State v. Robidoux

480 A.2d 67, 125 N.H. 169, 1984 N.H. LEXIS 360
CourtSupreme Court of New Hampshire
DecidedJuly 3, 1984
DocketNo. 83-297
StatusPublished
Cited by4 cases

This text of 480 A.2d 67 (State v. Robidoux) 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. Robidoux, 480 A.2d 67, 125 N.H. 169, 1984 N.H. LEXIS 360 (N.H. 1984).

Opinion

DOUGLAS, J.

The defendant appeals his convictions for burglary, RSA 635:1, and criminal mischief, RSA 634:2. He argues that his convictions both for burglary and for criminal mischief contravened the prohibition found in RSA 635:1, IV. He also argues that his right to a fair trial was violated when he appeared at the jury selection in identifiable prison clothing. For the reasons which follow, we affirm.

The defendant, Benjamin Robidoux, was indicted for burglary with intent to commit theft, a class A felony, and for criminal mischief, a class B felony. Before trial, the defendant moved to dismiss the indictment for criminal mischief, arguing that it was barred by RSA 635:1, IV, which prevents an accused from being convicted both for burglary and for the underlying crime to be committed after the illegal entry. The Superior Court (Johnson, J.) [171]*171denied the motion, subject to exception. At the close of the State’s case, the defendant again moved to dismiss the indictment for criminal mischief on the same ground. The court also denied this motion, noting the defendant’s exception. The jury found the defendant guilty of burglary, a class B felony, and criminal mischief, a class B felony. He was sentenced to two consecutive three-and-one half to seven year prison terms.

The evidence at trial established the following facts. On April 25, 1983, State Trooper Kevin Hamilton approached the home of Mitchell Rudnick in Thornton, New Hampshire. His attention was drawn to the rapidly spinning power meter on the side of the house. Upon inspection, he discovered gouge marks on the frame of the rear sliding glass door and a metal bar inside the house. Before entering the house, Hamilton observed that it “was ransacked and numerous things were disturbed, broken and otherwise wrecked inside the home.” An examination of the remainder of the house revealed that “everything in the house was broken and in shambles, ransacked [or] destroyed.”

Every electric light switch had been turned to the “on” position. All the electrical heating units had been turned to the highest degree and the control knobs broken off. The bedrooms and bathrooms had been extensively damaged. Food had been strewn throughout the house. Blood splatterings were found in several rooms and on shattered pieces of glass and mirrors. An insurance adjuster testified at trial that the damage to the contents of the house alone would amount to at least $12,500.

Mitchell Rudnick met with the State Police in late April and inventoried the contents of his home. He determined that a pair of fiber-soled hiking boots and a “CB” brand jacket were missing. He informed the police that a knife, a sweater, a pair of sneakers and a cap, which were found in his house, did not belong to any member of his family.

Fingerprints found in the Rudnick house were determined to match a print taken from the defendant. Certain testimony at trial linked the defendant to the items found in and taken from the Rudnick house. On the basis of this and other evidence, the defendant was convicted of burglary and criminal mischief. He appeals both convictions.

The defendant first argues that his conviction for criminal mischief must be reversed because it violates RSA 635:1, IV.

A person is guilty of burglary “if he enters a building . . . with purpose to commit a crime therein.” RSA 635:1, I. Subsection IV of the burglary statute states, however, that “[a] person may not be convicted both for burglary and for the offense which it was his [172]*172purpose to commit after the burglarious entry . . . unless the additional offense constitutes a class A felony.” RSA 635:1, IV.

In the instant case, the defendant was convicted both for burglary with intent to commit theft, and for a class B felony, criminal mischief. We must determine whether his conviction for criminal mischief violated RSA 635:1, IV. More specifically, we must decide whether RSA 635:1, IV bars a conviction both for burglary and for each offense, other than a class A felony, the accused intended to commit at the time of the burglarious entry.

The defendant argues that the meaning of RSA 635:1, IV is clear: Unless an offense intended at the time of the burglarious entry constitutes a class A felony, the accused may not be convicted both for burglary and for that offense. Consequently, the defendant contends that in order for the State to convict an accused both for burglary and for any offense that does not constitute a class A felony, it must prove that the intent to commit that offense was not present at the time of the burglarious entry.

On the other hand, the State argues that RSA 635:1, IV does not bar the defendant’s conviction both for burglary and for an offense which it was his purpose to commit at the time of the entry when that offense is not the “target” offense specified in the burglary indictment. In other words, the State reads subsection IV as merely precluding a conviction for both burglary and the intended offense specified in the burglary indictment, in this case theft.

We have not had occasion to construe RSA 635:1, IV in the past. We note, however, that the Commission for the Revision of the Criminal Laws, established by RSA chapter 451 (Supp. 1967), stated that the burglary statute was derived from the Model Penal Code section 221.1. See Report of Commission to Recommend Codification of Criminal Laws, 56 (1969). Accordingly, the commentary to section 221.1 of the Model Penal Code is helpful to a resolution of the issue presented. See Corson v. Brown Prods., Inc., 119 N.H. 20, 23, 397 A.2d 640, 642 (1979).

The commentary to section 221.1 states that section 221.1(3), the subsection from which RSA 635:1, IV was derived, “precludes cumulation of penalties for burglary and its object offense in all circumstances except where the object offense is itself a felony of the ... first degree.” Model Penal Code and Commentaries § 221.1, at 83 (1980) (emphasis added). The drafters did not designate the “object offense” as necessarily being the offense specified in the burglary indictment. Thus, it would appear, at first glance, that the only time a defendant may be convicted of burglary and any intended offense is when that offense constitutes a class A felony. A more careful [173]*173review of the purpose underlying the inclusion of subsection (3), however, leads to a different conclusion.

The drafters of the Model Penal Code viewed burglary as an attempt to commit some other crime, that is, a form of preparation to commit an offense. Id. at 62-63. Subsection (3) of the burglary provision was included to delineate the circumstances in which burglary would be treated in the same manner as other inchoate offenses. In the words of the drafters:

“Section 1.07(l)(b) of the Model Code is a general preclusion of conviction for both an offense and a form of preparation to commit that offense. Since burglary is defined as unlawful entry with purpose to commit a crime, it could be argued, in the absence of Subsection (3), that no cumulation of sentences for burglary and its object offense would be permitted. One major objective of Subsection (3) is to clarify this point and thus make it clear that cumulation is permitted in the specified cases.”

Id. at 83 n.80.

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Bluebook (online)
480 A.2d 67, 125 N.H. 169, 1984 N.H. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robidoux-nh-1984.