Submitted January 7, 2015
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
Joseph A. Foster, attorney general ( Lisa Wolford, assistant attorney general, on the brief), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the brief, for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred; LYNN, J., concurred specially.
The defendant, Jason J. McGill, appeals his conviction by a jury for felony delivery of an unlawful article to a prisoner. See RSA 30-B:9, :10 (2000). On appeal, he argues that the Superior Court ( Vaughan, J.) erroneously instructed the jury that to convict, it had to find that he acted " knowingly." He contends that the proper mens rea for the crime was " purposely." We reverse and remand.
The record establishes the following facts. The defendant was charged with knowingly delivering to an inmate at Grafton County House of Corrections an article that was unlawful for the defendant to possess, namely, a pill containing a certain prescription drug. Although the defendant is also an inmate at the same facility, the indictment did not so allege. The defendant moved to dismiss the indictment on the ground that it failed to allege that he acted with the intent that the inmate receive or obtain the article, as required by RSA 30-B:9. The trial court denied his motion.
Thereafter, the court distributed a draft jury instruction to the parties, which stated that, to convict the defendant of the charged offense, the State had to prove the following: (1) the defendant had in his possession a prescription drug that was contrary to the prison's rules and regulations; (2) he " acted purposely, that is, with the intent to deliver said article" to a prisoner; (3) he " acted purposely, that is, with the intent that [the] prisoner ... shall receive or retain such article" ; and (4) he " did so without the knowledge or permission of the Superintendent of the Grafton County House of Corrections."
The State objected to the instruction, arguing that the mens rea for the charged offense was not " purposely," as set forth in the instructions, but was " knowingly." The State argued that when the charge alleges delivery of a prohibited article from one inmate to another, the mental state is " simply knowingly," because " the purpose is self-evident." The State also requested that the word " intent" be eliminated from the instructions and that the phrase " with the intent that a prisoner ... shall receive or retain said article," RSA 30-B:9, be replaced with " knew that a prisoner shall receive or obtain the article." The trial court revised the jury instruction over the defendant's objection and delivered the following instruction to the jury:
[T]he Defendant is charged with the crime of delivery of articles prohibited. The definition of this offense has five ...