2015-0404, The State of New Hampshire v. Max Wilson

between October 4, 2012, and December 27, 2013, each time acknowledg ing qualifying conviction under RSA 632 - A:10, I. H e registered at least seven times stipulated that the defendant had been convicted of a sexual assault, which is a Hampshire registered sex offender. At trial, the St ate and the defendant The jury could have found the following facts. The defendant is a New

providing child care services. W e affirm in part, reverse in part, and remand. 632 - A:10 (2016), which pr ohibit s p ersons c onvicted of c ertain o ffenses from a jury trial in Superior Court (Smukler, J.), on four counts of violating RSA HICKS, J. The defendant, Max Wilson, appeals his conviction s, following

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

and orally), for the State. Joseph A. Foster, attorney general (Sean P. Gill, attorney, on the brief

No. 2015 - 0404 Merrimack

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

defendant also took the victim shopping in Concord. house and worked on models with the victim in his room. Th at day, the Bible with him over the tele phone. The defendant later went to the victim ’s On January 10, the defendant called the victim and again discussed the

his parents as the authority figures in his life.” “wanted to make sure that [the victim] was being put back and pushed towards victim was “drifting away.” He indicated that he and the victim ’s mother victim ’s father again called the defendant and shared his concern that the victim “start[ed] to withdraw from . . . family activities.” On January 9, the The victim ’s father t estified that during the week following January 7, the

for dinner with the victim ’s family. and worked on models in the victim ’s room, after which the defendant stayed and worked on homework in the café area of a bookstore. They returned home t he defendant drove the victim to Concord, where they went to a restaurant house in Hopkinton. The y discussed ideas for woodworking projects and then the Bible over the tele phone. Later that day, the defendant went to the victim ’s On the morning of January 7, the defendant and the victim discussed

boy manhood type principles.” “asked that they would be involved in different activities that would teach [his] devotions with [the victim] and possibly help him with his schooling.” He also “and asked him if he would help [the victim] o ut and would do some [Bible] The victim ’s father testified that he called the defendant on January 6,

because he respected and looked up to the defendant. The victim ’s parents discussed having the defendant help with the victim after the holiday break, she found the victim to be challenging and dis ruptive. in the year. W hen the victim ’s mother resumed homeschooling her children season had been difficult, following the death of the victim ’s grandfather earlier In January p. 2 2014, the victim was fourteen y ears old. The 2013 holiday

counseled troubled youngsters.” activities,” and, in particular, had spoken of “previous encounters where he defendant “had mentioned that he had counseled boys in the past from church defendant taught at th at family ’s home. The victim ’s father testified that the the ir home. In addition, the victim ’ s father attended Bible studies that the children and beca me familiar with the defendant through spending time at victim ’s parents were friends. The victim was a friend of one of th at family’s Around p. 2 2012, the defendant moved in with a family with whom the

care, instruction or guidance of minor children.” (Quotation omitted.) that he could not “undertake employment or volunteer service involving the p. 3 3

517 (2014). Our standard for reviewing the denial of a defendant’s motion to therefore, our standard of review is de novo.” State v. Collyns, 166 N.H. 514, challenge to the sufficiency of the evidence raises a claim of legal error; We first address the defendant’s sufficien cy of the evidence argument. “A

I. S ufficiency of the Evidence

(200 p. 3 3). to brief that issue, we deem it waived. See State v. Blackmer, 149 N.H. 47, 49 motion to add issues, which we granted; however, because the defendant failed punishments.” The defendant advanced a fourth issue in an assented - to or as appl ied”; and (3) “entering multiple convictions or imposing multiple dismiss on grounds that “RSA 632 - A:10, I, is void for vagueness, either facially his motion to dismiss for insufficient evidence; (2) denying his motion to On appeal, the defendant argues that the trial court erred in: (1) denying

and pleas. guidance, although it is unclear whether there were two or three such charges assaulting the victim while volunteering to provide him care, instruction or record establishes that the defendant pleaded guilty to charges of sexually consecutively to the sentence on the preceding conviction. In ad dition, the second, third, and fourth convictions, a period of incarceration to run conviction, seven - and - one - half to fifteen years of imprisonment; on each of the felony count. The court imposed the following sentences: on the first RSA 6 p. 3 32 - A:10, I (emphasis added). The jury returned a guilty verdict on each

administrator of any type. counselor or worker of any type, a guidance counselor, or a school a boy or gi rl scout master or leader or worker, a summer camp a coach, or worker of any type in child athletics, a day care worker, minor children, including, but not limited to, service as a teacher, volunteer service involving the care, instruction or guidance of of any sexual assaul t, he knowingly undertakes employment or child pornography, or of a felonious physical assault on a minor, or this or any other jurisdiction of any felonious offense involving A person is guilty of a class A felony if, having been convicted in

whi ch provides, in pertinent part: The defendant was indicted on four counts of violating RSA 6 p. 3 32 - A:10,

victim ’ s father then terminat ed the defendant’s contact with the victim. on her computer and discovered that he is a registered sex offender. The older daughters. O ne of th e daughters searched the defendant’s background defendant’s relationship with the victim and shared her concern with her two “had an uneasiness that [she] could not put [her] finger on” regarding the Also o n January 10, the victim ’s mother, according to her te stimony, p. 4 4

dealing with different subject matter. Thus, we find the defendant’s citations to import into RSA 632 - A:10, I, a definition of “volunteer” contained in a statute construed together,” Sloan v. Bryant, 28 N.H. 67, 71 (1853), we decline to our own statutes, that “different statutes relative to the same subject[] are to be alone, are in apposite. A ddition ally, while “[i]t is a general rule,” in construing modif i es the term “service.” Thus, definitions of the term “volunteer,” standing We are not persuaded. First, the term “volunteer” in RSA 632 - A:10, I,

“is reflected in statutes outside of New Hampshire as well.” confirmed by the legislature’s definition o f the word in two other statutes” and that “this intuitive, common - sense understanding of the word ‘volunteer’ is connotes something more; namely, acting through an organization. He asserts unpaid a ctivity may be described as “volunteering,” but that “volunteer service” activity provided through an organization.” He contends that engaging in any service” does not encompass a ll unpaid activity, but, rather, “is limited to The defendant argues that the plain and ordinary meaning of “volunteer

Id. (quotations and citations omitted).

and not in isolation. we interpret a statute in the context of the overall statutory scheme legislature did not enact superfluous or redundant words. Finally, We must give effect to all words in a statute, and presume that the said or add language that the legislature did not see fit to inclu de. as written and will not consider what the legislature might have ordinary meaning. We interpret legislative intent from the statute pos sible, construe that language according to its plain and justice. We first look to the language of the statute itself, and, if Code according to the fair import of their terms and to promote considered as a whole. We construe provisions of the Criminal intent of the legislature as expressed in the words of a statute In matters of statutory interpretation, we are the final arbiter of the

upon an issue of statutory interpretation. See Collyns, 166 N.H. at 518. through or for an organization. Accordingly, the claim of error on appeal turns undertook to provide in alleged violation of RSA 632 - A:10, I, were provided trial that it had produced no evidence that the services the defendant formal services performed for a volunteer organization.” The State conceded at of the phrase “volunteer servic e” in RSA 632 - A:10, I, as “encompass[ing] only The defendant’s insufficiency argument is based upon hi s interpretation

to the State, could have found guilt beyond a reasonable doubt. Id. at 782. of the e vidence and all reasonable inferences from it in the light most favorable evidence, the defendant must establish that no rational trier of fact, viewing all N.H. 773, 781 - 82 (2010). To prevail upon his challenge to the sufficiency of the dismiss for insufficiency of the evidence is well settled. State v. Fandozzi, 1 p. 5 59 5

