2007-601, STATE OF NH v. ROBERT THERIAULT

fines, if they needed employment. After informing them that he could not young woman, C.H., and her boyfriend, J.S., who were at the court paying

security officer in Franklin District Court. On December 5, 2005, he asked a

The record reveals the following. The defendant was employed as a court

applied to him. We reverse. to dismiss, alleging the prostitution statute is constitutionally overbroad as Court (Conboy, J.). The defendant appeals the trial court’s denial of his motion prostitution, see RSA 645:2, I(f) (2007), following a bench trial in the Superior DUGGAN, J. The defendant, Robert Theriault, was found guilty of

defendant. brief, and Paul Borchardt, assistant appellate defender, orally, for the David M. Rothstein, deputy chief appellate defender, of Concord, 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 (Thomas E. Bocian, attorney, on the

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

editorial errors in order that corrections may be made before the opinion goes No. 2007-601 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 22 as decision. p. 2 arguing the statute is facially unconstitutional. We affirmed the trial court’s

doctrine is to protect those persons who, although their speech or conduct is

the motion, relying upon the definition of “sexual contact,”

the other charges, which did not involve videotaping, the defendant appealed,

Hampshire and Federal Constitutions.

production, would not be subject to sanction under the statute.” Our overbreadth law is well-settled: “The purpose of the overbreadth

N.H. 226, 231 (1983). Constitution, citing federal opinions for guidance only. See State v. Ball, 124 790, 791 (2005). We first address the defendant’s argument under the State theatres/movies are constitutionally entitled to present.” The trial court denied statute’s constitutionality bears the burden of proof. State v. Pierce, 152 N.H. broadly, and could literally be applied to sexual contact of a nature that law, we review it de novo. Theriault, 157 N.H. at 217. The party challenging a statute is constitutionally overbroad. He argued that “RSA 645:2, I(f) is written arising out of the facts currently before us as well as the other charges. As to CONST. amends. I, XIV. Because the issue before us is one of constitutional

He raises his argument under the free speech protections of both the New the constitutionally protected activity of making a sexually explicit videotape. them. other than sexual gratification, like producing a movie or a theatrical The defendant argues the prostitution statute is overbroad as applied to The trial court, however, further observed that “sexual contact for a purpose gratification”), to conclude that RSA 645:2, I(f) is not substantially overbroad. this case. defendant argues that the statute is unconstitutional as applied to the facts of

State v. Theriault, 157 N.H. 215 (2008). In this appeal, the

case and those arising from the other incident, claiming that the prostitution The defendant was convicted, in two separate trials, of the charges

involving a different couple, but which did not involve a request to videotape

(2007) (including only conduct that is “for the purpose of sexual arousal or

different condoms while the defendant videotaped them having intercourse. would rent a hotel room, and they would use temperature blankets and defendant specified the details: he would pay them fifty dollars per hour, he Prior to trial, the defendant moved to dismiss both the charges in this

prostitution arising out of these allegations as well as another incident it to a court official. The defendant was charged with multiple counts of C.H. and J.S. reported the incident to J.S.’ mother, who in turn reported

The defendant asked the couple if they wanted to make “f… flicks.” The discuss the job at the courthouse, he met them in a parking lot behind a bank. gratification.”

p. 3 does not include the provision “for the purpose of sexual arousal or

632-A:1, V includes a list of sexual acts that constitute sexual penetration but construed as being for the purpose of sexual arousal or gratification.” RSA contact includes only that aforementioned conduct which can be reasonably

actor’s sexual or intimate parts, including breasts and buttocks. Sexual

touching whether directly, through clothing, or otherwise, of the victim’s or another person.” RSA 632-A:1, IV defines “sexual contact” as “the intentional or sexual penetration as defined in RSA 632-A:1, V, with the payor or with

analysis of the fact situations to which its sanctions, assertedly, permissible activities such as the production of a non-obscene but sexually

pay another person to engage in sexual contact as defined in RSA 632-A:1, IV

overbreadth may exist should be cured through case-by-case overbroad because it could be applied to criminalize constitutionally In Theriault, the defendant argued “that RSA 645:2, I(f) is substantially is guilty of a misdemeanor if the person: . . . (f) Pays, agrees to pay, or offers to

speech. to those statutes prohibiting pure speech and conduct plus

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 applied to the particular facts of this case. RSA 645:2, I, provides: “A person ‘strong medicine’ to be employed ‘only as a last resort.’” Here we must decide whether RSA 645:2, I(f) is unconstitutional as

Theriault, 157 N.H. at 217-18 (quotations omitted).

challenges of statutes that prohibit conduct, as well as challenges

statute must be invalidated unless the court can supply a limiting If a statute is found to be substantially overbroad, the vast and privileged sphere,’ the application of the overbreadth doctrine is

expression.’” The substantial overbreadth doctrine applies to constitutional

As we reiterated in Theriault:

