State v. Arthur Kardonsky , 169 N.H. 150 ( 2016 )


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    THE SUPREME COURT OF NEW HAMPSHIRE
    ___________________________
    6th Circuit Court–Concord District Division
    No. 2015-0383
    THE STATE OF NEW HAMPSHIRE
    v.
    ARTHUR KARDONSKY
    Argued: April 5, 2016
    Opinion Issued: June 14, 2016
    Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
    attorney general, on the brief and orally), for the State.
    Nixon Peabody LLP, of Manchester (Anthony J. Galdieri on the brief and
    orally), for the defendant.
    BASSETT, J. The defendant, Arthur Kardonsky, appeals the finding of
    the Circuit Court (Boyle, J.) that he was guilty of the violation-level offense of
    driving after suspension of his driver’s license. See RSA 263:64 (2014). On
    appeal, he argues that the trial court erred by ruling that this violation-level
    offense does not require the mens rea of “knowingly.” Because we agree, we
    reverse.
    The relevant facts follow. The defendant was originally charged with both
    a misdemeanor and a violation-level offense for driving his motor vehicle after
    his privilege to do so had been suspended. The misdemeanor offense alleged
    that the defendant drove after his motor vehicle registration had been
    suspended; the violation-level offense alleged that he drove after his driver’s
    license had been suspended. At trial, defense counsel urged the trial court to
    “enter a finding of not guilty” as to both the misdemeanor and violation-level
    offenses because, when the defendant was arrested for driving with a
    suspended license and registration, he was unaware that they had been
    suspended, and because “he had a license that on its face appeared valid and
    the same for the registration.” For its part, the State argued that the defendant
    testified that he “lives at the address to which the notice” of license suspension
    “was sent,” and that “his testimony was conflicting as to what he does and does
    not recall.”
    The trial court ruled as follows at the close of evidence:
    Sir, you’re charged with operating on a suspended
    registration, that is a Class B misdemeanor. The State has to
    prove beyond a reasonable doubt that you drove or permitted to be
    driven a certain motor vehicle in the State of New Hampshire after
    knowing that your registration had been suspended by the director
    of motor vehicles.
    This is a misdemeanor level offense and it carries with it the
    mens rea of knowingly. I’ve heard testimony here today that you
    don’t recall whether or not you received a notice from the police
    officer at the time of your accident that your registration would be
    suspended and your license would be suspended if you failed to
    comply with the insurance provisions and in essence guarantee
    that you would make good on any damages from the accident that
    you were at fault.
    You’ve testified that you’ve had problems getting the mail
    where you were living at the time and you don’t recall ever
    receiving a notice from DMV that you had, in fact, had your license
    suspended for failure to comply with the insurance requirements.
    Since there’s a mens rea of knowingly on this offense, I'm
    going to enter a finding of not guilty.
    You also have a violation level offense of operating after
    suspension. That is a violation level offense[;] it does not require a
    mens rea of knowingly. What the State must prove is that your
    license was suspended and that you were operating a motor vehicle
    while your license was suspended.
    I’m going to enter a finding of guilty to that one.
    2
    The trial court imposed a $250 fine and a $60 penalty assessment. See RSA
    263:64, VII. This appeal followed. The trial court subsequently granted the
    defendant’s motion to stay payment of the fine pending this appeal.
    The sole issue on appeal is whether the trial court erred when it ruled
    that the violation-level offense of which the defendant was found guilty does
    not require a mens rea of “knowingly.” Before addressing the merits of this
    issue, we note that the State contends that it is not preserved for our review.
    We assume without deciding that the State is correct. Nonetheless, we elect to
    address the issue on appeal because preservation is a limitation upon the
    parties to an appeal, not upon the reviewing court, and because the appeal
    issue constitutes a discrete question of statutory interpretation, requiring no
    further factual development. See Camire v. Gunstock Area Comm’n, 
    166 N.H. 374
    , 377 (2014).
    We review the trial court’s statutory interpretation de novo. State v.
    Mayo, 
    167 N.H. 443
    , 450 (2015). We first examine statutory language, and,
    where possible, we ascribe the plain and ordinary meanings to the words used.
    State v. Maxfield, 
    167 N.H. 677
    , 679 (2015). 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. RSA 263:64
    sets forth misdemeanors and violation-level offenses for the
    same conduct — driving “while the person’s driver’s license or privilege to drive
    is suspended or revoked.” RSA 263:64, I. Under RSA 263:64, whether an
    offense constitutes a misdemeanor or violation depends upon “the reason for
    the suspension or revocation.” State v. Curran, 
    140 N.H. 530
    , 531 (1995); see
    RSA 263:64, IV, V-a(b), VI (describing misdemeanor offenses), VII (providing
    that “[e]xcept as provided in paragraphs IV, V-a, and VI, any person who
    violates” RSA 263:64 “shall be guilty of a violation”).
    The very structure of RSA 263:64 indicates that the legislature did not
    intend that only the misdemeanors set forth therein include a mens rea
    requirement. All offenses in RSA 263:64, including violation-level offenses,
    penalize the same conduct — driving “while the person’s driver’s license or
    privilege to drive is suspended or revoked.” RSA 263:64, I. Moreover, in the
    trial of any offense under RSA 263:64, including violation-level offenses,
    “[e]vidence that the notice of suspension or revocation was sent to the person’s
    last known address as shown on the records of the division shall be prima facie
    evidence that the person was notified of the suspension or revocation.” RSA
    263:64, II.
    In discerning whether the legislature intended there to be a mens rea of
    “knowingly” for the violation-level offenses set forth in RSA 263:64, we find our
    decision in Curran to be instructive. The issue in that case was whether the
    legislature intended there to be a mens rea of “knowingly” for the misdemeanor
    3
    set forth in RSA 263:64, IV. 
    Curran, 140 N.H. at 530-31
    . Based upon “the
    language and legislative history of RSA 263:64, combined with the mens rea
    requirement of RSA 626:2, I,” we concluded that the legislature so intended.
    
    Id. at 530-32;
    see RSA 626:2, I (2007).
    Contrary to the State’s assertions, the legislative history that we
    consulted in Curran does not require that we reach a different conclusion in
    this case. Under a prior version of the statute, “any violation of the statute
    constituted a misdemeanor.” 
    Curran, 140 N.H. at 531
    . In 1989, the
    legislature reduced certain offenses to violation-level offenses to “preserve the
    indigent defense fund from the cost of providing attorneys to defendants who
    faced no apparent threat of a jail sentence.” 
    Id. at 532;
    see N.H.S. Jour. 438,
    787 (1989). In Curran, we concluded that this legislative history “offer[ed] no
    indication that the legislature intended to eliminate the mens rea requirement
    for those violations of RSA 263:64 that would remain [ ] misdemeanor[s].”
    
    Curran, 140 N.H. at 532
    . But neither does that legislative history demonstrate
    that the legislature intended to modify the mens rea requirement for violation-
    level offenses. See 
    id. RSA 626:2,
    I, upon which the State also relies, does not require a
    different result. RSA 626:2, I, provides that “[a] person is guilty of murder, a
    felony, or a misdemeanor only if he acts purposely, knowingly, recklessly or
    negligently,” but that a person “may be guilty of a violation without regard to
    such culpability.” The plain meaning of RSA 626:2, I, is that the legislature
    need not require proof of a mens rea when it defines a violation-level offense.
    However, nothing in RSA 626:2, I, precludes the legislature from creating
    violation-level offenses that do require proof of a mens rea. It is a general rule
    of statutory construction that the word “may” is permissive. State v. Korean
    Methodist Church of N.H., 
    157 N.H. 254
    , 256-57 (2008).
    In arguing for a contrary result, the State relies upon Straut v.
    Carpenter, 
    92 N.H. 123
    (1942). The issue in Straut, however, was whether a
    plaintiff could maintain a personal injury action for his injuries even though he
    failed to comply with the Financial Responsibility Act. 
    Straut, 92 N.H. at 124
    (preface to opinion). But see Fuller v. Sirois, 
    97 N.H. 100
    , 100-01 (1951)
    (explaining that Straut is no longer good law). The State also relies upon RSA
    264:3, I (2014), which concerns the mandatory suspension of drivers’ licenses
    and motor vehicle registrations. The State has failed to demonstrate that either
    Straut or RSA 264:3, I, are relevant to the issue on appeal — namely, whether
    the legislature intended violation-level offenses under RSA 263:64 to contain a
    mens rea of “knowingly.”
    We need not address the State’s remaining arguments because they
    rebut assertions of the defendant that we have not discussed. For all of the
    above reasons, therefore, we hold that the trial court erred when it concluded
    4
    that the violation-level offense of which the defendant was found guilty does
    not require a mens rea of “knowingly.”
    Reversed.
    DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
    5
    

Document Info

Docket Number: 2015-0383

Citation Numbers: 169 N.H. 150

Judges: Bassett, Dalianis, Hicks, Conboy, Lynn

Filed Date: 6/14/2016

Precedential Status: Precedential

Modified Date: 11/11/2024