2020-0570, State of New Hampshire v. Justin Parr

argues that the Superior Court (Kissinger, J.) erred by denying his motion to being a felon in possession of a firearm. RSA 159:3, I (a) (2014). T he defendant f ollowing a bench trial in the Superior Court (Schulman, J.), on one count of DONOVAN, J. The defendant, Just in Parr, appeals his conviction,

brief), for the defendant. and Law Office of Michael J. Zaino, PLLC, of Hampton (Michael J. Zaino on the Lehman Major List, PLLC, of Concord (Sean R. List on the brief and orally),

Galdieri, orally), for the State. g eneral (Weston R. Sager, assistant attorney general, on th e brief, and Anthony J. John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2020 - 0 570 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

indictment. This appeal followed. trial court convicted the defendant on the felon in possession of a firearm State made an offer of proof, to which the defendant did not object, and the dismiss, the defendant stipulated to the facts and requested a bench trial. T he Thereafter, to preserve his right to appeal the denial of his moti on to

for rec onsideration, which the court denied. discharged by gunpowder.” (Quotation omitted.) The defendant filed a motion includes “antiques or replicas if they are weapons from which shots can be felons from possessing any weapon within the broad class of firearms,” which court concluded that the term “other fir earm” in RSA 159:3, I(a) “prohibit[s] After a hearing, the trial court denied the defendant’s moti on to dismiss. The firearm” in RSA 159:3, I(a) included the charged handgun. See RSA 159:3, I(a). U.S.C. § 9 p. 2 21(a)(3), (16) (2018). The Sta te obj ected, argui ng that the term “other Andover residence was an antique, he did not violate the statute. See 18 exception for antique firearms and that, because the firearm found at the 159:1 (2014) and federal law, he argued that RSA 159:3, I(a) contains an dismiss the felon in possession of a firearm indictment. Relying upon RSA in possession of a firearm, among other charges. T he defendant moved to Ultimately, the Sta te indicted the defendant on one count of being a felon

charged handgun and conclude d that it functioned normally. with two lea d balls and two powder charges. Th e laboratory also tested the ... black powder percussion cap revolver, m odel 1851 Reb Nord Navy Sheriff” Laboratory examined the charged handgun and classified it as a “.44 caliber a firearm (charged handgun), among other things. The New Hampshire State residence, the PPO and local police found black pow der, a package of shot, and violation of his probation. After searching his vehicle and the Andover information that the defendant was using firearms at his Andover residence, in April p. 2 2019, the defendant’s p robation and p arole officer (PPO) received 201 8, the defendant was convicted of a felony and placed on probation. In The following facts are undisputed or supported by the record. In April

Accordingly, we affirm. unconstitutional ly vague as applied to felons in possession of antique firearm s. including antique firearms. We further conclude that RSA 159: p. 3 3, I(a) is not applies to any weapon from which a shot can be discharged by gunpowder, Constitutions. W e conclude that the term “other f irearm” in RSA 159:3, I(a) 159 are unconstitutionally vague in violation of the State and Federal revolvers. The defendant also argues that several provisions of RSA chapter RSA 159:3, I (a) does not prohibit felons from possessing antique pistols and dismiss his felon in possession of a firearm indictment because, in his view, 3

Beaudette, 124 N.H. at 581 (collecting cases); see State v. St. John, 129 N.H. 1, and the capability of discharge are the distinguishing features of a firearm.” jurisdictions have considered this question and determined that gunpowder statute, s ee RSA 650 - A:1 (2016). In so holding, we observed that “other “firearm” for the purposes of New Hampshire’s felonious use of a firearm in State v. Beaudette, 124 N.H. 579, 581 (1984), when defining the term Dictionary, 854 (unabridged ed. 2002). We previously adopted this definition which a shot is discharged by gunpowder.” Webster’s T hird New International 5 p. 3 36, 539 (2007). The dictionary defines the term “firearm” as “a weapon from firearm,” we look to the dictionary for guidance. See State v. Ruff, 155 N.H. Because RSA chapter 159 does not expressly define the phrase “other

falls within the meaning of “other firearm” in RSA 159: p. 3 3, I(a). 159:3, I(a). See RSA 159:1. Thus, the issue is whether the charged handgun antique, and, therefore, does not qualify as a “pistol” or “revolver” under RSA that the charged handgun — a black powder percussion cap revolver — is an antique pistols, gun can e s, or revolvers.” RSA 159:1. Here, there is no dispute firearm with [a] barrel less than 16 inches in length” but do “not include RSA 159:3, I(a) (emphasis added). The terms “pistol” and “revolver” mean “any

in RSA 625:11, V.... blackjack, dagger, dirk - knife, or other deadly weapon as defined billies, stiletto, switchblade knife, sword cane, pistol cane, revolver, o r other firearm, or slungshot, metallic knuckles, (a) Owns or has in his possession or under his control, a pistol,

