2009-824, John Doe v. New Hampshire Department of Safety

The respondent, New Hampshire Department of Safety

general, on the brief and orally), for the respondent. Michael A. Delaney, attorney general (David M. Hilts, assistant attorney

Marcia A. B. Thunberg, of Concord, by brief and orally, for the petitioner. to press. Errors may be reported by E-mail at the following address:

NEW HAMPSHIRE DEPARTMENT OF SAFETY

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

No. 2009-824 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 reasonably equivalent offense. This appeal followed.

p. 2 victim” in determining that aggravated felonious sexual assault was the

reviewed the underlying facts of his conviction in making its determination. DOS that he was required to register for life. DOS indicated that it had interview . . . in which [Doe] admitted that he had digitally penetrated the The trial court ruled that DOS erred when it “used a transcript of a police DOS’s ruling and concluded that he was required to register for only ten years.

light most favorable to the nonmoving party.

years, so he sought clarification. In July 2007, Doe received confirmation from as a matter of law, we will affirm the trial court’s decision. filed a petition for declaratory judgment in the trial court, which reversed

affidavits and other evidence and all inferences properly drawn therefrom in the

trial court’s application of law to the facts de novo. Id. registration forms indicating, however, that he was required to register for ten Id. We review the was his reasonably equivalent New Hampshire offense. He continued to receive any genuine issue of material fact, and the moving party is entitled to judgment must register annually for life,” and that aggravated felonious sexual assault interviewed by the police” when he pleaded guilty in Maine in 1991. Doe then Assoc., 158 N.H. 373, 375 (2009). If our review of the evidence fails to reveal

In reviewing a trial court’s summary judgment ruling, we consider the

“after reviewing your out of state conviction it has been determined that you the[ ] offenses, and the fact [that Doe] admitted to penetrating his victim when examiner stated that “[t]his determination was made based on the elements of was required to register for life. Specifically, the report of the hearings Doe sought review by DOS, which held a hearing and confirmed that he

statute was reasonably equivalent to misdemeanor sexual assault,

Hampshire statute is “reasonably equivalent” to the other jurisdiction’s statute. required to register depends upon DOS’s determination as to which New In 2003, Doe received notice from his local police department stating,

See RSA 651-B:1, VIII(a) (Supp. 2009); RSA 651-B:6, II. 632-A:4 (Supp. 2009), the offender would be required to register for ten years.

(Supp. 2009); RSA 651-B:6, I. If, however, it determined that the out-of-state 2009), the offender would be required to register for life. See RSA 651-B:1, X(a) equivalent to aggravated felonious sexual assault, see RSA 632-A:2 (Supp. out-of-state statute under which the offender was convicted was reasonably See RSA ch. 651-B (Supp. 2009). For example, if DOS determined that the

Hampshire resident convicted in another jurisdiction of a sexual offense is Laws 1996, ch. 293. Under the new scheme, the period of time that a New In 1996, the legislature amended the applicable statutory scheme. See

1996). He registered each subsequent year as required. in New Hampshire for ten years. See RSA 632-A:11-:19 (Supp. 1993) (repealed statute[ ].”

p. 3 necessarily exactly the same as the elements of the [New Hampshire]

respect to whether DOS relied upon Doe’s admission in the interview. of the elements of the law of the other jurisdiction shall be analogous but not further specifies that, in order to be deemed reasonably equivalent, “[t]he text Hampshire statute to the elements of the other jurisdiction’s statute.” It

erred in concluding that there were no genuine issues of material fact with

New Hampshire law “by making a comparison of the elements of the New

the information it had available at the time, we cannot say that the trial court details regarding the point at which DOS made the relevant determination and his victim when interviewed by the police.” While the parties may dispute the whether a law of another jurisdiction is reasonably equivalent” to a particular and unambiguous on its face.”

regulation and with the purpose which the regulation is intended to serve.” 3

the elements of the[ ] offenses, and the fact [that Doe] admitted to penetrating Administrative Rules, Saf-C 5502.01(c) provides that DOS “shall determine requirements . . . through the mere expedient of interpreting a rule that is clear determine which statutes are equivalent. jurisdiction’s statute.” “[W]e will not permit an agency to add or delete We disagree. New Hampshire elements of the New Hampshire statute to the elements of the other

interpretation to determine if it is consistent with the language of the

342, 346-47 (1996) (quotation and citation omitted). Here, the rule words used.” Milette v. N.H. Retirement System, 141 N.H.

the hearings examiner stated that DOS’s determination “was made based on “relied on the interview transcript” in making its determination. The report of B may require the department to look beyond the elements of an offense to digitally penetrating the victim’s vagina.” DOS concedes in its brief that it Under Saf-C 5502.01(c), DOS is limited to “making a comparison of the

(quotation omitted).

its regulations, that deference is not total. We still must examine the agency’s in segments. Id. “While deference is accorded to an agency’s interpretation of

Id. (quotation omitted). We look at the rule as a whole, and not

statutes, where possible, we ascribe the plain and ordinary meaning to the Murdock, 156 N.H. 732, 735 (2008). “In construing rules, as in construing We review the interpretation of administrative rules de novo. Appeal of such reliance is permissible because other provisions within RSA chapter 651including a transcript of [Doe’s] audiotaped interview” in which he “admitted to N.H. Admin. Rules, Saf-C 5502.01(c).

