2006-283, STATE OF NH v. STEVE GUBITOSI

The defendant, Steve Gubitosi, was convicted of three

brief and orally), for the defendant. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

attorney general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-283 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

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

appointed by the trial court under RSA 7:33 in order to prosecute him on the

(unconstitutional in

644:4, I(b) was not unconstitutional on its face or as applied. 644:4, I(b). The trial court denied the motion to dismiss, ruling that RSA The defendant argued in his motion to quash that Coull had to be

I. Authority of Belknap Deputy County Attorney Coull he had not been properly appointed by the trial court. The Trial Court convicted. The first, 03-S-405, was based upon the provision found to dismiss two of the harassment informations upon which he had been 644:4, I(b) is unconstitutionally overbroad. We address each argument in turn. RSA 7:33 (Supp. p. 2 2007) or RSA 661:9, III (2008). Second, he asserts that RSA entitled to a new trial because Coull was not properly appointed pursuant to County charges. Coull filed his appearance shortly thereafter. The defendant raises two issues on appeal. First, he argues that he is

appearance of a conflict of interest, appeal to this court regarding the admission of certain evidence, The second, 03-S-408, was based upon the “coarse language” provision of RSA

arguing that Coull did not have the authority to prosecute the matter because we held subsection (f) of RSA 644:4, I, unconstitutional, the defendant moved Following our decision in State v. Pierce, 15 p. 2 2 N.H. 790 (2005), in which

prosecuted the Belknap County charge, was asked to prosecute the Merrimack count of stalking. The defendant was ultimately convicted of three counts of harassment and one Gubitosi, 151 N.H. 764 ( p. 2 2005), trial moved forward with Coull prosecuting.

seventeen years prior to the events in question, and desiring to avoid the appeal challenging Coull’s authority, which was also denied. Following an Fitzgerald, J.) denied the motion. The defendant requested an interlocutory

his conviction for stalking in Belknap County, Prior to trial, the defendant moved to quash the pending charges,

Specifically, Deputy Belknap County Attorney Wayne Coull, who had requested that the Belknap County Attorney’s Office prosecute the matter.

Because the defendant had been a police officer in Merrimack County for

673 ( p. 2 2005), and the convictions at issue here.

the defendant continued these acts. This course of conduct ultimately led to Although the victim indicated that she did not wish to have contact with him, at the victim’s home, uninvited, and in public places where the victim was. “progressively more harassing and frightening.” The defendant also appeared day, including late at night, often leaving messages that the victim considered her services as set by the county delegation.

p. 3 allow said appointee such compensation for his or of the New Hampshire bar, for the time being and

become vacant. To that end, the statute requires that the trial court appoint a

appoint a county attorney, who shall be a member

when that election shall take place, and how the office shall be filled, should it

office, the superior court, acting as a body, shall

court. The defendant misinterprets the statute.

providing that it shall exist in every county, that it shall be an elected position, Read in its entirety, RSA 7:33 concerns the office of county attorney, court or unable to discharge the duties of the

If the county attorney is absent at any term of

absent at a term of court, requiring appointment of a replacement by the trial. . . elected biennially by the voters of the county. consequent inability to prosecute the case, the Merrimack County Attorney was The defendant asserts that, due to the perceived conflict of interest and

the statute as a whole.

might have said or add language that the legislature did not see fit to include. private citizen engaging in a private prosecution, and, thus, under

There shall be a county attorney for each county, plain and ordinary meanings to the words used.

RSA 7:33 states, in pertinent part: whole. intent of the legislature as expressed in the words of a statute considered as a 431 (2007). 661:9, III. In matters of statutory interpretation, we are the final arbiter of the Grand China v. United Nat’l Ins. Co., 156 N.H. 429, consider the words and phrases in isolation, but rather within the context of Franklin v. Town of Newport, 151 N.H. 508, 510 (2004). Moreover, we do not together to effectuate its overall purpose and avoid an absurd or unjust result. State v. Langill, 157 N.H. 77, 84 (2008). We construe all parts of a statute

intent from the statute as written and will not consider what the legislature that, absent appointment under one of these statutes, Coull was essentially a The trial court again denied the motion. On appeal, the defendant contends Id. We interpret legislative that Coull had to be appointed under RSA 661:9, III in order to prosecute him. first examine the language of the statute, and, where possible, we apply the State v. Gallagher, 157 N.H. ___, ___, 951 A.2d 130, 131 (2008). We

Resolution of this issue requires that we interpret RSA 7:33 and RSA

its jurisdiction. We disagree. Complainant) v. Martineau, 148 N.H. 259 (2002), the trial court was divested of

