THE STATE OF NEW HAMPSHIRE SUPREME COURT

No. 2016-0268

State of New Hampshire

v.

James Fogg

Appeal Pursuant to Rule 7 from Judgment of the Merrimack Superior Court

REPLY BRIEF FOR THE DEFENDANT

Thomas BarnardSenior Assistant Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301NH Bar # 16414603-224-1236(15 minutes oral argument)

TABLE OF CONTENTS

Page

Table of Authorities.......................................................................................... ii

Question Presented......................................................................................... 1

Argument

I. THE UNIT OF PROSECUTION FOR AGGRAVATED DRIVING WHILE INTOXICATED IS EACH ACT OF DRIVING, NOT EACH PERSON INJURED...................................... 2

Conclusion.................................................................................................... 10

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TABLE OF AUTHORITIES

Page

Cases

Brooks v. State,973 So. 2d 380 (Ala. Crim. App. 2007)....................................................... 5

Cady v. Town of Deerfield,__ N.H.___ (Jan. 18, 2017)......................................................................... 8

City of Concord v. State of N.H.,164 N.H. 130 (2012)...................................................................................6

Commonwealth v. Flanagan,923 N.E.2d 101 (Mass. App. Ct. 2010)............................................... 7, 8, 9

Kelly v. State,527 N.E.2d 1148 (Ind. Ct. App. 1988)................................................ 7, 8, 9

Melbourne v. State,679 So. 2d 759 (Fla. 1996) ................................................................ 7, 8, 9

Sanabria v. United States,437 U.S. 54 (1978)......................................................................................3

State v. Ayotte,146 N.H. 544 (2001)....................................................................... 3, 4, 5, 6

State v. Carter,167 N.H. 161 (2014)....................................................................................4

State v. Donovan.97 N.H. 190 (1951)......................................................................................3

State v. Edic,___N.H.___ (Jan. 31, 2017)........................................................................2

State v. Gross-Santos,__ N.H.___ (Jan. 31, 2017)........................................................................2

State v. LaBounty,892 A.2d 203 (Vt. 2006) ..................................................................... 7, 8, 9

State v. Polk,155 N.H. 585 (2007)....................................................................................7

ii

State v. Sias,17 N.H. 558 (1845).....................................................................................3

State v. Smith,98 N.H. 149 (1953)......................................................................................3

United States v. Dixon,509 U.S. 688 (1993) ....................................................................................3

Wilkoff v. Superior Court,696 P.2d 134 (Cal. 1985).................................................................... 7, 8, 9

Statutes

Fla. Stat. § 316.193.......................................................................................... 8

RSA 265:79-a................................................................................................... 7

RSA 265-A:3.......................................................................................6, 7, 8, 9

RSA 630:3........................................................................................................ 6

RSA 631:2........................................................................................................ 7

RSA 634:1........................................................................................................ 4

Constitutional Provisions

New Hampshire Constitution, Part I, Article 16...................................... 2, 3, 4

Legislative Material

House Corrections and Criminal Justice Committee HearingMinutes. H.B. 1404 (Jan. 31, 1996).............................................................6

iii

QUESTION PRESENTED

Whether the court erred by entering two convictions and imposing two

sentences on charges of aggravated driving while intoxicated, where the

charges were based on one act of driving but the grade of the offense was

elevated because the defendant caused one collision resulting in serious bodily

injury to two people.

Issue preserved by Fogg’s motion to dismiss, DB A3*, the State’s

objection, DB A8, and the court’s order, DB Supp. 1.

* Citations to the record are as follows:“DB” refers to Fogg’s opening brief;“DB A” refers to the separately bound appendix to Fogg’s opening brief; “DB Supp.” refers to the supplement attached to Fogg’s opening brief; “SB” refers to the State’s brief;“SBA” refers to the separately bound appendix to the State’s brief.

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I. THE UNIT OF PROSECUTION FOR AGGRAVATED DRIVING WHILE INTOXICATED IS EACH ACT OF DRIVING, NOT EACH PERSON INJURED.

Fogg filed a single-issue brief. DB 1. The State, in its brief, quotes seven

statements from Fogg’s brief, characterizes each as an “appellate claim” and

asserts that five are not preserved. SB 17-18. While it is certainly true that an

appellant should not “comb the record to find an alleged error never raised

before the trial judge,” State v. Gross-Santos, __ N.H.___ (Jan. 31, 2017), it is

also true that an appellee should not comb the appellant’s brief to find any

statements that are not merely repetitions of what the appellant said below.

