2004-283, STATE OF NH v. BRANDON YATES

trial court erred in allowing the State to play the tape of a 911 call at trial, and his convictions for FSA and endangering the welfare of a child, arguing that the acquitted him of the remaining charges. On appeal, the defen dant challenges charge, all four charges of prohibited sales and one charge of FSA, and 179:5 (2002). The jury found the defendant guilty of one endangerment see RSA 639:3 (Supp. 2004); and four counts of prohibited sales, see RSA RSA 632 - A:4 (Supp. 2004); two counts of endangering the welfare of a child, assault (FSA), see RSA 632 - A:3 (Supp. 2004); one count of sexual assault, see assault (AFSA), see RSA 632 - A:2 (Supp. 2004); two counts of felonious sexual in Superior Court (Hicks, J.) on two counts of aggravated felonious sex ual BRODERICK, C.J. The defendant, Brandon Yates, was tried before a jury

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general,

No. 2004 - 283 Hillsborough - sou thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

shaking, touching and a “sternal rub.” treated the vi ctim. The victim was initially unresponsive to loud voices, Joanna Rix, a registered nurse and a certified sexual assault nurse examiner, The victim was transported to St. Joseph’s Hospital. At the hospital,

direct them to the victim. remain on th e line with 911 while she met emergency response personnel to operator, Ms. M. handed the cell phone to her husband so that he could phone to call the victim’s mother and 911. After speaking briefly with the 911 and Ms. M. covered the victim with their coats. Ms. M. then used her cell was not responsive. The defendant was gone. It was very col d outside, so Mr. down by her ankles. Her shirt was off, her bra was up near her neck, and she from the fire. The victim was wearing pajama bottoms, which were pulled ground, approximately three feet awa y from a pile of burning embers remaining After several minutes of searching, they found the victim lying on the

accompanied them on their return to the woods. and returned home to get a flashlight. Amy’s stepfather, Joseph M., woods and called for the victim and the defendant. T hey heard no response, and to ask her to come home. When Ms. M. arrived, she and Amy went to the home and called her mother at work to tell her that the victim was in trouble victim. Amy was unable to find a working pay phone nearby, so she walked woods to call her mother, Laurie M. The defendant remained behind with the At approximately 5:00 p.m., a third member of the group, Amy, left the

spoke to her. on the gro und near the fire with her eyes closed, not responding when people the fire. Two of the victim’s friends then left, at which time the victim was lying the hill. Eventually, they abandoned their efforts and returned the victim to she could call her mother, but she kept falling and was unable to walk down Several members of the group tried to assist the victim to the scho ol so

talked nonsensically and had difficulty walking. fire. Thereafter, the victim began to appear impaired. She slurred her words, went further into the woods and up a small hill, where the defendant built a victim drank more of the vodka than anyone else. At some point, the group school, and the defendant produced a bottle of vodka from his backpack. The Memorial School in Hudson. The group gathered in the woods behind the friends met with the defendant, who was then eighteen years old, at the November p. 2 2, 2002, the fourteen - year - old victim and three of her juvenile A jury could have found the following facts. In mid - afternoon on

part, vacate in part, and remand for resentencing. in failing to dismiss the endangerment charge. We affirm in part, reverse in p. 3 3

namely, that the victim appeared to have been “sexually abused”; and (2) the the 911 call that she could not have offered as a witness testifying at trial, unfairly prejudicial to his case because: (1) Ms. M. offered an opinion during events underlying the charged offenses. He contends that the tape was tape; and (2) Ms. M.’s statements were not a contemporaneous account of the the same information about the victim’s physical condition contained on the probative value because: (1) several witne sses, including Ms. M., testified to New Hampshire Rule of Evidence 80 p. 3 3(2), he maintains that the tape lacked Ms. M.’s statements during the 911 call qualified as excited utterances under allowing the State to play the 911 tape for the jury. Although he concedes that 148 N.H. 115 (2002), the defendant first argues that the trial court erred in Relying upon New Hampshire Rule of Evidence 403 and State v. Jordan,

