2007-356, STATE OF NH v. ROBERT THERIAULT

Kelly A. Ayotte

No. 2007-356

Merrimack

to pay the couple to engage in sexual intercourse with each other, and with the woman and her boyfriend at their motel. There, the defendant offered financial situation. Either that day or the following day, the defendant met Superior Court (Conboy struck up a conversation with a woman and learned that she was in a dire HICKS, J. The defendant, Robert Theriault, appeals a decision of the officer at Franklin District Court. At the courthouse on October 31, 2005, he The record supports the following. The defendant was a court security

David M. Rothstein

him. We affirm.

THE SUPREME COURT OF NEW HAMPSHIRE brief and orally, for the defendant.

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 must be invalidated unless the court can supply a limiting p. 2 If a statute is found to be substantially overbroad, the statute

speech and conduct plus speech.

conduct, as well as challenges to those statutes prohibiting pure

applies to constitutional challenges of statutes that prohibit unconstitutional manner. The substantial overbreadth doctrine

possibility, however slight, that it might be applied in some

from invalidating a statute on its face simply because of the sweep. The criterion of substantial overbreadth precludes a court substantial, judged in relation to the statute’s plainly legitimate Court has held that the overbreadth of a statute must be real and

To provide guidance in this area the United States Supreme

when such summary action is inappropriate. determine when a law may properly be held void on its face and last resort. Thus, it remains a matter of no little difficulty to

overbreadth doctrine is strong medicine to be employed only as a

Amendment’s vast and privileged sphere, the application of the protection from overbroad laws that chill speech within the First

protected expression. While the Constitution gives significant

criminal sanctions by a statute susceptible of application to protected, may well refrain from exercising their rights for fear of persons who, although their speech or conduct is constitutionally

The purpose of the overbreadth doctrine is to protect those Constitutions. See

free speech provisions of both the New Hampshire and the Federal Our overbreadth law is well-defined: motion to dismiss, arguing that RSA 645:2, I(f) is facially overbroad under the counts. On appeal, the defendant challenges the trial court’s denial of his The trial court denied the motion, and the defendant was convicted on two Prior to trial, the defendant moved to dismiss the charges against him.

Because the issue before us is one of constitutional law, we review it de

present matter under the State and Federal Constitutions one and the same). several federal cases in our overbreadth analysis, making our analyses of the State v. Brobst, 151 N.H. 420, 422-23 (2004) (adopting the reasoning from 231 (1983), and cite federal authority for guidance only. Id. at 232-33; see also defendant’s claim under the State Constitution, State v. Ball, 124 N.H. 226, novo. State v. MacElman, 154 N.H. 304, 307 (2006). We first address the

prostitution, RSA 645:2, I(f) (2007). explained that he would need to watch them. He was later charged with to sanction moves from pure speech toward conduct.” MacElman p. 3 3 speech attenuates as the otherwise protected behavior that it forbids the State Furthermore, “the overbreadth doctrine’s concern with chilling protected

exceedingly slight. See penetration – is unlawful, and the defendant agrees that the State has a possibility that it might be applied in some unconstitutional manner is determined that this conduct – paying others to engage in sexual contact or disagree and hold that the statute is not substantially overbroad, because the protected speech nor necessarily associated with speech. The legislature has such as the production of a non-obscene but sexually explicit movie. We RSA 645:2, I(f) specifically targets conduct, i.e. prostitution, that is neither because it could be applied to criminalize constitutionally permissible activities necessarily associated with speech, such as picketing and demonstrating. Id Brobst. sexual penetration. He argues that RSA 645:2, I(f) is substantially overbroad against a law not specifically addressed to speech or to conduct that is p. 3 311 (quotation omitted). Thus, an overbreadth challenge will rarely succeed The defendant was charged with offering to pay two others to engage in , 154 N.H. at

in RSA 6 p. 3 32-A:1, V, with the payor or with another person sexual contact as defined in RSA 632-A:1, IV or sexual penetration as defined person “[p]ays, agrees to pay, or offers to pay another person to engage in RSA 645:2, I(f) provides that a person is guilty of a misdemeanor if the may not be applied. analysis of the fact situations to which its sanctions, assertedly, 632-A:1, V (2007) enumerates various acts constituting sexual penetration. for the purpose of sexual arousal or gratification.” (Emphasis added.) RSA only that aforementioned conduct which can be reasonably construed as being actor’s sexual or intimate parts, including breasts and buttocks,” and “includes except upon inescapable grounds.” Baines v. Senate President touching whether directly, through clothing, or otherwise, of the victim’s or legislative act, we presume it to be constitutional and will not declare it invalid Sexual contact is defined by RSA 632-A:1, IV (2007) as “the intentional We are also guided in our analysis by the principle that “[i]n reviewing a .” (Emphasis added.)

and the constitution.” Id overbreadth may exist should be cured through case-by-case. (quotation omitted). be unconstitutional unless a clear and substantial conflict exists between it 1 p. 3 33 (2005) (quotation omitted). “In other words, we will not hold a statute to

, 151 N.H. at 422-2 p. 3 3 (quotations, citations, and brackets omitted).

hand, a statute is not substantially overbroad, then whatever statute to constitutionally acceptable applications. If, on the other construction or partial invalidation that narrows the scope of the p. 4 Affirmed

protection than does the State Constitution under these circumstances, see

BRODERICK, C.J.