2018-0551, State of New Hampshire v. Brian Eldridge

intent to sell. However, we vacate the defendant’s conviction for possession provided by RSA 318 - B:28 - b does not extend to the offense of possession with denying his motion to suppress evidence. W e conclude that the immunity instructing the jury on the lesser included offense of possession; and (3) see RSA 318 - B:2, I; (2) requiring him to waive t hat statutory immunity before does not apply to the offense of possession with intent to sell a controlled drug, erred by: (1) concluding that the immunity afforded by RSA 318 - B:28 - b (2017) possession of a firearm, see RSA 159:3 (2014). He argues that the trial court possession of a controlled drug, see RSA 318 - B:2, I (2017), and being a felon in following a jury trial in the Superior Court (Kissinger, J.), o n one c ount each o f DONOVAN, J. The defendant, Brian Eldridge, appeals his convictions,

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

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Danielle H. Sakowski, senior

No. 2018 - 0551 Merrimack

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

It was undisputed at trial that the defendant had previously been convicted of a felony. 1 good faith request for medical assistance while he was experiencing a drug B: p. 2 28 - b, III, immunized him from prosecution becau se he was the subject of a The defendant moved t o dismiss the indictments, arguing that RSA 318 -

two counts of being a felon in possession of a deadly weapon, see RSA 159:3. 1 of fentanyl with intent to sell and being a felon in possession of a firearm, and and over $7,000. The defendant was indicted on one count each of possession fentanyl, a scale, a large number of small plastic bags, drug use paraphernalia, During their search, they found two knives, a dismantled firearm, 9.7 grams of The police subsequently applied for a warrant to search the apartment.

perceived something resembling the barre l of a firearm. observed ammunition cans and a “somewhat transparent” case in which he firefighters and EMTs left the apartment, Levesque entered the living room and kit,” that contained syringes, a spoon, and a small plastic bag. After the Levesque was also handed an open wooden box, which he described as a “drug Levesque a fabric bag, in which Levesque observed small plastic bags and pills. defendant was being treated, a member of the Fire Department handed Narcan to the defendant and successfully revived him. At some poi nt while th e medical treatment to the defendant. The EMTs administered multiple doses of none of the three officers who initially responded to the scene provided any carry Narcan, a medication that reverses the effect of opioid overdoses, and At that time, the Concord Police D epartment did not require its officers to

including Officer Levesque. minutes after Gorham arrived at the apartment, two other officers arrived, “shoot[] up” what she suspected was heroin and fall to the ground. Several defendant’s girlfriend. The girlfriend reported t hat she observed the defendant floor. Gorham proceeded to the kitchen, where she encountered the of Gorham and began t reating the defendant, who was lying on the living room Fire Department. The firefighters and EMTs entered the apartment just ahead breathing. Gorham arrived at the apartment simultaneously with the Concord defendant may have overdosed and, as a result, was un conscious and not apartment at p. 2 28 Pierce Street in response to a 911 call reportin g that the p.m. on May 3, 2017, Concord Police Officer Gorham was dispatched to an The following facts are supported by the record. At app roximately 10:15

the warrant requirement. into the defendant’s apartment was justified by the emergency aid exception to immunity. We also conclude that the police officers ’ initial warrantless entry entitled to both an instruction on the offense of possession and the statutory because we hold th at, under the circumstances in this case, the defendant wa s p. 3 3

and the jury was instructed on the offense of possession. objected to the trial court’s ruling but ultimately opted to waive the immunity be convicted called into question the process’s rationality. The defendant allow ing the jury to deliberate on an offense for which the defe ndant could not of the importance of the ju ry process being a rational one,” and conclude d that State v. LaPlante, 117 N.H. 417 (1977). It found “very compelling” the “notion primarily relied on Commonwealth v. Shelley, 80 N.E. p. 3 3d 335 (Mass. 2017), and immunity afforded by RSA 318 - B:28 - b. In reaching its decision, the trial court requested a jury instruction on possession, he was required to waive the Before closing arguments, the trial co urt ruled that, if the defendant

