State of New Hampshire v. Justin Parr

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 email 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: https://www.courts.nh.gov/our-courts/supreme-court
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2020-0570
THE STATE OF NEW HAMPSHIRE
v.
JUSTIN PARR
Argued: February 10, 2022
Opinion Issued: March 17, 2022
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Weston R. Sager, assistant attorney general, on the brief, and Anthony J.
Galdieri, orally), for the State.
Lehman Major List, PLLC, of Concord (Sean R. List on the brief and orally),
and Law Office of Michael J. Zaino, PLLC, of Hampton (Michael J. Zaino on the
brief), for the defendant.
DONOVAN, J. The defendant, Justin Parr, appeals his conviction,
following a bench trial in the Superior Court (Schulman, J.), on one count of
being a felon in possession of a firearm. RSA 159:3, I(a) (2014). The defendant
argues that the Superior Court (Kissinger, J.) erred by denying his motion to
dismiss his felon in possession of a firearm indictment because, in his view,
RSA 159:3, I(a) does not prohibit felons from possessing antique pistols and
revolvers. The defendant also argues that several provisions of RSA chapter
159 are unconstitutionally vague in violation of the State and Federal
Constitutions. We conclude that the term “other firearm” in RSA 159:3, I(a)
applies to any weapon from which a shot can be discharged by gunpowder,
including antique firearms. We further conclude that RSA 159:3, I(a) is not
unconstitutionally vague as applied to felons in possession of antique firearms.
Accordingly, we affirm.
I. Facts
The following facts are undisputed or supported by the record. In April
2018, the defendant was convicted of a felony and placed on probation. In
April 2019, the defendant’s probation and parole officer (PPO) received
information that the defendant was using firearms at his Andover residence, in
violation of his probation. After searching his vehicle and the Andover
residence, the PPO and local police found black powder, a package of shot, and
a firearm (charged handgun), among other things. The New Hampshire State
Laboratory examined the charged handgun and classified it as a “.44 caliber
. . . black powder percussion cap revolver, model 1851 Reb Nord Navy Sheriff”
with two lead balls and two powder charges. The laboratory also tested the
charged handgun and concluded that it functioned normally.
Ultimately, the State indicted the defendant on one count of being a felon
in possession of a firearm, among other charges. The defendant moved to
dismiss the felon in possession of a firearm indictment. Relying upon RSA
159:1 (2014) and federal law, he argued that RSA 159:3, I(a) contains an
exception for antique firearms and that, because the firearm found at the
Andover residence was an antique, he did not violate the statute. See 18
U.S.C. § 921(a)(3), (16) (2018). The State objected, arguing that the term “other
firearm” in RSA 159:3, I(a) included the charged handgun. See RSA 159:3, I(a).
After a hearing, the trial court denied the defendant’s motion to dismiss. The
court concluded that the term “other firearm” in RSA 159:3, I(a) “prohibit[s]
felons from possessing any weapon within the broad class of firearms,” which
includes “antiques or replicas if they are weapons from which shots can be
discharged by gunpowder.” (Quotation omitted.) The defendant filed a motion
for reconsideration, which the court denied.
Thereafter, to preserve his right to appeal the denial of his motion to
dismiss, the defendant stipulated to the facts and requested a bench trial. The
State made an offer of proof, to which the defendant did not object, and the
trial court convicted the defendant on the felon in possession of a firearm
indictment. This appeal followed.
2
II. Analysis
A. Statutory Interpretation
The defendant first argues that, in denying his motion to dismiss, the
trial court misconstrued RSA 159:3, I(a) as applying to antique firearms. The
interpretation of a statute presents a question of law, which we review de novo.
See State v. Pinault, 168 N.H. 28, 31 (2015). In matters of statutory
interpretation, the intent of the legislature is expressed in the words of the
statute considered as a whole. See id. We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. Further, we interpret legislative intent from the statute
as written and will not consider what the legislature might have said or add
language the legislature did not see fit to include. Id. Finally, we interpret
statutes in the context of the overall statutory scheme and not in isolation. Id.RSA 159:3, I(a) provides:
I. A person is guilty of a class B felony if he:
(a) Owns or has in his possession or under his control, a pistol,
revolver, or other firearm, or slungshot, metallic knuckles,
billies, stiletto, switchblade knife, sword cane, pistol cane,
blackjack, dagger, dirk-knife, or other deadly weapon as defined
in RSA 625:11, V . . . .
