2004-615, STATE OF NH v. ELEANOR T. EMERY

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial
errors in order that corrections may be made before the opinion goes to press.
Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2004-615
THE STATE OF NEW HAMPSHIRE
v.
ELEANOR T. EMERY
Argued: September 14, 2005
Opinion Issued: November 30, 2005
Kelly A. Ayotte, attorney general (Robert S. Carey, assistant attorney
general, on the brief and orally), for the State.
Paul J. Garrity, of Londonderry, by brief and orally, for the defendant.
DUGGAN, J. The defendant, Eleanor T. Emery, appeals her conviction
after a jury trial in Superior Court (T. Nadeau, J.) on nine counts charging theft
by unauthorized taking or transfer, RSA 637:3 (1996), and one count charging
theft by deception, RSA 637:4 (1996). We affirm.
The jury could have found the following facts. In early 2001, John
Lancaster met and began dating the defendant. Sometime thereafter, the
defendant and her daughter moved into Lancaster’s home. In June 2001,
Lancaster hired the defendant to work as a laborer in his demolition business,
Lancaster Construction, which he had owned as a sole proprietorship since

2
1981. Shortly thereafter, the defendant began working in the office, assisting
the bookkeeper with the business’s finances. By September 2001, the
defendant had assumed responsibility for handling the business’s finances.
The business had two bank accounts: one for Lancaster Construction at
the Community Bank and Trust; the other for Lancaster Properties at Fleet
Bank. The defendant handled the bookkeeping for both accounts. She was
given authority to sign checks on the Lancaster Construction account but not
on the Lancaster Properties account. Lancaster rarely involved himself in the
handling of the finances for either account. The defendant and Lancaster also
opened a separate joint checking account at Community Bank and Trust.
On January 22, 2002, Lancaster signed a power of attorney, which had
been prepared by his lawyer, that gave the defendant authority to act on his
behalf in both personal and business-related matters. The next day, the
defendant called John Hancock Life Insurance, identified herself as “Mrs.
Lancaster,” and, using the power of attorney, arranged for a $55,000 loan
against the cash surrender value of Lancaster’s life insurance policy. Shortly
thereafter, the defendant called John Hancock Life Insurance again and
arranged for a second loan of $11,500. When she received the checks, she
endorsed them and deposited the $55,000 check in the Lancaster Construction
account and the $11,500 check in the joint account. Lancaster did not know
of or authorize the loans.
In July 2002, Lancaster Construction was converted from a sole
proprietorship to a corporation, with the defendant and Lancaster as the sole
shareholders. In preparation for the conversion, an accountant reviewed the
company’s finances. During that process, the defendant told him that the
$55,000 deposit to the Lancaster Construction account was her own money
that she had loaned to the business. Once the conversion was completed, the
Lancaster Construction account was closed and a new account was opened in
the new corporate name, Lancaster Construction and Demolition. The
defendant had authority to sign checks on this account.
In November 2002, the defendant again used the power of attorney, this
time to arrange for a $153,300 mortgage from MultiState Title Company on one
of Lancaster’s homes. After MultiState Title Company informed the defendant
that the lender, Investment One, would not accept a power of attorney to close
on the mortgage, the defendant told MultiState Title Company that Lancaster
would not be able to attend a closing, and offered to arrange for the documents
to be notarized locally. The defendant then used the power of attorney to have
her sister in Maine notarize the documents. The defendant signed Lancaster’s
name on the documents, which did not indicate that a power of attorney was

3
used. When the defendant received a check from MultiState Title Company in
the amount of $91,789.06, she endorsed it and deposited it into the joint
account. Lancaster was not aware of the mortgage or of the deposit into the
joint account.
In January 2002, the defendant began including overtime hours not
actually worked in the calculation of her weekly pay. Although Lancaster
signed all of her paychecks, he usually did not look at the checks that he
signed. Lancaster was not aware that the defendant was receiving overtime
pay and never authorized the overtime payments.
In April 2003, the defendant told Lancaster that she was going to
Virginia to see her sister. However, shortly before the defendant left,
Lancaster’s secretaries informed him that the defendant was not going to
Virginia, but was instead going to Key West with her boyfriend, Greg Wilson,
whom the defendant had been seeing behind Lancaster’s back. After the
defendant left for Key West, Lancaster went to the airport and found in her car
several boxes of documents. Among those documents were records for the
business, as well as some of Lancaster’s personal records, including
documents relating to the loan on his life insurance policy and the mortgage on
his home. Before the defendant returned from Key West, Lancaster changed
the locks on the office doors.
Throughout her entire employment, the defendant paid her personal
expenses with the money that she obtained from the loans and the mortgage,
as well as from funds in the Lancaster Construction, Lancaster Construction
and Demolition, and Lancaster Properties accounts. Specifically, she used
these funds to pay her credit card bills, as well as bills for a credit card she had
opened in Lancaster’s name. She sent money to her sister in Virginia that she
had obtained from the Lancaster Construction and Demolition account. She
also used Lancaster’s business and personal funds to purchase a snowmobile
trailer and four snowmobiles, one of which was purchased in Wilson’s name,
and to make cash payments to Wilson toward the purchase of a boat.
Lancaster was unaware of some of these transactions, and as for those of
which he was aware, the defendant told him that she had used her own funds;
Lancaster did not authorize the use of his business or personal funds.
On appeal, the defendant argues that: (1) a jury instruction was plain
error; (2) insufficient evidence supports her conviction; and (3) the trial court
erroneously denied her motion in limine to exclude evidence disclosed by the
State during the week preceding trial as well as her alternative motion to
continue.

