State v. Hull
| Decision Date | 21 July 2003 |
| Docket Number | No. 2002–297.,2002–297. |
| Citation | 827 A.2d 1001,149 N.H. 706 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Gregg HULL. |
Peter W. Heed, attorney general (Laura E.B. Lombardi, assistant attorney general, on the brief and orally), for the State.
Robert J. Moses, of Amherst, by brief and orally, for the defendant.
The defendant, Gregg Hull, appeals his convictions for driving under the influence of liquor (DUI), third offense, see RSA 265:82 (Supp.2002) ; RSA 265:82–b, II(b) (Supp.2002), and felony reckless conduct, see RSA 631:3 (1996), following a jury trial in the Superior Court (Hicks , J.). On appeal, he argues that the trial court erred by: (1) denying his motion in limine to exclude his prior Massachusetts conviction for operating under the influence of intoxicating liquor (OUI); (2) denying his motion to dismiss the charges for insufficient evidence; (3) denying his motion to set aside the reckless conduct verdict because his car was not a deadly weapon; and (4) denying his motion to set aside the reckless conduct verdict on double jeopardy grounds. We affirm.
The jury could have found the following facts. While driving on the Charles Bancroft Highway on April 22, 2001, the defendant struck Litchfield Police Officer Paul Paquette, from behind, with the mirror of his Ford pickup truck. The contact occurred while the officer was issuing a speeding ticket to another driver. The other driver heard the defendant's truck hit the officer, saw the officer holding his shoulder as the truck tail lights passed, and heard the officer say he had been hit by the truck. The officer then called another unit to report he had been struck by a Ford pickup truck and pursued the truck to issue a citation.
Officer Paquette pulled the truck over approximately one mile from the spot where he had stopped the first driver for speeding. The officer told the defendant he had struck him with his truck and asked the defendant for his license and registration. The officer smelled a distinct odor of alcohol on the defendant's breath and noticed that he slurred his speech. When the officer asked the defendant how much he had to drink he replied that he had not been drinking. The officer then asked the defendant to perform field sobriety tests (FST), to which the defendant agreed.
By the time the defendant got out of the truck, Officer Dwyer had arrived. Both officers smelled alcohol on the defendant and observed that his eyes were red and bloodshot, his speech was slurred, he was unsteady on his feet, and he swayed as he tried to stand still. The defendant performed poorly on the walk-and-turn and the one-legged stand FSTs. Officer Paquette then read the defendant his administrative license suspension rights (ALS) and requested that he take a breathalyzer test. The defendant refused and Officer Paquette arrested him for drunk driving.
While Officer Paquette took the defendant to the station, Officer Dwyer stayed with the defendant's truck until the tow truck came. While he was waiting, he examined the passenger side mirror and found that it was pushed in toward the vehicle, had fresh scuff-marks and was missing the dirt that covered the rest of the truck.
The defendant had a 1999 DUI conviction in New Hampshire and a 1995 OUI conviction in Massachusetts. Prior to trial, the defendant moved in limine to exclude evidence of his OUI conviction in Massachusetts, arguing it was not a "reasonably equivalent offense" to the New Hampshire DUI offense. See RSA 265:82–b, II. The trial court denied the defendant's motion. At trial, the defendant moved to dismiss both indictments at the close of the State's case. The trial court denied this motion too, finding that the evidence on each charge was sufficient to be submitted to the jury. After trial, the jury returned a guilty verdict on each indictment, which the defendant moved to set aside for violating double jeopardy and for being based upon insufficient evidence. Once again, the trial court denied these motions. This appeal followed.
The defendant argues the trial court should have excluded his prior Massachusetts conviction.
(Emphasis added.) The defendant argues that because the New Hampshire and Massachusetts offenses have different elements of proof and are subject to significantly different punishments, they are not "reasonably equivalent" under RSA 265:82–b, II.
We are the final arbiter of the legislature's intent as it is expressed in the words of a statute considered as a whole. State v. Rollins–Ercolino, 149 N.H. ––––, ––––, 821 A.2d 953 (2003). Our task is to construe the Criminal Code provisions according to the fair import of their terms and to promote justice. Id. In doing so, we first look to the plain language of the statute to determine legislative intent. Id. When the statutory language is subject to more than one reasonable interpretation, we examine the nature of the offense and the policy considerations for punishing the conduct in question. Id.
Neither the legislature nor this court has defined what constitutes a "reasonably equivalent offense" for sentencing purposes under our Criminal or Motor Vehicle Codes. In a different context, the department of safety has adopted a test of N.H. Admin. Rules , Saf–C 5502.01 ().