‘volunteer service’ as encompassing only activity that is similar to the “[u] nder the principle of ejusdem generis, th is Court should thus construe Scouts and Girl Scouts, ‘a summer camp’ and ‘a school. ’” H e then argu es that, notes that “[t]he statute even lists several types of organizations[:] the Boy activity either (a) for pay, or (b) as. . . volunteer [s] for an organization.” He included within the prohibition of RSA 632 - A:10, I, are “persons who engage in The defendant asserts that all of the specific examples of persons

phrase “including, but not limited to.” RSA 632 - A: 10, I. description to a specific enumeration and where the legislature has used the appl ied where, as here, the statutory language progresses from a general do so. W e w ill assume the defendant’s contention — that the doctrine may be generis jurisprudence to decide this case, and we decline, at this juncture, to (quotations omitted)). Nevertheless, we need not reexamine our ejusdem definitio n makes plain that the examples listed are only illustrative.” enlargement and a broader interpretation” and conclud ing that “the statutory the “[t]he phrase ‘includes, but is not limited to’ suggests an expansion or includ[ing], but. . . not limited to” certain defined categories of persons, that statute criminalizing child sexual assault by person s “in a ‘ position of trust ’ People v. Roggow, 318 P.3d 446, 4 p. 5 50 - 51 (Colo. 2013) (noting, in interpreting a general word that follows a specific term, that canon has no relevance here.”); 2003) (“Because ejusdem generis is only to be applied to determine the scope of New Hampshire. See, e.g., NISH v. Rumsfeld, 348 F.3d 1263, 1268 (10th Cir. limitation.” The State’s contentions have some support in case law outside demonstrates that the terms that follow are offered in illustration, not “use of the phrase ‘including, but not limited to,’ in RSA 632 - A:10, I, Preston, 147 N.H. 48, 51 (2001). The State also argues that the legislature’s words follow a specific enumeration. See, e.g., In the Matter of Preston and understood and applied” in the opposite presentation; that is, where gen eral Meaney and similar cases, observing that the doctrine has been “traditionally T h e State questions our expression of the ejusdem generis principle in

741, 744 (1991). nature to those enumerated by the specific words.” State v. Meaney, 134 N.H. ones, the general words are construed to embrace only objects similar in we have stated “provides that, where specific words in a statute follow general support his interpretation. The first is the principle of ejusdem generis, which The defendant next r elies upon three canons of statutory construction to

less inclined to look to inapposite statutes from other jurisdictions. mental illness or physical or developmental disability) unavailing. We are even against certain adults eligible for services on the bases of, among other things, (establishing a registry for founded reports of abuse, neglect, or exploitation nonprofit organizations and g overnment entities) and RSA 1 p. 6 61 - F:49 (2014) RSA p. 5 508:17 (2010) (providing immunity from civil liability to voluntee rs of 6

applicability or purpose in the session law that contains the statu te, it is 831 (Ariz. Ct. App. 2015) (“When the legislature specifies the statute’s Laws 1988, 257:1; see Flood Control Dist. v. Paloma Inv. Ltd., 350 P.3d 8 2 p. 6 6,

the state demands that these people be denied such opportunities. field involving the care or training of children. The public policy of to do so by seeking to perform services of one type or another in a abuse children often attempt to create opportunities for themselves The general court recognizes that those who seek to exploit and

legislation: The legislature stated the purpose of RSA p. 6 632 - A:10 in the enacting

such an instrument). capable of causing serious injury or death” and the hunting knife at issue was intended to protect the public from felons w ho would possess instruments dangerous weapon’ must be similarly limited,” where “RSA 159:3 was expressly instruments of combat per se and that the catch - all category of ‘other contenti on “that the specific weapons enumerated in RSA 159:3 represent ejusdem generis so as to “read [a] statute with blinders” and rejecting itself. See State v. Beckert, 144 N.H. 315, 318 - 19 (1999) (refusing to apply doctrine without examining the purpose s of the classification and of the statute can not mechanically use that characteristic under the ejusdem generis in activity either (a) for pay, or (b) as. . . volunteer [s] for an organization,” we examples enumerated in RSA p. 6 632 - A:10, I, describe only “persons who engage be attained”). Thus, even ass uming, without deciding, that the specific as a whole indicates a different legislative purpose in view of the objectives to qualification that general words will not be used in a restricted sense if the act of ejusdem generis is neither final nor exclusive and is always subject to the added); see also State v. Small, 99 N.H. 349, 351 (1955) (noting that “the rule Stat e v. New Hampshire Gas & Electric Co., 86 N.H. 16, 25 (1932) (emphasis

to the purpose of the classification. contemplated by the rule, however, is as to characteristics material the things having a likeness to the specified thing. The likeness meaning to the class covered by the latter and limits that class to thing followed by a general descriptive term gives c olor and The basis of the ejusdem generis rule is that the mention of one

an organization.” “persons who engage in activity either (a) for pay, or (b) as. . . volunteer [s] for specifically enumerated in RSA p. 6 632 - A:10, I, is that the services describe W e reject the premise that the relevant similarity of the services

through an organization.” enumerated roles, specifically activity that is either (a) paid or (b) conducted p. 7 7

periodically babysits a neighbor’s child without pay. Such an intent is th rough the Big Brother/Big Sister organization, but not by a n offender who deter exploitation by a n offender who has unsupervised access to a child a n offender who offers to give free piano lessons to the child next door, or to registered sex offender who volunteers as a church choir director, but not by would have us conclude that the legislature intended to prevent abuse by a involving the care, instruction or guidance of minor children. The defendant opportunities to abuse or exploit children by engaging in unpaid service intent by allowing to “slip through the cracks” some child predators who create service” urged by the defendant would frustrate the legislature’s expressed 25. Rather, we conclude that the restrictive interpretation of “volunteer classification” in the statute. New Hampshire Gas & Electric Co., 86 N.H. at do not find that characteristic to be “material to the purpose of the happen to share the characteristic of being provided through organizations, we Thus, e ven assuming that the services listed in RSA 630 - A:10, I, also

abuse children. . . opportunities. . . to do s o.” Laws 19 p. 8 88, 25 p. 7 7:1. relates to the legislative purpose of denying persons “who seek to exploit and commit an offense against the child”). Moreover, t hat characteristic directly entrusted with s pecial access to a child victim and who exploit that access to General Assembly’s overarching intent to target those offenders who are (concluding that categories enumerated in sexual assault statute “reflect the the characteristic of providing such access. Cf. Roggow, 318 P.3d at 450 counselor, or a school administrator of any type,” RSA 630 - A:10, I — all share leader or worker, a summer camp counselor or worker of any type, a guidance any type in child athletics, a day care worker, a boy or girl scout master or service providers list ed in RSA 630 - A:10, I — “a teacher, a coach, or worker of focus upon services that by their nature provide access to children. The children,” RSA 630 - A:10, I, Laws 1988, 257:1, to be indicative of a legislative children”). We f ind the use of the phrase “involving the care . . . of . . . 630 - A:10, I (using phrase “involving the care, instruction or guidance of minor those “involving the care or training of children.” Laws 1988, 257:1; c f. RSA services must be performed. It does, however, describe the subject services as evinces no intent to restrict the type of entity through which the covered not use the terms “employment” or “volunteer service,” RSA 632 - A:10, I, and promotes a public purpose under the Constitution”). This stated purpose does weight in construing the statute and in determining whether the statute magical quality to make valid that which is invalid[,] . . . they are entitled to domain, that while “legislative findings and declarations [of purpose] have no housing authorities to acquire pro perty for redevelopment projects by eminent Nashua, 99 N.H. 161, 165 (1954) (noting, with respect to statute empowering properly may be utilized as an aid in construing a statute.”); cf. Ve lishka v. confe r power, determine rights, or enlarge the scope of a measure, they (“Although. . . statements [of intent] in an uncodified section [of statute] do not provision.”); Carter v. Dept. of Veterans Affairs, 135 P.3d 637, 644 (Cal. 2006) appropriate to interpret the statutory provisions in light of that enacted 8

