2019-0072, State of New Hampshire v. Joshua L. Shaw

requires the State to prove that the defendant “refused to produce his driver’s filed; and (2) instructing the jury tha t the crime of disobeying an officer involving the police officers in his case and any prior “use of force” reports they by: (1) denying his motion for in camera review of any disciplinary actions 265:4, I(e) (2014). On appeal, he argues the Superior Court (Delker, J.) erred I(g); resisting arrest, see RSA 642:2 (2016); and disobeying an officer, see RSA enhanced simple assault, see RSA 629:1 (2016); RSA 631:2 - a, I(a); RSA 651:6, simple assault, see RSA 631:2 - a, I(a) (2016); RSA 651:6, I(g) (2016); attempted sus pension, see RSA 263:64 (2014), and misdemeanor counts of enhanced conviction following a jury trial for a violation count of driving after license HANTZ MARCONI, J. The defendant, Joshua L. Shaw, appeals his

brief and orally, for the defendant. Stephanie Hausman, deputy chief appellate defender, of Concord, on the

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior

No. 2019 - 0072 Rockingham

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

times that he was under arrest and had to exit the truck, but he refused. The the door you. . . . Get the f*** off me !” The officers told the defendant several shut, locked it, rolled up the window, and yelled, “Get your f***ing hands off refused to do so. Feole tried to open the doo r, but the defendant slammed it truck, and Feole told the defendant to leave the vehicle; however, t he defendant Fitzgerald arrived on the scene. Feole, MacKenzie, and Genest approached the Feole radioed for backup. Officer MacKenzie, Sergeant Genest, and Lieutenant estimated that the defendant weighed approximately twice as much as he, Feole i nformed the defendant that he was under arrest, and because he

needed to do. You might as well get your supervisor right out here.” me.. . . I was just up to the, uh, child support. I’ve already do ne everything I just get right on with it, so I can sue the company, sue the State. It’s good to defendant said, “W ell, then, let’s get on with the getting arrested then. Let’s was committing a misdemeanor for which he could b e arrested. To this, the Feole calmly explained that, by refusing to give him the license, the defendant refused, f olded papers around the card, and put the card back in the visor. When Feole asked if the d efendant would hand him the license, the defendant couple of weeks ago,” and that, therefore, there was no reason for the stop. from the visor, telling Feole that “his license was all good,” that he “got it a At one point, the defendant removed a card, which looked like a license,

defendant’s girlfriend started to record the encounter with her cell phone. confirmed that he was, but still refused to give Feole his license. The the defendant if he was the registered owner of the trailer, and the defendant license. Feole explained again why he had pulled over the vehicle. Feole asked registration, t he defendant was immediately hostile and refused to provide his between them. When Feole asked the defendant for his license and driver’s seat, his girlfri end was in the passenger seat, and there was a large dog despite his privilege for doing so being suspended. The defendant was in the that the defendant was the registered owner of the trailer and was driving because its rear license plate was obscured by snow and because he suspected vehicle, introduced himself, and explained that he had stopped the vehicle Upon pulling over the truck, Feole walked to the driver’s side of the

pay child support. New Hampshire operating privileges had been suspended in p. 2 2015 for failing to number and discovered that the trailer was registered to the defe ndant whose trailer with a visible Michigan registration. Feole ran the Michigan registration t ruck’s registration sticker was not visible, but the truck was pulling a utility its rear plate area completely covered in snow. Because of the snow, the Salem Police Officer Feole was on patrol, he saw a pickup truck pass by with The jury could have found the following facts. On March 14, 2018, while

by the officer.” We affirm. license on demand of a law enforcement officer for the purpose s of examination p. 3 3

under neath his body. defendant from the truck. He landed o n his stomach and tucked his hands grip on the steering wheel. Then, Feole, Fitzgerald, and Genest pulled the MacKenzie hit the defendant’s hands and wrists until the defendant lost his wheel. Genest wrapped his arms around the defendant’s head and pulled. out. The defendant punched at Genest and Feole and held onto the steering The dog left the truck, and Genest and Feole tried to pull the defendant

