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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap

No. 2013-071

THE STATE OF NEW HAMPSHIRE

v.

PAUL A. COSTELLA

Argued: January 9, 2014

Opinion Issued: September 12, 2014

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney 

general, on the brief and orally), for the State.

Stephanie Hausman, senior assistant appellate defender, of Concord, on 

the brief and orally, for the defendant.

BASSETT, J. After a jury trial in the Superior Court (O’Neill, J.), the 

defendant, Paul A. Costella, was convicted on two counts of criminal 

threatening and one count of disorderly conduct arising out of an incident that 

took place at the Wal-Mart store located in Tilton. RSA 631:4 (2007 & Supp. 

2013); RSA 651:6, I(f) (2007); RSA 644:2 (2007). The two criminal threatening 

convictions were subject to an extended term of imprisonment under RSA 

651:6, I(f), the “hate crime statute.” On appeal, the defendant argues that the 

superior court erred when it: (1) denied his motion to dismiss the hate crime 
2

enhancement; and (2) excluded the testimony of his daughter that he was not 

motivated by hostility towards Judaism. We affirm. 

The jury could have found the following facts. On November 29, 2010, 

the defendant brought his car to Wal-Mart for an oil change. Jane Sylvestre, 

an employee in the automobile department, drove the defendant’s car into the 

service bay. While in the defendant’s car, Sylvestre saw a photograph of the 

defendant and his daughter in front of a red flag with a swastika on it. In the 

photograph, the defendant and his daughter were, as described by Sylvestre,

“doing the heil Hitler.” Sylvestre took offense because the Nazis had killed her 

uncle, who had been a member of the French resistance.

After parking the car in the service bay, Sylvestre returned to the service 

area, where she told the defendant that she had the right to refuse service to 

customers with whom she was uncomfortable. In response, the defendant 

asked Sylvestre if she was a Jew. Sylvestre testified that her response was 

along the lines of, “[W]hat’s it to you?” The defendant told Sylvestre that not 

enough Jews had been killed during World War II, and that “a good Jew is a 

dead Jew.” He then asked her if she had seen his “Jew killing gun” in the car. 

Sylvestre told the defendant that her uncle had been burned alive by the Nazis 

during World War II, and that her mother had been forced to watch. The 

defendant responded that he hoped that Sylvestre’s uncle — “that Jew bastard” 

— had suffered when he died. After the exchange, the defendant repeatedly

walked by Sylvestre, calling her a “gypsy Jew” and stating that the “worst thing 

in the world is a gypsy Jew. They didn’t kill enough Jews.” 

After the oil change had been completed, a second employee handed the 

car keys to the defendant. As Sylvestre started to process the invoice, the 

defendant asked her if she had seen his gun, saying, “It’s a Jew killing killer.”

He also accused Sylvestre of “wreck[ing]” his car because she was “a stupid 

Jew that doesn’t know how to drive a car.” The defendant then paid his bill. 

As he was leaving, the defendant declared — to no one in particular, but 

audibly, and within earshot of Sylvestre — that he was “getting his gun to kill 

the Jew b***h behind the counter.”

The defendant then walked past the second employee and asked him 

what he thought of Jews. When the employee replied that Jews did not bother 

him, the defendant stated that “we should kill them all starting with the 

woman behind the counter,” and referred to “why [he] keeps a gun underneath 

[his] front seat.” 

Jonathan Allard, a store manager, overheard that conversation. Allard

also had heard the defendant talk about his “Jew killing gun” as well as his 

threats to kill. The defendant then started speaking to Allard, raising his voice 

and asking Allard whether he was Jewish. The defendant appeared agitated. 

Allard did not respond. The defendant told Allard that he was going to kill 
3

“both of you Jews,” and he again stated that he had his “Jew killing gun” in the 

car. Allard understood that the defendant was referring to him and Sylvestre. 

Allard then told the defendant to leave the store and informed him that the 

police would be called. The defendant left the premises, and the police arrived 

shortly thereafter. The police investigated the incident and arrested the 

defendant.

