2008-289, STATE OF NH v. JEREMY JENNINGS

three children and were divorced in 2000. The wife received physical custody

The record supports the following. The defendant and his wife have

2008). We affirm. of prohibited uses of computer services, see RSA 649-B:4 (2007) (amended conviction, following a jury trial in the Superior Court (Groff, J.), on one count BRODERICK, C.J. The defendant, Jeremy Jennings, appeals his

the defendant. Paul Borchardt, assistant appellate defender, of Concord, on the brief, for

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

to press. Errors may be reported by E-mail at the following address: Opinion Issued: June 12, 2009

No. 2008-289 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 advanced by the entire statutory scheme.”

p. 2 legislature’s intent in enacting them, and in light of the policy sought to be the defendant guilty on the remaining charge. This appeal followed.

a child or another person believed by the person to be a child, to

scheme and not in isolation. . . . Our goal is to apply statutes in light of the of the three prohibited uses of computer services indictments. The jury found

solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice,

to include. We also interpret a statute in the context of the overall statutory penetrated her vagina. After the close of evidence, the trial court dismissed two legislature might have said nor add language that the legislature did not see fit legislative intent from the statute as written and will neither consider what the

found both a desktop and a laptop computer. service, Internet service, or local bulletin board service to seduce,

testified that while she was watching the video on his computer, he digitally his computer screen. The defendant does not contend otherwise. She also ascribe the plain and ordinary meaning to the words used. We interpret pornographic video via a website on the internet and showed her the video on

provisions according to the fair import of their terms and to promote justice.

detective from the department subsequently went to the defendant’s home and Any person who knowingly utilizes a computer on-line spoke to the child’s mother before contacting the Milford Police Department. A guidance counselor. After speaking with the daughter, the guidance counselor RSA 649-B:4 provides, in pertinent part:

625:3 (2007). considered as a whole. We begin by examining the language of the statute, and Hudson, 151 N.H. 688, 690 (2005) (quotations and citations omitted); see RSA one occasion when she was visiting the defendant, he accessed at least one arbiters of the legislative intent as expressed in the words of the statute de novo.” State v. services. This case requires that we construe RSA 649-B:4. “We are the final (decided April 8, 2009) (citations omitted). “We construe Criminal Code

friends later expressed her concern for the daughter’s safety to her high school

prohibited uses of computer services. At trial, the daughter testified that on insufficient evidence to support his conviction for prohibited uses of computer The defendant’s sole argument on appeal is that the State introduced

friends that her father had been touching her inappropriately. One of the

The defendant was tried on several charges, including three counts of

In 2005, the defendant’s eldest daughter, then fifteen years old, told two

the defendant every other weekend at his residence. of the children under the divorce decree, but the children were allowed to visit computer on-line service, internet service, or local bulletin board service RSA 625:3, however, we look to the statute’s infinitive phrase, “to seduce,

p. 3 when a person

profitable account or use : make use of,” and includes “use” as a synonym,

legislature did not see fit to include — specifically, knowingly utilizes a earlier plain meaning analysis, we fail to see ambiguity. Given the mandate of “never communicated with [his daughter] over the internet.” Based upon our service, or local bulletin board service” is ambiguous, and reiterates that he

plain and ordinary meaning of “utilize” includes “to make useful : turn to

what the legislature might have said or add language to the statute that the

the statutory phrase “knowingly utilizes a computer on-line service, Internet

argument that the statutory phrase “utilizes a computer on-line service, other, [he] did not utilize the internet.” We disagree with the defendant’s [his daughter] sent any communication or information over the internet to each we need not determine a specific definition here. Instead, we note that the not had prior cause to define this term within the context of RSA 649-B:4, and is the statutory term “utilizes,” which is not defined in the statute. We have Further, to accept the defendant’s construction would require that we consider

messaging service, clearly fall under the statute.” He contends, however, that or action by means of : make instrumental to an end or process . . . UTILIZE.” communicating with a minor over the internet, through email or an on-line The defendant acknowledges that “[c]ertain actions, such as . . .

decline to do either. See Lamy, 158 N.H. at ___. communicate with a child in order to seduce, solicit, lure, or entice a child. We

ascribing the plain and ordinary meaning to the words used. At issue initially requirement that necessarily entails communicating with another person. Id. at 2524. Nowhere in the plain and ordinary meaning do we detect any

pertinent and synonymous definition of “use” includes “to carry out a purpose Webster’s Third New International Dictionary 2525 (unabridged ed. 2002). The

message, an image or anything else over the internet, nor did she communicate communicate with [his daughter] over the internet. He did not send her a computer on-line service, internet service or bulletin board service . . . [to] Our analysis begins with an examination of the statutory language,

service, internet service, or local bulletin board.

