2013-0071, State of New Hampshire v. Paul A. Costella

superior court erred when it: (1) denied his motion to dismiss the hate crime 651:6, I(f), the “hate crime s tatute.” On appeal, the defendant argues that the convictions were sub ject to an extended term of imprisonment under RSA 2013); RSA 651:6, I(f) (2007); RSA 644:2 (2007). The two criminal threatening took place at the Wal - Mart store located in Tilton. RSA 631:4 (2007 & Supp. threatening and one count of disorderly conduct arising out of an incident that defendant, Paul A. Costella, was convicted on two counts of criminal BASSETT, J. After a jury trial in the Superior Court (O’Neill, J.), the

the brief and orally, for the defendant. Stephanie Hausman, senior assistant appellate d efender, of Concord, on

g eneral, on the brief and orally), for the State. Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney

No. 2 013 - 071 Belknap

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, Concor d, 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 p. 2 22 as 2

Allard did not respond. The defendant told Allard that he was going to kill and asking Allard whether he was Jewish. The defendant appeared agitated. threats to kill. T he defendant then started speaking to Allard, raising his voice also had heard the defendant talk about his “Jew killing gun” as well as his Jonathan Allard, a store manager, overheard that conversation. Allard

[his] front seat.” woman behind the counter,” and referred to “w hy [he] keep s a gun undern eath him, the defendant stated that “we should kill them all starting with the what he thought of Jews. When the employee replied that Jews did not bother T he defendant then walked past the second employee and asked him

the Jew b***h behind the counter.” audibly, and within earshot of Sylvestre — that he was “getting his gun to kill A s he was leaving, the defendant declared — to no one in particular, but Jew that doesn’t know how to drive a car.” The defendant then paid his bill. He also accused Sylvestre of “wreck [ing]” his car because she was “a stupid defendant asked her if she had seen his g un, saying, “It’s a Jew killing killer.” car keys to the defendant. As Sylvestre started to process the invoice, t he A fter the oil change had been completed, a second employee handed the

in the world is a gypsy Jew. They didn’t kill enough Jews.” walked by Sylvestre, calling her a “gypsy Jew” and stating that the “worst thing — had suffered when he died. After the exchange, the defend ant repeatedly defendant responded that he hoped that Sylvestre’s uncle — “that Jew bastard” during World War II, and that her mother had been forced to watch. The Sy lvestre told the defendant that her uncle had been burned alive by the Nazis dead Jew.” He then asked her if she had seen his “Jew killing gun” in the car. enough Jews had been killed during World War II, and that “a good Jew is a along the lines of, “[W] hat’s it to you?” The defendant told Sylvestre that not asked Sylvestre if she was a Jew. Sylvestre testified that her response was customers with whom she was uncomfortable. In response, t he defendant area, where she t old the defendant that she had the right to refuse service to After parking the car in the service bay, Sylvestre returned to the service

uncle, who had been a member of the French resistance. “doing the heil Hitler.” Sylvestre took offense because the Nazis had killed her photograph, t he defendant a nd his daughter were, as described by Sylvestre, defendant and his daughter in front of a red flag with a swastika on it. In the service bay. While in the defendant’s car, Sylvestre saw a photograph of the an empl oyee in the automobile department, drove the defendant’s car into the the defendant brought his car to Wal - M art for an oil change. Jane Sylves tre, The jury could have found the following facts. On November p. 2 29, 2010,

motivated by hostility towards Judaism. We affirm. enhancement; and ( p. 2 2) excluded the testimony of his daughter that he was not p. 3 3

o r Allard is Jewish. Second, he argues that the trial court erred when it Allard’s religion. He contends that there was no evidence that either Sylvestre crime of criminal threatening because of hostility towards Sylvestre ’s and crime statute, RSA 651:6, I(f), he was substantially motivated to commit the evidence offered at trial was insufficient to prove that, pursuant to the hate The defendant raises two issues on appeal. First, he argues that the