affection lead parents to act in the best interests of their children. important, historically it has recognized that natural bonds of for judgment required f or making life’s difficult decisions. More possess what a child lacks in maturity, experience, and capacity law’s concept of the family rests on a presumption that parents recognize and prepare their children for additional obligations. The [P]arents generally have the righ t, coupled with the high duty, to

parent’s provision of care, instruction, or guidance to his own child. “volunteer service,” RSA 632 - A:10, I, would permit that term to describe a child example, we note that o nly a strained and unnatural construction of prevents it from being so interpreted. Continuing with the defendant’s paren t asserts, in part, because the very language he contends is superfluous Th e statute, however, cannot be as broad ly interpreted as the defendant

and thus would run afoul of the statute.” beyond that legally required [of the parent] would constitute ‘volunteer service’ under their [parental] duty of care” because “[a]ny care, instruction or guidance legally required to limit the care, instruction and guidance to that required guidance.” He then argues that a parent with a qualifying conviction “wou ld be from its reach the parent of the child who is provided care, instruction or RSA 632 - A:10, I, is broad” and notes, “for instance, [that it] does not exclude makes elsewhere in his brief. The defendant assert s that the “prohibition in We explain our reasoning by reference to an argument the defendant

interpretation impermissibly changed the meaning of the statute. We disagree. guidance to m inor children.’” He thus argues that the trial court’s convicted [of a qualifying offense], he knowingly provides care, instruction or same as if [it] read ‘A person is guilty of a class A felony if, having been the meaning of the statute, as interpreted by the trial court, “is exactly the Asserting that “[a]ll activity is either paid or unpaid,” the defendant argue s that employment or volunteer service involving,” RSA 632 - A:10, I, is superfluou s. under the trial court’s interpretation, the statutory language, “undertakes 214, 221 (2010) (quotation omitted). Specifically, the defendant con tends that, should be given effect.” In re Search Warrant (Med. Records of C.T.), 160 N.H. enact redundant provisions and whenever possible, every word of a statute the interpretive canon that t he “legislature is not presumed to waste words or The defendant next argues that the trial court’s interpretation violates

interpretation. that the doctrine of ejusdem ge neris does not support the defendant’s classification,” New Hampshire Gas & Electric Co., p. 8 86 N.H. at 25, we conclude provided through an organization — is not “material to the purpose of the Thus, because the characteristic urged by the defendant — that the services be inconsistent with the statute’s broadly stated purpose. See Laws 1 p. 9 988, 257:1. 9

argument up on the premise that the “prohibition in RSA 632 - A:10, I, is broad,” conviction and a child. W e note that, although the defendant bases his apply to innocuous, chance encounter s between a person with a qualifying is by no means either an obvious or foregone conclusion that the statute would argument, other terms in the statute act to limit such an application. Thus, it indicated by the foregoing discussion of the defendant’s “‘ service’ by parents” between a person with a qualified conviction and a child. We disagree. As organization, the statute could conceivably criminalize every interaction service” is construed to apply only to services provided through an The defendant appears to suggest that, unless the term “volunteer

the care or training of children.” Laws 1 p. 9 988, 257:1. do so by seeking to perform services of one type or another in a field involving persons “who seek to exploit and abuse children [,]. . . [of] opportunities . . . to underinclusive of the perils the legislature sought to remedy — the creation, by too “broad,” but, as noted previously, it would render the statute defendant’s construction would narrow the scope of a statute he believes to be petitioner’s interpretation that could lead to absurd results”). To be sure, the (2014) (declining to construe legislation as urged by petitioner, where “it is the unreasonable. See Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 763 avail the defendant, however, because the interpretation he proffers is itself 185, 190 (2016) (quotation s omitted). This fundamental principle does not used, the reasonable me aning is to be adopted.” Appeal of Marti, 169 N.H. Thus, as between a reasonable and unreasonable meaning of the language possible, a statute will not be construed so as to lead to absurd consequences. “It is a fundamental principle of statutory construction that whenever

that is volunteered through an organization.” We d isagree. phrase ‘volunteer service’ as used in RSA 632 - A:10, I, includes only activity absurd results. The defendant concludes that “the plain language of the interpretation of RSA 632 - A:10, I, would lead, in the defendant’s view, to number of hypothetical examples to which application of the trial court’s that the “prohibition in RSA 632 - A:10, I, is broad,” and he then posits a to create absurd results.” T he defendant begins with the premise, noted above, The defendant next contends that “this Court will not interpret a s tatute

Accordingly, we reject the defendant’s superfluous language argument. within the statutory prohibition and is not superfluous. RSA 632 - A: p. 10 10, I. demonstrates, the phrase “volunteer servic e” acts to limit the activities that fall it to be “volunteer service,” RSA 632 - A:10, I. Thus, as this example “natural bonds of affection” for the child, id., and, therefore, would not consider above that duty, we would still presume such action to spring from the parent’s instruction, or guidance beyond it could be considered something over and the “high duty” of parental care is satisfied, such that any provision of care, brackets, and ellipsis omitted). Even were it possible to discern at what point Troxel v. Granville, 530 U.S. 57, 68 (2000) (plurality opinion) (quotations, 10

The defendant counters that he did assert a facial challenge, and that the State court that he was challenging the statute as void for vagueness as applied.” court that RSA 632 - A: p. 10 10, I, was facially invalid, and that “[h]e told the trial for appeal. The State asserts that the defendant never argued be fore the trial State argues, however, that the defendant failed to preserve a facial challenge defendant advances both facial and as - applied challenges to the statute. The constitutionality.” State v. White, 164 N.H. 418, 423 (2012). On appeal, the burden of proof in view of the strong presumption favoring a statute’s “A party challenging a statute as void for vagueness bears a heavy

157 N.H. 337, 340 (2008). a statute is a question of law, which we review de novo. State v. Lamarche, vagueness under the State and Federal Constitutions. The constitutionality of motion to dismiss based upon his assert ion that RSA 632 - A: p. 10 10, I, is void for The defendant next argues that the trial court erred in denying his