The preservation rule does not restrict an appellant to parroting what he or she

said in the lower court. Rather, the rule “is based on common sense and

judicial economy.” State v. Edic, ___N.H.___ (Jan. 31, 2017). Its purpose is to

“[e]nsure that trial forums have an opportunity to rule on issues and correct

errors before parties seek appellate review.” Gross-Santos, ___N.H. a t___ .

Thus, “an issue is preserved when the trial court understood and therefore

addressed the substance of an objection.” IcL Here, Fogg’s motion to dismiss

gave the court an opportunity to rule on his double jeopardy challenge and

correct its error before this appeal. DB A3-A7. The court’s order, moreover,

demonstrates that it understood and addressed the substance of Fogg’s

objection. DB Supp. 1-6. Thus, his double jeopardy challenge is fully

preserved.

Fogg, in his brief, discussed the development of the “same evidence” test

under the double jeopardy clause of Part I, Article 16 of the New Hampshire

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Constitution. DB 11-12. The State disagrees with the history Fogg set forth,

citing State v. Smith, 98 N.H. 149 (1953), State v. Donovan, 97 N.H. 190

(1951), and State v. Sias, 17 N.H. 558 (1845). SB 13-15. However, none of

those cases involved Part I, Article 16 of the New Hampshire Constitution.

Fogg relied on Sanabria v. United States, 437 U.S. 54 (1978) for the

propositions that the “same evidence” test does not apply to charges brought

under a single statute, DB 13, and that the unit of prosecution is instead

determined by reference to the statute’s gravamen or actus reus, DB 17. The

State attempts to distinguish Sanabria by noting that it involved prosecution

following acquittal rather than multiple convictions and sentences. DB 15-16.

However, the analysis for determining whether two offenses are the same, for

double jeopardy purposes, is no different in cases involving successive

prosecution than it is in cases involving multiple convictions and sentences.

United States v. Dixon, 509 U.S. 688, 703-12 (1993).

Fogg argued that “[determining a statute’s unit of prosecution by

reference to its gravamen or actus reus is . . . consistent with the results of this

Court’s prior ‘unit of prosecution’ cases.” DB 17. The State argues that

particular language in State v. Ayotte, 146 N.H. 544 (2001), belies this claim.

SB 19-20. An examination of the facts and holding of Ayotte, however,

establishes that the case is not only consistent with Fogg’s analysis, but

undermines the State’s argument.

In Ayotte, the defendant was convicted of two counts of felony arson. Ich

at 545. This Court reversed her convictions for trial error and remanded the

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case for a new trial. IcL at 549. It then addressed her argument “that the

arson statute does not permit her to be convicted on two counts . . . [bjecause

this issue is likely to arise on remand.” IcL Because it was merely a

hypothetical possibility that the defendant would, on retrial, be found guilty of

both counts, the Court’s discussion of the multiple conviction issue stands on

the same footing as an advisory opinion. As such, it is not binding precedent.

See State v. Carter, 167 N.H. 161, 166 (2014) (“an advisory opinion . . . does

not constitute binding precedent”). Despite being decided over fifteen years

ago, Ayotte has never been cited by any court in any published opinion for its

discussion of the multiple conviction issue.

Placing that problem aside, Ayotte did not involve any constitutional

challenge, much less a challenge under double jeopardy, much less a challenge

under Part I, Article 16 of the New Hampshire Constitution. Thus, it has

minimal relevance to the issue in this appeal.

Placing that problem aside, the holding of Ayotte undermines the State’s

argument. The statute at issue in Ayotte provided that a person commits arson

“if he knowingly starts a fire or causes an explosion which unlawfully damages

the property of another.” Ayotte, 146 N.H. at 549 (citing RSA 634:1). It

elevated the offense to a class A felony “if the property damaged is . . . [a]n

occupied structure and the actor knew it was an occupied structure.” IcL The

issue presented by the facts of the case was whether a defendant could be

convicted of two counts of arson where she set one fire that damaged one

structure containing two businesses. IcL at 549. The court rejected the State’s

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argument that “each ‘loss’ or each ‘place of business’ should be the unit of

prosecution” and thus held that the defendant could only be convicted for one

count of arson, bT at 549-50.