truck and stopped recording the encounter. unlocked the passenger side door. The defendant’s girlfriend got out of the Genest broke the window, and after more yelling from the defendant, Genest or else he was g oing to smash her window. She yelled, “No, no, no! My dog!” Genest told the defendant’s girlfriend to open her door and exit the truck

administered another drive stun. lock the passenger side door. After more yelling from the defendant, MacKenzie The defendant yelled, “Nobody’s getting out of this vehicle,” and reached over to the vehicle. She refused even after being told that she, too, was under arrest. knocked on the passenger side door and told the defendant’s girlfriend to exit The officers then went to the passenger side of the truck. Genest

pulled out the prongs, but did not open the door. MacKenzie repeatedly yelled to the defendant to open the door. The defendant it again.” Genest then fired his taser ’s prongs into the defendant, and he and Genest pulled out his taser and told the de fendant, “Open that door. You’ll get that he was being arrested for assaulting two police officers. At this point, resisting.” When the defendant asked why he was being arrested, he was told wrong with you gu ys ?” An officer responded, “You’re under arrest. You’re The defendant continued to resist, yelling, “You guys. What the f*** is

held against the skin of a target, but the taser’s prongs are not fired. leg and administered a “drive stun,” which occurs when the end of the taser is them out and kept fighting. MacKenzie then put the taser on the defendant’s fired his taser ’s second set of prongs into the defendant; the defendant pulled defendant to open the door, but he kept kicking and punching. MacKenzie a set of ke y s held between his knuckles. The officers repeatedly ordered the away and continued kicking at the officer s and swinging his fist s at them, with MacKenzie fired his taser ’s prongs into the defendant, who swatted them

window, and yelling, “Get out of he re. Get the f*** off.” window, he began throwing punches, kicking his feet at them through the unable to do so. As the officers tried to pull the defendant through the truck flashlight, a nd the officers attempted to unlock the driver’s side door, but w ere When the defendant failed to exit, Genest smashed the truck window with his have to smash the window and pull him out because he was under arrest. officers informed the defendant that if he did not exit the truck, they would p. 4 4

fact, followed by the officers involved in the defendant’s case. Thus, the State the police department’s internal policies regardin g the use of taser s were, in involved in the arrest of [the other individual].” The State also contended that that were involved in the traffic stop and arrest of the Defendant that were also the court that, contrary to the defendant ’s speculation, “[t]here were no officers contain ed evidence relevant and material to his defense. The State informed there was a reasonable probability that the personnel files of the officers defendant ha d failed to meet his burden under Gagne of demonstrating that The State objected, citing RSA 105:13 - b (2013), and asserting that the

internal practices and procedures. officers who used taser s on him did not follow the Salem police department’s very well have” been in volved in that earlier arrest. He further noted that the of force and use of taser s,” and that some of the officers who arrested him “may that the arrest of another individual earlier in 2018 “involved an excessive use force employ ed by these officers is highly relevant to this defense.” He observed concerning disciplinary actions of the involved officers and any previous use of the Salem Police officers.” He argued, “By way of example, information “any force used by him was justified due to the excessive and unlawful force of that an in - camera review will reveal information relevant to [his] def ense” that to a privilege.” The defendant asserted that “[t]here is a reasonable probability method to be employed when [a] defendant seeks materials which are subject 101 (1992), the defendant argued that in c amera review “is the appropriate Salem Police officers involved in [his case].” Citing State v. Gagne, 136 N.H. and “information concerning any and all disciplinary actions regarding the individual and involving any of the Salem Police officers inv olved in [his case]” “information concerning any and all matters whereby force was used on an Before trial, the defendant filed a motion for in camera review of

