2008-207, STATE OF NH v. MOHAMED DAOUD

The defendant, Mohamed Daoud, appeals his conviction for

brief and orally, for the defendant. Stephanie Hausman, assistant appellate defender, of Concord, on the

attorney general, on the memorandum of law and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant

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

editorial errors in order that corrections may be made before the opinion goes No. 2008-207 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district 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 evidentiary item in context, not in isolation.

p. 2 trial court’s interpretation of a statute the evidence in the light most favorable to the State and examine each language according to its plain and ordinary meaning. We review a the language of the statute itself and, if possible, construe that

conclusions except guilt. Under this standard, however, we still consider the evidence is solely circumstantial, it must exclude all rational considered as a whole. In interpreting a statute, we first look to to the State, could have found guilt beyond a reasonable doubt. When

intent of the legislature as expressed in the words of a statute evidence and all reasonable inferences from it in the light most favorable

therefore presents an issue of statutory interpretation.

State v. Horner, 153 N.H. 306, 309 (2006) (citations omitted).

habitual offender and for disobeying a police officer by giving a false date of and another officer arrested the defendant for operating after certification as a

In matters of statutory interpretation, we are the final arbiter of the defendant must prove that no rational trier of fact, viewing all of the

challenge centers upon the meaning of the term “removes” in RSA 641:6 and falsifying evidence charge for insufficient evidence. State v. Evans, 150 N.H. 416, 424 (2003) (citations omitted). The defendant’s

last conviction.

the vehicle. After receiving information from the police station, Officer Boylan offender,

inventory was undertaken at booking. To prevail on his challenge to the sufficiency of the evidence, the

The defendant contends that the trial court erred in not dismissing the

vehicle’s key. On appeal, the defendant has briefed only his challenge to the 265:4 (2004) and falsifying physical evidence, see RSA 641:6, for removing the

see RSA 262:23 (Supp. 2008), disobeying a police officer, see RSA

not been driving. He then gave two inconsistent accounts of who had driven The defendant was convicted of operating after certification as a habitual

The key was ultimately discovered in the defendant’s left shoe when a property for the key, in an effort to identify the defendant as the driver of the vehicle. Officer Boylan and the other officer searched in and around the vehicle

When Officer Peter Boylan approached, the defendant stated that he had

on a curb some distance away. vehicle twice before the police arrived at the scene, at which time he was seated literal sense.

p. 3 similar circumstances in

interpret the term “remove” in an evidence tampering statute in its broadest,

something for the purpose of impairing its availability” for trial). We addressed not rise to the level of conduct which constitutes a concealment or removal of investigating officers from associating him with said vehicle. while in the presence of the arresting officers at the scene of the purchase does

the ground in the officer’s presence”),

the defendant cites cases from Alaska and Florida in which courts declined to sight of the police”), argues that the legislature did not intend such a broad reading. In support, term “remove” may mean any movement, however slight, in position, but in which a fifteen-year-old student, upon catching the eye of a police officer,

he had been operating inside his left shoe in order to prevent the the defendant’s “act of tossing [a] small bag of cocaine away from his person

“‘suppress’ or ‘conceal’ . . . rocks of cocaine when he tossed or dropped them to

defendant “toss[ed a] handgun, magazine, and ammunition out of [a] car in the from the case before us. See Anderson, 123 P.3d at 1118 (stating that the car to his shoe is not a ‘removal’ under the law.” He acknowledges that the of evidence in plain view of a pursuing officer, are factually distinguishable We first note that these cases, each of which involved the abandonment

131, 134 (Fla. 1996). 1383 (Fla. Dist. Ct. App. 1990), disapproved of in State v. Jennings, 666 So. 2d Vigue v. State involved in a motor vehicle collision, he hid the keys to the vehicle, 987 P.2d 204 (Alaska Ct. App. 1999); Boice v. State, 560 So. 2d

See Anderson v. State, 123 P.3d 1110 (Alaska Ct. App. 2005);

The defendant argues that his “act of moving the key from the ignition of

impair its availability in such investigation when, after having been be instituted, the defendant removed an item with the purpose to defendant did, believing that an official investigation was about to did commit the crime of falsifying physical evidence in that the

offense. Specifically, the indictment charged that the defendant: RSA 641:6. The defendant was charged solely with the “removes” variant of the

investigation; . . . . purpose to impair its verity or availability in such proceeding or I. Alters, destroys, conceals or removes any thing with a

or about to be instituted, he: proceeding, as defined in RSA 641:1, II, or investigation is pending A person commits a class B felony if, believing that an official

RSA 641:6 provides, in pertinent part: p. 4 “conceals” and “removes” in RSA 641:6 have independent significance. although not hidden, it is not likely to be discovered). Thus the terms without concealing it (by, for instance moving an item to a place where,

the car.

or material) and to remove something, with the intent to impair its availability,

it provided circumstantial evidence that Daoud was in control of

may not be detected. something without removing it (by, for instance, covering it with another object exclusive. As the State suggested at oral argument, it is possible to conceal use words that are superfluous or redundant”), the terms need not be mutually key on his person increased the evidentiary value of the key in that decreased the evidentiary value of the key. If anything, placing the superfluous, a place where its evidentiary value could be recognized nor destroys, conceals or removes” used in RSA 641:6 may be redundant or that under standard rules of statutory construction, none of the terms “[a]lters,

be deduced, to some other place where its evidentiary significance of the crime, or from any location where its evidentiary value can “remove” must refer to the act of moving an object from the scene words of a statute are to be given effect, and the legislature is presumed not to see State v. Pierce, 152 N.H. 790, 791 (2005) (noting that “[a]ll a “removal” under the law because it neither removed the key from

and to exclude obscuring the item itself, we decline to adopt it. While we agree is meant to encompass only disguising the evidentiary significance of an item Assuming, as the defendant appears to contend, that the Vigue definition

used in the statute (especially “suppress” and “conceal”), then

act of moving the key from the ignition of the car to his shoe is not defendant presents an issue of statutory construction noted by the court in Vigue, 987 P.2d at 210. The defendant uses this definition to argue that his

[I]f the term “remove” is not to be redundant of the other terms

Vigue:

Nevertheless, in urging a more restricted reading of “removes,” the

Id. at 17. abandonment of the cigarette pack, an action not proscribed by the statute.” given the totality of the circumstances in this case, constituted a simple of RSA 641:6. Id. at 16-17. Rather, we concluded that “the juvenile’s actions, held that the juvenile did not “conceal” the cigarette pack within the meaning crowded school hallway and fled. Juvenile 2003-187, 1 p. 5 51 N.H. at 14-15. We threw a pack of cigarettes later found to contain marijuana onto the floor of a 5

evidence at trial. Accordingly, we affirm his conviction.

elements of the “removes” variant of the offense, for which there was ample concealed the key in his shoe does not prevent his conduct from satisfying the “removes” variant of RSA 641:6. Nevertheless, that the defendant may have

distinct, alternative method of committing the offense.” transaction provided it seeks a single conviction and each charge alleges a multiple charges which constitute the same offense based on a single act or BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

N.H. 673, 676 (2000). The State here chose to indict the defendant only on the

variants of RSA 641:6 and, thus, the State may “simultaneously prosecute A single act, however, may theoretically constitute one or more of the