II. Vagueness

(quotation omitted). have found guilt beyond a reasonable doubt.” Fandozzi, 159 N.H. at 782 all reasonable i nferences from it in the light most favorable to the State, could failed to establish “that no rational trier of fact, viewing all of the evidence and defendant’s sufficiency of the evidence challenge fails, we conclude that he has an organization. Because the statutory construction premise underlying the limiting “volunteer service” under RSA 632 - A: p. 10 10, I, to service provided through For the foregoing reasons, we reject the defendant’s interpretation

of lenity arguments. failed to show ambiguity in the statute, we reject his legislative history and rule ambiguity has been found” (quotation omitted)). Because the defendant has 777 (2007) (noting that “the rule of lenity is applicable only where statutory language is ambiguous” (quotation omitted)); State v. Jennings, 155 N.H. 768, 752 (2011) (noting that we “will consider legislative histor y only if the statutory statute in question. See ATV Watch v. N.H. Dep’t of Transp., 161 N.H. 746, applicability of b oth theories, however, is contingent upon the ambiguity of the of the term “volunteer service” to service through an organization. The organization”; and (2) we should apply the rule of lenity to restrict the meaning to either (a) employment, or (b) unpaid activity provided through an 632 - A: p. 10 10] demonstrates that the legislature intended the statute to apply only The defendant further contends that: (1) “the legislative history [of RSA

According ly, we reject the defendant’s abs urd results argument. question of whether the statute is in any respect unconstitutionally overbroad. absurd. We leave for another day, and a properly brought challenge, the to fall within any of the hypothetical scenarios that he asserts would be he has not brought a constitutional overbreadth challenge and does not claim p. 11 11

defendant’s failure to allege an implicated fundamental right as a concession defendant. An equally plausible interpretation is that the trial court took the We decline to read the trial court’s order in the manner urged by the

statute applies to him.” right. Thus, the defendant can only prevail on his vagueness claim as the statute is applied to him. . . . RSA 632:A:10 does not implicate a fundamental fundamental right, a defendant can only launch a vagueness attack as the he points to the following language in the order: “U nless a statute implicates a that it considered and rejected [his] facial vagueness challenge.” Specifically, The defendant also argues that “the [trial] court’s order demonstrates

implicated by the statute at issue. a fundamental right,” yet he ma de no assertion that any fundamental right is Court ente rtains facial challenges to a statute only where the statute implicates memorandum. For instance, he note d that “the New Hampshire Supreme at best, however, particularly in light of other porti ons of the defendant’s demonstrate a facial challenge to the statute. We find the examples ambiguous On appeal, t he defendant appears to conten d that the se examples

establishment is instruction. Giving directions is guidance.” cross the street is care of a minor child. Answering a question at a retail circum stances inviting such targeting, the defendant offered: “Helping a child target for arrest if he or she so much as talks to a child.” As examples of organization. Without that limitation, the statute makes any sex offender a vagueness by limiting the statute’s scope to formal volunteering for an further state d that “[t] he phrase ‘ volunteer service ’ saves the statute from limiting construction if it may reasonably do so.” In the memorandum, he statute void for vagueness, and [that] the court must favor a constitutional asserted both that “a broader construction of the term .. . would render the term “volunteer services” means only services through an organization — and A:10.” He set forth the same proposed interpretation urged here — that the submitted to the court a mem orandum of law “regarding the scope of RSA 632 - At the close of the State’s case, the defendant moved to dismiss, and

presented to the trial court. State’s preservation challenge, we examine how the vagueness issue was Keer, 167 N.H. 232, 238 (2015) (quotation omitted). T hus, t o resolve the and to correct errors before they are presented to the appellate court.” Holt v. general policy that trial forums should have an opportunity to rule on issues expressed in both our case law and Supreme Court Rule 16(3)(b), “reflects the trial court.” Blackmer, 149 N.H. at 48. This preservation requirement, “[W]e will not review any issue that the defendant did not raise before the

constitutional vagueness challenge.” re lies upon transcript passages in which he was not “discussing his p. 12 12

RSA 632 - A:10, I, is unconstitutionally vague o n its face, we consider only his Because we hold tha t th e defendant failed to preserve his argument that

to waive our preserv ation rule in this case. “understandable” failure to object in light of the law then existing). We decline seriousness of the char ges against these defendants” in addition to counsel’s not preserved at trial for murder “as if seasonably” made “[i] n view of the N.H. 19, 28 (2015); Nelson, 105 N.H. at 190 (treating objections claimed to be the discretionary nature of our preservation rule. See State v. Mouser, 168 the preservation rule,” Brown, 138 N.H. at 652, in fact, Nelson merely reflects that a lthough we have described Nelson as “recogniz[ing] a limited exception to We decline to apply an “exception” to the preservation rule here. We note

Johnson v. United States, 135 S. Ct. 25 51 (2015). Supreme Court subsequently altered the law of unconstitutional vagueness in trial, a facial vagueness challenge would have been futile,” the United States defendant here a sserts that, although “under the law in effect at the time of trial.” Brown, 138 N.H. at 652 (quotation and brackets omitted). The been futile for the defendant to object under the law in effect at the time of “recognized a limited exception to the preservation rule . . . when it would have Brown, we stated, citing State v. Nelson, 105 N.H. 184, 190 (196 3), that we had preservation requirement set forth in State v. Brown, 138 N.H. 649 (1994).” In facial challenge, we “should still address it under the exception to the The defendant nevertheless urges that, even if he failed to preserve a

counsel’s representations at” t rial. State v. Gay, 169 N.H. 232, 248 (2016). heard to complain “of the fact that the court ruled consistently with def ense defendant to be disclaiming a facial challenge. The defendant will not now be the record that the trial court could not have reasonably understood the argument from his constitutional argument, we are unable to conclude from attempts on appeal to distinguish his counsel’s statutory interpretation vagueness challenge.” We are not persuaded. Although the defendant statement, and, therefore, it “do [es] not indicate that [he] waived his facial co nstitutional vagueness challenge” when he made the second quoted The defe ndant now assert s that his counsel was not “discussing his

(Emphasis added.) and that was a facial challenge to the statute, which we are not making.” statement that “[t] his statute has been construed by one Superior Court Judge, raised a facial challenge, that interpretation is foreclosed by counsel’s alone, could be read consistently with the defendant’s assertion that he also applied, void for vagueness challenge . . . .” Eve n if this statement, taken dismiss, the defendant’s counsel stated: “And finally, I make a void -- on as for vagueness challenge was as applied, not facial. I n arguing the motion to facial challenge is provided b y the defendant’s own declaration s that his void that none existed. Further indication that the trial court did not consider a p. 13 13

Farrell, 449 F.3d at 494.

