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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 Charles Doe 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 ___________________________ Belknap No. 2006-011 THE STATE OF NEW HAMPSHIRE v. WALTER BEEDE Submitted: March 22, 2007 Opinion Issued: August 28, 2007 Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief), for the State. James T. Brooks, assistant appellate defender, of Concord, on the brief, for the defendant. HICKS, J. The defendant, Walter Beede, appeals his conviction of seven class A felony counts, one class B felony count and two misdemeanor counts of theft by unauthorized taking, see RSA 637:3, :11 (2007), after a jury trial in the Superior Court (Vaughan, J.). He argues: (1) the trial court improperly admitted various bank records under the business records exception to the hearsay rule, N.H. R. Ev. 803(6); and (2) the trial court erred in sentencing him to a probation term exceeding that permitted by statute for his misdemeanor convictions, see RSA 651:2, V(a) (2007). We affirm.

I.

Background

The jury could have found the following. In 1994, Jay Howland Enterprises (JHE), which was under the sole ownership of Jay Howland (Howland), invested in land in New Hampshire for purposes of developing and selling it. JHE contracted with the defendant to manage the development, marketing and sale of properties purchased in Laconia. Howland subsequently created Jay Howland Realty (JHR) under JHE, through which the developed lots were sold. The defendant worked primarily out of the local office JHE maintained in Gilford. The contract between JHE and the defendant provided that: "All sums and payments relating to sales of portions of the Parcels shall be paid to Owner [Howland]." Initially, the defendant deposited payments to JHE into the company's Citizens Bank account in New Hampshire, but later Howland required that all payments be sent to the corporate office in Massachusetts. Howland alone had authority to open bank accounts for JHE and JHR, but the defendant had authority to access the two business accounts to pay his own salary, to reimburse himself for the costs of running the office and to pay contractors and others hired in developing the properties. On April 1, 1997, an account was opened under the name "Walter F[.] Beede [d/b/a] Jay Howland Realty" at Gilford Village Bank & Trust (GVB), which was subsequently purchased by Laconia Savings Bank (LSB). Howland was unaware of the existence of this account, although checks made payable to JHE were deposited into the account. Two checks bearing the defendant's signature were also written from the account for purposes totally unrelated to the business of JHE, including one to the defendant's former girlfriend and another to a building supply company. The account was closed in September 1999. Upon dissolution of the business relationship between the defendant and Howland in 1999, Howland's bookkeeper, Mary Adams, realized that neither Howland nor either of his companies had received payment for Lot 209, which was sold to David Ames for $31,325.50, or for a boatslip that was sold to Steven LeBoeuf for $25,801.74. Howland contacted an attorney who subsequently contacted the Belknap County Sheriff's Department to investigate. A detective with the sheriff's department discovered that the Ames and LeBoeuf payments along with nine other checks written to JHE had been deposited into the GVB account. Howland received none of the money deposited into the GVB account. At trial, the State called Shaun Sanborn (Sanborn), vice president of security at LSB, as a witness. Through Sanborn, the State introduced several records created at GVB and subsequently transferred to LSB. That evidence included: a business account agreement and a sole proprietorship resolution form; two checks drawn from the account; seven checks and two money orders deposited into the account; and nine pages of monthly account statements. LSB acquired GVB in October 2005. While LSB held GVB's records, Sanborn never worked for GVB and lacked knowledge of their practices. The defendant objected 2

to the introduction of each bank record as hearsay. The court, however, admitted the records under the business records exception to the hearsay rule over the defendant's objection that the exception did not apply because Sanborn was not qualified to testify under New Hampshire Rule of Evidence 803(6). On appeal, the defendant argues that the trial judge erred in admitting the aforementioned documents under Rule 803(6) because the records themselves as well as information contained within them each constituted hearsay, resulting in inadmissible double hearsay. He contends that the records' admission prejudiced his case because the prosecutor relied upon them heavily in his closing argument. We review the trial court's decisions on the admissibility of evidence under an unsustainable exercise of discretion standard. State v. Ainsworth, 151 N.H. 691, 694 (2005). Therefore, the defendant must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of his case. Id. II. Business Account Agreement, Sole Proprietorship Resolution Form, Checks and Money Orders The trial court's application of the business records exception to the seven checks and two money orders deposited into the account and the two checks written from the account was unnecessary because these documents, as well as the signatures contained therein, are not hearsay. "`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). However, as one court has explained in the context of the identical federal rule of evidence, "out-of-court statements that are offered as evidence of legally operative verbal conduct are not hearsay. They are considered `verbal acts.' Checks fall squarely in this category of legally

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