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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Hillsborough-northern judicial district No. 2009-624

THE STATE OF NEW HAMPSHIRE v. TIMOTHY SPADE Argued: June 15, 2010 Opinion Issued: November 30, 2010 Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant. BRODERICK, C.J. The State appeals an order of the Superior Court (Abramson, J.) dismissing indictments against the defendant, Timothy Spade, that charged him with several counts of aggravated assault under RSA 642:9, II (2007). We reverse and remand. The facts, briefly stated, are drawn from the trial court's order or otherwise are not in dispute. As an inmate at the Hillsborough County House of Correction, the defendant was indicted on six counts of aggravated assault by an inmate on a corrections staff member in violation of RSA 642:9, II. Three

indictments alleged that, while held in official custody and with the intent to harass a person he knew to be an employee of the department of corrections, the defendant purposely caused or attempted to cause such employee "to come into contact with feces by throwing such material saturated onto the floor thereby causing [such employee] to clean it up." Two other indictments alleged that, while held in official custody and with the intent to harass a person he knew to be an employee of the department of corrections, the defendant purposely caused or attempted to cause such employee "to come into contact with urine by expelling such material onto the floor thereby causing [such employee] to clean it up." The sixth indictment alleged that, while held in official custody and with the intent to harass a person he knew to be an employee of the department of corrections, the defendant purposely caused or attempted to cause such employee "to come into contact with feces by throwing such material underneath his cell door and onto the floor thereby causing [such employee] to clean it up." The indictments involved various dates and various corrections employees. The defendant moved to dismiss the indictments, arguing, in part, that the facts alleged were not sufficient to prove a violation of RSA 642:9, II because the indictments failed to allege that he had thrown or expelled feces or urine at a corrections officer. According to the defendant, the statute reaches conduct involving an inmate throwing or expelling certain bodily fluids and materials at a corrections officer, but not conduct resulting in employees cleaning up such substance. The State objected, contending that, by its plain meaning, the statute prohibits inmates from intentionally harassing corrections officers by causing or attempting to cause such an officer to come in contact with certain bodily fluids and materials. The trial court agreed with the defendant's interpretation of the statute and dismissed the indictments. In so doing, it reasoned that the statutory phrase "come in contact with" was ambiguous as to the nature of contact required in order to charge a person under RSA 642:9, II: "There are a number of potential methods of cleaning up the bodily substances . . . and not all of them would amount to `contact' under the `plain and ordinary meaning' ascribed by the State to that word. Exactly which methods, if any, constitute `contact' is unclear." After reviewing the legislative history, the trial court concluded that the nature of the contact prohibited in RSA 642:9, II addresses the problem of bodily fluids being thrown on or at DOC personnel, and the risk of disease associated with such actions. The threat posed by such conduct is obvious: DOC employees have no way to avoid the potential harm or to minimize the threat of disease posed by these substances when the substances are thrown or otherwise

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directed at or on the employees. By contrast, the indictments in this case allege that the defendant put feces and/or urine on the floor, and that DOC employees had to clean it up. There is nothing in the legislative history to support the claim that this kind of situation, in which the employees can take steps to minimize the risk of contracting diseases by using safe methods to clean the mess, was intended to be penalized under RSA 642:9, II as a Class B felony offense. . . . While such conduct is reprehensible, [it] is subject to punishment within the prison system, and may constitute some other offense, see, e.g., RSA 634:2 (2007), it is not an aggravated assault on a corrections staff member under RSA 642:9, II. The State appealed. Resolution of this appeal requires statutory interpretation, which is a question of law that we review de novo. State v. Kousounadis, 159 N.H. 413, 423 (2009). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Lamy, 158 N.H. 511, 515 (2009). We first examine the language of the statute, and, if possible, ascribe the plain and ordinary meaning to the words used. Kousounadis, 159 N.H. at 423. We interpret legislative intent from the statute as written and will neither consider what the legislature might have said nor add language that the legislature did not see fit to include. Lamy, 158 N.H. at 515. We also interpret a statute in the context of the overall statutory scheme and not in isolation. Id. If a statute is ambiguous, however, we consider legislative history to aid our analysis. Id. Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. Id. Finally, we construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. See RSA 625:3 (2007). The State argues that the statute prohibits any conduct in which an inmate causes or attempts to cause a corrections employee to come in contact with certain bodily substances by throwing or expelling any such substance with an intent to harass, threaten, or alarm, and that the trial court erred in inserting into the statute the extra requirement that the substance be thrown or expelled at an employee. The State contends that the legislative history does not compel a different construction of the statute. The defendant counters that the statute is susceptible to multiple meanings: "On the one hand, the language could mean only the type of conduct that arises when the prohibited materials are directed toward an officer or, in other words, where the inmate's act of throwing or expelling the material was the direct means of causing contact. . . . On the other hand, the statute could be read to include any form of contact by any means, no matter how indirect or remote from an inmate's

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act of throwing or expelling the material." He argues that the legislative history shows that "the legislature intended to proscribe only the type of contact that might occur when an inmate throws or expels the prohibited material at a corrections officer." Turning to the statute, RSA 642:9, II provides: An inmate is guilty of aggravated assault on a corrections staff member when, with intent to harass, threaten, or alarm a person whom the inmate knows or reasonably should know to be an employee of such facility, or an employee of the department of corrections, or an employee of any law enforcement agency, the inmate causes or attempts to cause such employee to come in contact with blood, seminal fluid, urine, or feces by throwing or expelling such fluid or material. Violation of this provision is a class B felony. RSA 642:9, IV. The statute prohibits an inmate from causing or attempting to cause a corrections department or law enforcement employee "to come in contact with" certain bodily substances "by throwing or expelling such fluid or material," when the inmate does so with the intent to harass, threaten or alarm. The statutory phrase "by throwing or expelling such fluid or material" anticipates that the inmate either throw or expel the bodily substance as the means of causing or attempting to cause the employee to "come in contact with" the substance thrown or expelled. Definitions of "contact" include "a union or junction of body surfaces : a touching or meeting," Webster's Third New International Dictionary 490 (unabridged ed. 2002), and "[a] coming together or touching, as of objects or surfaces," The American Heritage Dictionary of the English Language 395 (4th ed. 2006). See State v. Kelley, 153 N.H. 481, 483 (2006) (court consulted dictionary for guidance when considering the plain meaning of statutory terms). We disagree with the trial court's reading of the statute. The phrase "to come in contact with" is not ambiguous as to the nature of the contact, or the method of causing or attempting to cause contact, that is prohibited by the statute. Rather, the statute's plain language makes clear that the legislature intended the statute to apply whenever an inmate, with the requisite intent, throws or expels one of the enumerated bodily substances, causing or attempting to cause a corrections department or law enforcement employee "to come in contact with" that substance. Nothing in the statute's plain language requires the inmate to throw or expel such substance at an employee who is physically present. To read the statute in this manner would require adding words that the legislature did not see fit to include, e.g., "by throwing or expelling such fluid or material [at an employee]." Had the legislature intended

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to limit the statute in this way, it could have done so. Cf., e.g., Ky. Rev. Stat. Ann.

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