hypothetical applications of the statute. law enforcement officers and factfinders might have in other, befo re the court was not the result of the unfettered latitude that within the core of the statute’s prohibition, so that the enforcement even in the absence of such standards, the conduct at issue falls standards to eliminate the risk of arbitrary enforcement or (2) that, (1) that [the] statute as a general matter provides sufficiently clear

discriminatory enforcement,” id. at 200, will fail if we conclude either: that RSA 632 - A:10, I, “authorizes or even encourages arbitrary and Court of Appeals in Farrell. Applying that approach here, the defendant’s claim statute.” W e find instructive the approach set forth by the Second Circuit service’ would only authorize or encourage discriminatory enforcement of the the jury to determine whether [the defendant’s] activity constitutes ‘volunteer The defendant next contends that “[a] llowing the police, the prosecutor or

prohibits.” Hynes, 159 N.H. at 200. ordinary intelligence a reasonable opportunity to understand the conduct it unconst it ut ionally vague on the gr ound that “it fails to provide people of 2006). A ccordingly, we reject the defendant’s claim that the statute is understanding of th[ose] term[s].” Farrell v. Burke, 449 F.3d 470, 490 (2d Cir. applied challenge fails because his activities “fit [] within any reasonable be vague in an abstract sense or hypothetical application, the defendant’s as regardless of whether the terms “care, instruction or guidance” may arguably instruction or guidance of [a] minor child[].” RSA 632 - A:10, I. In other words, “counseling” the victim demonstrates that they plainly “involv [ed] the care, description of his activities as comprising, among other thing s, “teaching” and were am ong the prohibited activities.” We disagree. The defendant’s own counseling [the victim] and teaching [the victim] ‘manhood type principles’ — requests — helping [the victim] with Bible devotions and school work, an organization, he had no way of knowing wh ether the victim ’s father’s “understood the statute to prohibit some unpaid a ctivity outside the scope of unconstitutionally vague on both grounds. He first contends that even if he N.H. 187, 200 (2009). The defendant contends that RSA 632 - A:10, I, is encourages arbit rary and discriminatory enforcement.” State v. Hynes, 159 opportunity to understand the conduct it prohibits; or (2) it authorizes or even reasons: (1) it fails to provide people of ordinary intelligence a reasonable “A statute can be impermissibly vague for either of two independent

124 N.H. 226, 231 - 33 (1983). Constitution and rely upon federal law only to aid our analysis. State v. Ball, as - applied challenge. We first address the defendant’s claim under the State p. 14 14

on the merits. T his court and the United States Supreme Court have said that For ea se of analysis, w e begin by considering the double jeopardy claim

plain language of the statute.” The defendant challenges both rulings. in separate locations, each of which constitutes a separate offense under the undertook volunteer services with respect to the victim on separate dates and jeopardy rights.” It then determined, on the merits, t hat “[t]he defendant until well after the verdicts, the defendant has effectively waived his double raise this argument at the appropriate stage of litigation and delaying the issue procedural grounds and on the merits. The court first ruled that “[b]y failing to The trial court rejected the defendant’s double jeopardy claim both on

State v. Carr, 167 N.H. 264, 273 (2015). jeopardy presents a question of constitutional law, which we review de novo.” CONST. pt. I, art. 16; U.S. CONST. amends. V, XIV. “The issue of double double jeopardy provisions of the State and Federal Constitutions. See N.H. multiple convictions or imposing multiple punishments” in violation of the Finally, the defendant argues that the trial court “erred by entering

III. Double Jeopardy

under the State Constitution. Accordingly, we reach the same result under the Federal Constitution as we do at 200; Lamarche, 157 N.H. at 340 - 41; Farrell, 449 F.3d at 490, 494. does the State Constitution under these circumstances. See H ynes, 159 N.H. The Federal Constitution offers the defendant no greater protection than

N.H. at 200. or even encourages arbitrary and discriminatory enforcement.” Hynes, p. 15 159 RSA 632 - A:10, I, is unconstitutionally vague on the ground that “it authorizes Farrell, 449 F.3d at 494. Accordingly, we reject the defendant’s argument that enforcing officer could doubt the law ’s application in the circumstances.” substantial concern about arbitrary enforcement because no reasonable squarely in the core of what is prohibited by the law that there is no guilty to those charges. We conclude that the defendant’s conduct “falls so volunteering to provide care, instruction or guidance.” The defendant pleaded defendant was accused of sexually assaulting [the victim]. . . while he was court noted, in companion informations to the charges here at issue, “the policy concerns underlying the enactment of RSA 632 - A:10, I. As the trial minor child[].” RSA 632 - A:10, I. These activities also plainly implicated the concluded above plainly “involv [ed] the care, instruction or guidance of [a] his home unaccomp anied by his parents — all activities that we have homework, helped him build models, and took him on excursions away from defendant engaged in Bible devotions with the victim, helped him with his defendant’s co nduct “falls within the core of the statute’s prohibition.” Id. The We need not address the first prong because we conclude that the 15

relying entirely on federal law”). anything but a federal constitutional claim and propositions in State case law defendant in his appeal relating to [a certain] issue wholly failed to ra ise (finding “no reviewable State constitutional claim presented” where “the c onstitutional claim. Cf. State v. Rodney Portigue, 125 N.H. 352, 361 (1984) and consider the defendant’s double jeopardy c hallenge t o be solely a f ederal unit of prosecution intended by the legislature, cf. id. at ___ (slip op. at 16 - 17), 2017) (slip. op. at 16). Accordingly, we confine our review to analysis of the jeopardy challenge.” State v. Lynch, 169 N.H. ___, ___ (decided March 10, “an inquiry that we have often utilized when addressing a federal double on this issue, focus upon the unit of prosecution intended by the legislature, (2001) (same). Rather, both parties ’ arguments, and the trial court’s analysis solely as a statutory construction claim); State v. Ayotte, 146 N.H. 544, 549 Balch, 167 N.H. 329, 331 - 32 (20 p. 15 15) (“unit of prosecution” issue presented cases to ask us to reconsider our double jeopardy jurisprudence”); cf. State v. consistently applied our “same evidence” test and “invit[ing] p arties in future State v. Locke, 166 N.H. 344, 351, 353 (2014) (noting that our cases have not elements of the crime as charged will require a difference in evidence”); see also description’ and ‘unit of prosecution’ cases, we examine whether proof of the State Constitution. See Ramsey, 166 N.H. at 51 (noting that “[i]n both ‘double address the test we have generally applied to double jeopardy claims under our Constitution. Ball, 124 N. H. at 231. Here, however, the defendant does not Ordinarily, we would first address the defendant’s claim under the State

of prosecution.” ellipsis omitted). This case is of the second variety, involving the proper “unit State v. Ramsey, 166 N. H. 45, 51 (2014) (quotations, citations, brackets, and

more than one violation of a single statutory provision. that a defendant’s continuing course of conduct is fragmented into same course of conduct is proscribed by more than one statute but are “unit of prosecution” c ases in which the problem is not that the merely different descriptions of the same offense. Second, there issue is whether two statutes describe two separate offenses or are there are the so - called “double - description” cases, in which the Multiple punishment cases c ome in two varieties. First,

with [the victim] . . . constituted, at most, one offense.” defendant raises a multiple punishment s claim, arguing that his “activities 497 - 98 (1984); N.H. CONST. pt. I, art. p. 16 16; U.S. CONST. amends. V, XIV. The punishments for the same offense. See id.; Ohio v. Johnson, 467 U.S. 493, for the same offense after conviction; and (3) protection against multiple the same offense after acquittal; (2) protection against subsequent prosecution double jeopardy protections: (1) prote ction against subsequent prosecution for t he double jeopardy clauses of our respective constitutions provide three 16

oneself under obligation to perform.” Webster’s Third New International u pon,” “set about,” “to take upon oneself solemnly or expressly,” and “put definition of “undertake” includes such phrases as “to take in hand,” “enter “undertakes,” however, contravenes the State’s assertion. The dictionary guidance of minor children,” RSA 632 - A:10, I. The plain meaning of performance or provision of a ny “service involving the care, instruction or mean s “performs” or “provides,” so that the unit of prosecution is each The State ’s argument suggest s that the term “undertakes” essentially