jury trial. trial court postponed ruling on the issue to consider the arguments during the proved possession, then the statute mandated that its verdict be set aside. The possession. The defendant asserted that if the jury found that the State only immunity provided by RSA p. 3 318 - B:28 - b if he requested a jury instruction on of possession with intent to sell, but argued that the defendant would waive the acknowledged that it i s “axiomat ic” that possession is a lesser included offense the jury that he possessed the fentanyl without intent to sell it. The State Prior to trial, the defendant raised the possibility that he would argue to

associated with responses to overdose calls. secure the scene and protect first responders from dangers commonly motivated to seize evidence because their presence was also necessary to concluded that the officers’ initial entry into the apartment was not primarily emergency aid excep tion to the warrant requirement. The trial court fu rther police officers’ initial entry into his apartment was justified under the court denied the defendant’s motion, concluding, among other things, that the C onstitution a nd the Fourth Amendment to the Federal C onstitution. The trial to be free from unreasonable searches u nder Part I, Article 19 of the State the search of his apartment, arguing, in part, that the search violated his right The defendant then moved to suppress the evidence seized as a result of

paragraphs II or III. See RSA p. 3 318 - B:28 - b, IV. authority of the police to arrest a person for an offense not immunized by the statute expressly provides that it shall not be construed to limit the indictments was discovered as a result of the request for medical assistance, III. The court also noted that, although the evidence underlying his crimes fell under the statute’s immunity provisions. See RSA 318 - B:28 - b, II, “possessing” and “having under his or her control,” a nd none of the charged arrest, prosecution, and conviction of the controlled drug offenses of concluded that the statutory langua ge only immunizes a defendant from the result of that request. The trial court denied the defendant’s motion. It overdose and the evidence underlying the indictments was obtained as a direct p. 4 4

possession as an actus reus. For example, RSA 318 - B:2, II, makes it unlawful for a person to Other p arts of RSA 318 - B:2 make it unlawful for a person to commit other offenses with 2

drug.” (Emphases added.) The language in RSA 318 - B:2, I, indicates that 2 administer, or transport or possess with intent to sell. . . a ny controlled “manufacture, possess, have u nder his control, sell, purchase, prescribe, RSA 318 - B:2, I, makes it unlawful for a person to, among other things,

proximate result of the request for medical assistance.” Id. in violation of RSA 318 - B:2, if the evidence for the charge was gained as a convicted for possessing, or having under his or her control, a controlled drug III. The statute prohibits such a person from being “arrested, prosecuted, or “is the subject of a good faith request for medical assistance.” RSA 318 - B:28 - b, here, the statute protects a person who “is exper iencing a drug overdose” and the Controlled Drug Act. RSA 318 - B:28 - b; see Laws 2015, 218:2. A s relevant I n 2015, the legislature added the “Immunity from Liability” statute to

thei r terms and to promote justice.” RSA 625:3, :7 (2016). w e construe provisions of the Criminal C ode “according to the fair import of our interpretation. See State v. Lathrop, 16 p. 4 4 N.H. 468, 470 (2012). Further, statutory language is ambiguous do we look to the legislative history to aid in legislature’s intent as expressed in the words of the statute. Id. Only when the that the legislature did not include. Id. We are the final arbiters of the statutory scheme. Id. We neither ignore the statute’s lang uage nor add words according to its plain and ordinary meaning, in the context of the entire first to the statutory language and, if possible, construe that language Mfata neza, 172 N.H. 166, 1 69 (2019). When interpreting a statute, we look therefore review a trial court’s interpretation of a statute de novo. State v. The interpretation of a statute presents a question of law, and we

disagree. includin g the offense of possession with intent to sell a controlled drug. We with in the statute’ s scope all crimes with the actus reus of possession, legislative history supports his argument that the legislature intended to bring as an inherent element. He asserts that the statute is ambiguous, and the 318 - B:28 - b applies to all crimes enumerated in RSA 318 - B:2 with “possession” The defendant first argues that the statutory immunity afforded by RSA

weapon. This appeal followed. and not guilty on both counts of being a felon in possession of a deadly It also found the defendant guilty of being a felon in possession of a firearm, intent to sell, but guilty of the lesser included offense of possession of fentanyl. T he jury found the defendant not guilty of possession of fentanyl with p. 5 5

