State v. Rivera

• Decision Date: 03 November 2022
• Docket Number: 2016-0006
• Parties: THE STATE OF NEW HAMPSHIRE v. ERNESTO RIVERA
• Court: New Hampshire Supreme Court

THE STATE OF NEW HAMPSHIRE v. ERNESTO RIVERA

No. 2016-0006

Supreme Court of New Hampshire

November 3, 2022

Argued: April 14, 2022

Hillsborough-southern judicial district

John M. Formella, attorney general, and Anthony J. Galdieri solicitor general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J.

The defendant, Ernesto Rivera, appeals his convictions, following a jury trial, on one count of possession of cocaine, RSA 318-B:2, I (2017), one count of criminal threatening, RSA 631:4, I (2016), and five misdemeanor counts of domestic-violence-related simple assault, RSA 631:2-a (2016); RSA 173-B:1 (Supp. 2013) (amended 2014). He argues that the Trial Court (Temple, J.) erred when it denied his pre-trial motion to sever the drug charge from the other charges. We affirm.

The record supports the following facts. In July 2013, the defendant assaulted his girlfriend at a restaurant. He slapped her in the face four times, grabbed the back of her neck, and pushed her against a window while threatening her. Police responded to the scene, arrested the defendant, and transported him to the police station. During an inventory search of the defendant, officers discovered cocaine. The State then charged the defendant with one count of possession of cocaine with intent to sell, one count of criminal threatening, and five misdemeanor counts of domestic-violence-related simple assault.

In April 2014, the defendant moved to sever the drug offense from the other charges, and the State objected. Following a hearing, the court denied the defendant's request to sever the drug offense from the other charges under Superior Court Rule 97-A, the joinder rule then in effect. See Super. Ct. R. 97-A, superseded by N.H. R. Crim. P. 20. Rule 97-A provided, in relevant part:

(A) Related Offenses. Two or more offenses are related if they:

(i) are alleged to have occurred during a single criminal episode; or

(ii) constitute parts of a common scheme or plan; or

(iii) are alleged to have occurred during separate criminal episodes, but nonetheless, are logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct.

(B) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless the trial judge determines that joinder is not in the best interests of justice.

Super. Ct. R. 97-A(I)(A)-(B) (emphasis added). The trial court concluded that all of the offenses arose "out of a single criminal episode" because the drugs were discovered on the defendant during an inventory search immediately following his arrest for the other offenses. It therefore ruled that all of the offenses should be joined for trial.

Following a two-day trial in December 2015, the jury convicted the defendant of the criminal threatening and domestic-violence-related simple assault charges. It found him not guilty of possession with intent to sell but guilty of the lesser-included offense of possession of a narcotic drug. This appeal followed.

At the outset, we observe that the relevant language of the joinder rule in effect at the relevant time, Superior Court Rule 97-A, is identical to the corresponding provisions of the current rule, New Hampshire Rule of Criminal Procedure 20. Compare Super. Ct. R. 97-A(I)(A)-(B), with N.H. R. Crim. P. 20(a)(1)-(2).

Because both rules use the same language, we will refer to and rely upon the current rule, Rule 20, for the remainder of this opinion.

Rule 20 distinguishes between charges that are related and unrelated. See N.H. R. Crim. P. 20(a); State v. Brown, 159 N.H. 544, 548 (2009). When a party moves to join related charges, the trial court must join them unless it "determines that joinder is not in the best interests of justice." N.H. R. Crim. P. 20(a)(2). Accordingly, our review of permissive joinder of offenses involves two steps. First, we must determine whether the trial court erred in concluding that the offenses are related. See N.H. R. Crim. P. 20(a)(1)-(2). If the court properly found the offenses related, we then consider whether it nevertheless erred in joining the offenses for trial because their joinder was not in the best interests of justice. See N.H. R. Crim. P. 20(a)(2); Brown, 159 N.H. at 554.