victim.” which the defendant engaged in the care, instruction, or g uidance of the that “[t]he appropriate unit of prosecution should be each separate instance in participation in three distinct fields of volunteer service.” The State concludes Use of the disjunctive conjunction ‘or’ signals t hat the legislature is prohibiting further described by the object complements ‘care, instruction or guidance.’ asserts that “[t]he direct object of ‘undertakes’ is ‘volunteer service,’ which is viewed in the context of surround ing statutory text.” Specifically, the State argues that “[t]he legislature’s use of the word ‘undertakes’. . . should be considers “undertakes” to be “[t]he operative word” in RSA 632 - A:10, I,” it in the car e, instruction, or guidance of the victim.” Although the State also prosecution should be each separate instance in which the defendant engaged The State, on the other hand, argues that “[t]he appropriate unit of

of ‘employment or volunteer service,’ they constitute a single offense.” different towns, as long as they take place pursuant to a single ‘undertak[ing]’ or guidance, and even if those acts take place over a period of time and in contends that “even if an individual provides multiple acts of care, instruction and teach him ‘manhood type p rinciples’ was a single ‘undertaking.’” He [the victim] with Bible devotions and school work and to counsel [the victim] I], ‘undertak[ing]’ is the unit of prosecution,” and that his “agreement to help The defendant argues that “[u]nder the plain language of [RSA 632 - A:10,

2014). statutory construction.” United States v. Yazzie, 743 F.3d 1278, 1294 (9th Cir. (addressing federal constitutional challenge). “The issue is therefore one of prosecution intended by the legislature.” Jennings, 155 N.H. at 777 choice” in defining the offense). Specifically, “we must determine the u nit of more distinct ‘offenses’ under the statute depends on th[e] congressional 70 (1978) (noting that “[w]hether a particular course of conduct involves one or of legislative intent” (citations omitted)); Sanabria v. United States, 437 U.S. 54, Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one determine punishments is vested with the legislature, the question under the 499 (noting that “[b]ecause t he substantive power to prescribe crimes and State v. Stratton, 132 N.H. 451, 455 (1989); see Ohio v. Johnson, 467 U.S. at States Constitution requires us to consider the legislature’s articulated intent.” “[O] ur review of the defendant’s double jeopardy claim under the United p. 17 17

[to] put [the victim] back, put him towards his p arents as the authority figures the defendant “agreed wholeheartedly that he was doing everything he could do parents as the authority figures in his life.” According to the father’s testimony, to make sure that [the victim] was being put back and pushed towards his family and conveyed to the defendant that he and the victim ’s mother “wanted January 9, he “voiced [his] concern” that the victim was withdrawing from the undertaking.” The father testified that in a tele phone call to the defendant on father’s contact with him on January 9 did “not [constitute] a separate from January 6 t hrough January 10. We agree with the defendant that the that encompassed all of the defendant’s volunteer service related to the victim We also conclude that this was a single “undertak[ing],” RSA 632 - A:10, I,

father’s tele phone call with the defendant on January 6. “undertak[ing]” within the meaning of RSA 632 - A:10, I, resulted from the parents to provide those services to their child. We conclude, therefore, that an counseling children, and that he made an arrangement with the victim’s defendant portrayed himself as a teacher of Bible studies with experience in “help[ing] [him] out with counseling.” Thus, the evidence showed that the doing Bible devotions with him, possibly helping him with his schooling, and defendant on January 6, “and asked him if he would help [the victim] out” by counseled troubled youngsters.” The victim’s father testified that he call ed the activities,” and in particular, had “spoke[n] of previous encounters where he testimony, “had mentioned that he had counseled boys in the past from church good biblical counsel for our boy.” The defendant, according to the father’s defendant], we had thought that he was a good resource as far as getting some father testified that when he and his wife “attended the Bible studies with [the help [the victim] out” including “getting some kind of biblical counsel.” The holiday season, he and the victim’s mother “were searching for some way to ‘undertaking.’” T he victim’s father testified that following the difficult 2013 counsel [the victim] and teach him ‘manhood type principles’ was a single “agreement to help [the victim] with Bible devotions and school work and to Having so construed the statute, we agree with the defendant that his

guidance of minor children.” RSA 632 - A:10, I. the provision or perform ance of “service involving the care, instructio n or prosecution intended by the legislature is each separate arrangement made for Accordingly, we conclude that, as applicable to this case, the unit of opportunities for themselves to do so.” Laws 1988, 257:1 (emphasis added). attempts of “those who seek to exploit and abuse children . . . to c reate This conclusion is reinforced by the statute’s stated purpose of thwarting the the making of an arrangement, or the placing of oneself in a position, to do so. care, instruction or guidance of minor children,” RSA 632 - A:10, I, but, rather, act criminalized by the statute is not the provision of “service involving the position to provide or perform the prohibited services. Said another way, the used in RSA 632 - A:10, I, connotes an arrangement or placement of oneself in a Dictionary 2491 (unabridged ed. 2002). Thus, we conclude that the term, as p. 18 18

against the defendant were multiplicitous. “undertak [ing]” in violation of RSA 632 - A:10, I. Accordingly, the indictments occurring from January 6 through January 10 constituted only one above that all of the defendant’s volunteer service related to the victim and 10, 2014, in Hopkinton; and (4) January 10, 2014, in Concord. We concluded January 7, 2014, in Hopkinton; (2) January 7, 2014, in Concord; (3) January charging him with separate violations of RSA 632 - A:10, I, on or about: (1) 1997). Here, the State brought four indictments against the defendant indictments.” United States v. Carrasco, 968 F. Supp. 948, 949 (S.D.N.Y. “Multiplicity occurs when a single crime is separated into two or more

Brown v. State, 535 A.2d 485, 487 - 88 (Md. 1988). conviction s for the same offense, and multiple sentences for the same offense.” albeit related, ways: multiplicity in the indictment or information, multiple violations of a single statutory offense affects an accused in three distinct, note that “[w] hether a particular course of conduct constitutes one or more timeliness of the defendant’s double jeopardy motion, it is now us eful to also Ramsey, 166 N.H. at 51 (quotation and brackets omitted). To address the fragmented into more than one violation of a single statutory provision.” more than one statute but that a de fendant’s continuing course of conduct is in which the problem is not that the same course of conduct is proscribed by noted that it falls under the category of so - called “‘unit of prosecution’ cases[,] In address ing the defendant’s double jeopardy claim on the merits, we

defendant asserts that his double jeopardy challenge was timely brought. failing to raise them “at the appropriate stage of litigation.” On appeal, t he court ruled that the defendant “effectively waived his double jeopardy rights” by it likewise — as a “motion to dismiss three of his four convictions.” The trial capitalization omitted.) T he trial court treated this objection — and we refer to jeopardy [objec tion] to multiple convictions.” (B olding, underlining and procedural grounds. On November 2 0, 20 14, the defendant filed a “double We now turn to the dismissal of the defendant’s double jeopardy claim on

v. Johnson, 467 U.S. at 499; Sanabria, 437 U.S. at 70 - 71. violation of the double jeopardy provision of the Federal Constitution. See Ohio sentences therefor, constitute multiple punishments for the same offense in only one “undertak[ing],” the defendant’s four separate convictions, and the “undertak[ing].” RSA 632 - A:10, I. Because the evidence at trial established scope of the arrangement did not change so as to create a new, separate agreed - upon services emphasized or prioritized over others, the nature and Although the victim ’s father indicated that he wanted a c ertain aspect of the constitute a new arrangement or “undertak[ing]” pursuant to RSA 632 - A:10, I. be seen as ongoing feedback regarding an established arrangement and did not in his life.” (Emphasis added.) We conclude that this communication can best p. 19 19