enhanced criminal threatening. This appeal followed. jury convi cted the defendant of all charges, including the two counts of an element of the offense.” The trial court denied the defendant’s motion. T he that a victim is a member of one of those [statutorily] protected classes i s not witnesses that they were, indeed, Jewish.” The State countered that “the fact religion. No testimony was given that [the defendant] was told by any of the defendant’s] actions, if, indeed, he did them, was [sic] motivated by the victim’s latter that the “State has to prove beyond a reasonable doubt that [the charges, as well as the hate crime sentencing enh ancement, arguing as to the At the close of the State’s case, the defendant moved to dismiss all

term of imprisonment.” jury selection for his or her trial, a defendant may be sentenced to an extended section is given the defendant at least 21 days prior to the commencement of by paragraph I or II, and if written notice of the possible application of this RSA 651:6, I(f). In addition, RSA 651:6, III (Supp. 201 p. 3 3) states: “If authorized

as defined in RS A 21:49, national origin or sex. . . . hostility towards the victim’s religion, race, creed, sexual orientation (f) Was substantially motivated to commit the crime because of

. . .

jury also finds beyond a reasonable doubt that such person: I. A convicted person may be sentenc ed according to paragraph III if the

in pertinent part: penalties on the criminal threatening charges. The hate crime statute provides, defendant that pursuant to the hate crime statute it would seek enhanced the other for his statements to Allard. Prior to trial, the State notified the counts of criminal threatening, one count for his statements to Sylvestre, and The defendan t was indicted for disorderly conduct and charged with two

defendant. shortly thereafter. T he police investigated the incident and arrested the police would be called. T he defendant left the premises, and the police arrived Allard then told the defendant to leave the store and informed him that the car. Allard understood that the defendant was refer ring to him and Sylvestre. “both of you Jews,” and he again stated that he had his “Jew killing gun” in the p. 4 4

required to prove two distinct elements: first, the actual religion of the victim, motivated because of hostility towards the victim ’ s religion, the State is s tatute requires the State to prove that the defendant was substantially as used in RSA 651:6, I (f). The defendant argues that, because the hate crime The issue before us is the meaning of the phrase “the victim’s relig i on,”

justice.” Id. (quotation and brackets omitted). the Criminal Code according to the fair import of its terms and to promote add language that th e legislature did not see fit to include.” Id. “We construe statute as written and will not consider what the legislature might have said or meaning to the words used.” Id. “We interpret legislative intent from the examining the language of the statute, we ascribe the plain and ordinary expressed in the words of a statute considered as a whole.” Id. “When interpretation, we are the final arbiters of the intent of the legislature as novo.” State v. Gagne, 165 N.H. 363, 370 (2013). “In matters of statutory “The interpretation of a statute is a question of la w, which we review de

the sufficiency of the evidence introduced at trial. requires that we first engage in statutory interpretation, a fter which we assess 1 p. 4 46, 151 (2013) (quotation omitted). Here, r esolution of the sufficiency issue could have found guilt beyond a reasonable doubt.” State v. Noucas, 165 N.H. and all reasonable inferences from it in the light most favorable to the State, defendant must show that no rational trier of fact, viewing all of the evidence In order t o prevail on a challenge to the sufficiency of the evidence, “a

beyond a reasonable doubt that she is Jewish. involving Sylvestre because the State introduced sufficient evidence to prove statute, we must nonetheless affirm the sentence enhancement on the count that, even if we were to adopt the defendant’s interpretation of the hate crime victim was actual ly a member of that class. Alternatively, the State argues to commit the crime because of hostility against a protected class, not that the that it is required only to prove that the defendant was substantially motivated evidence adduced at trial that either actually is Jewish. The State counters nor Allard told him that she or he is Jewish, and, further, that there was no mistakenly] believed the victim ascribed.” He contends that neither Sylvestre were “motivated by hostility towards a religion to which he reasonably [but victim s ’ actual religion, and that the statute would not apply if the defendant defendant argues that the hate crime s tatute requires the State to prove the threatening because of hostility towards Sylvestre ’s and Allard’s re ligion. T he defendant was substantially motivated to commit the crime of criminal We first address whether the evidence was sufficient to establish that the