I. Motion for In Camera Review

it. his left arm out from under his stomach, and the officers pl aced handcuffs on however, so DiChiara gave him another direct shock. The defendant then took and place handcuffs on it. The defendant refused to release his left arm, released his right arm sufficiently so that Feole could put it behind his back ineffective, Feole punched the defendant in the rib area. The defendant Because verbal commands, “soft - hand controls,” and taser use had been

defendant again resisted. on his bare back. Feole again tried to pull the defendant’s right arm, but the resisted. DiChiara pulled out his taser and gave the defendant a direct shock refused. When they tried to pull his arms out from under his stomach, he repeatedly ordered the defendant to put his arms behind his back, but he Two more officers arrived, Officers DiChiara and DeFeudis. Officers p. 5 5

purposes of obtaining or reviewing non - exculpato ry evidence in witness or prosecutor in a criminal case shall be opened for the III. No personnel file of a police officer who is serving as a

is exculpatory, an in camera review by the court shall be required. II. If a determination cannot be made as to whether evidence

guilt. paragraph is an ongoing duty that extends beyond a finding of evidence that should have been disclosed prior to trial under this disclosed to the defendant. The duty to disclose exculpatory officer who is serving as a witness in any criminal case shall be I. Exculpatory evidence in a police personnel file of a police

RSA 10 p. 5 5:13 - b provides:

to the prejudice of his case. Id. demonstrate that the trial court’s decision is clearly untenable or unreasonable N.H. 691, 694 (200 p. 5 5). To satisfy this standard, the defendant must our unsustainable exercise of discretion standard. State v. Ainsworth, 151 We review trial court de cisions on the management of discovery under

police files.” (Bolding omitted.) burden to trigger in camera review of the police personnel or other internal forth in the State’s objection and stated: “The defendant has failed to meet [his] without the evidence.” The trial court den ied the motion for the reasons set consequence to the determination of the action more probable than it would be reports will not have any tendency to make the existence of any fact that is of defense. In short, the State argued, “[t]he disclosure of prior use of force officers’ prior use of force was relevant to whether or not he acted in self - State further asserted that the defendant had failed to establish that the presented by the defendant regarding whether he acted in self - defense.” The contained in the video and the [officers’] testimony, as well as any evide nce The State contended that “the jury can draw conclusions based on the evidence could use on cross - examination to explore the officers’ use of force against him. girlfriend of nearly the entire encounter between him and the police, which he the State had already pro vided a cell phone video taken by the defendant’s regarding the use of force against other individuals we re not relevant because The State also argued t hat the reports requested by the defendant

be disclosed to the Defendant.” The State asserted: “That is not the case here.” contained in the officer[s’] personnel files relating to their credibility, it would The Stat e further contended that “[i]f there was exculpatory information

personnel records are refuted by the evidence in the case.” argued, “[b]oth of the Defendant’s reasons for requesting the officer[s’] p. 6 6

standard[.]. . . [U] pon a showing by the defendant that favorable, Constitution affords defendants greater prote cti o n than the federal to undermine co nfidence in the outcome. . . . [T] he New Hampshire been different. A reasonable probability is a probability sufficient disclosed to the defense, the result of the proceeding would have there is a reasonable probability that, had the evidence been Favorable evidence is material under the federal standard only if to information that is material to guilt or to punishment. T he prosecutor’ s constitutional duty of disclosure extends only

. .. .

underlies the duty to disclose. than the ability of counsel to ferret out concealed information, defendant requests the information. Essential fairness, rather impeach the St ate’ s witnesses, and applies whether or not the both exculpatory information and inform ation that may be used to defendants receive fair trials. The duty to disclose encompasses constitutional right to due process of law, and aims to ensure that punishment. This obl igation arises from a defendant’ s favorable to the defendant that is material to either guilt or [I]n a criminal case, the State is obligated to disclose information

we explained in Duchesne: and brackets omitted); compare RSA 105:13 - b, with RSA 105:13 - b (2001). As Hillsborough County Attorney, 1 p. 6 67 N.H. 774, 781 (2015) (quotation, ellipsis, procedure set forth in paragraph III of RSA 105:13 - b.” Duchesne v. contained in a confidential personnel file that may be obtained through the defendant under the State and Federal Constitutions, and other information have recognized between exculpatory evidence that must be disclosed to the As amended in 2012, RSA 105:13 - b “explicitly codifies the distinction we

