2011-465, State of New Hampshire v. Michael G. Cheney

Michael A. Delaney, attorney general (Susan P. McGinnis, senior

No. 2011-465 Carroll

police officers in a high speed chase. On appeal, he argues that the trial court the victim, tied her up and stole her car, and thereafter attempted to elude events occurring in late December 2008 when the defendant sexually assaulted

RSA 265:4 (2004); RSA 631:3 (2007). The defendant’s convictions arise from

page is: http://www.courts.state.nh.us/supreme. A:2 (2007); RSA 633:1 (2007); RSA 637:3 (2007); RSA 265-A:3 (Supp. 2007); a.m. on the morning of their release. The direct address of the court's home while intoxicated, disobeying an officer, and reckless conduct. See RSA 632reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 assault (AFSA), kidnapping, theft by unauthorized taking, aggravated driving defendant, Michael G. Cheney, was convicted of aggravated felonious sexual CONBOY, J. Following a jury trial in Superior Court (Houran, J.), the

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

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

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 jeopardy a second time for the same offense. See Marshall, 162 N.H. at 661. It

p. 2 plainly, substantially and formally, described to him.” See also RSA 601:4

contain an essential element of the AFSA variant charged. See N.H. CONST. to prepare for trial and at the same time protect him from being placed in of the offense with which he is charged with sufficient specificity to enable him To meet this constitutional standard, an indictment must inform a defendant

shall be held to answer for any crime, or offense, until the same is fully and

defective under the State and Federal Constitutions because they failed to The defendant maintains on appeal that the AFSA indictments were 2 forth therein the special statute, bylaw or ordinance on which it is founded.”).

statutory language, if the indictment as a whole may fairly be understood to

Part I, Article 15 of the State Constitution provides that “[n]o subject

trial court denied the motion, ruling that the indictments were not defective. offense fully, plainly, substantially and formally, and it is not necessary to set it on appeal. See State v. Sterndale, 139 N.H. 445, 448 (1995). 122 N.H. 498, 504 (1982). However, “an element need not be stated in precise sufficient allegations to identify the offense in fact. Id.; see also State v. Shute, charged; the indictment must include the elements of the offense with is not enough merely to state the crime with which a defendant is being

Constitution and rely upon federal law only to aid our analysis. State v. Ball,

that the indictments sufficiently set forth all the elements of the crime. The physical violence or superior physical strength. The State objected, arguing (2001) (“An indictment, information or complaint is sufficient if it sets forth the ground that they failed to sufficiently allege the element of threatening to use did not raise this issue before the trial court; we, therefore, decline to consider our review of this claim is limited to plain error analysis. The State, however, motion, brought after the State rested its case, was untimely, and, therefore,

657, 661 (2011). We first consider the defendant’s argument under the State statutory interpretation, our review is de novo. State v. Marshall, 162 N.H. I. AFSA Indictments Because the defendant raises a question of constitutional law and

of the State’s case, the defendant moved to dismiss these indictments on the

pt. I, art. 15; U.S. CONST. amend. XIV. The State argues that the defendant’s

indictments. We affirm. erroneously denied his motions to dismiss the AFSA and reckless conduct

by threat of use of physical violence or superior physical strength). At the close three counts of AFSA pursuant to RSA 632-A:2, I(c) (coerced sexual penetration motion to dismiss the AFSA indictments. The defendant was charged with The defendant first argues that the trial court erred by denying his physical violence or superior physical strength on the victim,” id., because p. 3 “grabbing,” standing alone, fails to satisfy the element of “threatening to use physical strength under the statute. Rather, he contends that the act of

drag her down the stairs” constitute threats of physical violence or superior

“showing [the victim] a knife” and “threatening to slash her face, cut her, or

threat alone must satisfy that element. The defendant does not dispute that the term “and/or,” in order for the indictments to properly charge him, each specifying a number of implicit and explicit threats” that are linked together by

statute requires that the actor coerce the victim to submit by “threatening to showing her a knife, grabbing her, and/or threatening to slash her

strength on the victim,” RSA 632-A:2, I(c), but instead charged “that element by 3

and extent as to unsettle the mind of the person on whom it operates, and to

physical violence or use superior physical strength on the victim. Rather, the by coercing her to submit to [a particular act of penetration] by RSA 632-A:2, I(c), however, does not require the actor to actually inflict

penetration with the victim statutory language “threatening to use physical violence or superior physical “the act of grabbing does not inflict physical violence.” The defendant argues that, because the indictments did not include the

defined “threat” for purposes of RSA 632-A:2 as “any menace of such a nature (emphasis added); see State v. Kulikowski, 132 N.H. 281, 285 (1989). We have use physical violence or superior physical strength on the victim.” Id.

