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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2018

- 0551

THE STATE OF NEW HAMPSHIRE

v.

BRIAN ELDRIDGE

Argued: January 14, 2020 Opinion Issued: February 19, 2020

Gordon J. MacDonald , attorney general ( Danielle H. Sakowski

, senior

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

Christopher M. Johnson

, chief appellate defender , of Concord , on the

brief and orally, for the defendant.

DONOVAN , J. The defendant, Brian Eldridge, appeals his convictions, following a jury trial in the Superior Court ( Kissinger , J.), o n one c ount each o f possession of a controlled drug

, see RSA 318

- B:2, I (2017) , and being a felon in possession of a firearm, see RSA 159:3 (2014)

. He argues that the trial court erred by : (1) concluding that the immunity afforded by RSA 318

- B:28

- b (2017) does not apply to the offense of possession with intent to sell a controlled drug

,

see RSA 318

- B:2, I ; (2) requiring him to waive t hat statutory immunity before instructing the jury on the lesser included offense of possession; and (3) denying his motion to suppress evidence. W e conclude that the immunity provided by RSA 318

- B:28

- b does not extend to the offense of possession with

intent to sell . However, we vacate the defendant’s conviction for possession2

because we hold th at, under the circumstances in this case , the defendant wa s entitled to both an instruction on the offense of possession and the statutory immunity

. We also conclude that the police officers ’ initial warrantless entry
into the defendant’s apartment was justified by the emergency aid exception to the warrant requirement

.

I. Facts

The following facts are supported by the record. At app roximately 10:15 p.m. on May 3 , 2017, Concord Police Officer Gorham was dispatched to an apartment at 28 Pierce Street in response to a 911 call reportin g that the defendant may have overdosed and, as a result, was un conscious and not breathing. Gorham arrived at the apartment simultaneously with the Concord Fire Department. The firefighters and EMTs entered the apartment just ahead

of Gorham and began t reating the defendant, who was lying on the living room floor. Gorham proceeded to the kitchen, where she encountered the defendant’s girlfriend

. The girlfriend reported t hat she observed the defendant “shoot[] up” what she suspected was heroin and fall to the ground. Several minutes after Gorham arrived at the apartment, two other officers arrived, including Officer Levesque.

At that time, the Concord Police D epartment did not require its officers to

carry Narcan , a medication that reverses the effect of opioid overdoses, and

none of the three officers who initially responded to the scene provided any medical treatment to the defendant

. The EMTs administered multiple doses of

Narcan to the defendant and successfully revived him

. At some poi nt while th e defendant was being treated

, a member of the Fire Department handed Levesque a fabric bag, in which Levesque observed small plastic bags and pills. Levesque was also handed an open wooden box , which he described as a “drug kit,” that contained syringes, a spoon, and a small plastic bag

. After the firefighters and EMTs left the apartment, Levesque entered the living room and observed ammunition cans and a “somewhat transparent” case in which he perceived something resembling the barre l of a firearm.

The police subsequently applied for a warrant to search the apartment. During their search, they found two knives, a dismantled firearm, 9.7 grams of fentanyl, a scale, a large number of small plastic bags, drug use paraphernalia

, and over $7,000

. The defendant was indicted on one count each of possession of fentanyl with intent to sell and being a felon in possession of a firearm, and two counts of being a felon in possession of a deadly weapon

, see RSA 159:3

. 1

The defendant moved t o dismiss the indictments, arguing that RSA 318

- B:28

- b , III, immunized him from prosecution becau se he was the subject of a good faith request for medical assistance while he was experiencing a drug

1 It was undisputed at trial that the defendant had previously been convicted of a felony.3

overdose and the evidence underlying the indictments was obtained as a direct result of that request

. The trial court denied the defendant’s motion. It

concluded that the statutory langua ge only immunizes a defendant from the

arrest, prosecution , and conviction of the controlled drug offenses of

“ possessing ” and “having under his or her control

, ” a nd none of the charged

crimes fell under the statute’s immunity provisions

. See RSA 318

- B:28

- b , II,

III

. The court also noted that, although the evidence underlying his

indictments was discovered as a result of the request for medical assistance, the statute expressly provides that it shall not be construed to limit the authority of the police to arrest a person for an offense not immunized by paragraphs II or III. See RSA 318

- B:28

- b, IV.

