Argued: March 30, 2017
A. Foster, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the memorandum of law and
orally), for the State.
DeMoura|Smith LLP, of Portsmouth (Kirsten B. Wilson on the
brief and orally), for the defendant.
defendant, Peggy Starr, appeals her conviction, following a
bench trial in Superior Court (Houran, J.), on one
count of second degree assault, as a lesser included offense
of first degree assault. See RSA 631:1, I(d), :2,
I(d) (2016). She argues that the trial court erred by denying
her motion to dismiss the first degree assault indictment. We
trial court found or could have found the following facts. In
2010, at six and one-half years of age, D.A. was hospitalized
at a weight of just 23.4 pounds. At the time of his
hospitalization, he suffered developmental delays, was
failing to gain weight, and was short for his age.
Ultimately, D.A. was diagnosed with failure to thrive due to
malnutrition and psychosocial dwarfism.
his hospitalization, D.A. had been in the care of the
defendant and her daughter, Christina Thomas. D.A. called the
defendant "grandma, " and she treated him as her
grandchild. Although D.A.'s biological mother also lived
in Thomas's home with D.A., the defendant and Thomas were
D.A.'s "primary caregivers" and made decisions
about his care. The defendant took D.A. to medical
appointments with his primary care physician and with
specialists. She also communicated with D.A.'s school
about his education, and she attended individualized
education plan meetings on his behalf.
D.A. was in the defendant's care, she disciplined him by
slapping him and hitting him with a spatula. In addition to
administering physical discipline, she would control his
eating to modify his behavior. She took food away from him to
punish him even after one of his treatment providers
instructed that she not do so. Although the defendant knew
that D.A. was not growing taller, was not gaining weight, and
was developmentally delayed, she told authorities at
D.A.'s school that he was not to be given an extra lunch
if he ate his packed lunch on the way to school, and she
continued to withhold food from him as punishment.
ten months of D.A.'s removal from the care of the
defendant and Thomas, his weight nearly doubled. The
defendant was charged with first degree assault for knowingly
causing serious bodily injury to D.A. by causing his
"failure to thrive" condition by failing to provide
him with proper nutrition. See RSA 631:1, I(d).
defendant moved to dismiss the indictment, arguing that the
first degree assault statute does not impose criminal
liability upon defendants for omissions. The trial court
denied the motion, ruling that "first degree assault as
charged in this case may be established by conduct
constituting a voluntary act or a voluntary omission."
defendant argues that the indictment should have been
dismissed because the State's theory was that the
defendant caused serious bodily injury to D.A. by failing to
act, and the first degree assault statute does not delineate
those who have a duty to act. She contends that RSA 631:1,
I(d) "cannot be construed to result in criminal
liability for omissions rather than actions" because it
does not set forth the duty of care that, when breached,
gives rise to criminal liability.
that the defendant does not argue that she owed no duty of
care to D.A. Therefore, the only issues presented for our
review are: (1) whether RSA 631:1, I(d) criminalizes knowing
or reckless omissions that result in serious bodily injury to
a person under 13 years of age; and (2) whether the statute
must explicitly set forth any duty that, if breached by a
failure to act, gives rise to criminal liability.
the issues in this appeal requires us to engage in statutory
interpretation. We review matters of statutory interpretation
de novo. State v. Fuller, 169 N.H. 154, 157
(2016). To determine a statute's meaning, we first
examine its language, and ascribe the plain and ordinary
meaning to the words used. Id. at 157-58. We
interpret legislative intent from the statute as written and
will neither consider what the legislature might have said
nor add language that the legislature did not see fit to
include. Id. at 158. We interpret a statute in the
context of the overall statutory scheme and not in isolation.
Id. We are the final arbiters of the legislative
intent as expressed in the words of the statute considered as
a whole. Id. We construe the provisions of the
Criminal Code "according to the fair import of their
terms and to promote justice." RSA 625:3 (2016).
631:1, I(d) provides, in relevant part, that "[a] person
is guilty of a class A felony if he . . . [k]nowingly or
recklessly causes serious bodily injury to a person under 13
years of age." "It is a matter of fundamental
criminal law that '[a] person is not guilty of an offense
unless his criminal liability is based on conduct that
includes a voluntary act or the voluntary omission
to perform an act of which he is physically
capable.'" State v. Fortier, 146 N.H. 784,
797 (2001) (quoting RSA 626:1, I (2016)) (emphasis added). In
the Criminal Code, "[c]onduct" is defined as
"an action or omission, and its accompanying
state of mind, or, a series of acts or
omissions." RSA 625:11, I (2016) (emphasis
added). Thus, the language of RSA 631:1, I(d), by its plain
and ordinary meaning and interpreted in ...