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                 THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Cheshire
No. 2014-0299


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                JASON CZEKALSKI

                            Argued: February 16, 2017
                           Opinion Issued: April 11, 2017

      Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.


      Jason Czekalski, the defendant, filed a supplemental brief with
permission of the court.

        DALIANIS, C.J. The defendant, Jason Czekalski, appeals his convictions
on two counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2,
I(l) (1996) (amended 2003), II (1996) (amended 1999), and one count of pattern
AFSA, see RSA 632-A:2, III (2016), following a jury trial in Superior Court
(Kissinger, J.). On appeal, he argues that the trial court erred by denying his
motion to suppress evidence related to a January 2013 telephone call between
the defendant and the victim, recorded by the police with the victim’s consent.
See RSA 570-A:6 (2001), :7 (Supp. 2014) (amended 2015), :9, IX (2001). He
asserts that suppression was warranted because the recording was not “done
in such way as [would] protect the recording from editing or other alterations.”
RSA 570-A:9, VII(a) (2001); see RSA 570-A:6 (providing that “[w]henever any
telecommunication or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be
received in evidence in any trial . . . if the disclosure of that information would
be in violation of this chapter”).

       In his supplemental brief filed with court permission, the defendant
argues that the trial court also erred when it denied his motion to continue the
trial. The defendant further argues, under our plain error rule, see Sup. Ct. R.
16-A, that the trial court should have dismissed two of his indictments because
they were defective and the trial court erred when it allowed a juror to be
seated who allegedly failed to complete a juror questionnaire. We affirm.

I. Recorded Telephone Call

      A. Relevant Facts

      In January 2013, the State Police recorded a telephone conversation
between the defendant and the adult victim. Before doing so, the police
obtained authorization from the Office of the New Hampshire Attorney General
to record the call. The police recorded the call pursuant to that authorization
and with the victim’s consent.

       In the recorded call, the defendant and the victim discussed his conduct
when the victim was a child. The victim told the defendant that she had begun
to see a counselor to talk about “[w]hat [the defendant] did to [the victim] when
[she] was growing up.” During the conversation, the defendant admitted that,
when the victim was a child, he once digitally penetrated her, twice touched
her “privates,” and touched her breasts. The defendant told the victim that he
did not know why he engaged in this conduct. He said, “I still can’t come up
with any kind of explanation that makes sense . . . [o]ther [than] I was weak
and I let evil rule me till I found a counselor who would do things anonymously
so he did not have to report me.” The defendant told the victim that he was “so
sorry.”

       Thereafter, the defendant was arrested. In his subsequent police
interview, the defendant admitted that he once digitally penetrated the victim,
touched her pubic hair, partially removed her underwear, and “probably”
touched her breasts “probably . . . in the same time period” during which he
partially removed her underwear.


                                         2
       A Cheshire County grand jury indicted the defendant on several charges,
including: (1) a charge alleging that he had committed AFSA when he
purposely penetrated the victim digitally when she was younger than 13 years
old; (2) a charge alleging that he had committed AFSA when he intentionally
touched the victim’s genitalia without penetration when she was younger than
13 years old; and (3) a charge alleging that the defendant had engaged in a
pattern of AFSA when he touched the victim’s breasts on more than one
occasion in 1995, when she was younger than 13 years old, “under
circumstances that can reasonably be construed as being for purposes of
sexual arousal or gratification.” See RSA 632-A:2, I(l), II, III.

      Before trial, the defendant moved to suppress evidence from the recorded
telephone call and “any evidence obtained as fruit of the poisonous tree” on the
ground that the recording was not “done in such way as will protect [it] from
editing or other alterations.” RSA 570-A:9, VII(a). The State objected to the
motion, arguing that the statutory language upon which the defendant relied
did not apply to the recorded communication in this case. The trial court
agreed with the State.

