2009-624, State of New Hampshire v. Timothy Spade

Michael A. Delaney

No. 2009-624 Hillsborough-northern judicial district

by an inmate on a corrections staff member in violation of RSA 642:9, II. Three of Correction, the defendant was indicted on six counts of aggravated assault (Abramson otherwise are not in dispute. As an inmate at the Hillsborough County House BRODERICK, C.J. The State appeals an order of the Superior Court The facts, briefly stated, are drawn from the trial court’s order or

Pamela E. Phelan

(2007). We reverse and remand. that charged him with several counts of aggravated assault under RSA 642:9, II

, J.) dismissing indictments against the defendant, Timothy Spade,

and orally, for the defendant.

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as by these substances when the substances are thrown or otherwise p. 2 avoid the potential harm or to minimize the threat of disease posed

posed by such conduct is obvious: DOC employees have no way to

and the risk of disease associated with such actions. The threat the problem of bodily fluids being thrown on or at DOC personnel,

concluded that the nature of the contact prohibited in RSA 642:9, II addresses ‘contact’ is unclear.” After reviewing the legislative history, the trial court ascribed by the State to that word. Exactly which methods, if any, constitute them would amount to ‘contact’ under the ‘plain and ordinary meaning’ of potential methods of cleaning up the bodily substances . . . and not all of required in order to charge a person under RSA 642:9, II: “There are a number phrase “come in contact with” was ambiguous as to the nature of contact and dismissed the indictments. In so doing, it reasoned that the statutory The trial court agreed with the defendant’s interpretation of the statute

with certain bodily fluids and materials. officers by causing or attempting to cause such an officer to come in contact meaning, the statute prohibits inmates from intentionally harassing corrections cleaning up such substance. The State objected, contending that, by its plain materials at a corrections officer, but not conduct resulting in employees conduct involving an inmate throwing or expelling certain bodily fluids and urine at a corrections officer. According to the defendant, the statute reaches because the indictments failed to allege that he had thrown or expelled feces or the facts alleged were not sufficient to prove a violation of RSA 642:9, II The defendant moved to dismiss the indictments, arguing, in part, that

employees. clean it up.” The indictments involved various dates and various corrections underneath his cell door and onto the floor thereby causing [such employee] to employee “to come into contact with feces by throwing such material corrections, the defendant purposely caused or attempted to cause such the intent to harass a person he knew to be an employee of the department of The sixth indictment alleged that, while held in official custody and with

employee] to clean it up.” with urine by expelling such material onto the floor thereby causing [such purposely caused or attempted to cause such employee “to come into contact knew to be an employee of the department of corrections, the defendant that, while held in official custody and with the intent to harass a person he thereby causing [such employee] to clean it up.” Two other indictments alleged into contact with feces by throwing such material saturated onto the floor the defendant purposely caused or attempted to cause such employee “to come harass a person he knew to be an employee of the department of corrections, indictments alleged that, while held in official custody and with the intent to of contact by any means, no matter how indirect or remote from an inmate’s p. 3 contact. . . . On the other hand, the statute could be read to include any form act of throwing or expelling the material was the direct means of causing materials are directed toward an officer or, in other words, where the inmate’s language could mean only the type of conduct that arises when the prohibited the statute is susceptible to multiple meanings: “On the one hand, the not compel a different construction of the statute. The defendant counters that or expelled at an employee. The State contends that the legislative history does inserting into the statute the extra requirement that the substance be thrown with an intent to harass, threaten, or alarm, and that the trial court erred in with certain bodily substances by throwing or expelling any such substance inmate causes or attempts to cause a corrections employee to come in contact The State argues that the statute prohibits any conduct in which an constitute some other offense, see

subject to punishment within the prison system, and may B felony offense. . . . While such conduct is reprehensible, [it] is mess, was intended to be penalized under RSA 642:9, II as a Class question of law that we review de Resolution of this appeal requires statutory interpretation, which is a

