State v. Rogers

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Milford District Division
Case No. 2022-0025
Citation: State v. Rogers, 2024 N.H. 57

THE STATE OF NEW HAMPSHIRE

v.

ROY ROGERS

Argued: May 14, 2024
Opinion Issued: October 11, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for
the State.

Thomas Barnard, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

COUNTWAY, J.

¶1 The defendant, Roy Rogers, appeals his convictions, following a trial
in Circuit Court (Derby, J.), on one count of driving under the influence, see
RSA 265-A:2, I(a) (2024), and five counts of resisting arrest, see RSA 642:2
(2016). The defendant does not appeal his conviction for driving after
suspension of his license, see RSA 263:64 (2024). We affirm in part, vacate in
part, and remand.

¶2 The trial court found, or could have found on the evidence
presented, the following facts. At approximately 4:15 on the morning of
September 12, 2020, Brookline Police Officer Torrisi encountered a vehicle
stopped in the roadway on Oak Hill Road. As Torrisi approached in his cruiser,
the vehicle moved toward him and flashed its high beams. Thinking that the
driver was trying to get his attention, and perhaps needed help, Torrisi initiated
a motor vehicle stop.

¶3 Torrisi made contact with the defendant, who was operating the
vehicle. Torrisi noticed an odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot, and his speech was slurred. Torrisi checked
the status of the defendant’s license and discovered it had been suspended. At
some point during the encounter, Hollis Police Officer Connors arrived to
assist, and the remainder of the stop was recorded on Connors’ body camera.
A friend of the defendant also arrived in another car during the stop.

¶4 Torrisi administered field sobriety tests and determined, based on
the defendant’s performance, that he was impaired due to alcohol. Torrisi
attempted to arrest the defendant, but the defendant pulled away. A lengthy
encounter ensued, during which, the trial court found, the “defendant was so
uncooperative that application of non-lethal physical force to complete the
arrest would have been justified at two points during the encounter, but the
police opted for de-escalation and prolonged dialogue.” The court’s written
order notes that the “defendant’s friend was parked at the scene with minor
children in the car” and that “statements by the police officers suggested that
the children . . . would have seen the application of force had [the police] done
it.” While trying to persuade the defendant to cooperate, the officers made
various statements to him about going to the police station and agreeing to
take a breathalyzer test. They further told him that “[i]f [the breathalyzer result
was] under .08, you’re free to go.”

¶5 After approximately 15 to 20 minutes, the officers handcuffed the
defendant and, after more resistance by the defendant, persuaded him to get
into Torrisi’s cruiser. The defendant was taken to the Brookline police station
where Torrisi read him the administrative license suspension form. The
defendant again engaged the officers in a lengthy back-and-forth discourse
before signing the form and agreeing to take the breathalyzer test. At times,
they discussed what would happen if the breathalyzer result was under the
legal limit. The defendant was again told, “If you’re under [.08], you’re out of
here.” The test was finally administered, after a preliminary observation
period, approximately two hours after the initial stop. The result was .07. The
defendant was given a hand summons for operating after suspension and
allowed to leave.

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 [¶6] On October 6, 2020, additional charges were filed against the
defendant for driving while under the influence, negligent driving, see RSA
265:79-b (2024), and five counts of resisting arrest. The defendant moved to
dismiss all charges, arguing that “Officers Torrisi and Connors offered not to
prosecute Defendant for the offenses if he agreed to perform the breathalyzer
test at the station and the result was under a [.08].” The State objected. The
court denied the motion, explaining in its written order issued after trial:

Neither party has presented any controlling or persuasive legal
authority for the proposition that a defendant and police officers
can enter into an enforceable verbal immunity or non-prosecution
agreement during the booking process. Even if verbal agreements
at the point of booking were enforceable, there was no meeting of
the minds about what the casual phrases “free to go” or “you’re
good” meant with respect to the various legal issues at play . . . .
Beyond that, the testimony and bodycam footage showed that the
defendant was argumentative and uncooperative during the arrest
and booking process. . . . This prolonged the encounter much
longer than necessary and provided valuable time for the
defendant’s body to metabolize the alcohol in his system.
Enforcement of any kind of verbal immunity or non-prosecution
agreement under the circumstances the court observed in this case
would be against public policy and virtually every principle of
contract law.