With respect to the scope of our review of the record on these issues, the defendant acknowledged at oral argument that it makes no difference in this particular case whether we review only the pre-trial information provided to the trial court or the trial evidence because both provide the same factual context. We therefore need not decide here whether appellate review of this two-part analysis must be confined to the information presented to the trial court prior to its ruling. Cf. State v. McIntyre, 151 N.H. 465, 470 (2004) (Broderick, C.J., concurring in part and dissenting in part) (suggesting that appellate review of joinder decision should be confined to evidence provided to motion judge); State v. Glodgett, 144 N.H. 687, 694 (2000) (explaining why we confine our review of pre-trial evidentiary rulings to the pre-trial record).

The defendant first argues that the trial court erred when it denied his motion to sever and joined the drug offense with the other offenses based on its determination that all the offenses are "related" as part of a "single criminal episode." He asserts that we have not previously "define[d] the boundaries" of the "single criminal episode" variant of "relatedness," and, therefore, we should look to the meaning of "single criminal episode" in other contexts. In reliance on our use of that phrase in other contexts, he asserts that we should construe it to mean that the offenses are temporally connected and "directed at the accomplishment of a single criminal objective." We disagree and instead look to the plain language of Rule 20 to discern the meaning of this phrase.

We ordinarily review a trial court's decision to join or sever charges for an unsustainable exercise of discretion. See State v. Girard, 173 N.H. 619, 623 (2020). However, because the defendant's argument concerning whether the offenses are "related" requires us to interpret a court rule and then apply that rule to specific facts, our review is de novo. State v. Simone, 151 N.H. 328, 330 (2004) ("Because this appeal presents both a question of law and a mixed question of law and fact, our standard of review is de novo.").

We have not yet had occasion to define "single criminal episode" under Rule 20(a)(1). We have once before applied the "single criminal episode" variant of "relatedness" in State v. Abram, 153 N.H. 619 (2006), albeit under our prior common law joinder rule. Abram, 153 N.H. at 623-24, 626. In that case, we concluded that the defendant's sexual assault and endangerment of a young boy and girl and his subsequent sexual assault of the girl on that same day were all part of a "single criminal episode." Id. at 626. However, we reached this conclusion without explication and its basis is therefore unclear. See id. Accordingly, we can glean from Abram neither an express nor an implied meaning of "single criminal episode."

Notwithstanding the dearth of joinder case law on this issue, we decline the defendant's invitation to look to the use of this phrase in other contexts. Although we acknowledge that we have previously invoked non-joinder case law to define the "common plan" variant of "relatedness," we did so in the context of the common law joinder rule in effect at the time. See McIntyre, 151 N.H. at 466-67. Because Rule 20(a) now governs the joinder of offenses, we deem the authority the defendant relies upon inapposite and, instead, turn to interpreting the plain language of Rule 20 itself.

When interpreting a court rule, as with a rule of evidence or a statute, we will first look to the plain meaning of the words used and ascribe to them their plain and ordinary meaning where possible. See State v. Munroe, 173 N.H. 469, 472 (2020). We will not consider words and phrases in isolation, but, rather, within the context of the rule as a whole. Cf. State v. Moore, 173 N.H. 386, 390-91 (2020) (interpreting a statute).

As used here, "single" means "consisting of a whole UNBROKEN, UNDIVIDED." Webster's Third New International Dictionary 2123 (unabridged ed. 2002). "Episode" means "an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series." Id. at 765. Accordingly, we construe "single criminal episode" as used in Rule 20(a)(1)(A) to mean an uninterrupted criminal occurrence or series of occurrences that are connected in some way. This definition has two components: a temporal limitation imposed by the word "single" - that the episode be "undivided" or continuous - and a "connected" element, which requires that a series of occurrences be connected in some way in addition to their temporal relationship. This "connected" component could be met in a variety of ways - spatial, causal, logical, common objective, or otherwise. In short, for multiple offenses to be considered part of a "single criminal episode," they must: (1) have a close temporal relationship; and (2) be connected in some other way.^[1] This inclusive interpretation of "single criminal episode" is consistent with the purpose of consolidating related offenses, which is to "achieve efficiency and economy for both the government and the defendant." Brown, 159 N.H. at 554. More...