State v. Gabusi

821 A.2d 1064, 149 N.H. 327, 2003 N.H. LEXIS 47
CourtSupreme Court of New Hampshire
DecidedApril 18, 2003
DocketNo. 2000-675
StatusPublished
Cited by2 cases

This text of 821 A.2d 1064 (State v. Gabusi) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gabusi, 821 A.2d 1064, 149 N.H. 327, 2003 N.H. LEXIS 47 (N.H. 2003).

Opinions

Duggan, J.

The defendant, Lorraine G. Gabusi, appeals her conviction in the Superior Court (Smith, J.) for one count of theft by deception and two counts of theft by unauthorized taking or transfer. The defendant argues that the trial court erred in several hearsay rulings. We affirm.

The record supports the following facts. The defendant was the younger sister of Raymond and Ruth Laveron, elderly siblings who lived together in a remote home in Milan. For many years, Raymond had taken care of Ruth, who was deaf and legally blind. In June of 1997, however, Raymond learned that he had terminal liver cancer and would not live much longer. On July 16, 1997, the defendant arrived in New Hampshire to help Raymond with his affairs.

Prior to the defendant’s arrival, Raymond held over $200,000 in various bank accounts. He had executed a will in 1988 that placed all of his assets [329]*329in trust for the benefit of Ruth during her life, and left the remainder to the defendant. While dying of cancer, Raymond told three witnesses that he intended to care for Ruth for the rest of her life.

The first of these witnesses, Josee Bourbeau, was Ruth’s doctor. She testified that she understood Raymond wanted Ruth to be placed in the most comfortable setting possible, where she would be pampered and cared for, as opposed to a regular nursing home. When Dr. Bourbeau asked Raymond whether the defendant shared this goal, he responded, “It’s not a problem... I want her to be in good hands.”

The second witness, attorney Thomas Cote, discussed estate planning with Raymond. During their initial phone conversation, Raymond told Cote that caring for Ruth was his primary goal. Cote testified that “[Raymond] did not want State assistance for his sister. He made it very clear that he had the funds and those were going to be provided for his sister Ruth during her lifetime and that whatever was left would go to Lorraine.” At a subsequent meeting with Raymond and the defendant, Cote advised them both that the 1988 will would effectively carry out Raymond’s plans. The defendant, however, suggested that Raymond leave all of his money to her, stating that she would take care of Ruth’s needs. Cote recommended against this option because it was “a riskier way of handling his estate and also in carrying out his wishes after his death.” The meeting adjourned without a decision because Raymond became tired, and had to rest. Cote was never able to speak with Raymond again.

The third witness, social worker Jane Gilligan, spoke with Raymond while completing a precautionary application for State financial assistance for Ruth’s benefit. Raymond told Gilligan that he “wanted what was best for Ruth,” that he planned to provide for her in the future, and that he did not intend for her to rely upon State assistance. He also stated that Thomas Cote was “getting his affairs in order so that Ruth would be completely provided for upon his death.”

On about July 21,1997, the defendant contacted Tyler Harwell, another attorney. She told Harwell that both her brother and sister wished to execute new wills leaving their property entirely to her, without any provision for the care of Ruth. She also told Harwell that both siblings wished to execute durable powers of attorney that appointed her as the attorney in fact. Harwell arrived in Milan a few days later to meet with Raymond and Ruth, having already drafted Raymond’s will according to the defendant’s instructions. Harwell claims to have explained the documents to Raymond and Ruth, but never asked Raymond any questions about why he wished to change his testamentary plans. On July 24, Harwell returned with witnesses, and Raymond and Ruth signed the wills and powers of attorney.

[330]*330Almost immediately thereafter, the defendant began to transfer Raymond’s and Ruth’s assets into her own accounts. She transferred Raymond’s money, along with some $47,000 that Ruth had in a joint account (the Berlin City account) with her brother, into a joint account she established in her name and Raymond’s name. The defendant also moved Ruth into a private, assisted-living center on August 7th.

Raymond died on August 18, 1997. The defendant subsequently wrote herself checks totaling $290,000 from the joint account she had held with him. She continued to pay Ruth’s bills for medication and boarding expenses until November of 1997. At that Time, she wrote Ruth’s pharmacist that she would not pay for any more medication, and informed the assisted living center that she wanted to move Ruth out of the center and into a large nursing home that accepted Medicaid. Although the defendant still held thousands of dollars of Ruth’s money, the defendant filled out a Medicaid application in which she represented that Ruth had no funds of her own.

The defendant’s behavior aroused the suspicion of Gilligan, who helped Ruth obtain legal assistance. Ruth revoked the power of attorney in December of 1997, and contested the validity of Raymond’s new will. The probate court found the will was invalid because of undue influence.

In 1999, the State charged the defendant with one count of theft by deception, RSA 637:4 (1996), for taking Raymond’s money by creating a false impression that she intended to use the money for the benefit and care of Ruth, and two counts of theft by unauthorized taking, RSA 637:3 (1996), for depriving Ruth of her money by means of the power of attorney. At trial, the defendant maintained that she had no intent to steal from either sibling. She testified that she believed Raymond’s new will was valid and that he wished her to have all of his money free of any obligation to care for Ruth. The defendant also claimed to be unaware that the joint account between Raymond and Ruth held Ruth’s money. She claimed to have Raymond’s permission to execute the transactions from that account and from others owned by Raymond.

After a six-day trial, the jury returned a guilty verdict on all three counts. The court sentenced her to a term of five to ten years in prison, suspending one and one-half years of the minimum and four years of the maximum sentence.

On appeal, the defendant raises three evidentiary issues. First, she argues that the statements Raymond made to the three witnesses regarding his intention to care for Ruth were inadmissible hearsay. Second, she argues that the admission of these statements violated the Confrontation Clauses of the State and Federal Constitutions. Finally, she argues that the court erred in invoking the rule against hearsay to prevent [331]*331her from testifying about statements Raymond made to her regarding the ownership of the Berlin City account.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.H. R. Ev. 801(c). Hearsay is inadmissible unless it falls within a recognized exception. See N.H. R. Ev. 802. We will affirm a trial court’s decision to admit or exclude hearsay evidence absent an unsustainable exercise of discretion. State v. Gaffney, 147 N.H. 550, 556 (2002).

The defendant first argues that the testimony of Dr. Josee Bourbeau, Thomas Cote, and Jane Gilligan regarding Raymond’s intentions to care for his sister was inadmissible hearsay. The trial court admitted these statements under the “state of mind” hearsay exception, which encompasses:

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Related

State v. Warren
2025 N.H. 5 (Supreme Court of New Hampshire, 2025)
State v. Garcia
33 A.3d 1087 (Supreme Court of New Hampshire, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
821 A.2d 1064, 149 N.H. 327, 2003 N.H. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gabusi-nh-2003.