¶7 The defendant was found not guilty of negligent driving and guilty of
the remaining charges. This appeal followed.

I. Agreement to Forgo Prosecution

¶8 The defendant first argues that the trial court erred in denying his
motion to enforce an agreement not to prosecute him for any offense other than
driving after suspension. He contends that all of the elements of contract
formation are present here: the police made an offer when they promised to
forgo prosecution if the defendant “took a breathalyzer test and the result was
below .08”; the defendant “accepted the offer by taking the breathalyzer”; and
both the officers’ promise to forgo prosecution and the defendant’s performance
by taking the breathalyzer constituted consideration. He asserts that because
the breathalyzer result was under .08, the State was bound by its promise not
to prosecute the additional charges.

¶9 In response, the State argues that two independent grounds support
the trial court’s denial of the defendant’s motion. First, the State contends that
“Torrisi, acting in his capacity as a police officer, did not have the authority to
bind the State to a non-prosecution agreement with the defendant.” Second,
the State argues that “[t]he evidence does not support the conclusion that the

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officers objectively expressed an intent to be bound by the terms of a non-
prosecution agreement contingent on the results of a breathalyzer test” and,
therefore, there was no “meeting of the minds.” Because we agree with the
State’s second contention, we need not address the first.

¶10 “A valid, enforceable contract requires offer, acceptance,
consideration, and a meeting of the minds.” Durgin v. Pillsbury Lake Water
Dist., 153 N.H. 818, 821 (2006). “For a meeting of the minds to occur, the
parties must assent to the same contractual terms. That is, the parties must
have the same understanding of the terms of the contract and must manifest
an intention, supported by adequate consideration, to be bound by the
contract.” Id. (quotation, citation, and brackets omitted). “The question of
whether a meeting of the minds has occurred is analyzed under an objective
standard and is a question of fact.” Chase Home for Children v. N.H. Div. for
Children, Youth & Families, 162 N.H. 720, 727 (2011). We will sustain the
trial court’s finding that there was not a meeting of the minds unless it is
lacking in evidentiary support or tainted by an error of law. See id.

¶11 The sole issue thus is “whether from an objective viewpoint the
parties assented to the same [terms].” Id. at 728. Having reviewed the entire
record before us, we conclude that the trial court correctly determined that
they did not. Consequently, there was no meeting of the minds and no
enforceable agreement.

II. Double Jeopardy

¶12 The defendant next argues that the trial court erred in entering
more than one conviction and imposing more than one sentence for resisting
arrest. He observes that the double jeopardy provisions of both the New
Hampshire and United States Constitutions provide protection against, among
other things, multiple punishments for the same offense. See State v.
Woodbury, 172 N.H. 358, 368 (2019); N.H. CONST. pt. I, art. 16; U.S. CONST.
amends. V, XIV. He contends that here, there was “a single crime of resisting
arrest” and notes that “[b]ecause the five resisting-arrest charges . . . alleged
‘more than one violation of a single statutory provision,’ this case presents a
‘unit of prosecution’ issue.” (Quoting Woodbury, 172 N.H. at 368.) By focusing
his challenge on a unit of prosecution analysis, the defendant invokes the
inquiry that we have used in addressing double jeopardy challenges under the
Federal Constitution. Accordingly, we confine our review to analysis of the unit
of prosecution intended by the legislature. See State v. Wilson, 169 N.H. 755,
773 (2017).

¶13 The exercise of determining the unit of prosecution intended by the
legislature is one of statutory construction. Id. at 773. Our standard of review
is de novo. Id. at 772. We review the plain language of the resisting arrest
statute to discern the legislature’s intent. State v. Lynch, 169 N.H. 689, 708

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(2017). That statute provides, in relevant part:

A person is guilty of a misdemeanor when the person knowingly or
purposely physically interferes with a person recognized to be a law
enforcement official, including a probation or parole officer, seeking
to effect an arrest or detention of the person or another regardless
of whether there is a legal basis for the arrest.

