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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 ___________________________

Belknap No. 2009-703

THE STATE OF NEW HAMPSHIRE v. JENNIFER LONG Argued: October 28, 2010 Opinion Issued: January 13, 2011 Michael A. Delaney, attorney general (Thomas E. Bocian, 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. DUGGAN, J. Following her conviction for resisting arrest, see RSA 642:2 (Supp. 2010), the defendant, Jennifer Long, appeals a ruling of the Superior Court (McGuire, J.) permitting the State to impeach her credibility with her prior conviction for attempted fraudulent use of a credit card. We affirm. The jury could have found the following facts. On the evening of October 7, 2008, Officer Timothy Sullivan of the Alton Police Department was dispatched to 348 Main Street for a domestic disturbance complaint. While Officer Sullivan was speaking with an individual regarding the domestic

disturbance, Officer Tracy Tremblay arrived and spoke with the woman who made the domestic disturbance call. A car then pulled onto the property at high speed from which the defendant emerged, shouting obscenities at the two police officers. The defendant subsequently approached the officers in a "hostile and agitated" manner while they were attempting to handle the domestic disturbance complaint. She ignored several instructions from Tremblay to stop, and the officers eventually had to subdue her. Prior to trial, the State moved in limine to use the defendant's prior convictions for receiving stolen property and attempted fraudulent use of a credit card to impeach her if she chose to testify. The motion was granted without objection. Just prior to trial, we issued our opinion in State v. Holmes, 159 N.H. 173 (2009), which held that receiving stolen property is not a crime involving an act of dishonesty or false statement for purposes of New Hampshire Rule of Evidence 609(a)(2). On the day of trial the defendant asked the court to reconsider its prior ruling in light of the new decision. She argued that not only was the receiving stolen property conviction inadmissible, but so was the attempted fraudulent use of a credit card conviction. The defendant asserted that the statutory elements of an attempt crime do not require proof of an act of dishonesty or false statement. The trial court apparently relied upon the underlying charging documents, which alleged that the defendant knew she was using a credit card that was stolen and that she unsuccessfully tried to use the card. The defendant's motion was granted as to the receiving stolen property conviction but denied as to the attempted fraudulent use of a credit card conviction. At trial, the defendant took the stand in her own defense and was impeached with her prior conviction for attempted fraudulent use of a credit card. The jury convicted her of resisting arrest. This appeal followed. On appeal, the defendant first argues that the trial court erred when it looked beyond the statutory elements of attempted fraudulent use of a credit card to the facts underlying the conviction in determining admissibility under Rule 609(a)(2). Second, she argues that the crime of attempted fraudulent use of a credit card does not require proof of a dishonest act and that the conviction should have been inadmissible under Rule 609(a)(2). "We review a trial court's ruling to admit evidence of prior convictions under an unsustainable exercise of discretion standard." Holmes, 159 N.H. at 175. "To show an unsustainable exercise of discretion, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case." Id.

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This is the first occasion we have had to examine the amended version of New Hampshire Rule of Evidence 609(a)(2). In October 2007, Rule 609(a) was amended to mirror the 2006 amendment to Federal Rule of Evidence 609(a). Id. The amended rule provides in relevant part: For the purpose of attacking the character for truthfulness of a witness, evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. N.H. R. Ev. 609(a)(2). When interpreting a rule of evidence we will first look to the plain meaning of the words. Holmes, 159 N.H. at 175. Where the language is ambiguous, or where more than one reasonable interpretation exists, we will look to the rule's history to aid in our interpretation, consistent with New Hampshire Rule of Evidence 102. Id. We construe rules in their entirety, not piecemeal. Id. While decisions of the federal courts may be helpful in interpreting analogous New Hampshire Rules of Evidence, we are the final interpreter of our rules. Id. at 175-76. According to the plain language, the court must admit a witness's prior conviction for impeachment purposes "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." N.H. R. Ev. 609(a)(2). By the plain and ordinary meaning of the words used, the rule suggests that a court should look to what the State actually needed to prove to establish the elements of the crime. See 4 J. Weinstein & M. Berger, Weinstein's Federal Evidence

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