indictments alleged that the defendant knowingly engaged in sexual “[o]ne need not have or use ‘superior physical strength’ to grab another” and

(Emphasis added.)

execute one or more of those threats. victim] believed that [the defendant] had the present ability to

that the actor has the present ability to execute these threats.” Here, the violence or superior physical strength on the victim, and the victim believes person” by coercing “the victim to submit by threatening to use physical

face, cut her, or drag her down the stairs if she refused, and [the

charge it.” State v. French, 146 N.H. 97, 103 (2001) (quotation and brackets

sexual assault if such person engages in sexual penetration with another RSA 632-A:2, I(c) provides that a person commits “aggravated felonious

158 N.H. 525, 528 (2009). the elements of the offense cannot provide sufficient notice. See In re Alex C., State v. Bisbee, 165 N.H. 61, 64 (2013). An indictment that fails to allege all and enough facts to warn a defendant of the specific charges against him. certain and comprehensive, but whether it contains the elements of the offense omitted). The question is not whether the indictment could have been more disagree.

p. 4 the State from charging him with reckless conduct under RSA 631:3. We

trial court — that RSA 265:79, which pertains to reckless driving, precludes On appeal, the defendant presses the same argument he made to the

trial court denied the defendant’s motion.

therefore, RSA 265:79 does not prohibit prosecution under RSA 631:3. The elements of the reckless conduct criminal charge” under RSA 631:3 and, objected, contending that “the elements of RSA 265:79 are different from the

RSA 631:3 (Reckless Conduct) “for reckless driving upon a way.” The State

that RSA 265:79 (Supp. 2007) (Reckless Driving) prohibits prosecution under Before trial, the defendant moved to dismiss these indictments, arguing

(2007), to wit, a motor vehicle.

of serious bodily injury by use of a deadly weapon as defined in RSA 625:11, V

Constitution. See Shute, 122 N.H. at 504.

that he engaged in conduct which placed or may have placed another in danger charged with three counts of reckless conduct pursuant to RSA 631:3, alleging we conclude that the AFSA indictments were not insufficient under the State motion to dismiss the reckless conduct indictments. The defendant was superior physical strength on the victim” under RSA 632-A:2, I(c). Accordingly, alone — can satisfy the element of “threatening to use physical violence or

or take hold of by a sudden motion or grasp : SEIZE, CLUTCH.” Webster’s under the Federal Constitution as we do under the State Constitution. See with respect to the sufficiency of an indictment, we reach the same result As the Federal Constitution offers the defendant no greater protection

The defendant next argues that the trial court erred in denying his

to “threat” for purposes of RSA 632-A:2, the act of “grabbing” — even standing II. Reckless Conduct Indictments

Bisbee, 165 N.H. at 67; Hamling v. United States, 418 U.S. 87, 117 (1974).

things, “grabbing her.” The plain meaning of the word “grab” includes “to take

plain meaning of the word “grab” together with the meaning we have ascribed consent.” State v. Johnson, 130 N.H. 578, 581 (1988) (quotation and brackets Third New International Dictionary 983 (unabridged ed. 2002). Taking the take away from her acts that free and voluntary action which alone constitutes

physical violence or superior physical strength on the victim by, among other Here, the indictments alleged that the defendant threatened to use

ellipsis omitted). relation to another threatens the welfare of the latter.” Id. (quotation and verbal or nonverbal, the required threat is “something that by its very nature or omitted) (construing former RSA 632-A:2, IV). Regardless of whether it is interpretation is de novo. State v. Guay, 164 N.H. 696, 699 (2013). We first

p. 5 of a statute considered as a whole, and our review of the trial court’s statutory We are the final arbiters of the legislature’s intent regarding the meaning