RSA 105:13 - b.

returned to the poli ce department employing the officer. remainder of the file shall be treated as confidential and shall be applicable rules regarding evidence in criminal cases. The case shall be released to be used as evidence in accordance with all portions of the file which the judge determines to be relevant in the contains evidence relevant to the criminal case. Only those the file in camera and make a determination as to whether it the officer to deliver the file to the judge. The judge shall examine cause exists, the judge shall order the police department employing relevant to that criminal case. If the judge rules that probable that probable cause exists to believe that the file contains evidence that criminal case, unless the sitting judge makes a specific ruling p. 7 7

the Gagne standard of relevance and materiality. See, e.g., Ainsworth, 151 N.H. at 694 - 95. Gagne, 136 N.H. at 105. In cases construing the pre - 2012 version of RSA 105:13 - b, we applied probability that the records contain information that is material and relevant to his defense.” confidential and/or privileged records under Gagne, “the defendant must establish a reasonable the principles set forth in Gagne.” Puzzanghera, 140 N.H. at 10 p. 7 7. To trigger in camera review of probable cause to believe the file contains evidence relevant to his case in a manner analogous to review of a police officer’s personnel file under RSA 105:13 - b, the defendant must establish In cases construing the pre - 2012 version of RSA 105:13 - b, we held that “to trigger an in camera 1

Gagne, 136 N.H. at 105; see State v. Puzzanghera, 140 N.H. 105, 10 p. 7 7 (1995). 1 the records contain information that is. . . relevant” to a defendant’s case. “Probable cause,” in this context, refers to “a reasonable probability that

contains evidence relevant to the particular criminal case.” Id. at p. 7 782. makes a specific finding that probable cause exists to believe that the file file to examine the same for non - exculpatory evidence unless the trial court with our case law, this paragraph prohibits the opening of a police personnel constitutionally required to disclose to the defense. See id. at 778. “Consistent “Non - exculpatory” means relevant evidenc e that the State is not nonetheless be relevant to a case in which an officer is a witness.” Id. at 782. “Finally, paragraph III covers evidence that is non - exculpatory but may

review.” Id. exists, the evidence at issue is to be submitted to the court for in camera exculpatory.” Id. at p. 7 781. Paragraph II “directs that, where such uncertainty whether evidence contained within police personnel files is, in fact, “Next, paragraph II covers situations in which there is uncertainty as to

disclose to the defense. See id. at p. 7 778. guilt or punishment, evidence that the State is constitutionally required to “Exculpatory,” in this context, refers to favorable evidence that is material to requires that such i nformation be disclosed to the defendant.” Id. as the personnel files of such officers contain exculpatory evidence, paragraph I police officers who appear as witnesses in criminal cases.” Id. “First, insofar RSA 105:13 - b “addresses three situations that may exist with respect to

exculpatory evidence.” Id. at p. 7 781 (quotation omitted). b does not and “cannot limit the defendant’s constitutional right to obtain all Duchesne, 167 N.H. at 777 - 78 (citations and quotations omitted). RSA 105:13 -

work or an examination of the State’s complet e file. the defendant be permitted a complete discovery of all investigatory prosecutor disclose everything that might influence a jury, or that affected the verdict. This standard does not require that the reasonable doubt that the undisclosed evidence woul d not have prosecution, the burden shifts to the State to prove beyond a exculpatory evidence has been knowingly withheld by the p. 8 8

Proctor, 171 N.H. p. 8 800, 807 (2019). b, it is free to amend the statute as it sees fit, within constitutional limitations. See State v. “relev ant” to his case. Of course, if the legislature disagrees with our construction of RSA 105:13 order to trigger in camera review, but need only show the reasonable probability that it is not show that it is reasonably probable that evidence in a police personnel file is “material” in exculpatory” evidence, and in light o f our decision in Girard, we conclude that a defendant need Now that RSA 105:13 - b has been amended to distinguish between “exculpatory” and “non - (Quotations omitted.) “reasonable probability” is a probability “sufficient to undermine confidence in the outcome.” probability that” its disclosure will produce a different result in the proceedin g, and that a that, for the purposes of the Gagne standard, evidence “is material only if there is a reasonable In State v. Girard, 173 N.H. ___, ___ (decided October 16, 2020) (slip op. at 8), we explained