       At trial, the victim, who was born in 1983, testified that the defendant
“molested [her] while [she] was growing up,” including when she was 11 and 12
years old. The victim testified that, when she was asleep, the defendant “would
come into [her] room and would remove parts of [her] clothing and he would
rub [her] breasts and [her] vagina, and he stuck his fingers inside of [her]
sometimes.” The victim testified that “every time he was done[,] he would
whisper into [her] ear, ‘It was just a dream, just a sweet, sweet dream,’ and
then he would leave the room.” The victim testified that she “would pretend
that [she] was sleeping because [she] was so scared.” The victim estimated that
the defendant molested her “probably around ten times.” She testified that the
defendant last molested her when her mother was in the hospital giving birth
to her brother.

       The victim was questioned about the recorded telephone call during both
direct and cross-examination. She reviewed a transcript of the call and agreed
that all of the defendant’s statements shown in the transcript were “consistent
with the things that he said” during the call. The recording of the call was then
played for the jury and the transcript of the call was published to the jury.

       The State Police detective who listened to the telephone call between the
victim and the defendant was also questioned about it. He explained that “a
cell phone was utilized” to make the call “and a simple digital recorder with an
ear piece” was used to record it. He testified that “when somebody places [the]
phone call, they have an ear piece . . . that picks up both whoever’s making the
call and [to whom] they’re making the call.” In addition, the detective wore “a
set of earphones,” so that he could “actually listen to the phone conversation
while it’s taking place.” The detective testified that he heard “everything that


                                       3
[the victim] said” as well as “what was said on the other end of the call” by the
defendant.

      After the State rested, the defendant chose to testify. He, too, was
questioned about the recorded telephone call. He confirmed certain of the
statements that he made during the call, although he also testified that his
memories of his conversation with the victim were “vague.”

      On direct and cross-examination, the defendant explained, rather than
refuted, the statements he made during the recorded call. For instance, he told
the jury that when he was answering the victim’s questions during the
telephone call, he believed that her questions concerned how he handled an
alleged incident between the victim and her brother. He also testified that,
during the call, he “was forced into a position of having to agree with what [the
victim] said” because, he explained, “when [the victim] gets upset, . . . you
cannot argue with her, you have to agree with what she’s saying until she
calms down.” Additionally, he testified that he was intoxicated during the
telephone call. The defendant did not testify that either the recording or the
transcript of the recording was inaccurate.

      B. Discussion

       On appeal, the defendant argues that the trial court erred when it ruled
that the statutory requirement that a recording “be done in such way as will
protect [it] from editing or other alterations,” RSA 570-A:9, VII(a), did not apply
to the recorded communication at issue. To resolve this issue, we must engage
in statutory interpretation, which presents a question of law. State v.
Washington, 168 N.H. 689, 692 (2016). In doing so, we review the trial court’s
statutory interpretation de novo. See id.

       In matters of statutory interpretation, we are the final arbiter of
legislative intent as expressed in the words of the statute considered as a
whole. State v. MacMillan, 152 N.H. 67, 70 (2005). We first examine the
language found in the statute and ascribe the plain and ordinary meanings to
the words used. Id. If the statute’s language is clear and unambiguous, we do
not look beyond it to discern legislative intent. Id. Furthermore, we interpret
statutes in the context of the overall statutory scheme and not in isolation. 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.

      The New Hampshire Wiretapping and Eavesdropping statute, RSA
chapter 570-A, makes it unlawful for a person to “[w]ilfully intercept[ ] . . . any
telecommunication or oral communication” except as specifically provided in
RSA chapter 570-A “or without the consent of all parties to the
communication.” RSA 570-A:2, I(a) (2001). However, “RSA chapter 570-A


                                         4
allows the police, when investigating [statutorily-]enumerated activities, to
intercept communications without judicial authorization when a police officer
is a party to the communication or a party to the communication consents to
the interception,” State v. Kilgus, 128 N.H. 577, 589 (1986), and the police
have obtained prior authorization for the interception from the attorney
general’s office, see RSA 570-A:2, II(d). In all other circumstances, “the police
must obtain judicial authorization” before intercepting communications.
Kilgus, 128 N.H. at 589.