The defendant then moved to suppress the evidence seized as a result of

the search of his apartment , arguing , in part, that the search violated his right

to be free from unreasonable searches u nder Part I, Article 19 of the State

C onstitution a nd the Fourth Amendment to the Federal C onstitution

. The trial court denied the defendant’s motion, concluding , among other things, that the police officers’ initial entry into his apartment was justified under the emergency aid excep tion to the warrant requirement

. The trial court fu rther concluded that the officers’ initial entry into the apartment was not primarily motivated to seize evidence because their presence was also necessary to secure the scene and protect first responders from dangers commonly associated with responses to overdose calls.

Prior to trial , the defendant raised the possibility that he would argue to the jury that he possessed the fentanyl without intent to sell it. The State acknowledged that it i s “axiomat ic” that possession is a lesser included offense

of possession with intent to sell , but argued that the defendant would waive the immunity provided by RSA 318

- B:28

- b if he requested a jury instruction on possession

. The defendant asserted that if the jury found that the State only proved possession, then the statute mandated that its verdict be set aside. The trial court postponed ruling on the issue to consider the arguments during the jury trial

.

Before closing arguments, the trial co urt ruled that, if the defendant requested a jury instruction on possession, he was required to waive the immunity afforded by RSA 318

- B:28

- b. In reaching its decision, the trial court primarily relied on Commonwealth v. Shelley

, 80 N.E.3d 335 (Mass. 2017), and

State v. LaPlante , 117 N.H. 417 (1977). It found “very compelling” the “notion of the importance of the ju ry process being a rational one, ” and conclude d that

allow ing the jury to deliberate on an offense for which the defe ndant could not be convicted called into question the process’s rationality. The defendant objected to the trial court’s ruling but ultimately opted to waive the immunity and the jury was instructed on the offense of possession.4

T he jury found the defendant not guilty of possession of fentanyl with

intent to sell

, but guilty of the lesser included offense of possession of fentanyl

. It also found the defendant guilty of being a felon in possession of a firearm

, and not guilty on both counts of being a felon in possession of a deadly

weapon. This appeal followed.

II. Analysis

A. Offenses Immunized by RSA 318

- B:28

- b

The defendant first argues that the statutory immunity afforded by RSA

318

- B:28

- b applies to all crimes enumerated in RSA 318

- B:2 with “possession”

as an inherent element. He asserts that the statute is ambiguous, and the legislative history supports his argument that the legislature intended to bring

with in the statute’ s scope all crimes with the actus reus of possession,

includin g the offense of possession with intent to sell a controlled drug . We disagree.

The interpretation of a statute presents a question of law, and we

therefore review a trial court’s interpretation of a statute de novo

. State v.

Mfata neza , 172 N.H. 166, 1 69 (2019). When interpreting a statute, we look first to the statutory language and, if possible, construe that language according to its plain and ordinary meaning , in the context of the entire statutory scheme

. Id . We neither ignore the statute’s lang uage nor add words that the legislature did not include. Id

. We are the final arbiters of the legislature’s intent as expressed in the words of the statute

. Id

. Only when the statutory language is ambiguous do we look to the legislative history to aid in

our interpretation

. See State v. Lathrop , 164 N.H. 468, 470 (2012 ). Further,

w e construe provisions of the Criminal C ode “according to the fair import of

thei r terms and to promote justice.” RSA 625:3, :7 (2016)

.