I. Sufficiency of the Evidence

towards Judaism. excluded the testimony of his daughter that he was not motivated by hostility p. 5 5

offenders’ beliefs or biases. enhancement provision over and above m ere disagreement with perceived harms pro vides an adequate explanation for its penalty and incite community unrest. The State’ s desire to redress these retaliatory crimes, inflict distinct emotional harms on their victims, and its amici, bias - motivated crimes are more likely to provoke individual and societal harm. For example, according to the State conduct because this conduct is thought to inflict greater [T] he Wisconsin statute singles out for enhancement bias - inspired

statute: United States Supreme Court observe d in regard to the Wisconsin hate crime that bias - motivated crimes inflict up on society and individual victims. As the and of RSA 6 p. 5 51:6, I(f) in particular: to recognize and punish the greater harm f undamental purpose of hate crime penalty enhancement statute s in general, the victim’s membership in the protected class — is cons on a nt with the because the defendant selected a victim based on the defendant’s perception of State’s interpretation of the hate crime statute — enhancing a punishment the legislature intended to correct or remedy.” Lathrop, 164 N.H. at 470. The Nonetheless, “[w] e construe statutes to address the evil or mischief that

6 p. 5 56 - 57 (1990); N.H.S. Jour. 719 - 20 (1990). however, a review of t he legislative history is unavailing. See N.H.H.R. Jour. in our interpretation of the meaning of the statutory language. See id. Here, 470 (2012). Under such circumstances, we turn to the legislative history to aid are reasonable, the statute is ambiguous. See State v. Lathrop, 164 N.H. 468, We conclude that because both proffered interpretat ions of the statute

had knowledge of the victim’s actual status. requirement which the legislature did not see fit to include: that the defendant would r equire the addition of the word “actual” to the statute, and establish a add s words to the statute. It contends that the defendant’s interpretation defendant, rather than the State, who is advocating for a construction that consists of members of the Jewish faith. It further argues that it is the crime because of hostilit y towards a protected class; here, the protected class the State prove that the defendant was substantially motivated to commit the enhances the punishment for bias - based crimes, and thus requires only that The State counters that the plain language of the hate crime statute

“perceived” to the statute, which the legislature did not see fit to include. motivated by the defendant’s perception of the victim’s religion add s the word contends that construing the statute to req uire only that the crimes be substantially motivated the defendant to criminally threaten the victim. He and, second, that it was hostility towards the victim’s religion that p. 6 6

Jewish ? How would a jury determine whether a victim is a Native American, or victim’s parents were Jewish, or whether the victim’s grandparents were consider how often a victim attends synagogue, or whether one or both of a consider in order to determine whether a victim is Jewish ? Would a jury jury determine a victim’s race, creed or religion? What evidence w ould a jury prosecution under the statute would require a trial within a trial. How would a race, creed, or national origin, an absurd result c ould follow because every require the State to prove the victim’s actual status, i.e., his or her religion, brackets omitted). We note that, were we to interpret the hate crime statute to of the statute.” State v. Williams, 143 N.H. 559, 5 p. 6 62 (1999) (quotation and leading to an absurd result and nullifying to an appreciable extent the purpose Moreover, “it is not to be presumed that the legislature would pass an act

independent of whether Sylvestre and Allard are, in fact, Jewish. crimes committed by the defendant had a pernicious impact on the community protected class that the defendant has targeted. Indeed, in this case, the motivated crime regardless of whether the victim is, in fact, a member of the was motivated by bias against the grou p.”). Society is harmed by a bias or she was acting against, the offense is still a bias crime because the offender mistaken in his or her perception that the victim was a member of the group he (defining “bias crime,” including the following note: “Even if the offender was available at http://www.fbi.gov/about - us/cjis/ucr/data - collection - manual Data Collection Guidelines and Training Manual 7, 8, 20 (Dec. 19, 2012), as a member of a protected class. See U.S. Department of Justice, Hate Crime the defendant’s bias - motivated actions, rather than the victim’s actual status The significant community harm resulting from a hate crime flows from

