2009-015, State of New Hampshire v. Randy Riendeau

The defendant, Randy Riendeau, was found guilty of one

the defendant. brief, and Lisa L. Wolford, assistant appellate defender, of Concord, orally, for Christopher M. Johnson, chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Stephen D. Fuller, senior assistant 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. 2009-015 editorial errors in order that corrections may be made before the opinion goes Sullivan 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 p. 2 Forward was driving and the defendant was her passenger. the defendant had driven in the Speedway parking lot, which falls within the

racetrack staff and of a police officer patrolling the grounds. of it. Forward and the defendant then left the racetrack as they had come: permitted at the racetrack, the defendant’s actions drew the attention of the therefore, the surface he drove on was not a “way.” The State contended that

dispatch.

Hallock saw the car proceed through the parking lot area before they lost sight spinning the tires to produce a smoke cloud. Because smoke shows are not short distance before radioing Captain Colby Casey for assistance. Baker and defendant had limited his driving to a staging area of the Speedway track, and, the pit and into the parking lot. Officer Hallock pursued the car on foot for a offender, and to his knowledge of that status. The defense argued that the and information regarding the defendant’s habitual offender status provided by arrested the defendant based upon the information provided by Officer Hallock passenger, the defendant, appeared intoxicated and smelled of alcohol. He

constitutes a “way.” The defendant objected, arguing that because the State

the defendant returned to the pit area, where he created a “smoke show” by the pit and onto the track, where he participated in the race. After the race, responded to the smoke show on foot, the defendant began to drive away from At trial, the defense stipulated to the defendant’s status as an habitual race,” a race open to non-professional drivers. The defendant drove the car to “knowingly” applied only to the defendant’s status as an habitual offender. stopped it about a quarter mile from the racetrack. He noted that the court granted the State’s motion in limine, concluding that the mens rea of “knowingly” as to the “way” element of the habitual offender charge. The trial

any witness’s subjective belief as to whether the Speedway’s parking lot Prior to trial, the State filed a motion in limine to exclude all testimony of

of the car, Baker left to find a police officer. As Officer Shawn Hallock parking lot, but subsequently permitted the defendant to drive it in a “spectator

Captain Casey, driving a cruiser, caught up with the Mustang and

speech, and that he smelled of alcohol. When the defendant refused to get out offender whose license had been revoked. Forward parked the Mustang in the noted that the defendant’s eyes were bloodshot, that he appeared to slur his because she was a licensed driver, whereas the defendant was an habitual and asked the defendant to turn off the car and give him the keys. Baker Speedway in Claremont. Forward drove their vehicle, a rented 2007 Mustang, Pit director Gary Baker approached the Mustang during the smoke show

defendant accompanied his fiancée, Robyn Forward, to the Twin State The record evidences the following facts. On August 31, 2007, the parking of motor vehicles.

p. 3 paying customers. “Parking lot” is defined as an area used for the

driving is, in fact, a way under New Hampshire law. existence of a way, that the surface upon which the defendant was of proof. The State need only satisfy you with respect to the private parking lot which is maintained primarily for the benefit of the habitual offender charge, in pertinent part, as a public or was driving was, in fact, a way. “Way” is defined, for purposes of

an element of the charge of driving while intoxicated. . . . by New Hampshire law as a way for the State to satisfy its burden

need consider is whether the surface upon which the defendant Riendeau, drove a motor vehicle and that he did so on a way. prove, beyond a reasonable doubt that the defendant, Randy way. [ offense in light of the parties’ stipulation. Thus, the State must

offender.

habitual offender and Mr. Riendeau’s intent or mental state is not to know that the vehicle he is driving is on a surface that is defined charge of operating a motor vehicle after being certified as a stipulated as to this element of the offense with respect to the in a manner consistent with a way, as defined by the law. All you defendant intended to use the surface upon which he was driving motor vehicle on a surface that you qualified under the law as a The State, further, is not required to prove that the multiple elements. You need only consider two elements of this

upon the ways of New Hampshire, having been certified a habitual Riendeau knew he was prohibited from operating a motor vehicle stipulated as to the other elements of this offense, namely that Mr. of his status as a habitual offender. The defendant does not have was aware he was driving a motor vehicle and that [he] was aware however, Mr. Riendeau’s intent is not an issue as the parties have to the actual operation of the vehicle; that is, that the defendant sic] The State is required to prove the knowing element only