I n 2015, the legislature added the “ Immunity from Liability ” statute to the Controlled Drug Act. RSA 318

- B:28

- b; see Laws 2015, 218:2. A s relevant here, the statute protects a person who “is exper iencing a drug overdose” and “is the subject of a good faith request for medical assistance.” RSA 318

- B:28

- b,

III. The statute prohibits such a person from being “arrested, prosecuted, or convicted for possessing, or having under his or her control, a controlled drug

in violation of RSA 318

- B:2 , if the evidence for the charge was gained as a proximate result of the request for medical assistance

. ” Id

.

RSA 318

- B:2, I, makes it unlawful for a person to, among other things, “manufacture, possess , have u nder his control , sell, purchase, prescribe, administer, or transport or possess with intent to sell . . . a ny controlled drug.” 2 (Emphases added.) The language in RSA 318

- B:2, I, indicates that

2 Other p arts of RSA 318

- B:2 make it unlawful for a person to commit other offenses with possession as an actus reus . For example, RSA 318

- B:2, II, makes it unlawful for a person to5

“possess ,” “have under his control

, ” and “possess with inte nt to sell” are distinct offenses

. See Marcotte v. Timberlane/Hampstead School Dist. , 143 N.H. 331, 338

- 39 (1999) (noting that commas between enumerated elements and before the conju nction “and” generally indicate discrete elements); see also

State v. Sti les , 128 N.H. 81, 88 (1986) ( treating possession of a controlled drug and possession with intent to sell a controlled drug as discrete offenses). The immunity statute explicitly references two offenses found in RSA 318

- B:2: “possessing” and “having under his or her control.” RSA 318

- B:28

- b, II, III. The alignment between the two offenses listed in the immunity statute and

their enumeration as discrete offenses in RSA 318

- B:2, I

, demonstrate that the legislature intended the immunity’s scope to encompass only the offenses of

“ possessing ” and “having under his or her control.”

Thus, although possession is a component of the offense of possession with intent to sell, the statutory language is not ambiguous and does not

suppor t the defendant’s broad reading that would extend the immunity to that

offense

. See Johnson v. City of Laconia , 141 N.H. 379, 380 (1996) ( refusing to read “parking lots” into statutory language that explicitly and unambiguously

immuniz es municipalities from liability for injuries sustained on “public highways, bridges, or sidewalks,” despite acknowledging that parking lots and the enumerated areas may be “functionally related” ). If the legislature desired the immunity to apply to other o ffenses involving possession, it would have explicitly listed them in the statute

. We will not add an offense to the statute that the legislature did not include

. See id

. Because the statutory language is unambiguous, we need not look to the legislative history to aid in our interpretation

. Accordingly, we conclude that the immunity statute does not extend to the offense of possession with intent to sell a controlled drug.

We recognize, from the immunity statute’s language

, a legislative intent

to encourage those experiencing , or witnessing someone experiencing, an

overdose to request medical assistance in order to save the lives of overdose

victims

. The defendant argues that our interpretation frustrates this intent

because individuals , unsure of whether the State will charge them with an

offense to which the immunity statute applies, will be discouraged from calling

for medical assistance during an overdose

. As the defendant acknowledges, however, t he statute’s language does not indicate a n inten t to preclude all law

enforcement pursuit of possible charges stemming from an overdose in favor of encouragi ng calls for medical assistance . If such were the case , the legislature would have provided blanket immunity from arrest, prosecution, and

conviction for any criminal charges resulting from a good faith request for

medical assistance during an overdose.

Instead, the legislature immunized two discrete offenses, as discussed above, and the statute expressly provide s that it shou ld not be construed to

“possess with intent to deliver . . . drug paraphernalia” under certain conditions.6

limit: (a ) “the admissibility of evidence in connection with the investigation or prosecution of a crime involving a person who is not protected as provided in paragraphs II or III” ; (b ) “the lawful seizure of any evide nce or contraband” ; or (c ) “the authority of a law enforcement officer to detain . . . a person as part of a criminal investigation, or to arrest a person for an offense not protected by the provisions of paragraphs II or III.” RSA 318

- B:28

- b, IV. Thus, the statutory language balances the legislative goal to encourage calls for medical assistance

with law enforcement interests in investigating other crimes by immunizing certain offenses while allowing others to be investigated and prosecuted

. O ur interpretation accords with the balance struck by the legislature

.

