State v. Warren

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
Case No. 2023-0408
Citation: State v. Warren, 2025 N.H. 21

THE STATE OF NEW HAMPSHIRE

v.

JESSICA WARREN

Argued: March 6, 2025
Opinion Issued: May 16, 2025

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Robert L. Baldridge, 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.

DONOVAN, J.

¶1 The defendant, Jessica Warren, appeals her conviction for driving
after suspension or revocation, with death resulting, pursuant to RSA 263:64,
V-a (2024) (amended 2024), following a jury trial in the Superior Court (Attorri,
J.). On appeal, the defendant challenges the trial court’s jury instruction that
did not include language requiring the State to prove any mental state with
respect to the material element of “unlawful operation.” We conclude that a
mens rea of criminal negligence is applicable to the conduct underlying the
“unlawful operation” element of the offense and reverse and remand.

I. Facts

¶2 The jury could have found the following facts. On September 5,
2018, the defendant — whose license was suspended — drove a minivan down
a road in Concord. She passed a delivery truck parked in a manner that
blocked a bike lane. Thereafter, the defendant’s minivan collided with a
bicyclist. The minivan then veered into the opposite traffic lane, hit a curb,
and collided with another vehicle. The bicyclist died as a result of the collision.

¶3 The defendant was subsequently charged with violating RSA 263:64,
V-a for driving after revocation or suspension, death resulting. In May 2023, a
five-day jury trial took place. At trial, the defendant asked the court to instruct
the jury that the “unlawful operation” element of the offense required the State
to prove that the defendant knowingly committed the act that violated a rule of
the road. The trial court, however, issued a jury instruction that did not
require the State to prove any mens rea with respect to the “unlawful
operation” element. The defendant objected, but the court overruled the
objection. The jury convicted the defendant for driving after revocation or
suspension, death resulting, pursuant to RSA 263:64, V-a. This appeal
followed.

¶4 On appeal, the defendant argues that the trial court erred by failing
to instruct the jury that the “knowingly” mens rea applied to the “unlawful
operation” element of RSA 263:64, V-a. The State disagrees, responding that
RSA 263:64, V-a omits a culpable mental state and that despite case law
holding that the “driving after revocation or suspension” element of other RSA
263:64 offenses carries a “knowingly” mens rea, the “knowingly” mens rea is
inapplicable to the “unlawful operation” element. Although we agree with the
State that the “knowingly” mens rea is inapplicable, we conclude that “criminal
negligence” is the appropriate mental state for the “unlawful operation” element
of the offense and that the trial court erred by not including this mens rea
element in its jury instruction.

II. Analysis

¶5 The purpose of the trial court’s charge is to state and explain to the
jury, in clear and intelligible language, the rules of law applicable to the case.
State v. Miller, 177 N.H. ___, ____, (2025), 2025 N.H. 11, ¶19. When reviewing
jury instructions, we evaluate claims of error by interpreting the disputed
instructions in their entirety, as a reasonable juror would have understood
them, and in light of all the evidence in the case. Id. We determine whether

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the jury instructions adequately and accurately explain each element of the
offense, and we reverse only if the instructions did not fairly cover the issues of
law in the case. Id. Whether or not a particular jury instruction is necessary,
and the scope and wording of the instruction, are within the sound discretion
of the trial court, and we review the trial court’s decisions on these matters for
an unsustainable exercise of discretion. State v. Johnson, 157 N.H. 404, 407
(2008).

¶6 However, the defendant’s challenge to the jury instruction at issue
raises a question of statutory interpretation, which we review de novo. See
State v. McDonald, 163 N.H. 115, 126 (2011); State v. West, 167 N.H. 465, 468
(2015). Specifically, the issue raised on appeal requires us to interpret
provisions of the Criminal Code and the Motor Vehicle Code. See State v.
Woodbury, 172 N.H. 358, 366 (2019). We construe the Criminal Code
according to the fair import of its terms and to promote justice. RSA 625:3
(2016). When we interpret statutes, we first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
ordinary meaning. Woodbury, 172 N.H. 366. We interpret the statute as
written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include. Id. Our goal is to apply
statutes in light of the policy sought to be advanced by the entire statutory
scheme. State v. Addison, 165 N.H. 381, 418 (2013). Accordingly, we interpret
a statute in the context of the overall statutory scheme and not in isolation. Id.

¶7 RSA 263:64, V-a provides, in relevant part, that:

[A]ny person who drives a motor vehicle in this state during the
period of suspension or revocation of his or her license or driving
privilege and is involved in a collision resulting in death or serious bodily
injury . . . shall be guilty of a class B felony, where such person’s
unlawful operation of the motor vehicle caused or materially contributed
to the collision.