4
I. Plain Error
The defendant argues that the trial court erroneously instructed the jury
that she could be convicted of stealing from her own joint account. The
defendant concedes, however, that this issue was not raised before the trial
court, and has therefore not been preserved for our review. State v. Blackmer,
149 N.H. 47, 48 (2003). Nevertheless, the defendant argues that we should
review the trial court’s jury instruction under the plain error rule. Sup. Ct. R.
16-A.
The plain error rule allows us to consider errors either not brought to the
attention of the trial court or not raised in the notice of appeal. Id. “[T]he rule
should be used sparingly, its use limited to those circumstances in which a
miscarriage of justice would otherwise result.” State v. MacInnes, 151 N.H.
732, 736-37 (2005). Thus, to fall within the plain error rule: “(1) there must be
an error; (2) the error must be plain; (3) the error must affect substantial
rights; and (4) the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings.” Id. at 737. We have looked to the United
States Supreme Court’s standards for the application of the federal plain error
rule to inform our application of the State rule. See id.
On appeal, the defendant argues that, although neither party raised the
issue before the trial court, the trial court should have instructed the jury that
the defendant could not be convicted of stealing from her own joint checking
account. In support of this assertion, the defendant relies upon the statutory
definition of “property of another,” which “includes property in which any
person other than the actor has an interest which the actor is not privileged to
infringe, regardless of the fact that the actor also has an interest in the
property.” RSA 637:2, IV (Supp. 2005). The defendant contends that each
holder of a joint account is “privileged to infringe” the interest of the other in
the account, and thus neither holder may be convicted of the unauthorized
taking of the property of the other from the joint account. The State contends
that the inclusion of the language “regardless of the fact that the actor also has
an interest in the property” serves to include jointly owned property within the
definition of “property of another,” citing legislative intent and the lack of
contrary precedent in the State.
Generally, when the law is not clear at the time of trial, and remains
unsettled at the time of appeal, a decision by the trial court cannot be plain
error. See, e.g., 28 Moore’s Federal Practice § 652.04[3], at 652-19 (3d ed.
2002); United States v. Gilberg, 75 F.3d 15, 18 (1st Cir. 1996) (court may
reverse for plain error only if the error “was or should have been ‘obvious’ in
the sense that the governing law was clearly settled to the contrary”). We have
never addressed whether a party to a joint checking account may or may not
be convicted of stealing from the other party to the account by making

5
unauthorized withdrawals from it. Thus, we cannot say that the trial court’s
failure to give an alternative instruction sua sponte on theft from joint checking
accounts was plain error. Cf. MacInnes, 151 N.H. at 737.
Furthermore, even if we assume that there was error, and that the error
was plain, the burden is on the defendant to prove that the error affected
substantial rights. 28 Moore’s Federal Practice, supra § 652.04[4], at 652-21;
see United States v. Olano, 507 U.S. 725, 734-35 (1993). Generally, to satisfy
this burden, the defendant must demonstrate that the error was prejudicial –
that it affected the outcome of the proceeding. 28 Moore’s Federal Practice,
supra; Olano, 507 U.S. at 735. The defendant asserts that almost every
transaction for which she stood trial involved the joint account, and thus the
whole trial was tainted by the allegedly erroneous jury instruction; as a result,
“[n]one of the charges for which [the jury] found Ms. Emery guilty can be relied
upon as not being affected.” However, she has failed to demonstrate how the
jury instruction affected the outcome of the trial. Eight of the ten counts on
which the defendant was convicted charged her with spending money that she
took out of accounts other than the joint account, and those convictions that
were connected to the joint account dealt with the defendant’s use of the more
than $100,000 that she had deposited into it after obtaining the funds
unlawfully. Thus, the defendant has not shown that the purported error
affected substantial rights. Therefore, we conclude that this jury instruction
does not fall within the plain error rule.
II. Sufficiency of the Evidence
The defendant argues that there was insufficient evidence that her use of
Lancaster’s funds was unauthorized. She argues that the funds she received
from Lancaster were gifts – “the costs [of] keeping an energetic young
companion,” which Lancaster “knew [of] and willingly paid.” She contends that
Lancaster “accepted and ratified” her spending practices, and only viewed those
practices as criminal after the relationship soured. However, the defendant
points to no testimony in the record to support her argument. “In an appeal
challenging the sufficiency of the evidence, the defendant carries the burden of
proving that no rational trier of fact, viewing the evidence in the light most
favorable to the State, could have found guilt beyond a reasonable doubt.”
State v. Gordon, 148 N.H. 710, 721 (2002) (quotation omitted).
The defendant apparently contends that we should infer ratification from
the fact that Lancaster entrusted her with full responsibility for the business
finances, and from the testimony that she purportedly put her own money into
the business and was purportedly responsible for keeping it afloat. First, the
fact that Lancaster gave the defendant the authority to handle the business
finances, even with great latitude, does not require a reasonable jury to find
that he gave the defendant the authority to do anything she chose with the