B. Required Waiver of the Immunity Statute

We next consider the defendant’s argument that the trial court erred by requiring him to waive the immunity provided by RSA 318

- B:28

- b before

i nstructing the jury on the offense of possession. For the reasons that follow,

we conclude tha t when : (1) a defendant is tried on the offense of possession of a controlled drug with intent to sell ; (2) instructing the jury on the lesser

included offense of possession of a controlled drug is appropriate ; and (3) RSA

318

- B:28

- b applies

, then a defendant is entitled to both a jury instruction on possession and the statutory immunity.

This case presents a matter of first impression for this court

. While

courts in other jurisdictions have yet to resolve t his precise issue, they have

considered a similar question

— whether a defendant who is tried for murder may be required to waive the statute of limitations bar to a manslaughter

conviction before the jury is instructed on that lesser included offense

. See

, e.g. , Spaziano v. Florida , 468 U.S. 447, 450, 454 (1984 ), overruled on other grounds by Hurst v. Florida , 136 S. Ct. 616 (2016) ; Shelley , 80 N.E.3d at 337;

State v. Delisle , 648 A.2d 632 , 637 (Vt. 1994); State v. Short , 618 A.2d 316,

318 (N.J. 1993)

.

Based upon our canvass of these cases, we describe t he following three approaches that have emerged

. First, t he United States Supreme Court and the Massachusetts Supreme Judicial Court have held that the F ederal and

Massachusetts C onstitutions , respectively, are not offended when a defendant

is made to choose between : (a) preserving the statute of limitations bar to a manslaughter conviction with no jury instruction on that offense ; or (b) waiving

the statute of limitations and receiving the manslaughter instruction. Spaziano , 468 U.S. at 454

- 57 ; Shelley , 80 N.E.3d at 337

- 40

. Second, t he New Jersey Supreme Court has held that a defendant must receive the benefit of

both a jury instruction on manslaughter and the statute of limitations bar to a conviction on that offense because courts may not “unilaterally nullify” the legislature’s decision to enact a statute of limitations

. Short

, 618 A.2d at 319

- 21 ; see State v. Muentner , 406 N.W.2d 415, 417

- 20 (Wis. 1987) ( holding that

the jur y must be instructed on the lesser included, time

- barred offense of7

manslaughter , and that if the defendant is found guilty of that offense the trial court may not enter a judgment of conviction )

. Third, t he Vermont Supreme Court, taking what we perceive to be a middle path, has held that a defendant

must elect between : (a) preserving the statute of limitations bar to a

mansla ughter conviction and forgoing the manslaughter instruction ; or (b) receiving the manslaughter instruction coupled with an instruction that

, because of the statute of limitations, the jury must acquit the defendant if it

finds that he or she committed manslaughter. Delisle , 648 A.2d at 634. 3 Under the circumstances in this case, we believe that the New Jersey approach is consistent with our jurisprudence.

The defendant frames his argument in terms of statutory interpretation, asserting that nothing in RSA 318

- B:28

- b authorized the trial court to require

him to waive the immunity before ins tructing the jury on possession . T he

State

, on the other hand, relying on Spaziano , 468 U.S. at 455, and Shelley , 80

N.E.3d at 338

- 39, frames its argument in term s of State and F ederal due

process , see N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV, asserting that neither require d the trial court to instruct the jury on an offense for which

the defendant could not be convicted

. We ag ree with the defendant that our resolution of this issue is compelled by RSA 318

- B:28

- b’s language

.

As explained above, we review a trial court’s interpretation of a statute de

novo

. Mfataneza , 172 N.H. at 169. We look first to the statutory language a nd, if possible, construe that language according to its plain and ordinary meaning, in the context of the entire statutory scheme. Id

. We neither ignore nor add to

the statute’s language. Id

.

