July, 2025 (10th Circuit - Hampton District Division).

Order on Memo of Law

We are extremely pleased that after months of litigation and effort, our client's case was dismissed with prejudice. The arraignment of our client was televised on WMUR, and can be seen via the below link. To our knowledge, it has not received subsequent media coverage.

https://www.wmur.com/article/seabrook-new-hampshire-dpw-gift-card-case/62908331

There were several pertinent legal issues in this case including trial defenses that thankfully, never had to see a jury because the charges were dismissed before the trial commenced. Here, our client was charged with theft and credit card fraud. Several issues were raised by both sides before trial, but the Court based its decision on the statute of limitations and its core reasoning is posted below. The link to the full order is at the top of this post.

NH RSA 625:8 (III) states that the discovery rule applies to crimes of theft "where possession of the property was lawfully obtained and subsequently misappropriated."(emphasis added). The State's Memorandum made clear that it only seeks to amend the dates in the complaint, not the language of the charges. Here, the charges against the defendants for Theft by Deception include language such as "by creating a false impression... that the purchase at the Kittery Trading post using a Town of Seabrook credit card were for legitimate work purposes, a fact that [the defendants] did not believe" or "knew not to be true." (emphasis added). Further, the charges for Credit Card Fraud include language such as "used a credit card belonging to the Town of Seabrook, for the purpose of obtaining merchandise... to make what appeared to be work related purchases with the intent to then return said items for credit, was not authorized by the Town of Seabrook." (emphasis added).

Under the plain language of the charges, there is nothing to indicate that the defendants had lawfully obtained property and subsequently misappropriated it. Rather, the language states that the acts of purchasing items at the Kittery Trading Post with the Town of Seabrook's credit card were unlawful to begin with. Because the State did not charge the defendants with an initial lawful possession of property, the Court finds that N.H. RSA 625:8 (III) does not apply. Even if the Court were to grant the State's amendment to reflect accurate dates in the complaint, the one-year statute of limitations for misdemeanors would nevertheless bar the State from bringing these charges against the defendants.

One issue that was not fully litigated because trial did not occur, but is fascinating to me, was venue which is defined in RSA 602:1. It jumped out in this case because the alleged transactions occurred at Kittery Trading Post in Maine. Recently in State v. Fortune, 2024 N.H. 52, the NH Supreme Court overturned a sale of controlled drug resulting in death conviction (a charge which is covered in depth in the previous post involving acquittals in our case of State v. Francis Gilmore). In sum, the defendant in Fortune sold drugs to the victim in Belknap County, however, the drugs were consumed and the victim died in Sullivan County. The issue of venue focuses on the defendant's actions, and in that case his only actions that contributed to the death occurred in a different county than where he was charged.