625:3 (2007). according to the fair import of their terms and to promote justice. See RSA statutory scheme. Id. Finally, we construe provisions of the Criminal Code enacting them, and in light of the policy sought to be advanced by the entire risk of contracting diseases by using safe methods to clean the analysis. Id. Our goal is to apply statutes in light of the legislature’s intent in If a statute is ambiguous, however, we consider legislative history to aid our The State appealed. a statute in the context of the overall statutory scheme and not in isolation. Id. legislature did not see fit to include. Lamy, 158 N.H. at 515. We also interpret consider what the legislature might have said nor add language that the 642:9, II. 423. We interpret legislative intent from the statute as written and will neither the plain and ordinary meaning to the words used. Kousounadis, 159 N.H. at (2009). We first examine the language of the statute, and, if possible, ascribe words of the statute considered as a whole. State v. Lamy, 158 N.H. 511, 515 423 (2009). We are the final arbiters of the legislative intent as expressed in the

in the legislative history to support the claim that this kind of floor, and that DOC employees had to clean it up. There is nothing

an aggravated assault on a corrections staff member under RSA

this case allege that the defendant put feces and/or urine on the directed at or on the employees. By contrast, the indictments in junction of body surfaces : a touching or meeting,” Webster’s Third New p. 4 substance thrown or expelled. Definitions of “contact” include “a union or causing or attempting to cause the employee to “come in contact with” the that the inmate either throw or expel the bodily substance as the means of statutory phrase “by throwing or expelling such fluid or material” anticipates when the inmate does so with the intent to harass, threaten or alarm. The certain bodily substances “by throwing or expelling such fluid or material,” corrections department or law enforcement employee “to come in contact with” The statute prohibits an inmate from causing or attempting to cause a

Violation of this provision is a class B felony. RSA 642:9, IV.

expelling such fluid or material. contact with blood, seminal fluid, urine, or feces by throwing or

inmate causes or attempts to cause such employee to come in

words that the legislature did not see fit to include, e.g. physically present. To read the statute in this manner would require adding requires the inmate to throw or expel such substance at an employee who is come in contact with” that substance. Nothing in the statute’s plain language attempting to cause a corrections department or law enforcement employee “to throws or expels one of the enumerated bodily substances, causing or intended the statute to apply whenever an inmate, with the requisite intent, statute. Rather, the statute’s plain language makes clear that the legislature method of causing or attempting to cause contact, that is prohibited by the come in contact with” is not ambiguous as to the nature of the contact, or the We disagree with the trial court’s reading of the statute. The phrase “to corrections, or an employee of any law enforcement agency, the an employee of such facility, or an employee of the department of person whom the inmate knows or reasonably should know to be staff member when, with intent to harass, threaten, or alarm a An inmate is guilty of aggravated assault on a corrections

expelling such fluid or material [at an employee].” Had the legislature intended

meaning of statutory terms). (2006) (court consulted dictionary for guidance when considering the plain English Language 395 (4th ed. 2006). See State v. Kelley, 153 N.H. 481, 483 touching, as of objects or surfaces,” The American Heritage Dictionary of the Turning to the statute, RSA 642:9, II provides: International Dictionary 490 (unabridged ed. 2002), and “[a] coming together or

corrections officer.” might occur when an inmate throws or expels the prohibited material at a shows that “the legislature intended to proscribe only the type of contact that act of throwing or expelling the material.” He argues that the legislative history throwing or expelling a bodily substance at p. 5 Further, prior to the enactment of RSA 642:9, II, an inmate’s action of

631:2-a; see knowingly causing “bodily injury” or “unprivileged physical contact.” RSA simple assault provision expressly prohibits a person from purposely or person held in official custody is a class B felony “if the offense committed is was chargeable as, at least, a class B felony. See language proscribing assaults under RSA 631:1 to :2-a. For example, the RSA 642:9, I, IV (assault by Notably, the proscription under RSA 642:9, II differs from the statutory a corrections staff member already

order to harass, threaten, or alarm that person. just throwing or expelling an enumerated bodily substance at an employee in 631, evinces a legislative intent to proscribe a broader range of conduct than RSA 642:9, II, as compared to that of the assault provisions under RSA chapter or unprivileged physical contact. Therefore, we conclude that the language of 631:2-a, is elevated to a class B felony, RSA 642:9, IV. See targeting conduct that purposely, knowingly or recklessly causes bodily injury custody, RSA 642:9, I, IV. For example, a misdemeanor simple assault, RSA come in contact with an enumerated bodily substance, rather than solely assault under RSA chapter 631 when committed by a person held in official or alarm” an employee by causing or attempting to cause that employee to chapter, RSA chapter 642, of the Criminal Code and elevates the crime of provision under RSA 642:9, II targets an inmate’s “intent to harass, threaten, Prisoners statute is included in the “Obstructing Government Operations” assault provisions under RSA chapter 631. Moreover, the aggravated assault provisions in the Criminal Code, RSA 631:1-:2-a (2007). The Assaults by adopted by the legislature applies more broadly than does the language in the Prisoners” statute read as a whole, RSA 642:9, as well as the other assault throwing or expelling such substance. The language “to come in contact with” Our construction of RSA 642:9, II is in keeping with the “Assaults by an employee “to come in contact with” an enumerated bodily substance by are prohibited from, with the prescribed intent, causing or attempting to cause 631:2 (same). However, the language of RSA 642:9, II differs in that inmates