The immunity afforded by RSA 318

- B:28

- b explicitly applies to the

offense of “ possessing

. . . a controlled drug

. ” RSA 318

- B:28

- b , II, III ; see RSA

318

- B:2, I

. The immunity itself is stated as a simple command : a person who

falls within the statute’s ambit “shall not be arrested, prosecuted, or

convicte d .” RSA 318

- B:28

- b , II, III (emphasis added). Once the jury found that

the defendant had committed the offense of possessing a controlled drug

, the statutory language prohibited him from being convicted of that offense. See

Short , 618 A.2d at 3 19

- 20 ( concluding that statutes of limitations are “binding

on the courts” and bar the conviction of a defendant whom the jury finds guilty

of a lesser included and time

- barred offense ). Nothing in RSA 318

- B:28

- b’s language suggests that the immunity does not ap ply to a defendant who is charged with possession with intent to sell

, but whom the jury finds guilty of only possession after it is instructed on that lesser included offense.

3 Both the New Jersey Supreme Court and Massachusetts Supreme Judicial Court rejected the

Vermont approach. Short , 618 A.2d at 321

- 24 (reasoning that “telling the jury that [the] defendant would go free if convicted of manslaughter . . . all but invite[s] the jury to disregard the manslaughter instruction”) ; Shelley , 80 N.E.3d at 340 (agreeing with Short ’s reasoning in rejecti ng this approach)

.8

T here is a long tradition in New Hampshire of affording the jury the opportunity to retu rn a guilty verdict on a lesser included offense. See State v.

Nelson , 8 N.H. 163, 164

- 65 (1835) (noting that where a defendant is acquitted of a greater offense, he may be convicted of a lesser offense “necessarily

involv ed in the descript ion of such higher offence ”), overruled on other grounds by State v. Snyder , 50 N.H. 150 (1870). Thus, we have recognized that, “[i]n general, a defendant charged with one offense is entitled to ha ve the jury consider any lesser included offenses.” State v. Soto , 162 N.H. 708, 718 (2011). I nstructing the jury on a lesser included offense can benefit the State, by providing the jury a crime of which to find the defendant guilty if the State fails to establish proof of an element of the c rime charged

, as well as the defendant, by “afford[ing] the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Beck v. Alabama

, 447 U.S. 625, 633 (1980). A lesser included instruction therefore “ensu r es that the jury will accord the defendant the full benefit of the reasonable

- doubt

standard.” Id . at 6 3 4

.

T he legislature c ould have explicitly excepted from the immunity provided by RSA 318

- B:28

- b , II and III, a defendant who exercises the

entitlement to a lesser included instruction on possession and whom the jury

finds guilty of that offense

. We will not read such an exception into the statute.

See State v. Buckingham , 121 N.H. 339, 343 (1981) (refusing to read into a

statute the authori ty for the trial court to punish a defendant by suspending or revoking his driver’s license when such authority was not specifically provided for in the statute). We therefore conclude that RSA 318

- B:28

- b’s language does not authorize a trial court to req uire that a defendant waive the statute’s immunity before it instructs the jury on the offense of possession.

The trial court concluded that the defendant could be made to waive the immunity before it in structed the jury on possession primarily because it found

that the rationality of the jury process would be compromised if it instructed the jury on an offense for which the defendant could not be convicted

. The State’s argument before us largely echoes this reasoning

. These concerns form

the basis of the Massachusetts Supreme Judicial Court’s decision in Shelley

, 80 N.E.3d at 338, which closely followed the reasoning of the United States Supreme Court in Spaziano , 468 U.S. 447

.