RSA 6 p. 3 39:3. arguin g that he did not owe the victim a “duty of care” within the meaning of unsuccessfully to dismiss both charges of endangering the welfare of a child, evidence as a full exhibit. At the close of the State’s case, the defendant moved its closing argument, and also denied the State’s request to admit the tape into instructions. The trial court denied the State’s request to play the tape during and after the State played the tape, the trial court gave the jury limiting allowed the State to play for the jury only Ms. M.’s conversation. Both before half of the tape, containing Mr. M.’s conversation w ith the 911 operator, and outweighed its probative value. The court ordered the State to edit the second based, in part, on his contention that the prejudicial effect of the tape Prior to trial, the def endant moved to exclude the tape of the 911 call,

thought she was an eight or nine. responded that on a scale of one to ten, with ten being the most impaired, he contact. When asked about the victim’s level of impairment, the defendant victim, the defendant eventually admitte d, both orally and in writing, to such with alcohol. Although he initially denied having any sexual contact with the behind the Memorial School with the group of teenagers, and to providing them When questioned b y the police, the defendant admitted to being in the woods At their request, he accompanied them to the Nashua Police Department. they wanted to speak with him concerning the events of the previous evening. Hudson Police Department arrived at the defendant’s house and told him that At approximately 12: p. 3 30 a.m. on November 3, two detectiv es from the

fresh injuries to the victim’s genital area. victim’s navel, between her buttocks and in her genital area. She also observed bits of dead leaves, moss, grass and other types of woodland debris in the performed a sexual assault examination using a rape kit. Ms. Rix observed About two hours later, while the victim was still unresponsive, Ms. Rix p. 4 4

Jordan, 1 p. 4 48 N.H. at 117 - 18 (quotation, citation and brackets omitted).

some improper basis, commonly one that is emotionally charged. undue tendency to induce a decision against the defendant on Rather, the prejudice re quired to predicate reversible error is an all evidence offered by the prosecution is meant to be prejudicial. from the tendency of the evidence to prove his guilt, in which sense Unfair prejudice is not, of course, mere detriment to a defendant something other than the established propositions in the case. human action that may cause a jury to base its decision on provoke its instinct to punish, or trigger other mainsprings of is to appeal to a jury’s sympathies, arouse its sense of horror, Evidence is unfairly prejudicial i f its primary purpose or effect

we explained in Jordan: unfair prejudice. N.H. R. Ev. p. 4 403; State v. Hall, 148 N.H. 671, 675 (2002). As be excluded if its probative value is substantially outweighed by the danger of than it would be without the evidence.” Howev er, evidence that is relevant may consequence to the determination of the action more probable or less probable “evidence having any tendency to make the existence of any fact that is of New Ham pshire Rule of Evidence 401 defines relevant evidence as

unreasonable to the prejudice of his case. Id. the defendant must show that the ruling was clearly untenable or (2002). To demonstrate that the trial court exercised unsustainable discretion, unsustainable exercise of discretion. State v. Jordan, 1 p. 4 48 N.H. 115, 117 admissibility of evidence, and we will not disturb its decision absent an We accord the trial court considerable deference in determining the

and (2) whether the defendant knew of her condition. endangerment charges: (1) whether the victi m was physically incapacitated; relevant to material elements of the two AFSA charges and the two assault and abandonment. The State maintains that the tape was therefore woods, demonstrated how the victim may have appeared at the time of the condition, conveyed just a short time after the defendant had left her in the the tape to be played because Ms. M.’s description of the victim’s physical The State, for its part, argues that the trial court did not err in allowing

its closing or its ruling that the State could not admit the tape as evidence. instructions to the jury, its ruling that the State could not play the tape during probative value, and was not sufficiently mitigated by the trial court’s limiting defendant, the prejudicial effect of the tape substantially outweighed its the defendant was guilty of assaulting the victim. Thus, according to the whether the “attacker” was still nearby, twice reinforcing the conclusion that 911 operator ref erred to the victim being “sexually abused,” and asked Ms. M. p. 5 5

testified about the victim’s appearance at the scene based upon observations against the defendant. Finally, Ms. M. and at least three other witnesses that any one of t he State’s witnesses in this case was reluctant to testify own observation of them. Additionally, unlike in Jordan, there is no evidence describe the assaults moments after they occurred, apparently based upon her an alleged assault that she did not witness, unlike Erica, who was able to operator, Ms. M. was only able to describe what she observed after the fact of period of time the assault occurred. Moreover, in speaking with the 911 and the victim in the woods. There is no evidence indicating when during that to 911 occurred approximately fifty - four minu tes after Amy left the defendant that the defendant’s wife was still unable to get up off the ground, Ms. M.’s call Unlike the 911 call in Jordan, which occurred so close in time to the assaults The circumstances of thi s case are readily distinguishable from Jordan.