631:3 in cases involving reckless driving upon a way.

demonstrates that the legislature intended to preclude the application of RSA

narrow range.” He further argues that the express language of RSA 265:79

265:79 supersedes any application of RSA 631:3 to cases falling within that than RSA 631:3 and, therefore, under our rules of statutory construction, “RSA elements, but that RSA 265:79 “applies in a narrower range of circumstances” The defendant argues that RSA 265:79 and RSA 631:3 have the same

to be capable of producing death or serious bodily injury.” RSA 625:11, V. the manner it is used, intended to be used, or threatened to be used, is known

A “[d]eadly weapon” is “any firearm, knife or other substance or thing which, in

the person uses a deadly weapon as defined in RSA 625:11, V.” RSA 631:3, II. danger of serious bodily injury.” RSA 631:3, I. The crime is “a class B felony if “if he recklessly engages in conduct which places or may place another in

title or any rules adopted by the director, shall be, notwithstanding

Criminal Code, provides that a person commits the crime of reckless conduct

statute. Id. making a record, and thereby violates any of the provisions of this said or add language that the legislature did not see fit to incorporate in the

(Emphasis added.) RSA 631:3, contained within Title LXII, the New Hampshire

bet, wager, or race, or who drives a vehicle for the purpose of legislative intent, and we refuse to consider what the legislature might have that the lives or safety of the public shall be endangered, or upon a plain and unambiguous, we need not look beyond it for further indication of vehicle to be driven recklessly, as defined in RSA 626:2, II(c), or so and ordinary meanings to the words used. Id. When a statute’s language is examine the language of the statute, and, where possible, we ascribe the plain for the second offense. period of 60 days for the first offense and from 60 days to one year

Whoever upon any way drives a vehicle recklessly, or causes a

more than $1,000 and his or her license shall be revoked for a

provides: RSA 265:79, contained within the New Hampshire Motor Vehicle Code, than $500 for the first offense and $750 for the second offense nor To resolve this issue, we examine the language of the relevant statutes. the provisions of title LXII, guilty of a violation and fined not less p. 6 State to prove that he did so. Moreover, contrary to the defendant’s argument,

violated the rules of the road, the reckless conduct statute does not require the

note, however, that although a person charged with reckless conduct may have 631:3 without violating some rule of the road pursuant to RSA 265:79. We is impossible to commit reckless conduct by use of a motor vehicle under RSA The defendant contends that the crimes are indistinguishable because it

by the director of motor vehicles, whereas proof of reckless conduct does not. violated a provision of New Hampshire’s motor vehicle code or a rule adopted

a deadly weapon. Finally, proof of reckless driving requires proof that a person

required the State to prove that the defendant committed the offense by use of under RSA 625:11, V. In contrast, reckless conduct, as charged in this case, proof of reckless driving does not require the use of a deadly weapon as defined

of a fact or facts that the other does not. Cf. State v. Hull, 149 N.H. 706, 716

bodily injury, as is required under the reckless conduct statute. Moreover,

RSA 631:3 establishes that proof of the elements of each statute requires proof Comparison of the statutory elements of RSA 265:79 with the elements of

which weapon may include a motor vehicle. RSA 631:3. the conduct placed another, or may have placed another, in danger of serious

serious bodily injury, and that the person did so by use of a deadly weapon, endangered the lives or safety of the public, the statute does not require that Further, although reckless driving may be proved by evidence of conduct that charged conduct occurred on a way. The reckless conduct statute does not.

engaged in conduct which placed, or may have placed, another in danger of

(quotation omitted)). The reckless driving statute requires proof that the

offense of felony reckless conduct requires proof that a person recklessly director of motor vehicles. RSA 265:79. On the other hand, the statutory any provisions of New Hampshire’s Motor Vehicle Code or a rule adopted by the same unless each requires proof of an element that the other does not”

that the lives or safety of the public were endangered, and, in doing so, violated (2003) (for double jeopardy purposes, “[t]wo offenses will be considered the

legislative purpose of the statute. State v. Rix, 150 N.H. 131, 132-33 (2003).

