2024 N.H. 40, State v. Sargent

orally), for the defendant. Wilson, Bush & Keefe, P.C., of Nashua, (Eric R. Wilson on the brief and

the State. general (Joe M. Fincham II, assistant attorney general, on the brief and orally), for John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Sargent, 2024 N.H. 40 Case No. 2023 - 0294 9th Circuit Court - Merrimack District Division

courts/supreme - court direct address of the court’s home page is: https://www.courts.nh.gov/our are available on the Internet by 9:00 a.m. on the morning of their release. The reported by email at the following address: reporter@courts.state.nh.us. Opinions corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

void for vagueness and overbreadth in violation of the State and Federal dismiss, asserting that the offense of official oppression, as applied to him, was harassment policies of LPD and the Town of Litchfield. The defendant moved to with official oppression pursuant to RSA 643:1 for violating the sexual [¶5] Based upon these communications, t he State charged the defendant

potentially becom e the department’s chief one day. that if she “stuck with him,” she could get a canine, go back to school, and would have brought the complainant to his house; and (7) t elling the complainant answer his questions; (6) asking the complainant to run an erran d for him, which “good”; (5) stating that he was “pulling rank” and that the complainant had to expressing disappointment when the complainant stated that her marriage was with the complainant because the defendant’s marriage was in “trouble”; (4) complainant; (3) indirectly suggesting that he wanted a romantic relationship to have sexual connotations; ( p. 2 2) expressing a romantic interest in the referring to having a “problem” with the complainant, which the trial court found comments to the complainant. Such comments included the defendant: (1) [¶4] Throughout these conversations, the defendant made suggestive

the morning of January 1 when the complainant went back on duty. complainant’s shift at 11 p.m. on December 31. C ommunications resumed on communicated via text messages and phone calls until the end of the again on January 1 starting at 7 a.m. The defendant and the complainant [¶3] The complainant worked on December 31 from 3 p.m. to 11 p.m., and

day’s events. including the complainant, to address the rumors and give his account of the After the officers left his home, the defendant began calling LPD officers, with the defendant throughout the day and eventually left around 4 or 5 p.m. LPD officers went to the defendant’s home to check on him. The officers stayed spread about the defendant ’s conduct and condition, and, as a result, several first responders. Through a series of miscommunications, a rumor began to and notified authorities. The alert from the help line representative reached local representative, who apparently suspected that the defendant might be suicidal defendant called an Alcoholics Anonymous help line and spoke with a week between Christmas and New Year’s, started drinking. That same day, the t he morning of December 31, p. 2 2021, the defendant, who took time off during the police officer who se employment with LPD began in or about October 2021. On defendant was the chief of LPD and the complainant was a full - time, probationary [¶2] The trial court found the following facts. At all relevant times, the

benefit himself,” as correctly defined. RSA 64 p. 3 3:1. Accordingly, we reverse. and that the evidence is insufficient to establish that the defendant sought “to trial court erred in broadly interpreting “to benefit himself” as used in RSA 643:1 to the defendant is void for vagueness and overbreadth. We conclude that the Police Department (LPD) and the Town of Litchfield; and (3) RSA 643:1 as applied 3

64 p. 3 3:1. The court explained: the court concluded that the defendant sought to benefit himself pursuant to RSA bribery statute, RSA 640:2, II.” Applying this definition to the facts of the case, and it concluded that a “benefit” is “not limited to pecuniary benefit as it is in the emotional or psychological benefit, if any, that the defendant sought to achieve,” phrase “to benefit himself” “is broad enough to include the momentary personal, as used in RSA 643:1. The trial court determined that the issue was whether the himself, the trial court considered the meaning of the phrase “to benefit himself” [¶8] In concluding that the defendant acted with a purpose to benefit

the State did prove that the defendant sought “to benefit himself,” RSA 64 p. 3 3:1. defendant had a purpose or a specific intent to harm” the complainant, but that concluded that the State “has not proven beyond a reasonable doubt that the unauthorized act which purported to be an act of his office.” T he trial court Here, the complaint alleged that the defendant “[k]nowingly committed an

language of the statute. (2014) (quotation omitted). Accordingly, we begin by addressing the plain first will address the statutory argument.” State v. Brouillette, 166 N.H. 487, 489 error is based upon both a statutory provision and a constitutional provision, we decide cases on constitutional grounds only when necessary, when a claim of challenges to the trial court’s ruling that he violated RSA 64 p. 3 3:1. “Because we [¶6] On appeal, the defendant raises both statutory and constitutional