The State is not required to prove that the defendant drove a after having been certified as a motor vehicle habitual offender has

The parties, as I have previously advised you, have

state is something that you would have to decide. In these cases,

The definition of the crime . . . of operating a motor vehicle

Normally, the matter of intention or the defendant’s mental

ruling on the motion in limine, stated in pertinent part: legal definition of a “way.” The court’s jury instructions, consistent with its an element of such offense, unless the law so provides.” RSA 626:2, V. “When

p. 4 thus does not specify any

recklessness nor negligence as to whether conduct constitutes an offense . . . is

the offense.” RSA 626:2, I (2007). However, “[n]either knowledge nor or negligently, as the law may require, with respect to each material element of law requires proof that a person acted either “purposely, knowingly, recklessly

does not mean that the statute is necessarily unenforceable.”

person to drive any motor vehicle on the ways of this state while an order of the

the statute to determine legislative intent.”

132 N.H. 451, 457 (1989). To support conviction for a felony, New Hampshire

legislature to provide for the specific culpable mental state required for a crime

who travel the ways of the state.

RSA 262:23, I (Supp. 2009) provides that “[i]t shall be unlawful for any

terms and to promote justice. In doing so, we look first to the plain language of is to construe Criminal Code provisions according to the fair import of their the legislature as expressed in the words of a statute as a whole. Id. “Our task the defendant’s mental state involved in the DWI charge. McMillan, 158 N.H. 753, 757 (2009). We are the final arbiter of the intent of We consider issues of statutory interpretation de novo. State v.

statute because it would place the risk posed by habitual offenders upon those area he was driving on was a “way.” He asserts that the State must prove the rea requirement to the “way” element would contravene the purpose of the motion defendant’s status as an habitual offender. It argues that to apply the mens to which the mens rea of “knowingly” has been applied by this court is the The State responds that the only element of the habitual offender charge

state of “knowingly” to the “way” element. purposes underlying the habitual offender statute justify applying the mental exclusively on this issue. We therefore deem waived any argument regarding offense to which a mens rea must apply; and second, because the policies and for two reasons: first, because the “way” element is a material element of the court’s ruling on the motion mens rea of “knowingly” as to the “way” element of the habitual offender charge

offender statute as not requiring the State to prove the defendant knew that the in limine and in its jury instructions, when it interpreted the habitual The defendant argues that the trial court erred, both in its ruling on the

deemed waived). Blackmer, 149 N.H. 47, 49 (2003) (issues not fully briefed for review are

relate[d] to the habitual offender charge only.” The parties’ briefs also focus

certification as an habitual offender and driving while intoxicated, the trial We note that, although the defendant was charged with both driving after habitual offender. p. 5 (3) that the defendant did so with knowledge of his status as an

operated a vehicle while the habitual offender prohibition was still in effect.”

conduct.” “The primary purpose of the habitual offender statute is to foster vehicle was in force; (2) that the defendant drove a motor vehicle definition of the offense, or (2) any justification or excuse for the prescribed habitual offender order barring the defendant from driving a motor matter similarly unrelated to (1) the harm sought to be prevented by the his status as an habitual offender. habitual offender requires proof of three elements: (1) that an of driving after certification, including Baker, is the defendant’s knowledge of The only element to which we applied the mental state of “knowingly” in cases Gauntt, 154 N.H. 204, 207 (2006); State v. LeBaron, 148 N.H. 226, 229 (2002). State v. Crotty, 134 N.H. 706, 710 (1991) (citations omitted); see also State v.

to all material elements, RSA 626:2, I, or, in other words, that he knowingly

“knowingly” exclusively to the statute of limitations, jurisdiction, venue or to any other to argue that the materiality of the “way” element requires application of the A conviction on the charge of operation after certification as an element of the offense, we do not agree with either of the two rationales he uses elements of the habitual offender charge. Id. This formulation is consistent with our repeated articulation of the

prove that the defendant acted knowingly, the State had to prove knowledge as However, that quotation is only half of a sentence which reads in full: “To acted knowingly, the State had to prove knowledge as to all material elements.” from State v. Baker, 135 N.H. 447, 449 (1992): “To prove that the defendant

mens rea. First, the defendant relies upon the following statement

defines “material element of an offense” as “an element that does not relate While we agree with the defendant that the “way” element is a material

element” of the habitual offender charge. definition of the offense,” and we accordingly conclude that it is a “material element therefore is directly related to “the harm sought to be prevented by the in question.” nature of the offense and the policy considerations for punishing the conduct State v. Dean, 115 N.H. 520, 524 (1975). The “way”