In Spaziano , 468 U.S. at 456

- 57 , the C ourt , in part, concluded that the

F ederal C onstitution was not violated when the trial court in a capital murder

trial required the defendant to elect between forgoing an instruction on the lesser included offense of manslaughter, which was barred by the statute of limitations, or waiving t he statute of limitations and receiving the manslaughter instruction

. According to the C ourt, “[r]equiring that the jury be

instructed on lesser included offenses for which the defendant may not be convicted” distorts the jury’s fact

- finding mission. Id

. at 455

- 56. Furthermore,9

it found that “ the public ’ s confidence in the criminal justice system” would be undermined if the jury was “tricked into believing that it has a choice of crimes

for which to find the defendant guilty, if in reality there is no ch oice.” Id . at

456. The Massachusetts Supreme Judicial Court agreed , concluding that the

Massachusetts Constitution “does not require a judge to deceive the jury by instructing [it] on a lesser included offense for which the defendant cannot be found guilty.” Shelley , 80 N.E.3d at 338

- 39. We do not find this reasoning persuasive.

The role of the jury in New Hampshire is to determine wh ether the State has met its burden of factually proving that a defendant is re sponsible for committing the charged crime or a lesser included offense

, s ee State v. Melcher

, 140 N.H. 823, 831 (1996); Pierce v. State , 13 N.H. 536, 551 (1843), without considering the legal effects of its verdict, see State v. Tetrault , 78 N.H. 14, 16 ( 1915) (“The jury [has] no duty to perform in the assessment of the penalty and

therefore no occasion to know what i t might be.” ). 4 Accordingly, w e do not approve of the approach adopted by the Vermont Supreme Court in Delisle

, 648 A.2d at 634, because the jury’s determination of the facts should not be clouded by irrelevant considerations of the defendant’s possible punishment.

See Tetrault , 78 N.H. at 16

. F or example , the jury in this case was instructed that “[t]he possible punishment the Defendant may receive if you return a guilty verdict should not influence your decision. . . . During your deliberations you should consider only the evidence presented at trial.” 5 We therefore decline to adopt the reasoning of th e United States Supreme Court that the rationality of the jury process is undermined when a jury is instructed on a lesser included offense “[w]here no [such] offense exists.” Spaziano , 468 U.S.

at 455. In New Hampshire , the lesser offense exists if the State proves, beyond a reasonable doubt, the elements of the lesser offense, but fails to prove the elements of the greater offense

. See Soto

, 162 N.H. at 718; see also Muentner

, 406 N.W.2d at 423 (noting that in Wisconsin the running of the statute of

li mitations “does not mean the offense ceases to exist,” because the jury “may still find, as a matter of facts, that a defendant is guilty of the offense”).

4 O ne exception to the rul e that the jury should not consider the defendant’s punishment is when

a defendant invokes the insanity defense: “ [A] jury charged with ascertaining a defendant’s sanity should be instructed about consequences o f a ‘not guilty by reason of insanity’ verdict because such consequences are not commonly known.” State v. Blair , 143 N.H. 669, 672 (1999).

5 I n Florida, on the other hand, the jury may be told the “penalty of the offense for which the accused is being charged.” Fla. Stat. Ann. 918.10(1) ( West 2019) . Were the same true in New Hampshire, perhaps the Court’s concerns in Spaziano , 468 U.S. at 456, about tricking the jury

would be more releva nt. See Short , 618 A.2d at 322 (distinguishing Spaziano because juries in New Jersey “do not consider the punishments attendant to offenses in deciding guilt or innocence”); Shelley , 80 N.E.3d at 344 n.8 (Budd, J., dissenting) (noting that if the jury was “informed of the sentencing consequences of a guilty verdict,” but the conviction was dismissed “due to the statute of limitations, that truly would be tricking the jury”).10

T he jury fulfills its role by judging the evidence and determining whether the

elements of the crime were met. See Melcher , 140 N.H. at 831; see also

Muentner , 406 N.W.2d at 423

. The legislature’s determination that the

defendant cannot be convicted of one offense for which the jury could rationally

find the defendant guilty is of no import to the jury’s fact

- finding duty. See

Tetrault , 78 N.H. at 16

. Indeed, whether a trial court instructs the jury on a lesser included offense requires an inquiry into: (1) whether the lesser offense

is embraced within the definition of the greater offense; and (2) whether the evidence at trial provides a rational basis for a finding of guilt on the lesser

offense. Soto , 162 N.H. at 718. The second prong of that inquiry focusses on whether the jury could rationall y find th e defendant guilty of the lesser offense based up on the evidence at trial, not on whether the defendant’s conviction of

that offense is prohibited by the operation of a statute such as RSA 318

- B:28

- b. See id

. ; see also Muentner , 406 N.W.2d at 421.

