2008-664, STATE OF NEW HAMPSHIRE v. RONALD MCKEOWN

indictments alleged that, on February 20, 1996, when he was sixteen years old,

Fauver

632-A:4 (1996) (currently codified as RSA 632-A:4, I(a) (Supp. 2008)). Both defendant pled guilty to two counts of misdemeanor sexual assault. See RSA The record evidences the following facts. On April 15, 1997, the

RSA 651-B:4 (2007), :5 (Supp. 2008) (amended 2007). We affirm. indictments against him for felony failure to report as a sexual offender. See J.) granting the motion of the defendant, Ronald McKeown, to dismiss two DALIANIS, J. The State appeals an order of the Superior Court (,

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

on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, 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. 2008-664 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 listed in RSA 651-B:1, III . . . shall be registered for life.”

p. 2 dismissed. The trial court agreed, and this appeal followed.

who is required to register as a result of a violation of more than one offense 651-B:1, VII(a) (2007). Pursuant to RSA 651-B:6, III, “any sexual offender . . . charged with an [enumerated] offense . . . that resulted in . . . conviction.” RSA

had already expired, the indictments failed to allege a crime and had to be because he was required to register for only ten years, and because this period assault convictions arose from a single criminal episode. He contended that

the overall statutory scheme and not in isolation.

policy sought to be advanced by the entire statutory scheme.

651-B:1, III(a); RSA 632-A:4, I(a). A person is “required to register” if he “was plain language of the statute to determine legislative intent. to promote justice.” RSA 625:3 (2007). In doing so, we must first look to the enumerated crimes. Misdemeanor sexual assault is one such crime. See RSA required to register as a result of any violation or attempted violation of” certain a statute considered as a whole. RSA 651-B:1, III(a) (2007) defines a sexual offender as “a person who is registration requirement did not apply to him because his misdemeanor sexual

interpretation of a statute is a question of law, which we decide 158 N.H. 511, 515 (2009). Accordingly, we interpret a statute in the context of

statutes in light of the legislature’s intent in enacting them, and in light of the language of the statute to discern legislative intent. Id. Our goal is to apply 158 N.H. 114, 116 (2008). Absent an ambiguity we will not look beyond the

We construe the Criminal Code “according to the fair import of [its] terms and

are the final arbiter of the intent of the legislature as expressed in the words of defendant moved to dismiss the indictments on the ground that the lifetime v. Brown, 155 N.H. 590, 591 (2007). In matters of statutory interpretation, we B:1, III or RSA 651-B:1, V.” RSA 651-B:6, III (2007) (amended 2008). The de novo. State register “as a result of a violation of more than one offense listed in RSA 651- dispute requires that we interpret pertinent Criminal Code provisions. The register as a sexual offender for life, or only for ten years. Resolving this as a sexual offender. On appeal, the parties dispute whether the defendant was required to

2006, 2008) was amended to require lifetime registration by certain sexual registration period, however, RSA 651-B:6, III (Supp. 2004) (amended 2005, register as a sexual offender for ten years. During the course of this

mandated lifetime registration for any sexual offender who was required to

In 2007, the defendant was charged with two counts of failing to report

See Laws 1999, 177:5.

victim. Pursuant to RSA 651-B:6, II (1998), the defendant was required to the defendant purposely engaged in sexual contact with the fifteen-year-old and sets minimum standards for State programs.”

p. 3 registration programs explain:

at least one required by the Act . . . , and (2) the offender has a such offenders.

enforcement funding on the States’ adoption of sex offender registration laws Sexually Violent Offender Registration Act (Act) “conditions certain Federal law amended.” Passed in 1994, the Jacob Wetterling Crimes Against Children and of Justice regarding the Act’s interpretation and application for state § 14071(b)(6)(B)(i) (2006). Guidelines issued by the United States Department person “has 1 or more prior convictions for [a qualifying] offense.” 42 U.S.C. is no time limit under the Act on qualifying offense.

prior qualifying conviction in addition to the current qualifying

guidelines, the lifetime registration requirement applies to individuals who have satisfied: (1) the current offense is one for which registration is legislative intent that the lifetime registration requirement does not apply to Reg. 572, 582 (January 5, 1999) (emphasis added). Under these federal He contends that we must, therefore, consult legislative history, which evinces Children and Sexually Violent Offender Registration Act, as Amended, 64 Fed. applied to him because his convictions arose from a single criminal episode. Megan’s Law; Final Guidelines for the Jacob Wetterling Crimes Against

criminal records. states may rely on the methods they normally use in searching applied consistent with the provisions of the federal Jacob Wetterling Act, as determining whether a person has a qualifying prior conviction,

offense against a victim who is a minor is required to register for life if that for an offense for which registration is required by the Act. There

offenders to register for life where the following conditions are recidivists. States can comply with this provision by requiring Subsection (b)(6)(B)(i) requires lifetime registration for certain phrase “as a result of a violation of more than one offense” is ambiguous when

“Whenever possible, the provisions of this chapter shall be interpreted and

Tracking and Identification Act of 1996, a person who is convicted of a criminal Pursuant to the Act, as amended by the Pam Lychner Sexual Offender

89-90 (2003).

offense and, thus, must register for life. The defendant counters that the

As misdemeanor sexual assault is an enumerated offense,

RSA 651-B:12 (2007) resolves this issue. RSA 651-B:12 provides:

the State contends that the defendant violated “more than one” qualifying

the defendant because he was twice convicted of misdemeanor sexual assault. The State argues that by its plain language, RSA 651-B:6, III applies to the statute as it sees fit.

p. 4 legislature did not intend this interpretation, it is free to amend the language of sexual offender, I would reverse the order of the superior court. 4

legislative intent.”

defendant’s motion to dismiss the indictments against him. Of course, if the episode. We hold, therefore, that the trial court did not err when it granted the language of RSA 651-B:6, III subjects the defendant to lifetime registration as a misdemeanor sexual assault convictions arising from the same criminal

and unambiguous, we need not look beyond [it] for further indications of N.H. 638, 643 (1999) (quotation omitted). “When a statute’s language is plain ascribe the plain and ordinary meanings to words used.” State v. Cobb, 143 we first examine the language found in the statute and where possible, we Brown, 155 N.H. 590, 591 (2007). “When construing the meaning of a statute, We review the trial court’s statutory interpretation de novo. State v.

