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Mistrial in Gilford rape case

By GAIL OBER, LACONIA DAILY SUN

LACONIA — A Gilford man's rape trial ended in a mistrial Tuesday after the jury foreman told the Belknap County Superior Court judge that they could not come to a unanimous decision.

The jury had deliberated for nearly two days after closing arguments Monday morning as to whether or not Carroll Thompson, 45, of raped his girlfriend as she was trying to leave his home in January of 2016.

Back in court Wednesday, Judge James O'Neill reduced Thompson's bail conditions from $25,000 cash only to $10,000 personal recognizance bail. Other conditions of his bail remain the same and include no contact with the alleged victim, no unprescribed drugs or alcohol, no guns or weapons, and no leaving the state of New Hampshire.

Thompson also faces eight counts of breach of bail after Laconia Police alleged he called the alleged victim eight times from the Belknap County House of Corrections while he was awaiting trial.

The state, as represented by prosecutor Adam Wood, asked that Thompson's bail remain at $25,000 cash only because the case against him is not over and he is still charged with two counts of aggravated felonious sexual assault.

Wood cited his previous record, which includes a conviction for simple assault, and the eight alleged bail violations as reasons for continuing to hold him.

Thompson's public defender Eric Wolpin told the court that to continue to hold Thompson in jail after 11 of 12 jurors had decided to acquit him was "disheartening, disturbing and violates every principal of justice the community has."

Wolpin said that bail on the other charges were a different case and not the subject of that specific argument. Thompson has spent the past 10 months in jail while awaiting trial as he was unable to post the $25,000 cash needed to free himself.

Wolpin said the state's case was well-prepared and argued by the county's senior prosecutor, Carley Ahern, and 11 of 12 people still weren't convinced of his guilt.

"It's a shock to the conscious to continue to incarcerate him," Wolpin said.

The purpose of bail is to ensure there is no danger to the community and to make sure the person charged with a crime appears at trial. Bail cannot be used as punishment, according to state and federal law.

Wolpin said that Thompson's family was there to take him home, said he wasn't going anywhere and agrees to all of the other conditions, including no contact with the alleged victim.

Wolpin said that the eight calls made to her from jail were collect calls and she did not have to accept them.

"Saying she accepted the calls is the worst kind of victim blame," said Wood in rebuttal, maintaining his request for $25,000 cash-only bail "There was no acquittal. He still stands charged."

Wolpin replied that the woman is still an alleged victim and Thompson is still an innocent man.

The next decision to be made is whether the state will retry Thompson and, if so, on what charges. According to court rules, neither the defense nor the prosecution attorneys can reach out to any of the jurors who heard the case for 30 days. Jurors are under no obligation to speak to either side.

As of Wednesday at 6 p.m., Thompson remained in the Belknap County House of Corrections.

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Case dismissed - Judge ends lawsuit against county alleging negligent supervision of former deputy sheriff Blanchette

By ROGER AMSDEN, for THE LACONIA DAILY SUN

LACONIA — A lawsuit brought against Belknap County by a former inmate of the Belknap County House of Corrections who claimed that the county failed to properly supervise former Belknap County Deputy Sheriff Justin Blanchette, resulting in intentionally inflicted emotional distress, has been dismissed by a judge in Merrimack County Superior Court.
The plaintiff, referred to as Jane Doe to shield her identity, alleges that in 2013, Blanchette allowed her and her fiancée to have sex while he was transporting at least one of them to court as an inmate, if he could watch them do so. Doe had maintained that the county was negligent in its supervision of Blanchette.
During an Oct. 28 hearing in Merrimack County Superior Court, attorney Corey Belobrow of Concord, argued that the case should be thrown out as Doe failed to identify a policy, custom or procedure as the moving force for the acts alleged.
He maintained that the county can't be held liable for the alleged harm, since it did not act intentionally toward her, and Blanchette's purported conduct was not within the scope of his employment, so the county, as his employer, is not responsible.
Doe's lawyer, Richard Lehmann of Concord, had asked the judge to allow the complaint to be amended, as he was still working to ferret out the facts of the case. That motion was also denied.
In arguing for dismissal, Belobrow maintained that Belknap County is shielded by discretionary function immunity. The New Hampshire Supreme Court has held that when the particular conduct that caused injury is characterized by a high degree of official judgment or discretion in making policy decisions involving the consideration of competing economic, social and political factors, governmental entities should remain immune from liability.
In his ruling, Judge Richard B. McNamara cited a 1999 New Hampshire Supreme Court ruling in the Hacking versus the Town of Belmont case which said that certain "essential fundamental activities of government must remain free from tort liability so that our government can govern" and upheld the discretionary function immunity.