98(G). Specifi cally, we find cases applying t he federal rule applicable to pretrial this case was fatally untimely under former Sup erior C ourt Criminal R ule jurisdictions for guid ance in determining whether the defendant’s motion in confine [d] our review to plain error.” Id. We similarly now look to other [his] claim in a timely fashion d [id] not preclude all appellate review, but rather 12(b)(3)(B). Id. W e ultimately concluded that the defendant’s “failure to raise for guidance, and specifically cited Fed eral R ule of Crim inal P rocedure 590. We c it ed cases from other jurisdictions — the majority of them federal — its case, was untimely under [Superior Court Rule 98(F)].” Ortiz, 162 N.H. at we held that the defendant’s mid - trial challenge, brought “after the State rested brought within time specified in rule), with Super. Ct. Crim. R. 98(G). In Ortiz, (requiring all pretrial motions other than discovery - related motions to be compare Super. Ct. R. 98(F) (retitled 2013) (amended 2014) (deleted 2016) v. Ortiz, 162 N.H. 585, 590 (2011) (applying former Superior Court Rule 98(F)); defect in an indictment as being sub ject to a comparable prior rule. See State Sup er. Ct. Crim. R. 98(G). We have treated a motion challenging an alleged

scheduling order. may order for good cause shown or may provide for in a pretrial guilt y or within such other time in advance of trial as the Court not more than sixty (60) calendar days after entry of a plea of not motions to suppress and motions to sever charges or defendants, related motions, including but not limited to motions to dismiss, The parties shall file all pretrial motions other than discovery

Former Superior Court Criminal Rule 98(G) provided:

Rule 98(F)). ( p. 20 2011) (reviewing denial of motion to suppress under former Superior Court unsustainable exercise of discretion.” State v. Knight, 161 N.H. 338, 341 decision to deny a motion . . . as untimely [under for mer Rule 98(G)] for an determine whether it is sustainable on that basis. “We review the trial court’s court order is a question of law, which we review de novo”), and we now Matter of Sheys & Blackburn, 168 N.H. at 39 (noting that “interpretation of a untimeliness ruling to be an enforcement of former Rule 98(G), see In the Herzog, 644 F.2d. at 716. Accordingly, we interpret the trial court’s criminal procedure requiring certain issues to be raised by pretrial motion. 713 (8th Cir. p. 19 1981), was decided, in part, based up on the federal rule of in support of the court’s untimeliness ruling, United States v. Herzog, 644 F.2d conference.” In addition, the only “unit of prosecution” multiplicity case cited defendant’s counsel “failed to disclose the anticipated moti on at the pretrial Order of January 20, 2016). Specifically, the court ’s order state s that the governing pretrial motions. See Super. Ct. Crim. R. 98(G) (deleted by Sup. Ct. that the order was premised upon former Superior Court Criminal Rule 98(G), untimeliness ruling. Nevertheless, the court’s narrative and analysis indicate T he trial court did not explicitly cite the authority up on which it based its 20

former Fed eral R ule of Crim inal P rocedure 35); see Fed. R. Crim. P. 35, 18 defendant may move that his sentence be corrected.” Id. at 722 (referencing Id. at 721 - 22. The court noted that “Rule 35 provides that in such a case the

the erroneous sentence because of any waiver. that multiplicitous indictment the defendant is not forced to serve not required; however, if sentences are imposed on each count of effect of Rule 12 is that dismissal of a multiplicitous indictment is objections with regard to the error in the indictment itse lf; the nature of an indictment is a non sequitur. Rule 12 applies only to of multiple sentences by his failure to object to the multiplicitous The ar gument that one waives his right to object to the imposition

Nevertheless, it concluded: the defense of multiplicity is not raised prior to trial, it is waived.” Id. at 721. Appeals for the Sixth Circuit started with the premise that under Rule 12, “if Rosenbarger, 536 F.2d at 721 - 22. In Rosenbarger, t he United States Court of different issue than a challenge to multiplicitous indictments or convictions. F.2d 715 (6th Cir. 19 76), treats a challenge to multplicitous sentences as a The first line of cases, e xemplified by United States v. Rosenbarger, 536

(collecting cases). States v. Stewart, 246 F.3d 728 (D.C. Cir. p. 20 2001); Griffin, 7 65 F.2d at 680 - 81 250 (D.C. Cir. 1992) (collecting cases), abrogated on other grounds by United be divided into two categories. See, e.g., United States v. Harris, 959 F.2d 246, from objecting to the multiple convictions”). In general, t heir approaches c an although his failure to object to the indictment prior to trial preclude[d] him (11th Cir. 1984) (holding that defendant could “challenge his sentences, multiplicity claim pretrial); United States v. Mastrangelo, 733 F.2d 793, 800 vacate or set aside sentence in part because defe ndant failed t o raise Griffin, 765 F.2d 677, 680 - 82 (7th Cir. 1985) (affirming denial of petition to either the convictions, the sentences, or both. See, e.g., United States v. multiplicity challenge in a pretrial motion waived that claim with respect to committee note (2014), federal courts grappled with whether failure to raise a in the 2014 amendment s to Rule 12, see Fed. R. Crim. P. 12(b)(3) advisory Before the explicit reference to multiplicity was added to Rule 12(b)(3)(B)

offense in more than one count (multiplicity).” Fed. R. Crim. P. 12(b)(3)(B). defect in the indictment or information, including . . . charging the same merits.” Fed. R. Crim. P. 12 (b) (3). Explicitly included in the specified list is “a reasonably available and the motion can be determined without a tr ial on the requests must be raised by pretrial motion if the basis for the motion is then Rule 12(b)(3) provid es that certain specified “defenses, objections, and

instructive to our analysis of former Superior Court Criminal Rule 98(G). motions — Fed eral R ule of Crim inal P rocedure 12(b)(3) and its predecessors — p. 21 21

raised before trial, the court stated that “[a] double - jeopardy objection is such 12(b)(3) generally requires motions alleging a defect in the indictment to be F.3d 727, 740 (8th Cir. 2015). In Anderson, for example, after noting that Rule Harris has been read into Rule 12(b)(3). See United States v. Anderson, 783 Even after the 2014 amendments to Rule 12, the reasoning embodied in

and 8th C ircuits). Fed eral R ule of Crim inal P rocedure 12(b)(2) and ca ses from 1st, 2d, 4th, 7th based o n the indictment, Rule 12(b)(2) applies.” Id. at 250 (citing former appeals [in] hold[ing] that if the multiplicity objection could have been raised 51 (emphasis added). In so doing, the court followed “[t]he majority of courts of the indictment, falls clearly within the letter and spirit of the rule.” Id. at 250 multiplicity, at least in the typical case where the defect appears on the face of Harris, 959 F.2d at 250. Accordingly, the court held that “[a] claim of meritorious challenges, and to do so without disrupting an ongoing trial.” pretrial objections and, of course, to permit the prosecution to accommodate in the indictment early enough to allow the [trial] court to focus on their the Harris court noted, “is to compel defendants to object to technical defects to be raised pretrial), with Fed. R. Crim. P. 12(b)(3). “The purpose of the rule,” 2014) (requiring “[d]efenses and objections based on defects in the indictment” Appendix – Rules of Criminal Procedure at 752 (1988) (amende d 1993, 2002, Criminal P rocedure 12(b)(2)); compare Fed. R. Crim. P. 12(b)(2), 18 U.S.C. not in the indictment.” Harris, 959 F.2d at 250 (citing former Fed eral R ule of defect s contemplated by Rule 12 (b)(2), because it is a defect in the sentencing, rejected the argument “that a multiplicity objection is not included within the and sentences in multiplicity cases). I n Harris, the District of Columbia Circuit v. State, 535 A.2d at 487 (noting relationship between indictments, convictions convictions, which, in turn, result from multiplicitous indictments. Cf. Brown in ot her words, multiplicitous sentences necessarily result from multiplicitous derivatively related, so too are any multiplicity problems associated with them; that because the indictment, conviction, and sentence for an offense are In t he second line of cases, courts appear to recognize, at least implicitly,