DUGGAN, J, dissenting. Because I would conclude that the plain registration requirement does not apply when, as here, the defendant has two J., dissented. BRODERICK, C.J., and HICKS and CONBOY, JJ., concurred; DUGGAN, unjust result); RSA 625:3 (Criminal Code construed to promote justice).

Taking all of the above into consideration, we conclude that the lifetime

construe all parts of a statute together to effectuate its purpose and avoid an omitted); see State v. Gubitosi, 157 N.H. 720, 724 (2008) (explaining, we injust . . . result.” State v. Roger M., 121 N.H. 19, 21-22 (1981) (quotation been settled here that our court will not interpret a statute so as to produce an misdemeanor sexual assault convictions arising from a single criminal episode. defendant with multiple offenses arising out of a single event). “It has long the phrase “more than one offense” is not intended to apply to two Rayes, 142 N.H. 496, 500 (1997) (State has broad discretion when charging a multiple touches of the same victim in a single criminal episode. See State v. registration requirement by charging a defendant with multiple offenses for results, giving prosecutors nearly unfettered discretion to impose the lifetime We observe as well that the State’s interpretation could lead to unjust

episode). defendant who sexually assaulted two victims in one simultaneous criminal “previously convicted of 2 or more offenses” was not intended to apply to a Cf. State v. Gordon, 148 N.H. 710, 714-15 (2003) (concluding that the phrase

federal Jacob Wetterling Act, as amended,” RSA 651-B:12, we conclude that Interpreting RSA 651-B:6, III “consistent with the provisions of the applied consistent with the provisions of the federal Jacob Wetterling Act, as

p. 5 specific crimes triggers the lifetime registration requirement.

“Whenever possible, the provisions of this chapter shall be interpreted and

the statute and that a “violation” or conviction of more than one of these

convictions in the same adjudication.

arise from different criminal episodes like the statute in

citing

RSA 651-B:12 (2007) does not change this result. It provides:

not trigger the lifetime registration requirement. episodes.

that, as used in RSA 651-B:1, III, “offense” refers to the list of specific crimes in sequentially as the word “previously” did in those cases. I agree with the State imposition of a mandatory life sentence where the defendant received three “more than one offense” does not imply the need for the violations to occur

separated in time. The language also does not suggest that the offenses must convicted” that would require the qualifying offenses to be sequential or be registered for life.” RSA 651-B:6, III does not contain any language comparable to “previously result of a violation of more than one offense listed in RSA 651-B:1, III . . . shall demonstrates the legislature’s intent that the law apply to repeat offenders, Neither of those analyses applies here. Unlike the statute in Petition,

Gordon, 148 N.H. at 716.

intent that two or more convictions arising out of a single criminal episode do or more offenses” required that prior convictions stem from separate criminal not. Id. at 191. Similarly, in Gordon, we held that “previously convicted of two

“previously convicted of 2 or more offenses” in RSA 632-A:10-a, III required the Gordon, 148 N.H. 710 (2002). In Petition, we considered whether the phrase Petition of State of New Hampshire, 152 N.H. 185 (2005), and State v.

RSA 651-B:6, III, “any sexual offender . . . who is required to register as a Specifically, the defendant argues that the use of the word “offense”

required to register as a result of correctly ruled that the language and history of the statute evince a legislative to register as a sexual offender. The defendant argues that the trial court the defendant because each violation of RSA 632-A:4 gives rise to an obligation The State argues that by its plain language, RSA 651-B:6, III applies to

this chapter that resulted in . . . conviction.” RSA 651-B:1, VII(a). Pursuant to person is “required to register” if he “was charged with an offense . . . listed in specified statutory offenses, including sexual assault. (Emphasis added.) A

RSA 651-B:1, III (2007) defines a sexual offender as “a person who is

Spectacular, 138 N.H. 298, 300 (1994) (quotation omitted). add words which the lawmakers did not see fit to include.” Appeal of Astro omitted). “Courts can neither ignore the plain language of the legislation nor p. 6 6

different from that in

possible.” Here, because the legislature has chosen to use language markedly

another without adding words to the statute, which we are not permitted to do.

of Sexual Offenders, consistently with the federal act only “[w]henever

in both is similar to the “previously convicted” language in the statutes we interpreted Accordingly, I respectfully dissent. § 14071(b)( p. 6 6)(B)(i) (2006). By its reference to “prior convictions,” the federal act

to interpret RSA p. 6 651-B:6, III to require that one conviction temporally precede

RSA p. 6 651-B:12 requires us to interpret RSA chapter 651-B, Registration

in sequence. Gordon and Petition where we held that the qualifying offenses must be

person “has 1 or more prior convictions for [a qualifying] offense.” 42 U.S.C. amended.” Under the Act, as amended, lifetime registration is required if the