Although the statute specifies no mens rea, a prosecution for the class B felony
of driving after suspension or revocation, with death resulting, may not be
sustained absent proof of a mens rea. RSA 626:2, I (2016); see State v. Aldrich, 124 N.H. 43, 47 (1983). RSA 626:2, I, provides: “A person is guilty of . . . a
felony . . . only if he acts purposely, knowingly, recklessly or negligently, as the
law may require, with respect to each material element of the offense.” “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.” Id.

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 [¶8] When a criminal statute does not provide for a specific mental state,
we read RSA 626:2, I, as requiring proof of a culpable mental state that is
appropriate in light of the nature of the offense and the policy considerations
for punishing the conduct in question. State v. Rollins-Ercolino, 149 N.H. 336,
338 (2003). The appropriate culpable mental state will then be applied to all
material elements of an offense unless a contrary purpose appears in the
language of the statute. Id.

¶9 The trial court instructed the jury:

In order to convict the defendant of Driving After Revocation or
Suspension With Death Resulting, the State must prove the following
elements beyond a reasonable doubt:

1. That the defendant knowingly operated a motor vehicle while
her driver’s license was under suspension or revocation; and

2. That the defendant was involved in a collision resulting in a
person’s death or serious bodily injury; and

3. That the defendant operated the motor vehicle in an
unlawful manner; and

4. That the defendant’s unlawful operation caused or materially
contributed to the collision.

(Emphasis added.) The court proceeded to define certain terms:

“Unlawful operation” means operation in violation of a rule of the
road. Such unlawful operation relates to conduct that causes the
collision and is not satisfied merely by showing the defendant’s
suspension status.
....

To satisfy the “unlawful operation” element, the State must prove
that the defendant violated a rule of the road. The State asks you
to find that the defendant violated the rule of the road set forth in a
law entitled “Drivers to Exercise Due Care When Approaching
Bicycle.”

On appeal, the parties do not contest whether the court correctly applied the
“knowingly” mens rea to the “driving after revocation or suspension” element.
Nor do they contest whether “unlawful operation” is a material element of the
offense. Rather, the parties’ dispute turns on whether the trial court erred by
failing to apply a mens rea to the “unlawful operation” element. First, the

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defendant contends that RSA 626:2, I, “establishes a presumption that the
‘knowingly’ mental state applies to the unlawful-[operation] element.” Further,
the defendant argues that the statutory exception for when a contrary purpose
plainly appears is inapplicable here. The State disagrees, arguing that we
should reject the defendant’s argument because we rejected a similar argument
in State v. Riendeau, 160 N.H. 288 (2010). Rather, the State maintains that
the mental state applicable to the “unlawful operation” element must be
determined by evaluating the “‘nature of the offense’ and the ‘policy
considerations for punishing the conduct in question.’” We agree with the
State on this point.

¶10 The defendant’s argument that RSA 626:2, I, requires the
application of the “knowingly” mens rea to the “unlawful operation” element in
addition to the “driving after revocation” element is foreclosed by Riendeau. In
Riendeau, we rejected the argument that RSA 626:2, I, requires that the
“knowingly” mens rea that applies to the “habitual offender” element of RSA
262:23 (2016) (amended 2018) must also apply to the “way” element of the
offense. Id. at 291-92, 294. First, we noted that RSA 262:23, a statute that
penalizes habitual offenders for driving on a “way” after license revocation,
omits a culpable mental state. Riendeau 160 N.H. at 293. We also observed
that RSA 626:2, I, provides: “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.” Id. at 294; RSA
626:2, I.

¶11 In light of these observations, we concluded that RSA 626:2, I, was
“inapplicable on its face, because the law defining the offense at issue, RSA
262:23, I, does not prescribe the kind of culpability that is sufficient for its
commission.” Riendeau, 160 N.H. at 294. We also observed that we have
applied the mental state of “knowingly” to the “habitual offender” element in
other cases involving RSA 262:23 offenses. Id. However, we rejected the
“defendant’s attempt to read [RSA 626:2, I,] as embodying ‘a general principle
favoring consistency in the application of a mental state to the several elements
defining a single crime’” that mandates the application of the same mens rea to
the “way” element. Id. Instead, we applied our well-settled precedent, which
prescribes that where a specific mental state is not provided for the offense, we
read RSA 626:2, I, as requiring proof of a culpable mental state that is
appropriate in light of the nature of the offense and the policy considerations
for punishing the conduct in question. Id.