su ffers increased psychological trauma similar to that suffered by victims.”). even greater effects on the community. . . . [T]he surrounding community (200 p. 7 7) (“In addition to its significant effects on victims, hate crime imposes Parents of Juvenile Hate Crime Offenders, 41 Val. U. L. Rev. 1 p. 6 685, 1692 - 93 Pfeiffer, Note, To Enhance or Not to Enhance: Civi l Penalty Enhancement for surrounding community, creating a pervasive disharmony among citizens.”); crimes are not only injurious to the individual victim, but they also fracture a Crimes Prevention Act of 1 999, 30 St. Mary’s L.J. 931, 933 - 34 (1999) (“Hate Gilbert & Marchand, Note, Splitting the Atom or Splitting Hairs — The Hate bias - motivated crimes fall. Mitchell, 508 U.S. at 488 (quotation omitted); see most destructive of the public safety and happiness”: a category into which of different natures those should be most severely punished, which are the have been inadequate to stop them”). “[I]t is but reasonable that among crimes the victim and society at large and existing criminal statutes and penalties randomly inflicted violent crimes is that such crimes infl ict greater injury upon members of a racial, religious, or other specified group more severely than (explaining that “[t]he ‘basis’ for punishing violent crimes directed against omitted); see also In re Joshua H., 17 Cal. Rptr. 2d 291, 299 (Ct. App. 1993) Wisconsin v. Mitchell, 508 U.S. 476, 487 - 88 (1993) (quotation and citations 7

(2002 & Supp. 2012), or to a crime committed “because of” a protected status, or perceived” protected status of the victim, see p. 7 720 Ill. Comp. Stat. 5/12 - 7.1 that because statutes in a number of other states refer explicitly to the “actual comparing our hate crime statute with statutes from other states. He argues The defendant further supports his statutory interpretation by

when it enacted the hate crime statute. crime statute — cannot, and do es not, shed light on the l egislature’s intent statutory definition of sexu al orientation — enacted seven years after the hate enhancement. See Laws 1990, 68:1. Accordingly, we conclude that t he In contrast, RSA 651:6, I(f) was enacted in 1990 as a hate crime penalty 108:16 (amending the hate crime statute to include a reference to RSA 21:49). based up on sexual orientation. See Laws 199 p. 7 7, 108:1,: 2; cf. Laws 1997, enacted in 1997 as part of comprehensive legislation prohibiting discrimination Westfield State College, 880 F.2d 1465, 1470 (1 st Cir. 1989). RSA 21:49 was rhetorical prestidigitation into the rationale for the preexisting one.” Denny v. one cannot automatically be transformed by some thaumaturgical feat of “[i]f — as in this case — two statutes are involved, the rationale for the later later - enacted statutes.” State v. Neff, 265 P.3d 62, 65 (Or. App. 2011). Indeed, “Statutory context include s earlier - enacted statutes, but does not include

the hate crime s tatute. We agree with the State. — is irrelevant to an inquiry as to the intent of the l egislature when it enacted years after the hate crime s tatute — in a separate chapter of the state statutes l egislature’s use of the word “perceived” in a statutory provision enacted seven towards the victim’s perceived religion. The State counters that the chose not to provide for enhanced punishment for crimes motivated by hostility hate crime s tatute is indicative of the fact that the l egislature intentionally means that the continuing absence of such language regarding religion in the added.) The defendant contends that the use of this language in RSA 21:49 orientation for heterosexuality, bisexuality, or homosexu ality.” (Emphasis that “sexual orientation” means “having or being perceived as having an statute to encompass a victim’s perceived religion. RSA 21:49 states in part orientation, it did not explicitly define “the victim’s religion” in the hate crime for crimes motivated by hostility towards a victim’s perceived sexual language in RSA 21:49 (2012) that explicitly provided for enhanced sentences The defendant next observes that, although the l egislature in 2012 added

to a straightfor ward and easy - to - administer process. Cf. id. was motivated by his or her hostility towards a victim’s perceived religion leads have intended”). In contrast, requiring the State to prove that the defendant requirements “an administrative nightmare that Congress could not possibly construe diversity jurisdict ion statute in such a way as to render its r el. Hood v. AU Optronics Corp., 134 S. Ct. p. 7 736, 74 3 - 4 4 (2014) (declining to intended that. . . cou rts engage in these unwieldy inquiries.” Mississippi ex. the race of a bi racial victim? “We think it unlikely that [the legislature] p. 8 8

because of hostility towards the victims’ religion. offered at trial by the defendant to show that he was not motiv ated to act We next address whether the trial court erroneously excluded testimony

