2010-202 The State of New Hampshire v. Robert Burke

Michael A. Delaney

No. 2010-202

Hillsborough-northern judicial district

Trial Court (Garfunkel DUGGAN, J. The defendant, Robert Burke, appeals a decision by the

Pamela E. Phelan

restraint. See RSA 633:2 (2007). We affirm. , J.) denying his motion to dismiss the charge of criminal

and orally, for the defendant.

attorney 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 bears the burden of proving that no rational trier of fact, viewing the evidence p. 2 To prevail in a challenge to the sufficiency of the evidence, the defendant

the defendant exposed her to a risk of serious bodily injury. and that by binding her hands together with plastic ties while she was seated, it difficult for her to get up from a seated position without the use of her hands, bodily injury. The State contends that Greenstreet’s physical limitations made circumstances of Greenstreet’s confinement exposed her to a risk of serious On appeal, the defendant argues that the State did not prove that the

only his conviction for criminal restraint. The jury subsequently convicted the defendant on several charges. He appeals exposed to risk of serious bodily injury when her hands were tied together.” totality of the evidence . . . a reasonable jury could find that [Greenstreet] was The trial court denied the defendant’s motion, ruling that “under the

injury.” State had failed to prove that Greenstreet was exposed to “risk of serious bodily charges. With respect to the criminal restraint charge, he argued that the At the close of the State’s case, the defendant moved to dismiss all of the unauthorized taking, criminal restraint, and obstructing the report of a crime. The defendant was subsequently charged with burglary, robbery, theft by

be a man but just a big boy.” “was a little shaken up,” but she “wasn’t too scared [because] he didn’t seem to threatened to use it or attempted to use it to harm her. She testified that she defendant held the knife in a threatening manner, but never verbally about three inches wide and twelve inches long. She testified that the Greenstreet testified that the knife was a kitchen knife with a blade

neighbor’s home and called the police. the sofa, watched the defendant leave the house, and then went to her took a laptop, and drove off in the Greenstreets’ car. Greenstreet got up from minutes, the defendant took all of the handsets from the Greenstreets’ phones, tight so that he would loosen the ties, which he did. After approximately thirty the wire was not tied very tight, she told the defendant that the wire was too together with “sturdy plastic-coated” wire. While Greenstreet later testified that After Greenstreet was seated on the sofa, the defendant then tied her hands had been taught to “lean forward two or three times and push herself up.” had difficulty walking. She had difficulty getting up from a seated position and to another room where she sat down on a sofa. Greenstreet was disabled and The defendant gestured with the knife for Greenstreet to go down the hall

kept his money in the bank and not in the house. had hidden in the house. Greenstreet told the defendant that her husband p. 3 3

restraint and misdemeanor false imprisonment. The State responds by arguing element meaningless, resulting in no distinction between felony criminal mental injury.” To require less, the defendant argues, would render the must present evidence of “an actual, identifiable risk of serious physical or defendant contends that to establish a “risk of serious bodily injury,” the State 625:11, VI (2007). The parties dispute the meaning of the word “risk.” The or impairment to the health or of the function of any part of the body.” RSA as “any harm to the body which causes severe, permanent or protracted loss of exposed to a “risk of serious bodily injury.” “Serious bodily injury” is defined The only issue on appeal is whether the State proved that the victim was

victim unlawfully.” State v. Bruce exposed to the risk of serious bodily injury; and ( p. 3 3) the act must confine the prove three elements: “(1) the actor must act knowingly; (2) the victim must be exposing him to risk of serious bodily injury.” The State is thus required to class B felony, “if he knowingly confines another unlawfully in circumstances RSA 633:2, I, provides that a person is guilty of criminal restraint, a

RSA 6 p. 3 33:3 (2007). unlawfully . . . so as to interfere substantially with his physical movement.” guilty of false imprisonment, a misdemeanor, “if he knowingly confines another , 132 N.H. 465, 470 (1989). A person is

overall statutory scheme and not in isolation.” Kousounadis State v. Thiel, 159 N.H. at 42 p. 3 3. redundant words.” Id the legislature as expressed in the words of a statute considered as a whole.”. “Finally, we interpret a statute in the context of the a statute, and presume that the legislature did not enact superfluous or “In matters of statutory interpretation, we are the final arbiter of the intent of (State v. Milner) Resolution of this issue requires us to engage in statutory interpretation., 159 N.H. 456, 457 (2009). “We must give effect to all words in language that the legislature did not see fit to include.” Petition of State of N.H. as written and will not consider what the legislature might have said or add Kousounadis, 159 N.H. at 423. “We interpret legislative intent from the statute construe that language according to its plain and ordinary meaning. 625:3 (2007). We first look to the language of the statute itself, and, if possible, to promote justice.” State v. Kousounadis, 159 N.H. 413, 423 (2009); see RSA provisions of the Criminal Code according to the fair import of their terms and

