2004-787, STATE OF NH v. CATHY BURKE

The defendant, Cathy Burke, appeals her conviction in

Patrick W. Fleming, of Portsmouth, by brief, for the defendant.

attorney general, on the brief), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2004-787 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Exeter District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 p. 2 22 as party.

party’s argument on appeal even when the issue is not raised by the opposing federal cases in support of her argument.” of her arguments. We recognize that we may address the inadequacy of a of the defendant’s claims because it believes that she insufficiently briefed both

Process Clause of the Federal Constitution only.

of simple assault. This appeal followed.

of an appeal and allow the court to address the merits, at least where the

brief “is devoid of any reference to the Federal Constitution, and she cites no claim under the Federal Constitution because it argues that the defendant’s appeal, the special concurrence concludes that we should not reach the merits N.H. 44, 46-47 (1999). The special concurrence would not even address this rather than to dismiss for deficiencies in a brief . . . . interfere with their review. Courts prefer to dispose of a case on the merits See Appeal of Morgan, 144 approached to investigate the commotion. Constitution in her brief, we address her vagueness claim under the Due briefing errors do not hamper the ability to dispose of the appeal or otherwise “unambiguously and specifically” invoke any provision of the New Hampshire As to the vagueness issue, because the defendant failed to

court denied the motion and, after trial, convicted the defendant of one count

the rules of appellate procedure . . . may be found sufficient to avoid dismissal added)); 5 Am. Jur. p. 2 2d Appellate Review § 867 (“Substantial compliance with appellate courts will address discernable issues on the merits.” (emphasis

“[D]id you see what happened? She just pushed me.” At that point, a bailiff (“Courts are least likely to dismiss an appeal or impose other sanctions when with our review of the appeal. Cf. 5 Am. Jur. p. 2 2d Appellate Review § 578 (1995) is discernable and briefing inadequacies do not hinder or otherwise interfere 248, 250 (2004). We should not normally do so, however, where the argument that RSA 631:2-a, I(a) is unconstitutionally vague and overbroad. The trial See Sup. Ct. R. 16(3), (6); cf. Bean v. Red Oak Prop. Mgmt., 151 N.H. Prior to trial, the defendant moved to dismiss the complaint on the grounds unprivileged physical contact to Laura Gandia by knowingly pushing her.”

unconstitutionally vague; and ( p. 2 2) insufficient evidence supports her conviction. On appeal, the defendant argues that: (1) RSA 631:2-a, I(a) is was lying . . . about where her client was.” Gandia then said to Sternenberg, her finger on her shoulder “[t]o get her attention” and “let her know that she See RSA 599:1-c, II (2001). move her body backwards. The defendant testified that she poked Gandia with

631: p. 2 2-a, I(a). The complaint alleged that the defendant “knowingly cause[d] The defendant was charged with one count of simple assault. See RSA

not in Florida,” and pushed Gandia on her left shoulder with enough force to Florida. Gandia testified that the defendant then looked at her, said, “[H]e’s merits.

p. 3 raises a separate sufficiency of the evidence claim that we will address on the

the defendant incorporates her first argument into her second, she clearly

within “the definition of unprivileged physical conduct.” While we agree that State and argues that the conduct here as a matter of law should not fall defendant notes that the facts must be viewed in the light most favorable to the

contact, the conduct at issue in this case should not be included.” The

reasons.”

arbitrary deprivation of liberty interests.”

begins by claiming that “[w]hatever the definition of unprivileged physical absurd results.” In her brief, the defendant’s one and a quarter-page argument an extension of her first argument that the statute is vague because it leads to

encourages arbitrary and discriminatory enforcement.” Id. Colorado, 530 U.S. 703, 732 (2000). “Second, if it authorizes or even reasonable opportunity to understand what conduct it prohibits.” Hill v.

