State v. Spade

DUGGAN, J.

dissenting. The plain meaning of RSA 642:9, II (2007) does not readily resolve whether merely causing a department of corrections employee to clean up a defendant’s bodily fluids is sufficient to satisfy the “contact” element of the statute. A review of the statute in the context of the overall statutory scheme, as well as a review of the legislative history, clearly shows, however, that the throwing or expelling of bodily fluids must be the direct means of contact with a corrections staff member in order to qualify as conduct prohibited by RSA 642:9, II. Accordingly, I would affirm the decision of the superior court.

Statutory interpretation is a question of law that we review de novo. State v. Kousounadis, 159 N.H. 413, 423 (2009). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Lamy, 158 N.H. 511, 515 (2009). We begin by examining the language of the statute, and, if possible, ascribe the plain and ordinary meaning to the words used. Kousounadis, 159 N.H. at 423. We interpret legislative intent from the statute as written and will neither consider what the legislature might have said nor add language that the legislature did not see fit to include. State v. Jennings, 159 N.H. 1, 3 (2009). We will interpret a statute in the context of the overall statutory scheme and not in *257isolation. Id. If a statute is ambiguous, however, we consider legislative history to aid our analysis. Lamy, 158 N.H. at 515. 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. Finally, we construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. See RSA 625:3 (2007).

The first step is to examine the language of the statute and ascribe the plain and ordinary meaning to the words used. RSA 642:9, II provides that:

An inmate is guilty of aggravated assault on a corrections staff member when, with intent to harass, threaten, or alarm a person whom the inmate knows or reasonably should know to be an employee of such facility, or an employee of the department of corrections, or an employee of any law enforcement agency, the inmate causes or attempts to cause such employee to come in contact with blood, seminal fluid, urine, or feces by throwing or expelling such fluid or material.

Regardless of the definitions given to the words of the statute, the plain meaning of RSA 642:9, II does not readily resolve the issue of whether throwing or expelling bodily fluids must be the direct means of the contact or attempted contact, or if it can be the indirect means. On one hand, the statute does not expressly require that the inmate throw or expel the bodily substance directly at an employee who is physically present. In other words, it does not read “by throwing or expelling such fluid or material [at an employee].” Cf., e.g., Ky. Rev. Stat. Ann. § 508.025(1)(b) (LexisNexis 2008) (“throws or causes feces, or urine, or other bodily fluid to be thrown upon an employee”); S.C. Code Ann. § 24-13-470(A) (2007) (“attempts to throw or throws body fluids ... on an employee of a . . . correctional facility”).

On the other hand, had the legislature intended for the criminal conduct to include indirect means contrived by inmates for causing or attempting to cause the contact, it is peculiar that the statute would identify “throwing” or “expelling” as the specific methods of causing or attempting to cause the contact, thereby excluding other possible indirect methods such as smearing on the walls. The legislature could have simply placed a period after the word “feces,” so that the statute would read: “the inmate causes or attempts to cause such employee to come in contact with blood, seminal fluid, urine, or feces.” Cf People v. Polanco, 770 N.Y.S.2d 167, 169 (App. Div. 2003) (inmate’s act of mailing an envelope containing bodily fluid did not fall within prescription of aggravated harassment statute because expulsion of the fluid was not the means of causing contact with that fluid). Thus, the addition of the words “throwing or expelling” creates an ambiguity as to what other acts, direct or indirect, are included in the statute.

*258While the plain language does not resolve this ambiguity, once the statute is examined in the overall statutory context, both as to the specific “Assaults by Prisoners” statute and, more generally, in the context of all the assault statutes, it becomes clear that the legislature intended to prohibit only direct contact or attempted direct contact caused by the throwing or expelling of bodily fluids. RSA 642:9 is titled “Assaults by Prisoners” and makes numerous references to the assault statutes found in RSA chapter 631 (2007). RSA 642:9, II specifically refers to the prohibited conduct as an “aggravated assault.” Section IV of the statute delineates four different offenses as felonies: (1) aggravated assault as defined in section II of the statute, which is the subject of this appeal; (2) simple assault; (3) first degree assault; and (4) second degree assault. Simple assault requires bodily injury or unprivileged physical contact to another, see RSA 631:2-a, while first and second degree assault generally require serious bodily injury to another, see RSA 631:1, :2. The serious bodily injury and bodily injury elements in the other three variants of offenses in section IV strongly suggest that the most logical interpretation of the statute is that an offense under section II requires some direct physical contact. Merely alleging that a defendant caused a corrections employee to clean up the bodily fluids is insufficient to meet the elements under the statute. To interpret the statute any other way would be inconsistent with the rest of the section. See Jennings, 159 N.H. at 3.