RSA 642:2. Thus, to be convicted of resisting arrest, the defendant must have:
(1) knowingly or purposely; (2) physically interfered; (3) with a person
recognized to be a law enforcement official; (4) while that person was seeking to
effect an arrest or detention of the defendant. RSA 642:2; State v. Lindsey, 158
N.H. 703, 706 (2009).

¶14 The defendant contends that “[b]ecause the gravamen of the
resisting-arrest statute is the arrest, the arrest is the unit of prosecution.” He
then asserts that we “affirmed this construction of the resisting-arrest statute
in Lindsey.” We disagree. In Lindsey, the defendant appealed his conviction
for resisting arrest, arguing that “the evidence was insufficient to support his
conviction because once the police detained him by handcuffing and forcing
him to lie on the floor, his subsequent conduct was not culpable under the
resisting arrest statute.” Lindsey, 158 N.H. at 704. In assessing the
defendant’s sufficiency challenge, we “agree[d] with those jurisdictions that
hold that effecting an arrest or detention is not necessarily an instantaneous
event and should not be assessed by parsing out discrete, snapshot moments
in time.” Id. at 707.

¶15 Contrary to the defendant’s contention, however, we did not state
that “the conduct prohibited by the statute . . . ‘include[es] the entire course of
events during which law enforcement officers seek to secure and maintain
physical control of an individual.’” (Quoting id. at 706.) Rather, we construed
the statutory “phrase ‘seeking to effect an arrest or detention’ as including the
entire course of events during which law enforcement officers seek to secure
and maintain physical control of an individual, attendant to accomplishing the
intended law enforcement duty.” Id. at 706. Thus, Lindsey addressed what we
identified above as the fourth element of the offense — the requirement that the
prohibited conduct occur while law enforcement is “seeking to effect an arrest
or detention,” RSA 642:2 — and did not determine what conduct the statute
prohibits.

¶16 The defendant cites decisions from other jurisdictions for the
proposition that the unit of prosecution for resisting arrest is “the arrest itself.”
Mills v. State, 201 A.3d 1163, 1165 (Del. 2019). As the State points out, each
of the cases the defendant cites addressed the situation of multiple charges
based on the number of officers resisted. See id.; Wallace v. State, 724 So. 2d
1176, 1181 (Fla. 1998); State v. Parsons, 636 A.2d 1077, 1082 (N.J. Super. Ct.

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App. Div. 1994). That is not the situation at issue here, as all charges alleged
resistance against Torrisi.

¶17 The State, on the other hand, relies upon People v. Lowe, 486 P.3d
397 (Col. App. 2020), to argue that the unit of prosecution is neither “the
number of victim-officers resisted,” nor “the number of arrests resisted,” but,
rather, “the number of discrete volitional acts of resisting arrest.” Lowe, 486
P.3d at 408. We find Lowe’s articulation of the unit of prosecution persuasive1
and, based upon the plain language of our statute and our case law
interpreting it, we conclude that the unit of prosecution under RSA 642:2 is
“the number of discrete volitional acts of resisting arrest.” Id.

¶18 “Resisting arrest requires knowing or purposeful physical
interference with a person recognized as a law enforcement officer who is
seeking to make an arrest or detention.” State v. Smith, 144 N.H. 1, 7 (1999).
The prohibited conduct is physical interference. See RSA 642:2. We
recognized as much in Smith when we noted that “[t]he gravamen of the offense
charged was that the defendant fled when [an officer] attempted to arrest him”
and that “[t]he obvious essential culpable act of resisting arrest, as charged . . .
occurred when the defendant fled from [the officer].” Smith, 144 N.H. at 7, 8
(quotation and citation omitted).

