State v. Dor

• Decision Date: 07 August 2013
• Docket Number: No. 2012–823,2012–823
• Citation: 75 A.3d 1125,165 N.H. 198
• Parties: The STATE of New Hampshire v. Oriol DOR
• Court: New Hampshire Supreme Court

165 N.H. 198

75 A.3d 1125

The STATE of New Hampshire

v.Oriol DOR

No. 2012–823

Supreme Court of New Hampshire.

Argued: May 9, 2013

Opinion Issued: August 7, 2013

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

James B. Reis, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

LYNN, J.

This case comes before us on an interlocutory transfer without ruling from the 9th Circuit Court–Manchester District Division (Michael, J.). See Sup. Ct. R. 9. The interlocutory transfer poses one question: "Does the definition of a ‘loaded pistol or revolver’ [under RSA 159:4 (2002) ] encompass ... a firearm with no cartridge in the firearm, and no magazine in the magazine well[,] but with a loaded magazine located next to it and easily accessible?" We answer the question in the negative and remand.

I

The following facts are drawn from the interlocutory transfer statement. See In re C.M., 163 N.H. 768, 770, 48 A.3d 942 (2012). On May 8, 2012, police searched the defendant's vehicle and found a .40 caliber semi-automatic pistol adjacent to a loaded magazine in the vehicle's glove compartment. The pistol did not have a cartridge in the chamber or a magazine in the magazine well.

The State charged the defendant with a class A misdemeanor for "knowingly carry[ing] a loaded pistol as defined in RSA 159:4 in a vehicle without a valid license...." The defendant moved to dismiss, arguing that "[t]he firearm at issue was not loaded and therefore no license was required and no crime was committed." The trial court found RSA 159:4 "potentially ambiguous" and transferred the question now before us.

II

RSA 159:4 provides, in pertinent part:

No person shall carry a loaded pistol or revolver in any vehicle or concealed upon his person, except in his dwelling, house or place of business, without a valid license.... A loaded pistol or revolver shall include any pistol or revolver with a magazine, cylinder, chamber or clip in which there are loaded cartridges.

(Emphasis added.)

The defendant argues that "with" in the second sentence should be interpreted narrowly as "joined to," Webster's Third New International Dictionary 2626 (unabridged ed. 2002), so that a "loaded pistol or revolver" encompasses only a firearm that contains one or more cartridges. The State counters that "with" should be interpreted broadly as "denoting nearness, agreement, or connection," Webster's New Dictionary and Thesaurus 625 (1990), so that a "loaded pistol or revolver" encompasses a firearm that contains no cartridges but is located near a loaded magazine or clip. Although the State's reading of RSA 159:4 is plausible, we conclude that the only reasonable construction of the statute is the one offered by the defendant.

The interpretation of a statute is a question of law, which we review de novo . State v. Lathrop, 164 N.H. 468, 469, 58 A.3d 670 (2012). We are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Town of Carroll v. Rines, 164 N.H. 523, 528, 62 A.3d 733 (2013). When interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. State v. Matton, 163 N.H. 411, 412, 42 A.3d 830 (2012). We do not read words or phrases in isolation, but in the context of the entire statutory scheme. Id. Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. Id. We will not consider what the legislature might have said or add language that the legislature did not see fit to include. Evans v. J Four Realty, 164 N.H. 570, 572, 62 A.3d 869 (2013).

The first sentence of RSA 159:4 prohibits a person from carrying a "loaded" pistol or revolver in any vehicle without a valid license. As pertinent here, "loaded" is defined as "containing an explosive charge." Webster's Third New International Dictionary, supra at 1326 (emphasis added). "Loaded" is also the past participle of the verb "load," which means "to put a load on or in a carrier, device, machine, or container; [specifically] to insert the charge or cartridge in the chamber of a firearm. " Id. at 1325 (emphasis added). Based on these definitions, a "loaded" pistol or revolver may mean a pistol or revolver containing a cartridge in the chamber, see id., or, more broadly, a pistol or revolver containing a cartridge in any position from which it can be fired, see id. at 1326; People v. Clark, 45 Cal.App.4th 1147, 53 Cal.Rptr.2d 99, 102 (1996).