also RSA 631:1 (“serious bodily injury” or “bodily injury”); RSA

the provision at issue in this case. committed by an inmate on a corrections staff member under RSA 642:9, II, Prisoners statute also identifies a distinct category of aggravated assault that is to, and not concurrent with, any other sentence to be served). The Assaults by (any term of imprisonment for assault under RSA 642:9 must run consecutive

. . . correctional facility”). 470(A) (2007) (“attempts to throw or throws body fluids . . . on an employee of a other bodily fluid to be thrown upon an employee”); S.C. Code Ann. § 24-13- Ann. § 508.025(1)(b) (LexisNexis 2008) (“throws or causes feces or urine, or to limit the statute in this way, it could have done so. Cf., e.g., Ky. Rev. Stat. p. 6 “makes it a crime for someone to intentionally through [sic The prime sponsor of the House Bill stated that the proposed legislation

Knowles). Testimony during a House committee hearing identifies instances in Senate Comm. on Executive Dep’ts & Admin., supra (statement of William V. corrections officer thereby exposing him to some severe disease and so forth.”

2000) (reprinted in State’s Appendix at 39-44); N.H.S. Jour. 637 (2000). 34); Senate Comm. on Executive Dep’ts & Admin., H’rg on H.B. 1382 (April 18, Comm. Minutes, HB 1382 (Feb. 2, 2000) (reprinted in State’s Appendix at 32punishment as a deterrent. See interpretations that favor both the defendant and the State, see House Criminal Justice and Publ. Safety efforts to clean the cell block area.” People v. Pysadee existing prison terms extended to the maximum, could be subject to criminal Even if we were to assume that the statute is reasonably susceptible to that “police officers on duty were unable to avoid contact with the feces in their by throwing or expelling bodily substances, but who already have had their threw the feces on the walls, door, floors and ceiling of the cell block area” and ensuring that inmates who repeatedly misbehave toward corrections employees in which the evidence demonstrated that the inmate “defecated in his cell and and degradation caused by inmates using bodily waste to harass them; (3) harassment statute that is similar to aggravated assault under RSA 642:9, II, respect and dignity for corrections staff by protecting them from humiliation We note that a New York court upheld a conviction under an aggravated through coming in contact with certain bodily fluids or materials; (2) promoting were threefold: (1) protecting corrections employees from exposure to disease demonstrates that the primary purposes for the enactment of RSA 642:9, II the legislative history supports a broader proscription. This history CLD Consulting Eng’rs, 153 N.H. 793, 797-98 (2006), we would conclude that

expulsion of the fluid itself, was the charged means of attempted contact). statute because the inmate’s act of mailing the envelope, rather than the corrections employee did not charge a crime under aggravated harassment that an inmate expelled bodily fluid into an envelope, then sent it to a v. Polanco, 770 N.Y.S.2d 167, 168-69 (App. Div. 2003) (an indictment alleging support a conviction under that statute is nevertheless instructive. Cf. People harassment statute, its decision that the evidence was legally sufficient to court did not conduct a statutory analysis of the scope of the aggravated (App. Div. 2003); see N.Y. Penal Law § 240.32 (McKinney 2008). While that

redundant, unnecessary, or duplicative provisions). N.H. 214, 221 (2010) (court presumes that legislature does not enact 631:2-a are class B felonies); In re Search Warrant (Med. Records of C.T.), 160 (both aggravated assault under RSA 642:9, II and simple assault under RSA redundant if it did not prohibit a broader range of conduct. See RSA 642:9, IV simple assault as defined under RSA 631:2-a.”). Thus, RSA 642:9, II would be underneath his cell door and onto the floor, causing the employee to clean it p. 7 feces or urine by throwing or expelling such material onto the floor, or purposely caused or attempted to cause the employee to come into contact with intent to harass a person he knew to be a corrections employee, the defendant Here, the indictments against the defendant all allege that, with the