“possess with intent to deliver . . . drug paraphernalia” under certain conditions.

above, and the statute expressly provide s that it shou ld not be construed to Instead, the legislature immunized two discrete offenses, as discussed

medical assistance during an overdose. conviction for any criminal charges resulting from a good faith request for would have provided blanket immunity from arrest, prosecution, and encouragi ng calls for medical assistance. If such were the case, the legislature enforcement pursuit of possible charges stemming from an overdose in favor of however, t he statute’s language does not indicate a n inten t to preclude all law for medical assistance during an overdose. As the defendant acknowledges, offense to which the immunity statute applies, will be discouraged from calling because individuals, unsure of whether the State will charge them with an victims. The defendant argues that our interpretation frustrates this intent overdose to request medical assistance in order to save the lives of overdose to encourage those experiencing, or witnessing someone experiencing, an We recognize, from the immunity statute’s language, a legislative intent

extend to the offense of possession with intent to sell a controlled drug. interpretation. Accordingly, we conclude that the immunity statute does not unambiguous, we need not look to the legislative history to aid in our that the legislature did not include. See id. Because the statutory language is explicitly listed them in the statute. We will not add an offense to the statute the immunity to apply to other o ffenses involving possession, it would have the enumerated areas may be “functionally related”). If the legislature desired highways, bridges, or sidewalks,” despite acknowledging that parking lots and immuniz es municipalities from liability for injuries sustained on “public read “parking lots” into statutory language that explicitly and unambiguously offense. See Johnson v. City of Laconia, 141 N.H. 379, 380 (1996) (refusing to suppor t the defendant’s broad reading that would extend the immunity to that with intent to sell, the statutory language is not ambiguous and does not Thus, although possession is a component of the offense of possession

“possessing” and “having under his or her control.” legislature intended the immunity’s scope to encompass only the offenses of their enumeration as discrete offenses in RSA 318 - B:2, I, demonstrate that the The alignment between the two offenses listed in the immunity statute and “possessing” and “having under his or her control.” RSA 318 - B:28 - b, II, III. immunity statute explicitly references two offenses found in RSA 318 - B:2: and possession with intent to sell a controlled drug as discrete offenses). The State v. Sti les, 128 N.H. 81, 88 (198 p. 6 6) (treating possession of a controlled drug and before the conju nction “and” generally indicate discrete elements); see also N.H. 331, 338 - 39 (1999) (noting that commas between enumerated elements distinct offenses. See Marcotte v. Timberlane/Hampstead School Dist., 143 “possess,” “have under his control,” and “possess with inte nt to sell” are 6

the jur y must be instructed on the lesser included, time - barred offense of 21; see State v. Muentner, 40 p. 6 6 N.W.2d 415, 417 - 20 (Wis. 1987) (holding that legislature’s decision to enact a statute of limitations. Short, 618 A.2d at 319 conviction on that offense because courts may not “unilaterally nullify” the both a jury instruction on manslaughter and the statute of limitations bar to a Jersey Supreme Court has held that a defendant must receive the benefit of Spaziano, 468 U.S. at 454 - 57; Shelley, 80 N.E.3d at 337 - 40. Second, t he New the statute of limitations and receiving the manslaughter instruction. manslaughter conviction with no jury instruction on that offense; or (b) waiving is made to choose between: (a) preserving the statute of limitations bar to a Massachusetts C onstitutions, respectively, are not offended when a defendant the Massachusetts Supreme Judicial Court have held that the F ederal and approaches that have emerged. First, t he United States Supreme Court and Based upon our canvass of these cases, we describe t he following three

