2007-587, PETITION OF THE STATE OF NEW HAMPSHIRE (STATE v. VICTOR LAPORTE)

Kelly A. Ayotte

No. 2007-587

Hillsborough-southern judicial district

welfare of a child. See County Grand Jury indicted the defendant on one count of endangering the GALWAY, J. The State filed a petition for writ of certiorari, see The record supports the following facts. In May 2004, the Hillsborough

intercourse with him.” who was at the time under the age of 16 years of age, to have sexual order, the indictment alleged that the defendant “knowingly solicited A.L. . . .

and remand. dismissing the indictment against the defendant, Victor Laporte. We reverse R. 11; RSA 490:4 (1997), challenging an order of the Superior Court (Groff, J.)

brief and orally, for the defendant.

on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as right, but rather at the discretion of the court. Petition of State of N.H. (State v. p. 2 Certiorari is an extraordinary remedy that is not granted as a matter of

de interpreted RSA 639:3, III. We review the trial court’s interpretation of statutes The sole issue for our review is whether the trial court erroneously 2

II [sic attached. See to its plain and ordinary meaning. Id. Furthermore, we interpret statutes in other person to engage in such conduct.” Therefore, under RSA 639:3, State may seek relief from an order dismissing a case after jeopardy has language of the statute itself, and, if possible, construe that language according engage in conduct constituting a crime, he . . . solicits or requests such Here, we grant review because certiorari is the only avenue by which the 155 N.H. 377, 378 (2007). In interpreting a statute, we first look to the person is guilty of criminal solicitation if, with a purpose that another as expressed in the words of a statute considered as a whole. State v. Balukas, defining criminal solicitation guides us. RSA 629:2 I provides that “a 515, 520 (2005). This court is the final arbiter of the intent of the legislature Since the term solicitation is not defined in RSA 639, the statute novo. Petition of the State of New Hampshire (State v. Campbell), 152 N.H.

State of N.H. (State v. Johanson), 156 N.H. 148, 150 (2007). State may appeal to the supreme court in a criminal case); see also Petition of

RSA 606:10 (2001) (specifying the circumstances in which the

interpreting RSA 639:3, III. RSA 639:3, II in its order, it is clear from the order that the trial court was seeks a writ of certiorari here. Despite the fact that the trial court referenced discretion or acted arbitrarily, unreasonably, or capriciously. Id. The State moved for reconsideration, which the trial court denied, and now jurisdiction, authority or observance of the law, or unsustainably exercised its review is limited to whether the trial court acted illegally with respect to in substantial injustice. Petition of State of N.H., 154 N.H. at 674. Certiorari power to grant the writ sparingly and only where to do otherwise would result Giovanni), 154 N.H. 671, 674 (2007); see Sup. Ct. R. 11. We exercise our

his motion, ruling that: dismissed. conduct constituting a crime.” state of mind, the indictment is defective and insufficient and must be RSA 629:2, I (2007). The trial court granted solicitation statute, that he acted “with a purpose that another engage in in the criminal conduct.”. . . Since the indictment failed to allege this indictment, arguing that it failed to allege, in accordance with the criminal required criminal intent of, “with a purpose that the other person engage ], it must be alleged and proven that the defendant acted with the

At the close of the State’s case, the defendant moved to dismiss the guilty of “criminal solicitation” if, with the mens p. 3 define the term “solicitation”; indeed, RSA 629:2, I, provides that a person is term “solicitation,” without any modification. Nor does RSA 629:2 purport to definition of criminal solicitation in RSA 629:2, I. RSA 639:3, III uses only the First, the plain language of RSA 639:3, III does not incorporate the

constituting a crime.” RSA 629:2, I. We disagree. a defendant’s solicitation be “with a purpose that another engage in conduct The defendant argues that RSA 639:3, III requires an indictment to allege that

constitutes endangering the welfare of such child. to engage in sexual penetration as defined by RSA 632-A:1, V, creating a visual representation as defined in RSA 649-A:2, IV, or in sexual activity as defined by RSA 649-A:2, III for the purpose of solicitation by any person of a child under the age of 16 to engage III. In the prosecution of any person under this section, the