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Tilton ZBA to meet for first time in six months

By BEA LEWIS, For The Laconia Daily Sun

LACONIA — The new year will mark the first meeting of the town of Tilton's newly appointed Zoning Board of Adjustment, after resignation by the entire board in August.

The prior board resigned en masse in response to the selectmen's decision to file a lawsuit challenging their issuance of a variance. The former ZBA, chaired by Joseph Plessner, last met on Aug. 29 to approve the minutes of their two prior meetings and then tendered their resignations.

At issue is the board's unanimous June 21 vote allowing a motor vehicle repair and maintenance shop to open in a one-story warehouse at 496 Laconia Road in an area now zoned as the Mixed Use District.

The five-member board agreed that a hardship existed due to the type and location of the circa 1960 building that sits below the grade of the highway, making it difficult to see.

For many years zoning boards have played an important, but little noticed role in the development of communities. Sometimes praised, sometime criticized, their success or failure rests on the proper exercise of judgment by its members, and the job is not an easy one.

"The ZBA felt it did everything according to (state law). When the selectmen felt they didn't like what we were doing, we decided to leave," said Plessner who walked off the volunteer job, along with Vice Chairman Robert Brown and fellow members George Helwig, Marina Sumner and Kathy Yeo.

Plessner is no stranger to zoning issues, he served as the town's code enforcement officer for 13 years. He had served six years on the Zoning Board before resigning and noted that he and Brown, a long-time ZBA member, had collectively spent 40 years conducting the town's business, a record that he lamented was discounted by selectmen.

In a petition for appeal filed in Belknap County Superior Court on Sept. 6, attorney Paul Fitzgerald, who represents the selectmen, claims the Zoning Board members based their approval on the hardship of the property owner, not a hardship inherent in the land.

The dispute arose after Jeremy Perkins applied for a variance on property owned by Lenard Birke. He planned to landscape the site, improving its appearance, and explained that an added benefit would be that as a volunteer firefighter, he would be available to respond to calls during the day.

Sprucing up the vacant building would increase neighboring property values, and an auto repair and maintenance shop that would "offer fair and reasonable rates," would be a public benefit, he said.

After the needed approval was granted, selectmen asked for a rehearing, asserting that the ZBA based the bulk of its decision on the hardship issue, and did not consider any of the four other criteria that must be satisfied to warrant the granting of a variance.

During the Aug. 16 rehearing, the ZBA found that approving the variance would not alter the essential character of the neighborhood or threaten public safety or welfare. They further found that issuing a variance would not negatively affect surrounding property values. Other issues they discussed were whether denial would represent a loss to the applicant, which was not outweighed by a gain to the general public.

The board agreed there were limited viable opportunities for the building and that the proposed use was in keeping with the "small retail and services uses" in the Mixed Use District that the zoning ordinance provides for.

"It didn't seem right to deny the variance when right across the road there is the same use," Plessner said on Wednesday.

According to the minutes of the meeting, the ZBA additionally agreed that the ordinance "is unreasonable and arbitrary in its restriction of auto repairs in this location as it does not serve to promote any public purpose or benefit."

On Sept. 27, Fitzgerald filed a motion to stay the lawsuit, citing the resignation of the entire Zoning Board.

"As a result, there is no legally constituted Zoning Board of Adjustment in the Town of Tilton at the present time," he wrote.

Fitzgerald said selectmen believed they could fill the vacancies within 30 to 60 days and had already secured four volunteers willing to serve.

Judge James O'Neill granted the requested stay on Oct. 13, the same day selectmen appointed Christine Coletti, Dominic Canzano, and Mari Anne Princiotta to the ZBA. During their Nov. 3, meeting, selectmen met with James Engle, who also agreed to serve. The minutes of that meeting indicated that a fifth member needed to be sworn in and that once that took place the selectmen must "contact the court to choose a course of action for relief with the pending matter." The town's website lists Stephen Dembitzky as the fifth member of the ZBA.

Pat Consentino, who chairs the Tilton Board of Selectmen, confirmed the town now has a full ZBA, but declined further comment, citing the pending litigation.

In legal terms, a stay is a court order preventing further action until a future event occurs, or the order is lifted. The suit filed on behalf of the selectmen is asking a judge to find that the ZBA's decision was either unlawful or unreasonable, and overturn it. The ZBA which typically meets monthly except during December, has not convened since August. The new board is scheduled to hold its first meeting on Jan. 17 at 6 p.m.

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