State of New Hampshire v. Teresa Mercon ( 2021 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by e-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court’s home page is:
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2020-0163
THE STATE OF NEW HAMPSHIRE
v.
TERESA MERCON
Argued: February 11, 2021
Opinion Issued: May 21, 2021
Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,
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.
DONOVAN, J. The State appeals the following rulings of the Superior
Court (Ignatius, J.): (1) the State must prove, as an element of the offense of
driving after suspension pursuant to RSA 263:64, IV, that the defendant’s prior
driving under the influence (DUI) conviction was the basis of her prior license
suspension; (2) the certified case summary offered by the State is admissible,
but not dispositive, evidence of the defendant’s prior DUI conviction; and (3)
denial of the State’s motion to continue. See RSA 606:10 (2001). We affirm
and remand.
I. Facts
The following facts are supported by the record or are undisputed on
appeal. In December 2018, the defendant, Teresa Mercon, was arrested and
subsequently charged pursuant to RSA 263:64, IV for driving while her license
was suspended as a result of a 1997 DUI conviction. In August 2019, she was
convicted in the circuit court and sentenced to serve a mandatory seven-day
jail sentence as required by RSA 263:64, IV. The defendant then appealed to
the superior court for a jury trial de novo.
In October 2019, the State filed a motion in limine to admit a certified
copy of the case summary documenting the defendant’s 1997 DUI conviction
as “dispositive evidence” of the defendant’s conviction and sentencing for that
charge. The State subsequently altered its position in a memorandum of law
arguing that the 1997 DUI conviction constitutes a sentencing factor under
RSA 263:64, IV, not an element of the offense that must be proven beyond a
reasonable doubt. The State argued, in the alternative, that the certified case
summary should be dispositive of the prior conviction unless the defendant
contested its validity.
On January 2, 2020, the trial court denied the State’s motion in limine
and ruled that the certified case summary was inadmissible. The State filed a
motion for reconsideration on the following day. On January 10, the court held
an in-chambers conference on the State’s motion for reconsideration, without
ruling on it. During that conference, the State orally moved for a continuance
because the arresting officer in the case was unavailable and would remain so
until at least April. The defendant objected and the court denied the State’s
motion. On January 15, the State filed a motion requesting the court to
reconsider its denial of the motion for a continuance and to rule on the
outstanding motion for reconsideration of its denial of the State’s motion in
limine.
The court ruled on these outstanding motions at a final pretrial hearing
on February 26, 2020. First, the court denied the motion for reconsideration of
its denial of the State’s motion for a continuance. Next, the court ruled that
the State must prove, as an element of operating after suspension, RSA 263:64,
IV, that: (1) the defendant was previously convicted of DUI; and (2) at the time
of her arrest for operating after suspension, her license was suspended
because of that conviction. Finally, the court reconsidered its denial of the
State’s motion in limine and ruled that the certified case summary is
admissible as non-dispositive evidence of the prior DUI conviction and
revocation of the defendant’s license on that basis. This appeal followed. See
RSA 606:10.
2
II. Discussion
A.
We first consider the trial court’s ruling that RSA 263:64, IV requires the
State to prove, as an element of the offense charged, that the defendant’s
license was suspended at the time she was arrested due to a prior DUI
conviction. We review the trial court’s statutory interpretation de novo. State
v. Kardonsky, 169 N.H. 150, 152 (2016). We are the final arbiters of the
legislature’s intent as expressed in the words of the statute considered as a
whole. State v. Mfataneza, 172 N.H. 166, 169 (2019). We first examine
statutory language and, where possible, we ascribe the plain and ordinary
meaning to the words used. Kardonsky, 169 N.H. at 152. We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include. Id. We do not read words or phrases in isolation, but in the context
of the entire statutory scheme. Mfataneza, 172 N.H. at 169. 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.
RSA 263:64 provides, in pertinent part:
I. No person shall drive a motor vehicle in this state while the
person’s driver’s license or privilege to drive is suspended or
revoked by action of the director or the justice of any court in this
state, or competent authority in the out-of-state jurisdiction where
the license was issued.
....
IV. Any person who violates this section by driving or attempting
to drive a motor vehicle . . . in this state during the period of
suspension or revocation of his or her license or driving privilege
for a violation of RSA 265:79 or an equivalent offense in another
jurisdiction shall be guilty of a misdemeanor. Any person who
violates this section by driving or attempting to drive a motor
vehicle . . . in this state during the period of suspension or
revocation of his or her license or driving privilege for a violation of
RSA 265-A:2, I, RSA 265-A:3, RSA 630:3, II, RSA 265:82, or RSA
265:82-a or an equivalent offense in another jurisdiction shall be
guilty of a misdemeanor and shall be sentenced to imprisonment
for a period not less than 7 consecutive 24-hour periods to be
served within 6 months of the conviction, shall be fined not more
than $1,000, and shall have his or her license or privilege revoked
for an additional year. . . .