¶12 Here, the trial court correctly rejected the defendant’s argument
that RSA 626:2, I, required the court to instruct the jury to apply the
“knowingly” mens rea to the “unlawful operation” element. Like the statute at
issue in Riendeau, RSA 263:64, V-a omits a culpable mental state. See id. at

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293; RSA 263:64, V-a. Therefore, consistent with our decision in Riendeau,
the part of RSA 626:2, I, providing that “[w]hen 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,”
is inapplicable. (Emphasis added.) Accordingly, consistent with Riendeau, we
must determine the mens rea applicable to the “unlawful operation” element of
RSA 263:64, V-a in light of the nature of the offense and the policy
considerations for punishing the conduct in question. See id.

¶13 The defendant argues that the legislative history, statutory scheme,
and policy goals that underlie RSA 263:64 establish that “knowingly” is the
proper mental state for the “unlawful operation” element. The State responds
that the “statutory scheme and legislative history show that it would frustrate
the purpose of RSA 263:64 to require the State [to] prove the defendant
knowingly engaged in conduct that violated a rule of the road.” Instead, the
State asserts that the trial court properly determined that no mens rea should
apply to this element.

¶14 First, we address the State’s argument that the trial court properly
determined that no mens rea is applicable to the “unlawful operation” element
by considering the statutory provision in the context of its overall statutory
scheme. The trial court declined to apply a mens rea to the conduct underlying
the violation of the rule of the road that satisfied the “unlawful operation”
element, in part, because violation-level rule of the road offenses, like speeding,
do not carry a mens rea. However, the structure of RSA 263:64 indicates that
some mens rea is applicable to the “unlawful operation” element of RSA
263:64, V-a. State v. Kardonsky, 169 N.H. 150, 153 (2016).

¶15 RSA 263:64 establishes violation-level, misdemeanor-level, and
felony-level offenses for the act of driving after revocation or suspension. To
establish the misdemeanor-level offense under RSA 263:64, “the State must
prove: (1) that the defendant’s license to drive had been suspended or revoked;
(2) that the defendant drove a motor vehicle after such suspension; and (3) that
the defendant did so with knowledge of the revocation or suspension of his
license to drive.” State v. Curran, 140 N.H. 530, 532 (1995). Misdemeanor-
level and felony-level offenses carry different maximum sentences for
imprisonment. RSA 651:2 (Supp. 2024). For misdemeanor offenses under the
statute, the defendant is subject to a maximum punishment of one year
imprisonment. See RSA 651:2, II(c); RSA 263:64, IV. The felony-level offense
here, on the other hand, carries a maximum sentence of seven years. RSA
651:2, II(b); see RSA 263:64, V-a. The felony-level offense also requires proof
that the driver was “involved in a collision resulting in death or serious bodily
injury” and “such person’s unlawful operation of the motor vehicle caused or
materially contributed to the collision.” RSA 263:64, V-a.

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 [¶16] If no mens rea is applicable to the “unlawful operation” element of
the felony-level offense, the defendant’s maximum sentence increases seven-
fold based upon proof of a collision resulting in death or serious bodily injury
caused, in part, by the defendant’s unlawful operation but without proof of any
accompanying culpable mental state to justify the increased sentence. See
RSA 651:2, II(b)-(c); RSA 263:64, IV, V-a. Therefore, “considering the statutory
scheme before us, and absent a clear expression of such an intent, ‘[w]e decline
to construe the statute so as to lead to so harsh a result.’” State v. Mandatory
Poster Agency, 168 N.H. 287, 293 (2015) (quotation omitted). Accordingly, we
conclude that the trial court erred by declining to apply a culpable mental state
to the “unlawful operation” element.

¶17 Next, we address the mental state applicable to the “unlawful
operation” element of RSA 263:64, V-a by examining the mens rea applicable to
comparable elements in the most similar statutory provisions in the overall
statutory scheme. See Mandatory Poster Agency, 168 N.H. at 293; Rollins-
Ercolino, 149 N.H. at 341. The defendant contends that “nothing about the fit
of RSA 263:64, V-a with other similar statutes would indicate that the
legislature intended to not require a knowingly mental state as to the conduct
constituting unlawful driving.” Specifically, the defendant asserts that the
coherence between the vehicular assault statute, the second degree assault
statute, and RSA 263:64, V-a requires the application of the “knowingly” mens
rea to the “unlawful operation” element. The State responds that comparing
RSA 263:64, V-a with the negligent homicide statute precludes the application
of the “knowingly” mens rea to this element because “accepting the defendant’s
proposed construction of RSA 26[3]:6[4] would require a more culpable mental
state for driving after revocation or suspension, death resulting, th[a]n a
conviction for negligent homicide.”