318 (N.J. 1993). State v. Delisle, p. 6 648 A.2d 632, 637 (Vt. 1994); State v. Short, 618 A.2d 316, grounds by Hurst v. Florida, 136 S. Ct. 616 (2016); Shelley, 80 N.E.3d at 337; e.g., Spaziano v. Florida, 468 U.S. 447, 450, 454 (1984), overruled on other conviction before the jury is instructed on that lesser included offense. See, may be required to waive the statute of limitations bar to a manslaughter considered a similar question — whether a defendant who is tried for murder courts in other jurisdictions have yet to resolve t his precise issue, they have This case presents a matter of first impression for this court. While

possession and the statutory immunity. 318 - B:28 - b applies, then a defendant is entitled to both a jury instruction on included offense of possession of a controlled drug is appropriate; and (3) RSA a controlled drug with intent to sell; (2) instructing the jury on the lesser we conclude tha t when: (1) a defendant is tried on the offense of possession of i nstructing the jury on the offense of possession. For the reasons that follow, requiring him to waive the immunity provided by RSA 318 - B:28 - b before We next consider the defendant’s argument that the trial court erred by

interpretation accords with the balance struck by the legislature. certain offenses while allowing others to be investigated and prosecuted. O ur with law enforcement interests in investigating other crimes by immunizing language balances the legislative goal to encourage calls for medical assistance provisions of paragraphs II or III.” RSA 318 - B:28 - b, IV. Thus, the statutory criminal investigation, or to arrest a person for an offense not protected by the (c) “the authority of a law enforcement officer to detain . . . a person as part of a paragraphs II or III”; (b) “the lawful seizure of any evide nce or contraband”; or prosecution of a crime involving a person who is not protected as provided in limit: (a) “the admissibility of evidence in connection with the investigation or p. 7 7

this approach). manslaughter instruction”); Shelley, 80 N.E.3d at 340 (agreeing with Short ’s reasoning in rejecti ng defendant would go free if convicted of manslaughter . . . all but invite[s] the jury to disregard the Vermont approach. Short, 618 A.2d at 321 - 24 (reasoning that “telling the jury that [the] Both the New Jersey Supreme Court and Massachusetts Supreme Judicial Court rejected the 3

only possession after it is instructed on that lesser included offense. charged with possession with intent to sell, but whom the jury finds guilty of language suggests that the immunity does not ap ply to a defendant who is of a lesser included and time - barred offense). Nothing in RSA 318 - B:28 - b’s on the courts” and bar the conviction of a defendant whom the jury finds guilty Short, 618 A.2d at 3 19 - 20 (concluding that statutes of limitations are “binding statutory language prohibited him from being convicted of that offense. See the defendant had committed the offense of possessing a controlled drug, the convicte d.” RSA 318 - B:28 - b, II, III (emphasis added). Once the jury found that falls within the statute’s ambit “shall not be arrested, prosecuted, or 318 - B:2, I. The immunity itself is stated as a simple command: a person who offense of “possessing. . . a controlled drug.” RSA 318 - B:28 - b, II, III; see RSA The immunity afforded by RSA 318 - B:28 - b explicitly applies to the

the statute’s language. Id. in the context of the entire statutory scheme. Id. We neither ignore nor add to if possible, construe that language according to its plain and ordinary meaning, novo. Mfataneza, 1 p. 7 72 N.H. at 169. We look first to the statutory language a nd, As explained above, we review a trial court’s interpretation of a statute de

