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LEX LOCI

LEX LOCI

particularly convinced

particularly convinced that the police were on notice of the mistake, because officer Alling was both the affiant on the warrant application and one of the executing officers. Because the Court determined that a neutral magistrate would not have authorized a warrant had it been known that what officer Alling initially observed were BB guns, the Court concluded that the trial court erred in denying the defendant’s motion. Accordingly, the trial court’s order was reversed and the case remanded. State v. Ouahman, decided Dec. 7, 2012, is a case that contains an updated discussion about the use of preemptory challenges by the State and the so‑called “Batson Challenge.” A jury convicted the defendant of two counts of kidnapping and two counts of robbery. The defendant appealed, arguing that the trial court erred when it overruled his Batson challenge to the State’s use of peremptory challenges to strike only male jurors from the panel. The defendant was tried by a jury panel consisting of nine women and five men. The selection process began with the trial court reading to the 29‑person venire a list of potential witnesses and preliminary voir dire questions. The clerk randomly drew all 29 names from a box, asking each juror, as his or her name was drawn, whether the juror had answered “yes” to any of the court’s preliminary questions. Each juror who responded affirmatively to the clerk was then questioned further by the court, and both parties were given the chance to strike a juror for cause. Once deemed qualified, jurors were seated in the jury box. The original qualified panel was comprised of six women and eight men. The State exercised its three peremptory challenges in favor of striking three men, one of whom it had unsuccessfully attempted to strike for cause after the juror had suggested that he may be more skeptical of a police officer’s testimony than that of other witnesses. The defendant raised a Batson challenge following the State’s third peremptory strike, asserting that the State was striking jurors on the improper basis of gender. The State responded to the defendant’s challenge by explaining that jurors were being stricken based only on their responses to court questioning and on information contained in their questionnaires. The trial court then overruled the defendant’s objection. The Court addressed the defendant’s argument on appeal under federal law only, as the defendant did not specify whether he relied on the state, federal or both constitutions in challenging the trial court’s ruling. The Court began its analysis of the defendant’s claims by setting forth the three‑step inquiry courts are to engage in when a party objects to his or her opponent’s use of peremptory challenges based on gender discrimination. First, the opponent must make out a prima facie case of gender‑based discrimination; then, the burden of production shifts to the other party to provide a gender‑neutral explanation for the strike; and finally, if a gender‑neutral explanation is in fact provided, the trial court must determine whether the opponent of the strike has proved purposeful discrimination based on gender. The Court construed the trial court’s lack of engagement in steps two and three of the foregoing inquiry as implicitly determining that the defendant had, in the first instance, failed to make a prima facie showing of discrimination. Winter 2013 New Hampshire Bar Journal After reviewing the factors relevant to whether a defendant has established a prima facie case of gender discrimination, the Court rejected all of the defendant’s claims. Specifically, the Court disagreed with the defendant’s reliance on the number of men versus women in the 20‑person qualified venire in support of his argument, and focused instead on the male‑female ratio in the 14 jurors who were actually seated and against whom the parties could actually exercise their pe‑ remptory strikes. The Court further discounted the defendant’s claim that the State’s use of all three strikes on males required an inference of gender discrimination. Finally, the Court noted two other relevant factors to its determination that the defendant had not made out a prima facie showing of discrimination: one peremptory followed the State’s attempt to strike the juror for cause over the statements he made about police officer testimony, which indicated the State was concerned with the juror’s ability to reach a proper verdict and not his gender; and where the defendant and both victims were males, the circumstances of the case generally did not support a an inference that the State’s use of its peremptory challenges on male jurors only was discriminatory. Accordingly, the defendant’s convictions were affirmed. State v. Dunn, decided Oct. 16, 2012, involves the interplay of jury verdicts and the standard for imposition of a suspended sentence. In 2006, the defendant pleaded guilty to one count of accomplice to burglary and one count of tampering with witnesses. Pursuant to a plea agreement, he was sentenced to two concurrent prison terms of three‑and‑a‑half to seven years, suspended for five years on the condition of good behavior. In 2009, the defendant was involved in a fight that resulted in him being charged with two counts of simple assault and one count of criminal threatening. Following a bench trial in district court, he was found guilty, but he was subsequently acquitted by a jury of all charges based on his assertion of self‑defense. Following the bench trial but prior to the jury trial, the superior court conducted a hearing on the State’s motion to impose the 2006 suspended sentence, and ruled that because the State had met its burden, the motion to impose was granted. After he was acquitted of the charges by a jury, however, the defendant filed a motion to vacate the imposition of the suspended sentence, arguing that he did not violate the good behavior requirement of his 2006 suspended sentence as evidenced by the jury’s finding that his actions were legally justified acts of self‑defense. The superior court denied the defendant’s motion. The defendant’s motion for reconsideration was also denied, and his appeal followed. On appeal, he argued primarily that in denying his motion, the trial court had misinterpreted the jury’s verdict by concluding that the jury did not specifically find that he acted in self‑defense or that his actions were otherwise justified. The Court disagreed, noting that because the State bears the burden of proving conduct that negates the defense of self‑defense once it is raised, a jury could acquit based not on an affirmative finding that a defendant acted in self‑defense, but on a finding that the State failed to meet its burden of proof as to one or more elements of the charged offense. The Court further explained 51