I. A person is guilty of a class B felony if he:

RSA 159: p. 3 3, I(a) provides:

statutes in the context of the overall statutory scheme and not in isolation. Id. language the legislature did not see fit to include. Id. Fi nally, we interpret as written and will not consider what the legislature might have said or add ordinary meaning. Id. Further, we interpret legislative intent from the statute statute itself, and, if possible, construe that language according to its plain and statute considered as a whole. See i d. We first look to the language of the interpretation, the intent of the legislature i s expressed in the words of the See State v. Pinault, 168 N.H. 28, p. 3 31 (2015). In matters of statutory in terpretation of a statute presents a question of law, which we review de novo. trial court misconstrued RSA 159:3, I(a) as applying to antique firearms. The T he defendant first argues that, in denying his motion to dismiss, the

I(a). not inform whether its mere possession makes it a “firearm” under RSA 159:3, deadly weapon based upon how it is used, see RSA 625:11, V (2016), that does “firearm” and “deadly weapon.” RSA 159:3. Although a firework may become a absurd consequences.”). We disagree. The defendant conflates the terms 169 N.H. 755, 766 (2017) (“[A] statute will not be construed so as to lead to res idential use fireworks would be considered firearms. See State v. Wilson, discharges a shot by gunpowder “leads to the absurd conclusion” that many interpreting the phrase “other firearm” as including any weapon that State v. Kousounadis, 159 N.H. p. 4 413, 425 (2009). Therefore, he argues, gunpowder, and that “virtually anything” can be considered a deadly weapon. In addition, the defendant argues that firework s discharge shot from

coextensive. RSA 159:3, I(a). legislature emp loyed the term “other f irearm,” the three terms are not although the terms “pistol,” “revolver,” and “firearm” may overlap, because the exists as an opposite of or as excluded by something else”). Therefore, Dictionary 1598 (unabridged ed. 2002) (defining “other” as “something that 159:1, such as antiques. See RSA 159:1; Webster’s Third New International “firearm” that does not fall within the definition of “[p]istol or revolver” in RSA I(a) demonstrates that the statute prohibits felons fro m possessing any “revolver” superfluous. The legislature’s use of the word “other” in RSA 159:3, that our interpretation of RSA 159:3, I(a) renders the words “pistol” and 160 N.H. p. 4 462, 465 (2010) (quota tion omitted). However, we are not persuaded the legislature did not enact superfluous or redundant words.” State v. Thiel, observe that “[w] e must give effect to all words in a statute, and presume that superfluous the inclusion of “pistol” and “revolver” in RSA 159:3, I(a). We including any weapon that discharges a shot by gunpowder renders The defendant counters that interpreting the phrase “other firearm” as

firearm.” of the charged handgun fell within the scope of RSA 159:3, I(a) as an “other above - stated definition of firearm, we conclude that the defen dant’s possession handgun and determined that it functioned normally. Therefore, applying the explained above, t he New Hampshire State Laboratory test - fired the charged can be discharged by gunpow der. See Beaudette, 12 p. 4 4 N.H. a t 581. As RSA 159:3, I(a). Thi s prohibition includes antique weapons from which shot prohibits felons from possessing any weapon within the broad class of firearms. We further conclude, as the trial court did, that the term “other firearm” is discharged by gunpowder.” Beaudette, 124 N.H. at 581 (quotation omitted). term “firearm” as used in RSA 159:3, I(a) means “a weapon from which a shot Accordingly, consistent with our previous holdings, we conclude that the

did not dispute that the charged weapon was a “fire arm” under RSA 1 p. 5 59:3). jury on the definition of “firearm” set forth in Beaudette because the defendant 2 - p. 4 4 (1986) (holding that the trial court did not err by refusing to instruct the 5

law. See RSA 1 p. 5 59:26, I (“To the extent consistent with federal law. . . .”). He the term “firearm,” as used in RSA chapter 159, to be coextensive with federal well as RSA 159:26 (2014), the defendant argues that the legislature intended Additionally, drawing upon references to federal law in RSA 159:1, as

