2009-617, State of New Hampshire v. Andrew Farrington

Michael A. Delaney

No. 2009-617

Hillsborough-southern judicial district

computer with internet access. He had an account on the website twenty-one-year-old defendant lived in Londonderry where he owned a by a jury on one count of prohibited uses of computer services. See The jury could have found the following facts. In October 2007, the DUGGAN, J. The defendant, Andrew Farrington, appeals his conviction

Meredith Lugo

affirm. by denying his motion to dismiss based upon sufficiency of the evidence. We B:4 (2007). On appeal, he argues that the Superior Court (Fitzgerald, J.) erred

defendant.

general, 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 could just tell him that, but A.D. replied, “no[,] [I] do.” p. 2 she was in person. He also told her that if she did not want to meet him, she they could “chill” and also told her that he was “dying to see just ho[w] hott” in the best shape?” A few minutes later, the defendant again asked A.D. when defendant asked, “don’t they usually make the flyers the hottest ones who are the defendant that she was a “flyer” on the cheerleading team, and the that she was a cheerleader, and he replied, “that is wicked hott.” A.D. also told During their next conversation, on December 11, A.D. told the defendant

the next time she was in Londonderry. time she came to Londonderry and A.D. replied that she would let him know shower?” “nice and hot and wet?” He again suggested that they meet the next defendant that she had just taken a shower and he asked her, “how was ur “chill sometime” in Londonderry. Additionally, during that chat, A.D. told the On December 9, the defendant again suggested to A.D. that they should

Londonderry. defendant also told her to let him know if she wanted to get together while in replied, “what a tease,” “you’re so cute and you’ll be right in town.” The defendant that she was going to visit a friend in Londonderry. The defendant The defendant and A.D. chatted again on December 7, and A.D. told the

damn cute.” young in her picture but was “hott as hell,” and later told her she was “just so be able to deal with that.” The defendant also told A.D. that she looked a little that young” and told the defendant she was fourteen, he told her that he “may older so they could “go chill sometime.” When A.D. replied that she was “not defendant told A.D. that she was “cute as hell,” and that he wished she was was from an AIM chat that occurred on December 6. During that chat, the December 2007, but the earliest transcript of their messages presented at trial by America Online. The two communicated during October, November and communicated through AIM, which is an internet messaging service provided Facebook, A.D., who was thirteen years old at the time, and the defendant later in October 2007 and chose the third option. After their initial contact on The defendant received a photograph through this application from A.D.

question and include a reply with the recipient’s name. options: (1) ignore the question; (2) answer it anonymously; or (3) answer the question, “are you interested?” The recipient can then choose one of three up to have their photographs randomly sent out to other users with the which is called, “Are you interested?” Through this application, users can sign the site. Facebook also has several applications available to users, one of information about themselves and establish connections with other users on Facebook.com, which allows individuals to sign up for an account, list personal p. 3 [Dunn]: and your [sic

. . . .

[Defendant]: do you want to hang out?

[Dunn]: you don[’]t want to have sex?

[Defendant]: so what are you thinking? . . .

defendant and Dunn discussed whether they would meet in person: sometime at her friend’s house in Londonderry. Later in the conversation, the and pretending to be A.D. Dunn, posing as A.D., told the defendant to visit her defendant, this time by logging into his AIM account through his cell phone

[Defendant]: but who’s to say that that would happen[?]

Later that evening, Dunn again engaged in conversation with the

[Defendant]: well, if [I] did do that, [I] certainly wouldn’t tell anyone

you wouldn[’]t tell anyone[?]

defendant was much older, the defendant answered, “so?” However, when Dunn indicated that his “sister” was only thirteen and that the defendant responded that Dunn was “creepy” and that he was “not into that.” the defendant and A.D. engage in sexual relations with one another. The to come over the next time his mother was not home and suggested that he, defendant was “hot.” Later in their conversation, Dunn invited the defendant Dunn told the defendant that he was A.D.’s brother and that A.D. thought the about his dream, Dunn contacted the defendant to “mess around with him.” name to Dunn. Approximately thirty minutes after the defendant told A.D. Dunn, about her conversations with the defendant and gave his AIM screen After the defendant told A.D. about the dream, she told her friend, Peter