3
....
VII. Except as provided in paragraphs IV, V-a, and VI, any person
who violates the provisions of this section shall be guilty of a
violation, and shall be fined a minimum of $250 for a first offense
and $500 for a second or subsequent offense.
RSA 263:64 (2014).
We have previously held that, “in order for a defendant to be convicted of
misdemeanor driving after suspension or revocation, the State must prove: (1)
that the defendant’s license to drive had been suspended or revoked; (2) that
the defendant drove a motor vehicle after such suspension; and (3) that the
defendant did so with knowledge of the revocation or suspension of his license
to drive.” State v. Curran, 140 N.H. 530, 532 (1995). In Curran, we addressed
whether RSA 263:64, IV contains a mens rea requirement. Id. at 530-32. In
that case, the defendant argued that the State must prove as an element of the
offense that the defendant knew that his license was suspended because,
according to RSA 626:2, I, conviction of a misdemeanor requires proof that the
defendant had a culpable mental state with respect to each material element of
the offense. Id. at 531. Relying on our holding in State v. Goding, 126 N.H. 50(1985), in which we concluded that misdemeanor DUI offenses do not include a
mens rea requirement, the State argued that RSA 263:64, IV is a penalty
enhancement to which the mens rea requirement does not apply. Curran, 140
N.H. at 531. We agreed with the defendant. Id.
In Curran, we observed that “[t]here is no indication in the language of
RSA 263:64 that the legislature intended the misdemeanor of driving after
suspension or revocation to be merely a penalty enhancement . . . .” Id.
Further, we explained that the “legislative history of RSA 263:64 reveals that
misdemeanor driving after suspension or revocation, unlike the misdemeanor
[DUI] offense addressed in Goding, was not intended to be an enhancement of
an underlying strict liability offense.” Id. Thus, we concluded that the mens
rea requirement applies to each material element of the misdemeanor offense
set forth in RSA 263:64, IV. Id. at 532. Accordingly, in light of Curran, we
conclude that RSA 263:64, IV describes an offense containing elements that
must be proven by the State beyond a reasonable doubt in order to convict a
defendant under that provision.
Nevertheless, the State contends that RSA 263:64, IV is applied only for
purposes of sentence enhancement. Relying on State v. LeBaron, 148 N.H.
226, 232 (2002), the State asserts that prior convictions used solely for
purposes of sentence enhancement are generally not considered elements of
the offense. The State’s reliance on LeBaron is misplaced.
4
In LeBaron, the defendant appealed his felony conviction under RSA
262:23 for driving after being certified as a habitual offender. Id. at 227. The
relevant provisions of RSA 262:23 then in effect, stated in part:
[I.] It shall be unlawful for any person to drive any motor vehicle
on the ways of this state while an order of the director or the court
prohibiting such driving remains in effect. If any person found to
be an habitual offender under the provisions of this chapter is
convicted of driving a motor vehicle on the ways of this state while
an order of the director or the court prohibiting such operation is
in effect, he shall be sentenced, notwithstanding the provisions of
RSA title LXII, to imprisonment for not less than one year nor more
than 5 years.
....
[III.] Notwithstanding paragraph I, any person who qualifies under
RSA 259:39, who does not have a conviction under RSA 265:82 or
any misdemeanor or felony motor vehicle convictions pursuant to
RSA title XXI, shall not be subject to the minimum mandatory
provisions of paragraph I; provided, however, that any such person
may be sentenced to one year or less.
Id. at 228-29 (quotations omitted).
In that case, the defendant argued that RSA 262:23 creates two classes
of offense, one of which is a felony, the other a misdemeanor. His argument
rested on the premise that a prior conviction described in RSA 262:23, III is an
element of the separate felony-level offense. Id. at 227-28. The State argued
that a prior conviction is merely a sentencing factor that need not be proven
beyond a reasonable doubt. Id. at 228. In addressing the issue, we observed
that paragraph I states the prohibited conduct and sets forth the sentence that
might be imposed for conviction of such conduct. Id. at 229. We explained
that “[p]aragraph III, on the other hand, recites no prohibited conduct, but
rather begins with the language ‘[n]otwithstanding paragraph I,’ indicating that
it sets forth an exception to an otherwise applicable rule.” Id. at 229. We
concluded that “[p]aragraph III then describes a class of defendants who shall
not be subject to the minimum mandatory sentence provisions of paragraph I,
and provides an alternate, more lenient, sentencing scheme for such
defendants.” Id. at 230. Thus, we held that a prior conviction described in
RSA 262:23, III was a sentencing factor rather than an element of a separate
felony offense. Id.Unlike the sentencing provision at issue in LeBaron, RSA 263:64, IV
proscribes certain conduct and provides a sentence that may be imposed for
performing the prohibited conduct. RSA 263:64, IV. This language does not
5
establish a sentence for conduct proscribed in paragraph I; rather, the penalty
for that conduct is set out in paragraph VII. See RSA 263:64, I, VII. RSA
263:64, IV does not establish an alternative sentence for the conduct
proscribed by paragraph I; instead, it creates a mandatory minimum sentence
that applies exclusively to the conduct described in paragraph IV.1
Accordingly, LeBaron does not support the State’s argument in this case.