(1993) (“culpability applies only to material elements”). RSA 625:11, IV (2007) the habitual offender charge. See, e.g., State v. Demmons, 137 N.H. 716, 719 We first determine whether the “way” element is a “material element” of

Stratton, 132 N.H. at 457.

prove the existence of the mental state which is appropriate in light of the the culpable state of mind has been omitted from a statute, the State must question.” p. 6 the offense and the policy considerations for punishing the conduct in

proof of a culpable mental state which is appropriate in light of the nature of

mental state is not provided for the offense, we read RSA 626:2, I, as requiring our result. Rather, we apply our well-settled precedent: “Where a specific mental state to the several elements defining a single crime” does not dictate

statutorily required acts of her administrative agencies; and

subdivisions and to impose increased and added deprivation of as embodying “a general principle favoring consistency in the application of a

disrespect for the laws of the state, the orders of her court and the element would be contrary to the purpose of the statute. their indifference for the safety and welfare of others and their

against the peace and dignity of the state and her political is sufficient for its commission. The defendant’s attempt to read this provision III. To discourage repetition of criminal acts by individuals offense at issue, RSA 262:23, I, does not prescribe the kind of culpability that appears.” This provision is inapplicable on its face, since the law defining the

that to impose the requirement of the “knowingly” mental state to the “way” to persons who by their conduct and record have demonstrated culpable mental state applicable to the “way” element. We agree with the State II. To deny the privilege of driving motor vehicles on such ways defendant, on the other hand, argues that “knowingly” is the appropriate otherwise use the ways of the state; and

for punishing the conduct in question.” It is hereby declared to be the policy of New Hampshire:

statute in RSA 262:18 (2004), which provides: shall apply to all the material elements, unless a contrary purpose plainly N.H. at 760. The legislature has expressed the purpose of the habitual offender

best served by declining to require any mental state for the “way” element. The (1983). The State asserts that the purposes of the habitual offender statute are

appropriate in light of the nature of p. 6 the offense and the policy considerations Accordingly, we must determine the “culpable mental state which is

ellipsis omitted). without distinguishing among the material elements thereof, such culpability State v. Ayer, 136 N.H. 191, 193 (1992) (quotations, brackets and offense prescribes the kind of culpability that is sufficient for its commission, offense. RSA 626:2, I, provides in pertinent part, “When the law defining an

requires application of the same mental state to all material elements of this Similarly unavailing is the defendant’s assertion that RSA 626:2, I, we have required proof of the

262:23.” a lesser-included offense to operating as an habitual offender under RSA instruction.” unsustainable exercise of discretion to refuse the defendant’s requested

habitual offender who knows that he is driving on a “way.” “way” or elsewhere, and argues that such reflects a legislative intent to more prohibits driving without regard as to whether the driving takes place on a or revocation requires proof: (1) that the defendant’s license to 2009) does not alter our analysis. The defendant points out that RSA 263:64 Conviction of the misdemeanor offense of driving after suspension

State v. Moses, 128 N.H. 61 p. 7 7, 621 (1986).

“[D]riving after suspension or revocation under RSA 263:64 is related as

(quotation and citation omitted)). “We therefore cannot conclude it was an status element, we should do the same for the “way” element. We disagree.

definition of a “way,” creates the same risk sought to be prevented as an

offense of driving after suspension or revocation codified at RSA 263:64 (Supp. The defendant’s comparison of the habitual offender offense to the lesser such a result.”

McMillan, 158 N.H. at p. 7 761. of the State.”

habitual offender places a motor vehicle . . . in motion on the highway.” Osgood, 135 N.H. 436, 438 (1992) (“The danger to the public occurs when an

turf, but who is in fact driving on a road surface that falls within the statutory Simply put, an habitual offender who believes himself to be driving on private enacted to promote maximum safety on this State’s roadways”); or not the defendant knows that the surface on which he is driving is a “way.”

