New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

NHBA`s 2-volume Practice and Procedure Handbook has evolved into a first-source reference for New Hampshire Practitioners of all levels of experience.

Trust your transactions to the only payment solution recommended by over 50 bar associations.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar Journal - September 1, 2003

Mens Rea and Unconstitutional Presumptions: The Supreme Court Salvages NH's Vehicular Assault Statute

By:
 

INTRODUCTION

In 2000 the New Hampshire General Court enacted RSA 265:79-a, entitled "Vehicular Assault," intending to fill "a perceived gap between a violation of the rules of the road and negligent homicide."1 As adopted it provides

Any person who, without intent, causes death or serious bodily injury as defined in RSA 625:11, VI to another while using a vessel or propelled vehicle as defined in RSA 637:9, III shall be guilty of a class A misdemeanor, where such person's unlawful operation of the propelled vehicle or vessel causes or materially contributes to the collision. Evidence that the driver violated any of the rules of the road shall be prima facie evidence that the driver caused or materially contributed to the collision.

Ruling on two challenges to the statute the New Hampshire Supreme Court recently held that "without intent" applied only to the resulting harm (death or seriously bodily injury), that the mens rea for the remaining elements is criminal negligence as defined in RSA 626:2, and that the last sentence unconstitutionally shifts the burden of proof and is therefore void.2

BACKGROUND

On February 8, 2001, Salem Police responded to a motor vehicle accident where an individual sustained serious bodily injury. Through investigation, they determined that Ms. Hilary Kulunis had failed to stop at a stop sign. The State subsequently charged Ms. Kulunis with violation of RSA 265:79-a.3

On February 26, 2001, Londonderry police responded to an accident and after investigation determined that Tracie Rollins-Ercolino ran a stop sign striking another vehicle resulting in the death of the driver of the other vehicle. Ms. Rollins-Ercolino was charged by complaint in the Derry District Court for violation of RSA 265:79-a.4

Both individuals filed Motions to Dismiss, arguing that RSA 265:79-a, as written, does not require a mens rea element and is therefore unconstitutional.5 Defendant Kulunis argued it is essentially "a strict liability statute that eliminates the line between careless and criminally culpable driving ... and will not necessarily ensnare dangerous drivers or deter the generally unintentional behavior that underlies most motor vehicle violations. As a strict liability statute, RSA 265:79-a may criminally punish drivers who are not even slightly negligent, for example a driver who runs a stop sign that is totally obscured by vegetation or the car that skids on a patch of black ice."6 Rollins-Ercolino also asserted the statute "violates" RSA 626:2, I (1996), the default definition of mental states contained in the Criminal Code.7

Finally, both defendants argued that, as written, the Statute requires that the defendant, not the State, prove that the alleged violation of the "rules of the road," did not cause the collision.8 The State argued "the nature of the conduct prohibited need not include a mens rea in order to be valid and that the State's burden of proof was not affected."9

A hearing in the Derry District Court on July 16, 2001 resulted in the dismissal of the charges against Defendant Rollins-Ercolino on August 24, 2001.10 Subsequently, the State filed a Motion to Reconsider which was denied. On October 18, 2001, the State filed a Notice of Appeal and the Court accepted the appeal on December 18, 2001.11 In the Kulinis case the District Court transferred, without ruling, three questions of law raised by the defendant's motion to dismiss. On November 13, 2002, the New Hampshire Supreme Court heard arguments regarding the constitutionality of New Hampshire RSA 265:79-a and the Court rendered it's decision on April 18, 2003.12

THE ARGUMENTS

Defendant Rollins-Ercolino argued that "RSA 265:79-a, as written, violates the provisions of RSA 626:2, I [the mens rea statute for all crimes]13 and cannot be distinguished from the crime of negligent homicide and it violates the due process provision of Part I, Article 15 of the New Hampshire Constitution as the statute requires improper prima facie inferences regarding causation."14 She also argued that the legislative intent was clearly to eliminate the element of mens rea15 and it would be inappropriate for the Court to now infer that the "without intent" language refers to a mens rea of negligence.16

The State urged the Court to construe RSA 265:79-a to include a mens rea element. So interpreted, it "requires that in order for a defendant to be guilty of vehicular assault, [the defendant] must have operated a vessel or propelled vehicle unlawfully and with criminal negligence, and such operation must have caused or materially contributed to a collision which resulted in death or serious bodily injury"17 and so remains valid. Defendant Kulunis favored the State's interpretation, arguing that reading RSA 265:79-a in this manner would comport with proof of a culpable mental state and "imposes liability based on the actor's conduct, rather than merely the outcome of the collision."18

Defendant Rollins-Ercolino, supported her argument against the presumption of causality with case law for the traditional rule that there must be "a logical connection between the proven fact and the inferred conclusion."19 By its literal terms RSA 25:79-a is too broad because it allows "a violation of any rule of the road to be prima facie evidence that [a person] caused or materially contributed to the collision no matter what the actual cause of the collision."20 The State sought to save the causality presumption by construing it as merely a permissible inference, arguing that this provision of RSA 265:79-a does not "shift the burden to the defendant to prove her innocence"21 and that "the State still has the burden to prove the defendant guilty beyond a reasonable doubt because the State must still convince the jury that the suggested conclusion should indeed be inferred from the predicate fact."22

On April 18, 2003, the New Hampshire Supreme Court issued an opinion addressing three issues regarding the validity of RSA 265:79-a.