, 160 N.H. 462, 465 (2010) (quotation omitted). “We construe

Id. a result of other inferences, provided they can be reasonably drawn therefrom. reasonable inferences from facts proved and also inferences from facts found as finding of guilt beyond a reasonable doubt. Id. Further, the trier may draw not in isolation. Id. Circumstantial evidence may be sufficient to support a evidence, we examine each evidentiary item in the context of all the evidence, reasonable doubt. State v. Crie, 154 N.H. 40 p. 3 3, 406 (2006). In reviewing the in the light most favorable to the State, could have found guilt beyond a p. 4 Affirmed

sufficient to establish a risk of serious bodily injury. the evidence in the light most favorable to the State, we hold that it was suffer a serious bodily injury. Although we consider this a close case, viewing bound, it was entirely possible that Greenstreet would lose her balance and and considering her physical impairments and the fact that her hands were foreseeable that Greenstreet would eventually attempt to get up from the sofa, needed her hands in order to get up from a seated position. It was certainly to show that the defendant bound the hands of an elderly disabled woman who the evidence in the light most favorable to the State, the evidence was sufficient lean forward two or three times and push herself up with her hands. Viewing Greenstreet had great difficulty getting up from a seated position and needed to had to install a special bar in order to assist her going up and down stairs. disabled and had difficulty walking. There was testimony that her husband

In the instant case, the jury heard evidence that Greenstreet was

her with it. Thus, on these facts, the knife is irrelevant to the element at issue. never held it in close proximity to Greenstreet, and never attempted to harm the analysis because the defendant never verbally threatened to use the knife, 4 defendant possessed a knife during Greenstreet’s confinement does not affect At oral argument the State properly conceded that the fact that the

a higher quantum of proof. risk of serious bodily injury and see no reason to rewrite the statute to require juries are fully capable of determining whether or not the State has proved this element of exposure to a risk of serious bodily injury. We are confident that the crime of criminal restraint still requires the State to prove the additional may blur the line between criminal restraint and false imprisonment. However We note the defendant’s concern that a definition of risk that is too broad

language that the legislature did not see fit to include.” Milner “[W]e will not consider what the legislature might have said or add

(same). § 39-13-303 (2010) (same); Tex. Penal Code Ann. § 20.02(c)(2)(A) (West 2011) (West 2007) (same); Mo. Rev. Stat. § 565.120 (2000) (same); Tenn. Code Ann. of serious physical injury” (emphasis added)); Conn. Gen. Stat. Ann. § 53a-95 (statute requires proof that defendant exposed the victim to a “substantial risk risk, it certainly could have done so. See Ark. Code Ann. § 5-11-103 (2006) 457. Had the legislature intended to require proof of an actual, identifiable

body.” protracted loss of or impairment to the health or function of any part of the defendant exposed a victim to “the possibility of severe, permanent, or that the plain meaning of the statute requires the State to prove only that the p. 5 5

for felony criminal restraint. engaged in speculation in reaching its verdict, I would reverse the conviction created by the defendant’s conduct. Because, in my view, the jury necessarily pressed at oral argument, precisely how the risk of serious bodily injury was perhaps telling that the State did not articulate, either in its brief or when positing a scenario under which the victim might the body.” RSA 62 p. 5 5:11, VI (2007). Given this string of possibilities, it is imprisonment arguably could be elevated to felony criminal restraint by simply protracted loss of or impairment to the health or of the function of any part of establish the required risk, then any conduct constituting misdemeanor false “serious bodily injury” as defined by statute – that is, “severe, permanent or that any possibility of serious bodily injury, however remote, is sufficient to have caused injury. Finally, the resulting injury might have constituted felony criminal restraint and misdemeanor false imprisonment. To the extent had standing up might have then caused her to fall in a manner that might statute so broadly, however, effectively eliminates the distinction between difficulty standing up due to her inability to use her hands. The difficulty she severe injury or protracted bodily impairment. To read the criminal restraint attempted to stand up from her seated position. Then, she might have had that, if Greenstreet tried to stand up with her hands bound, she might suffer possibilities. First, after her hands were bound, Greenstreet might have defendant’s action in binding her hands while she was seated created a risk Here, the State apparently relies upon an attenuated string of standing up from a seated position without the use of her hands, the The State argues that because Greenstreet was elderly and had difficulty Webster’s Third New International Dictionary “risk,” which is “the possibility of loss, injury, disadvantage, or destruction.” defined by statute. The State urges us to adopt the dictionary definition of RSA 633:2, I (2007). In dispute is the meaning of the word “risk,” which is not unlawfully in circumstances exposing him to risk of serious bodily injury.” A person is guilty of criminal restraint if he “knowingly confines another

injury as a result of the unlawful confinement.

State’s view, presumably any possibility, however remote, would constitute “possibility” necessary to constitute “risk of serious bodily injury.” In the

dissent. the State insufficient to establish risk of serious bodily injury, I respectfully CONBOY, J., dissenting. Because I would find the evidence presented by

even accepting the State’s position, the issue centers on the degree of

DALIANIS, C.J.