2008-347, STATE OF NH v. BERNARD LINDSEY

The defendant, Bernard Lindsey, appeals his

the defendant. David Betancourt, public defender, of Dover, on the brief and orally, for

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

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-347 editorial errors in order that corrections may be made before the opinion goes Merrimack Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 handcuffed and placed on the floor.

p. 2 left the defendant face down on the apartment floor. All of the individuals were another individual and found two others in the apartment, they momentarily handcuffed him to secure control of the scene. While the police handcuffed

appeal followed.

yelling. Grabbing his shoulders, an officer forced him to the floor and

trial court denied the motion. The jury returned a guilty verdict, and this presented insufficient evidence to support a conviction for resisting arrest. The difficulty breathing. He moved to dismiss the charge, arguing that the State

defendant to get down on the floor, but he failed to comply and continued the defendant finally stood up and dropped the knife. The police ordered the room. At gunpoint, the officers repeated the command numerous times, and

defendant claimed that he tried to get off the floor because he was having

ignored their commands and continued pointing the knife toward the other arrest or detention. person. Verbal protestations alone shall not constitute resisting

down. The defendant was later charged with resisting arrest. At trial, the defendant to the floor and allowed him to sit upright, where he finally calmed the defendant “yelled, screamed and kicked.” The two officers brought the

officers drew their guns and ordered the defendant to drop the knife. He was yelling and pointing the knife in the direction of another room. Two serious bodily injury, as defined in RSA 625:11, VI, to another A coffee table was overturned and broken glass strewn about. The defendant a class B felony if the act of resisting arrest or detention causes of whether there is a legal basis for the arrest. A person is guilty of to effect an arrest or detention of the person or another regardless enforcement official, including a probation or parole officer, seeking purposely physically interferes with a person recognized to be a law A person is guilty of a misdemeanor when the person knowingly or away and “bull-rushing” toward him. Another officer approached to help, but The resisting arrest statute provides:

defendant sitting on a couch holding a kitchen knife with a seven-inch blade.

One officer tried to calm him down, but the defendant was pushing and pulling swinging around, yelling and screaming and pushing himself onto the couch. As the officers were assessing the situation, the defendant tried to get up,

officers, who were in full uniform, entered the apartment and saw the heard yelling and the sound of breaking glass from inside an apartment. The investigated a 911 hang-up call in Concord. When they arrived, the officers

February 25, 2007, two Concord police officers and one Boscawen police officer The jury could have found the following facts. On the evening of safety of officers.”

p. 3 effective administration of justice, discourages self-help, and provides for the “follow the commands of law enforcement officials, because doing so fosters the individual. The resisting arrest statute reflects the policy that individuals

“ACCOMPLISH, EXECUTE.” about esp. through successful use of factors contributory to the result”; change in an instant, especially when they are exerting physical control over an The plain meaning of “effect” includes: “to cause to come into being”; “to bring seeking to effect an arrest or detention, including volatile situations that can

while law enforcement is “seeking to effect an arrest or detention.” RSA 642:2. Law enforcement officers may confront a myriad of scenarios when

153 N.H. at 483. or keep in or as if in custody,” “to keep back,” and to “stop or delay.” Kelley, in light of the policy or purpose advanced by the statutory scheme,” 71, 73 (1964). We have previously noted that the term “detain” means “to hold commission of a crime.” RSA 594:1 (2001); see also State v. Murray, 106 N.H. a person into custody in order that he may be forthcoming to answer for the (unabridged ed. 2002). An “arrest” is defined by statute to mean “the taking of

A conviction for resisting arrest must rest upon conduct that occurs

Kelley, 153 N.H. 481, 482 (2006).

“consider words and phrases within the context of the statute as a whole, and to the plain language of the statute at issue, Duquette, 154 N.H. at 740, and fair import of their terms and to promote justice.” RSA 625:3 (2007). We look With respect to the Criminal Code, we construe its provisions “according to the

Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 740 (2007).

of the intent of the legislature as expressed in the words of a statute considered meaning of the statute. interpretation. “In matters of statutory interpretation, we are the final arbiter occurred while the police were seeking to effect his detention within the or detention” in RSA 642:2 and therefore presents an issue of statutory his detention was complete, and thus his subsequent conduct could not have challenge focuses upon the meaning of the phrase “seeking to effect an arrest the defendant, once he was handcuffed and forced to lie face down on the floor, State v. Evans, 150 N.H. 416, 424 (2003) (citations omitted). The defendant’s

reasonable doubt. most favorable to the State, could have found guilt beyond a of the evidence and all reasonable inferences from it in the light the defendant must prove that no rational trier of fact, viewing all To prevail on his challenge to the sufficiency of the evidence,

in denying his motion to dismiss for lack of sufficient evidence. According to RSA 642:2 (emphasis added). The defendant argues that the trial court erred promotes justice. p. 4 arrest or detention” within the context of the resisting arrest statute controls. contexts, the legislature’s intended meaning of the phrase “seeking to effect an liberty, such as arrest, detention and seizure may overlap in various legal