RECONCILING THE STATUTES

The Court first took up the question of strict liability and the alleged resulting conflict with RSA 626:2, which provides:

General Requirements of Culpability

    I. A person is guilty of murder, a felony, or a misdemeanor only if he acts purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. He may be guilty of a violation without regard to such culpability. When the law defining an offense prescribes the kind of culpability that is sufficient for its commission, without distinguishing among the material elements thereof, such culpability shall apply to all the material elements, unless a contrary purpose plainly appears.

Writing in terms used in the defendants' briefs, the court discussed whether the phrase "without intent" in the challenged statute would "violate the requirements of RSA 626:2, I."23 One of the functions of RSA 626:2, I is to supply well-defined mental states to be read into criminal statutes lacking them,24 but it also states a rule to govern all offenses more serious than a violation. The Vehicular Assault statute does contain mens rea language, language that, according to the defendants, created a strict liability crime, in conflict with the more general language of the older statute.

Although ultimately moot, this "conflict/violation" phraseology raises troubling issues of statutory construction. Both statutes are just that- statutes. Absent an underlying constitutional requirement, the legislature is perfectly free to repeal the former by enacting the latter. A conflict would raise the issue of repeal by implication. That would then lead to the question underlying much of the defendants' argument- whether a culpable mental state is constitutionally required. The U.S. constitution is not so interpreted.25 Neither is the Constitution of New Hampshire. In Goodrow v. Perrin the New Hampshire Supreme Court upheld the statutory rape statute saying "the legislature has made the doing of an act a crime without mens rea. We believe that the legislature had the power to do so."26

In Rollins the Court had no need to revisit Goodrow. After citing RSA 626:2 I, the Court stated "We have held that a person cannot be convicted of a crime without proof that his or her unlawful act was accompanied by a culpable mental state. See State v. Goodwin ,140 N.H. 672, 673 (1996)."27 Goodwin was not a constitutional case. It was an appeal from a conviction for felonious sexual assault under a statute with no express mens rea language.28 There was no statutory conflict. The court invoked the general rule contained in RSA 626:2, and, by analogy to the original common law offense, chose "knowingly" from among the options in that statute.29

The Rollins decision similarly reconciled the two statutes. Looking to the plain language of RSA 265:79-a the Court concluded that "'without intent' relates only to the ultimate harm resulting from the collision caused by a person's unlawful operation of a vessel or motor vehicle. ... This means that the applicable culpable mental state for a person's unlawful operation of a motor vehicle which causes a collision need not apply to the resulting harm from that collision."30 As to the other elements of Vehicular Assault, this left the statute in a situation comparable to that in Goodwin- silent on the required mens rea and therefore subject to the general rule of RSA 626:2, I. The next step was to decide which of the four statutory mental states to apply to those remaining elements.

CHOOSING A MENS REA

The second issue the Supreme Court addressed was "what culpable mental state applies to the remaining elements of the vehicular assault offense, which the State must prove beyond a reasonable doubt to obtain a conviction."31 The Court has invoked N.H. RSA 626:2 previously to assign a particular mens rea to a statutory offense for which one was not provided,32 but the selection is always a matter of inferring legislative intent. The first step is to look for a closely analogous common law crime,33 but there is none for Vehicular Assault.34 The Court therefore undertook an elaborate search for legislative intent, ultimately relying on the apparently intended place of Vehicular Assault in the hierarchies of traffic offenses and of homicides. It seemed unlikely that the legislature intended a mental state less than that for ordinary negligent driving under RSA 265:79, nor higher than that for negligent homicide under RSA 630:3.

After describing the legislative history and positioning RSA 265:79-a in the matrix of related statutes, the Supreme Court "construe[d] all of them together and [found] that the legislature intended the vehicular assault statute to require a culpable mental state of criminal negligence."35 Of the four culpable mental states that the Criminal Code makes applicable to misdemeanors and felonies, the Supreme Court determined that "the least culpable mental state of criminal negligence must apply to this offense."36

STRIKING AN UNCONSTITUTIONAL PRESUMPTION

The final question before the Supreme Court was "whether the last sentence of RSA 265:79-a invalidates the entire statute by shifting unconstitutionally the burden of proof to the defendant."37 If "[e]vidence that the driver violated any of the rules of the road shall be prima facie evidence that the driver caused or materially contributed to the collision," then, as the Supreme Court explained, the state could prove one element of the offense (causing or materially contributing to a collision) merely by proving another (violation of one of the rules of the road or waterways).38 This would infringe on defendants' rights to a jury trial and to not be required to produce evidence "or accept the element of the offense as having been proved."39 Both these rights were elaborated in State v. Lapointe,40 a prohibition-era decision about rebuttable criminal presumptions relied on in Rollins. LaPointe struck down a statute making mere possession of intoxicating liquor prima facie evidence that it had been unlawfully procured.41 After observing that there was no necessary causal connection between many violations of rules of the road (e.g. littering, crossing a firehose) and collisions, the Rollins court quoted the key passage from LaPointe on the function of the jury:

