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New Hampshire Supreme Court: State’s Armed Career Criminal Statute Applies Only When Qualifying Convictions Arise From at Least 3 Separate Criminal Episodes

by Douglas Ankney

The Supreme Court of New Hampshire held that the state’s armed career criminal statute (codified at RSA 159:3-a) applies only to persons whose qualifying convictions arise from three or more separate criminal episodes.

Jonathan Folds allegedly sold 50 grams of heroin to a “cooperating individual” (“CI”). Based on the CI’s controlled purchases, the police obtained a warrant to search Folds’ residence. During the course of the search, police found a firearm. Folds was charged, inter alia, with violating RSA 159:3-a based on a burglary conviction from 2015 and three drug-offense convictions resulting from a search of his home in 2012. Folds moved to dismiss the charge, arguing that his prior felonies were insufficient as a matter of law to satisfy the statute’s requirements. The trial court granted Folds’ motion, and the State appealed.

The Supreme Court observed that it is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. State v. Allain, 194 A.3d 950 (N.H. 2018). The Court construes statutes according to the fair import of their terms and to promote justice. In re Justin D., 743 A.2d 829 (N.H. 1999). The Court’s goal is to apply statutes in light of the legislature’s intent and in light of the policy sought to be advanced by the entire statutory scheme. State v. Lathrop, 58 A.3d 670 (N.H. 2012).

When interpreting a statute, the Court first looks to the language itself and, if possible, construes the language according to its plain, ordinary meaning. Allain. If the language is ambiguous, the Court reviews the legislative history to aid its analysis. Lathrop. RSA 159:3-a states, “No person who has been convicted of any combination of 3 or more felonies in this state or any other state under homicide, assault, sexual assault, arson, burglary, robbery, extortion, child pornography, or controlled drug laws, shall own or have in his possession or under his control, a pistol, revolver, rifle, shotgun, or any other firearm.”

The State argued that RSA 159:3-a doesn’t require the qualifying convictions to arise from three or more criminal episodes.

According to the State, the words “any combination” were interpreted by the Michigan Supreme Court in Michigan’s habitual offender statute to mean “any combination of convictions must be counted” and did not suggest “that the felony convictions must have arisen from separate incidents.” People v. Gardner, 753 N.W.2d 78 (Mich. 2008).

But Folds countered that the words “any combination” were placed in the statute to mean that any combination of convictions under the several categories could be counted as long as these convictions were from separate incidents. In other words, a homicide, an assault, and a drug conviction from three separate incidents would qualify, but without the words “any combination,” only three homicides or three assaults, etc. would qualify.

The Supreme Court found that since both constructions were reasonable it was necessary to consult the legislative history because the statute is ambiguous. That history, titled Armed Career Criminals, was enacted in 1989 as a result of House Bill (HB) 699-FN. Laws 1989, CH. 295. The bill is entitled “an act prohibiting the possession of firearms by career criminals and imposing a mandatory minimum sentence.”

Throughout testimony before the House and Senate Judiciary Committees, repeat offenders were emphasized. According to the testimony, the state statute was modeled after a federal law that requires the qualifying convictions to arise from “occasions different from one another.” 18 U.S.C. § 924(e)(1). Additionally, the testimony showed that the words “any combination” were added “to include persons convicted of any combination of crimes as listed.”

The Court concluded that the legislative history supported Folds’ interpretation and revealed it was the legislative intent that the qualifying convictions must arise from three or more separate incidents.

Accordingly, the Court affirmed the trial court’s order dismissing the armed career criminal indictments. See: State v. Folds, 2019 N.H. LEXIS 166 (2019). 

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