and told her he could probably describe the dream more graphically. how they engaged in sexual intercourse. He also said, “[I] told you it was dirty” “then somehow we ended up on the back seat.” The defendant then described for a bit,” then you put your hand on my lap,” “and [I] ended up kissing you,” me and told me to come pick you up,” “so [I] did and we drove around talking “dirty things.” A.D. answered, “no tell me,” and he replied, “well, you had IM’d in the dream, he replied that she did not want to know because it involved told her that he had a dream about her. When she asked him what happened of you.” The next evening, the defendant initiated a conversation with A.D. and don[’]t let the bed bugs bite haaa,” and the defendant replied, “[I]’ll be dreaming minutes. At the conclusion of their conversation, A.D. said, “sweet dreams On December 18, the defendant and A.D. chatted for about fifteen entirety and with all reasonable inferences drawn in the State’s favor, was p. 4 defendant bears the burden of establishing that the evidence, viewed in its A.D. to engage in sexual penetration. “To succeed on a motion to dismiss, the insufficient evidence to prove that he attempted to seduce, solicit, lure or entice The defendant’s sole argument on appeal is that the State introduced

convicted the defendant and he appealed. purpose to attempt to seduce, solicit, lure or entice A.D. The jury subsequently chat sessions to establish that the defendant used the internet with the instructions, the court instructed the jury that they could consider only the denied the motion, ruling that it was a question for the jury. During jury posing as A.D., attempted to seduce, solicit, lure or entice him. The trial court seduce, solicit, lure or entice A.D. If anything, the defendant argued, Dunn, charge, arguing that the evidence was insufficient to prove that he attempted to

At the close of the State’s case, the defendant moved to dismiss the

defendant that she was uninterested in meeting him. intercourse. She also indicated that she was unsure why she did not tell the intercourse with her and that they never discussed meeting to have sexual and A.D. At trial, A.D. testified that the defendant never asked to have sexual computer and investigators found several chat sessions between the defendant he attempted to meet A.D. The defendant consented to a search of his home meet her.” He also told police that he brought condoms and lubrication when that I was interested in having sex with her that night[,] um, when I were to go night “to meet an underage girl, um, to have sex with,” and that it was “implied whole thing just felt wrong.” He admitted however that he went to Nashua that he later removed A.D. from his Facebook and MySpace pages because “the that he left after seeing a police cruiser because he felt uncomfortable and that defendant that night. During a subsequent interrogation, the defendant stated car, he called the police, who responded, but did not make contact with the drove to Nashua in an attempt to meet A.D. When Dunn saw the defendant’s with the address of one of Dunn’s neighbors. On December 30, the defendant defendant made plans to meet in person, and Dunn provided the defendant Following this conversation, Dunn, again posing as A.D., and the

thought to be A.D. defendant did not ask to engage in sexual relations with the AIM user he sex]” and that he would be willing to engage in anal sex with A.D. However, the want to try anal sex. The defendant indicated that “[I] like to start with [oral the defendant if he would like “her” to perform oral sex on him and if he would The conversation then became increasingly sexually graphic and Dunn asked

[Defendant]: but [I] mean, you’re a little illegal

[Defendant]: of course [I] do . . . addressed the meaning of the words “seduce, solicit, lure, or entice” in State v. p. 5 ascribing the plain and ordinary meaning to the words used. We previously Our analysis begins with an examination of the statutory language,

explicit conduct. engage in sexual penetration with him, the statute does not require such him.” The State argues that while the defendant never explicitly asked A.D. to asserts, “he merely responded to sexual questions and comments posed to attempted to “seduce, solicit, lure, or entice” A.D. Instead, the defendant to dismiss because the State did not present sufficient evidence that he The defendant contends that the trial court erred in denying his motion

related offenses. I. Any offense under RSA 632-A, relative to sexual assault and

any of the following is guilty of a class B felony: or another person believed by the person to be a child, to commit lure, or entice, or attempt to seduce, solicit, lure, or entice, a child

Internet service, or local bulletin board service to seduce, solicit,

Any person who knowingly utilizes a computer on-line service,

Jennings. In Jennings, the defendant showed his daughter a pornographic

RSA 649-B:4 provides, in pertinent part:

