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State v. Pepin

Supreme Court of New Hampshire

August 15, 2014

State of New Hampshire
v.
Jeffrey S. Pepin

The defendant, Jeffrey Pepin, appeals his convictions of conspiracy to commit burglary, see RSA 635:1 (2007); RSA 629:3 (2007), and accomplice to burglary, see RSA 626:8 (2007). He argues that: (1) the superior court lacked subject matter jurisdiction over his case; (2) the indictments, together with the bill of particulars, were insufficient to give him proper notice of the charges against him; (3) the evidence was insufficient to support the convictions; and (4) his trial counsel was constitutionally ineffective. We affirm.

The defendant first argues that the superior court lacked subject matter jurisdiction over his case because a necessary issue for determination was whether he was in criminal contempt of court for violating orders issued by the Derry Family Division, an issue that he asserts only the Derry Family Division could determine. Subject matter jurisdiction presents a question of law, which we review de novo. In the Matter of Mallett & Mallett, 163 N.H. 202, 207 (2012).

The defendant was charged with conspiracy to commit burglary and accomplice to burglary. The defendant does not dispute that the superior court generally has jurisdiction over such charges, see RSA 491:7 (2010) (superior court jurisdiction), that criminal contempt of court constitutes a crime, see State v. Goodnow, 140 N.H. 38, 40 (1995), or that the family division could have found him to be in criminal contempt for his conduct. Rather, he argues that only the family division could have found him to be in criminal contempt of its orders, and that the family division made no such finding.

Burglary involves the unauthorized entry into an occupied structure with the purpose to commit a crime therein. See RSA 635:1, I. In this case, the State alleged that the defendant conspired to commit the crime of contempt of family division orders issued in his domestic relations case. An actual finding of criminal contempt was not necessary to support the defendant's convictions because the State was not required to prove that the defendant committed criminal contempt of court; it was required to prove only that his purpose was to do so. See State v. Chaisson, 123 N.H. 17, 24 (1983). The defendant argues that he could not have had the purpose to commit criminal contempt because the family division could have found him to be in civil contempt for his conduct, rather than criminal contempt. We conclude, however, that the defendant's knowledge that his conduct could have resulted in a finding of criminal contempt was sufficient to support the charges. See State v. Smith, 163 N.H. 13, 17-18 (2011) ("[T]he law regarding criminal contempt is well-established and thus the defendant was on sufficient notice that his knowing violation of a court order could be treated as criminal conduct."). Accordingly, we conclude that the superior court had jurisdiction over this case. See In the Matter of Mallett, 163 N.H. at 207.

The defendant also argues that the indictments, together with the bill of particulars, were insufficient to give him proper notice of the charges against him. An indictment must inform the defendant of the offense with which he is charged with sufficient specificity to enable him to prepare for trial and to protect him from being put in jeopardy a second time for the same offense. State v. Bisbee, 165 N.H. 61, 64 (2013). In this case, the trial court ordered the State to provide the defendant with a bill of particulars identifying the court, case, and general subject matter of the orders forming the basis for the contempt allegation. The State's bill of particulars identified the court and case as the defendant's divorce case in the Derry Family Division and identified the relevant orders as those relating to the disposition of a "2004 Chevy Van." Although the defendant asserts that the orders relating to the disposition of the van were conflicting, it was sufficiently clear from the orders that the defendant was not allowed to remove the van from the former marital property without court approval. Accordingly, we conclude that the indictments and bill of particulars provided the defendant with sufficient notice of the charges against him. See id.

The defendant next argues that the evidence was insufficient to convict him of accomplice to burglary and conspiracy to commit burglary because there was no evidence that his purpose was to commit the crime of contempt of court, and because the principal, Jennifer Overhulser, was neither aware of, nor subject to, the family division's orders.

To prevail on his claim that the evidence was legally insufficient to support the convictions, the defendant must establish that no rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Alwardt, 164 N.H. 52, 55 (2012). We do not examine each evidentiary item in isolation, but rather in the context of all the evidence presented. Id. When the evidence as to one or more elements of the charged offenses is solely circumstantial, the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt. State v. Germain, 165 N.H. 350, 361 (2013). The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded. Id.

