In re D.J.

306 A.3d 775

IN RE D.J.

No. 2021-0560

Supreme Court of New Hampshire.

Argued: September 20, 2022

Opinion Issued: July 13, 2023

West Codenotes

Recognized as Unconstitutional

N.H. Rev. Stat. Ann. § 644:4, I (a, f)

6th Circuit Court-Franklin Family Division

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the juvenile.

John M. Formella, attorney general, and Anthony Galdieri, solicitor general (Laura E. B. Lombardi, senior assistant attorney general, on the brief and orally), for the State.

BASSETT, J.

The juvenile, D.J., appeals a finding of delinquency made by the Circuit Court (Luneau, J.) based upon a petition alleging that he committed harassment under RSA 644:4, I(b) (Supp. 2021). He argues that there was insufficient evidence to support the trial court’s finding, and that RSA 644:4, I(b) is unconstitutional as applied and on its face. See N.H. CONST. pt. I, art. 22; U.S. CONST. amend. I. We affirm.

The following facts were found by the trial court or are undisputed. On July 11, 2021, the victim was walking on a narrow sidewalk in downtown Tilton. Several juveniles, including D.J., were riding bicycles on the sidewalk. The victim told the juveniles that they were not supposed to be riding bicycles on the sidewalk. D.J. told the victim to go "f**k himself." D.J. continued to yell at the victim, who testified that D.J. was "swearing, saying f**k this and f**k that and you’re nothing but an old man." The victim yelled back at D.J. and asserted that he could do martial arts.

D.J. got off his bicycle, provoked the victim to fight, and took off his shirt.

The owner of a store across the street from this encounter observed the confrontation and, after it had gone on for approximately five minutes, she began to record it using her cellphone. The store owner also called the police. The incident lasted approximately eight minutes, until a patrol officer arrived at the scene.

The State filed a delinquency petition in the circuit court alleging that D.J. committed the offense of harassment under RSA 644:4, I(b). Following an adjudicatory hearing, the trial court entered an order finding D.J. delinquent. The trial court subsequently held a dispositional hearing, after which the court placed him on twelve months’ conditional release. This appeal followed.

Following briefing and oral argument, we remanded the case to the trial court so that it could expand upon its findings of fact and rulings of law. After receipt of the trial court’s order, we invited the parties to file supplemental briefs, and both parties did so.

We turn first to D.J.’s statutory argument. See Chapman v. Douglas, 146 N.H. 209, 211, 772 A.2d 318 (2001) (noting our "established policy against reaching a constitutional issue in a case that can be decided on a non-constitutional ground"). The State’s delinquency petition alleged that D.J. committed the offense of harassment, as defined in RSA 644:4, I:

I. A person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the communication originated or was received, if such person:

(a) Makes a telephone call, whether or not a conversation ensues, with no legitimate communicative purpose or without disclosing his or her identity and with a purpose to annoy, abuse, threaten, or alarm another; or

(b) Makes repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another; or

(c) Insults, taunts, or challenges another in a manner likely to provoke a violent or disorderly response; or

(d) Knowingly communicates any matter of a character tending to incite murder, assault, or arson; or

(e) With the purpose to annoy or alarm another, communicates any matter containing any threat to kidnap any person or to commit a violation of RSA 633:4; or a threat to the life or safety of another.

RSA 644:4, I (Supp. 2021) (emphasis added). D.J. was charged only under subsection (b). He does not dispute that he used "offensively coarse language with a purpose to annoy or alarm" the victim. RSA 644:4, I(b). He argues only that the State introduced insufficient evidence to prove that he made "repeated communications" within the meaning of subsection (b). Id. The State counters that D.J.’s conduct falls under the definition of "repeated communications" that we articulated in In re Alex C., 161 N.H. 231, 13 A.3d 347 (2010). We agree with the State.

[1–4] To prevail on a sufficiency of the evidence argument, D.J. must show that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found him to be delinquent beyond a reasonable doubt. In re Juvenile 2003-187, 151 N.H. 14, 15, 846 A.2d 1207 (2004). Resolution of this case requires that we consider the meaning of "repeated communications" under RSA 644:4. This is an issue of statutory interpretation, which we review de novo. Id. at 16, 846 A.2d 1207. We interpret 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. Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013). We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. Juvenile 2003-187, 151 N.H. at 16, 846 A.2d 1207.