Laurie, 139 N.H. 325, 327 - 30 (1995). This, too, as the State observes, is an I, and Part I, Article 15 of the New Hampshire Constitution. See State v. therefore, the State was compelled to provide them to him under RSA 105:13 - b, the disciplinary actions he sought constitute exculpatory information and, The defendant next asserts that both the prior “use of force” reports and

decline to consider his appellate argument substantively. appeal, that RSA 105:13 - b, III does not apply to the “use of force” reports, we Because the defendant failed to argue in the trial court, as he argues on are presented for appellate review.” State v. Town, 163 N.H. 790, 792 (2012). court an opportunity to correct any error it may have made before those issues (2004). “The purpose underlying our preservation rule is to afford the trial raised in the forum of trial. Bean v. Red Oak Prop. Mgmt., 151 N.H. 24 p. 8 8, 250 trial co urt. Generally, parties may not have judicial review of matters not as the State aptly observes, the defendant did not make this argument in the files,” and, therefore, that RSA 105:13 - b, III does not apply to them. However, he sought “were not likely to be contained in personnel or other internal police governed by RSA 105:13 - b, III. He asserts that the prior “use of force” reports The defendant first argues that only his request for disciplinary actions is

defense.” Amirault, 14 p. 9 9 N.H. at 544. articulate with precision the. . . relevance of the requested information to [the] and fairly characterized” them, “we have not required [the defendant] to R. Ev. 401. “W hen records are known to exist” and a defendant has “generally evidence, and . . . the fact is of consequence in determining the action.” N.H. tendency to make a fact more or less probable than it would be without the records.” Id. (quotation omitted). Records are “relevant” if they have “any in reasonable probability, will be explained by the information soug ht in the if it provides some specific concern, based on more than bare conjecture, that, review of otherwise protected documents.” Id. “A plausible theory is sufficient defendant must present a plausible theory of relevance.. . sufficient to justify prior version of RSA 105:13 - b). “To meet this threshold requirement, a State v. Amirault, 149 N.H. 541, 544 (2003) (quotation omitted) (interpreting substantial likelihood” that rel evant evidence would be obtained from the file. Stated differently, a defendant must “establish that there is a realistic and 9

self - defense” did not meet the “reasonable probability” standard). The information in the personnel files “might have some bearing on his defense o f of self - defense. See id. (holding that the defendant’s representation that which the jury could reach its own conclusions as to the validity of his defense particularly given the cell phone video of nearly the entire encounter from relevance sufficient to justify review of otherwise protected documents, highly relevant to [his] defense” does not constitute a plaus ible theory of the involved officers and any previous use of force employed by these officers is statement in his motion that “information concerning disciplinary actions of meeting it.” Ainsworth, 151 N.H. at 6 p. 9 95. The defendant’s conclusory not unduly high, we conclude that the defendant’s representation falls short of Although the standard for in camera review under RSA 105:13 - b, III “is

RSA 105:13 - b, III. required.” Id. at 322. Thus, the case offers no guidance as to how to apply subsequent in camera review, as set forth in RSA 105:13 - b, [were] not confidential personnel file, the threshold finding of probable cause and requesting generalized information that [might] be contained in [the officer’s] v. Theodosopoulos), 153 N.H. at 321. Because the defendant was “not information was limited to exculpatory evidence. Petition of State of N.H. (State Theodosopoulos) is misplaced. In that case, the defendan t ’s request for The defendant’s reliance on Petition of State of N.H. (State v.