6
funds. Second, the defendant’s claims that she put her own money into the
business are irrelevant to whether Lancaster accepted or ratified her spending
practices. Our review of the record supports a finding beyond a reasonable
doubt that Lancaster did not know about, accept or ratify the spending
practices for which the defendant was convicted.
The defendant also argues that, because Lancaster initialed each of her
paychecks, the jury could not possibly have believed that he did so without
looking at and approving the amount. However, the defendant points to
nothing in the record, and we find nothing, that indicates that Lancaster
looked at each paycheck before he signed it. Thus the jury was free to find
credible the testimony that he did not regularly look at paychecks before
signing them.
There is ample testimony in the record that Lancaster was unaware of
the defendant’s spending practices until the relationship between the couple
ended, and that he did not authorize the acts for which the defendant was
convicted. We hold that the evidence, when considered in a light most
favorable to the State, was sufficient to support the jury’s finding that the
spending practices for which the defendant was convicted were unauthorized,
and not ratified by Lancaster.
III. Discovery Motions
We now turn to the defendant’s arguments that the trial court improperly
admitted into evidence several items of discovery, which were not turned over
to the defendant until a week, or less, before trial, and that the trial court
improperly denied her motion to continue the trial to allow her time to review
them.
During the week preceding the scheduled trial date, defendant’s trial
counsel received a number of discovery items. On May 10, 2004, one week
prior to trial, he received the criminal records of potential witnesses for the
State, including Lancaster. He also received a computer disk, which the State
asserts is a copy of all files found by the Kingston Police on the defendant’s
computer when she turned it over to them in April or May of 2003. The
defendant claims that the computer contained relevant records for the
demolition business when she turned it over to the police, but that the relevant
records were neither on the computer when the police returned it to her shortly
thereafter, nor on the computer disk furnished by the State. In addition, on
May 13, 2004, defendant’s trial counsel received an audiotape of a series of
conversations between the defendant and representatives of John Hancock
Insurance Company, as well as 132 pages of discovery, including witness
statements and other documents that trial counsel characterized as containing
“very crucial information that I believe is going to be used at trial.”

7
Decisions relating to pretrial discovery matters are generally within the
sound discretion of the trial court. State v. Smalley, 148 N.H. 66, 69 (2002);
see also State v. Dugas, 147 N.H. 62, 69 (2001) (exclusion of evidence for
failure to comply with Superior Court Rule 98 is within discretion of trial
court). Absent an unsustainable exercise of discretion, we will not reverse the
trial court’s decisions with respect to alleged discovery violations or the
admission of evidence. State v. Gamester, 149 N.H. 475, 478 (2003). “To show
that the trial court’s exercise of discretion is unsustainable, the defendant
must show that the decision was clearly unreasonable to the prejudice of [her]
case.” Id.
At a hearing held on the morning of trial, May 17, 2004, defendant’s trial
counsel asserted that the information provided by the State over the prior week
was prejudicial and denied his client the right to a fair trial. Neither during the
hearing in the trial court, nor in the defendant’s brief and oral argument to this
court, however, did the defendant explain how she was prejudiced by the late
disclosure of these items. The late production of Lancaster’s criminal record
was not prejudicial, as the trial court excluded evidence of his past crimes
under New Hampshire Rule of Evidence 609. The late production of the
computer disk was not prejudicial, as the State did not seek to introduce its
contents at trial, and the computer itself had been returned to the defendant
approximately one year earlier. The late production of the John Hancock
Insurance Company audiotape was not prejudicial, as a call log containing the
same substantive information was admitted into evidence by the State without
objection by the defendant, and the defendant does not point to any
information contained in the audiotape that did not also appear in the call log.
Finally, the State argues that the 132 pages of witness statements and other
documents were provided to defendant’s trial counsel as soon as they were
obtained by the State. See Super. Ct. R. 98(H) (2004). The defendant neither
identifies what exactly was included in the 132 pages of discovery, nor
demonstrates how she was prejudiced by the late production. Thus we cannot
find that the late production of those materials was prejudicial.
Absent any specific examples of prejudice from the defendant, we find
that she has failed to show that the trial court’s ruling was clearly
unreasonable to the prejudice of her case. See Yoder v. Middleton, 152 N.H.
363, 369 (2005). Thus, she has failed to demonstrate reversible error. See id.
Affirmed.
BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.