Bradsby, 628 F.2d 901, 906 (5 th Cir. 1980); Mastrangelo, 73 3 F.2d at 800. Eleventh Circuits adopted the Rosenbarger approach. See United States v. Rosenbarger, 536 F.2d at 722 (quotation and brackets omitted). The Fifth a nd

appeal rather than remi t the parties to a new collateral proceeding. appropriate, whenever possible, to correct errors reachable by the than to wait for defendant to file a Rule 35 motion as it is more proper for this Court to resolve the issue on direct appeal rather [S]ince the defect in the sentence is apparent from the record, it is

chose, however, to correct the sentence in the case then before it, reasoning: 1983, 1984, 1985, 1986, 1991, 1998, 2002, 2004, 2007, 2009). T he court U.S.C. Appendix – Rules of Criminal Procedure at 14 61 (19 76) (amended 1979, p. 22 22

without a trial on the merits,” Fed. R. Crim. P. 12(b)(3), we conclude that basis be “then reasonably available” and that “the motion can be determined limiting language similar to the federal rule’s requirements that the motion’s Although former Superio r Court Criminal Rule 98(G) did not conta in

that are apparent on the face of the indictment — eminently reasonable. raised pretrial pursuant to Fed eral R ule of Criminal P rocedure 12(b)(3) to those in the Harris line of cases — limiting the multiplicity defects that must be reasonably be expected to be aware. Accordingly, we find the approach taken of waiving his claim, a defect in the indictment of which he could not potentially great injustice — in requiring a defendant to challenge, on penalty prese nts evidence at trial.” Griffin, 765 F.2d at 681. We see little logic — but appear in various forms and may not be apparent until after the government least touches upon the valid observation that “multiplicity problems may when he faced the prospect of multiple convictions.” Thus, hi s argument at t he defendant argues that his double jeopardy “challenge only became ripe readily lend themselves to analysis under the Harris approach. In particular, By contrast, t he trial court ’s ruling, an d the defendant’s challenge to it,

nor briefed that issue. Accordingly, we leave it for another day. violat e double jeopardy. Finally, the parties to this case have neither presented challenge, u nder our illegal sentence jurisprudence, sentences that plainly whethe r a defendant in the circumstances of th e defendant in this case could routinely corrected on plain error review”). We have never directly addressed impose a sentence, that “[i]mposition of an illegal sentence is a serious error (2008) (noting, in a case challenging the trial court’s statutory autho rity to collaterally challenge an illegal sentence); State v. Sideris, 157 N.H. 258, 264 e.g., State v. Kinne, 161 N.H. 41, 46 (2010) (noting that a petitioner can case law dealing with challenges to illegal sentences is relatively sparse. See, correct an illegal sentence), we have not yet interpreted it. Furthermore, our P rocedure 35, see N.H. R. Crim. P. 29(i) (providing court has discretion to procedural rule somewhat analogou s to former Fed eral R ule of Crim inal a pply the Rosenbarger approach in this case. Although New Hampshire has a under the reasoning of either Rosenbarger or Harris. W e decline, however, to Under the facts of this case, the defendant could potentially prevail

limitatio n on review imposed by [Rule 12]”). that a claim a party could not have raised on time is not subject to the (stating that the “‘then reasonabl y available’ language is intended to ensure Rules of Criminal Procedure at 1104, advisory committee note (Supp. 2014) Anderson, 783 F.3d at 740; see Fed. R. Crim. P. 12(b)(3), 18 U.S.C. Appendix – “can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3); motion’s basis as being “then reasonably avai lable” and the motion as one that that caveat to be implicit ly contained i n Rule 12(b)(3)’ s language describing the omitted) (emphasis added). The court’s citations make clear that it considered an alleged defect if it appears on the face of the indictment.” Id. (quo tation p. 23 23

victim ’s initials and date of birth]; care, instr uction or guidance of a minor child, [specifying the 1. [The defendant] did engage in volunteer service involving the

prohibition from child care service s contrary to RSA 632 - A:10,” in that: Hopkinton, New Hampshire,” the defendant “commit[ted] the crime of c harged, in relevant part, that “[o] n or about the 7 th of January, 2014 at The defendant here was charged in four separate indictments. The f irst

Ortiz, 162 N.H. at 589. of the word ‘pattern’” — would have been apparent on the indictment’s face. alleged defect — that the indictment failed to “include the statutory definition indictment was untimely under former Superior Court Rule 98(F), because the det ermination in Ortiz that the defendant’s challenge to an alleged defect in the the indictments. We note that this holding does not conflict with our the prescribed time limits unless the multiplicity defect appeared on the face of 98(G) did not require a multiplicity issue to be raised by pretrial motion within (7 th Cir. 1992) (citation omitted). Accordingly, we now hold that former Rule delay raising such a challenge.” United States v. Wilson, 962 F.2d 621, 626 is still fresh, and by preventing defendants from making a tactical decision to allowing courts to assess double jeopardy defects in indictments while evidence cases — an approach described as “promot [ing] fairness and efficiency by closely correspond to reasons given for the approach taken in the Harris line of by giving both parties the maximum amount of information.”). These goals recognized that justice is best served by a system that reduces surprise at trial proceeding”); cf. State v. Cromlish, 146 N.H. 277, 280 (2001) (“We have long criminal rules is to eliminate any elements of gamesmansh ip from a criminal 267, 274 (Ohio Ct. App. 2013) (noting that “[t]he general purpose of the surprise.” Baliban, 2009 WL 1477933 at *2; see State v. Breedlove, 999 N.E.2d party from, among other things, seeking to gain a tactical advantage through of criminal procedure also “advance judicia l administration by preventing a administration and the elimination of unjustifiable expense and delay”). R ules criminal proceeding” and “to secure simplicity in procedure, fairness in Procedure “shall be construed to provide for the just determination of every N.H. R. Crim. P. 1(b) (providing that the New Hampshire Rules of Criminal 2009) (interpreting Rule 1.2 of the Arizona Rules of Criminal Procedure); cf. Baliban, No. 1 CA – CR 08 – 0263, 2009 WL 1477933 at *2 (Ariz. Ct. App. May 26, procedure, mandating fair notice and an opportunity to respond.” State v. criminal rules in other jurisdictions, such as, “to provide for orderly pretrial they were undoubtedly intended to serve purpose s similar to those under l ying an explicit statement of purpose t o help guide our interpretation; n evertheless, Criminal Procedure 12(b)(3). O ur previous rules of criminal procedure lacked Court Criminal Rule 98(G) in light of the Harris approach to Federal Rule of similar purposes under lying the rules allow us to interpret former Superior p. 24 24

DALIANIS, C.J.