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State v. Fedor

Supreme Court of New Hampshire

November 10, 2015

THE STATE OF NEW HAMPSHIRE,
v.
LISA A. TAGALAKIS FEDOR

Argued: September 10, 2015

Hillsborough-northern judicial district.

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).

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 ...


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