situations.” information about the officer - witnesses’ use of force in other on - the - job accident.” The defendant argues that, similar to Theodosopoulos, “[he] sought which the officer [and Theodosopoulos were] involved in a motor vehicle file for information about an officer - witness’s ‘use of police vehicles’ in a case in [Theodosopoul os] met the threshold showing to require review of [a] personnel 153 N.H. 318 (2006). He asserts that, in that case, we “held that him. He likens this case to Petition of State of N.H. (State v. Theodosopoulos), the officers was justified by their excessive and unlawful use of force against individual was relevant and material to his defense that his use of force against The defendant argues that an officer’s prior use of force against another

N.H. 226, 230 (2003). appeal, and we, therefore, consider it waived. See In re Estate of King, 14 p. 9 9 disciplinary actions involving the officers, he has not briefed this a rgument on trial court, the defendant also argued that he met his burden as to the under RSA 105:13 - b, III as to the prior “use of force” reports. Although, in the We, thus, limit our review to wheth er the defendant met his burden

for appellate review). (1 p. 9 986) (discussing the requisites of preserving a state constitutional argument decline to consider it on appeal. See State v. Dellorfano, 128 N.H. 628, 632 argument that the defendant did not raise in the trial court, and we, therefore, p. 10 10

belongs to both produce and take in hand. actually think that that phrase “for the purpose of examination” and this is the key phrase, for the purpose of examina tion. So I vehicle . . . or to permit such officer to take his license . . . in hand, on demand of such officer to produce his license to drive such I’ve take n a look at the statute again . . . . The statute says, refuses [THE COURT]: In terms of . . . the issue of producing the license.

the disobeying an officer charge: Thereafter, the court and counsel discussed a proposed instruction on

of the Defendant’s interaction [met] that definition.” produce” so that the jury could “adequately assess whether th e circumstances would “accompany that instruction” with “a dictionary definition of the word to draw the jury’s attention to that distinction.” The court explained that it trial court decided that “given the testimony in th e case, . . . it does make sense the license over.” Although t he State objected to the proposed instruction, the had been charged with failing to produce the license, not with failing to “hand distinguishes between produc ing a license and “handing it over,” and that he The defendant requested that t he court instruct the jury that the statute

purpose of the statute.” See RSA 265:4, I(e). “adequately produce the license in a way that. . . meets the needs . . . or the the evidence was sufficient for the jury to infer that the defendant did not officer, and the officer said he couldn’t read it.” The trial court concluded that showed that “in fact, he did produce his license. He actually showed it to the dismiss the disobeying an officer c harge on the ground that the evidence On the second day of trial, after the State rested, the defendant moved to

show it to you,” then the defendant did “produce” his license. however, that if the word means, “hey, I grab my license, and I pull it out, and I the word “produce,” the defendant did not “produce” his license. He agreed, actually see the details of it.” Feole testified that with that understanding of hands him the license or “let[s] [him] observe it, read it thoroughly so [he] can that the word “produce” in that context means that the driver either physically whether the defendant “produced” his license. Feole testified that he believes drive such vehicle.” During trial, on cross - examination, Feole was asked refused on demand of a law enforcement officer . . . to produce his license to the offense when, “while driving or in charge of a vehicle,” he “knowingly The disobeying an officer charge alleged that the defendant committed

I. Jury Instruction on the Disobeying a n Officer Charge

constituted an unsustainable exercise of discretion. See id. defendant has, therefore, failed to demonstrate that the trial court’s decision p. 11 11

elements of the charge, that is to produce for purposes of with. I don’t think correctly informing the jury on the law of the substantive change to the crime that the Defendant was charg ed say, hand over the license to the officer[,] . . . [t] hat would be a . . . I agree that if the State had requested to amend the charge to

. . . . the Defendant has been charged. . . . . . . I don’t think it changes the essence of the crime w ith which to produce your license to allow an officer to examine that license. term produce means. . . . I think that the purpose of the statute is says, f or the purpose of examination, means the same thing as the prejudice to that. I think the . . . language in the statute, which be done at this juncture. But I also don’t think that there’s the Court is effectively amending the complaint which I think can [THE COURT]: I hear what you’re saying, [defense counsel], that