Construing the provisions of RSA 263:64 in harmony, we conclude that
paragraph IV “provides a misdemeanor sentence for individuals who drive after
their licenses have been suspended or revoked for certain specified offenses.”
Curran, 140 N.H. at 530 (emphasis added). Pursuant to the statute’s plain
language, a defendant can only be convicted of a misdemeanor for operating
after suspension pursuant to RSA 263:64, IV if, at the time the defendant drove
upon a public way, his or her license was suspended for a violation of one of
the sections specifically enumerated in that paragraph.2 RSA 263:64, IV.
Therefore, in a prosecution brought under RSA 263:64, IV, the State must
prove beyond a reasonable doubt that the defendant’s license was suspended
because of a violation of one of the enumerated sections.
B.
Next, we turn to the trial court’s ruling that the certified case summary
offered by the State is admissible evidence of the defendant’s prior DUI
conviction and the consequential revocation of her license. The State argued in
the trial court that the certified case summary should be admitted as
dispositive evidence of the defendant’s prior conviction and license revocation.
Additionally, the State alleged in its notice of appeal and argued in its opening
brief that the trial court erred to the extent that it decided that although the
certified case summary was admissible to prove the defendant’s prior
1 We observe that the first sentence of paragraph IV proscribes certain conduct and classifies it as
a misdemeanor, but does not impose the mandatory minimum penalty that is included in the
second sentence, which iterates the proscribed conduct from the first sentence verbatim. See RSA
263:64, IV. The only difference between the first and second sentences is the offenses
enumerated within them for which a defendant’s license might have been suspended.
Nevertheless, both sentences are only operable when a defendant’s license has been suspended
for a specific reason and, therefore, a conviction pursuant to either sentence requires the State to
prove that the defendant’s license was suspended because the defendant violated the section
enumerated in the relevant sentence.
2As a result, the State’s concern that it might be required to prove, for example, that a
defendant’s license was suspended because the defendant was found mentally incompetent, see
RSA 263:59 (2014), cannot come to pass. If the reason that the defendant’s license was
suspended is not for a violation of the sections specifically enumerated in RSA 263:64, IV, or an
equivalent offense in another jurisdiction, then the defendant cannot be prosecuted for operating
after suspension under that provision.
6
conviction and resultant license revocation, it was not dispositive. However,
the State disclaimed this argument in its reply brief and at oral argument and,
therefore, we need not address it.3
Further, the State’s contention that the trial court’s ruling was error
because it was too vague was not raised in the trial court and is not properly
before us. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (stating
that “[i]t is a long-standing rule that parties may not have judicial review of
matters not raised in the forum of trial”). Accordingly, we have no basis to
address the trial court’s rulings pertaining to this evidence.
C.
Finally, the State conceded at oral argument that, if the issues we have
addressed above were resolved on appeal, then the issue concerning the trial
court’s denial of the State’s motion to continue “takes care of itself” and we
need not address it. We agree with the State, and do not address that issue
because it is moot. See In re A.D., 172 N.H. 438, 443 (2019).
In conclusion, to convict a defendant for misdemeanor operating after
suspension pursuant to RSA 263:64, IV, the State is required to prove beyond
a reasonable doubt as an element of the offense that the defendant’s license
was suspended because the defendant had violated one of the sections
specifically enumerated therein. Additionally, because the State has
disclaimed and otherwise failed to preserve its arguments challenging the trial
court’s evidentiary rulings as to the case summary offered by the State, we
decline to address them. Accordingly, we affirm the ruling of the trial court
and remand for further proceedings.
Affirmed and remanded.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
3More specifically, the State asserted at oral argument that asking whether the certified case
summary should be admitted as dispositive evidence is “focusing on the wrong issue.”
Similarly, in its reply brief, the State frames the question as “whether the case summary,
certified by the court of conviction as accurate, is admissible to prove that the defendant was
convicted.” Additionally, in its reply brief, the State represents that the vagueness of the trial
court’s ruling admitting the certified case summary as “some evidence” of the defendant’s prior
conviction and license revocation is what motivated the State to appeal the decision.
7