2005-927, STATE OF NH v. ALLYSSA B. FLAGG

The State appeals the Jaffrey-Peterborough District

Allyssa B. Flagg, pro se, filed no brief.

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 (Ann M. Rice, associate attorney general,

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

editorial errors in order that corrections may be made before the opinion goes No. 2005-927 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Jaffrey-Peterborough 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 22 as prejudicial to the defendant.

p. 2 bad faith in discarding the liquid, the loss of the evidence was material and finding that, while the State had not acted with either culpable negligence or sole evidence against [her].” The trial court granted the motion to dismiss,

contained was not proscribed by law. She contended that the beer was “the

(1) the can did not contain beer; or (2) the alcohol percentage of the liquid it

one containing more than that might satisfy the State’s burden of proof.” The

defendant argued that she sought to test the contents of the can to assert that: marijuana and emptying it into the wind.” In her motion to dismiss, the She likened pouring out the contents of the can to “seizing a baggie of

prejudicial, “as a can containing but a few drops might be deemed empty, while

the beer for her defense, but still found the evidence material and its loss

and the degree of prejudice to the defendant resulting from its loss.

had failed to preserve evidence in violation of the Sixth Amendment of the probably have led to a verdict in her favor. possession and transportation of alcohol charges on the basis that the State loss prejudiced her by precluding the introduction of evidence that would whether the can contained beer. The defendant moved to dismiss the relief unless she demonstrates that the evidence was material, such that its

defendant, and without culpable negligence. The trial court rejected both of the defendant’s arguments about needing

culpable negligence; thus, we need only consider the materiality of the evidence relevant, and the trial court found that Mitchell acted without bad faith or evidence was not material and its loss was not prejudicial to the defendant. The State concedes that the contents of the beer can it poured out were

passed the beer back to her brother to hide it, thus conceding the issue of 548 (2005). If the State carries that burden, the defendant may not claim any

both with good faith, in the sense that it was free of any intent to prejudice the denial of due process, the State has the burden to demonstrate that it acted container ordinance. In determining whether the loss of relevant evidence has resulted in a

The State argues that the trial court’s ruling was erroneous because the

had been left in the car one to two weeks before her arrest and that she had

(repealed 2006 and replaced by RSA 265:45) and violation of Hancock’s open transportation of alcohol by a minor in violation of RSA 265:81-a (2004) alcohol by a minor in violation of RSA 179:10 (Supp. 2006) (amended 2006),

At the motion hearing, the defendant testified that she thought the beer

smelled and foamed like beer. The defendant was charged with possession of Mitchell poured the contents on the ground and observed that the liquid references a minimum amount needed to compose the regulated liquid. p. 3 human consumption as a beverage” of a specific alcohol content. Neither

similar malt or vinous liquors and fruit juices and other liquid intended for

specific alcohol content. RSA 175:1, VIII defines “Beverage” as “any beer, wine, 3 and rectified spirits, alcohol, wines, fermented and malt liquors and cider” of a constitute either liquid. RSA 175:1, XLII states that “Liquor” is “all distilled

erred by dismissing the charges.

statutes, does not include any references to the amount of alcohol needed to violation” for possession of “BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

hold that the trial court’s ruling to the contrary was erroneous, and that it there is no statutory commandment that would make it so. Accordingly, we Therefore, the amount of beer in the can in this case is not material, as

alcohol is sufficient to trigger a violation. added.) All of these statutes make it clear that even a de minimis amount of which defines the terms “liquor” and “beverage” for the purpose of these any liquor or alcoholic beverage.” (Emphasis the age of twenty-one, likewise states that a minor “shall be guilty of a RSA 179:10, which proscribes possession of alcohol by a person under certain exceptions, also proscribes the possession or transportation of “

have said, or add words that it did not see fit to include. that when interpreting a statute we will not consider what the legislature might liquor or [alcoholic] beverage.” (Emphasis added.) RSA 175:1 (Supp. 2006), intent of the legislature as expressed in the words of a statute. any which prohibits transportation of open containers of alcohol by anyone, with material, we examine the applicable statutes. We are the final arbiter of the 265:81, II, III (2004) (repealed 2006 and replaced by RSA 265-A:44, II, III), any liquor or beverage in any part of a vehicle.” (Emphasis added.) RSA when accompanied by a parent, legal guardian or legal age spouse, transport position.” This a minor, says in pertinent part: “[N]o driver under the age of 21 shall, except testimony on that issue, which is highly prejudicial to the defendant’s RSA 265:81-a, I, which prohibits transportation of alcoholic beverages by

154 N.H. ___, ___, 908 A.2d 786, 788 (2006). Moreover, it is well established

To determine whether evidence of the amount of liquid in the can was

error.

sua sponte ground for ordering the dismissal of charges was

introduced into evidence, the defendant has no way to challenge the officer’s trial court reasoned, “Without such contents available to be inspected and