. . . . I have no objection to that. the same language [as is in the charge]. And as far as produce, . . . track wh at we’ve been defending against this whole trial and use how it’s charged. . . . So I just -- so I’m just asking the Court to or maybe there’s different variants of the statute, but that’s not maybe the statute allows that or maybe the statute even says that you can change -- you’ve changed substantively the charge, and what you’re saying to [the jury] and that’s fine. But I don’t think And then as far as the definition to produce, I understand

language that’s in the complaint. . . . actually what the charge was. So I’d ask that you use the same So I think that you’ve added . . . [language] that’s not

That’s what he’s being charged with. That’s what it is. demand of officers to produce his license to drive such vehicle. he was charged with. . . . [H]e’s charged with knowing refusal on [DEFENSE COUNSEL]: Judge, as to the disobeying, that’s not what

license to a police officer. . . . actually uses, as an example of that definition, to produce your t ake the license in hand. I should note that the [dictionary] is not charged with the c rime [of] refusing to permit the officer to view, exhibit, or to show. And added the sentence, the Defendant And then I’ve defined the word “produce” . . . to mean, to offer to enforcement offi cer for the purpose of examination by the officer. Defendant refused to produce his license on demand of a law So I’ve amended the language of the charge to say . . . the p. 12 12

to include. Id. We construe criminal offenses defined by statute according to legislature might have said or add language that the legis lature did not see fit legislative intent from the statute as written and will not consider what the construe it according to its plain and ordinary meaning. Id. We interpret 366 (2019). We first look to the langua ge of the statute itself, and, if possible, words of the statute considered as a whole. State v. Woodbury, 172 N.H. 358, novo.”). We are the final arbiter of the legislature’s intent as expressed in the instruction raises a qu estion of statutory interpretation, which we review de 435 (20 p. 12 12) (“[W] hether a statute provides a basis for a requested jury court’s statutory interpretation de novo. See State v. Furgal, 164 N.H. 430, statute requires that we engage in statutory interpretation. We review the trial Deciding whether the trial court’s jury instruction is consistent with th e

cover the issues of law in the case. Id. each element of the offense and reverse only if the instructions did not fairly We determine whether the jury instructions adequately and accurately explain light of all the evidence in the case. State v. Martin, 171 N.H. 590, 599 (2018). in their entirety, as a reasonable juror would have understood them, and in I(e). We evaluate allegations of error by interpreting the disputed instructions based upon a misinterpret ation of t he disobeying an officer statute, RSA 265:4, On appeal, the defendant argu es that the trial court’s jury instruction is

(Emphasis added.)

to permit the officer to take the license in hand. Defendant, in this case, is not [charged] with the crime [of] refusing The term “produce” means to offer to view, exhibit, or to show. The prove that the Defendant refused to produce his driv er’s license. Now, the crime of disobeying an officer requires the State to

purpose of examination by the officer. driver’s license on demand of a law enfo rcement officer for the vehicle; and number 3, the Defendant refused to produce his you; number 2, the Defendant was driving or in charge of a motor The Defendant acted knowing ly, as I’ve defined th at term for

for this crime the State must prove the following: each of which the State must prove beyond a r easonable doubt. So disobeying an officer. That definition has three elements. Again, The Defendant’s also been charged with the crime of

disobeying an officer charge: Consistent wi th this colloquy, the jury was instructed as follows on the

