as a matter of law. We disagree.

Regardless of whether the employer ever physically possessed or
controlled the equipment, the evidence establishes that the defendant, acting
as the employer’s agent, caused the employer to purchase it, and that he then
sold it, without the employer’s authority and without reimbursing the
employer, through a separate company that he controlled. Thus, a rational
jury reasonably could have found, beyond a reasonable doubt, that the
employer had an interest in the equipment, which was tangible personal
property, that the defendant was not privileged to infringe. RSA 637:2, I, IV.

Affirmed.

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

Eileen Fox,
Clerk

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