State v. Fortune

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan
Case No. 2022-0397
Citation: State v. Fortune, 2024 N.H. 52

THE STATE OF NEW HAMPSHIRE

v.

JOHN FORTUNE

Argued: May 29, 2024
Opinion Issued: September 10, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief
and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

MACDONALD, C.J.

¶1 The defendant, John Fortune, appeals his conviction following a jury
trial in Superior Court (Honigberg, J.) of selling a controlled drug resulting in
death, see RSA 318-B:2, I-a (2017); RSA 318-B:26, IX (2017 & Supp. 2023).
On appeal, the defendant argues that the trial court erred in: (1) refusing to
dismiss the death resulting charge for improper venue; and (2) refusing to give
a requested lesser-included offense instruction. We reverse and remand.
I. Background

¶2 The following facts are undisputed or otherwise supported by the
record. The defendant sold drugs to the victim in Belknap County. The victim
both consumed the drugs and died in Sullivan County. The defendant was
indicted in Sullivan County. Before trial, the defendant moved to dismiss the
charges arguing that venue was improper in Sullivan County. The Trial Court
(Tucker, J.) denied the motion. Following a jury trial in Sullivan County, the
defendant was convicted on the death resulting charge. This appeal followed.

II. Analysis

¶3 On appeal, the defendant argues, in part, that “RSA 602:1 permits
venue only in places where the defendant acted” and because the defendant
“committed no act in Sullivan County, venue there was improper.” The State
argues that trial may be had “where the victim died.”

¶4 Resolving the defendant’s appeal requires that we engage in
statutory interpretation. St. Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021).
We review the trial court’s statutory interpretation de novo. Id. We first look to
the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning. Id. We give effect to every word of
a statute whenever possible and will not consider what the legislature might
have said or add language that the legislature did not see fit to include. Id. We
also construe all parts of a statute together to effectuate its overall purpose. Id.
However, we do not construe statutes in isolation; instead, we attempt to
construe them in harmony with the overall statutory scheme. Id.

¶5 RSA 602:1 (2001) provides:

Offenders shall be prosecuted and tried in the county or judicial district
thereof in which the offense was committed. But if any person is
feloniously stricken, wounded or poisoned in one county or judicial
district thereof and dies thereof in another, or if parts of an offense are
committed in more than one county or judicial district thereof, the
offense shall be deemed to have been committed, the offender may be
prosecuted, and the trial may be had in either county or judicial district
thereof.

¶6 In finding venue in Sullivan County proper, the trial court relied on
the following statutory language: “if parts of an offense are committed in more
than one county . . . the offense shall be deemed to have been committed, the
offender may be prosecuted, and the trial may be had in either county.” RSA
602:1. The court stated that “[n]ecessarily, if an element is shown to have

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occurred in a specific county, then that ‘constituent part’ of the crime was
committed there.” The court found that “where death is an element of the
offense and a person acts so as to cause the death in that county, venue in
that county is proper.” The court concluded, “New Hampshire law on venue is
predicated on where the different parts of the offense occur.” (Emphasis
added.) We disagree.

¶7 The trial court’s conclusion that venue is predicated on where parts
of an offense occur is contrary to the text of RSA 602:1. RSA 602:1 requires
defendants to be prosecuted and tried “in the county” where “the offense was
committed.” RSA 602:1 (emphasis added). It further permits venue in counties
where “parts of an offense are committed.” Id. (emphasis added). Indeed, “if
parts of an offense are committed in more than one county . . . the offense shall
be deemed to have been committed . . . in either county . . . thereof.” Id.
(emphasis added). In other words, for each county where part of an offense is
committed by a defendant, venue is proper.

¶8 In this case, the defendant sold a controlled drug to the victim in
Belknap County contrary to RSA 318-B:2, I-a. RSA 318-B:2, I-a provides:

It shall be unlawful for any person to manufacture, sell, purchase,
transport or possess with intent to sell, dispense, compound, package or
repackage (1) any substance which he represents to be a controlled drug
or controlled drug analog, or (2) any preparation containing a substance
which he represents to be a controlled drug or controlled drug analog,
except as authorized in this chapter.

Later, the victim consumed the drugs and died in Sullivan County, thereby
implicating RSA 318-B:26, IX. RSA 318-B:26, IX provides, in part:

Any person who manufactures, sells, or dispenses methamphetamine,
lysergic acid, diethylamide phencyclidine (PCP) or any other controlled
drug classified in schedules I or II, or any controlled drug analog thereof,
in violation of RSA 318-B:2, I or I-a, is strictly liable for a death which
results from the injection, inhalation or ingestion of that substance, and
may be sentenced to imprisonment for life or for such term as the court
may order.

¶9 “To violate RSA 318-B:26, IX, a defendant must not only engage in
certain conduct (manufacturing, selling or dispensing a controlled drug), but
also must cause a specified result to occur (the victim’s death from injecting,
inhaling or ingesting the controlled drug).” State v. Marshall, 162 N.H. 657,
663 (2011). Therefore, pursuant to RSA 318-B:26, IX, the State must prove,
beyond a reasonable doubt, the following elements: (1) the defendant
manufactured, sold, or dispensed a controlled drug; (2) the victim injected,

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inhaled or ingested the drug; (3) the victim died; and (4) the victim’s death
resulted from injecting, inhaling or ingesting the drug. See RSA 318-B:26, IX.
In this case, as to the second, third, and fourth elements, it cannot be said that
the defendant “committed” those elements within the meaning of RSA 602:1.
Under RSA 602:1, an element of a crime that simply occurs or results, without
the defendant committing an act, does not establish venue where that element
occurs or results. Because RSA 602:1 requires the defendant to commit an
offense, or part of an offense, to establish venue, the defendant could be tried
only in the county where he committed part of the offense. Under RSA 318-
B:26, IX, he committed the act of selling drugs to the victim in Belknap
County.

¶10 Accordingly, we hold that the trial court erred in denying the
defendant’s motion to dismiss for improper venue. The defendant’s convictions
are therefore reversed, and the case is remanded for further proceedings. In
light of our decision, we need not address the defendant’s remaining
arguments. See Antosz v. Allain, 163 N.H. 298, 302 (2012) (declining to
address a party’s other arguments when holding on one issue is dispositive).

Reversed and remanded.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

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