       RSA 570-A:2, II(d) sets forth the conditions under which the police may
intercept communications without a court order. Under RSA 570-A:2, II(d), the
police must: (1) be investigating an offense that is enumerated in RSA chapter
570-A; (2) be a party to the communication or have obtained the prior consent
of a party to it; and (3) have obtained authorization for the interception from
the attorney general or his designee. See RSA 570-A:2, II(d). In the instant
case, there is no dispute that those conditions were met: (1) AFSA is one of the
offenses enumerated in RSA chapter 570-A, see RSA 570-A:7; (2) the police
obtained the victim’s prior consent to the interception; and (3) the attorney
general or his designee authorized the interception. See State v. Kepple, 151
N.H. 661, 665 (2005) (discussing a one-party intercept of a conversation
between the victim and the defendant to investigate the crime of AFSA).

      RSA 570-A:9 (2001) “sets forth the procedures for applying for a court
order approving the interception of a telecommunication or oral
communication.” MacMillan, 152 N.H. at 73. The defendant bases his
argument on the first two sentences of subparagraph VII(a) of RSA 570-A:9,
which provide:

             The contents of any telecommunication or oral
      communication intercepted by any means authorized by this
      chapter shall, if possible, be recorded on tape or wire or other
      comparable device. The recording of the contents of any
      telecommunication or oral communication under this paragraph
      shall be done in such way as will protect the recording from editing
      or other alterations.

RSA 570-A:9, VII(a) (emphases added). The defendant asserts that, when those
two sentences are read together, it is clear that the requirement that a
recording “be done in such way as will protect [it] from editing or other
alterations” applies to all interceptions allowed under RSA chapter 570-A, not
just to court-ordered interceptions. Id. We disagree.

      The sentence upon which the defendant relies does not apply to
interceptions allowed by RSA 570-A:2, II(d). The second sentence of
subparagraph VII(a) applies only to recordings made under “this paragraph,”



                                        5
meaning paragraph 9 of RSA chapter 570-A. Id. By its plain terms, the second
sentence does not apply to recordings made pursuant to RSA 570-A:2, II(d).

       Moreover, while the first sentence of RSA 570-A:9, VII(a) discusses
communications “intercepted by any means authorized by this chapter,” the
second sentence discusses only communications recorded “under this
paragraph.” Id. (emphases added). When interpreting a statute, “[w]e must
give effect to all words in a statute, and presume that the legislature did not
enact superfluous or redundant words.” State v. Burke, 162 N.H. 459, 461
(2011). Thus, we must presume that the legislature intended the words
“chapter” and “paragraph” to have different meanings. In context, the word
“chapter” refers to RSA chapter 570-A and the word “paragraph” refers to
paragraph 9 of RSA chapter 570-A. Accordingly, assuming without deciding
that the first sentence applies to the communication at issue because it was
intercepted by a means “authorized by this chapter,” we, nonetheless, conclude
that the second sentence does not apply because the communication was not
recorded “under this paragraph.” RSA 570-A:9, VII(a).

II. Arguments in the Defendant’s Supplemental Brief

      A. Motion to Continue

       The defendant argues that the trial court erred by denying the motion to
continue that he filed on the first day of trial. In that motion, the defendant
argued that he had been transferred from the Cheshire County House of
Corrections in Keene to the New Hampshire State Prison in Concord
approximately two weeks earlier. He contended that he had “not been provided
with paper, pens, or his legal files,” while at the prison in Concord, which
“made it impossible for him to assist counsel in his own defense.” He argued
that “[d]epriving [him] of access to his legal file[s], especially on the eve of trial”
impaired his ability to assist counsel. He further argued that removing him
from Keene to Concord “without advising [him], or his counsel, essentially
deprive[d] him [of] access to counsel.” Accordingly, the defendant asked the
court to continue the trial.

       The trial court denied the defendant’s motion, stating: “The matter has
been pending for some time. It was continued once already. And critical to
[the court’s] determination was the statement by [defense counsel] that he was
prepared to go forward with the trial.” Nevertheless, the court stated that it
“would make whatever accommodations are reasonably necessary” to facilitate
communications between the defendant and his counsel “during the course of
the trial.” The court told defense counsel: “[T]o the extent you want time or
[the defendant] needs additional time to speak with you, just let me know and
we’ll make any and all reasonable accommodations for that.” The court also
stated that it would “make sure that throughout the course of proceedings that



                                           6
that additional time is provided so that [defense counsel] can confer with [the
defendant].”