Thus, d etermining what crime the defendant is factually guilty of committing is

, in a jury trial

, the prerogative of the jury. Pierce , 13 N.H. at 551. In New Hampshire, that determination is separate and divorced from determining what conviction may legally b e entered and what punishment may legally be dispensed, the prerogatives of the legislature and court s

. S ee, e.g. , RSA 318

- B:26 ( Supp. 2019) (setting punishments for various drug offenses);

State v. Hancock

, 156 N.H. 301, 305 (2007) (“[A] trial court has broad discretion in sentencing.”)

. Similarly , whether the evidence at trial su pports instructing the jury on the lesser included offense of possession is a separate question from whether the defendant “shall not be . . . convicted” of possession by operat ion of RSA 318

- B:28

- b , II and III

. See Muentner , 406 N.W.2d at 420 (“Whether a defendant is entitled to a lesser included offense instruction and whether the statute of limitations has run on a crime are two separate questions.”)

. In the appropriate circ umstances, such as those present here, a

defendant is entitled to the benefit of both the lesser included instruction and

the statutory immunity

.

N othing in LaPlante , 117 N.H. 417, on which the State relies , requires a

different result. There, the defendant was charged with attempted murder and requested a jury instru ction on the purportedly lesser included offense of “attempted manslaughter,” of which he was convicted

. Id . at 417. On appeal, he argued that his conviction must be reversed because ‘“attempted manslaughter’ is a logical impossibility.” Id

. The defendant thus took inconsistent positions in the trial court and on appeal. See id

. We therefore

concluded that , having requested the lesser included instruction without objecting to its l ogical impossibility

, the defendant could not take issue with that instruction on appeal. Id . at 418. Here , on the other hand, the defendant made the same argument to the trial court as he makes on appeal : that RSA

318

- B:28

- b does not require him to waive its immunity before the trial court instructed the jury on possession. We therefore find LaPlante unavailing.11

We conclude that the trial court erred by requiring the defendant to

waive RSA 318

- B:28

- b’s immunity before it instructed the jury on the offense of possession

. The State does not disp ute that possession is a lesser included offense of possession with intent to sell or that RSA 318

- B:28

- b otherwise applies to the defendant

. We therefore vacate the defendant’s conviction of possession of a controlled drug.

C. Warrantless Entry into the Defendant’s Apartment

Finally, we turn to the defendant’s argument that the trial court erred in denying his motion to suppress evidence

. He asserts that the police officers’

initial warrantless entry into h is apartment violated his right to be free from

unreasonable searches u nder Part I, Article 19 of the S tate C onstitution and

the Fourth Amendment to th e Federal C onstitution. We first address t he

defendant’s claim under the State Constitution, and rely upon federal law only to aid our analysis

. See State v. Ball , 124 N.H. 226, 231

- 3 3 (1983).

The trial court concluded that the officers’ initial entry into the apartment was justified by the emergency aid exception to the warrant

r equirement. When reviewing a trial court’s determination that a warrantless

search was justified under this exception, we accept its factual findings unless they are unsupported by the record or clearly erroneous. See State v.

MacE lman , 149 N.H. 795, 79 7 (2003) . We review its legal conclusion regarding

whether the warrantless search fell within the exception de novo

. See id

.

Part I, Article 19 of the New Hampsh ire Constitution requires that all

searches be reasonable. Ball , 124 N.H. at 234. A warrantless search is per se unreasonable and thus unconstitutional unless it falls within a judicially crafted and narrow exception to the warrant requirement. See State v.

Robinson

, 158 N.H. 792, 797 (2009). “The search of a home is subject to a particularly stringent warrant requirement because the occupant has a high expectation of privacy.” Id

. The S tate bears the burden of proving by a preponderance of the evidence that a warrantless search fell within such an exception. Id

.