rule of lenity. Cf clear on its face, we do not consider the defendant’s argument regarding the and promotes justice. Because we conclude that the statutory language is alarm. This reading of the statute comports with the fair import of its terms come in contact with such substance, with the intent to harass, threaten or enumerated bodily substance, causing or attempting to cause the employee to be guilty of aggravated assault, the inmate must have thrown or expelled an In sum, according to the plain language of RSA 642:9, II, we hold that to

establish what the legislature intended.”). the [statutory] language nor the legislative history [of the statute] clearly of lenity to resolve statutory ambiguity in favor of defendant because “neither corrections department and law enforcement employees. See. State v. Dansereau, 157 N.H. 596, 603 (2008) (applying rule by propelling bodily fluids,” reveals an intent to punish inmates who harass act “making it a felony for inmates to harass corrections personnel and others We further observe that the title of the legislation itself, described as an

behavior”). are serving maximum time, and there isn’t a sufficient deterrent for this (Senator Francoeur testifying that “most inmates that resort to this behavior toward corrections staff on a repeated basis. See N.H.S. Jour. 637 (2000) maximum may be deterred from engaging in the identified harassing behavior that inmates who have already had their prison terms extended to the criminalizing conduct not already captured under RSA chapter 631, ensures construing the statute as prescribing an additional category of assault, thereby thrown or expelled at an employee who is physically present. Moreover, corrections staff from harassment, whether or not the bodily substance is II. Our construction of the statute accords with the legislative intent to protect prescribed mens rea includes “intent to harass, threaten or alarm.” RSA 642:9, 274 (2000) (HB 1382-FN); N.H.S. Jour. 637 (2000) (same). Indeed, the

thrown or expelled at the employee. substances by throwing or expelling it, whether or not the substance was or law enforcement employees “to come in contact with” enumerated bodily can arise whenever inmates cause or attempt to cause corrections department inmate throwing or expelling it at an employee. Certainly, exposure to disease to apply only to contact with an enumerated substance brought about by an the legislative history demonstrates that the proposed legislation was intended Criminal Justice and Publ. Safety Comm. Minutes, supra. However, nothing in which inmates spat at, or threw feces and urine at, corrections staff. House p. 8 Statutory interpretation is a question of law that we review de

member when, with intent to harass, threaten, or alarm a person

of the superior court. An inmate is guilty of aggravated assault on a corrections staff conduct prohibited by RSA 642:9, II. Accordingly, I would affirm the decision direct means of contact with a corrections staff member in order to qualify as shows, however, that the throwing or expelling of bodily fluids must be the overall statutory scheme, as well as a review of the legislative history, clearly “contact” element of the statute. A review of the statute in the context of the employee to clean up a defendant’s bodily fluids is sufficient to satisfy the not readily resolve whether merely causing a department of corrections DUGGAN, J. dissenting. The plain meaning of RSA 642:9, II (2007) does

plain and ordinary meaning to the words used. RSA 642:9, II provides that: The first step is to examine the language of the statute and ascribe the

justice. See RSA 625:3 (2007). of the Criminal Code according to the fair import of their terms and to promote advanced by the entire statutory scheme. Id. Finally, we construe provisions legislature’s intent in enacting them, and in light of the policy sought to be analysis. Lamy, 158 N.H. at 515. Our goal is to apply statutes in light of the statute is ambiguous, however, we consider legislative history to aid our in the context of the overall statutory scheme and not in isolation. Id. If a to include. State v. Jennings, 159 N.H. 1, 3 (2009). We will interpret a statute legislature might have said nor add language that the legislature did not see fit Reversed and remanded legislative intent from the statute as written and will neither consider what the meaning to the words used. Kousounadis, 159 N.H. at 423. We interpret language of the statute, and, if possible, ascribe the plain and ordinary whole. State v. Lamy, 158 N.H. 511, 515 (2009). We begin by examining the the legislative intent as expressed in the words of the statute considered as a State v. Kousounadis, 159 N.H. 413, 423 (2009). We are the final arbiters of

CONBOY, J.