New Hampshire v. Merritt

738 A.2d 343 (1999)

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Nature of the Case

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Facts

D and his girlfriend, Kelly Higgins, had been living together for eighteen months. Higgins did not have any source of income. On December 18, 1995, they went shopping, and Higgins made numerous, expensive purchases with credit cards belonging to Frances Driscoll and Marjorie Dannis. At 2:00 p.m. that afternoon, Driscoll noticed that her purse, which contained her Jordan Marsh and Visa credit cards, was missing. At 2:30 p.m., Higgins used Driscoll's Jordan Marsh card to buy jewelry at the store in the Fox Run Mall. A sales clerk gave a written statement to the police that 'on 12/18, in the fine jewelry department in Jordan Marsh, [Higgins] was accompanied by D and made a purchase using a credit card' belonging to Driscoll. There was no other evidence concerning the jewelry purchase. Around 3:17 p.m. D tried on clothes at American Eagle Outfitters in the mall, Higgins purchased men's pants and shirts with Driscoll's Visa card. D 'was standing right next to [Higgins]' while the sale was taking place and D basically 'did all the talking.' Still, later, D and Higgins looked at a men's gold bracelet, and after twenty-five minutes of haggling by D, they got a lower price. Higgins bought the bracelet one of the stolen cards. They did the same at another jewelry store. The sales clerk testified that she interacted principally with D and that he was interested in negotiating a lower price. At 3:52 p.m., Higgins bought the bracelet with Driscoll's Visa card. D and Higgins went to the next jewelry store. The owner heard D tell Higgins he wanted to buy her the ring but that he would need to use her credit card. At 4:53 p.m., Higgins again used Driscoll's Visa card and purchased the ring. Around 5:30 p.m., a short distance from the last jewelry store, a man stole Marjorie Dannis' purse from her car. Her purse contained her Visa and Mastercard, which only she was authorized to use. At 7:30 p.m., a male matching D's description tried on a pair of men's work boots at J.C. Penney and the woman with him purchased them with Dannis' Mastercard. At 7:44 p.m., D and Higgins purchased a men's diamond ring from the store's jewelry department, with Higgins using Dannis' Mastercard. The sales clerk spoke mainly with D. The clerk gave D a diamond certificate. At trial, the clerk explained that the individual named in the certificate was entitled to free diamond cleanings and to trade the diamond for one of greater value in the future. When Dannis' purse was recovered, it contained a torn diamond certificate and part of a receipt. D was indicted on four charges of fraudulent use of credit cards acting in concert with Higgins. The trial court instructed the jury that 'acting in concert' meant accomplice liability. D was found guilty on all four counts. D appealed.