The State argues that “when a single criminal transaction involves

multiple victims, multiple convictions are permitted.” SB 26 (quoting Brooks v.

State, 973 So. 2d 380, 402 (Ala. Crim. App. 2007)). The holding of Ayotte

however, squarely contradicts that proposition. In Ayotte, this Court held that,

even though defendant’s fire involved two victims, the statute permitted only

one conviction.

The State notes that the Court in Ayotte “did not find that the ‘unit of

prosecution’ was the actus reus of the offense, i.e., starting a fire or causing an

explosion.” SB 20. That much is true. But the facts of the case demonstrate

why the Court did not so find: neither party argued that the unit of prosecution

was the actus reus. Although the Court suggested that a person who ignites a

single fire or explosion that damages multiple occupied structures can “be

prosecuted for as many counts as there are occupied structures damaged,” icL

at 550, that language is dicta because the fire in that case only damaged one

structure.

Had the Court in Ayotte held that the unit of prosecution in the arson

statute was the actus reus, starting a fire or causing an explosion, the result of

the case would have been the same because the defendant started only one

fire. Thus, as with the cases discussed at pages 17 to 18 of Fogg’s opening

brief, this Court may hold that a statute’s unit or prosecution is determined by

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reference to its gravamen or actus reus without overruling Ayotte. See City of

Concord v. State of N.H., 164 N.H. 130, 142 (2012) (acknowledging mistaken

methodology of prior case, but reaffirming its result).

The State notes that, in 1996, the legislature added the phrase “to the

person or another” to RSA 265-A:3, 1(b) and 11(b). SB 24, 32. It argues that

this amendment “indicates that the legislature intended that serious bodily

injury to more than one person under the circumstances described in the

statute could result in multiple charges of aggravated DWI.” SB 25; accord SB

32. If that were the legislature’s intent, one would expect to see some reference

to it in the legislative history of the amendment. There is none. SBA 239-84.

Instead, that history demonstrates that the legislature had an entirely different

purpose for adding the phrase “to the person or another”: to “clarif[y] that the

bodily injury can be either to the driver him- or herself, or to a passenger.” H.

Corrs. & Crim. Just. Comm. Hearing Minutes, H.B. 1404 (Jan. 31, 1996)

(reprinted at SBA 249) (statement of Committee Chair Donna Sytek).

The State argues that “holding that an impaired driver who causes the

death of more than one person can be charged with one negligent homicide

DWI offense for each victim, but an impaired driver who causes serious bodily

injury to more than one person can be charged with only one aggravated DWI

offense would be an absurd and unjust result.” SB 31. Just as an impaired

driver who causes the death of more than one person can be charged with

negligent homicide, RSA 630:3, for each victim, an impaired driver who causes

serious bodily injury to more than one person can be charged with second

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degree assault, RSA 631:2, or vehicular assault, RSA 265:79-a, for each victim.

See DB 21-22 (explaining that assault convictions for each victim are

permissible because causing injury is in most cases the actus reus of assault).

Unlike aggravated DWI, which is a strict liability offense, State v. Polk, 155

N.H. 585, 587 (2007), second degree assault requires proof that the defendant

acted recklessly, RSA 631:2, 1(a), and vehicular assault requires proof that the

defendant acted negligently, RSA 265:79-a. Here, the State chose not to charge

Fogg with any assault.

The State argues that RSA 265-A:3 is dissimilar to the statutes at issue

in Wilkoff v. Superior Court, 696 P.2d 134 (Cal. 1985), Kelly v. State, 527

N.E.2d 1148 (Ind. Ct. App. 1988), and State v. LaBounty, 892 A.2d 203 (Vt.

2006), and similar to the statutes at issue in Commonwealth v. Flanagan, 923

N.E.2d 101 (Mass. App. Ct. 2010), and Melbourne v. State, 679 So. 2d 759,

765 (Fla. 1996). SB 27-31. This Court should not follow Flanagan and

Melbourne because the courts in those cases improperly determined the unit of

prosecution by reference to statutory language that merely enhanced the

sentence for the underlying offense. But even if this Court concludes that it is

proper to determine the unit of prosecution by reference to such language, RSA

265-A:3 is similar to the statutes at issue in Wilkoff, Kelly and LaBounty, and

dissimilar to those at issue in Flanagan and Melbourne.