any prejudicial effect on the defendant was sufficiently minimized. Id. because the trial court redacted various prejudicial statements from the tape, questi ons posed to her and following instructions.” Id. Finally, we noted that instead concluded that she was “fairly calm and lucid at times, answering defendant’s assertion that Erica was “hysterical” throughout the call, and substantially outweighed the probative value of the tape, we disagreed with the As to whether the danger of unfair prejud ice to the defendant

strengthened. Id. testify against the defendant, we noted that the probative value of the tape was because several of the State’s witnesses, including Erica, were hesitant to account of the events as they occurred as pos sible.” Id. at 118. Furthermore, involvement in the altercations because the tape was “as contemporaneous an court’s finding that the tape was highly probative of the defendant’s at 118 - 19. Specifically, we concluded that the record supported the trial record supported the trial court’s decision to admit the tape into evidence. Id. therefore an issue we did not consider on appeal – we determined that the played the tape during trial – an issue that the defendant did not contest, and While we expressed our concern at the number of times the pr osecution

argument. Id. the jury in its opening statement, during its case - in - chief and in its closing Id. (brackets omitted). At trial, the court permitted the State to play the tape to and further stated that her father “was punching this guy who was helping us.” “my father came home drunk . . . and he slammed my mother on the ground,” could not get up off the ground. Id. at 11 p. 6 6. Erica told the 911 operator that house and pushed his wife to the groun d, fracturing her arm, such that she her daughter, Erica, to call 911 after the defendant hit a man who was at the redacted 911 tape. Id. at 117 - 18. In that case, the defendant’s wife instructed In Jordan, we u pheld the trial court’s decision to admit into evidence a 6

tape into evidence as a full exhibit. We disagree. rulings that the State could not play the tape during its closing or move the case was minimized by the trial court’s limiting instructions to the jury, and its The State contends that any potential unfair prejudice to the defendant’s

unreasonable to the prejudice of his case.” Id. at 117. to allow the State to play the tape to the jury was “clearly untenable or defendant has met his burden of demonstrating that the tria l court’s decision danger of unfair prejudice was substantial. Accordingly, we conclude that the Thus, weighed against the minimal probative value of the tape, the

inadmissible. victim was “sexually abused.” Such opinion, as th e trial court recognized, was description of the victim as she appeared, but also with her opinion that the Here, however, the jury was presented not only with Ms. M.’s factual In Jordan, Erica recited to the 911 operator the facts she observed.

prejudicial. which were not present on the 911 tape in Jordan, are highly and unfairly sexually abused.” These criminal characterizations and opinions, the likes of am bulance attendant, repeats Ms. M.’s opinion that the victim “appears to be operator asks if “the attacker” is still there, and when speaking to the the woods and opines that she “appears to be sexually abused.” The 911 nature of the emergency, Ms. M. tells the 911 operator that a “little girl” is in discussion between Ms. M. and the 911 operator. Sp ecifically, when asked the the emotional nature of the call, however, but from the content of the The unfair prejudice inherent in the 911 tape in this case comes not from

the State suggests. unduly emotional as to inflame a jury, it is considerably more emotional than operator’s questions and instructions. Thus, while the tape may not be so her to “stay on the line,” as though attempting to keep her focused on the yelling and ou t of breath. On several occasions, the 911 operator has to tell distraught. Although she was not crying or screaming, she appears to be manner.” Having listened to the tape, we agree with the State that Ms. M. was the call and answers the 911 operator’s questions in a “calm and coherent that although she is “distraught,” she “is neither crying nor scr eaming” during M.’s conversation with the 911 operator is “not highly emotional,” and notes outweigh the minimal probative value of the tape. The State posits that Ms. discretion in finding that the danger of un fair prejudice did not substantially Furthermore, in this case, the trial court exercised unsustainable