resolution of this issue is compelled by RSA 318 - B:28 - b’s language. the defendant could not be convicted. We ag ree with the defendant that our that neither require d the trial court to instruct the jury on an offense for which process, see N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV, asserting N.E.3d at 338 - 39, frames its argument in term s of State and F ederal due State, on the other hand, relying on Spaziano, 468 U.S. at 455, and Shelley, 80 him to waive the immunity before ins tructing the jury on possession. T he asserting that nothing in RSA 318 - B:28 - b authorized the trial court to require The defendant frames his argument in terms of statutory interpretation,

is consistent with our jurisprudence. Under the circumstances in this case, we believe that the New Jersey approach finds that he or she committed manslaughter. Delisle, 64 p. 8 8 A.2d at 634. 3 because of the statute of limitations, the jury must acquit the defendant if it receiving the manslaughter instruction coupled with an instruction that, mansla ughter conviction and forgoing the manslaughter instruction; or (b) must elect between: (a) preserving the statute of limitations bar to a Court, taking what we perceive to be a middle path, has held that a defendant court may not enter a judgment of conviction). Third, t he Vermont Supreme manslaughter, and that if the defendant is found guilty of that offense the trial 8

convicted” distorts the jury’s fact - finding mission. Id. at 455 - 56. Furthermore, instructed on lesser included offenses for which the defendant may not be manslaughter instruction. According to the C ourt, “[r]equiring that the jury be limitations, or waiving t he statute of limitations and receiving the lesser included offense of manslaughter, which was barred by the statute of trial required the defendant to elect between forgoing an instruction on the F ederal C onstitution was not violated when the trial court in a capital murder In Spaziano, 46 p. 8 8 U.S. at 456 - 57, the C ourt, in part, concluded that the

Supreme Court in Spaziano, 46 p. 8 8 U.S. 447. 80 N.E.3d at 338, which closely followed the reasoning of the United States the basis of the Massachusetts Supreme Judicial Court’s decision in Shelley, State’s argument before us largely echoes this reasoning. These concerns form the jury on an offense for which the defendant could not be convicted. The that the rationality of the jury process would be compromised if it instructed immunity before it in structed the jury on possession primarily because it found The trial court concluded that the defendant could be made to waive the

immunity before it instructs the jury on the offense of possession. not authorize a trial court to req uire that a defendant waive the statute’s for in the statute). We therefore conclude that RSA 31 p. 8 8 - B:28 - b’s language does revoking his driver’s license when such authority was not specifically provided statute the authori ty for the trial court to punish a defendant by suspending or See State v. Buckingham, 121 N.H. 339, 343 (1981) (refusing to read into a finds guilty of that offense. We will not read such an exception into the statute. entitlement to a lesser included instruction on possession and whom the jury provided by RSA 318 - B:28 - b, II and III, a defendant who exercises the T he legislature c ould have explicitly excepted from the immunity

standard.” Id. at 6 3 4. the jury will accord the defendant the full benefit of the reasonable - doubt 447 U.S. 625, 633 (1 p. 9 9 p. 8 80). A lesser included instruction therefore “ensu r es that between conviction of the offense charged and acquittal.” Beck v. Alabama, defendant, by “afford[ing] the jury a less drastic alternative than the choice fails to establish proof of an element of the c rime charged, as well as the by providing the jury a crime of which to find the defendant guilty if the State (2011). I nstructing the jury on a lesser included offense can benefit the State, consider any lesser included offenses.” State v. Soto, 162 N.H. 708, 718 general, a defendant charged with one offense is entitled to ha ve the jury by State v. Snyder, 50 N.H. 150 (1870). Thus, we have recognized that, “[i]n involv ed in the descript ion of such higher offence”), overruled on other grounds of a greater offense, he may be convicted of a lesser offense “necessarily Nelson, 8 N.H. 163, 164 - 65 (1835) (noting that where a defendant is acquitted opportunity to retu rn a guilty verdict on a lesser included offense. See State v. T here is a long tradition in New Hampshire of affording the jury the 9