Examining the assault statutes as a whole leads to the same conclusion. The conduct prohibited under the assault statutes generally involves actual bodily injury or physical contact to another. See, e.g., RSA 631:1 (making it a class A felony to “[pjurposely cause[] serious bodily injury to another”); RSA 631:2 (class B felony to “[k]nowingly or recklessly cause[] serious bodily injury to another”); RSA 631:2-a (simple assault to “[p]urposely or knowingly cause[] bodily injury or unprivileged physical contact to another”). Any prisoner who commits an assault under RSA chapter 631 would be guilty of an offense under RSA 642:9. Thus, the statutory context here is that assault statutes generally require direct physical contact or direct contact that results in bodily injury. To effectuate the overall statutory scheme of the assault statutes, section II of the statute must be interpreted as requiring some direct physical contact.

Even if the overall context of the statutory scheme did not resolve the issue in this case, a review of the legislative history shows definitively that the legislature intended the statute to prohibit direct contact with bodily fluids thrown or expelled by prisoners. During a House committee hearing, testimony described several specific instances of inmate misconduct that involved a bodily substance being thrown or expelled directly at or on a corrections employee. For example, testimony included instances in which *259inmates threw feces or urine in the face of a corrections employee, spat on an employee, and sprayed bodily fluids onto an employee. HOUSE CRIMINAL Justice and Pub. Safety Comm. Minutes, H.B. 1382 (Feb. 2,2000) (reprinted in State’s Appendix at 32-34). Subsequently, when the prime sponsor of the House Bill testified before the Senate Committee on Executive Departments & Administration, he stated:

The gist of the bill is to penalize an inmate who throws feces, blood, seminal fluid, and urine at a corrections officer.... Actually what it does is it just makes it a crime for someone to intentionally through [sic] something at a corrections officer thereby exposing him to some severe disease and so forth.

Senate Comm, on Executive Dep’ts & Admin., H’rg on H.B. 1382 (April 18, 2000) (statement of Rep. William V. Knowles) (reprinted in State’s Appendix at 39-44) (emphasis added). Other testimony before the Senate committee also suggests that the bill was expected to target conduct of inmates who threw or expelled bodily material directly at or on corrections staff. Id. Understandably, proponents of the bill were concerned that such inmate conduct exposed corrections employees to disease, humiliation, and the anxiety that employees incur while awaiting test results to learn whether they have contracted a disease such as hepatitis. Id.- HOUSE Criminal Justice and Pub. Safety Comm. Minutes, supra.

In light of this legislative history, and after considering the statute in the context of the entire statutory scheme, I agree with the trial court that to be guilty of aggravated assault, the throwing or expelling of the bodily substance must have been the direct means of causing the contact or attempted contact. Here, the indictments against the defendant all allege that, “with the intent to harass a person he [knew] to be an employee of the Department of Corrections, [the defendant] purposely caused or attempted to cause such employee to come into contact” with feces or urine by throwing or expelling such material onto the floor, “thereby causing [the correctional officer] to clean it up.” Because the indictments allege the throwing or expelling of the bodily substance as an indirect means of contact or attempted contact by “causing [the employee] to clean it up,” rather than, for example, alleging that the defendant threw or expelled the substance at or on the employee, the trial court correctly dismissed the indictments. I would underscore the trial court’s comment that the alleged conduct, if true, is reprehensible. However, it does not amount to felony aggravated assault under RSA 642:9, II.

Accordingly, I respectfully dissent.

CONBOY, J., joins in the dissent.