RSA 159:3, I(a) (emphasis added). The terms “pistol” and “revolver” mean “any
firearm with [a] barrel less than 16 inches in length” but do “not include
antique pistols, gun canes, or revolvers.” RSA 159:1. Here, there is no dispute
that the charged handgun — a black powder percussion cap revolver — is an
antique, and, therefore, does not qualify as a “pistol” or “revolver” under RSA
159:3, I(a). See RSA 159:1. Thus, the issue is whether the charged handgun
falls within the meaning of “other firearm” in RSA 159:3, I(a).
Because RSA chapter 159 does not expressly define the phrase “other
firearm,” we look to the dictionary for guidance. See State v. Ruff, 155 N.H.
536, 539 (2007). The dictionary defines the term “firearm” as “a weapon from
which a shot is discharged by gunpowder.” Webster’s Third New International
Dictionary, 854 (unabridged ed. 2002). We previously adopted this definition
in State v. Beaudette, 124 N.H. 579, 581 (1984), when defining the term
“firearm” for the purposes of New Hampshire’s felonious use of a firearm
statute, see RSA 650-A:1 (2016). In so holding, we observed that “other
jurisdictions have considered this question and determined that gunpowder
and the capability of discharge are the distinguishing features of a firearm.”
Beaudette, 124 N.H. at 581 (collecting cases); see State v. St. John, 129 N.H. 1,
3
2-4 (1986) (holding that the trial court did not err by refusing to instruct the
jury on the definition of “firearm” set forth in Beaudette because the defendant
did not dispute that the charged weapon was a “firearm” under RSA 159:3).
Accordingly, consistent with our previous holdings, we conclude that the
term “firearm” as used in RSA 159:3, I(a) means “a weapon from which a shot
is discharged by gunpowder.” Beaudette, 124 N.H. at 581 (quotation omitted).
We further conclude, as the trial court did, that the term “other firearm”
prohibits felons from possessing any weapon within the broad class of firearms.
RSA 159:3, I(a). This prohibition includes antique weapons from which shot
can be discharged by gunpowder. See Beaudette, 124 N.H. at 581. As
explained above, the New Hampshire State Laboratory test-fired the charged
handgun and determined that it functioned normally. Therefore, applying the
above-stated definition of firearm, we conclude that the defendant’s possession
of the charged handgun fell within the scope of RSA 159:3, I(a) as an “other
firearm.”
The defendant counters that interpreting the phrase “other firearm” as
including any weapon that discharges a shot by gunpowder renders
superfluous the inclusion of “pistol” and “revolver” in RSA 159:3, I(a). We
observe that “[w]e must give effect to all words in a statute, and presume that
the legislature did not enact superfluous or redundant words.” State v. Thiel,
160 N.H. 462, 465 (2010) (quotation omitted). However, we are not persuaded
that our interpretation of RSA 159:3, I(a) renders the words “pistol” and
“revolver” superfluous. The legislature’s use of the word “other” in RSA 159:3,
I(a) demonstrates that the statute prohibits felons from possessing any
“firearm” that does not fall within the definition of “[p]istol or revolver” in RSA
159:1, such as antiques. See RSA 159:1; Webster’s Third New International
Dictionary 1598 (unabridged ed. 2002) (defining “other” as “something that
exists as an opposite of or as excluded by something else”). Therefore,
although the terms “pistol,” “revolver,” and “firearm” may overlap, because the
legislature employed the term “other firearm,” the three terms are not
coextensive. RSA 159:3, I(a).
In addition, the defendant argues that fireworks discharge shot from
gunpowder, and that “virtually anything” can be considered a deadly weapon.
State v. Kousounadis, 159 N.H. 413, 425 (2009). Therefore, he argues,
interpreting the phrase “other firearm” as including any weapon that
discharges a shot by gunpowder “leads to the absurd conclusion” that many
residential use fireworks would be considered firearms. See State v. Wilson,
169 N.H. 755, 766 (2017) (“[A] statute will not be construed so as to lead to
absurd consequences.”). We disagree. The defendant conflates the terms
“firearm” and “deadly weapon.” RSA 159:3. Although a firework may become a
deadly weapon based upon how it is used, see RSA 625:11, V (2016), that does
not inform whether its mere possession makes it a “firearm” under RSA 159:3,
I(a).