¶19 Smith was not a double jeopardy case, but, rather, involved a claim
that the trial court erred in failing to give a unanimity instruction because, on
the evidence, “some of the jurors may have believe that he resisted arrest” in
different ways. Id. at 7 (quotation and brackets omitted). We concluded that
“there was no genuine possibility of juror confusion as to the charged essential
culpable act and the court’s general instruction was adequate to ensure a
unanimous verdict.” Id. at 9. We further noted:

Even if the jury could have broken down the defendant’s course
of conduct into multiple incidents of resisting arrest, but cf. State
v. Giwosky, 326 N.W.2d 232, 237-38 (Wis. 1982) (continuous
course of assaultive conduct over short period constitutes single
offense), the acts the defendant has parsed out to demonstrate
juror confusion are dissimilar to the essential culpable act and
would have been perceived by a conscientious juror as part of the
course of events surrounding its commission.

Id. at 8-9. Thus, while Smith supports interpreting RSA 642:2 to define

1 Notwithstanding differences in the statutes at issue here and in Lowe, we consider the operative

statutory language to be similar enough to find Lowe persuasive. See Lowe, 486 P.3d at 408
(noting the statute provided, in relevant part, that “a person commits resisting arrest when he
knowingly ‘attempts to prevent a peace officer, acting under color of his official authority, from
effecting an arrest’”).

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the unit of prosecution as each discrete volitional act of physical
interference, it also cautions that physical interference consisting of one
continuous course of conduct over a short period constitutes a single
offense. See id.; see also Lowe, 486 P.3d at 411 n.9 (concluding that the
defendant’s actions, which “occurred over a brief period of time, in a
single location, with no intervening event,” could “support only one
resisting arrest conviction because his actions constituted a continuous
act of resistance rather than factually distinct, volitional acts of
resistance”).

¶20 The criminal complaints here charged that the defendant resisted
arrest by committing the following acts: (1) “physically interfering by pulling
away when told to place his hands behind his back by Officer Torrisi”; (2)
“pulling away when told to place his hands behind his back by Officer Torrisi, a
physical interference”; (3) “tensing up and refusing to place his hands behind
his back after being ordered to by Officer Torrisi, a physical interference”; (4)
“physically interfer[ing] by refusing to get in the cruiser when told to get in the
cruiser by Officer Torrisi”; and (5) “physically interfer[ing] by refusing to sit in
the cruiser when ordered to do so by Officer Torrisi.” The State argues that the
convictions on all five charges should be affirmed because the “evidence
adduced at trial showed that the defendant physically interfered with Torrisi’s
attempt to arrest him five separate times.” Alternatively, the State contends
that if we view “the defendant’s actions as a continuous course of conduct,” the
evidence showed at least two courses of resistant conduct — resisting being
placed in handcuffs and resisting being put in the cruiser. The State argues
that because these courses of conduct were separated by a period of compliant
conduct, they support affirming at least two convictions for resisting arrest.

¶21 Having reviewed the record, we conclude that the defendant
committed a volitional act of physical interference with Torrisi’s attempt to
handcuff him when he engaged in a continuous course of conduct resisting
that attempt. Similarly, we conclude that the defendant committed a volitional
act of physical interference with Torrisi’s attempt to place him in the cruiser
when he engaged in a continuous course of conduct resisting that attempt.
These courses of conduct are distinct, separated by a period of relative
compliance. After being handcuffed, the defendant allowed Torrisi to pat him
down and remove items from his pockets. He then began physically resisting
Torrisi’s efforts to lead him to the cruiser. Given that separation in time, we
conclude that each episode of resistance — resisting being handcuffed and
resisting entering the cruiser — constituted a discrete volitional act of resisting
arrest. Each course of conduct constitutes one offense, and the evidence
supports one conviction for resisting arrest by physically interfering with being
handcuffed and one conviction for resisting arrest by physically interfering with
being placed in the cruiser.

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 [¶22] Accordingly, we affirm the defendant’s conviction for driving under
the influence, one of his convictions for resisting being handcuffed, and one of
his convictions for resisting being placed in the cruiser. We vacate two of his
convictions for resisting being handcuffed and one of his convictions for
resisting being placed in the cruiser, and remand.

Affirmed in part; vacated in
part; and remanded.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

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