¶18 First, we consider the correlation between RSA 263:64, V-a and
RSA 630:3 (2016), the negligent homicide statute. We do not strictly construe
criminal statutes, but rather construe them according to the fair import of their
terms and to promote justice. RSA 625:3. RSA 630:3 establishes that “[a]
person is guilty of a class B felony when he causes the death of another
negligently.” RSA 630:3. According to the terms of this statute, a “criminal
negligence” mens rea is applicable to the conduct that causes the resulting
harm.

¶19 Similarly to RSA 630:3, RSA 263:64, V-a establishes a class B
felony for conduct that causes death or serious bodily injury. The statutes
address conduct that causes substantially the same type of harm and classify
the offenses in the same manner. Accordingly, reading RSA 263:64, V-a in
harmony with the negligent homicide statute supports the conclusion that the
conduct underlying the rule of the road violation that satisfies the “unlawful

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operation” element and causes or materially contributes to the resulting harm
should also be subject to a culpable mental state of criminal negligence.

¶20 Next, we consider the correlation between RSA 263:64, V-a and
RSA 265:79-a (2024), which establishes the offense of vehicular assault. The
defendant argues that these “two statutes form a coherent scheme of criminal
culpability” that supports the application of the “knowingly” mental state to the
“unlawful operation” element. Like RSA 263:64, V-a, RSA 265:79-a penalizes
conduct that causes death or serious bodily injury where the operation of the
vehicle causes or materially contributes to the collision. Specifically, RSA
265:79-a provides: “Any person who causes death or serious bodily injury . . .
while using a vessel or propelled vehicle . . . shall be guilty of a class A
misdemeanor, where such person’s negligent operation of the propelled vehicle
or vessel causes or materially contributes to the collision.” (Emphasis added.)

¶21 The defendant contends that:

When the State can[not] prove criminal negligence [pursuant to
RSA 265:79-a] as to the causing of the collision but can prove both
(1) that the driver’s license was suspended and (2) a knowing
violation of a rule of the road that materially contributed to the
causing of the collision, the State can win a conviction under RSA
263:64, V-a for a class B felony. In effect, to support the more
serious conviction, the elements of license suspension and a
knowing violation of a rule of the road substitute for the element of
criminal negligence.

(Emphasis added.) We are unpersuaded. As the defendant correctly observes,
RSA 265:79-a establishes a misdemeanor offense and RSA 263:64, V-a
provides for a felony-level offense. However, the additional elements that the
State must prove to convict under RSA 263:64, V-a independently justify the
more serious classification of the offense. Contrary to the defendant’s
argument, the application of a “knowingly” mens rea to the “unlawful
operation” element is not required for this purpose. Rather, the most
consistent interpretation of these statutes imports the culpable mental state
with respect to the “operation” element of the less serious offense established
by RSA 265:79-a into the “operation” element of the more serious offense under
RSA 263:64, V-a. Accordingly, the correlation between RSA 265:79-a and RSA
263:64, V-a supports the application of the “criminal negligence” mens rea to
the “unlawful operation” element.

¶22 Finally, we address the defendant’s argument that the coherence
between RSA 263:64, V-a and RSA 631:2, 1(a) (2016) requires the application
of a “knowingly” mens rea to this element. RSA 631:2, I(a) defines one of the
variants of second degree assault, providing that “[a] person is guilty of a class

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B felony if he or she . . . [k]nowingly or recklessly causes serious bodily injury
to another.” The defendant asserts that a “knowingly” mens rea must be
applicable to the conduct underlying the “unlawful operation” element of RSA
263:64, V-a because the statutes require proof of some of the same elements,
define comparably serious crimes, and RSA 631:2, I(a) applies at least a
“recklessly” mens rea to the defendant’s conduct that causes serious bodily
injury. We disagree.

¶23 The defendant correctly observes that RSA 263:64, V-a requires
proof of elements not necessary to sustain the charge under RSA 631:2, I(a).
These elements include driving after revocation or suspension and the
“unlawful operation” elements. See RSA 263:64, V-a; RSA 631:2, I(a). We
conclude that these separate, additional elements justify the shared class B
felony classification, even absent the application of the “knowingly” mental
state to the “unlawful operation” element. Accordingly, when we construe RSA
263:64, V-a in light of this and other similar statutory provisions, we conclude
that “criminal negligence” is the mens rea applicable to the conduct underlying
the rule of the road violation that satisfies the “unlawful operation” element of
the offense under RSA 263:64, V-a.

III. Conclusion

¶24 In light of the nature of the offense and overall statutory scheme,
we conclude that “criminal negligence” is the appropriate mens rea for the
“unlawful operation” element of RSA 263:64, V-a. Because the trial court’s jury
instructions did not include this material element when instructing the jury as
to the elements of the RSA 263:64, V-a offense, we reverse and remand.

Reversed and remanded.

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

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