Id. at 56. “First, if it fails to provide people of ordinary intelligence a supported by neither argument nor by authority.” (1999). “Vagueness may invalidate a criminal law for either of two independent

standards for the police and public that are sufficient to guard against the de novo. A statute “may be impermissibly vague because it fails to establish 150 N.H. 504, 510 (2004). We therefore review the trial court’s determination Constitution with regard to whether a statute is unconstitutionally vague.” The constitutionality of a statute is a question of law. State v. Bortner, because “[t]he single paragraph in her brief devoted to this argument is merely

hardly a case where “off-hand invocations of [constitutional rights] are

“because the Federal Constitution affords no greater protection than the State decided under our State Constitution and such reliance is appropriate concurrence would hold that the defendant did not adequately argue the issue As to the defendant’s sufficiency of the evidence claim, the special

Process Clause adds nothing to our understanding of her argument. 494, 499 (1988). term “unprivileged” is “unconstitutionally vague.” A citation to the Federal Due Keenan v. Fearon, 130 N.H.

the Model Penal Code and comparable statutes in other States. Thus, this is State v. Porelle, 149 N.H. 420, 423 (2003). She goes on in her brief to rely on

provision, she does cite statutory and case law. The defendant relies on cases Moreover, although the defendant cites no specific constitutional

at trial. Here, the defendant’s six-page argument clearly contends that the appeal even though the defendant characterized it as a double jeopardy issue State v. Goding, 128 N.H. 267, 270 (1986), we reviewed a due process claim on provision of the Federal Constitution precludes appellate review. In fact, in We have never held that a party’s failure to include a citation to a specific scienter requirement narrows the scope of conduct that the statute proscribes, p. 4 police.”

degree of police judgment.” statutes, the enforcement of RSA 631-2:a, I(a) “requires the exercise of some contact at issue was not justified by law or consent. Like other criminal 4

against the threat of arbitrary enforcement. Although we agree that the criminalized. The State asserts that the statute’s scienter requirement guards “not provide sufficiently specific limits on the enforcement discretion of the consent, even “slapping on the back as a form of greeting” could be make it unlikely that the law will be applied in an “ Accordingly,

order to allege a violation of the statute. Instead, the police must show that the

“unprivileged physical contact” yields a “patently absurd result.” Specifically, The defendant further asserts that a “strict plain meaning analysis” of

manner. with no apparent purpose” encouraged arbitrary enforcement because it did Cf. Hill, 530 U.S. at 733; Grayned, 408 U.S. at 114. interpret the statute to forbid all physical contact not authorized by law or ad hoc and subjective” construction of RSA 631:2-a, I(a) adequately limits police discretion so as to

burden to clearly articulate some form of “unprivileged physical contact” in in Morales, however, RSA 631:2-a, I(a) does not relieve law enforcement of the

Morales, 527 U.S. at 56, 64 (plurality opinion). Unlike the ordinance

found that an ordinance which defined loiter as “to remain in any one place encourages arbitrary enforcement. The defendant hypothesizes that if we 408 U.S. 104, 109 (1972). For example, in Morales, a plurality of the Court application on an “ad hoc and subjective basis.” Grayned v. City of Rockford, A statute encourages arbitrary enforcement where it promotes contact not justified by law or consent. prevent arbitrary enforcement. see Hill, 530 U.S. at 732, that requirement by itself does not necessarily

The defendant argues that a broad interpretation of RSA 631:2-a, I(a) contact.” We disagree. because neither the statute nor our case law defines “unprivileged physical contact to another.” The defendant first contends that this language is unclear the plain meaning of “unprivileged physical contact” includes all physical sanctioned by law.” Black’s Law Dictionary 1235 (8 ed. 2004). th complained of but asserts that the defendant’s conduct was authorized or defense by which a defendant acknowledges at least part of the conduct Dictionary 1805 (unabridged ed. 2002). Privilege can serve as “[a]n affirmative peculiar benefit, advantage, or favor.” Webster’s Third New International 614, 621 (2001). Privilege is defined as “a right or immunity granted as a “Unprivileged” means a “lack of privilege.” See In re Nathan L., 146 N.H.