In Wilkoff, Kelly and LaBounty, “injury” was not the direct object of any

operative verb contained in either the underlying offense or the sentencing

enhancement. In Wilkoff, the operative verbs and their direct objects were

7

“drive a vehicle and . . . do any act . . . or neglect any duty.” Wilkoff, 696 P.2d

at 135-36. The word “injury” was a component of the subsequent relative

clause, which functioned as an adjective and the limited types of “act[s] . . . or

neglect” that could trigger the enhanced sentence. IcL (“which act or neglect . .

. causes . . . injury”). In Kelly and LaBounty, the operative verb and its direct

object were “operates a . . . vehicle.” Kelly, 527 N.E.2d at 1155; LaBounty, 892

A.2d at 205. In both, “injury” was a component of a subordinate clause. Kelly,

527 N.E.2d at 1155 (“if the crime results in . . . injury”); LaBounty, 892 A.2d at

205 (“[i]f . . . injury . . . results”).

In Flanagan and Melbourne, by contrast, “injury” was the direct object of

an operative verb. In Flanagan, the operative verbs and their corresponding

direct objects were “operates a motor vehicle . . . and . . . causes serious bodily

injury.” Flanagan, 923 N.E.2d at 106. In Melbourne the operative verbs and

their direct objects were “operates a vehicle . . . and . . . causes or contributes

to causing . . . [s]erious bodily injury.” Fla. Stat. § 316.193(3).

The State at several points in its brief characterizes the enhancing

element of RSA 265-A:3, 1(b) and 11(b) as “causing serious bodily injury.” SB

22, see also SB 23 (“causes serious bodily injury”); SB 31 (“causing serious

bodily injury”); SB 33 (“causing injury”). If the enhancing element were, in fact,

“causing injury,” then “injury” would be the direct object of the operative verb

“causing,” and the State’s analogy to Flanagan and Melbourne would have

merit. But 265-A:3 does not contain the phrase “causing injury.” See Cady v.

Town of Deerfield, ___N.H.___ (Jan. 18, 2017) (this Court “interprets]

8

legislative intent from the statute as written and will not consider what the

legislature might have said”). Rather, the operative verbs and their

corresponding direct objects are “drives, operates or attempts to operate an

OHRV or . . . drives or attempts to drive a vehicle . . . or . . . operates or

attempts to operate a boat . . . and . . . [c]auses a . . . collision.” RSA 265-A:3,

1(b), 11(b). The subsequent language, “resulting in serious bodily injury . . . to

the person or another,” is a participle phrase, which functions as an adjective

and limits the types of “collision[s]” that can trigger an enhanced sentence. IdL

“[S]erious bodily injury” is merely a component of that participle phrase.

Because “injury” is not the direct object of any operative verb, RSA 265-A:3 is

similar to the statutes at issue in Wilkoff, Kelly and LaBounty, and dissimilar

to those at issue in Flanagan and Melbourne.

In summary, the unit of prosecution should be determined by reference

to the underlying offense, not any penalty enhancement. Under this approach,

the unit of prosecution of RSA 265-A:3 is driving, attempting to drive, operating

or attempting to operate an OHRV, vehicle or boat. But even if this Court

concludes that the unit of prosecution should also be determined by reference

to the penalty enhancement, the unit of prosecution only expands to include

“causing a . . . collision.” RSA 265-A:3, 1(b), 11(b). Here, Fogg drove once, and

caused one collision. Thus, under either approach, he can only be convicted of

one count of aggravated DWI.

9

CONCLUSION

WHEREFORE, James Fogg respectfully requests that this Court vacate

the conviction and sentence on Charge ID# 1057569C.

Undersigned counsel requests 15 minutes oral argument.

Respectfully submitted,

Thomas Barnard, #16414 Senior Assistant Appellate Defender Appellate Defender Program 10 Ferry Street, Suite 202 Concord, NH 03301

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief have been mailed, postage prepaid, to:

Susan P. McGinnisSenior Assistant Attorney GeneralCriminal Justice Bureau33 Capitol StreetConcord, NH 03301

Thomas Barnard

DATED: February 13, 2017

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