State of New Hampshire v. Ernest Justin Blanchette

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0423, State of New Hampshire v. Ernest
Justin Blanchette, the court on April 19, 2022, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. After
denying the defendant’s motion to dismiss, the Trial Court (O’Neill, J.), granted
his request for an interlocutory appeal. See Sup. Ct. R. 8. The trial court has
transferred the following question for our review: “What is the meaning of the
phrase ‘where the actor is employed’ as contained in RSA 632-A:2, I(n)(1)
(2016)?” We reframe the question as: “Was the defendant, Ernest Justin
Blanchette, ‘employed’ by the correctional institution in which the alleged
victim (victim) was incarcerated within the meaning of RSA 632-A:2, I(n)(1)
(2016) (amended 2018)?” As reframed, we answer the transferred question “no”
and remand for further proceedings consistent with this order.

We accept the statement of the case and facts as presented in the
interlocutory appeal statement and rely upon the record for additional facts as
necessary. See State v. Hess Corp., 159 N.H. 256, 258 (2009). Before it was
amended in 2018, RSA 632-A:2, I(n)(1) provided, in pertinent part:

I. A person is guilty of the felony of aggravated felonious sexual
assault if such person engages in sexual penetration with another
person . . . :
....

(n) When the actor is in a position of authority over the
victim and uses this authority to coerce the victim to submit
...:

(1) When the actor has direct supervisory or
disciplinary authority over the victim by virtue of the victim
being incarcerated in a correctional institution, the secure
psychiatric unit, or juvenile detention facility where the actor
is employed . . . .

RSA 632-A:2, I(n)(1) (emphases added).

At the time of the charged offense in this case, the victim was an inmate
at the Belknap County House of Corrections and the defendant was a Belknap
County deputy sheriff. In October 2020, the defendant was indicted on two
counts of aggravated felonious sexual assault (AFSA) stemming from an alleged
September 2014 incident. Both indictments alleged that at the time of the
incident, the defendant “was in a position of authority over [the victim] by being
employed as an agent of the Belknap County Department of Corrections, and
used that authority to coerce [her] to submit because he had direct supervisory
authority over [her] by virtue of [the victim] being incarcerated in the Belknap
County House of Corrections.” (Emphasis added.)

In 2016, the defendant was convicted of AFSA against the same victim.
In that case, the jury found that the defendant had sexually assaulted the
victim when he transported her to the New Hampshire State Prison for Women.
State v. Blanchette, Case No. 2016-0313, 2017 WL 2791496, at *1 (N.H. May
15, 2017) (non-precedential order). We reversed the conviction on the ground
that the evidence was insufficient to prove that the defendant was “employed”
by a correctional institution for purposes of RSA 632-A:2, I(n)(1). Id. at *2-3.

In the prior case, the parties “dispute[d] whether the statute covers the
defendant’s conduct.” Id. at *2. Under the State’s interpretation, the
defendant was “employed” by either the county jail or the state prison because
those facilities had entrusted him with the victim’s transport. See id. Under
the defendant’s interpretation, the defendant was not “employed” by either the
county jail or the state prison because he was an employee of the sheriff’s
department. See id. We assumed without deciding that the State’s broader
interpretation of the statute applied and, viewing the evidence in the light most
favorable to the State, found it to be insufficient because the evidence at trial
was that the trial court, rather than the state prison or county jail, had
directed the transport. Id. at *2-3. Describing the statutory interpretations of
both parties as “facially plausible,” we “invite[d] the legislature to amend the
language in RSA 632-A:2, I(n)(1) to clarify its intent with regard to the meaning
of the phrase at issue.” Id. at *4. The legislature did so in 2018. See Laws
2018, 159:1; RSA 632-A:2, I(n)(1) (Supp. 2021).

As in the prior case, the parties to the instant appeal differ as to whether
the State can prove, beyond a reasonable doubt, that the defendant was
“employed” by a correctional institution within the meaning of the statute
before it was amended in 2018. The trial court transferred the question in this
case “to clarify further proceedings,” noting that under the State’s
interpretation, “the State can satisfy” the “employed” element of the crime, and
that under the defendant’s interpretation, “the State cannot meet its burden of
proof” on that element.

Resolving the transferred question requires us to interpret the pre-2018
version of RSA 632-A:2, I(n)(1). Statutory interpretation presents a question of
law, which we review de novo. Attorney General, Dir. of Charitable Trusts v.