vehicle recklessly, caused a vehicle to be driven recklessly, or drove a vehicle so with each other.” EnergyNorth Natural Gas v. City of Concord, 164 N.H. 14, 16 driving requires, in relevant part, proof that a person, upon a way, drove a “Where reasonably possible, statutes should be construed as consistent RSA 631:3 contain the same elements. The statutory offense of reckless We begin by addressing the defendant’s argument that RSA 265:79 and

general statute. EnergyNorth Natural Gas, 164 N.H. at 16. To the extent two statutes conflict, the more specific statute controls over the

each other, and so that they will lead to reasonable results and effectuate the similar subject matter, we will construe them so that they do not contradict (2012) (quotation omitted). When interpreting two statutes which deal with a command, see State v. Fournier, 158 N.H. 441, 446 (2009), and p. 7 The use of the word “shall” in a statute is generally regarded as a

interpretation of the reckless driving statute.

631:3 to cases involving reckless driving. We do not share the defendant’s “notwithstanding” in a former version of this statute, see State v. Payne, 115 applicable. This interpretation is consistent with how we interpreted

“notwithstanding the provisions of title LXII” in RSA 265:79 demonstrates that guilty of a violation regardless of whether the provisions of Title LXII are also defendant asserts that the legislature’s use of the word “shall” and jurisdiction over delinquent juvenile meant that legislature intended that

see In re Cody C., 165 N.H. 183, 185 (2013) (holding that “notwithstanding” in (quotation omitted)), as well as our interpretation of the word in other statutes, prevented the fines provided for therein from being limited by Title LXII

violation,” the legislature intended for a person who violates RSA 265:79 to be application of RSA 631:3 in cases involving reckless driving upon a way. The one paragraph of statute governing conditions under which court could retain

operation statute stating, “notwithstanding the provisions of Title LXII,” EnergyNorth Natural Gas, 164 N.H. at 16, our ruling that RSA 265:79 and RSA N.H. 595, 596, 598 (1975) (holding that penalty provision in former reckless beings.” State v. Etzweiler, 125 N.H. 57, 66 (1984), superseded by statute on controls over the general statute only applies to the extent two statutes conflict, canon of statutory construction providing that the more specific statute

phrase “shall be, notwithstanding the provisions of title LXII, guilty of a the crime charged. See Hull, 149 N.H. at 717. For the same reason, it does 265:79 demonstrates that the legislature intended for RSA 265:79 to supersede International Dictionary 1545 (unabridged ed. 2002). Thus, by use of the “notwithstanding” means, in relevant part, “in spite of.” Webster’s Third New The defendant nonetheless argues that the express language in RSA

its application in this case.

RSA 265:79] may include injury to the safety, rights or property of human injury, as is required by RSA 631:3, II.” Indeed, the “forbidden harm [under from those required to prove reckless conduct under RSA 631:3. Because the such a way as is known to be capable of producing death or serious bodily

sustain an indictment is if a difference in evidence is actually required to prove It does not matter how overlapping or similar the evidence used to

631:3 do not contain the same elements and, hence, do not conflict, precludes

the elements required to prove reckless driving under RSA 265:79 are different 265:79, does not necessarily “amount[] to the same thing as driving a vehicle in not matter that the two charges arise out of the same transaction. Id. Here, proof that the defendant drove recklessly on a way, as is required by RSA

other grounds as stated in State v. Anthony, 151 N.H. 492, 493-95 (2004). p. 8 8

prosecutorial discretion is inapplicable to our analysis. Cf. State v. Peck, 140 conclusion based upon statutory interpretation, our general rule regarding Finally, we note that, given the defendant’s arguments and our A f f i r m e d .

conduct occurred upon a way. “supersede” prosecution under RSA 631:3 simply because the alleged reckless defendant’s motion to dismiss the reckless conduct indictments. Accordingly, we conclude that the trial court did not err in denying the

against any class of defendants.” (quotation omitted)).

statute should govern); King v. Sununu, 126 N.H. 302, 306-07 (19 p. 8 85) (holding

DALIANIS, C.J.