U.S. 601, 613 (1973)). Free Speech Coalition, 535 U.S. 234, 244 (2002); Broadrick v. Oklahoma, 413

protection from overbroad laws that chill speech within the First Amendment’s Ferber, 458 U.S. 747, 768 (1982)). “While the Constitution ‘gives significant

State v. Brobst, 151 N.H. 420, 422 (2004) (quoting New York v.

of criminal sanctions by a statute susceptible of application to protected constitutionally protected, ‘may well refrain from exercising their rights for fear while [the defendant] videotaped them.”

p. 4 engage in sexual penetration. That is, [J.S.] would sexually penetrate [C.H.]

State Constitution.

that [the defendant] offered to pay [the couple] money, that is $50 an hour, to

explicit video would be unprotected under the free speech guarantees of the the defendant’s conduct, a request to pay two individuals to make a sexually video.” The trial court found that the State “proved beyond a reasonable doubt, of sexual arousal or gratification. Thus, if the statute constitutionally prohibits fifty dollars per hour, and she specified: “He’s just going to pay us to make the didn’t feel uncomfortable.” C.H. said that the defendant offered to pay them

there was no finding by the trial court that the defendant acted for the purpose

of unwilling recipients or of exposure to juveniles.” dissemination carries with it a significant danger of offending the sensibilities

to inform.”

the defendant under the “sexual contact” portion of the statute and therefore arousal or gratification as opposed to making a video. The State did not charge employment, and if they wanted to make videos. She testified that “[h]e said allegation that the defendant solicited this activity for the purpose of sexual testified that the defendant asked her and her boyfriend if they needed thus some pornography is protected speech. pornography can be banned only if obscene,” arousal or gratification.” In fact, at trial, the only witness was C.H. She Ashcroft, 535 U.S. at 240, and U.S. 15, 18-19 (1973) (establishing obscenity standard). “As a general rule,

dissemination or exhibition of obscene material when the mode of

Id. There is, however, a “legitimate interest in prohibiting

opinion is not lessened by the fact that they are designed to entertain as well as of ideas.” Id. at 501. “The importance of motion pictures as an organ of public doubted that motion pictures are a significant medium for the communication Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). “It cannot be have sexual intercourse while being videotaped. There was no evidence or speech and free press guaranty of the First and Fourteenth Amendments.” “[E]xpression by means of motion pictures is included within the free evidence or allegation that the defendant acted with “the purpose of sexual

The facts boil down to the defendant offering to remunerate the couple to

offering to pay another to engage in “sexual contact,” and there was no

In this case, however, the State did not charge the defendant with

arousal or gratification.” Id. at 218. that the definition of “sexual contact” includes “for the purpose of sexual remedied on a case-by-case basis.” Id. at 219. In doing so, we emphasized upon protected conduct, to the extent that such applications exist, may be facially overbroad and held that “any applications of the statute that infringe explicit movie.” Theriault, 157 N.H. at 218. We disagreed that the statute was p. 5 Amendment protection. Court has established certain categories that are simply outside First

to regulate the production and dissemination of sexually explicit films, the

origination of the act.”

constitutionally protected while production of the same movie is not. Instead, It would mean that sale, distribution and viewing of a non-obscene movie is dissemination in regulating pornography. Moreover, this distinction is illogical.

not shield one against a prosecution for a crime committed during the

convicted of pandering as a result of lewd photographs taken of a fourteen- suppress depictions or descriptions of the same.” the depiction of sexual activity. Fixler, 128 Cal. Rptr. at 364. They were defendants were a photographer and a photo editor for a magazine devoted to for First Amendment purposes, there is a distinction between production and Cal. Rptr. 363 (Ct. App. 1976), in support of its holding. In Fixler, the In addition, Kovner relied upon a California case, People v. Fixler, 128

413 U.S. 15 (obscene material).

power to regulate the non-verbal physical conduct which may occur than to

First Amendment freedoms.” adopted by the United States Supreme Court. The Court has never held that The reasoning in Kovner is based upon a distinction that has never been

considerations may protect the dissemination of printed or photographic O’Brien, 391 U.S. 367 (1968)). Kovner concluded: “While First Amendment

regulate a social evil such as prostitution or pornography, it has a greater

vigorous enforcement may create potentially a chilling effect on the exercise of of the fact that a literal interpretation of the prostitution laws, and their moved to dismiss the charges. Id. Kovner stated: “This court is not unmindful intercourse and recorded the activity on films he later sold. Id. The defendant purpose of making films, paid actors and actresses to engage in sexual Kovner, 409 N.Y.S.2d at 350. The defendant maintained a studio for the arising out of the production of films that depicted explicit sexual conduct. In Kovner, the defendant was charged with promoting prostitution

independent state grounds). California Supreme Court decision in Freeman supported by adequate and Freeman, 488 U.S. 1311, 1314-15 (1989) (denying application for stay because United States Supreme Court has not addressed this issue. See California v. U.S. 1017 (1989); People v. Kovner, 409 N.Y.S.2d 349 (Sup. Ct. 1978). The divided. See People v. Freeman, 758 P.2d 1128 (Cal. 1988), cert. denied, 489 been widely decided in other jurisdictions, those that have addressed it are non-obscene videos is constitutionally protected. Although this issue has not We must decide to what extent the production of sexually explicit but for the purpose of sexual arousal or gratification, his own or the actors’.”