a child under the age of sixteen to engage in sexual penetration. is guilty of solicitation pursuant to RSA 639:3, III if he entices or strongly urges International Dictionary 2169 (unabridged ed. 2002). Therefore, an individual solicitation is “to entice” or “to strongly urge.” Webster’s Third New meaning of “solicitation.” Balukas, 155 N.H. at 378. The plain meaning of contrast, refers solely to the actus reus. Accordingly, we look to the plain conduct constituting a crime.” RSA 629:2, I. “Solicits” or “solicitation,” in “soliciting” and the mens rea of having the “purpose that another engage in not synonymous. “Criminal solicitation” encompasses both the actus in conduct that endangers his health or safety. reus of clearly demonstrates that the terms “criminal solicitation” and “solicitation” are incompetent, or by inducing such child or incompetent to engage term “solicits” as one of three alternative means of committing the actus a duty of care, protection or support he owes to such child or reus requests” another to engage in conduct constituting a crime. The use of the 18 years of age or of an incompetent person by purposely violating incompetent if he knowingly endangers the welfare of a child under rea, he “commands, solicits or I. A person is guilty of endangering the welfare of a child or

RSA 639:3 reads, in relevant part:

justice.” RSA 625:3 (2007). construe them “according to the fair import of their terms and to promote 378-79. Finally, we do not strictly construe criminal statutes, but rather consider legislative history to construe a statute that is clear on its face. Id. at the context of the overall statutory scheme and not in isolation. Id. We do not solicited a child under the age of sixteen to engage in sexual penetration. We p. 4 In this case, the indictment alleged that the defendant “knowingly”

mens not for others, in RSA 639:3. We conclude that the legislature intended the legislature prescribed the culpability of “purposely” for certain elements, but endangered the welfare of a child. As the defendant correctly notes, the RSA 639:3, I, generally requires proof that the defendant “knowingly”

since the mens Finally, the defendant looks to the structure of RSA 639:3, arguing that

626:2, I (2007). which it specifically assigned the higher culpability of “purposely.” Cf. RSA rea of “knowingly” to apply to all the material elements except those to

The defendant mistakenly relies upon our decision in State v. Paulsen

639:3, I, III. We disagree. should also apply it to the “solicitation” element under paragraph III. See RSA paragraph I and “the visual representation” element under paragraph III, we

rea of “purposely” applies to the “duty of care” element under

purposeful mental state. soliciting a child under the age of sixteen to engage in sexual activity requires a different from determining whether a prosecution under RSA 639:3, III for RSA 639:3, III prohibits charging a course of conduct. Id. at 450-51. This is solicitation from RSA 629:2, I; rather, we concluded that prosecution under 639:3, III, the indictment must include the language governing criminal we did not conclude in Paulsen that to sustain an indictment under RSA indictment under RSA 639:3. Id. Thus, contrary to the defendant’s assertion, 629:2 solely to determine whether a course of conduct could be charged in an the crime of endangering a child. Paulsen, 143 N.H. at 450. We looked to RSA interpreting RSA 639:3, III, we did not rely upon it to determine the elements of 629:2, I. Although in Paulsen we referenced RSA 629:2, I, for guidance in 639:3, III requires incorporation of the definition of criminal solicitation in RSA 143 N.H. 447 (1999), to support his assertion that a prosecution under RSA

satisfies the requirements of RSA 639:3, III. age of sixteen to engage in sexual penetration as defined by RSA 632-A:1, V indictment that alleges that a defendant “knowingly” solicited a child under the paragraph I applies to the conduct defined in paragraph III. Accordingly, an of a child. See RSA 639:3, III. Thus, the “knowingly” mental state in 639:3, III then defines certain conduct that constitutes endangering the welfare “if he knowingly endangers the welfare of a child.” (Emphasis added.) RSA 639:3, I, states that an individual is guilty of endangering the welfare of a child in RSA 639:3, III is a subset of the conduct criminalized by RSA 639:3, I. RSA at 378. Reading RSA 639:3 as a whole demonstrates that the conduct defined Moreover, RSA 639:3, III cannot be read in isolation. Balukas, 1 p. 5 55 N.H. 5

Reversed and remanded

BRODERICK, C.J.