Other jurisdictions addressing whether offenses are "reasonably equivalent," "substantially similar" or "like offenses" for subsequent offense or recidivist sentencing provisions apply similar tests to that articulated by the department of safety. See, e.g. , Com. v. Corbett, 422 Mass. 391, 663 N.E.2d 259, 262–63 (1996) (like offenses); Walter v. North Dakota State Highway Com'r, 391 N.W.2d 155, 159–60 (N.D.1986) (equivalent offenses); Com. v. Shaw, 560 Pa. 296, 744 A.2d 739, 743–44 (2000) (equivalent offenses); Cox v. Com., 13 Va.App. 328, 411 S.E.2d 444, 445–46 (1991) (substantially similar offenses).
While the tests applied in other jurisdictions differ, one common factor is whether the evidence required to sustain a conviction for the out-of-state jurisdiction's offense would necessarily sustain a conviction under the home state's statute. If the answer to this question is "yes," the offense is an "equivalent offense" for sentencing enhancement purposes. See, e.g. , Corbett, 663 N.E.2d at 263; Walter, 391 N.W.2d at 160. If the answer to this question is "no," the offenses are not "equivalent." See, e.g. , Shaw, 744 A.2d at 744–45; Cox, 411 S.E.2d at 446. The language of the elements of the statutes need not be identical, because the purpose of subsequent offender laws is to prohibit and punish a specific type of recurring conduct by imposing an enhanced sentence. Cf. State v. Cardin, 129 N.H. 137, 138, 523 A.2d 105 (1987). The prior offense is not an additional element of the present charge. See id.
We find the rationale applied in other States to be persuasive and consistent with the test articulated by the department of safety. Accordingly, we will look to the elements of the New Hampshire and Massachusetts offenses to determine if they are reasonably equivalent offenses for sentence enhancement under RSA 265:82–b.
The New Hampshire DUI statute, under which the defendant was indicted, provides:
RSA 265:82, I(a). The Massachusetts OUI statute, under which the defendant was convicted in 1995, provides:
(1)(a)(1) Whoever, upon any way ... operates a motor vehicle while under the influence of intoxicating liquor ... shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.
Mass. Gen. Laws Ann. ch. 90, § 24(1)(a)(1) (West 2001).
To convict the defendant in Massachusetts, the Commonwealth was required to prove beyond a reasonable doubt that the defendant: (1) operated a motor vehicle; (2) on any way; (3) while under the influence of intoxicating liquor. See Corbett, 663 N.E.2d at 263. Likewise, in New Hampshire, the provision under which the defendant was indicted required the State to prove beyond a reasonable doubt that the defendant: (1) drove or attempted to drive a vehicle; (2) on any way; (3) while under the influence of intoxicating liquor. See State v. Tarantino, 140 N.H. 523, 524, 668 A.2d 45 (1995). The only difference between these provisions is in the language " operates a motor vehicle," see Mass. Gen. Laws Ann. ch. 90, § 24(1)(a) (1), and "drive a vehicle," see RSA 265:82, I.
Our legislature has defined " ‘Driv[ing],’ in all its moods and tenses, [to] mean to operate or be in actual...
To continue reading
Request your trial
-
Miller v. Sunapee Difference, LLC
...its decision, the Perry court assumed that recklessness involved a defendant's "conscious choice." Id. at 24 (citing State v. Hull, 149 N.H. 706, 713, 827 A.2d 1001 (2003) ). Here, plaintiff argues that a reasonable inference can be made that Mount Sunapee knowingly disregarded the risk of ......
-
State v. Kousounadis
...We have previously held that this is a question of fact for the jury based upon the totality of the circumstances. State v. Hull, 149 N.H. 706, 714–15, 827 A.2d 1001 (2003) ; see also State v. Sands, 123 N.H. 570, 591, 467 A.2d 202 (1983) (interpreting State and Federal Constitutions as gua......
-
State v. Sage, 2016–0698
...to New Hampshire's DUI offense under the elements-based approach to the determination established by this court in State v. Hull, 149 N.H. 706, 710, 827 A.2d 1001 (2003).Following an evidentiary hearing, the trial court denied the defendant's suppression motion in its entirety. With regard ......
-
State v. Cheney
...establishes that proof of the elements of each statute requires proof of a fact or facts that the other does not. Cf. State v. Hull, 149 N.H. 706, 716, 827 A.2d 1001 (2003) (for double jeopardy purposes, "[t]wo offenses will be considered the same unless each requires proof of an element th......