GILMANTON — The Police Department prosecutor here has asked Judge Jim Carroll of the 4th Circuit Court, Laconia Division to reconsider his ruling to dismiss a charge of attempted theft against a former town firefighter.
The motion says that Carroll's decision to dismiss the charge against Bryon McSharry was in response to an oral motion made by his attorney that the prosecution responded to in writing.
"The issue before the court, as the state understood it, was whether the McSharry could legally be charged with attempted theft, not whether there was sufficient evidence to prove attempt," wrote Prosecutor Dave Estes.
The state argues that it was prepared to go to trail and can prove that McSharry was, at the time of the alleged attempted theft, a call firefighter with Gilmanton, but that he had not been at the fire department for a number of months.
On October 18, 2013 at 4 a.m., said the prosecution, McSharry was seen at the Gilmanton Fire Station by a "credible witness" who said he removed a gas key from the Gilmanton Fire Department's forestry vehicle, drove his personal vehicle to the gas pumps, and then returned the key to the original location.
When confronted, police argue that McSharry didn't provide a credible explanation.
Estes said the state should have an opportunity to present its evidence to Carroll at a bench trial so he assess the totality of the circumstances and credibility of the witnesses.
On February 19, Carroll ruled that the Court was not persuaded with the additional review of the state's pleadings and the particulars of this case "fail to satisfy the statute's required purposeful substantial step toward the commission of a crime."