Id. (quotation omitted). provisions according to the fair import of their terms and to promote justice.” (2009) (quotation and ellipses omitted). Finally, “[w]e construe Criminal Code review a trial court’s interpretation of a statute de advanced by the entire statutory scheme.” State v. Jennings The defendant’s argument requires that we construe RSA 649-B:4. “We, 159 N.H. 1, 3 legislature’s intent in enacting them, and in light of the policy sought to be scheme and not in isolation. Our goal is to apply statutes in light of the include.” Id. “We also interpret a statute in the context of the overall statutory might have said nor add language that the legislature did not see fit to intent from the statute as written and will neither consider what the legislature meaning to the words used.” Id. (citations omitted). “We interpret legislative examining the language of the statute and ascribe the plain and ordinary expressed in the words of the statute considered as a whole.” Id. “We begin by N.H. 511, 515 (2009). “We are the final arbiters of the legislative intent as

context, and not in isolation.” Id. the State.” Id. (quotation omitted). Additionally, “we review the evidence in and reasonable inferences arising therefrom in the manner most favorable to charged.” State v. Lacasse, 153 N.H. 670, 672 (2006). “[W]e view the evidence insufficient to prove beyond a reasonable doubt that he was guilty of the crime the defendant she had just taken a shower, he asked her if the shower was p. 6 just ho[w] hott you are in person.” During another conversation, after A.D. told you’ll be right in town.” On another occasion, he told her “[I]’m dying to see with older friends. He also called her a “tease” and told her “you’re so cute and might be able to “deal with” her age and asked if she had ever been involved conversations. When the defendant discovered A.D.’s age, he told her that he continuously used sexual innuendos directed toward A.D. during their desire to meet her in person on numerous occasions. The defendant also defendant repeatedly told A.D. that he found her attractive and expressed his In particular, from the beginning of his online relationship with A.D., the

that the defendant intended his communications to attract, tempt or invite A.D. affirmatively ask A.D. to engage in sexual penetration, a jury could have found defendant suggests. While we agree that the defendant did not explicitly or explicitly or affirmatively ask the victim to engage in sexual penetration as the and ordinary meaning do we discern any requirement that the defendant must Id theme of tempting, attracting or leading someone astray. Nowhere in the plain statute so narrowly. Instead, all of the definitions draw upon the common in the statute require an explicit or affirmative request. We do not interpret the Based upon these definitions, the defendant contends that all four words 6

. . . to serve as a temptation or lure to: ATTRACT. through some natural influence or property . . . to seek to affect eagerly or actively . . . to have an effect on (a person or thing) endeavor to obtain by asking or pleading: plead for . . . to seek

omitted). by specious arguments: lure on and especially into evil . . . to ATTRACT . . . to draw into evil ways: lead astray: TEMPT.” Id strongly urge . . . insist upon . . . to entice or lead astray by or as if. at 8 (quotations meaning of “entice” includes: “to draw on by arousing hope or desire: ALLURE, plea . . . to move to action: serve as an urge or incentive to . . . to gain: ALLURE, ATTRACT, ENTICE, INVITE,” and that the plain and ordinary to make petition to: ENTREAT . . . to approach with a request or ordinary meaning of “lure” includes: “to tempt with a promise of pleasure or . (quotation and brackets omitted). Additionally, we noted that the plain and

meaning of “solicit” includes: lure, or entice.” Id. at 4-5. We determined that the plain and ordinary conduct did violate the statute, we interpreted the phrase, “to seduce, solicit, Id. at 3 (quotation, brackets and ellipsis omitted). In determining that his or bulletin board service to communicate with his daughter over the internet.” conduct because “he did not utilize a computer on-line service, internet service Jennings, 159 N.H. at 2. He argued that he did not engage in any proscribed video on an internet website and was convicted of violating RSA 649-B:4. meaning of the statutory language, in Jennings p. 7 Even if we could not resolve this issue based upon the plain and ordinary