obscene film, and “[t]here [was] no evidence that defendant paid the acting fees

prosecution for the crime committed in obtaining it. instead was “entirely dependent on the payment for the right to photograph.” afforded its dissemination would not be a shield against Id. at such as murder, rape or aiding and abetting intercourse with a minor, but crime is committed in obtaining the material, the protection only payment made was acting fees for the actors’ performance in a noncitations and emphasis omitted). Analyzing the facts, the conduct.” Freeman stated that the sexual arousal, gratification, annoyance or offense.” primary motivation was to capture the crime on film. Id. at 1130 (quotations, requires “touching of the genitals, buttocks, or female breast for the purpose of pandering statute, Freeman looked to the definition of “lewd acts,” which hiring of actors to perform sex acts in a film. Id. at 1129. In construing the In intercourse with a minor, Freeman, the defendant was charged with pandering arising out of the

Id. at 1134.

defendant’s conduct, producing a movie, did not involve an independent crime, manner in which the material was originally obtained, where a

Freeman, 758 P.2d at 1133-34. Freeman concluded that the

independent of and totally apart from any payment for the right to photograph and aiding and abetting intercourse with a minor for that matter, are crimes impunity hire another to commit such a crime simply because the or robbery for the purpose of photographing the act. Murder, rape and robbery Fixler: “Undeniably, one cannot lawfully hire another to commit murder, rape

or the procurement of prostitution, but aiding and abetting unlawful sexual distinguished Fixler because the conduct charged in Fixler was not prostitution This reasoning was abandoned in Freeman. While Freeman

Id. at 3 p. 6 65-66. dissemination of printed or photographic material regardless of the

movie without violating the law does not mean that one could with robbery in progress may be exhibited as a news film or a full length The fact that a motion picture of an actual murder, rape or

While First Amendment considerations may protect the

Fixler stated: panderers and were not immune from prosecution of their crimes.” Id. at 3 p. 6 66. order to obtain these photographs they become, by definition, common use the photographs in a nonobscene publication, the fact remains that in Amendment grounds. Fixler held that, assuming the defendants “intended to year-old girl. Id. at 365. The defendants appealed the decision on First overbroad as applied to the specific facts of this case.

p. 7 has met his burden to prove that RSA 645:2, I(f) is unconstitutionally

from continuing to prosecute prostitution, even when the acts are videotaped. constitutionally protected. Thus, our holding today will not prevent the State arousal or gratification” and thus engaged in conduct that was not request to make a movie was for an illegitimate purpose. Thus, the defendant

would have required the State to prove that he acted for “the purpose of sexual them.” There was, therefore, no finding by the trial court that the defendant’s penetration. That is [J.S.] would sexually penetrate [C.H.] while he videotaped offered to pay [the couple] money, that is $50 an hour, to engage in sexual

the defendant’s arguments under the Federal Constitution.

Amendment values.” nonobscene motion picture would impinge unconstitutionally upon First the defendant with offering to pay them to engage in sexual contact, which BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

found that the State “proved beyond a reasonable doubt, that [the defendant] Reversed. at 237.

In light of our ruling under the State Constitution, we need not address

pandering statute to the hiring of actors to perform in the production of a penetration while he videotaped them. We note that the State did not charge was charged with offering to pay two individuals to engage in sexual dictated by the specific charges and unique facts of this case. The defendant intent is that he intended to make pornography. Moreover, the trial court “to make pornography.” The only evidence in this record as to the defendant’s Here, C.H. testified that the defendant offered to pay fifty dollars per hour

come within the definition of ‘prostitution’ literally, the application of the

(pornography protected where not obscene). We emphasize that our holding is speech protected by the State Constitution. See Ashcroft, 535 U.S. at 240 sexual intercourse while being videotaped, would infringe upon an area of adduced at trial were that the defendant offered to pay two people to have To uphold the conviction in the instant case, where the only facts

holding by stating that “even if defendant’s conduct could somehow be found to establish procurement for purposes of prostitution.” Id. Freeman qualified its requisite conduct nor did he have the requisite mens rea or purpose to 1131. Freeman thus held that the defendant “did not engage in either the