communicates with another, specifically a child, via the on-line

charge of prohibited uses of a computer], because [he] did not utilize a The defendant contends that the “trial court erred [in not dismissing the

and related offenses. I. Any offense under RSA 632-A, relative to sexual assault commit any of the following is guilty of a class B felony: who need new laws to help with those challenges. p. 4 crimes. This technology is a new challenge for law enforcement

“[T]o read such a limit into the statute would undermine its very purpose.”

computer on-line service, an internet service, or a local bulletin board service. or verbal communication between a defendant and a child accomplished via a

Prevention Act of 1998,” chapter 649-B is known as the “Computer Pornography and Child Exploitation In addition to the legislative history recited by the defendant, we note that RSA and exploitation committed by means of computer. This State v. Jennings, 155 N.H. 768, 777 (2007) (construing RSA 632-A:2).

to action : serve as an urge or incentive to . . . to strongly urge . . . insist upon make petition to : ENTREAT . . . to approach with a request or plea . . . to move legislature intended to limit the scope of RSA 649-B:4 only to forms of written ordinary meaning of the transitive verb “solicit” includes the following: “to computer,” Id. at 428-29. We see nothing in this history to support an argument that the child pornography, exploitation, and abuse offenses committed by means of

a temptation or lure to : ATTRACT.”

believe it supports a broader construction than that argued by the defendant. This bill, as amended, establishes penalties for child pornography

detailed that: speaking for the House Committee on Criminal Justice and Public Safety, statute to determine the legislature’s intent. pornography and child exploitation,” id. at 428. Representative Cardin,

N.H.H.R. Jour. 430 (1998), and to “prevent[ ] computer or verbal communication between two individuals. Specifically, the plain and the policy considerations for punishing the conduct in question.”

House Bill 1561-FN indicates that its purpose was to “establish[ ] penalties for

through some natural influence or property . . . to seek to affect . . . to serve as

esp[ecially] into evil . . . to endeavor to obtain by asking or pleading : plead for Although the legislative history of the statute is relatively sparse, we

336, 339 (2003).

149 N.H. 706, 709 (2003). We begin by looking at the legislative history of the

terms in the statute’s infinitive phrase as tending to include a form of written than one reasonable interpretation, we examine the nature of the offense and Dictionary, supra at 2169. “When the statutory language is subject to more

. . . to seek eagerly or actively . . . to have an effect on (a person or thing)

. . . to entice or lead astray by or as if by specious arguments : lure on and

We acknowledge that it may be reasonable to read at least one of the

analysis. solicit, lure, or entice,” and its direct object, “a child,” to further our statutory pornography production.

p. 5 sexual stimulants to lure them into sexual activities and

Defendant used his computer to expose his victims to various illicit sexual conduct with each other or with him. . . . In short, pornographic images to his victims would entice them to engage in 5

participation,” reasoning that “the computer played an integral part in a

court noted the defendant had conceded that:

sources. Moreover, Defendant expected that showing these

court had ruled that the defendant “did use his computer to ‘solicit’ the minors’ Reaves, 253 F.3d at 1203 (quotation and citations omitted). The federal district enhancements and the Sex Crimes Against Children Prevention Act of 1995. pornography crimes under the same sentencing guidelines. The appellate

conduct. He obtained some of these images from various internet explicit conduct for the purpose of producing sexually-explicit material.” technology as a lure to drag children into sexual relationships.” victims both before and after their participation in sexually explicit computer was used to solicit participation by or with a minor in sexually [H]e used his computer to show sexually explicit imagery to his

defendant, the appellate court looked to the legislative history of the sentence appellate court affirmed the defendant’s enhanced sentence for child Similarly, in United States v. Reaves, 253 F.3d 1201 (10th Cir. 2001), the

activity, he was using it to solicit participation in that activity.” Id. that, “In using the computer to desensitize his victims to deviant sexual (quotation and italics omitted). The Sixth Circuit Court of Appeals concluded

concern the fact that pedophiles may use a child’s fascination with computer in his sentence under the United States Sentencing Guidelines “because a Id. That legislative history detailed that “the Committee notes with particular

language of the sentencing guidelines was not as limited as argued by the affirming the defendant’s sentence enhancement and determining that the specifically ask minors to engage in sexually-explicit conduct.” Id. at 628. In in the protection of children from the types of dangers presented by the same. [the computer] to solicit participation, in that he did not, via the computer, internet, and the need for new and broader statutes to assist law enforcement the computer sentencing adjustment did not apply because “[he] did not use Brown, 237 F.3d at 626. The defendant contended that, due to its language,

producing and possessing child pornography. He received a two-level increase denied, 532 U.S. 1030 (2001), the defendant appealed from his sentence for related federal cases. In United States v. Brown, 237 F.3d 625 (6th Cir.), cert. We note that this broad construction of the statute is in consonance with

presented by the computer, the expanse of possibilities presented by the Instead, we believe that the legislative history acknowledges the new technology communication between two persons. Fifteen years later,

p. 6 reasonable to read “solicit” as tending to include a form of written or verbal

