In re C.

161 N.H. 231

13 A.3d 347

In re ALEX C.

No. 2009–399.

Supreme Court of New Hampshire.

Argued: April 22, 2010.Opinion Issued: Nov. 30, 2010.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the juvenile.BRODERICK, C.J.

The juvenile, Alex C., appeals the ruling of the Trial Court ( Runyon, J.) finding the delinquency petition true, see RSA 169–B:6, :16 (Supp.2009). We affirm.

The following facts are undisputed. On the evening of February 27, 2009, Rachel K.'s daughter ran away from home. The next day, in an effort to locate her daughter, Rachel K. called friends and contacted the police. Using her daughter's password on her home computer, Rachel K. also logged in to her daughter's AOL Instant Message (AIM) account. Using her daughter's screen name of “hey Nicci hey,” Rachel K. indicated that her daughter was available to communicate with her friends. She believed that one of her daughter's friends might respond with information that would help locate her daughter.

At approximately 10:30 a.m., the juvenile, using the screen name “skaterboy,” sent an instant message to “hey Nicci hey.” Rachel K. responded with a single instant message of “Hey”; the instant message exchange then ended without incident.

At approximately 11:00 a.m., the juvenile, now using the screen name “the kaboomroom95” again contacted “hey Nicci hey.” He initially believed that he was communicating with Rachel K.'s daughter. After “hey Nicci hey” inquired who he was, the juvenile realized that Rachel K. was using her daughter's screen name and the following instant messages were sent:

thekaboomroom95 (11:19:26 AM): ha this aint even [Rachel K.'s daughter]

the kaboomroom95 (11:20:28 AM): f***ing idiots idk if this is her mom or not but get the f*** off her aim you stupid f***ing b****

hey Nicci hey (11:27:01 AM): nice language young man—have the logs so we and the police are all set—thanks Alex and

thekaboomroom95 (11:28:10 AM): well for one fat ass learn to spell for 2 i dident say where she is u f***ing dumbasss i said if ur there i was gonna tell her to get the f*** out because the cops will be there you just get dumber and dumber go roll down a hill or something and squish a[ ]couple of kids u fat whale.

After this last instant message, a forty-six minute break occurred, during which neither Rachel K. nor the juvenile typed an instant message or logged off from their AIM accounts.

Beginning at 12:14:59 p.m. and ending at 12:15:36 p.m.—a period of thirty-seven seconds—the juvenile typed the phrase “fats*** ” and sent it to “hey Nicci hey” seventeen separate times. As the juvenile hit the “return” key in between typing each phrase on his computer keyboard, the phrase appeared as seventeen separate entries in the instant messaging window on Rachel K.'s home computer. Less than a minute later, at 12:16:00 p.m., the juvenile typed the phrase “stuppppid c*** ” and sent it to “hey Nicci hey.” For approximately four minutes more, until 12:20:23 p.m., the juvenile sent an additional twenty-one instant messages; Rachel K. responded with seven instant messages of her own. At 12:20:23 p.m., the juvenile sent a final instant message of “peace faggot” to “hey Nicci hey” before logging off from his AIM account at 12:23:00 p.m.

Alleging that the juvenile had committed the offense of harassment, see RSA 644:4, I(b) (2007), the delinquency petition stated:

W[i]th the purpose to annoy Rachel [K.] [the juvenile] made repeated communications to her house in offensively coarse language, to wit, he made communications to her residence twenty times between 11:20 AM and 12:16 PM using coarse language.

At the close of the adjudicatory hearing, the juvenile moved to dismiss the petition, arguing that the instant messaging “conversation between him and [Rachel K.]” constituted “one communication,” and, therefore, his conduct did not fall within the harassment statute's proscription against “repeated communications.” After hearing arguments and reviewing the parties' memoranda of law, the trial court issued a written order ruling that all of the elements of the harassment charge had been proved beyond a reasonable doubt, and finding the petition true. This appeal followed.