. . . [p]urposely or knowingly causes bodily injury or unprivileged physical RSA 631:2-a, I(a) provides that “[a] person is guilty of simple assault if he the New Hampshire Constitution in her brief. p. 5 because she failed to unambiguously and specifically invoke any provision of

address the defendant’s claim within the context of our State Constitution

and/or overbroad.” The majority refuses, and I agree with that refusal, to dismiss, “based on the argument that the [statute] is unconstitutionally vague notice of appeal claims that the trial court erred in denying her motion to

under RSA 631:2-a, I(a) by “

found that way and thus is a violation of due process, since that right is 631:2-a, I(a)] is unconstitutionally vague and/or overbroad, and should be argument under the Due Process Clause of the Federal Constitution. Given the vagueness and overbreadth.” Specifically, she argued: “I believe that [RSA The majority does, however, proceed to address the defendant’s

reasonably could have concluded that the defendant committed simple assault of the issues addressed by the majority.

dismiss the complaint against her “based on the Constitutional doctrine of Prior to trial, the defendant, Cathy Burke, unsuccessfully moved to

was not justified by law or consent. Therefore, we find that the trial court this case. I write separately, however, simply because I would not reach either contains testimony that the defendant acted knowingly and that her conduct BRODERICK, C.J., concurring specially. I agree with the affirmance in that she engaged in physical contact with Gandia. Moreover, the record concurred specially. DALIANIS, GALWAY and HICKS, JJ., concurred; BRODERICK, C.J.,

to [Gandia] by knowingly pushing her.”

implied. defendant overlooks the general principle that consent may be express or other’s shoulder first.” We find this argument unpersuasive. First, the A.2d 123, 127 (2005) (quotation omitted). The defendant, however, concedes found guilt beyond a reasonable doubt.” State v. Emery, 152 N.H. __, __, 887 of fact, viewing the evidence in the light most favorable to the State, could have the evidence, the defendant carries the burden of proving that no rational trier

RSA 631:2-a, I(a). “In an appeal challenging the sufficiency of

Finally, the defendant argues that insufficient evidence supports her

defendant cites no authority for the proposition that a statute’s proscription of

See Fischer v. Hooper, 143 N.H. 585, 597-98 (1999). Second, the

tapping another on the shoulder “unless one asks for permission to touch the the defendant hypothesizes that the plain meaning of the statute criminalizes p. 6 6

without more, not substitute for valid constitutional argument); first argument that the statute is vague because it leads to absurd results. paragraph in her brief devoted to this argument is merely an extension of her that the evidence to support her conviction was insufficient. The single

consideration).

adequately briefed); under our State Constitution, vagueness, and, in those two cases, we addressed the vagueness issue only legal argument insufficient to warrant judicial review). e.g., State v. Blackmer, 149 N.H. 47, 49 (2003) (complaint without developed

In addition, I would not give the defendant credit for adequately arguing

rights supported by neither argument nor authority warrant no extended addressed only federal claim), v. Fearon, 130 N.H. 494, 499 (1988) (off-hand invocations of constitutional

concerning due process rights under State and Federal Constitutions when not seven New Hampshire cases cited in her brief, only two concern statutory v. McIntyre, 151 N.H. 4 p. 6 65, 469 (2004) (declining to address arguments

Fourteenth Amendments to Federal Constitution, claim waived where brief to due process under Part I, Article 15 of State Constitution, and Fifth and argument limited to State Constitution). 141 N.H. 503, 504 (199 p. 6 6) (although defendant’s brief claimed violation of right argument under the Federal Constitution in this case. See, e.g., State v. Chick, employ a more lenient standard in deciding whether to reach the defendant’s (1986); State v. Glidden, 122 N.H. 41, 45-47 (1982). I would choose not to vagueness issue grounded in due process provision of State Constitution, we see State v. Saucier, 128 N.H. 291, 296-97

Constitution, and she cites no federal cases in support of her argument. Of the The defendant’s brief is devoid of any reference to the Federal

reference to Federal Constitution, federal claims waived and discussion of Constitutions, but failed to further devote anything more than passing (where defendant’s brief advanced argument under both State and Federal

Federal Constitutions below, but failed to unambiguously and specifically raise Appeal of Morgan, 144 N.H. 44, 4 p. 6 6-47 (1999) (where petitioner cited State and claim of error within the context of our Federal Constitution. Compare, e.g., state of the defendant’s brief, I would additionally choose not to address her