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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 94-774
THE STATE OF NEW HAMPSHIRE
v.
ZETA CHI FRATERNITY
May 22, 1997
Jeffrey R. Howard, attorney general (John C. Kissinger, Jr., assistant attorney general, on the brief and orally), for the State.
Nadeau Professional Offices, of Portsmouth (James P. Nadeau on the brief), and Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant.
HORTON, J. The defendant, Zeta Chi Fraternity, appeals its convictions and sentence on the charges of selling alcohol to a person under the age of twenty-one, RSA 179:5 (1994) (amended 1996), and prostitution, RSA 645:2, I(e) (1996). The defendant argues that the evidence was not sufficient to support the convictions. The defendant also asserts that the Superior Court (Mohl, J.) erred in admitting into evidence the minutes of the defendant's meetings. Finally, the defendant challenges the constitutionality of its sentence for illegal sale of alcohol. We affirm the defendant's convictions but vacate and remand for resentencing.
On February 21, 1994, the defendant, a New Hampshire corporation and fraternity at the University of New Hampshire in Durham, held a "rush" at its fraternity house to attract new members. In order to encourage people to attend the rush, the defendant hired two female strippers to perform at the event. Fraternity brothers encouraged guests to give the strippers dollar bills so that they would continue to perform. The brothers also told guests that the more money the strippers were given, the more that they would do. One of the members of the fraternity was providing change for larger bills. As part of the performance, the dancers lay on a mattress brought out by members of the fraternity and simulated oral sex on each other. At one point, a guest gave five dollars to one of the strippers who sat on the guest's lap. When a brother moved the dancer along, the guest complained that he had given five dollars. The stripper took the guest to the mattress and pushed his head into her crotch. Two witnesses testified at trial that they saw guests being led to the mattress after they gave money, at which point the guests then performed oral sex on the dancer.
In addition, Andrew Strachan, a nineteen-year-old guest at the fraternity party, testified that at some point during the evening he learned that beer was available from a soda machine. He made his way to an apartment in another part of the fraternity house where the machine was located, waited in line with three or four other people, and purchased three to five cans of beer. Strachan also testified that he noticed someone making change for the machine. The fraternity's secretary testified that the fraternity members voted not to provide alcohol at the rush and that they moved the vending machine that contained beer to a separate apartment in another part of the fraternity house for the rush. He also testified, however, that the fraternity had control over the vending machine and its proceeds and that only fraternity members would have an interest in making change for the machine.
I. Sufficiency of Evidence
A. Illegal Sale of Alcohol
The defendant first argues the evidence was insufficient to convict it of selling alcohol to a person under the age of twenty-one. Specifically, the defendant contends that the testimony of the State's sole witness that he bought beer from the vending machine was uncorroborated; that even if the jury could find that beer was purchased from the machine, the State failed to prove that the defendant was responsible for the sale; and that the State failed to prove that the defendant acted recklessly. "When a defendant challenges the legal sufficiency of the evidence, we ask whether any rational trier of fact, viewing the evidence and reasonable inferences therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. Fitanides, 139 N.H. 425, 428, 655 A.2d 411, 413-14 (1995).
By arguing that Strachan's testimony that he purchased beer from a vending machine at the fraternity house is uncorroborated, the defendant is essentially asking this court to weigh the credibility of the witness. See State v. Champagne, 125 N.H. 648, 651-52, 484 A.2d 1161, 1163 (1984). "[T]he weight and credence to be given to the evidence at trial is the very essence of a jury's function." State v. Sands, 123 N.H. 570, 590, 467 A.2d 202, 214 (1983). When a defendant challenges the uncorroborated testimony of the State's witnesses, the decision to accept or reject the witnesses' testimony is "a matter which must be left to the trier of fact." Champagne, 125 N.H. at 652, 484 A.2d at 1163.
The defendant next argues that the State failed to prove that the defendant caused alcohol to be sold to Strachan. See RSA 179:5. The defendant asserts that because the fraternity voted not to provide beer at the rush and the soda machine was moved from the main area in the fraternity house to a separate apartment at the back of the house, the defendant did not have control over the machine, and, therefore, could not have caused the sale of alcohol from the machine. Essentially, the defendant is arguing that the individuals responsible for making the beer available for sale to Strachan were not acting on behalf of the corporation or within the scope of their authority. We begin by noting that the only defendant in this case is a corporate entity. "A corporation is a jural person, but not a person in fact. It is an artificial creature, acting only through agents . . . ." State v. Luv Pharmacy, Inc., 118 N.H. 398, 404, 388 A.2d 190, 194 (1978). A corporation may be held criminally liable for criminal acts performed on its behalf by agents or employees acting within the scope of their authority or employment. See State v. Pinardville Athletic Club, 134 N.H. 462, 465, 594 A.2d 1284, 1286 (1991). The criminal conduct need not have been "performed, authorized, ratified, adopted or tolerated by the corporation['s] directors, officers or other `high managerial agents'" in order to be chargeable to the corporation. See Com. v. L.A.L. Corp., 511 N.E.2d 599, 601 (Mass. 1987) (quotation omitted).
In fact, a corporation can be convicted for actions of its agents even if it expressly instructed the agents not to engage in the criminal conduct. See State v. Hy Vee Food Stores, Inc., 533 N.W.2d 147, 150 (S.D. 1995). The agents, however, must have been acting within the scope of their actual or apparent authority. See United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004-07 (9th Cir. 1972), cert. denied, 409 U.S. 1125 (1973); see also 19 C.J.S. Corporations