child. Id A:1, the legislature limited the statutory prohibition to only “solicitation” of a endangering the welfare of such child.” We noted that in enacting RSA 632- 7 to engage in sexual penetration as defined by RSA 632-A:1, V, constitutes provides that “the solicitation by any person of a child under the age of 16 . . . We also reviewed RSA 639:3, III (2007), which was enacted in 1983 and the statute. While he did not explicitly ask A.D. to engage in sexual defendant’s overall pattern of behavior falls outside the conduct prohibited by narrow interpretation of the phrase and we decline to adopt it. technologies of computers and the internet,” id. at 7, we cannot say that the efforts “to target the expanding challenges presented by the powerful new meaning of “seduce, solicit, lure, or entice” is contrary to the defendant’s to “expand the statutory proscription.” Id three-month period. Accordingly, we conclude that the plain and ordinary. at 8. In light of the legislature’s additional terms “seduce . . . lure, or entice” in RSA 649-B:4 in a clear attempt 649-B:4, the defendant’s argument ignores the totality of his conduct over a conversations with Dunn did not constitute conduct that runs afoul of RSA. at 7. However, we concluded that the legislature later included the to Dunn’s advances with interest.” Even assuming that the defendant’s him to Nashua to engage in sexual intercourse, and that he “merely responded argues that Dunn “spoke graphically about sexual matters” to him and invited but also stated, “who’s to say that that would happen.” The defendant also he responded that he would not tell anyone if they engaged in sexual relations, contends that Dunn asked him if he was “okay with having sex with” A.D. and subject of sexual activity was raised by . . . Dunn posing as [A.D.]” He of children from the types of dangers presented by the same.” Id. at 5. representing himself as A.D. He argues that “he merely responded when the need for new and broader statutes to assist law enforcement in the protection The defendant, nonetheless, points to the statements of A.D. and Dunn by the computer, the expanse of possibilities presented by the internet, and the noted “that the legislative history acknowledges the new technology presented means of a computer.” Jennings, 159 N.H. at 8. In construing the statute, we computer pornography, child exploitation, and abuse offenses committed by statute “in light of the statutory scheme’s overarching policy of preventing history of RSA 649-B:4 and determined it supported a broad reading of the

N.H. at 673. that he did attempt to “solicit, seduce, lure, or entice” A.D. See Lacasse, 153 course of the online relationship between the defendant and A.D. establishes her that he could be more “graphic.” Viewing the evidence in totality, the entire A.D. about a dream that involved him “f---ing [her] from behind,” and also told “nice and hot and wet.” In one of their final conversations, the defendant told p. 8 Id

insidiously, than would be possible offline.

sexual relationships.” Jennings child’s fascination with computer technology as a lure to drag children into in illegal sexual conduct. Instead, a pedophile is much more likely to “use a relations. It is unlikely that a predator would specifically ask a child to engage more potential victims, and to make initial contacts more enticing a child goes beyond explicitly asking the child to engage in sexual potential victims. Either course allows the predator to contact We agree with these federal courts that seducing, soliciting, luring or proposals of sexual activity or merely to strike up friendships with

exists whether the predator uses the Internet to make explicit anonymous one-to-many communications by a sexual predator sexual relationship. develop a relationship with her, and had the ultimate goal of consummating a defendant did exactly that. He preyed upon A.D.’s youth and innocence to

child’s general fascination with computer technology.”). Instead, Congress emphasized a broader concern with the ability to exploit a purpose of the enhancement. The computer-provided threat of computer to directly contact increased numbers of children via the internet. (“Congress’s concerns were not limited to a pedophile’s ability to use a .; see also United States v. Reaves, 253 F.3d 1201, 1205 (10th Cir. 2001) enhancement for use of a computer to entice a minor. See

proposed through offline communication, would not serve the with minor victims, so long as the ultimate consummation is first allow[ing] a predator to use a computer to develop relationships

with her. p. 8 Id cases interpreting a United States Sentencing Guidelines sentencing. at 447. The court reasoned that computer with the victim with the apparent intention of having sexual relations Our broad construction of RSA 649-B:4 is also in line with related federal propose sexual relations in a computer message, he still communicated via 438. The court determined that although the defendant did not explicitly conduct, but appealed the application of the sentencing enhancement. Id. at defendant pleaded guilty to traveling with intent to engage in illicit sexual by 2 levels.”). In United States v. Lay, 583 F.3d 436 (6th Cir. 2009), the solicit a person to engage in prohibited sexual conduct with the minor, increase computer or an interactive computer service to entice, encourage, offer, or Guidelines Manual § 2G1.3(b)(3)(B) (2009) (“If the offense involved the use of a

argument would contravene the purpose of the statute. See id. at 7-8. type of conduct the legislature sought to prevent and to accept the defendant’s innocence in an attempt to lure her into sexual activities. This is exactly the penetration with him, he used the internet to exploit A.D.’s youth and p. 9 9

Affirmed

DALIANIS, C.J.