Id. This is because the risk to the public is the same whether

ignore the purpose of the statute. We do not believe the legislature intended it as a way or not. Cf. McMillan, 158 N.H. at p. 7 761. “To hold otherwise would statute is to foster safety by removing irresponsible drivers from the highways driving on a way of this State at any time, regardless of whether he recognizes This purpose is achieved only if the habitual offender is prohibited from

offender”). removing from the highways an operator who is a dangerous and persistent upon an habitual offender is primarily for the protection of the public in 118 N.H. 8 p. 7 74, 878 (1978) (same); Dean, 115 N.H. at 524 (“the penalty imposed

(describing the habitual offender statute, in part, as “part of a statutory scheme citations omitted); see also State v. Canney, 132 N.H. 189, 192 (1989)

State v. O’Brien, 132 N.H. 58 p. 7 7, 592 (1989) (quotations and

Thus, we have stated that “[t]he primary purpose of the habitual offender

have been convicted repeatedly of violations of traffic laws. the privilege to drive motor vehicles upon habitual offenders who an habitual offender defendant, rather than the public, to bear the risk that the

p. 8 asserting that they were unaware that they were driving on a “way.” Requiring

indifference for the safety and welfare of others” to elude punishment by To find otherwise would permit defendants who have “demonstrated their welfare of others and their disrespect for the laws of the state.” RSA 262:18, II.

conduct and record have demonstrated their indifference for the safety and

is barred from driving a motor vehicle on the ways of this state.

privilege of driving motor vehicles on such ways to persons who by their further supported by the second stated purpose of the statute: “To deny the of the defendant’s awareness of his presence on a “way.” Our interpretation is (the “way” element). driving on a surface where the public has a greater likelihood of being injured

cannot be deterred from an activity he is unaware that he is undertaking. has been held an habitual offender and by reason of such holding

the statute as prohibiting the action itself — driving on a “way” — irrespective (quotations and citations omitted). This purpose is best served by interpreting penalty upon a finding of recidivism (the habitual offender certification) and irresponsible drivers from the highways of the State.” O’Brien, 132 N.H. at 592 “primary purpose of the habitual offender statute is to foster safety by removing stated purposes of the habitual offender statute, see RSA 262:18, the first and Aldrich, 124 N.H. at 49. However, while deterrence is the third of the three

offenders from driving on the ways of the state. We agree that a defendant before hearing such charge shall determine whether such person the “knowingly” mens rea to the “way” element would serve to deter habitual We remain unpersuaded by the defendant’s argument that application of

RSA 263:64. Moreover, RSA 262:23 provides that:

revocation,” Thus, the legislature has mandated that a defendant is subject to a greater

revocation, or the greater status of certification as an habitual offender. to the status element, be it the lesser status of license suspension or

or revoked, or is charged with driving without a license, the court vehicle while his license, permit or privilege to drive is suspended license to drive. in any case in which the accused is charged with driving a motor did so with knowledge of the revocation or suspension of his

terrain in the state, regardless of its status as a way or not, is in violation of

Moses, 128 N.H. at 621, an habitual offender who drives on any

“Because an habitual offender order not to drive is a form of judicial

“Thus, both the greater and lesser offenses have a knowledge requirement” as State v. Watkins, 148 N.H. 760, 766 (2002) (quotations and citation omitted).

a motor vehicle after such suspension; and (3) that the defendant drive had been suspended or revoked; (2) that the defendant drove discretion. p. 9 charge was accurate, and did not constitute an unsustainable exercise of defendant was driving is, in fact, a way under New Hampshire law.” This

instructions required that the State establish “that the surface upon which the

did in fact drive on a “way” as defined by the statute. The trial court’s jury “way”; as to the “way” element, the State need prove only that the defendant 262:23 does not require that a defendant recognize that he is driving on a

parking lot. His alternative argument is moot because we hold today that RSA

lack of evidence to support the jury’s implicit finding that he drove on a

first argument presents a question of fact, and the defendant does not assert a was his understanding of the character of the surface on which he drove. His track’s staging area rather than a parking lot, and in the alternative, that such

RSA 259:125, I (Supp. 2009). The defendant argues that he drove on the race

BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

the benefit of paying customers,” fitting the statutory definition of a “way.” he drove was a “public or private parking lot which is maintained primarily for therefore centered upon his ignorance of fact; that is, that the surface on which

“[i]gnorance of the law is no excuse.” versus ignorance of fact, can be addressed briefly. It is well-established that

statute as not requiring proof of a prohibited under RSA 263:64). We accordingly conclude that interpreting the

II (2007) (effect of mistake of law). The defendant’s arguments throughout have

The defendant’s remaining argument, concerning ignorance of the law

the aims of the statute.

discourage such a defendant from operating a motor vehicle at all (as is surface on which the defendant is driving constitutes a “way” also serves to