31. statute that the legislature did not see fit to include. See Pinault, 168 N.H. at only contravene the statute’s plain language, but also add language to the firearms from prosecution under RSA 1 p. 5 59:3, I(a). To hold otherwise would not legislature intended to categorically exclude a felon’s possession of antique Contrary to the defendant’s argument, nothing in RSA 159:1 suggests that the limit the application of the language of the last sentence to “this section.” Id. chapter” (in the latter). Id. This contrast illustrates the legislature’s in tent to language — “as used herein” (in the former), and “for the purposes of this 159:1. By contrast, the first and third se ntences of RSA 159:1 employ broader the last sentence of RSA 159:1 limits its application to “this section.” RSA We are unpersua ded by the defendant’s argument. The plain language of

prosecution under RSA 1 p. 5 59:3, I(a). law, the so - called “antique revolver exemption” of RSA 159:1 precludes his argues, because his ownership of the charged handgun com plied with federal such as the charged handgun. See 18 U.S.C. § 921(a)(3), (16). Therefore, he The defendant notes that the federal definition of “firearm” excludes antiques, revolvers in a manner that complies with federal law.” (Quotation omitted.) haven for the narrow purpose of owning or transferring antique pistols or RSA 159:1 creates an “antique revolver exemption,” which “provides a safe RSA 159:1 (emphasis added). The defendant argues that the last sentence of

conflict with federal statutes. shows, or private premises provided such ownership or transfer does not antique or arms collectors, or licensed gun dealers at auctions, gun gun canes, or revolvers from being owned or transferred by museums, cane, or revolver. Nothing in this section shall prevent antique pisto ls, in common, current use shall be deemed to be an antique pistol, gun which utilizes readily available center fire or rim - fire cartridges which are matchlocks, percussions and pin - fire, but no pistol, gun cane, or revolver type of ignition, including, but not limited to, flintlocks, wheel locks, this chapter, means any pistol, gun cane, or revolver utilizing an early or r evolvers. An antique pistol, gun cane, or revolver, for the purposes of than 16 inches in length. It does not include antique pistols, gun canes, Pistol or revolver, as used herein, means any firearm with barrel less

antiques, the defendant points to the language of RSA 1 p. 5 59:1, which provides: In further support of his argument that RSA 15 9:3, I(a) does not apply to p. 6 6

with greater precision. Id. penal statute, n or is a law invalid merely because it could have been drafted constitutionality. Id. Moreover, mathematical exactness is not required in a burden of proof in light of the strong presumpt ion favoring a statute’s 307 (200 p. 6 6). A party challenging a statute as void for vagueness bears a heavy arbitrary and discriminatory enforcement. State v. MacElman, 154 N.H. 304, understand what conduct it prohibits; or (2) it authorizes or even encourages (1) it fails to provide people of ordinary intelligence a reasonable opportunity to statute can be impermissibly vague for either one of two independent reasons: which we review de novo. State v. Lamarche, 157 N.H. 337, 340 (2008). A 231 - 33 (1983). The c onstitutionality of a statute presents a question of law, and cite federal opinions for guidance only. See State v. Ball, 124 N.H. 226, W e first address the defendant’s argument under the State Constitution,

prohibit. (Quotation omitted.) parties, such as the defendant, on notice of the “precise conduct” that they defendant argues, the above - cited provisions of RSA chapter 159 fa il to put 159:3, RSA 159:3 - a, and RSA 159:7 as applying to antiques. Theref ore, the person of ordinary intelligence could “plausibly read” the word “firearm” in RSA fact that federal law exempts antiques from the definition of “firearm,” no federal consistency provisions” in RSA 159:1 and RSA 159:2 p. 6 6, along with the defendant argues that, given the so - called “antique revolver exemption and process rights under the State and Federal Constitution s. Specifically, the and RSA 159:7 (2014) are unconstitutionally vague in violation of his due The defendant further argues that RSA 159:3, I(a), RSA 159:3 - a (2014),

