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State v. Wilson

Supreme Court of New Hampshire, Merrimack

April 25, 2017


          Argued: June 14, 2016

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

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

          HICKS, J.

         The defendant, Max Wilson, appeals his convictions, following a jury trial in Superior Court (Smukler, J.), on four counts of violating RSA 632-A:10 (2016), which prohibits persons convicted of certain offenses from providing child care services. We affirm in part, reverse in part, and remand.

         The jury could have found the following facts. The defendant is a New Hampshire registered sex offender. At trial, the State and the defendant stipulated that the defendant had been convicted of a sexual assault, which is a qualifying conviction under RSA 632-A:10, I. He registered at least seven times between October 4, 2012, and December 27, 2013, each time acknowledging that he could not "undertake employment or volunteer service involving the care, instruction or guidance of minor children." (Quotation omitted.)

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

         In January 2014, the victim was fourteen years old. The 2013 holiday season had been difficult, following the death of the victim's grandfather earlier in the year. When the victim's mother resumed homeschooling her children after the holiday break, she found the victim to be challenging and disruptive. The victim's parents discussed having the defendant help with the victim because he respected and looked up to the defendant.

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

         On the morning of January 7, the defendant and the victim discussed the Bible over the telephone. Later that day, the defendant went to the victim's house in Hopkinton. They discussed ideas for woodworking projects and then the defendant drove the victim to Concord, where they went to a restaurant and worked on homework in the café area of a bookstore. They returned home and worked on models in the victim's room, after which the defendant stayed for dinner with the victim's family.

         The victim's father testified that during the week following January 7, the victim "start[ed] to withdraw from . . . family activities." On January 9, the victim's father again called the defendant and shared his concern that the victim was "drifting away." He indicated that he and the victim's mother "wanted to make sure that [the victim] was being put back and pushed towards his parents as the authority figures in his life."

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

         Also on January 10, the victim's mother, according to her testimony, "had an uneasiness that [she] could not put [her] finger on" regarding the defendant's relationship with the victim and shared her concern with her two older daughters. One of the daughters searched the defendant's background on her computer and discovered that he is a registered sex offender. The victim's father then terminated the defendant's contact with the victim.

         The defendant was indicted on four counts of violating RSA 632-A:10, which provides, in pertinent part:

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

         RSA 632-A:10, I (emphasis added). The jury returned a guilty verdict on each felony count. The court imposed the following sentences: on the first conviction, seven-and-one-half to fifteen years of imprisonment; on each of the second, third, and fourth convictions, a period of incarceration to run consecutively to the sentence on the preceding conviction. In addition, the record establishes that the defendant pleaded guilty to charges of sexually assaulting the victim while volunteering to provide him care, instruction or guidance, although it is unclear whether there were two or three such charges and pleas.

         On appeal, the defendant argues that the trial court erred in: (1) denying his motion to dismiss for insufficient evidence; (2) denying his motion to dismiss on grounds that "RSA 632-A:10, I, is void for vagueness, either facially or as applied"; and (3) "entering multiple convictions or imposing multiple punishments." The defendant advanced a fourth issue in an assented-to motion to add issues, which we granted; however, because the defendant failed to brief that issue, we deem it waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

         I. Sufficiency of the Evidence

         We first address the defendant's sufficiency of the evidence argument. "A challenge to the sufficiency of the evidence raises a claim of legal error; therefore, our standard of review is de novo." State v. Collyns, 166 N.H. 514, 517 (2014). Our standard for reviewing the denial of a defendant's motion to dismiss for insufficiency of the evidence is well settled. State v. Fandozzi, 159 N.H. 773, 781-82 (2010). To prevail upon his challenge to the sufficiency of the evidence, the defendant must establish that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. Id. at 782.

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

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

Id. (quotations and citations omitted).

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

         We are not persuaded. First, the term "volunteer" in RSA 632-A:10, I, modifies the term "service." Thus, definitions of the term "volunteer, " standing alone, are inapposite. Additionally, while "[i]t is a general rule, " in construing our own statutes, that "different statutes relative to the same subject[] are to be construed together, " Sloan v. Bryant, 28 N.H. 67, 71 (1853), we decline to import into RSA 632-A:10, I, a definition of "volunteer" contained in a statute dealing with different subject matter. Thus, we find the defendant's citations to RSA 508:17 (2010) (providing immunity from civil liability to volunteers of nonprofit organizations and government entities) and RSA 161-F:49 (2014) (establishing a registry for founded reports of abuse, neglect, or exploitation against certain adults eligible for services on the bases of, among other things, mental illness or physical or developmental disability) unavailing. We are even less inclined to look to inapposite statutes from other jurisdictions.

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

         The State questions our expression of the ejusdem generis principle in Meaney and similar cases, observing that the doctrine has been "traditionally understood and applied" in the opposite presentation; that is, where general words follow a specific enumeration. See, e.g., In the Matter of Preston and Preston, 147 N.H. 48, 51 (2001). The State also argues that the legislature's "use of the phrase 'including, but not limited to, ' in RSA 632-A:10, I, demonstrates that the terms that follow are offered in illustration, not limitation." The State's contentions have some support in case law outside New Hampshire. See, e.g., NISH v. Rumsfeld, 348 F.3d 1263, 1268 (10th Cir. 2003) ("Because ejusdem generis is only to be applied to determine the scope of a general word that follows a specific term, that canon has no relevance here."); People v. Roggow, 318 P.3d 446, 450-51 (Colo. 2013) (noting, in interpreting statute criminalizing child sexual assault by persons "in a 'position of trust' includ[ing], but . . . not limited to" certain defined categories of persons, that the "[t]he phrase 'includes, but is not limited to' suggests an expansion or enlargement and a broader interpretation" and concluding that "the statutory definition makes plain that the examples listed are only illustrative." (quotations omitted)). Nevertheless, we need not reexamine our ejusdem generis jurisprudence to decide this case, and we decline, at this juncture, to do so. We will assume the defendant's contention - that the doctrine may be applied where, as here, the statutory language progresses from a general description to a specific enumeration and where the legislature has used the phrase "including, but not limited to." RSA 632-A:10, I.

         The defendant asserts that all of the specific examples of persons included within the prohibition of RSA 632-A:10, I, are "persons who engage in activity either (a) for pay, or (b) as . . . volunteer[s] for an organization." He notes that "[t]he statute even lists several types of organizations[:] the Boy Scouts and Girl Scouts, 'a summer camp' and 'a school.'" He then argues that, "[u]nder the principle of ejusdem generis, this Court should thus construe 'volunteer service' as encompassing only activity that is similar to the enumerated roles, specifically activity that is either (a) paid or (b) conducted through an organization."

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

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

State v. New Hampshire Gas & Electric Co., 86 N.H. 16, 25 (1932) (emphasis added); see also State v. Small, 99 N.H. 349, 351 (1955) (noting that "the rule of ejusdem generis is neither final nor exclusive and is always subject to the qualification that general words will not be used in a restricted sense if the act as a whole indicates a different legislative purpose in view of the objectives to be attained"). Thus, even assuming, without deciding, that the specific examples enumerated in RSA 632-A:10, I, describe only "persons who engage in activity either (a) for pay, or (b) as . . . volunteer[s] for an organization, " we cannot mechanically use that characteristic under the ejusdem generis doctrine without examining the purposes of the classification and of the statute itself. See State v. Beckert, 144 N.H. 315, 318-19 (1999) (refusing to apply ejusdem generis so as to "read [a] statute with blinders" and rejecting contention "that the specific weapons enumerated in RSA 159:3 represent instruments of combat per se and that the catch-all category of 'other dangerous weapon' must be ...

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