was “highly probative.” Id. Thus, unlike Jordan, the record in this case does not indicate that the 911 tape they made either at the same time, or only mi nutes after, Ms. M. called 911. p. 7 7

art. p. 7 73 - a. instructions to trial courts in their use of 911 tapes. See N.H. CONST. pt. II, we take this opportunity to exercise our supervisory authority and provide have been avoided. In the interest of avoiding similar situations in the future, that was unfairly prejudicial to the defend ant, even though that situation could the tape. In so doing, the trial court unnecessarily exposed the jury to evidence inadmissible and yet, notwithstanding that belief, the court let the jury hear indicate that the tri al court itself believed portions of the tape were Additionally, and perhaps most importantly, the limiting instructions

by consideration of “needless presentation of cumulative evidence”). (relevant evidence may be excluded if probative value substantially outweighed and, furthermore, it was unnecessary cumulative evidence. Cf. N.H. R. Ev. 403 to accurately recall. Consequently, the tape was, at best, minimally probative appearance at the scene, and they were not cross - examined as to their ability three other witnesses, testified at trial about the victim’s condition and appearance upon her arrival at the scene. However, Ms. M., as well as at least on the tape for it to consider except Ms. M.’s description of the victim’s 133, 13 p. 7 7 (2000). Pre suming the jury did so in this case, there was nothing left Juries are presumed to follow instructions. State v. Pelkey, 145 N.H.

operator in any way. do not consider any of the statements of the operator, the 911 that phone call, and again as an aid to you in your deliberations, characterizations that were made or drawn by the parti cipants in inference toward [the defendant] from any of the conclusions or Ladies and gentlemen, once again, you are to draw no adverse

After the State played the tape, the court again instructed the jury:

in this case. Thank you, ladies and gentlemen. of the statements made by the 911 emergency operator as evidence and I don’t suggest to you, I’m instructing you, not to consider any you in how to follow this instruction, I suggest to you that you – conclusions in this case are to be drawn only by you. As a n aid to drawn by the participants in this particular 911 tape. The any inference at all, in fact, you are to disregard any conclusions drawn by the participants to the conversation. You are not to draw however, on the tape certain conclusions and/or characterizations content, rather, is exactly what you would expect. There are, tape. In some respects, many respects, the 911 tape contains – its L adies and gentlemen, you’re about to hear portions of a 911

Prior to playing the tape, the trial court instructed the jury: p. 8 8

of FSA and one charge of sexual assault. The sole FSA charge upon which the Indeed, the jury acquitted the defendant on both charges of AFSA, one charge Here, we cannot say that the verdict was affected by the 911 tape.

the strength of the State’s evidence of guilt. Id. the inadmissible evidence is merely cumulative or inconsequential in relation to the defendant’s guilt is of an overwhelming nature, quantity or weight and if error may be harmless beyond a reasonable doubt if the alternative evidence of affected by the admission. State v. Thompson, 149 N.H. 565, 567 (2003). An only if the State proves, beyond a reasonable doubt, that the verdict was not It is well settled that the erroneous admission of evidence is harmless

jury. We agree. the acquittal verdicts, the tape did not make a significa nt impression on the emotional,” the evidence was “cumulative and unobtrusive” and, based upon harmless beyond a reasonable doubt because the tape was not “overly The State argues t hat any error in allowing the State to play the tape was

was not admitted into evidence as a full exhibit. fact that the State was not permitted to play it again or the fact that the tape resulting from the State playing the tape once was not mitigated by either the instructions to the jury, we conclude that any unfair prej udice to the defendant significant danger of unfair prejudice, and the insufficiency of the trial court’s Furthermore, considering the de minimis probative value of the tape, the jury were not sufficient to minimiz e any unfair prejudice to the defendant. Accordingly, we conclude that the trial court’s limiting instructions to the

was nevertheless significant. stated, may not have risen to a level that would inflame the jury, but which transcript would have tempered the emotion al nature of the call, which, as lacked any danger of unfair prejudice. Moreover, the use of a redacted the tape, and would have preserved for the jury’s consideration only that which be unable to erase f rom its collective memory the unfairly prejudicial content of passages. Doing so would have eliminated the possibility that the jury would from directing the State to transcribe the tape and redact the offending reveals no special circumstances that would have prevented the trial court In this case, it was not possible to further edit the tape, and t he record