In this case, in order to convict the defendant of accomplice to burglary, the State was required to prove that he aided another person with the purpose of promoting or facilitating the commission of the offense of burglary, which is the unauthorized entry into an occupied structure with the purpose to commit a crime therein. See RSA 626:8, RSA 635:1. In order to convict the defendant of conspiracy to commit burglary, the State was required to prove that the defendant agreed with another person to commit or cause the commission of the offense of burglary, and that an overt act was committed in furtherance of the conspiracy. See RSA 629:3, I.

The defendant argues that the evidence was insufficient to support the convictions because the evidence showed that his purpose was to obtain possession of the van, not to commit criminal contempt of court by violating the family division's orders. However, the evidence at trial included records and transcripts of telephone conversations between the defendant and Overhulser demonstrating that they were both aware that their contemplated conduct could constitute criminal contempt of court orders. For example, during a telephone conversation on September 11, 2010, the defendant told Overhulser that he was "thinking of the blue van, " and told her, "you should just grab a set of plates and go over there and pick it up." Overhulser replied that she "already did that once, " but that "the lawyers and the police would not let me go on the property." Overhulser said she was told: "[D]o not show up here. You'll be arrested." Overhulser also told the defendant that she did not have keys to the building and would "have to bust a window open." The conversation continued regarding the need to plan the event so that "[s]he won't be there, " and regarding what would happen if "she called the police."

During a telephone conversation the next day, the defendant and Overhulser discussed whether to "break a window" or "get a lock pick set." Overhulser told the defendant, "I gotta get it out of there without anybody stopping me though. Every time I've taken stuff that you own, or I own out of there, it creates a problem. And she calls the police and they say oh no, you can't take it . . . go to Court." Although Overhulser was not a party to the domestic relations case, the family division found her to be an indispensable third party at the time of the divorce decree. Based upon this record, we conclude that the evidence showing that she purposely assisted the defendant in violating the orders was sufficient to support the defendant's convictions. See State v. Gross, 117 N.H. 853, 856 (1977); see generally Annotation, Violation of state court order by one other than party as contempt, 7 A.L.R.4th893 (1981) (collecting cases standing for proposition that nonparty may be found in contempt of court order when acting with knowledge of order and in concert with a party). We conclude that a rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt. See Alwardt, 164 N.H. at 55.

The defendant next argues that his trial counsel was ineffective by failing to object to the State's reference to the "jail call" during closing argument and by preventing him from testifying on his own behalf.

The State and Federal Constitutions guarantee a criminal defendant reasonably competent assistance of counsel. N.H. CONST. pt. I, art. 15; U.S. CONST. amend. VI; see State v. Kepple, 155 N.H. 267, 269 (2007). We examine the constitutional competency of counsel's performance under the State Constitution, and rely upon federal case law only to aid in our analysis. State v. Whittaker, 158 N.H. 762, 768 (2009). "Because the standard for determining whether a defendant has received ineffective assistance of counsel is the same under both constitutions, necessarily, we reach the same result under the Federal Constitution as we do under the State Constitution." Id.

"To assert a successful claim for ineffective assistance of counsel under the State Constitution, a defendant must show, first, that counsel's representation was constitutionally deficient and, second, that counsel's deficient performance actually prejudiced the outcome of the case." State v. Eschenbrenner, 164 N.H. 532, 539 (2013). "To satisfy the first prong, the defendant must show that counsel made such egregious errors that he or she failed to function as the counsel guaranteed by the State Constitution." Id. "We afford broad discretion to trial counsel when determining a trial strategy, and we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (citation and quotation omitted). "To satisfy the second prong, the defendant must demonstrate actual prejudice by showing that there is a reasonable probability that the result of the proceeding would have been different had competent legal representation been provided." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case." Id. at 540. The performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. State v. Hall, 160 N.H. 581, 585 (2010). Therefore, we will not disturb the trial court's factual findings unless they are not supported by the evidence or are erroneous as a matter of law, and we review de novo the ultimate determination of whether each prong is met. Id.

The record shows that although the State agreed not to refer to the fact that the defendant was incarcerated at the time of his telephone calls with Overhulser, the prosecutor referred to one of the calls as a "jail call" during his closing argument. In ruling on the defendant's post-trial motions, the trial court noted that the prosecutor used the term only once and found that error to be unintentional. At a hearing on the defendant's post-trial motions, his trial counsel testified that he did not hear the prosecutor's use of the term "jail call." Although the defendant argues that his counsel was ineffective for failing to remain alert, we conclude that even if his counsel had heard the reference, he reasonably could have ...


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