“due to the statute of limitations, that truly would be tricking the jury”). “informed of the sentencing consequences of a guilty verdict,” but the conviction was dismissed innocence”); Shelley, 80 N.E.3d at 344 n.8 (Budd, J., dissenting) (noting that if the jury was New Jersey “do not consider the punishments attendant to offenses in deciding guilt or would be more releva nt. See Short, 618 A.2d at 322 (distinguishing Spaziano because juries in Hampshire, perhaps the Court’s concerns in Spaziano, 468 U.S. at 456, about tricking the jury accused is being charged.” Fla. Stat. Ann. p. 9 918.10(1) (West 2019). Were the same true in New I n Florida, on the other hand, the jury may be told the “penalty of the offense for which the 5 such consequences are not commonly known.” State v. Blair, 143 N.H. 669, 672 (1999). should be instructed about consequences o f a ‘not guilty by reason of insanity’ verdict because a defendant invokes the insanity defense: “[A] jury charged with ascertaining a defendant’s sanity O ne exception to the rul e that the jury should not consider the defendant’s punishment is when 4

still find, as a matter of facts, that a defendant is guilty of the offense”). li mitations “does not mean the offense ceases to exist,” because the jury “may 406 N.W.2d at 423 (noting that in Wisconsin the running of the statute of elements of the greater offense. See Soto, 162 N.H. at 718; see also Muentner, a reasonable doubt, the elements of the lesser offense, but fails to prove the at 455. In New Hampshire, the lesser offense exists if the State proves, beyond lesser included offense “[w]here no [such] offense exists.” Spaziano, 468 U.S. rationality of the jury process is undermined when a jury is instructed on a decline to adopt the reasoning of th e United States Supreme Court that the you should consider only the evidence presented at trial.” We therefore 5 guilty verdict should not influence your decision. . . . During your deliberations that “[t]he possible punishment the Defendant may receive if you return a See Tetrault, 78 N.H. at 16. F or example, the jury in this case was instructed clouded by irrelevant considerations of the defendant’s possible punishment. 648 A.2d at 634, because the jury’s determination of the facts should not be approve of the approach adopted by the Vermont Supreme Court in Delisle, therefore no occasion to know what i t might be.”). Accordingly, w e do not 4 (1 p. 9 915) (“The jury [has] no duty to perform in the assessment of the penalty and considering the legal effects of its verdict, see State v. Tetrault, 78 N.H. 14, 16 140 N.H. 823, 831 (1996); Pierce v. State, 13 N.H. 536, 551 (1843), without committing the charged crime or a lesser included offense, s ee State v. Melcher, has met its burden of factually proving that a defendant is re sponsible for The role of the jury in New Hampshire is to determine wh ether the State

persuasive. found guilty.” Shelley, 80 N.E.3d at 338 - 3 p. 9 9. We do not find this reasoning instructing [it] on a lesser included offense for which the defendant cannot be Massachusetts Constitution “does not require a judge to deceive the jury by 456. The Massachusetts Supreme Judicial Court agreed, concluding that the for which to find the defendant guilty, if in reality there is no ch oice.” Id. at undermined if the jury was “tricked into believing that it has a choice of crimes it found that “the public ’ s confidence in the criminal justice system” would be p. 10 10

instructed the jury on possession. We therefore find LaPlante unavailing. 318 - B:28 - b does not require him to waive its immunity before the trial court made the same argument to the trial court as he makes on appeal: that RSA that instruction on appeal. Id. at 418. Here, on the other hand, the defendant objecting to its l ogical impossibility, the defendant could not take issue with concluded that, having requested the lesser included instruction without inconsistent positions in the trial court and on appeal. See id. We therefore manslaughter’ is a logical impossibility.” Id. The defendant thus took he argued that his conviction must be reversed because ‘“attempted “attempted manslaughter,” of which he was convicted. Id. at 417. On appeal, requested a jury instru ction on the purportedly lesser included offense of different result. There, the defendant was charged with attempted murder and N othing in LaPlante, 117 N.H. 417, on which the State relies, requires a