“solicitation” of a child. As noted above, we acknowledge that it may be

Unfortunately, this form of solicitation is not uncommon. entice and lure the children into sexual relationships . . . .

Incompetent”) provides, in pertinent part: see Laws 1998,

the legislature chose to limit the statutory prohibition to any person’s In that statutory paragraph, effective August 23, 1983, see Laws 1983, 448:1,

the fact that the perpetrator used a computer at all. endangering the welfare of such child. young victims. Rather, Congress wanted to punish more generally showed these images to his victims on his computer in order to sexual penetration as defined by RSA 632-A:1, V, constitutes interested in punishing specific ways of using a computer to lure by any person of a child under the age of 16 . . . to engage in In the prosecution of any person under this section, the solicitation

Furthermore, RSA 639:3, III (2007) (“Endangering Welfare of Child or via email or the internet solely penalizes

Id.

encourage.’”

. . . Defendant acquired child pornography on the internet, then computer technology. Thus, it appears Congress was not merely so — an unacceptable result given Congress’s broad concerns. child’s fascination with computers rather than if a pedophile does

Limiting “solicit” in [the sentencing guidelines] to “direct requests”

Id. at 1205. The court concluded:

“because ‘solicit’ means ‘to directly ask or request,’ not ‘to entice, lure, or

concern with the ability to exploit a child’s general fascination with children via the internet. Instead, Congress emphasized a broader ability to use a computer to directly contact increased numbers of Significantly, Congress’s concerns were not limited to a pedophile’s

looked to the same legislative history as in United States v. Brown, and noted: rejecting his narrow definition of “solicit,” the Tenth Circuit Court of Appeals

Id. In affirming the defendant’s sentence enhancement and

On appeal, the defendant argued that the district court had erred

pornography and encourage the sexual conduct depicted therein.” Id. solicitation scheme presumably designed to accustom the minor to child solicit, lure, or entice, a child.”

p. 7 computer.

“utiliz[ing] a computer on-line service, [or] Internet service . . . to seduce,

pornography, child exploitation, and abuse offenses committed by means of a

the video, clearly fall within the scope of RSA 649-B:4’s prohibition of on his computer, and digitally penetrating her vagina while she was watching accessing a website on the internet to show his daughter a pornographic video

light of the statutory scheme’s overarching policy of preventing computer 7 Consequently, we read the proscription of RSA 649-B:4 broadly, especially in ALLURE, ATTRACT . . . to draw into evil ways : lead astray : TEMPT”).

and policy behind the statute, we believe that the defendant’s actions of “solicit.”

statutory proscription. “seduce . . . lure, or entice” indicates a clear legislative intent to expand the ordinary meaning of “entice” includes: “to draw on by arousing hope or desire : penetration. We believe that the legislature’s inclusion of the additional terms

examination of the legislative history and associated statutes, and the purpose verbal communication between two persons that might reasonably be read into DALIANIS, DUGGAN and HICKS, JJ., concurred.

pleasure or gain : ALLURE, ATTRACT, ENTICE, INVITE”), 757 (plain and the solicitation of a child under the age of sixteen to engage in sexual

Given the plain and ordinary meanings of the statutory terms, our “entice,” for example, we do not see the same requisite for a form of written or

whenever possible, every word of a statute should be given effect.”).

(plain and ordinary meaning of “lure” includes: “to tempt with a promise of chose to include, in RSA 649-B:4, III, the proscription of RSA 639:3, III against See Webster’s Third New International Dictionary, supra at 1347

Given the plain and ordinary meanings of the transitive verbs “lure” and or local bulletin board service to solicit a child, but to

and the internet. At that time, the legislature chose not to legislature is not presumed to waste words or enact redundant provisions and

Indeed, in structuring the framework of RSA 649-B:4, the legislature

proscription to include utilizing those entities to seduce, lure, or entice a child.

to a proscription against utilizing a computer on-line service, internet service,

expanding challenges presented by the powerful new technologies of computers 361:3, the legislature addressed the need for new statutes to target the