circumstances dictate otherwise. tape of a p. 9 911 call should be transcribed and redacted, unless special inadmissible evidence, that should be done. Where editing is not possible, the appropriate safeguards. Thus, if a 911 tape itself can be edited to elimin ate 911 tapes, because although such tapes may be relevant, they require Trial courts must exercise caution in their rulings relative to the use of 9

defendant’s challenge presents an issue of first impression. application of the term “duty of care” to the circumstances of this case. The have suffered harm as a result of that conduct. He challenges only the disrobed the victim and left her alone in the woods, and that the victim could presented sufficient evidence from which a jury could have concluded that he For purposes of this appeal, the defendant concedes that the State

in conduct that endangers his health or safety. incompetent, or by inducing such child o r incompetent to engage a duty of care, protection or support he owes to such child or 18 years of age or of an incompetent person by purposely violating incompetent if he knowingly endangers the welfare of a child under A person is guilty of endangering the wel fare of a child or

RSA 63 p. 9 9:3, I, provides:

63 p. 9 9:3 (I) and against the peace and dignity of the State. of care he owed to [the victim] said conduct being contrary to RSA died f rom exposure. By doing so, [the defendant] did violate a duty endangering her welfare in that she could have been injured or night when the temperature was below freezing thereby ankles and removing her top then left her alone in the woods on a [the defendant] disrobed her by pulling her pants down near her victim] was incapacitated due to alcohol and drug consumpti on Child, [the victim,] a child under the age of 18 in that while [the did knowingly commit the crime of Endangering the Welfare of a

reads, in pertinent part, that the defendant: The endangerment charge upon which the defen dant was convicted

(1 p. 9 996). We agree. did not owe the victim a “duty of care” within the meaning of RSA 639:3, I motion to dismiss the charge of endangering the welfare of a child because he The defendant next argues that the trial court erred in denying his

to play the p. 9 911 tape at trial, the error was harmless. We conclude, therefore, that although the trial court erred in allowing the State assault, physically incapacitated, unconscious or otherwise helpless to resist. theory of the case, which was that the victim was not, at the time of the 632 - A:3, II (1996), thus evidencing that the jury was swayed by the defendant’s defendant was convicted alleged statutory rape by digital penetration, see RSA p. 10 10

welfare of a child under 18,” indicates its intent to expand the scope of the 639:3, I, rather than “[a] parent, guardian, or other person supervising the According to the State, the legislature’s use of the term “a person” in RSA

Model Penal Code, supra cmt. 3, at 450 - 51.

Code. crimes in provisions of general applicability elsewhere in the Model extent that such actions should be covered, they are defined as or by violat ing a duty which a stranger may owe to a minor. To the a child by violating a legal duty owed by all citizens to one another does not authorize conviction of one who endangers the welfare of supervising the welfare of a child.” In other words, Section 230.4 reason of the actor’s status as a “parent, guardian, or other person clear that the provision applies only to those legal duties arising by conduct must violate a duty of “care, protection or support” makes or from other legal sources. The specification that the actor’s contractual obligation, from settled principles of tort or family law, need not be stated in the penal code but may arise from person supervising the welfare of a child under 18. The duty itself contravenes a legal duty imposed upon a parent, guardian or other Section 230.4 is violated only by an act or omission that

section 230.4 states, in relevant part: § 230.4, at 444 (Official Draft and Revised Comments 1980). Comment 3 to welfare by violating a duty of care, protection or support.” Model Penal Code a child under 18 commits a misdemeanor if he knowingly en dangers the child’s 230.4 provides: “A parent, guardian, or other person supervising the welfare of Recommend Codification of Criminal Laws, cmts. at 81 - 82 (1969). Section RSA 639:3, I, is based upon Model Penal Code § 230.4, see Comm’n to

the legislative history of the statute to determine the legislature’s intent. Id. more than one reasonable interpretation. See id. at 339. Thus, we turn first to The term “d uty of care” is not defined in the statute and is subject to

