State v. Qualters

• Decision Date: 12 June 1981
• Docket Number: No. 80-105,80-105
• Parties: The STATE of New Hampshire v. Terrence P. QUALTERS et al.
• Court: New Hampshire Supreme Court

Page 780

431 A.2d 780

121 N.H. 484

The STATE of New Hampshire v. Terrence P. QUALTERS et al.

No. 80-105.

Supreme Court of New Hampshire.

June 12, 1981.

Gregory H. Smith, Acting Atty. Gen. ( Martin R. Jenkins, Asst. Atty. Gen., on the brief and orally), for the State.

Faulkner, Plaut, Hanna, Zimmerman & Freund, Keene (Thomas R. Hanna and George R. Freund, Jr., Keene, on the brief and Hanna orally), for defendants.

KING, Justice.

The defendants appeal their convictions for violation of RSA 249:51 on the grounds that the State failed to establish beyond a reasonable doubt that the defendants did not fall within the exceptions contained in RSA 249:51 IV and V and that RSA 249:51 is unconstitutionally vague. For the reasons herein stated, we affirm the defendants' convictions.

In seven separate complaints, the three defendants were charged with operating vehicles carrying earth, sand, and gravel upon the State highways without covering the load with a close-fitting tarpaulin as required by RSA 249:51 II. At the close of the State's case-in-chief, the defendants moved to dismiss the complaints on the ground that the State had failed to prove that none of the exceptions to RSA 249:51 II applied to the defendants. The Superior Court (Dunfey, C. J.) denied this motion, and the defendants presented their case. The defendants moved for directed verdicts at the close of the evidence on the same ground. The court also denied this motion. The court later found defendant Qualters guilty on five counts, and found Edward Benware and Ronald A. Plummer, both employees of Qualters, each guilty on one count. The defendants then filed this appeal.

The first issue we address is the allocation of the burden of proof on the issue of the applicability of the statutory exceptions contained in RSA 249:51. The defendants allege that the non-applicability of the exceptions is part of the State's case-in-chief. The State contends that the burden is on the defendants to raise the exceptions in the first instance and that the State then has the burden of defeating these claims. We hold that the defendants' position is correct.

RSA 625:10 states that "(n)o person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed." An "element of the offense" is "such conduct, or such attendant circumstances, or such a result of conduct as ... negatives an excuse or justification for such conduct...." RSA 625:11 III(c). RSA 249:51 II makes it a violation to carry a load of sand, gravel or other particulate substance on public highways without a close-fitting tarpaulin covering the load. RSA 249:51 IV and V make the provisions of RSA 249:51 II inapplicable to certain persons and classes of vehicles. Thus persons and vehicles falling within these exceptions, and carrying uncovered loads of particulate substances on the public highways, are "excused" from what would otherwise be criminal conduct. The non-applicability of these exemptions are therefore elements of the offense, RSA 625:11 III(c), and the burden of proof is on the State. RSA 625:10.

The State concedes that it bears the ultimate burden of persuasion on the non-applicability of these statutory exemptions but asserts that the defendants bear the burden of producing evidence of their applicability in the first instance. This position overlooks the significance of the fact that the legislature has made the non-applicability of these exemptions elements of the offense. As elements of the offense, the non-applicability of the exceptions must be established during the State's case-in-chief in order for the State's case to survive a motion for acquittal. We must therefore determine whether the State introduced sufficient evidence that the exceptions did not apply to the defendants.

In reviewing the sufficiency of the evidence, we must consider it and all reasonable inferences therefrom in the light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Scarlett, 121 N.H. ---, ---, 426 A.2d 25, 27 (1981); State v. Linsky, 117 N.H. 866, 872, 379 A.2d 813, 818 (1977). Furthermore, because the defendants chose not to stand on the denial of their motion for directed acquittal but offered evidence of their own, we must consider all the evidence and not solely that evidence which the State presented during its case-in-chief. See State v. LeNoir, 97 N.H. 462, 463, 92 A.2d 159, 159 (1952); State v. Newman, 74 N.H. 10, 15, 64 A. 761, 764 (1906). Finally, because the defendants concede that they do not come under two of the four statutory exceptions contained in RSA 249:51, we need only consider the evidence regarding the remaining two exceptions.

RSA 249:51 V(b) states that "(t)he provisions of paragraph II shall not apply to ... (t)he operation of municipal and state highway maintenance equipment." The plain language of this section exempts municipal and State-owned highway maintenance vehicles from the requirement to cover their loads. There is nothing in the language to indicate that private vehicles providing services to a municipality or the State are exempt. Two witnesses testified that the vehicles were not registered to the State or any municipality. Several witnesses also testified that the defendants were not engaged in...