[5] RSA 644:4 defines "communicates," in relevant part, as "impart[ing] a message by any method of transmission." RSA 644:4, II (2016). It does not define "repeated." In Alex C., we addressed whether the juvenile’s instant messages constituted "repeated communications" within the meaning of RSA 644:4, I(b). Alex C., 161 N.H. at 235, 13 A.3d 347. In that case, the juvenile sent the victim two instant messages and then, following a forty-six minute break, sent seventeen more messages in a span of thirty-seven seconds. Id. at 233-34, 13 A.3d 347. Following another pause of less than a minute, the juvenile sent an additional twenty-two messages over a four-minute span. Id. at 234, 13 A.3d 347. We affirmed the trial court’s finding of delinquency, stating that "repeated communications" means "renewed, frequent, or constant imparting of a message by any method of transmission," and found that the juvenile’s conduct "fit squarely" within that definition. Id. at 237, 13 A.3d 347. In the instant case, the trial court found that, over the course of the eight-minute encounter, D.J. imparted "a series of messages, both verbal and non-verbal." We agree with the State that this conduct constitutes "repeated communications" as defined in Alex C.

D.J. argues that this conclusion is contrary to the plain meaning of "repeated." "Repeated" means "renewed or recurring again and again : CONSTANT, FREQUENT" or "said, done, or presented again." Webster’s Third New International Dictionary 1924 (unabridged ed. 2002). Relying on these definitions, D.J. argues that the statute prohibits only acts of "successive communications," and "does not concern itself with each statement made during a single communicative interaction." We disagree. Nothing in the definitions cited by D.J. suggests that the same message may not be renewed or may not recur during a single interaction — particularly where, as here, the interaction continued for eight minutes.

[6, 7] D.J. asserts that Alex C. stands for the proposition that, unlike an online exchange of instant messages, "a single in-person interaction" cannot contain "repeated communications." However, we explicitly rejected in Alex C. the argument that a single conversation cannot contain repeated communications. Alex C., 161 N.H. at 238, 13 A.3d 347 ("We disagree that a single conversation necessarily equates to a single communication."). At most, Alex C. highlights the reasons why an online exchange may be more likely than a verbal conversation to contain "repeated communications": the process of drafting and sending written communications creates breaks in communication because an individual sending instant messages must "compose[ ], physically typed on a computer keyboard, [and] electronically sen[d]" each successive message. Id. at 238, 13 A.3d 347. Nevertheless, if messages exchanged in a verbal conversation are sufficiently discrete, they, too, may be "repeated communications." We conclude that when an individual makes a verbal remark, rejects an opportunity to stop communicating with the recipient, and imparts another message, a break has occurred sufficient to make the communications "repeated." Here, as the trial court observed, although D.J. had the opportunity to leave the scene after insulting the victim, "he chose to continue to remain, and engage [the victim] further."

Because we find the statutory language clear and unambiguous, we need not address D.J.’s argument regarding the rule of lenity. Viewing the evidence in the light most favorable to the State, we conclude that the trial court did not err when it determined that D.J. made "repeated communications" as set forth in RSA 644:4, I(b). Juvenile 2003-187, 151 N.H. at 15, 846 A.2d 1207.

[8, 9] We now turn to D.J.’s constitutional arguments. He argues that RSA 644:4, I(b) criminalizes expressive conduct protected under Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. Part I, Article 22 provides: "Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved." N.H. CONST, pt. I, art. 22. Similarly, the First Amendment prevents the passage of laws "abridging the freedom of speech." U.S. CONST. amend. I. We first address D.J.’s claims under the State Constitution, and rely on federal law only to aid in our analysis. See State v. Bailey, 166 N.H. 537, 540, 100 A.3d 514 (2014). In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds. State v. Gubitosi, 157 N.H. 720, 727, 958 A.2d 962 (2008). In other...