that in seeking to impose a suspended sentence, the State can meet its burden by showing either a conviction or that the acts constituting the violation occurred by a preponderance of the evidence. Accordingly, the Court found no error in the superior court’s independent determination following a hearing that that the defendant had violated the condition of suspension. Finally, the Court declined to address the defendant’s arguments that even prior to being acquitted by a jury, there was insufficient evidence upon which the superior court could rely in imposing his suspended sentence, and that the imposition hearing should have been stayed pending the conclusion of his criminal trial. The Court relied on the fact that the defendant had not appealed the superior court’s first ruling that the conditions of suspension had been violated, and only appealed the superior court’s denial of his motion to vacate that ruling after he had been acquitted by a jury. As a result of the defendant’s failure to appeal that first ruling, the Court deemed the arguments waived. Accordingly, the superior court’s imposition of the defendant’s suspended sentence was affirmed. Town of Barrington v. Richard Townsend, decided Oct. 16, 2012, is a curious case involving a man, his love of recreational vehicles, and his barn. Apparently, Mr. Townsend loves living in an RV on a lot of land he owns in Barrington. At some point in 2009, he thought it would be a novel idea to install several (10) “metered” hook‑up sites in is lot. He advertised for other fellow RV’ers to come and stay with him. Just prior to doing so, his own residence – an RV motor home – was severely damaged by fire, and he moved into the large barn on his lot. The barn was fully equipped with air conditioning, plumbing, two heating systems, carpeting, a kitchen and a bathroom. Eventually, the Town of Barrington got wind of this situation and sent him a cease and desist letter. Most notably, he was cited for converting his residential lot into a non‑residential use by turning it into a campground, and for violating the town’s zoning ordinance by converting his barn into a dwelling. All without permits. Mr. Townsend disagreed, and the town sued for injunctive relief. At the trial court level, in opposition to the town’s motion for summary judgment, Mr. Townsend argued that he was not operating a non‑residential campground business that would have needed town approval. He argued that it was not a business, interpreted as “non‑ commercial” by the Court, and that the manner in which the land was used was a genuine issue of material (and disputed) fact. With respect to his “barn,” Mr. Townsend argued that he stopped using the barn as a residence shortly after the cease and desist letter was issued and, therefore, the trial court should not grant summary judgment. The court granted summary judgment, and awarded attorney’s fees to the town. On appeal, the Court held that the undisputed facts supported the conclusion that Mr. Townsend was operating a campground… Mr. Townsend has admitted to such, but asserted that it was not a commercial enterprise (he had 50 “guests” per year that only paid the metering fee for the electricity they used at the RV sites). The Court noted that the term “non‑residential” was not defined in the town’s zoning ordinance and determined that to be a non‑residential use, the use need not be for a commercial purpose. Now, back to the “barn.” The Court found that Mr. Townsend’s ad‑ mitted use of the barn as a temporary residence was sufficient evidence of a past violation. The Court went on to examine all the amenities in the barn and concluded that there was a sufficient “danger” that it could be used as a residence in the future. At some point, a barn equipped such as Mr. Townsend’s ceases to be a barn. Thus, injunctive relief was appropriate. Lastly, the Court addressed attorney’s fees. The trial court awarded $15,450 in attorney’s fees to the town, because the cause of action arose under RSA 676:17, which contains a fee‑shifting provision. The Town filed an affidavit from the town’s counsel in the matter in support of its request for fees. Counsel for the Town averred that approximately 50 percent of his time spent on the case was devoted to the two claims that it prevailed upon in summary judgment (after prevailing, the town non‑suited the remaining claims). The trial court awarded the 50 percent figure averred by the town’s counsel. Mr. Townsend argued that the trial court erred by relying on the town’s attorney’s “wild guess” about the proration of his fee. He argued that there was no factual basis for the attorney’s “50 percent” estimate. The Supreme Court affirmed that ruling, noting that the trial court had presided over the case for a while, was very familiar with the attorneys and issues, and concluded that the fee was ultimately reasonable. State v. White, decided Dec. 7, 2012, is a case involving a relatively new section of New Hampshire’s sex‑offender registration laws. Under RSA 651‑B:4(a), whenever a registered sex offender creates or changes an “online identifier,” he or she must report such to the state police. Mr. White created a MySpace account without telling anyone and was indicted for failing to report it. Prior to his trial, Mr. White moved to dismiss the indictment. He argued that he was not required to report his MySpace account because he used his real name and an email address that he had already reported as the identifiers when setting up the account. It was a good argument. Good enough to convince the trial judge, but not good enough to convince the Supreme Court. The Court quickly dismantled the defendant’s (and the trial court’s) analysis of RSA 651‑B:4(a). Under this law, an offender is required to report any new, and/or change to, any online identifier. Included in the definition of “online identifier” is the term “user profile information.” In this case, to set up his MySpace account, Mr. White was required to provide information to set up his MySpace user profile. The fact that the information that was used to create the profile was already reported was immaterial to the Court’s analysis. It was the fact that a new user profile was created that triggered the reporting requirement, not the substantive information contained in the profile. Carleton v. Balagur, et al, decided on Dec. 21, 2012, is a yo‑yo case. No, not the toy. It has been up and down from the Supreme 52 New Hampshire Bar Journal Winter 2013

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