State v. Donohue

834 A.2d 253, 150 N.H. 180, 2003 N.H. LEXIS 158
CourtSupreme Court of New Hampshire
DecidedOctober 24, 2003
DocketNo. 2002-641
StatusPublished
Cited by24 cases

This text of 834 A.2d 253 (State v. Donohue) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Donohue, 834 A.2d 253, 150 N.H. 180, 2003 N.H. LEXIS 158 (N.H. 2003).

Opinion

NADEAU, J.

The defendant, Robert Donohue, was convicted after a jury trial in Superior Court (Smukler, J.) of reckless second-degree assault and conspiracy to commit second-degree assault. See RSA 626:8 (1996) (amended 2001); RSA 629:3 (Supp. 2002); RSA 631:2 (1996). Donohue appeals only the conspiracy conviction, arguing that the trial court erred in denying his motion to dismiss the indictment on the ground that one cannot conspire to commit reckless second-degree assault. We reverse the conspiracy conviction.

The jury could have found the following facts. At approximately 1:00 a.m. on March 24, 2001, Jason Lonergan and Christopher Burke left a bar in Laconia. As they were leaving, they noticed a woman crying and asked if she was all right. Meanwhile, the woman’s boyfriend, Donohue, left the bar and approached the two men, stating that “she [is] with me, and she’s all set.” The conversation between Donohue and Lonergan escalated into an argument.

Shortly thereafter, the argument ended and Donohue told Lonergan and Burke that he was going inside to get his brother. Donohue entered the bar and retrieved his half-brother, Joe Gardner. At first, Donohue simply told Gardner, “We’ve [sic] leavin’.” On their way out of the bar, Donohue mentioned to Gardner that there were a couple of guys with whom he had argued and who he thought wanted to fight.

[182]*182When Donohue and Gardner left the bar, Lonergan and Burke were no longer there. Donohue testified that he and Gardner walked to Donohue’s van, which was located in the Citizens Bank parking lot. Meanwhile, Lonergan and Burke, who were also walking through the parking lot, heard an angry “hey.” "When they turned around, Lonergan was punched by Donohue while Burke was punched by Gardner.

As a result of this incident, Donohue was charged with one count of second-degree assault, and one count of conspiracy to commit second-degree assault. The first count alleged that Donohue did in concert with and aided by Gardner, recklessly cause bodily injury to Lonergan. The second count alleged that Donohue, with the purpose that an assault be committed, agreed with Gardner to commit a reckless assault, and committed one or more overt acts in furtherance of the conspiracy. Following a jury trial, he was convicted on both counts.

On appeal, Donohue argues that it is legally impossible to be convicted of conspiracy to commit reckless assault because one cannot conspire to recklessly cause a particular harm. He contends that under New Hampshire law, conspiracy requires that the defendant possess a purposeful mental state with respect to every element of the underlying crime. In doing so, Donohue urges us to adopt the position of the Model Penal Code.

A person is guilty of conspiracy if, with a purpose that a crime defined by statute be committed, he agrees with one or more persons to commit or cause the commission of such crime, and an overt act is committed by one of the conspirators in furtherance of the conspiracy.

RSA 629:3,1. Conspiracy punishes the agreement to commit or cause the commission of a crime. State v. Chaisson, 123 N.H. 17, 24 (1983). To establish liability for conspiracy, the State must demonstrate that the defendant had a true purpose to effect the criminal result. State v. Ayer, 136 N.H. 191, 194 (1992).

Here, Donohue was charged and convicted of conspiracy to commit a reckless second-degree assault. A person is guilty of second-degree assault if he “recklessly causes serious bodily injury to another.” RSA 631:2,1(a). “A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.” RSA 626:2,11(c) (1996).

[183]*183We have recognized that our Criminal Code is largely derived from the Model Penal Code. See State v. Dufield, 131 N.H. 35, 39 (1988). For this reason, we have looked to the Model Penal Code commentaries for guidance when interpreting analogous New Hampshire statutes. See id.; State v. Robidoux, 125 N.H. 169, 172-74 (1984). Once again, the commentary to the Model Penal Code is instructive. The section concerning conspiracy explains:

[I]n relation to those elements of substantive crimes that consist of proscribed conduct or undesirable results of conduct, the Code requires purposeful behavior for guilt of conspiracy, regardless of the state of mind required by the definition of the substantive crime. If the crime is defined in terms of prohibited conduct, such as the sale of narcotics, the actor’s purpose must be to promote or facilitate the engaging in of such conduct by himself or another. If it is defined in terms of a result of conduct, such as homicide, his purpose must be to promote or facilitate the production of that result. Thus, it would not be sufficient ... if the actor only believed that the result would be produced but did not consciously plan or desire to produce it.

Model Penal Code § 5.03 comment 2(c)(1) at 407 (Official Draft and Revised Comments 1985). This commentary makes clear that in order to be guilty of conspiracy, a person must engage in purposeful behavior, even if the underlying crime requires a lower mens rea. Here, the State charged Donohue with a reckless assault, which plainly requires a lower standard of culpability than the conspiracy statute. See RSA 629:3; RSA 626:2,11(a) (1996) (“A person acts purposely with respect to a material element of an offense when his conscious object is to cause the result or engage in the conduct that comprises the element.”).

The Model Penal Code commentary also addresses substantive crimes that involve a reckless state of mind:

[W]hen recklessness or negligence suffices for the actor’s culpability with respect to a result element of a substantive crime, as for example when homicide through negligence is made criminal, there could not be a conspiracy to commit that crime. This should be distinguished, however, from a crime defined in terms of conduct that creates a risk of harm, such as reckless driving or driving above a certain speed limit. In this situation the conduct rather than any result it may produce is the element of the crime, and it would suffice for guilt of conspiracy that the [184]*184actor’s purpose was to promote or facilitate such conduct — for example, if he urged the driver of the car to go faster and faster.

MODEL Penal code § 5.03 comment 2(c)(i) at 408. This section of the commentary explicitly recognizes that one cannot conspire to commit a crime where mere recklessness or negligence with respect to a result element suffices for the actor’s culpability. See also W. LaFave, Substantive Criminal Law § 12.2(c) at 278 (2d ed. 2003) (“[T]here is no such thing as a conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result.”).

Numerous state courts have followed the reasoning set forth in the Model Penal Code to conclude that one cannot conspire to accomplish an unintended result. See People v. Swain, 909 P.2d 994, 997-1001 (Cal. 1996) (conspiracy to commit reckless murder not a crime); Palmer v. People, 964 P.2d 524, 528-30 (Colo.

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Bluebook (online)
834 A.2d 253, 150 N.H. 180, 2003 N.H. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donohue-nh-2003.