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Docket Number

No. 79-036

Attorney(S)

Thomas D. Rath, attorney general (David L. Harrigan, attorney, orally), for the State. Geiger Geiger, of Penacook (Glenn G. Geiger, Jr., orally), for the defendant.

Judges

GRIMES, J.

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Smart Summary

Case Summary: The State of New Hampshire v. Daniel M. MacLeod, No. 79-036 (Dec. 20, 1979)

Factual and Procedural Background

The defendant, Daniel M. MacLeod, was indicted for theft of a 1976 Honda "750" motorcycle belonging to Richard Stimson in violation of RSA 637:3. The case was tried before the court without a jury. After the State presented its evidence, the defendant called Stillman Titus to the stand; Titus claimed the privilege against self-incrimination and refused to testify. At that point the defendant moved for a continuance to obtain the testimony of Marc Levesque and later moved for a directed verdict at the close of the State's case. The trial court denied the continuance and refused to grant a directed verdict; the defendant excepted. The Supreme Court of New Hampshire considered (1) whether denial of the directed verdict was erroneous given the evidence, and (2) whether denial of the continuance to obtain a witness was an abuse of discretion.

Legal Issues Presented

Whether the evidence was sufficient to support the trial court's denial of the defendant's motion for a directed verdict (i.e., whether the State's evidence, construed favorably to the State, supported a finding of guilt for theft under RSA 637:3).
Whether the trial court abused its discretion in denying the defendant's motion for a continuance to obtain the testimony of a witness (Marc Levesque) after another witness (Stillman Titus) claimed the privilege against self-incrimination.

Arguments of the Parties

Defendant's Arguments

The defendant argued that he was entitled to a continuance to obtain Marc Levesque's testimony because he had relied on Stillman Titus as a witness and was surprised when Titus claimed the privilege against self-incrimination upon being called at trial; Titus was under indictment for the same crime, the defendant claimed, and thus would likely refuse to testify.
The defendant contended that, because Titus' testimony would have duplicated Levesque's, his failure to secure Levesque earlier was excusable and a continuance was warranted.
Implicitly, by moving for a directed verdict at the close of the State's case, the defendant argued the State's evidence was insufficient as a matter of law to support a conviction.

State's Position

The opinion presents the State's factual case: evidence that the defendant and companions walked directly to the hidden stolen motorcycle, the defendant put on gloves, metal noises were heard near the bike, the ignition switch and seat lock had been broken, and the defendant and others were found hiding nearby and taken into custody. The opinion does not set out a distinct, separately articulated legal argument by the State beyond reliance on that evidence to support conviction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Scione, 118 N.H. 922, 395 A.2d 1252 (1978)	Standard of review: evidence construed most favorably to the State when assessing sufficiency.	The court invoked Scione when construing the State's evidence in the light most favorable to the State to determine whether facts supporting a conviction could be found.
State v. Floyd, 116 N.H. 632, 365 A.2d 738 (1976)	Support for finding that the evidence was sufficient to establish guilt.	The court cited Floyd in holding that the evidence in this case supported a finding of guilt for theft.
State v. Dupuy, 118 N.H. 848, 395 A.2d 851 (1978)	Support for the sufficiency of evidence to sustain conviction.	The court cited Dupuy alongside other cases to reinforce that the evidence was sufficient and that denial of the directed verdict was correct.
State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976)	Support for the sufficiency of evidence to sustain conviction.	The court cited Breest as further authority supporting the conclusion that the evidence justified a finding of guilt.
State v. Linsky, 117 N.H. 866, 379 A.2d 813 (1977)	Standards governing a trial court's discretion in ruling on motions for continuance.	The court cited Linsky in concluding that, given the record, the trial court did not abuse its discretion in denying the continuance.

Court's Reasoning and Analysis

The court first reviewed the State's evidence under the applicable standard that construes evidence most favorably to the State. The court summarized findings it concluded the evidence would support: the motorcycle was stolen and later found in a dump; the defendant and companions drove by and walked directly to the hidden bike; the defendant put on white gloves before touching the motorcycle; metal noises were heard at the bike; the ignition switch and seat lock were broken; a slide hammer was found nearby; the defendant and two others were found hiding in brush and taken into custody; after arrest the defendant gave a false name and refused to sign his fingerprint card.

The court applied the statutory definition of theft under RSA 637:3 I — obtaining or exercising unauthorized control over the property of another with a purpose to deprive him thereof — and connected specific facts to elements of the offense: the direct approach to the hidden bike signaled knowledge of and purpose toward the bike; putting on gloves indicated intent to engage in activity while avoiding leaving fingerprints or protecting hands; metal noises and the bike's damaged locks supported a finding that the defendants were attempting to release the locking devices with the intent to deprive the owner permanently. On this basis, and citing precedent, the court held the evidence supported a finding of guilt and that denial of a directed verdict was proper.

Regarding the continuance, the court considered the timing and record as they existed when the trial court ruled. The defendant claimed surprise that Titus would invoke the privilege against self-incrimination because Titus was under indictment and thus unavailable, and that this justified a continuance to secure Levesque's testimony. The trial court found, supported by the record, that the defendant had ample opportunity prior to trial to learn of Titus' indictment and to secure necessary witnesses. The court further noted that the defendant never made an offer of proof as to what Levesque's testimony would be or how it would aid the defense. The Supreme Court concluded that, under these circumstances and applying the relevant precedent, the trial court did not abuse its discretion in denying the continuance.

Holding and Implications

Holding: The court affirmed the trial court's rulings: the denial of the defendant's motion for a directed verdict was proper because the State's evidence, construed favorably to the State, supported a finding of guilt; and the trial court did not abuse its discretion in denying a continuance to obtain a witness. The opinion concludes with the statement: "Exceptions overruled."

Implications: The direct effect is that the defendant's conviction was upheld and the trial court's procedural rulings were sustained. The opinion does not announce any new legal rule beyond applying existing standards for reviewing evidentiary sufficiency and for assessing a trial court's discretion on continuances; it relies on existing state precedents.

Decision date: December 20, 1979. Opinion by Grimes, J. All concurred.

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THE STATE OF NEW HAMPSHIRE v. DANIEL M. MacLEOD

1. Theft — Evidence Evidence that defendant and his companion walked directly to hidden motorcycle that had been stolen from owner, that defendant put on gloves before touching motorcycle, and that ignition switch and seat lock of motorcycle had been broken was sufficient to support a finding of guilt and there was no error in denial of defendant's motion for directed verdict.

2. Trial — Continuances — Obtaining Witnesses Trial court did not abuse its discretion in denying defendant's motion for continuance to obtain new witness where defendant had ample opportunity to learn of indictment for same crime against witness who claimed privilege against self-incrimination and where defendant at no time made any offer of proof as to what new witness' testimony would be or how it would aid him.

GRIMES, J.

The issues in this theft case are whether the trial court erred in denying defendant's motion for a "directed verdict" made at the close of the State's evidence, and whether the court abused its discretion in not granting defendant a continuance to obtain a witness. We uphold the trial court.

Defendant was indicted for theft of a motorcycle belonging to Richard Stimson. RSA 637:3. He was tried before the court without a jury and found guilty.

At the close of the State's case, defendant called to the witness stand one Stillman Titus, who claimed the privilege against self-incrimination and refused to testify. Defendant then moved for a continuance to allow him to obtain the testimony of one Marc Levesque, who was then thought to be in federal prison in Lewisburg, Pennsylvania. Defendant claimed ignorance until the day of trial of the fact that Titus was under indictment for the same crime and thus would be likely to claim his privilege against self-incrimination. The court denied the continuance and defendant excepted. The court also refused over objection and exception to grant a directed verdict at defendant's request. Defendant's exceptions were transferred by Cann, J.

On the question of the sufficiency of the evidence to support the trial court's denial of defendant's motion for a directed verdict, the evidence construed most favorably to the State, State v. Scione, 118 N.H. 922, 395 A.2d 1252 (1978), would support the following findings of fact.

Richard Stimson, who lived with his parents in North Stratford, New Hampshire, was the owner of a 1976 Honda "750" motorcycle which he had purchased in April 1977 for $2,300. On the evening of September 15, 1978, he left it parked in the front yard of his home in an undamaged condition. When his father, Burt Stimson, arose the next morning, he noticed that the bike was missing. The police were notified and Richard and his father set out in search of the missing motorcycle. They found and followed tire tracks to an old dump, where they found the bike lying in the bushes. They left it where it was and reported their find to the police. At the suggestion of a State police trooper, Richard left the bike where it was and went to a nearby hill to "stake out" the area so that the thieves could be apprehended should they return for the bike. The trooper left to get some equipment and was to return to put ultraviolet powder on the bike so that anyone who handled it could be detected.

Richard had been observing from the hill for about a half hour, when he noticed a brown truck with sideboards drive past the motorcycle and then out of sight. Immediately thereafter, two men approached the motorcycle from the direction of the truck. The men walked to where the bike was and one of them, the defendant, put on a pair of white gloves. The brown truck reappeared and then was parked just below Richard's lookout position. He could hear "metal noises" coming from the vicinity of the bike. He left and ran to his uncle's house, which was nearby. After Richard called his father, he, his uncle, and his father returned to the scene armed with a rifle and shotgun. They parked their vehicle so as to block the brown truck and ordered the driver, Stillman Titus, out of the truck. Richard started toward the bike and heard two men running through the woods. He followed and found defendant and Marc Levesque hiding in the brush. The police later arrived and took the suspects into custody. After arrest, defendant gave a false name and refused to sign his fingerprint card.

An examination of the motorcycle revealed that it had been moved and that the ignition switch and seat lock had been broken. A slide hammer, so-called, was found in an unrusted condition in the same area. This tool is used to hook onto something with one end and hammer outward by means of a heavy sliding cylinder which pounds against a rim on the opposite end. Such a device is commonly used by auto thieves to break the locking devices on steering columns. An imprint of a shoe was found in the earth near the bike, but it did not match the shoes worn by the defendant.

A person is guilty of theft under RSA 637:3 I if he "obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof." The fact that defendant and his companion walked directly to the hidden bike indicated that they knew it was there and that it was the object of their coming to the old dump. The fact that the defendant put on gloves indicated that he intended to engage in some kind of activity and desired to protect his hands or to prevent leaving fingerprints. The metal noises would support a finding that the bike was being worked on in some manner. Its condition thereafter is evidence that defendant and his companions were attempting to release the lock so that the bike could be driven away and that their intent was to deprive the owner of it for good. We hold that the evidence supported a finding of guilt, see State v. Floyd, 116 N.H. 632, 365 A.2d 738 (1976), and that there was no error in the denial of defendant's motion for a directed verdict. State v. Dupuy, 118 N.H. 848, 395 A.2d 851 (1978); State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976).

The motion for a continuance was made after defendant attempted to produce Titus, who then claimed the privilege against self-incrimination. Defendant argues that because the testimony of Titus would duplicate that of Levesque, he relied on Titus and made no effort before trial to obtain Levesque as a witness. He claims that he was surprised on the day of trial to find that Titus was under indictment and would not testify and that, therefore, he should be given the opportunity to obtain the testimony of Levesque.

It was learned after trial that Levesque was in Concord, New Hampshire, and not in Lewisburg, Pennsylvania. Nevertheless, in reviewing the court's ruling, we must consider the facts as they were presented to the court at the time of the ruling. The court's finding that defendant had ample opportunity to learn of the indictment against Titus and to have the necessary witnesses present is supported by the record. Moreover, we note that at no time did defendant make an offer of proof as to what Levesque's testimony would be or how it would aid him. Under the circumstances, we cannot say that the court abused its discretion. State v. Linsky, 117 N.H. 866, 379 A.2d 813 (1977).

Exceptions overruled.

All concurred.

STATE v. MacLEOD