This construction neither accords with the fair import of the statute nor

resisting arrest statute. While concepts involving the restraint upon a person’s

enforcement officers is no longer culpable under the resisting arrest statute.

within the constitutional context to aid in the interpretation of key terms in the

accomplishing the intended law enforcement duty. as a whole. assessed on a case-by-case basis, objectively viewing the continuum of events and should not be assessed by parsing out discrete, snapshot moments in

See Com. v. Katykhin, 794 N.E.2d 1291, 1292 (Mass. App. Ct. 2003), review

occurs after the moment in which an individual comes under the control of law

*2. We also reject the defendant’s reliance upon the meaning of “seizure” denied, 806 P.2d 1153 (Or. 1991); Green, No. 02-P-678, 2003 WL 22399532, at seek to secure and maintain physical control of an individual, attendant to See, e.g., State v. Bolden, 801 P.2d 863, 864 (Or. Ct. App. 1990), review

while law enforcement was “seeking to effect an arrest or detention” must be that effecting an arrest or detention is not necessarily an instantaneous event

enforcement is securing individual); Under the defendant’s construction of the statute, all resistance which gutter. examining the totality of the circumstances on a case-by-case basis). 21354758, at *3 (Tex. Ct. App. June 12, 2003) (arrest is to be determined by

See In the Matter of M.H., No. 03-02-00672-CV, 2003 WL including the entire course of events during which law enforcement officers

(Tex. Ct. App. 2004) (same). Whether a defendant’s resistive conduct occurred resisting it, regardless of whether any legal basis exists for the arrest). 293-94 (Or. Ct. App. 2009) (same); Latham v. State, 128 S.W.3d 325, 329-30 S.W.3d 314, 316 (Mo. Ct. App. 2007) (same); State v. Pierce, 203 P.3d 290, 22399532, at *2 (Mass. App. Ct. Oct. 21, 2003) (same); State v. Ondo, 231

resisting arrest applies to entire process or course of events in which law 223, 2002 WL 31235416, at *1 (Del. Super. Oct. 4, 2002) process, rather than by physical confrontation on the street or in the (prohibition against those who do not, resolved in the courts or by some other orderly See Shambor v. State, No. differences between those who wield the authority of government, and

We construe the phrase “seeking to effect an arrest or detention” as

peaceably submit to arrest and refrain from using force or any weapon in Id. (quotation omitted); see also RSA 594:5 (2001) (citizens have a duty to

is enlightened when its laws reflect a high purpose to have apparent A society which seemingly becomes more complex with each passing day conclude the process of seeking to effect his detention. p. 5 defendant was face down on the floor while handcuffed did not serve to

a reasonable juror could have concluded that the brief time period in which the

reasonable inferences in the light most favorable to the State, we conclude that allowed to sit up, he calmed down completely. Viewing the evidence and all “bull-rushing” at a police officer. Finally, once forced to return to the floor and

the floor where he had been instructed to stay, and was kicking, pushing and

individuals at the scene. Suddenly, he resumed his yelling, attempted to get off

so that the officers could continue to secure the area by detaining the other was forced to do so and handcuffed. He was briefly left face down on the floor drop the knife. He failed to comply with orders to go to the floor and ultimately

handcuffed and momentarily left to lie face down on the apartment floor. conviction.

a seven-inch bladed knife. He refused numerous commands at gun point to DALIANIS, DUGGAN and HICKS, JJ., concurred.

struggling with the officers to get off the floor, even though he had been effect the defendant’s detention was still in progress at the time he began as a whole, we conclude that the evidence is sufficient to support his whether a rational jury could have concluded that the process of seeking to conviction for resisting arrest). Accordingly, viewing the continuum of events 316 (struggle that ensued after defendant was peaceably handcuffed supported course of conduct in which police were effecting arrest); Ondo, 231 S.W.3d at N.E.2d at 1292 (handcuffing does not automatically conclude the continuing

limit our review of the defendant’s insufficiency argument to determining

From the moment the police entered the apartment, they faced a

encompass the process of “seeking to effect an arrest or detention.” Rather, we In this case, we need not define precise beginning and end points that

equate to an effected arrest under resisting arrest statute). denied, 798 N.E.2d 286 (Mass. 2003) (seizure in constitutional sense does not