      The decision to grant or deny a motion for a continuance is within the
sound discretion of the trial court. State v. Addison, 160 N.H. 792, 795 (2010).
We will not overturn that decision unless it constitutes an unsustainable
exercise of discretion. Id.

       On appeal, the defendant focuses upon the alleged illegality of his
transfer from the county jail in Keene to the state prison in Concord. He
asserts that the transfer was orchestrated by the prosecutor in retaliation for
his having sued Cheshire County, and, thus, constituted prosecutorial
overreaching. He also argues that the transfer interfered with his rights to
counsel and to participate meaningfully in his own defense. Moreover, he
asserts, for the first time, that the transfer denied him access to medications
that “could, even theoretically, interfer[e] with [his] right to participate in his
own defense.”

       The issue before us, however, is not whether the transfer was unlawful.
It is whether the trial court unsustainably exercised its discretion when it
denied the defendant’s motion for a continuance. As the defendant’s appellate
arguments do not address that issue, he has failed to persuade us that the trial
court’s decision constituted an unsustainable exercise of discretion.

      B. Indictments

      In his supplemental brief, the defendant challenges one of his AFSA
indictments and an indictment for felonious sexual assault (FSA) under our
plain error rule, see Sup. Ct. R. 16-A. In response to the defendant’s post-
conviction motion for a new trial, the trial court vacated the defendant’s
conviction on the FSA charge. Accordingly, we confine our review to the
defendant’s challenges to the AFSA indictment.

       The AFSA indictment at issue alleged that the defendant “intentionally
touched (without penetration) — directly, through clothing or otherwise — the
genitalia of [the victim] . . . a person under the age of 13, under circumstances
that can be reasonably construed as being for purposes of sexual arousal or
gratification.” The defendant argues that this indictment violated the Ex Post
Facto Clauses of the State and Federal Constitutions, see N.H. CONST. pt. I,
art. 23; see also U.S. CONST. art. I, § 9, cl. 3, § 10, cl. 1, because it contained
the phrase “directly, through clothing or otherwise,” which was not added to
the pertinent statute until 1999, after the alleged offense occurred. Compare
RSA 632-A:2, II (a person is guilty of AFSA without penetration when he
“intentionally touches the genitalia of a person under the age of 13”), with RSA
632-A:2, II (2016) (a person is guilty of AFSA without penetration when he
“intentionally touches whether directly, through clothing, or otherwise the


                                          7
genitalia of a person under the age of 13”). He asserts that, because the
language in the indictment did not reflect the language of the statute in effect
at the time of the alleged offense, the trial court erred by failing to dismiss the
indictment.

      Plain error should be used sparingly, its use limited to those
circumstances in which a miscarriage of justice would otherwise result. State
v. Pennock, 168 N.H. 294, 310 (2015). To find plain error: (1) there must be
an error; (2) the error must be plain; (3) the error must affect substantial
rights; and (4) the error must seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Id. Here, we cannot conclude that the trial
court erred.

       We first address the defendant’s claim under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
33 (1983). Part I, Article 23 of the New Hampshire Constitution forbids ex post
facto penal laws: “Retrospective laws are highly injurious, oppressive, and
unjust. No such laws, therefore, should be made . . . for . . . the punishment of
offenses.” A law or application of a law is ex post facto if it “makes an action
done before the passing of the law, and which was innocent when done,
criminal, and punishes such action; or aggravates a crime, and makes it
greater, than it was when committed; or changes the punishment, and inflicts
greater punishment, than the law annexed to the crime when committed.”
State v. Matthews, 157 N.H. 415, 418 (2008) (quotation omitted).