the statutory immunity. defendant is entitled to the benefit of both the lesser included instruction and questions.”). In the appropriate circ umstances, such as those present here, a whether the statute of limitations has run on a crime are two separate (“Whether a defendant is entitled to a lesser included offense instruction and by operat ion of RSA 318 - B:28 - b, II and III. See Muentner, 406 N.W.2d at 420 question from whether the defendant “shall not be . . . convicted” of possession instructing the jury on the lesser included offense of possession is a separate discretion in sentencing.”). Similarly, whether the evidence at trial su pports State v. Hancock, 156 N.H. 301, 305 (2007) (“[A] trial court has broad RSA 318 - B:26 (Supp. 2019) (setting punishments for various drug offenses); legally be dispensed, the prerogatives of the legislature and court s. S ee, e.g., determining what conviction may legally b e entered and what punishment may 551. In New Hampshire, that determination is separate and divorced from committing is, in a jury trial, the prerogative of the jury. Pierce, 13 N.H. at Thus, d etermining what crime the defendant is factually guilty of

b. See id.; see also Muentner, 406 N.W.2d at 421. that offense is prohibited by the operation of a statute such as RSA 318 - B:28 based up on the evidence at trial, not on whether the defendant’s conviction of whether the jury could rationall y find th e defendant guilty of the lesser offense offense. Soto, 162 N.H. at 718. The second prong of that inquiry focusses on evidence at trial provides a rational basis for a finding of guilt on the lesser is embraced within the definition of the greater offense; and (2) whether the lesser included offense requires an inquiry into: (1) whether the lesser offense Tetrault, 78 N.H. at 16. Indeed, whether a trial court instructs the jury on a find the defendant guilty is of no import to the jury’s fact - finding duty. See defendant cannot be convicted of one offense for which the jury could rationally Muentner, 406 N.W.2d at 423. The legislature’s determination that the elements of the crime were met. See Melcher, 140 N.H. at 831; see also T he jury fulfills its role by judging the evidence and determining whether the p. 11 11

cause, to associate the emergency with the area or place to b e searched; and (3) property; (2) there is a n objectively reasonable basis, approximating probable hand and an immediate need for their assistance for the protection of life or have objectively reasonable grounds to believe that there is an emergency at warrantless entry under this exception, the State must show that: (1) the police Sutterfield v. City of Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014). To justify a necessary to protect life or property. See MacElman, 149 N.H. at 798; see also unrelated to the investigation of a crime, their services appear immediately police officers enter a residence without a warrant because, performing duties The emergency aid exception to the warrant requirement applies when

exception. Id. preponderance of the evidence that a warrantless search fell within such an expectation of privacy.” Id. The S tate bears the burden of proving by a particularly stringent warrant requirement because the occupant has a high Robinson, 158 N.H. 792, 797 (2009). “The search of a home is subject to a crafted and narrow exception to the warrant requirement. See State v. unreasonable and thus unconstitutional unless it falls within a judicially searches be reasonable. Ball, 124 N.H. at 234. A warrantless search is per se Part I, Article 19 of the New Hampsh ire Constitution requires that all

whether the warrantless search fell within the exception de novo. See id. MacE lman, 149 N.H. 795, 79 7 (2003). We review its legal conclusion regarding they are unsupported by the record or clearly erroneous. See State v. search was justified under this exception, we accept its factual findings unless r equirement. When reviewing a trial court’s determination that a warrantless apartment was justified by the emergency aid exception to the warrant The trial court concluded that the officers’ initial entry into the

to aid our analysis. See State v. Ball, 124 N.H. 226, 231 - 3 3 (1983). defendant’s claim under the State Constitution, and rely upon federal law only the Fourth Amendment to th e Federal C onstitution. We first address t he unreasonable searches u nder Part I, Article 19 of the S tate C onstitution and initial warrantless entry into h is apartment violated his right to be free from denying his motion to suppress evidence. He asserts that the police officers’ Finally, we turn to the defendant’s argument that the trial court erred in