4
In further support of his argument that RSA 159:3, I(a) does not apply to
antiques, the defendant points to the language of RSA 159:1, which provides:
Pistol or revolver, as used herein, means any firearm with barrel less
than 16 inches in length. It does not include antique pistols, gun canes,
or revolvers. An antique pistol, gun cane, or revolver, for the purposes of
this chapter, means any pistol, gun cane, or revolver utilizing an early
type of ignition, including, but not limited to, flintlocks, wheel locks,
matchlocks, percussions and pin-fire, but no pistol, gun cane, or revolver
which utilizes readily available center fire or rim-fire cartridges which are
in common, current use shall be deemed to be an antique pistol, gun
cane, or revolver. Nothing in this section shall prevent antique pistols,
gun canes, or revolvers from being owned or transferred by museums,
antique or arms collectors, or licensed gun dealers at auctions, gun
shows, or private premises provided such ownership or transfer does not
conflict with federal statutes.
RSA 159:1 (emphasis added). The defendant argues that the last sentence of
RSA 159:1 creates an “antique revolver exemption,” which “provides a safe
haven for the narrow purpose of owning or transferring antique pistols or
revolvers in a manner that complies with federal law.” (Quotation omitted.)
The defendant notes that the federal definition of “firearm” excludes antiques,
such as the charged handgun. See 18 U.S.C. § 921(a)(3), (16). Therefore, he
argues, because his ownership of the charged handgun complied with federal
law, the so-called “antique revolver exemption” of RSA 159:1 precludes his
prosecution under RSA 159:3, I(a).
We are unpersuaded by the defendant’s argument. The plain language of
the last sentence of RSA 159:1 limits its application to “this section.” RSA
159:1. By contrast, the first and third sentences of RSA 159:1 employ broader
language — “as used herein” (in the former), and “for the purposes of this
chapter” (in the latter). Id. This contrast illustrates the legislature’s intent to
limit the application of the language of the last sentence to “this section.” Id.Contrary to the defendant’s argument, nothing in RSA 159:1 suggests that the
legislature intended to categorically exclude a felon’s possession of antique
firearms from prosecution under RSA 159:3, I(a). To hold otherwise would not
only contravene the statute’s plain language, but also add language to the
statute that the legislature did not see fit to include. See Pinault, 168 N.H. at
31.
Additionally, drawing upon references to federal law in RSA 159:1, as
well as RSA 159:26 (2014), the defendant argues that the legislature intended
the term “firearm,” as used in RSA chapter 159, to be coextensive with federal
law. See RSA 159:26, I (“To the extent consistent with federal law . . . .”). He
5
therefore argues that, because the federal definition of “firearm” excludes
antiques, see 18 U.S.C. § 921(a)(3), (16), the legislature intended the term
“firearm” in RSA 159:3, I(a) to also exclude antiques.
The defendant’s reliance upon RSA 159:1 and RSA 159:26 is unavailing.
The plain meaning of each provision’s reference to federal law establishes only
that conduct otherwise prohibited by federal law shall not be permitted under
RSA chapter 159. Put another way, the legislature intended the references to
federal law in RSA 159:1 and RSA 159:26 to address preemption and a
potential conflict between state and federal law. See Appeal of Panaggio, 174
N.H. 89, 94-95 (2021) (explaining federal preemption principles). However, the
defendant conceded that he “has made no argument that federal law preempts
State firearms law based upon express or field preemption.” In light of this
concession, the defendant cannot rely upon these references to suggest that
the legislature intended the federal definition of a “firearm” to preempt our
state laws. Accordingly, we conclude that the trial court did not misconstrue
RSA 159:3, I(a) as applying to antique firearms.
B. Vagueness
The defendant further argues that RSA 159:3, I(a), RSA 159:3-a (2014),
and RSA 159:7 (2014) are unconstitutionally vague in violation of his due
process rights under the State and Federal Constitutions. Specifically, the
defendant argues that, given the so-called “antique revolver exemption and
federal consistency provisions” in RSA 159:1 and RSA 159:26, along with the
fact that federal law exempts antiques from the definition of “firearm,” no
person of ordinary intelligence could “plausibly read” the word “firearm” in RSA
159:3, RSA 159:3-a, and RSA 159:7 as applying to antiques. Therefore, the
defendant argues, the above-cited provisions of RSA chapter 159 fail to put
parties, such as the defendant, on notice of the “precise conduct” that they
prohibit. (Quotation omitted.)
