2004-491, STATE OF NEW HAMPSHIRE v. DEREK SEAN PIERCE

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

charged with the crime of harassment under RSA 644:4, I(f) which provides: The record supports the following facts. In October 2003, Pierce was

(Larson, J.), on the grounds that the statute is unconstitutional. We reverse. conviction for harassment, RSA 644:4, I(f) (1996), in the Durham District Cou rt BRODERICK, C.J. The defendant, Derek Sean Pierce, appeals his

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

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

No. 2004 - 491 Durham District Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

constitutionally protected” — constitutes an element of harassment, fo r which subparagraph (f) — “when the communication is not for a lawful purpose or unconstitutional burden shifting, we must determine whether the last clause in To address Pierce’s contenti on that RSA 644:4, I(f) requires

federal opinions for guidance only. State v. Ball, 1 p. 2 24 N.H. 226, 231 - 33 (1983). (2004). We first address Pierce’s claims under the State Constitution, citing review a t rial court’s rulings de novo. State v. Bortner, 150 N.H. 504, 510 (1997). Because the constitutionality of a statute is a question of law, we proof. Smith v. New Hampshire Dep’t of Revenue Admin., 141 N.H. 681, 693 The party challenging a statute’s constitutionality bears the burden of

N.H. 365, 367 - 68 ( p. 2 2002). use words that are superfluous or redundant. Pennelli v. Town of Pelham, 148 words of a statute are to be given effect, and the legislature is presumed not to wherever reasonably possible. State v. Smagula, 117 N.H. 663, 666 (1977). All (1996). We interpret statutes to avoid conflict with constitut ional rights “according to the fair import of their terms and to promote justice.” RSA 625:3 In reviewing a criminal statute, we construe all of its provisions

def endant to disprove an element of the crime. defense to the crime of harassment rather than shifting the burden to the freedoms. The State responds that RSA 644:4, III creates an affirmative because it criminalizes protected speech, thus chilling First Amendment is not an element of harassment, the statut e is unconstitutionally overbroad buttresses his argument by claiming that if the last clause of subparagraph (f) the Fifth and Fourteenth Amendments to the United States Constitution. He in violation of Part I, Article 15 of the New Hampshire Constitution, as well as communication “not [be] for a lawful purpose or constitutionally protected” — disproving an element of harassment to the defendant — namely, that the Pierce argues that RSA 644:4, III impermissibly shifts the burden of

subsequently stood trial and was convicted. This appe al followed. dismiss, and the Trial Court (Taube, J.) denied the motion. Pierce screwing up my AOL. IM . . . so f --- you, you f --- ing whore.” Pierce moved to her cell phone in the early morning hours and said, “You can go f --- yourself for The complaint alleged that Pierce, after being told not to call the victim, called

protected. communication is not for a lawful purpose or constitutionally communication, communicates with such person, when the previously notified that the recipient does not desire further (f) With the purpose to annoy or alarm another, having been

. . . . p. 3 3

it clear that the legislature intended that the savings clause of subparagraph (f) argues that the more specific statute must supplant the more general, making Because RSA 644:4, III was enacted after RSA 625:11, III, the State

Criminal Code.” Id. provision [would not] be displaced by the mo re general rule found within the provision within the Controlled Drug Act], the clear and specific intent of that Id. at 4 p. 3 32. We noted, “Unless the legislature repeals [the burden shifting to the defendant, was centr al to the resolution of who bore the burden of proof. within the Controlled Drug Act shifting the burden of proof on the exemptions defendant’s argument, we observed that RSA 318 - B:22, the statutory provision exemptions found in RSA 318 - B:2 - a, :9 (Supp. 1981)). In rejecting the under one of the statutory exemptions. Bell, 125 N.H. at 427, 431 - 32 (citi ng not present evidence that he was not authorized to make the sale in question had failed to meet its burden of proof under RSA 625:10 and :11 when it did there was arrested for the sale of a controlled dru g and argued that the State exemptions to RSA chapter 318 - B, the Controlled Drug Act. The defendant In Bell, we were required to determine the applicability of certain

State v. Bell, 125 N.H. 425, 4 p. 3 32 (1984). regarded as an exception to the general enactment where the two conflict.” with a part of the same subject in a more detailed way, the latter will be “where one statute deals with a subject in general terms, and another deals State argues that this is merely a general provision, and points to the rule that an excuse or justification for such conduct.” RSA 625:11, III(a), (c) (1996). The conduct as . . . [is] included in the definition of the offense” or that “[n]egatives part, “such conduct, or such attendant circumstances, or such a result of The legislature has defined “[e]lement of an offense” to mean, in relevant

than an element of the offense as defined by RSA 625:11, III. subparagraph (f), the so - called savings clause, is an affirmative defense rather paragraph III are considered together, it is clear that the last clause in RSA 644:4, III (1996). The State argues that when subparagraph (f) and

shall be upon the defendant. burden of proof of any exception, excuse, proviso, or exemption exception, excuse, proviso, or exemp tion contained therein and the RSA 644:4, I(f), it shall not be necessary for the state to negate any In any complaint or information brought for the enforcement of

(1995). Paragraph III provides: York, p. 4 4 p. 3 32 U.S. 197, 205 - 11 (1977); State v. Soucy, 139 N.H. 349, 352 - 53 preponderance of the evidence, RSA 626:7 (1996); see also Patterson v. New III renders it an affirmative defense, which a defendant must establish by a the State has the burden of proof, RSA 625:10 (1996), or whether RSA 644:4, 4

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

See Brobst, 151 N.H. at p. 4 425. See Ball, 124 N.H. at 237. Nor need we address whether the statute is vague. Constitution, we do not address his claims under the Federal Constitution. Having held that Pierce’s conviction merits reversal under the State

(1983), we elect not to make the State’s argume nts for it. construction rendering it constitutional,” White v. Lee, 12 p. 4 4 N.H. 69, 77 - 78 will not be construed to be unconstitutional, where it is susceptible to a proposed, is suscepti ble to a more narrow construction. Although “[a] statute The State advances no arguments why the statute, interpreted as it

enough to render the statute constitutional. notification” requirement limits slightly the breadth of RSA 6 p. 4 44:4, I(f), it is not alarm another. Id. at 421 (quoting RSA 644: 4, I(a) (1996)). While the “previous whether or not a conversation ensued; and (2) with the purpose to annoy or the elements of the crime consisted of: (1) a person making a telephone call, statute we struck down in State v. Brobst, 151 N.H. 420, 425 (2004). There unconstitutionally overbroad as it would be no narrower than the criminal statute is substantially overbroad. So construed, the statute would be clause in subparagraph (f) could not be considered in determining whether the not desire further communication. As an affirmative defense, the savings annoy or alarm; and (3) having been previously notified that the person does which would be: (1) communicating with a person; (2) with the purpose to affirmative defense would leave us with a crime of harassment, the elements of defense, the statute is unconstitutional. Holding that the savings clause is an Even if we assume that, under Bell, the savings clause is an affirmative We ne ed not determine, however, whether Pierce or the State is correct.

1 p. 4 48 N.H. at 367 - 68. superfluous or redundant words” when it wrote paragraph III. See Pennelli, claims that to hold otherwise would be to say that the legislature “used argues that paragraph III must necessarily refer to the savings clause. It other “exception, excuse, proviso, or exemption contained therein,” the St ate 644:4, III specifically references subparagraph (f), and because there is no be an affirmative defense and not an element of criminal harassment. As RSA