C. Warrantless Entry into the Defendant’s Apartment

possession of a controlled drug. applies to the defendant. We therefore vacate the defendant’s conviction of offense of possession with intent to sell or that RSA 318 - B:28 - b otherwise possession. The State does not disp ute that possession is a lesser included waive RSA 318 - B:28 - b’s immunity before it instructed the jury on the offense of We conclude that the trial court erred by requiring the defendant to p. 12 12

defendant’s apartment was justified under the emergency aid exception to the Accordingly, we conclude that the officers’ initial entry into the

to enter the apartment in order to seek evidence of a crime. not in fact provide any medical treatment does not reveal a primary motivation required or that the emergency had been resolved.” That the police officers did they “had no reason to believe that emergency assistance was no longer emergency.” As the trial court found, however, when the initial officers arrived because they “had nothing to offer in terms of resolving the medical the officers were primarily motivated by an intent to seek evidence of a crime The defendant also argues, under the third prong of the analysis, that

“in any serious distress”). (warrantless entry not vali d when officers knew that defendant was no longer arrived); c f. Bray v. State, 597 S.W.2d 763, 768 (Tex. Crim. App. 1980) “possible overdose” call despite the fact that medical personnel had already the police validly entered a residence without a warrant in response to a treatment”); People v. Amato, 562 P.2d 422, 423 - 24 (Colo. 1977) (holding that [an unresponsive individual] received prompt medical evaluation and possible a garage without a warrant after medical services had arrived to “ensure that F. Supp. 3d 50, 63 (D.D.C. 2018) (concluding that th e police justifiably entered personnel were also on scene. See, e.g., Plummer v. District of Columbia, 317 assisting in providing cardiopulmonary resuscitation, even though medical their assistance w ould be nece ssary to save the defendant’s life, for example by suspected to have overdosed. T he officers could have reasonably believed that notified that he was un conscious, not breathing, “turning purple,” and The officers who initially responded to the defendant’s apartmen t were

immediate need for their assistance. See MacE lman, 149 N.H. at 79 8. not rendered by the officers, but on their objective beliefs regarding the of our analysis focuses not on the actual assistance rendered or, in this case, the officers were not called upon to render me dical assistance. The first prong circumstances that became apparent after the emergency subsided, i.e., that defendant’s argument, however, asks us to view the officers’ entry in light of treatment, arrived at the apartment at the same time as the first officer. The Concord Fire Department, who carried Narcan and provided him medical need for their assistance to protect his life bec ause the members of the police had objectively reasonable grounds to believe there was an immediate that the State failed to establish, under the first prong of the analys is, that the The defendant con cedes that an emergency existed. However, he argues

20 1 - 0 2 (2006); see also Sutterfield, 751 F.3d at 557. circumstances s urrounding the entry. See State v. Pseudae, 154 N.H. 196, justified by the emergency aid exception depends on the particular MacE lman, 149 N.H. at 798. Whether a warrantless entry into a home was the search is not primarily motivated by an intent to arrest and seize evidence. p. 13 13

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

170 N.H. 680, 688 (2018). defendant raised in his notice of appeal, but did not brief. See State v. Bazinet, a felon in possession of a firearm. We consider waived any issues that the possession of a controlled drug. We affirm the defendant’s conviction for being For the reasons stated above, we vacate the defendant’s conviction for

the State Constitution. therefore reach the same result under the Federal Constitution as we do under U.S. 398, 406 - 07 (2006); Michigan v. Fisher, 558 U.S. 45, 48 - 49 (2009), and we greater protection under these circumstances, se e Brigham City v. Stuart, 547 warrant requirement. The Federal C onstitution provides the defendant no