In his request for interlocutory appeal the defendant argued, in the alternative, instant charges. The trial court denied the motion as “without basis in law.” attorney.

p. 4 compensation at the pleasure of the county

g, as it was not raised before the trial court. We note only that RSA 7:33-g

of the county attorney and shall serve without act under the supervision, direction, and control do so. Special assistant county attorneys shall 4

decline to address whether Coull was properly appointed pursuant to RSA 7:33-

when the county attorney believes it expedient to

The State argues Coull was in fact appointed in this manner. However, we 7:33-g provides: an absence. We disagree. thus, the Merrimack County Attorney’s unavailability in this case constitutes

understood to mean “not present,” in the prosecution of a single case. Likewise, the term “absent” is generally

county attorneys to assist with criminal cases approval of the attorney general, special assistant enacting the statute. The county attorney may appoint, with the

interpretation, it provides significant indication of the legislature’s intent in supports our interpretation. While the title of a statute is not conclusive of its in the event of a county attorney’s disqualification from a particular case. RSA appears that another statute under this chapter, RSA 7:33-g (2002), may apply defendant contends that a term of court could consist of a single trial, and, supports our interpretation. Although not addressed by the trial court, it Reading RSA 7:33 in light of the entire statutory scheme further

“duties” indicates the inability to discharge all duties, not simply a single duty in office, rather than instances involving disqualification from a single case. indicates that the legislature intended this statute to apply to actual vacancies Council, 154 N.H. 529, 534 (2006). Here, the heading of RSA 7:33 strongly

office. The heading of the statute, “Election; Temporary Vacancies,” also county attorney who is unavailable for one case, but otherwise present in Dictionary 6 (unabridged ed. 2002), and suggests something more than a case. Focusing upon the legislature’s use of the phrase “any term of court,” the see Webster’s Third New International office occurs, whenever a county attorney is not able to prosecute a particular suggests that an absence is created, and a failure to discharge the duties of Contrary to the defendant’s assertion, the legislature’s use of the plural the office becomes vacant, and the county is without a county attorney. language demonstrates an intent to fill the office of county attorney in the event Read in the context of the statute as a whole, the plain meaning of this

court or unable to discharge the duties of the office.” RSA 7:33. The defendant county attorney when the elected county attorney is “absent at any term of person:

p. 5 jurisdictional argument under

communication originated or was received, if such

inconvenient hours or in offensively coarse properly before us,

the aforementioned statutes, we decline to address the defendant’s circumstances of this case. Because we uphold the trial court’s decision under trial court was therefore not required to appoint a county attorney under the to prosecution in the jurisdiction where the

(b) Makes repeated communications at extremely the appointment.” Although the State asserts that this argument is not. . . . temporary absence and fill the same for a limited period of time expressed in

application of the county attorney or county commissioners, declare a

type of vacancy contemplated under either RSA 7:33 or RSA 661:9, III. The A person is guilty of a misdemeanor, and subject

RSA 644:4, I(b) provides:

II. Constitutionality of RSA 644:4, I(b) than when a county attorney is unable to prosecute a single case. apply when the office of county attorney becomes wholly unoccupied, rather the title of this chapter strongly indicates that RSA 661:9, III was intended to Martineau.

enacting this statute. “becomes temporarily absent or incapacitated, the superior court may, upon

we conclude that disqualification from a particular case does not create the than the one followed in this case when a perceived conflict of interest arises, While the better practice may be a more formalized appointment process

As was the case with RSA 7:33, the legislature’s use of the term “vacancy” in

State Elections,” provides significant indication of the legislature’s intent in Coull under RSA 661:9, III. RSA 661:9, III provides that if a county attorney interest. The title of chapter 661, “Vacancies Among Public Officers Elected at absence or incapacitation to include disqualification based upon a conflict of Contrary to the defendant’s argument, we do not interpret temporary

without deciding, that it was properly preserved for our review. raised before the trial court are not preserved for appeal), we will assume,

The defendant next argues that the trial court was required to appoint

a conflict of interest than RSA 7:33. appears to be better suited to addressing instances where a county attorney has inappropriate.

p. 6 applied. which its sanctions, assertedly, may not be on its face and when such summary action is case-by-case analysis of the fact situations to determine when a law may properly be held void Thus, it remains a matter of no little difficulty to

overbreadth may exist should be cured through

medicine to be employed only as a last resort.