II. Character Evidence

enhancement. did not err in denying t h e defendant’s motion to dismiss the hate crime the defendant’s sufficiency argument fails, and we conclude that the trial court adduced at trial, such an argument would not be supportable. Accordingly, perceived Sylvestre and Allard to be Jewish. Indeed, given the evidence prove that he was substantially motivated to commit the crimes because h e Jewish. The defendant does not argue that the evidence was insufficient to explained, the State was not required to prove that the victims are, in fact, insufficient to prove that either victim is Jewish. However, as we have Noucas, 165 N.H. at 151. The defendant argues that the evidence was Judaism, and that he perceived that Sylvestre and Allard were Jewish. See substantially m otivated to commit the crime because of hostility toward s State, could have found beyond a reasonable doubt the defendant was evidence and all reasonable inferences from it in the light most favorable to the defendant has demonstrated that no rational trier of fact, viewing all the to the sufficiency of the evidence. Specifically, w e exam ine whether t he Having construed RSA 651:6, we now address the defendant’s challenge

status of the victim. orientation . . . , national origin or sex,” and that it need not prove the actual of his hostility towards the victim’s perceived “religion, race, creed, sexual only that a defendant was substantially motivated to commit a crime because Accordingly, w e hold that pursuant to RSA 651:6 the State must prove

requiring the S tate to prove the victim’s actual religion. explicitly refe r to the defendant’s perception o f status as a motivating factor as in which a court has interpret ed a hate crime statute that, like ours, do es not little assistance. Seco nd, we cannot find, nor has the defendant cited, any case interpret our hate crime statute; the language in ot her states’ statutes is of above, that basic concept is implicit in our statute. Our task here is to victims is explicitly stated in the statute s of other states, as we explained “perceived,” does not affect our analysis: Although the perceived status of the crime statutes, while our legislature has not chose n to use the word T he mere fact that some state s use the word “perceive d” in their hate

targeted as a n actual member of a protected cla ss. We are not persuaded. legislature’s intent t o enhance the penalty only when the victim was accurately 2011), the absence of such terminology in our own statute must indicate the without identifying a victim, see, e.g., N.J. Stat. Ann. § 2C:16 – 1 (2005 & Supp. p. 9 9

. . .

and excludes evidence unless a substantial right of the party is affected, Error may not be predicated upon a ruling which admits or

Rule 103(b) (2) states:

Ev. 103(b). nature of the excluded evidence.” Noucas, 165 N.H. at 158; s ee also N.H. R. contemporaneous offer of proof sufficient to apprise the court of the specific evidence, the proponent of the evidence bears the burden of making a Nonetheless, “[i] n order to p redicate error on a trial court’ s ruling excluding by an accused, or by the prosecution to rebut the same.” N.H. R. Ev. 404(a)(1). 404(a), it is admissible if it is evidence of “a pertinent trait of character offered Although character evidence is generally not admissible, N.H. R. Ev.

case.” Id. court ’ s ruling was clearly untenable or unreasonable to the prejudice of his made.” Id. “The defendant bears the burden of demonstrating that the trial establishes an objective basis suffic ient to sustain the discretionary decision is a proper exercise of judicial discretion, we consider whether the record Noucas, 165 N.H. at 158 (quotation omitted). “In determining whether a ruling are clearly untenable or unreasonable to the prejudice of a party ’ s case.” unsustainable exercise of discretion standard and reverse only if the rulings “We review challenges to a trial court ’ s evidentiary rulings under our

404(a)(1).” We agree with the State. pertinent trait o f character that might have been admissible under Rule the trial court did not err because defense counsel’s “proffer failed to identify a trait of being motivated by hostility towards Judaism.” The State responds that testimony would have show n that the defendant “did not have the character T he defendant contends that the trial court erred because the daughter’s

of it, it’s not relevant.” sustained the objection, stating, “Talk about the picture, but as far as the rest and that [the daughter] has knowledge regarding that.” The trial court Rule of Evidence 404(a)] I can seek to provide evidence that there is no motive seeking to enhance this with the ha te crime statute. Under [New Hampshire this explanation to the trial court: “It’s background. And the State is also father]?” The State objected on the ground of relevance. The defendant offered defendant asked, “Can you describe your relationship that you have with [your During the testimony of the defendant’s daughter, counsel for the p. 10 10

DALIANIS, C.J.