The defendant was indicted for disorderly conduct and charged with two 

counts of criminal threatening, one count for his statements to Sylvestre, and

the other for his statements to Allard. Prior to trial, the State notified the 

defendant that pursuant to the hate crime statute it would seek enhanced 

penalties on the criminal threatening charges. The hate crime statute provides, 

in pertinent part:

I. A convicted person may be sentenced according to paragraph III if the 

jury also finds beyond a reasonable doubt that such person:

. . .

(f) Was substantially motivated to commit the crime because of 

hostility towards the victim’s religion, race, creed, sexual orientation 

as defined in RSA 21:49, national origin or sex . . . .

RSA 651:6, I(f). In addition, RSA 651:6, III (Supp. 2013) states: “If authorized 

by paragraph I or II, and if written notice of the possible application of this 

section is given the defendant at least 21 days prior to the commencement of

jury selection for his or her trial, a defendant may be sentenced to an extended 

term of imprisonment.” 

At the close of the State’s case, the defendant moved to dismiss all 

charges, as well as the hate crime sentencing enhancement, arguing as to the 

latter that the “State has to prove beyond a reasonable doubt that [the 

defendant’s] actions, if, indeed, he did them, was [sic] motivated by the victim’s 

religion. No testimony was given that [the defendant] was told by any of the 

witnesses that they were, indeed, Jewish.” The State countered that “the fact 

that a victim is a member of one of those [statutorily] protected classes is not 

an element of the offense.” The trial court denied the defendant’s motion. The

jury convicted the defendant of all charges, including the two counts of

enhanced criminal threatening. This appeal followed. 

The defendant raises two issues on appeal. First, he argues that the 

evidence offered at trial was insufficient to prove that, pursuant to the hate 

crime statute, RSA 651:6, I(f), he was substantially motivated to commit the

crime of criminal threatening because of hostility towards Sylvestre’s and 

Allard’s religion. He contends that there was no evidence that either Sylvestre

or Allard is Jewish. Second, he argues that the trial court erred when it 
4

excluded the testimony of his daughter that he was not motivated by hostility 

towards Judaism. 

I. Sufficiency of the Evidence

We first address whether the evidence was sufficient to establish that the 

defendant was substantially motivated to commit the crime of criminal 

threatening because of hostility towards Sylvestre’s and Allard’s religion. The 

defendant argues that the hate crime statute requires the State to prove the 

victims’ actual religion, and that the statute would not apply if the defendant 

were “motivated by hostility towards a religion to which he reasonably [but 

mistakenly] believed the victim ascribed.” He contends that neither Sylvestre 

nor Allard told him that she or he is Jewish, and, further, that there was no 

evidence adduced at trial that either actually is Jewish. The State counters

that it is required only to prove that the defendant was substantially motivated 

to commit the crime because of hostility against a protected class, not that the 

victim was actually a member of that class. Alternatively, the State argues 

that, even if we were to adopt the defendant’s interpretation of the hate crime 

statute, we must nonetheless affirm the sentence enhancement on the count

involving Sylvestre because the State introduced sufficient evidence to prove 

beyond a reasonable doubt that she is Jewish.

In order to prevail on a challenge to the sufficiency of the evidence, “a 

defendant must show that no rational trier of fact, viewing all of the evidence 

and all reasonable inferences from it in the light most favorable to the State, 

could have found guilt beyond a reasonable doubt.” State v. Noucas, 165 N.H. 

146, 151 (2013) (quotation omitted). Here, resolution of the sufficiency issue 

requires that we first engage in statutory interpretation, after which we assess 

the sufficiency of the evidence introduced at trial. 

“The interpretation of a statute is a question of law, which we review de

novo.” State v. Gagne, 165 N.H. 363, 370 (2013). “In matters of statutory 

interpretation, we are the final arbiters of the intent of the legislature as 

expressed in the words of a statute considered as a whole.” Id. “When 

examining the language of the statute, we ascribe the plain and ordinary 

meaning to the words used.” Id. “We interpret legislative intent from the 

statute as written and will not consider what the legislature might have said or 

add language that the legislature did not see fit to include.” Id. “We construe 

the Criminal Code according to the fair import of its terms and to promote 

justice.” Id. (quotation and brackets omitted).