The emergency aid exception to the warrant requirement applies when police officers enter a residence without a warrant because, performing duties unrelated to the investigation of a crime, their services appear immediately necessary to protect life or property. See MacElman , 149 N.H. at 798; see also Sutterfield v. City of Milwaukee , 751 F.3d 542, 557 (7th Cir. 2014)

. To justify a warrantless entry under this exception, the State must show that : (1) the police have objectively reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) there is a n objectively reasonable basis, approximating probable cause, to associate the emergency with the area or place to b e searched; and (3)12

the search is not primarily motivated by an intent to arrest and seize evidence.

MacE lman , 149 N.H. at 798. Whether a warrantless entry into a home was justified by the emergency aid exception depends on the particular

circumstances s urrounding the entry

. See State v. Pseudae , 154 N.H. 196,

20 1

- 0 2 (2006); see also Sutterfield , 751 F.3d at 557

.

The defendant con cedes that an emergency existed. However, he argues that the State failed to establish , under the first prong of the analys is, that the police had objectively reasonable grounds to believe there was an immediate need for their assistance to protect his life bec ause the members of the Concord Fire Department

, who carried Narcan and provided him medical

treatment , arrived at the apartment at the same time as the first officer. The defendant’s argument, however, asks us to view the officers’ entry in light of

circumstances that became apparent after the emergency subsided

, i.e.

, that the officers were not called upon to render me dical assistance

. The first prong of our analysis focuses not on the actual assistance rendered or , in this case,

not rendered by the officers , but on their objective beliefs regarding the

immediate need for their assistance. See MacE lman , 149 N.H. at 79 8.

The officers who initially responded to the defendant’s apartmen t were
notified that he was un conscious, not breathing, “ turning purple, ” and suspected to have overdosed. T he officers could have reasonably believed that

their assistance w ould be nece ssary to save the defendant’s life

, for example by assisting in providing cardiopulmonary resuscitation, even though medical personnel were also on scene

. See, e.g.

, Plummer v. District of Columbia , 317 F. Supp. 3d 50, 63 (D.D.C. 2018) (concluding that th e police justifiably entered

a garage without a warrant after medical services had arrived to “ensure that [an unresponsive individual] received prompt medical evaluation and possible treatment”); People v. Amato , 562 P.2d 422, 423

- 24 (Colo. 1977) (holding that

the police validly entered a residence without a warrant in response to a “possible overdose” call despite the fact that medical personnel had already arrived); c f

. Bray v. State , 597 S.W.2d 763, 768 (Tex. Crim. App. 1980) (warrantless entry not vali d when officers knew that defendant was no longer “in any serious distress”).

The defendant also argues, under the third prong of the analysis, that the officers were primarily motivated by an intent to seek evidence of a crime because they “had nothing to offer in terms of resolving the medical emergency.” As the trial court found, however, when the initial officers arrived they “had no reason to believe that emergency assistance was no longer required or that the emergency had been resolved.” That the police officers did not in fact provide any medical treatment does not reveal a primary motivation to enter the apartment in order to seek evidence of a crime

.

Accordingly, we conclude that the officers’ initial entry into the defendant’s apartment was justified under the emergency aid exception to the13

warrant requirement. The Federal C onstitution provides the defendant no greater protection under these circumstances, se e Brigham City v. Stuart , 547 U.S. 398, 406

- 07 (2006); Michigan v. Fisher , 558 U .S. 45, 48

- 49 (2009), and we

therefore reach the same result under the Federal Constitution as we do under

the State Constitution

.

III. Conclusion

For the reasons stated above, we vacate the defendant’s conviction for possession of a controlled drug. We affirm the defendant’s conviction for being a felon in possession of a firearm . We consider waived any issues that the defendant raised in his notice of appeal, but did not brief. See State v. Bazinet

, 170 N.H. 680, 688 (2018). Affirmed in part and vacated in part

.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.