On appeal, the juvenile contends that the trial court erred in finding that his conduct constituted “repeated communications” within the meaning of RSA 644:4, I(b). Specifically, he argues that a “plain reading” of RSA 644:4, I(b) “indicates that the statute prohibits a pattern of separate instant message conversations, not multiple comments made within a single AIM conversation. The State's reading of the statute to the contrary leads to an absurd and unjust result that is not supported by the legislative intent and the cases narrowly construing the statute.” (Emphasis added.)

Here, the trial court construed RSA 644:4, I(b), a question of law; consequently, we review its ruling de novo. See State v. Brown, 155 N.H. 590, 591, 927 A.2d 493 (2007).

In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. We first examine the language of the statute, and, where possible, we apply the plain and ordinary meanings to the words used. 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. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Moreover, we do not consider the words and phrases in isolation, but rather within the context of the statute as a whole.

State v. Gubitosi, 157 N.H. 720, 723–24, 958 A.2d 962 (2008) (citations omitted). If a statute is ambiguous, we will consider legislative history to aid our analysis. State v. Dansereau, 157 N.H. 596, 598, 956 A.2d 310 (2008). We construe provisions of the Criminal Code “according to the fair import of their terms and to promote justice.” RSA 625:3 (2007).

RSA 644:4, I(b) provides:

A person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the communication originated or was received, if such person ... [m]akes repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another....

The juvenile acknowledges that the pertinent language in his instant messages to Rachel K. was “profane.” He does not contest that it was “offensively coarse,” and he has not argued that he had any purpose other than to annoy Rachel K. Consequently, the sole question on appeal is whether the juvenile's twenty instant messages, sent to Rachel K. between 11:20 a.m. and 12:16 p.m. in offensively coarse language with the purpose to annoy her, were “repeated communications” under RSA 644:4, I(b).

In order to provide a context for our statutory analysis, we first consider the nature of an instant message and how “instant messaging” works. Our review illustrates that courts have used a variety of terms to describe this relatively recent development in electronic communications technology; those descriptions may or may not differentiate between an instant message and the process of instant messaging. For example:

One cannot get a clear picture ... without an understanding of internet chat rooms and instant messaging, two relatively recent forms of electronic communication.... [A]n internet chat room ... is not a place, per se, but, [is] instead a method for anyone with a computer and a connection to the internet to converse—instantly—with others similarly equipped about a common interest. Chat room conversations appear as text on a computer screen, with the participants' screen names followed by the text of their conversations.... Chat rooms often have moderators and can thus be monitored; in addition, chat rooms are designed to facilitate conversations among large groups of people.... For these reasons, once the electronic chats between two “chatters” turn to specific content where privacy ... becomes a concern, they then turn to an instant messaging service—a two-way instantaneous text communication similar to a chat room—but with no one to monitor.

Maxwell v. State, 168 Md.App. 1, 895 A.2d 327, 328–29 n. 1 (2006) (quotations omitted).

An “instant message” is a private “one-on-one correspondence” that is not visible to the other occupants of the chat room.

People v. Jensen, 114 Cal.App.4th 224, 7 Cal.Rptr.3d 609, 612 n. 1 (2003).

Instant messaging is a form of e-mail, but unlike e-mail, instant messaging allows users to immediately send and receive messages in “real time.”Kerber v. Dairy Queen Operators Assn., No. C9–02–1883, 2003 WL 21694395, at *1 n. 1 (Minn.Ct.App. July 22, 2003). For our own part, we have indicated that instant messaging is an application providing for online conversation between individuals by way of their computers and the internet. Individuals may participate in the instant messaging conversation by transmitting and receiving discrete, self-contained instant messages. Specifically:

Instant messaging is a form of computer communication in which individuals hold an online conversation via the internet. When a person sends an instant message to another person online, that message is transmitted instantaneously to the recipient, opening a chat window that allows both parties to see the message and to respond immediately. The chat window, while open, contains a complete history of all messages sent and received during the online conversation.

State v. Lott, 152 N.H. 436, 437, 879 A.2d 1167 (2005) (quotation and brackets omitted).

RSA 644:4 does not define either the term “repeated” or the phrase “ repeated communications,” as used in RSA 644:4, I(b). The plain and ordinary meanings of “repeate...