The issue before us is the meaning of the phrase “the victim’s religion,”

as used in RSA 651:6, I(f). The defendant argues that, because the hate crime 

statute requires the State to prove that the defendant was substantially 

motivated because of hostility towards the victim’s religion, the State is 

required to prove two distinct elements: first, the actual religion of the victim, 
5

and, second, that it was hostility towards the victim’s religion that

substantially motivated the defendant to criminally threaten the victim. He 

contends that construing the statute to require only that the crimes be

motivated by the defendant’s perception of the victim’s religion adds the word 

“perceived” to the statute, which the legislature did not see fit to include. 

The State counters that the plain language of the hate crime statute

enhances the punishment for bias-based crimes, and thus requires only that 

the State prove that the defendant was substantially motivated to commit the 

crime because of hostility towards a protected class; here, the protected class 

consists of members of the Jewish faith. It further argues that it is the 

defendant, rather than the State, who is advocating for a construction that 

adds words to the statute. It contends that the defendant’s interpretation 

would require the addition of the word “actual” to the statute, and establish a 

requirement which the legislature did not see fit to include: that the defendant 

had knowledge of the victim’s actual status. 

We conclude that because both proffered interpretations of the statute 

are reasonable, the statute is ambiguous. See State v. Lathrop, 164 N.H. 468, 

470 (2012). Under such circumstances, we turn to the legislative history to aid 

in our interpretation of the meaning of the statutory language. See id. Here, 

however, a review of the legislative history is unavailing. See N.H.H.R. Jour.

656-57 (1990); N.H.S. Jour. 719-20 (1990).

Nonetheless, “[w]e construe statutes to address the evil or mischief that 

the legislature intended to correct or remedy.” Lathrop, 164 N.H. at 470. The 

State’s interpretation of the hate crime statute — enhancing a punishment 

because the defendant selected a victim based on the defendant’s perception of 

the victim’s membership in the protected class — is consonant with the 

fundamental purpose of hate crime penalty enhancement statutes in general, 

and of RSA 651:6, I(f) in particular: to recognize and punish the greater harm 

that bias-motivated crimes inflict upon society and individual victims. As the 

United States Supreme Court observed in regard to the Wisconsin hate crime 

statute:

[T]he Wisconsin statute singles out for enhancement bias-inspired 

conduct because this conduct is thought to inflict greater 

individual and societal harm. For example, according to the State 

and its amici, bias-motivated crimes are more likely to provoke 

retaliatory crimes, inflict distinct emotional harms on their victims, 

and incite community unrest. The State’s desire to redress these 

perceived harms provides an adequate explanation for its penaltyenhancement provision over and above mere disagreement with 

offenders’ beliefs or biases. 
6

Wisconsin v. Mitchell, 508 U.S. 476, 487-88 (1993) (quotation and citations 

omitted); see also In re Joshua H., 17 Cal. Rptr. 2d 291, 299 (App. Ct. 1993) 

(explaining that “[t]he ‘basis’ for punishing violent crimes directed against 

members of a racial, religious, or other specified group more severely than 

randomly inflicted violent crimes is that such crimes inflict greater injury upon 

the victim and society at large and existing criminal statutes and penalties 

have been inadequate to stop them”). “[I]t is but reasonable that among crimes 

of different natures those should be most severely punished, which are the 

most destructive of the public safety and happiness”: a category into which 

bias-motivated crimes fall. Mitchell, 508 U.S. at 488 (quotation omitted); see

Gilbert & Marchand, Note, Splitting the Atom or Splitting Hairs—The Hate 

Crimes Prevention Act of 1999, 30 St. Mary’s L.J. 931, 933-34 (1999) (“Hate 

crimes are not only injurious to the individual victim, but they also fracture a 

surrounding community, creating a pervasive disharmony among citizens.”); 

Pfeiffer, Note, To Enhance or Not to Enhance: Civil Penalty Enhancement for 

Parents of Juvenile Hate Crime Offenders, 41 Val. U. L. Rev. 1685, 1692-93 

(2007) (“In addition to its significant effects on victims, hate crime imposes 

even greater effects on the community. . . . [T]he surrounding community 

suffers increased psychological trauma similar to that suffered by victims.”). 

