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State v. Starr

Supreme Court of New Hampshire, Strafford

June 9, 2017

THE STATE OF NEW HAMPSHIRE
v.
PEGGY STARR

          Argued: March 30, 2017

          Joseph 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.

          HICKS, J.

         The 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 affirm.

         The 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.

         Before 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.

         While 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.

         Within 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).

         The 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."

         The 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.

         We note 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.

         Resolving 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).

         RSA 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 ...


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