RSA 159:3, I(a) as applying to a ntique firearms. state laws. Accordingly, we conclude that the trial court did not misconstrue the legislature intended the federal definition of a “firearm” to preempt our concessio n, the defendant cannot rely upon these references to suggest that State firearms law based upon express or field preemption.” In light of this defendant conceded that he “has made no argument that federal law preempts N.H. 89, 94 - 95 (2021) (explaining federal preemption principles). However, the potent ial conflict between state and f ederal law. See Appeal of Panaggio, 174 federal law in RSA 159:1 and RSA 159:2 p. 6 6 to address preemption and a RSA chapter 159. Put another way, the legislature intended the references to that conduct otherwise prohibited by federal law shall not be permitted under T he plain meaning of each provision’s reference to federal law establishes only T he defendant’s reliance upon RSA 159: 1 and RSA 159:26 is unavailing.

“firearm” in RSA 159:3, I(a) to also exclude antiques. antiques, see 18 U.S.C. § 921(a)(3), (1 p. 6 6), the legislature intended the term therefore argues that, because the federal definition of “firearm” excludes p. 7 7

the Federal Constitution as we do under the State Constitution. also Hill v. Colorado, 530 U.S. p. 7 703, 732 (2000), we reach the same result under Constitution under these circumstances, see MacElman, 154 N.H. at 310; see Constitution offers the def endant no greater protection than does the State that the defendant has fully briefed.”). Because we conclude that the Federal Blackmer, 149 N.H. 47, 49 (2003) (“[W]e confine our review to only those issues developed th at argument in his brief, and we decline to address it. See State v. or encourages arbitrary or discriminatory enforcement, he has not sufficiently To the extent that the defendant argues that RSA 159:3, I(a) authorizes

omitted). of whether the weapons are antique s. Beaudette, 124 N.H. at 581 (quotation possess “weapon[s] from which a shot is discharged by gunpowder,” regar dles s ordinary intelligence could conclude that RSA 159:3, I (a) authorizes felons to purpose and the plain meaning of its language, we conclude that no person of death.” State v. Beckert, 144 N.H. 315, 31 p. 7 7 (1999). Given the statute’s have under their control instruments capable of causing serious injury or statutory purpose of “protect[ing] the public from felons who would possess or Dictionary, supra at 854, 1598. This language is also consistent with the revolver” in RSA 159:1. See RSA 159:3, I(a); Webster’s Third New International possessing any “firearm” that does not fall wit hin the definition of “[p]istol or intelligence would understand that RSA 159:3, I (a) prohibits felons from definitions of the words “other” and “firearm,” any person of ordinary 159:1 limits its application to “this section.” Moreover, given the dictionary characterizes as the “antique firearm exception” within the last sentence of RSA prohibits. As explained above, t he plain language o f what the defendant reasonable opportunity to understand the conduct that RSA 159:3, I(a) we conclude that RSA 159:3, I(a) provides a person of ordinary intelligence a Even assuming, without deciding, that a fundamental right is implicated,

applied to a felon in possession of an antique firearm. need only consider whether RSA 159:3, I(a) is unconstitutiona lly vague as not hypothetical, dispute, which is capable of judicial redress.”). Therefore, we or equitable rights that are adverse to one another, with regard to an actual, 1 p. 7 73 N.H. 726, 737 (2020) (“Standing... require s parties to have personal legal address that part of his argument. See Avery v. Comm’r, N.H. Dep’t of Corr., challenge those provisions as unconstitutionally vague, and we decline to violating RSA 159:3 - a or RSA 159:7. Th u s, the defendant lacks standing to applied claim.”). Moreover, the trial court did not convict the defendant of that the statute is facially invalid, we further limit our analysis to his as (“Because we conclude that the defendant has failed to develop his argument 159 are unconstitutionally vague as applied. See Lamarche, 157 N.H. at 340 developed a facial challenge, arguing only that select provisions of RSA chapter As an initial matter, we note that the defendant has not sufficiently p. 8 8

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

deemed waived. State v. Bazinet, 170 N.H. 6 p. 8 80, 688 (2018). issues that the defendant raised in his notice of appeal, but did not brief, are For the foreg oing reasons, we affirm the defendant’s conviction. Any