The significant community harm resulting from a hate crime flows from 

the defendant’s bias-motivated actions, rather than the victim’s actual status 

as a member of a protected class. See U.S. Department of Justice, Hate Crime 

Data Collection Guidelines and Training Manual 7, 8, 20 (Dec. 19, 2012), 

available at http://www.fbi.gov/about-us/cjis/ucr/data-collection-manual

(defining “bias crime,” including the following note: “Even if the offender was 

mistaken in his or her perception that the victim was a member of the group he 

or she was acting against, the offense is still a bias crime because the offender 

was motivated by bias against the group.”). Society is harmed by a biasmotivated crime regardless of whether the victim is, in fact, a member of the 

protected class that the defendant has targeted. Indeed, in this case, the 

crimes committed by the defendant had a pernicious impact on the community 

independent of whether Sylvestre and Allard are, in fact, Jewish.

Moreover, “it is not to be presumed that the legislature would pass an act 

leading to an absurd result and nullifying to an appreciable extent the purpose 

of the statute.” State v. Williams, 143 N.H. 559, 562 (1999) (quotation and 

brackets omitted). We note that, were we to interpret the hate crime statute to 

require the State to prove the victim’s actual status, i.e., his or her religion, 

race, creed, or national origin, an absurd result could follow because every 

prosecution under the statute would require a trial within a trial. How would a 

jury determine a victim’s race, creed or religion? What evidence would a jury 

consider in order to determine whether a victim is Jewish? Would a jury 

consider how often a victim attends synagogue, or whether one or both of a

victim’s parents were Jewish, or whether the victim’s grandparents were 

Jewish? How would a jury determine whether a victim is a Native American, or 
7

the race of a biracial victim? “We think it unlikely that [the legislature]

intended that . . . courts engage in these unwieldy inquiries.” Mississippi ex. 

rel. Hood v. AU Optronics Corp., 134 S. Ct. 736, 743-44 (2014) (declining to 

construe diversity jurisdiction statute in such a way as to render its 

requirements “an administrative nightmare that Congress could not possibly 

have intended”). In contrast, requiring the State to prove that the defendant 

was motivated by his or her hostility towards a victim’s perceived religion leads 

to a straightforward and easy-to-administer process. Cf. id. 

The defendant next observes that, although the legislature in 2012 added 

language in RSA 21:49 (2012) that explicitly provided for enhanced sentences 

for crimes motivated by hostility towards a victim’s perceived sexual 

orientation, it did not explicitly define “the victim’s religion” in the hate crime 

statute to encompass a victim’s perceived religion. RSA 21:49 states in part 

that “sexual orientation” means “having or being perceived as having an 

orientation for heterosexuality, bisexuality, or homosexuality.” (Emphasis 

added.) The defendant contends that the use of this language in RSA 21:49

means that the continuing absence of such language regarding religion in the 

hate crime statute is indicative of the fact that the legislature intentionally 

chose not to provide for enhanced punishment for crimes motivated by hostility 

towards the victim’s perceived religion. The State counters that the 

legislature’s use of the word “perceived” in a statutory provision enacted seven 

years after the hate crime statute — in a separate chapter of the state statutes

— is irrelevant to an inquiry as to the intent of the legislature when it enacted

the hate crime statute. We agree with the State.

“Statutory context includes earlier-enacted statutes, but does not include 

later-enacted statutes.” State v. Neff, 265 P.3d 62, 65 (Or. App. 2011). Indeed, 

“[i]f — as in this case — two statutes are involved, the rationale for the later 

one cannot automatically be transformed by some thaumaturgical feat of 

rhetorical prestidigitation into the rationale for the preexisting one.” Denny v. 