substantially overbroad, then whatever If, on the other hand, a statute is not application of the overbreadth doctrine is strong statute to constitutionally acceptable applications. Amendment’s vast and privileged sphere, the overbroad laws that chill speech within the First

declare it invalid except upon inescapable grounds. partial invalidation that narrows the scope of the

Constitution gives significant protection from

words, we will not hold a statute to be unconstitutional unless a clear and

in reviewing a legislative act, we presume it to be constitutional and will not the court can supply a limiting construction or State v. Theriault, 157 N.H. 215, 217-18 (2008) (quotation omitted). Further, of application to protected expression. While the

overbroad, the statute must be invalidated unless If a statute is found to be substantially legitimate conduct. fear of criminal sanctions by a statute susceptible. . . . may well refrain from exercising their rights for speech or conduct is constitutionally protected,

offensively coarse language in order to be sufficiently narrow. We disagree.

statute is unconstitutionally overbroad because it potentially criminalizes

to protect those persons who, although their The purpose of the overbreadth doctrine is

Our overbreadth law is well-defined:

must prohibit communications both at extremely inconvenient hours and using 152 N.H. 790 (2005). The defendant argues that, under Brobst, the statute

The defendant asserts that, like subsections (a) and (f), subsection (b) of this

another. language with a purpose to annoy or alarm the character of conduct that ensues. p. 7 is complete when the call is made, regardless of which means that the act constituting the offense

merely with the intent to annoy or alarm another,

or not conversation ensues, if the call is placed made to anyone, anywhere, at any time, whether intrusions. RSA 644:4, I(a) applies to any call

unwelcome and unwarranted activities or

limited in scope to these types of unreasonable, groaning. . . . RSA 644:4, I(a) is not, however, frightening, to hear only heavy breathing or

threats, curses, and obscenities, or, equally

protected.” person, when the communication is not for a lawful purpose or constitutionally recipient does not desire further communication, communicates with such 7

unconstitutional in

RSA 644:4, I(f), it is not enough to render the statute constitutional.” late at night, to hear nothing but a tirade of

purpose to annoy or alarm another, having been previously notified that the

RSA 644:4, I(b) is distinguishable from the subsections found

793.

“[w]hile the ‘previous notification’ requirement limits slightly the breadth of Pierce when he or she answers the telephone, perhaps, 152 N.H. at 791 (quotation omitted). We concluded that the terror caused to an unsuspecting person

of annoying or alarming telephone calls, such as

provided that a person is guilty of a misdemeanor if such person, “[w]ith the In Pierce, we held RSA 644:4, I(f) unconstitutional. Subsection (f)

Id with a purpose to annoy or alarm another.”. at 424 (quotations and citations omitted).

protecting citizens from the effects of certain types

such person “[m]akes a telephone call, whether or not a conversation ensues,

discourage citizens from exercising that speech.”

Certainly the State has a legitimate interest in

finding RSA 644:4, I(a) unconstitutional, we concluded:

that time, subsection (a) provided that a person is guilty of a misdemeanor if

Amendment speech, and . . . there exists a real likelihood that it may overbroad because the statute “covers a substantial amount of protected First In Brobst, we held subsection (a) of RSA 644:4, I, unconstitutionally

omitted). substantial conflict exists between it and the constitution.” Id. (quotation p. 8 8

we do not address it.

adequately briefed his argument regarding RSA 644:4, I(b) as applied to him,

unconstitutionally overbroad on its face. Because the defendant has not

BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. language elements in order to pass constitutional muster. Affirmed.

For the reasons stated above, we hold that RSA 644:4, I(b) is not

151 N.H. at 424, and does not compel their inclusion in RSA 644:4, I(b). in communications where the State may have a legitimate interest, “offensively coarse language” or “extremely inconvenient hours.” Thus, unlike see Brobst, highlights, in hypothetical fashion, some potential characteristics of

I(b) does not apply to “any call made to anyone, anywhere, at any time, whether Furthermore, contrary to the defendant’s assertion, Brobst does not

tailored to the illegal communications sought to be prevented. another. With these restrictions, the scope of RSA 644:4, I(b) is narrowly repeated communications be made with the purpose to annoy or alarm anywhere, at any time.” Id. In addition, RSA 644:4, I(b) requires that these Brobst, the offense is not complete when the call is made “to anyone,

Further, subsection (b) specifically requires communications that consist of is not just one call that constitutes the offense, but a repeated course of calls.

offensively coarse language. Thus, unlike RSA 644:4, I(a) and (f), RSA 644:4, communications that either occur at extremely inconvenient hours or contain