2004-275, STATE OF NH v. CLYDE GAUNTT

The defendant, Clyde Gauntt, was convicted following

and orally, for the defendant. Theodore Lothstein, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2004-275 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the department of safety.

p. 2 that his habitual offender status would continue until removed in writing by recollection of his certification hearing and did not understand the requirement sought help from a neurologist. According to the defendant, he had little

that he had experienced memory problems since 1994, for which he had

offender “was never brought up, never mentioned.” The defendant also testified 2 told his license was suspended but the issue of his status as a habitual before [he] could have [his] license back.” The defendant testified that he was revocation because the defendant testified and explained the basis for his

entitled to a lesser included offense.”

that a motor vehicle employee “gave [him] a list of what [he] had to have done could support an instruction on the lesser-included offense of driving after On appeal, the defendant argues that the evidence presented at trial

substantively in any event. It came in just as to his state of mind so he’s not enough evidence of a different order, which it can’t, that didn’t come in officer determined that the defendant was a habitual offender. he was told his license was suspended. Even if that could be construed as license and he provided a nondriver identification card. Through dispatch, the license was the habitual offender certification, although he mentioned that . . . not lost or incapacitated. The officer asked the defendant for his driver’s similar to the Watkins case . . . . The only . . . evidence of why he didn’t have a court denied the request stating: “As to the lesser included offense, this is instruction on the lesser-included offense of operating after revocation. The vehicles and inquired what he had to do to get his license back. He testified At the close of evidence at trial, the defendant requested a jury society.” The defendant further testified that he went to the division of motor habitual offender had been wiped out because [he] had paid [his] debt to

after twelve months.

stopped. Officer Syrek pulled over behind the car to make sure the driver was car in front of her, which was traveling at a very slow speed, pulled over and Officer Syrek of the Hooksett Police was patrolling on Hooksett Road when the year in jail and was released around October 2001. On November 23, 2002,

although he knew his license was still suspended, he “thought that the At trial, the defendant testified that after serving his sentence in 2001,

period of four years, but also provided that he could petition to be decertified of the order. The order certified the defendant indefinitely, for a “minimum” him by the hearings examiner and the defendant was also provided with a copy

imprisoned for driving while certified as a habitual offender. He served one Later in the fall of 2000, the defendant was arrested, pled guilty, and was

decertification in writing by the department of safety. The order was read to until a further hearing resulted in decertification and he was so notified of such p. 3 3

status as an habitual offender.”

by the evidence.

the existence of a mental state essential to the crime charged.” 1 W. LaFave, State v. Crotty, 1 p. 3 34 N.H. 706, 710 (1991) offense . . . .” “[I]gnorance or mistake of fact . . . is a defense when it negatives remained in effect; and (3) that the defendant did so with knowledge of his The mistake negatives the culpable mental state required for commission of the defendant drove a motor vehicle on the ways of this State while that order habitual offender, his defense asserted a mistake of law that was not supported barring the defendant from driving a motor vehicle was in force; (2) that the that he misunderstood the effect of certain events on his legal status as a offender requires proof of three elements: (1) that an habitual offender order not rely upon a general claim of lack of knowledge, but upon the specific claim “A conviction on the charge of operation after certification as an habitual offender.” revocation rather than on the offense of driving after certification as a habitual fact . . . .” Id. § 5.6(b), at 397. rational basis for a finding of guilt on the offense of driving after suspension or that mental state can exist in light of the defendant’s ignorance or mistake of the mental state or states required for the crime, and then inquires whether Substantive Criminal Law § 5.6(a), at 395 (2d ed. 2003). “One merely identifies

finding of guilt on the lesser offense rather than the greater offense.” offense” and “the evidence adduced at trial . . . provide[s] a rational basis for a criminal liability because he acts under a mistaken belief of fact unless: (a) RSA 626: p. 3 3, I (1996) provides in part that “[a] person is not relieved of

mistake of law principles.” The State argues that because the defendant did Watkins, 148 N.H. at 765. discretion. included offense instruction in this case for an unsustainable exercise of in this case is whether the evidence presented at trial could “provide[ ] a as a habitual offender, State v. Moses, 128 N.H. 617, 621 (1986), the only issue revocation is embraced within the legal definition of driving after certification Watkins, 148 N.H. 760, 765 (2002). Because driving after suspension or

when “the lesser offense [is] embraced within the legal definition of the greater A defendant is entitled to have the jury consider a lesser-included offense

would, if believed, negate that element, his theory of defense is not barred by Id. because evidence of [his] mistaken belief that his status changed over time of the offense of operating after [certification as a] habitual offender, and p. 3 331, 334 (2005). We review the trial court’s decision not to give the lesseror not a particular jury instruction is necessary. State v. Littlefield, 152 N.H. It is within the sound discretion of the trial court to determine whether

argues that “[b]ecause actual knowledge of legal status is an essential element mistaken belief that he was no longer a habitual offender. The defendant p. 4 4

he was no longer certified as a habitual offender. Unlike instruction was an unsustainable exercise of discretion. employee which reinforced his belief that although his license was suspended,

included offense. The trial court’s denial of his request for such a jury ensuing jail sentence; and his meeting with the department of motor vehicles revocation, the defendant was entitled to have the jury consider the lessercertified as a habitual offender but guilty on the offense of driving after

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

conviction for operating after certification as a habitual offender and the offender status continues until removed in writing; the significance of his prior provide a rational basis for a finding of not guilty on the offense of driving while memory of his certification hearing; his lack of understanding that habitual Accordingly, we hold that because the evidence presented at trial could

was arrested. that he did not subjectively know that he was still certified in 2002 when he present case, the defendant’s testimony, if believed, could support a finding habitual offender at the time he drove [a vehicle].” defendant offered no evidence or testimony regarding his state of mind, in the reasonable doubt that the defendant actually knew he was certified as an

based upon all of his testimony including: his memory problems; his limited The defendant claims he was entitled to a lesser-included instruction

at 766. In order to convict the defendant, “the jury must be satisfied beyond a p. 4 45, 48 (1994); see State v. Baker, 135 N.H. 447, 449 (1992); Watkins, 148 N.H. habitual offender at the time he drove his [vehicle].” State v. Vincent, 139 N.H. subjectively knew that he had been, and continued to be, certified as an (citations omitted). “A mens rea of knowingly means that the defendant