an illogical result. Rollins - Ercolino, 149 N.H. at 341. Hofland, 151 N.H. 322, 324 (2004). We will not interpret a statute to require might have said nor add words that it did not see fit to include. State v. determine legislative intent. Id. We will neither c onsider what the legislature (2003). In doing so, we first look to the plain language of the statute to terms and to promote justice. State v. Rollins - Ercolino, 149 N.H. 336, 339 to construe the Criminal Cod e provisions according to the fair import of their whole. State v. MacMillan, 151 N.H. __, __ (decided April 1, 2005). Our task is legislative intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of p. 11 11

enacted the statutes primarily to address crimes within the famil y. Therefore, and the prohibitions contained therein demonstrates that the legislature concealment of corpse of newborn child). A review of the titles of these statutes “Concealing Death of a Newborn,” RSA 639:5 (1996) (prohibiting knowing spouse, child or other dependent when legally obligated and able to do so); and 639:4 (Supp. 2004) (imposing liability on one who fails to provide support for representatio n of marriage among specified relatives); “Non - Support,” RSA (prohibiting marriage, sexual intercourse, or living together under (prohibiting marriage to multiple spouses); “Incest,” RSA 639:2 (Supp. 2004) The statutes contained in chapter 639 are entitled “Bigamy,” RSA 639:1 (1996) statutory term). RSA chapter 639 is entitled “Offenses Ag ainst the Family.” (1995) (considering relevant statutory scheme in interpreting undefined Rollins - Ercolino, 149 N.H. at 339; see State v. Woods, 139 N.H. 399, 400 - 01 context of its overall statutory scheme and the intent behind similar provisions. indicia of legislative intent, such as the title of the statute, the statute in the To avoid contradictory statutory interpretations, we next consider other

victim a duty of care. legislative history of the statute demonstrates that the defendant owed the with a minor. Consequently, we disagree with the State’s contention that the thereunder to those who have a familial, or similar/supervisory relationship RSA 639:3, I, demonstrates the legislature’s intent to limit criminal liability Code, supra cmt. 3, at 451. Thus, we conclude that the legislative history of guardian, or other person supervising the welfare of a child.’” Model Penal only to those legal duties arising by reason of the actor’s status as a ‘parent, protection or support.” That language “makes clear that the provision app lies in specifying that the “duty” owed under RSA 639:3, I, is one of “care, Moreover, the legislature retained critical language used in section 230.4

with respect to the child. the statute apply only to parents, guardians or others in a supervisory capac ity owes a child a duty of care, thereby excluding the unnecessary limitation that apparent redundancy in section 230.4 by imposing liability on “a person” who N.H. 331, 339 (1999). In drafting RSA 639:3, I, the l egislature avoided the should be given effect.” Marcotte v. Timberlane/Hampstead School Dist., 143 or enact redundant provisions and whenever possible, every word of a statute child” is arguably redundant. “The legislature is not presumed to waste words 230.4 to parents, guardians or “other person[s] supervising the welfare of a in a parental or supervisory relationship with a child, the limitation in section supervisory rela tionship with a child. Since “duty of care” refers only to those “duty of care” was intended to refer only to those who have a parental or The comment to section 230.4 quoted above indicates that the term

similar/supervisory relationship with a minor. We disagree. statute to include a broader populatio n than those who have a familial, or p. 12 12

contained in chap ter 639 unequivocally pertain to families and family - type under this section.” (Emphasis added.) Because the majority of the provisions care, by imposing liability for certain acts “[i]n the prosecution of any person refer to such other persons, in addition to those who owe a minor a duty of similar/supervisory relationship with a minor. RSA 639:3, II and III merel y I, could be imposed upon any person, and not just those having a familial, or duty of care. Accordingly, liability under the inducement clause of RSA 639:3, the child’s health or safety does not also require that the actor owe the child a Thus, liability for inducing a child to engage in conduct that endangers

health or safety.” RSA 639:3, I (emphasis added). person] induc[es] such child . . . to engage in conduct that endangers his duty of care, protection or support he owed to such child . . . or [when a the disjunctive; liability is imposed when “[a] person . . . purposely violat[es] a conduct that endangers [the child’s] health or safety.” The statute is drafted in clause in RSA 639:3, I, that prohibits one from inducing a child to “en gage in endangers his health or safety.” The term “duty of care” is not applicable to the of a child “by inducing such child or incompetent to engage in conduct that protection or support, also prohibits “[a] person” fro m endangering the welfare person from endangering the welfare of a child by violating a duty of care, relationship with a minor. However, section I, in addition to prohibiting a involve individuals wh o do not have a familial, or similar/supervisory The acts prohibited in these sections arguably would, in many instances,