Alternatively, DOS argues that even if it did rely upon the interview, any the later notice from DOS specified that DOS “reviewed the police reports . . . his local police department did not specify how the determination was made, unsupported by the record. We disagree. While Doe’s first notice in 2003 from

police interview transcript in making its equivalency determination is DOS first argues that the trial court’s finding that it relied upon the resist.” RSA 632-A:2, I(b). p. 4 a variety of circumstances, including when “the victim is physically helpless to sexual assault if he “engages in sexual penetration with another person” under

consent. Under New Hampshire law, a person is guilty of aggravated felonious

bodily injury or offensive contact.

the elements under the Maine statute required (1) a sexual act with another consented to the sexual act.” Me. Rev. Stat. Ann. tit. 17-A, § 253(2)(D). Thus, arousing or gratifying sexual desire or for the purpose of causing by another person when that act is done for the purpose of genitals or anus of one and an instrument or device manipulated

direct physical contact between the genitals of one and the genitals “sexual penetration” is substantially similar to Maine’s definition of “sexual between the genitals of one and the mouth or anus of the other, or

unconscious or otherwise physically incapable of resisting and has not

of the victim’s body.” RSA 632-A:1, V (Supp. 2009). (3) Any act involving direct physical contact between the emissions, of any object manipulated by the actor into genital or anal openings . . .

therefore “reasonably equivalent” because New Hampshire’s definition of (1) Any act between 2 persons involving direct physical contact does not. DOS contends, however, that the elements are still “analogous” and engages in a sexual act with another person and . . . [t]he other person is the element of sexual penetration, in contrast to gross sexual assault, which “Sexual act” means statute provided that “[a] person is guilty of gross sexual assault if that person to aggravated felonious sexual assault. When Doe was convicted, the Maine

“[a]ny intrusion, however slight, of any part of the actor’s body, including “Sexual penetration” means, among other things, cunnilingus, fellatio or

Comparing the two statutes, aggravated felonious sexual assault requires

the Maine statute under which Doe was convicted is still reasonably equivalent

considering evidence such as the recorded police interview.

Finally, DOS argues that, even without consideration of the interview,

statutes. DOS cannot add requirements to its equivalency determination by unambiguously provides that DOS must compare the elements of the two this question is “no,” the offenses are not “equivalent.” p. 5 offense” for sentencing enhancement purposes. If the answer to the answer to this question is “yes,” the offense is an “equivalent

necessarily sustain a conviction under the home state’s statute. If

offense.”

conviction for the out-of-state jurisdiction’s offense would

whether offenses are reasonably equivalent for the purposes of sentencing. Id. at 710 (citations omitted). offender registration.

that the statutes were not reasonably equivalent. legislature nor this court has defined what constitutes a reasonably equivalent tit. 17-A, § 251(C) cmt. DUI offense. [O]ne common factor is whether the evidence required to sustain a

at 709. In elaborating upon the tests applied in other jurisdictions, we stated: penetration. Id. sexual penetration can be met in New Hampshire without proof of actual 5502.01(c) was consistent with tests applied in other jurisdictions to determine definitions are analogous. In addition, it is well-settled that the element of Id. at 709-10. We further concluded that Saf-C DOS had defined the term under its administrative rules in the context of sex

Id. at 709 (quotation omitted). We found persuasive, however, that

same, they are analogous, and, accordingly, the trial court erred in concluding equivalent offenses, we noted that, for sentencing purposes, “[n]either the contact in the case of sodomy, fellatio, and cunnilingus.” Me. Rev. Stat. Ann. Id. at 708. In holding that OUI and DUI were, in fact, reasonably conviction, arguing that it was not reasonably equivalent to the New Hampshire trial court’s denial of his motion to exclude evidence of his Massachusetts operating under the influence of intoxicating liquor (OUI). Id. He appealed the N.H. at 707. One of his three offenses was a Massachusetts conviction for convicted of driving under the influence of liquor (DUI), third offense. Hull, 149 (2003), requires a different result in this case. In Hull, the defendant was penetration includes fellatio and cunnilingus, supporting the inference that the Doe argues that our analysis in State v. Hull, 149 N.H. 706, 708-10

actual penetration . . . .”). Thus, although the elements are not exactly the [prior] law requiring some penetration, and serves to permit a conviction upon ‘sexual penetration’ for purposes of the statute, whether or not it involves 823, 824, 826 (1996) (“Whatever its commonly accepted meaning, . . . fellatio is nowhere does the statute define the term “penetration.” cunnilingus does not require actual penetration.”); State v. Melcher, 140 N.H.

See, e.g., State v. Mason, 150 N.H. 53, 57 (2003) (“The act of

As noted above, New Hampshire’s statutory definition of sexual

states that “[t]he definition of ‘sexual act’ . . . [ha]s broader coverage than the

sexual act may be proved without allegation or proof of penetration,” but Me. Rev. Stat. Ann. tit. 17-A, § 251(C). The definition further provides that “[a] p. 6 6

decline to extend our reasoning in is not relevant to the purpose of sex offender registration. Accordingly, we

convicted sex offenders.

A:2, I(b) may be relevant in the context of sentencing for subsequent offenses, it

share information regarding the whereabouts and levels of dangerousness of

jurisdiction’s conviction would necessarily sustain a conviction under RSA p. 6 632-

BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred. purpose of providing a means for law enforcement agencies in this State to provision. Unlike sentencing, sex offender registration has the administrative Reversed.

registration.

considering whether the evidence required to sustain the out-of-state

in that case pertained to equivalency under RSA 2 p. 6 65:82-b, II, a sentencing Hull required us neither to construe nor apply Saf-C 5502.01(c). Our holding Id. at 707, 708-09 (quotation and emphasis omitted). The issue before us in those that were “reasonably equivalent offenses in an out-of-state jurisdiction.” imposed an enhanced sentence for subsequent DUI convictions, including statutory interpretation of RSA 265:82-b, II (2004) (repealed 2006), which As the State aptly points out, however, Hull involved a question of