State v. W.J.T. Enterprises, Inc.

618 A.2d 806, 136 N.H. 490, 1992 N.H. LEXIS 211
CourtSupreme Court of New Hampshire
DecidedDecember 18, 1992
DocketNo. 90-371
StatusPublished
Cited by13 cases

This text of 618 A.2d 806 (State v. W.J.T. Enterprises, Inc.) 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. W.J.T. Enterprises, Inc., 618 A.2d 806, 136 N.H. 490, 1992 N.H. LEXIS 211 (N.H. 1992).

Opinion

Batchelder, J.

The defendants, W.J.T. Enterprises, Inc. (the corporation) and William J. Thibeault, its president, were convicted after a jury trial in Superior Court (Dunn, J.) of operating a private solid waste transfer facility without a permit, in violation of RSA 149-M:10 (current version at RSA 149-M:10 (Supp. 1991)). On appeal, they argue that a city official’s testimony of his conversation with the owner of the site was inadmissible hearsay, that the court’s answer to a jury question invaded the province of the jury, and that the court did not have authority to sentence the defendants to clean up the site. We affirm.

In the spring of 1988, Ruth Veno, who had lived adjacent to a sand pit at 85 Sargent Road in Manchester for over twenty years, began noticing large trucks dumping construction debris into the pit. Dis[492]*492turbed by the noise and conscious of an increasing population of rats, she contacted her alderman, Valerie Cook, who visited the site in the spring of 1988, and apprised several city officials of the activity at the site. Beginning in August 1988, Alderman Cook returned to the site about once a month and repeatedly saw trucks stenciled with “W.J.T.” dumping large pieces of building demolition debris.

In response to the alderman’s contact, the city, and ultimately the State, communicated with the owner of the site and with the defendants, including a letter and conversation between Francis Thomas, Manchester deputy public works director, and Thomas McCarthy, the owner of the site. From late September to mid-November 1988, several city and State officials visited the site. They saw large piles of demolition material; machinery such as a large excavation backhoe and a screening device; piles of brick, concrete, wood timbers, and scrap metal; and the operation of vehicles of the corporation. On several occasions, the officials confronted Thibeault with the fact that there had been complaints about the dumping and that dumping without proper State and local permits is illegal. Thibeault offered a number of excuses, mostly that he had permission for the dumping from a variety of sources; he also told several officials that he would clean up the site.

On March 14,1989, the Manchester police, accompanied by a member of the State Attorney General’s office and a Manchester highway department official, went to 85 Sargent Road, where they observed the operation of the corporation’s equipment. The police ordered Thibeault and the corporation to cease operations at the site.

The corporation was indicted on two felony charges of operating a private solid waste transfer facility without a permit. One indictment charged the company with committing the offense from May 1988 through February 1989, the other for the offense on March 14,1989. Thibeault was charged with a misdemeanor in his individual capacity for the same offenses. Both defendants were convicted for the March 14,1989 offense and acquitted on the charges for the earlier period. This appeal followed.

The defendants first argue that the testimony of Francis Thomas, the deputy public works director, concerning his conversation with Thomas McCarthy, the owner of the site, who died prior to trial, was inadmissible hearsay. They assert in their brief that “[t]he clear implication of this testimony is that Mr. Thibeault was indeed contacted by Mr. McCarthy and was advised by Mr. McCarthy to stop using the land site and to clean it up because the Deputy Public Works Director for the City of Manchester had advised McCarthy that the appro[493]*493priate permits were a prerequisite to the operation of this kind of facility.” We disagree.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial. . ., offered in evidence to prove the truth of the matter asserted.” N.H. R. Ev. 801(c). Such a statement is not inadmissible hearsay, however, when it is offered to prove a fact other than its truth. See State v. Varagianis, 128 N.H. 226, 230, 512 A.2d 1117, 1120 (1986). Whether a statement is hearsay is an issue for the trial court, and the trial court’s ruling will not be disturbed on appeal unless it is clearly erroneous. State v. Sampson, 132 N.H. 343, 346, 565 A.2d 1040, 1042 (1989).

In its case-in-chief, the State called Thomas to testify. During his testimony on redirect, the State asked the following questions:

“Q. Mr. Thomas, you’ve stated that you had at least one conversation with Mr. Thomas McCarthy, the owner of the property, is that correct?
A. Yes.
Q. At the end of that conversation, what was your understanding with respect to what was going to happen at 85 Sargent Road?”

Over a contemporaneous objection by defense counsel, the trial court permitted Thomas to reply:

“[A.] Okay, after talking with Mr. McCarthy, I understood that he was going to contact Mr. Thibeault and have Mr. Thibeault clean up the site, to restore it to a condition that it was in prior to the dumping taking place.”

The State maintains that this testimony was not offered to prove the truth of the matter asserted, but rather to “establish why Francis Thomas took no further action in regard to the Sargent Road site.” During the State’s case, Thomas testified as to the actions he took concerning the demolition debris at Sargent Road after learning of its presence in 1988. He testified that he wrote to both the property owner and to the New Hampshire Department of Environmental Services, inspected the site himself, sent the chief inspector of the Manchester highway department to inspect it, and spoke to Thibeault concerning his activities at the site.

Looking at the testimony in this context, we agree with the trial court that it was elicited to offer an explanation to the jury of why Thomas, a city official who was aware that the site was in viola[494]*494tion of State law, took no further action after his conversation with the property owner. “Where an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply.” State v. Gooden, 133 N.H. 674, 678, 582 A.2d 607, 610 .(1990) (quotation omitted). We also note that although the defendants may have been entitled to a limiting instruction regarding the purpose for which the testimony was admitted, none was requested. See State v. Ellison, 135 N.H. 1, 7, 599 A.2d 477, 481 (1991).

The defendants next argue that the court’s answer to a jury question invaded the province of the jury and impermissibly amended the substance of the crimes charged. They maintain in their brief that “[tjhrough its answer to the jury’s question, the trial court, not the jury, determined the essential element of ‘knowingly.’”

“The scope and wording of jury instructions is generally within the sound discretion of the trial court.” State v. Wood, 132 N.H. 162, 164, 562 A.2d 1312, 1314 (1989).

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Bluebook (online)
618 A.2d 806, 136 N.H. 490, 1992 N.H. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wjt-enterprises-inc-nh-1992.