The very essence of "trial by jury" is the right of each juror to weigh the evidence for himself, and in the exercise of his own reasoning faculties, determine whether or not the facts involved in the issue are proved. And if this right is taken from the juror-if he is not allowed to weigh the evidence for himself-is not allowed to use his own reasoning faculties, but, on the contrary, is obliged to accept the evidence at the weight which others have affixed to it, and to return and affirm a verdict . . . of the truth of which he has reasonable doubts - then, very clearly, the substance, the very essence, of "trial by jury" will be taken away and its form only will remain. Lapointe, 81 N.H. at 230-31 (quotation omitted).42

The "presumption also unconstitutionally shifts the burden of proof, or at least places a burden of compulsory productions, upon a defendant."43 Accordingly, the Supreme Court struck the last sentence of RSA 265:79-a. As the primary legislative purpose could be preserved without the last sentence, the Court upheld the remaining part of RSA 265:79-a.44

CONCLUSION

All legislative enactments enjoy a presumption of consistency and constitutionality, and courts at all levels apply presumptions and rules of construction to reconcile and uphold them. Here the New Hampshire Supreme Court did what it could to maintain RSA 265:79-a after considering the intent of the legislature and public concern. What is left is a statute that makes any violation of the rules of the road potentially a class A misdemeanor if it causes or materially contributes to an accident resulting in death or serious bodily injury, so long as the state proves the defendant was criminally negligent with respect to both the violation and the resulting collision.

ENDNOTES

1.

N.H. House Journal 808 (2000). Introduced as SB 439-FN, N.H. RSA 265:79-a became effective on January 1, 2001. RSA 265:79-a (Supp. 2002).

2.

State v. Rollins-Ercolino, 149 N.H. 336, (2003).

3.

Br. of Def. Rollins-Ercolino at 2, Derry District Court No. 2001-607 (filed August 2002).

4.

Id. at 5.

5.

Br. of Def. Kulunis at 2, Salem District Court No. 2002-143 (filed June 17, 2002) and Br. of Def. Rollins-Ercolino at 3.

6.

Br. of Def. Kulunis at 20-1.

7.

Br. of Def. Rollins-Ercolino at 5.

8.

Id. at 16.

9.

Br. of State of N. H. at 2 (July 3, 2002).

10.

Id. at 3.

11.

Id.

12.

State v. Rollins-Ercolino, 149 N.H. 336 (2003).

13.

"General Requirements of Culpability I. A person is guilty of murder, a felony, or a misdemeanor only if he acts purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. He may be guilty of a violation without regard to such culpability. When the law defining an offense prescribes the kind of culpability that is sufficient for its commission, without distinguishing among the material elements thereof, such culpability shall apply to all the material elements, unless a contrary purpose plainly appears." N.H. RSA 626:2 (2002).

14.

Br. of Def. Rollins-Ercolino at 5 and 14.

15.

Id. at 3.

16.

Id. at 10.

17.

Br. of State at 4.

18.

Br. of Def. Kulunis at 4.

19.

Br. of Def. Rollins-Ercolino at 15.

20.

Id. at 16. Emphasis in original.

21.

Br. of State at 4.

22.

Id. at 4 -5.

23.

Rollins at 338-39.

24.

State v. Bergen, 141 N.H. 61 (1996).

25.

The lead cases upholding strict liability criminal statutes are U.S. v. Balint, 258 U.S. 250 (1922) and U.S. v. Dotterweich, 320 U.S. 277 (1943); See also Morrissete v. U.S., 342 U.S. 246 (1952).

26.

Goodrow v. Perrin, 119 N.H. 483, 489 (1979).

27.

Rollins at 338.

28.

State v. Goodwin, 140 N.H. 672, 673 (1996).

29.

Id. at 675.

30.

Rollins at 339.

31.

Id.

32.

See State v. Bergen, 141 N.H. 61 (1996) and State v. Curran, 140 N.H. 530, (1995).

33.

State v. Goodwin, 140 N.H. 672, 673 (1996).

34.

Rollins at 339.

35.

Rollins at 341 citing RSA 626:2, II(d) (1996): "A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.

36.

Rollins at342.

37.

Id.

38.

Id. at 342.

39.

Id.

40.

81 N.H. 227 (1924).

41.

Id. at 227.

42.

Rollins at 342.

43.

Id.

44.

Id. at 343.

The Author

Sigrid Tejo, Class of 2003, Franklin Pierce Law Center, Concord, New Hampshire.

 

 

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer