2005 Winter, 54. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2005 Winter, 54.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Winter 2005Volume 45, Number 4Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreIs it a violation of the law for you to call your neighbors with a "good samaritan" call, warning them of an approaching tornado or a dangerous animal that has escaped from the nearby zoo? Clearly, you would not think so. But see RSA 44:4, I (a), which provides that a person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the communication originated or was received, if such person "(a) Makes a telephone call, whether or not conversation ensues, with a purpose to annoy or alarm another . . . ." (emphasis added). Now that wasn't exactly the situation before the Supreme Court in State v. Brobst, opinion issued September 9, 2004, but the State claimed that the statute was not overly broad and unconstitutionally vague, despite its apparent application to such good samaritan calls cited by the author. The case actually involved a defendant who was charged under the statute for telling the victim over the phone that "[Y]ou're a f - ing bitch and you're going to be a slut just like your mother." This was the sixth and final call that the defendant had made to the victim that particular evening and that was enough to get him before the superior court on the charge of telephone harassment in violation of this statute.

The defendant argued that the statute was unconstitutionally overbroad and vague. The trial court agreed, as did the Supreme Court, citing its possible application to the good samaritan type phone calls referenced by the author above. Finding support in other jurisdictions, the Court found "that the prohibition of all telephone calls placed with the intent to alarm encompasses too large an area of protected speech [citing to the good samaritan calls referenced above]. In each instance, the intent of the caller is to alarm the other person to prompt a desired course of action; however, even though the calls are made with the intent to alarm, they are, undoubtedly, legitimate communications."

In another interesting criminal law case, State v. Anthony, opinion issued November 30, 2004, the Court had before it whether someone could be convicted of "the crime of accomplice to negligent cruelty to animals." Indeed you can, said the Supreme Court affirming the lower court's jury trial conviction of the defendant of being an accomplice to negligent cruelty to animals under RSA 626:8. The defendant pointed out to the Court's earlier decision in State v. Etzweiler,(fn1) in which a plurality of the Court found that a person could not be an accomplice to negligent homicide under RSA 626:8. The Court, in that earlier case, reasoned that it could not "see how [the accomplice] could intentionally aid [the principal] in a crime that [the principal] was unaware that he was committing." In response, the legislature amended the statute by providing that "to establish accomplice liability under this section, it shall not be necessary that the accomplice act with a purpose to promote or facilitate the offense. An accomplice in conduct can be found criminally liable for causing a prohibited result, provided the result was a reasonably foreseeable consequence of the conduct and the accomplice acted purposely, knowingly, recklessly, or negligently with respect to that result, as required for the commission of the offense."

The Court read the 2001 amendment "as a legislative rejection of the interpretation of the statute as stated by the plurality in Etzweiler" and in a later case,(fn2) and reexamined its interpretation of the statute in this light. The Court held "[a]ccordingly, under our interpretation of RSA 626:8 as revised herein in light of the 2001 amendment, the crime of accomplice to negligent cruelty to animals exists under New Hampshire law."

A landlord and tenant case, RAL Automotive Group, Inc. v. Edwards,(fn3) opinion issued November 30, 2004, is a good reminder concerning the intricacies of the law governing the termination of a lease. The landowner appealed the denial by the trial court of an earlier requirement imposed by the court that the tenant post an irrevocable letter of credit to serve as a security deposit under the lease. The trial court based its latest decision on the fact that the circumstances had since changed because the landlord had elected "to evict the current tenant and, thus, put an end to his rent stream." Not so fast said the Supreme Court, pointing out that when a tenant surrenders a lease by relinquishing possession of the premises, and the landlord accepts such surrender, the...

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