Westfield State College, 880 F.2d 1465, 1470 (1st Cir. 1989). RSA 21:49 was 

enacted in 1997 as part of comprehensive legislation prohibiting discrimination 

based upon sexual orientation. See Laws 1997, 108:1, : 2; cf. Laws 1997,

108:16 (amending the hate crime statute to include a reference to RSA 21:49). 

In contrast, RSA 651:6, I(f) was enacted in 1990 as a hate crime penalty 

enhancement. See Laws 1990, 68:1. Accordingly, we conclude that the

statutory definition of sexual orientation — enacted seven years after the hate 

crime statute — cannot, and does not, shed light on the legislature’s intent 

when it enacted the hate crime statute.

The defendant further supports his statutory interpretation by 

comparing our hate crime statute with statutes from other states. He argues 

that because statutes in a number of other states refer explicitly to the “actual 

or perceived” protected status of the victim, see 720 Ill. Comp. Stat. 5/12-7.1

(2002 & Supp. 2012), or to a crime committed “because of” a protected status, 
8

without identifying a victim, see, e.g., N.J. Stat. Ann. § 2C:16–1 (2005 & Supp. 

2011), the absence of such terminology in our own statute must indicate the 

legislature’s intent to enhance the penalty only when the victim was accurately 

targeted as an actual member of a protected class. We are not persuaded. 

The mere fact that some states use the word “perceived” in their hate 

crime statutes, while our legislature has not chosen to use the word 

“perceived,” does not affect our analysis: Although the perceived status of the 

victims is explicitly stated in the statutes of other states, as we explained 

above, that basic concept is implicit in our statute. Our task here is to 

interpret our hate crime statute; the language in other states’ statutes is of 

little assistance. Second, we cannot find, nor has the defendant cited, any case

in which a court has interpreted a hate crime statute that, like ours, does not 

explicitly refer to the defendant’s perception of status as a motivating factor as 

requiring the State to prove the victim’s actual religion. 

Accordingly, we hold that pursuant to RSA 651:6 the State must prove

only that a defendant was substantially motivated to commit a crime because 

of his hostility towards the victim’s perceived “religion, race, creed, sexual 

orientation . . . , national origin or sex,” and that it need not prove the actual

status of the victim.

Having construed RSA 651:6, we now address the defendant’s challenge 

to the sufficiency of the evidence. Specifically, we examine whether the

defendant has demonstrated that no rational trier of fact, viewing all the

evidence and all reasonable inferences from it in the light most favorable to the 

State, could have found beyond a reasonable doubt the defendant was

substantially motivated to commit the crime because of hostility towards

Judaism, and that he perceived that Sylvestre and Allard were Jewish. See

Noucas, 165 N.H. at 151. The defendant argues that the evidence was 

insufficient to prove that either victim is Jewish. However, as we have 

explained, the State was not required to prove that the victims are, in fact,

Jewish. The defendant does not argue that the evidence was insufficient to 

prove that he was substantially motivated to commit the crimes because he 

perceived Sylvestre and Allard to be Jewish. Indeed, given the evidence 

adduced at trial, such an argument would not be supportable. Accordingly, 

the defendant’s sufficiency argument fails, and we conclude that the trial court 

did not err in denying the defendant’s motion to dismiss the hate crime

enhancement. 

II. Character Evidence

We next address whether the trial court erroneously excluded testimony

offered at trial by the defendant to show that he was not motivated to act 

because of hostility towards the victims’ religion. 
9

During the testimony of the defendant’s daughter, counsel for the 

defendant asked, “Can you describe your relationship that you have with [your 

father]?” The State objected on the ground of relevance. The defendant offered 

this explanation to the trial court: “It’s background. And the State is also 

seeking to enhance this with the hate crime statute. Under [New Hampshire 

Rule of Evidence 404(a)] I can seek to provide evidence that there is no motive 

and that [the daughter] has knowledge regarding that.” The trial court 

sustained the objection, stating, “Talk about the picture, but as far as the rest 

of it, it’s not relevant.”