       The defendant premises his ex post facto argument upon the assumption
that, before RSA 632-A:2, II was amended in 1999, a person did not commit
AFSA by intentionally touching the genitalia of a person younger than 13 years
old through clothing. That assumption is incorrect. In fact, the pre-1999
version of RSA 632-A:2, II did criminalize the intentional touching of the
genitalia of a person younger than 13 years old through clothing. See State v.
Dixon, 144 N.H. 273, 283-84 (1999), abrogated on other grounds by State v.
Quintero, 162 N.H. 526 (2011). In Dixon, we determined that the reference in
the pre-1999 version of RSA 632-A:2, II to “intentional touching” was “not
limited to skin-to-skin touching” and included the “touching of genitalia over
clothes.” Id. at 283, 284.

       Thus, contrary to the defendant’s assertions, by including the phrase
“directly, through clothing or otherwise,” the AFSA indictment did not
criminalize conduct that was innocent at the time of the alleged offense, and,
therefore, did not violate the State Ex Post Facto Clause. See Matthews, 157
N.H. at 418. Because the Federal Constitution offers the defendant no greater
protection than does the State Constitution under these circumstances, we
reach the same result under the Federal Constitution as we do under the State
Constitution. See Doe v. State of N.H., 167 N.H. 382, 396 (2015) (observing
that “[t]he protection afforded against ex post facto penal laws under both


                                         8
article I, section 10 of the Federal Constitution and part I, article 23 of the New
Hampshire Constitution is the same” (quotation omitted)).

      C. Juror Issue

      The defendant alleges that one of the jurors who sat on his trial was
seated without having completed a juror questionnaire. He contends that, by
seating the juror, the trial court violated RSA 500-A:7, I (Supp. 2016), which
provides:

            I. Any prospective juror who does not submit a completed
      juror qualification form as instructed shall be directed by the clerk
      to appear at the court to complete the juror qualification form.

             II. At the time of his or her appearance for jury service, or at
      the time of any interview before the court or clerk, a prospective
      juror may be required to complete another juror qualification form
      in the presence of the court or clerk. The prospective juror may
      then be questioned, but only with regard to his or her responses to
      questions contained on the form and grounds for his or her excuse
      for disqualification. Any information acquired by the court or clerk
      at such time shall be noted on the juror qualification form.

The defendant raises this argument under our plain error rule. See Sup. Ct. R.
16-A. Because we conclude that the defendant has not demonstrated that any
error occurred, we hold that the trial court did not commit plain error when it
seated the juror in question.

       In assessing alleged violations of the juror selection statute, we first
determine whether the actions complained of constituted violations of the
statutory jury selection procedures, see RSA ch. 500-A (2010 & Supp. 2016),
and then consider whether any deviations from the statutory procedure, taken
as a whole, resulted in substantial noncompliance with the statute. State v.
Ayer, 150 N.H. 14, 33 (2003). “The burden of making a prima facie case for
substantial noncompliance is on the defendant.” Id. (quotation omitted). “In
most cases the defendant must show the irregularities constituted such
material departures from the statutory provisions as to prejudice his rights.”
Id. (quotation omitted).

      The defendant has failed to establish that the juror in question was
seated without having completed a juror questionnaire. Because the defendant
did not raise this argument in the trial court and, therefore, the trial court
made none of the pertinent factual findings, we may find that the juror was
seated without having completed a juror questionnaire “only if a reasonable
finder of fact could not [have found] differently as a matter of law.” New
Canaan Bank & Trust v. Pfeffer, 147 N.H. 121, 127 (2001); see State v. Sawyer,


                                         9
145 N.H. 705, 706 (2001) (noting that “when a lower tribunal has not
addressed a factual issue, but the record reveals that a reasonable fact finder
necessarily would reach a certain conclusion, we may decide that issue as a
matter of law” (quotation omitted)).

      Based upon the record submitted for our review, we are unable to find,
as a matter of law, that the juror in question failed to complete the
questionnaire before she was seated. Thus, even if seating a juror who failed to
complete a juror questionnaire were to constitute “substantial noncompliance”
with the requisites of RSA 500-A:7, I, we cannot determine on the record before
us that this occurred. Ayer, 150 N.H. at 33.

     We have reviewed the defendant’s remaining arguments in his
supplemental brief and conclude that they do not warrant further discussion.
See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

                                                  Affirmed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




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