RSA 639:3, III (Supp. 2004).

constitutes endangering the welfare of such child. to engage in sexual penetration as defined by RSA 632 - A:1, V, creating a visual representation as defined in RSA 649 - A:2, IV, or in sexual activity as defined by RSA 649 - A:2, III for the purpose of solicitation by any person of a child under the age of 16 to engage In the prosecution of any person under this section, the

639:3, II (Supp. 2004). Section III prov ides, under the age of 18 constitutes endangering the welfare of such child.” RSA person under this section, the tattooing or branding by any person of a child relationship wit h the minor. Section II states, “In the prosecution of any to acts that in most instances would involve individuals who have no such RSA 639:3, I, is located, contending that sections II and III of the statute refer The State discounts the significance of the statutory scheme in which

the v ictim. only upon persons having a familial, or similar/supervisory relationship with legislature intended to impose liability for endangering the welfare of a child the statutory scheme within which RSA 639:3, I, is located indicates that the p. 13 13

case, to establish criminal liability for manslaughter. failure to act, was sufficient as a matter of law, under the circumstances of the question presented in Hatatley was whether the defendant’s omission, or that he could be held liable for endangering the victim’s welfare. Rather, th e whether the defendant owed the victim a specific statutory duty of care such Id. at 1406 (citation omitted). Thus, the issue in Hatatley was not, as it is here,

support crimi nal liability. safeguard or rescue him and he dies, such omission is sufficient to danger. Thus, when a person places another in danger, fails to for himself a duty to safeguard or rescue the person from that When a person p uts another in a position of danger, he creates

did not, stated: the jury by implying that he had a duty to safeguard the defendant when he in rejecting the defendant’s argument that the trial court improperly instructed and shirtless in the freezing desert. Hatatley, p. 13 130 F.3d at 1402 - 03. The court, beating the victim and abandoning him while he was seriously injured, drunk In Hatatley, the defendant was convicted of voluntary manslaughter after

of care” in RSA 639:3, I. Hatatley, however, is inapposite. obligation comports with the legislature’s intended meaning of the term “duty “had a legal obligation to safeguard her.” The State argues that such a legal temperatures while she was still unclothed and unprotected from the cold, removing her clo thing and abandoning her outside in below freezing danger by providing her alcohol to the extent that she became incapacitated, 1997), the State contends that the defendant, having placed the victim in Finally, relying upon United States v. Hatatley, p. 13 130 F.3d 1399 (10 Cir. th

determination of the scope of the term “duty of care.” inclusion of the inducement clause in RSA 639:3, I, is not relevant to our conduct that endangered her health or safety. Accordingly, the legislature’s care he owed to the v ictim, and did not allege that he induced her to engage in health or safety.” Here, the State alleged that the defendant violated a duty of liability for inducing a child to “engage in conduct that endangers [the child’s] “duty of care” is not applicable to the clause in RSA 639:3, I, that imposes the Model Penal Code. We disagree for the reason discussed above: the term intent to expand the scope of the statute beyond the reach of section 230.4 of inducing a child to engage in endangering conduct evidences the legislature’s The State maintains that the prohibition in RSA 63 9:3, I, against

which RSA 639:3, I, is located based solely on sections II and III. relationships, we do not discount the significance of the statutory scheme in p. 14 14

NADEAU, DALIANIS and DUGGAN, JJ., concurred.

483, 493 - 94 (2004). those sentences and reman d for resentencing. See State v. Rezk, 150 N.H. imposed for the defendant’s convictions for FSA and prohibited sales, we vacate the endangerment conviction may have affected the sentences the court defendant’s conviction under RSA 639:3, I, is reversed. Because evidence of defendant’s motion to dismiss the endangerment charge. Thus, the relationship with a child, we conclude that the trial court erred in denying the liability only upon individuals who have a familial, or similar/supervisory Having determined that the challen ged portion of RSA 639:3, I, imposes