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Loreto Publ’ns, 169 N.H. 68, 74 (2016). We construe provisions of the Criminal
Code “according to the fair import of their terms and to promote justice.” RSA
625:3 (2016). We first look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning. See State
v. Pinault, 168 N.H. 28, 31 (2015). 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. Unless we find statutory language to be ambiguous, we will not
examine legislative history. Loreto Publ’ns, 169 N.H. at 74. A statute is
ambiguous if its language is subject to more than one reasonable
interpretation. Id.

The defendant argues that “[e]mployment derives from the employer-
employee relationship.” The State counters that the plain meaning of the word
“employ” as used in the pre-2018 version of the statute is “to use or engage the
services of.” (Quotations omitted.) There is dictionary support for both
interpretations. See Webster’s Third New International Dictionary 743
(unabridged ed. 2002) (defining the word “employ” to mean “to use or engage
the services of” or “to provide with a job that pays wages or a salary or with a
means of earning a living”). We find both interpretations to be reasonable.
Accordingly, we consult legislative history. See Loreto Publ’ns, 169 N.H. at 74.

The phrase “where the actor is employed” was added to RSA 632-A:2,
I(n)(1) in 2003 by House Bill (HB) 105. See Laws 2003, 226:2. Before 2003,
the statute prohibited “a person from engaging in sexual penetration when the
actor is in a position of authority over the victim and uses this authority to
coerce the victim to submit” and “the actor has supervisory authority over the
victim by virtue of the victim being incarcerated in a correctional institution or
juvenile detention facility.” State v. Foss, 148 N.H. 209, 212 (2002) (quotation
and emphasis omitted); RSA 632-A:2, I(n)(1) (Supp. 2002). As introduced,
among other things, HB 105 added “or disciplinary” after the phrase “has
supervisory.” House Bill 105 (2003).

When the Senate Committee on Judiciary considered the bill, one senator
expressed concern that it would criminalize sexual contact between a
correctional officer who worked at one facility and an inmate housed in another
facility. See An Act relative to sexual assaults committed by corrections
officers, probation and parole officers, and juvenile probation and parole
officers against individuals under their supervision, Minutes of Hearing on H.B.
105 before the S. Comm. on Judiciary 3-4 (N.H. Apr. 8, 2003), available at
http://gencourt.state.nh.us/BillHistory/SofS_Archives/2003/senate/HB105S.
pdf (last checked April 4, 2022) (remarks of Sen. Frank V. Sapareto). The
Office of the Attorney General subsequently proposed two amendments to
“make clear that the officer must have direct authority over the victim.” Letter

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from Ann M. Rice, Assoc. Attorney Gen., Criminal Justice Bureau, to Sen.
Andrew Peterson, Chair, S. Comm. on Judiciary (N.H. May 9, 2003), available
at
http://gencourt.state.nh.us/BillHistory/SofS_Archives/2003/senate/HB105S.
pdf (last checked Apr. 4, 2022). One proposal was to insert the word “direct”
before the phrase “supervisory or disciplinary authority over the victim.” Id.
(quotations omitted). The other proposal was to insert the phrase “where the
actor is employed” after the list of facilities in which a victim may be
incarcerated. Id. Thereafter, the legislature amended HB 105, as suggested.
See N.H.S. Jour. 1080-82 (2003); N.H.H.R. Jour. 803 (2003). And, both
suggestions were eventually enacted into law. See Laws 2003, 226:2.

Our review of this legislative history persuades us that the legislature
intended the word “employ” as used in RSA 632-A:2, I(n)(1) to refer to the
employer-employee relationship. The legislature added the word “direct” before
the phrase “supervisory or disciplinary authority” and inserted the phrase
“where the actor is employed” at the end of the list of facilities in which a victim
could be incarcerated specifically to narrow the scope of the statute. As
amended in 2003 by HB 105 and before it was again amended in 2018, RSA
632-A:2, I(n)(1) applied only when a person had direct supervisory or
disciplinary authority over a victim because the victim was incarcerated in the
same facility in which the actor worked.

Although legislative history has resolved the ambiguity in the pre-2018
version of the statute, we note that if it had not, the rule of lenity would require
us to resolve the ambiguity in the defendant’s favor. See State v. Dansereau,
157 N.H. 596, 602-03 (2008). For all of these reasons, therefore, we conclude
that the defendant was not “employed” within the meaning of the pre-2018
version of RSA 632-A:2, I(n)(1) by the county jail where the victim was housed.
We remand for further proceedings consistent with this order.

Remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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