We first address the defendant’s argument under the State Constitution,
and cite federal opinions for guidance only. See State v. Ball, 124 N.H. 226,
231-33 (1983). The constitutionality of a statute presents a question of law,
which we review de novo. State v. Lamarche, 157 N.H. 337, 340 (2008). A
statute can be impermissibly vague for either one of two independent reasons:
(1) it fails to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits; or (2) it authorizes or even encourages
arbitrary and discriminatory enforcement. State v. MacElman, 154 N.H. 304,
307 (2006). A party challenging a statute as void for vagueness bears a heavy
burden of proof in light of the strong presumption favoring a statute’s
constitutionality. Id. Moreover, mathematical exactness is not required in a
penal statute, nor is a law invalid merely because it could have been drafted
with greater precision. Id.6
As an initial matter, we note that the defendant has not sufficiently
developed a facial challenge, arguing only that select provisions of RSA chapter
159 are unconstitutionally vague as applied. See Lamarche, 157 N.H. at 340
(“Because we conclude that the defendant has failed to develop his argument
that the statute is facially invalid, we further limit our analysis to his as
applied claim.”). Moreover, the trial court did not convict the defendant of
violating RSA 159:3-a or RSA 159:7. Thus, the defendant lacks standing to
challenge those provisions as unconstitutionally vague, and we decline to
address that part of his argument. See Avery v. Comm’r, N.H. Dep’t of Corr.,
173 N.H. 726, 737 (2020) (“Standing . . . requires parties to have personal legal
or equitable rights that are adverse to one another, with regard to an actual,
not hypothetical, dispute, which is capable of judicial redress.”). Therefore, we
need only consider whether RSA 159:3, I(a) is unconstitutionally vague as
applied to a felon in possession of an antique firearm.
Even assuming, without deciding, that a fundamental right is implicated,
we conclude that RSA 159:3, I(a) provides a person of ordinary intelligence a
reasonable opportunity to understand the conduct that RSA 159:3, I(a)
prohibits. As explained above, the plain language of what the defendant
characterizes as the “antique firearm exception” within the last sentence of RSA
159:1 limits its application to “this section.” Moreover, given the dictionary
definitions of the words “other” and “firearm,” any person of ordinary
intelligence would understand that RSA 159:3, I(a) prohibits felons from
possessing any “firearm” that does not fall within the definition of “[p]istol or
revolver” in RSA 159:1. See RSA 159:3, I(a); Webster’s Third New International
Dictionary, supra at 854, 1598. This language is also consistent with the
statutory purpose of “protect[ing] the public from felons who would possess or
have under their control instruments capable of causing serious injury or
death.” State v. Beckert, 144 N.H. 315, 317 (1999). Given the statute’s
purpose and the plain meaning of its language, we conclude that no person of
ordinary intelligence could conclude that RSA 159:3, I(a) authorizes felons to
possess “weapon[s] from which a shot is discharged by gunpowder,” regardless
of whether the weapons are antiques. Beaudette, 124 N.H. at 581 (quotation
omitted).
To the extent that the defendant argues that RSA 159:3, I(a) authorizes
or encourages arbitrary or discriminatory enforcement, he has not sufficiently
developed that argument in his brief, and we decline to address it. See State v.
Blackmer, 149 N.H. 47, 49 (2003) (“[W]e confine our review to only those issues
that the defendant has fully briefed.”). Because we conclude that the Federal
Constitution offers the defendant no greater protection than does the State
Constitution under these circumstances, see MacElman, 154 N.H. at 310; see
also Hill v. Colorado, 530 U.S. 703, 732 (2000), we reach the same result under
the Federal Constitution as we do under the State Constitution.
7
III. Conclusion
For the foregoing reasons, we affirm the defendant’s conviction. Any
issues that the defendant raised in his notice of appeal, but did not brief, are
deemed waived. State v. Bazinet, 170 N.H. 680, 688 (2018).
Affirmed.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
8