The defendant contends that the trial court erred because the daughter’s 

testimony would have shown that the defendant “did not have the character 

trait of being motivated by hostility towards Judaism.” The State responds that 

the trial court did not err because defense counsel’s “proffer failed to identify a 

pertinent trait of character that might have been admissible under Rule 

404(a)(1).” We agree with the State.

“We review challenges to a trial court’s evidentiary rulings under our 

unsustainable exercise of discretion standard and reverse only if the rulings 

are clearly untenable or unreasonable to the prejudice of a party’s case.” 

Noucas, 165 N.H. at 158 (quotation omitted). “In determining whether a ruling 

is a proper exercise of judicial discretion, we consider whether the record 

establishes an objective basis sufficient to sustain the discretionary decision 

made.” Id. “The defendant bears the burden of demonstrating that the trial 

court’s ruling was clearly untenable or unreasonable to the prejudice of his 

case.” Id.

Although character evidence is generally not admissible, N.H. R. Ev.

404(a), it is admissible if it is evidence of “a pertinent trait of character offered 

by an accused, or by the prosecution to rebut the same.” N.H. R. Ev. 404(a)(1). 

Nonetheless, “[i]n order to predicate error on a trial court’s ruling excluding 

evidence, the proponent of the evidence bears the burden of making a 

contemporaneous offer of proof sufficient to apprise the court of the specific 

nature of the excluded evidence.” Noucas, 165 N.H. at 158; see also N.H. R. 

Ev. 103(b). 

Rule 103(b)(2) states: 

Error may not be predicated upon a ruling which admits or 

excludes evidence unless a substantial right of the party is affected, 

and

. . . 
10

(2) Offer of proof. In case the ruling is one excluding 

evidence, the record indicates that the substance of the evidence 

was contemporaneously made known to the court by offer of 

proof.

N.H. R. Ev. 103(b)(2). “The object of Rule 103(b) is to advise the trial judge of a 

claim of error so that it can be addressed before any damage is beyond 

correction in the trial court.” Noucas, 165 N.H. at 158 (quotation and brackets 

omitted). It is “the defendant’s burden to make a sufficiently specific offer of 

proof as to the substance of the expected testimony to satisfy the trial court 

that what he sought to elicit” was relevant. Id.; accord United States v. Adams,

271 F.3d 1236, 1241 (10th Cir. 2001) (explaining that “merely telling the court 

the content of proposed testimony is not an offer of proof. In order to qualify as 

an adequate offer of proof, the proponent must, first, describe the evidence and 

what it tends to show and, second, identify the grounds for admitting the 

evidence.” (citations, quotations and ellipsis omitted)); People v. Morrison, 101 

P.3d 568, 586 (Cal. 2004) (“Evidence is properly excluded when the proponent 

fails to make an adequate offer of proof regarding the relevance or admissibility 

of the evidence.”); see also Bohan v. Ritzo, 141 N.H. 210, 218 (1996) (offer of 

proof must set “forth the specific basis for admissibility of the proffered 

evidence”).

Here, the defendant failed to make a sufficiently specific offer of proof. 

Defense counsel asked a question that sought to elicit a statement 

characterizing the daughter’s relationship with the defendant, which the trial 

court ruled to be irrelevant. Defense counsel represented that the daughter

had knowledge that the defendant had no motive, but counsel never apprised 

the trial court as to the substance of the daughter’s expected testimony. 

Indeed, on appeal, the defendant acknowledges that counsel never explained to 

the trial court whether the daughter would offer opinion, reputation, or specific 

instances of character testimony. Nor did trial counsel explain how the 

question to which the State objected would elicit specific testimony relevant to 

the defendant’s motive, or the lack thereof, or to a pertinent trait of character 

admissible under Rule 404(a)(1). Given that trial counsel failed to make a

sufficiently specific proffer, we conclude that the defendant is precluded from 

raising this issue on appeal. See So. Willow Properties v. Burlington Coat 

Factory of N.H., 159 N.H. 494, 503 (2009) (offer of proof needed to preserve 

issue for appeal).

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.