Defendant has been charged with in this case. examination, changes the substance of the crime . . . that the p. 13 13

disobeying an officer. RSA 265:4, I(e), thus, criminalizes the refusal to do driver’s license or to permit t he officer to take it “in hand” commits the crime of pursuant to RSA 265:4, I(e), a driver who fails either to “produce” his or her to enable the officer to inspect the license to determine its validity. Likewise, enforcement officer. The purpose of both acts (display ing and surrendering) is or her driver’s license or to “manually surrender” it upon demand by a law Thus, pursuant to RSA 263:2, a driver is required either to “display” his

arrest.” that he held a valid driver ’ s license which was in effect at the time of his period of 48 hours, he produces in the office of the arresting officer evidence person charged with a violation of this section shall be convicted if, within a officer for the insp ection thereof.” (Emphasis added.) Under RSA 263:2, “No demand of and manually surrender the same into the hands of the demanding in the vehicle in some easily accessible place” and to “display the same on RSA 263:2 requires every driver to “have his driver’s license upon his person or be construed “so that they do not contradict each other” (quotations omitted)). same subject matter “are to be considered in interpreting” one another and will v. Farrow, 140 N.H. 473, 475 (1995) (stating that statutes pertaining to the (2014), and, therefore, the two statutes must be interprete d together. See State As both parties correctly observe, RSA 265:4, I(e) mirrors RSA 263:2

modifies both clauses. vehicle or his certificate of registration.” The State contends that the phrase hand” and does not modify the clause “to produce his li cense to drive such modifies the clause “to permit such officer to take the license or certificate in the trial court’s jury instruction, the phrase “for the purpose of examination” take the license or certificate in hand). The defendant argues that, contrary to applies to both acts or only to the second act (refusing to permit the officer to The parties dispute whether the phrase “for the purpose of examination”

permit the officer to take the license or certificate in hand. driver’s li cense or certificate of registration to an officer; and (2) refusing to parties agree, RSA 265:4, I(e) precludes two acts: (1) refusing to produce a take the license or certificate in hand for the purpose of examination.” As both drive such vehicle or his certificate of registration or to permit such officer to vehicle, shall . . . [r] efuse, on demand of such officer, to produce his license to RSA 265:4, I(e) provides that “[n]o person, while dr iving or in charge of a

(quotation omitted). o f the policy sought to be advanced by the entire statutory scheme.” Id. to apply statutes in light of the legislature ’ s intent in enacting them and in light and not in isolation. State v. Gardner, 162 N.H. 652, 653 (2011). “Our goal is (2016). W e interpret a statute in the context of the overall statutory scheme (2014) (setting forth criminal penalties for violating paragraph I); RSA 625:3, :7 the fair import of their terms and to promote justice. See RSA 265:4, II, III p. 14 1 4

HICKS and BASSETT, JJ., concurred.

upon a correct interpretation of the statute. trial court’s jury instruction on the disobeying an officer charge was based the officer to take the license or registration in hand. Thus, we hold that the 265:4, I(e), refusing to produce a license or registration and refusing to permit examination” must refer to both of t he variants of disobeying an officer in RSA conclude that to give effect to that intent, t he phrase “for the purpose of the legislature’s intent in enacting RSA 263:2 and RSA 265:4, I(e). We We agree with the State that the defendant’s interpretation is contrary to

statute, but a driver who flashed his license for a second would not.” took it back before the officer could examine it would be guilty of violating the because “a driver who permitted an officer to take his license in hand, but then that the defendant’s interpretation would lead to an absurd and unjust result enforcement officer to make that determination. The State further contends displaying his or her license “for less time than is necessary” for a law comply with RSA 263:2 and avoid pr osecution for violating RSA 265:4, I(e) by interpretation would undermine that purpose because it would allow a driver to officer to determine whether the license is valid, and that the defendant’s differently. The State counters that the purpose of RSA 263:2 is to allow an modify both verbs (producing and permitting), it would have worded the statute The defendant contends that had the legislature intended the phrase to

series” (bolding and capitalization omitted)). in a series,” a modifier at the end of the list “normall y applies to the entire there is a straightforward, parallel construction that involves all nouns or verbs (explaining that, under the “series - qualifier” canon of construction, “[w]hen & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) permit the officer to take the license or certificate in hand. See Antonin Scalia a driver’s license or certificate of registration to an officer and to refusing to purpose of examination” in RSA 265:4, I(e) applies both to refusing to produce 263:2 and RSA 265:4, I(e) together, we conclude that the phrase “for the either of the two acts required by RSA 263:2. Accordingly, interpreting RSA