We conclude the legislature intended the second sentence of RSA 159:4 to clarify that "loaded" should be defined according to the broader of the two accepted meanings above. Therefore, a "loaded pistol or revolver" means not only a pistol or revolver that contains a cartridge in the chamber, but also a pistol or revolver containing a cylinder, magazine, or clip with a cartridge that can be discharged through the normal operation of the firearm. This reading is consistent with the common and approved usage of "loaded." We aim to preserve the common and approved usage of a word "unless from the statute it appears a different meaning was intended." Phaneuf Funeral Home v. Little Giant Pump Co., 163 N.H. 727, 731, 48 A.3d 912 (2012).

The State argues that the meaning of "loaded" should be expanded further to include a pistol or revolver that does not contain any cartridges but that is located near a detachable magazine or clip that contains cartridges. Those jurisdictions that have defined "loaded" more broadly than the common meaning—i.e. , as encompassing firearms "near" ammunition—have done so explicitly. See, e.g., N.Y. Penal Law § 265.00(15) (2013) (" ‘Loaded firearm’ means any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm."); 18 Pa. Cons. Stat. § 6102 (2012) ("In the case of a firearm which utilizes a detachable magazine, [loaded] shall mean a magazine suitable for use in said firearm which magazine contains such ammunition and has been inserted in the firearm or is in the same container or, where the container has multiple compartments, the same compartment thereof as the firearm."); Ohio Rev. Code Ann. § 2923.16(K)(5)(a) (West Supp. 2013) (defining "unloaded" for purposes of a statute regulating the handling of firearms in motor vehicles). In contrast, RSA 159:4 provides no indication that the legislature intended "loaded" to be defined so broadly as to encompass pistols or revolvers "near" ammunition. Therefore, we conclude the legislature did not intend this reading. Cf. Evans, 164 N.H. at 572, 62 A.3d 869 ("[We will not] add language that the legislature did not see fit to include.").

We note that RSA 207:7, II (2011) could be read to provide some support for the State's position. The statute is located under the "General Provisions as to Fish and Game" chapter, and states, in pertinent part: "No person shall have or carry, in or on a motor vehicle, OHRV, snowmobile, or aircraft, whether moving or stationary, a cocked crossbow, a loaded rifle or loaded shotgun, or a rifle or shotgun with a cartridge in a magazine or clip attached to the gun. " RSA 207:7, II (emphasis added).¹ Because RSA 207:7, II includes the phrase "attached to the gun," the absence of such language in RSA 159:4 arguably supports the inference that the legislature intended RSA 159:4 to have a broader application than RSA 207:7, II. See In re Guardianship of Williams, 159 N.H. 318, 323, 986 A.2d 559 (2009) ("[W]here the legislature uses different language in related statutes, we assume that the legislature intended something different." (emphasis omitted)). That statute, however, also supports a contrary inference. The inclusion of the last clause in RSA 207:7, II arguably shows that the legislature assumed a rifle or shotgun with a cartridge in a magazine or clip attached to the gun (rather than in the chamber) would not qualify as a "loaded" rifle or shotgun (otherwise there would have been no need to include that clause). Given that the legislature did not regard a firearm with a cartridge in an attached magazine or clip as "loaded," it seems highly unlikely that the legislature intended by use of the word "with" in RSA 159:4 to include as "loaded" a broader category of firearms, i.e. , those located near, but unattached to, a clip or magazine containing a cartridge. In light of the conflicting inferences that may be drawn from RSA 207:7, II, we are not persuaded that this statute is indicative of legislative intent to depart from the common meaning of the term "loaded" as used in RSA 159:4. See Phaneuf, 163N.H. at 731, 48 A.3d 912 (we aim to preserve the common and approved usage of a word "unless from the statute it appears a different meaning was intended"); cf. Clark, 53 Cal.Rptr.2d at 103–04 (interpreting "loaded" according to its common meaning in a section of the Health and Safety Code even though a section of the Penal Code contained a broader definition of the word).

Furthermore, we reject the State's reading of RSA 159:4 because it could render the statute unconstitutionally vague. See N.H. CONST. pt. I, art. 15 ; State v. Ploof, 162 N.H. 609, 620, 34 A.3d 563 (2011) ("It is a basic principle of statutory construction that a legislative enactment will be construed to avoid conflict with constitutional rights wherever reasonably possible." (quotation omitted)); State v. Pratte, 158 N.H. 45, 48, 959 A.2d 200 (2008) ("The underlying principle of vagueness is that no person should be held criminally responsible for conduct which he or she could not reasonably understand to be proscribed." (quotation omitted)). A criminal statute is void for vagueness when it forbids or requires the doing of an act in terms so vague...