This appeal followed. defendant guilty. The trial court also denied the defendant’s motion to dismiss. had proved a ll elements of the offense beyond a reasonable doubt and finding the testified. A fter the hearing, the court issued a written order ruling that the State during which the complainant, the defendant, and two other LPD officers presented at trial. In March and April 202 p. 3 3, t he court held a two - day hearing, court withheld ruling on the motion to dismiss to allow it to consider the evidence Constitution s. The S tate objected. Prior to trial, by agreement of the parties, the p. 4 4

to conclude that the phrase “substantially benefit” is limited to “some actual Second, we read the individual definitions of “substantial” and “benefit” together receive benefit : become protected, aided, or advanced” (capitalization omitted)). (defining “benefit” as “to be useful or profitable to : aid, advance, improve” and “to also Webster ’ s Third New International Dictionary 20 p. 4 4 (unabridged ed. 2002) determining what “to benefit” means in the context of RSA 643:1. See i d.; see the dictionary definition of “benefit,” and we now consider this definition in “substantially benefit,” i t is nevertheless instructive. First, in Hynes, we adopted dispositive given that RSA 643:1 uses the term “to benefit” rather than to [¶12] Although our definition in Hynes of “substantially benefit” is not

Hynes, 159 N.H. at 20 1.

“substantially benefit” and explained: relationships.” RSA 637:5, II (i) (emphasis added). W e considered the meaning of safety, business, calling, career, financial condition, reputation, or personal would harm substantially any other person with respect to that person’s health, “[d]o any other act which would not in itself substantially benefit him but which theft by extortion that, a s relevant to Hynes, occurs when a person threatens to RSA 637:5, II(i) (2016). Hynes, 159 N.H. at 191. RSA 637:5 (2016) criminalizes [¶11] In Hynes, the defendant was convicted of theft by extortion under

legislature did not see fit to include. See i d. will not consider what the legislature might have said or add language the to its plain and ordinary meaning. Id. We interpret the statute as written and language of the statute itself, and, if possible, construe that language according review de novo. State v. Pinault, 168 N.H. 28, 31 (2015). We first look to the [¶10] The interpretation of a statute presents a question of law that we

defines “substantially benefit,” rather than “to benefit.” arguing that the defendan t’s “reliance on Hynes is misplaced” because Hynes (2009), to defin e the term “to benefit” as used in RSA 6 p. 4 43:1. The State disagrees, “substantially benefit” that we set forth in State v. Hynes, 159 N.H. 187, 201 “to benefit himself” as used in RSA 643:1. He urges us to adopt the definition of [¶9] On appeal, the defendant argues that the trial court incorrectly defined

sought “to benefit himself” when he communicated with the complainant on insufficient to prove, beyond a reasonable doubt, that the defendant purposely [¶16] We agree with the defendant that th e evidence in the record was

romantic partner. that he was in love with her and implied that he saw her as a potential future the complainant. The court also noted that the defendant told the complainant reassurance, validation and other intangible support” — when he conversed with “sympathetic listener” who would provide him with “company, emotional support, a “momentary personal, emotional or psychological benefit” — specifically, a to benefit himself” under RSA 643:1. The court found that the defendant sought [¶1 p. 5 5] The trial court determined that the defendant acted “with a purpose

the evidence, and not in isolation. Id. favorable to the State. Id. We examine each evidentiary item in the context of all evidence and all reasonable inferences drawn therefrom in the light most essential elements of the crime beyond a reasonable doubt, considering all the defendant, to determine whether any ra tional trier of fact could have found the objectively review the entire record, including any evidence presented by the State v. Folley, 172 N.H. 760, 766 (2020). When considering such a challenge, we evidence raises a claim of legal error; therefore, our standard of review is de novo. acted “with a purpose to benefit himself.” A challenge to the sufficiency of the evidence was sufficient to prove, beyond a reasonable doubt, that the defendant [¶14] Given this definition of “benefit,” we next consider whether the

advantage, or to advance or improve his or her situation or that of another. himself or another,” RSA 643:1, acts with a purpose to obtain a specific considerations, we conclude that someone who acts “with a purpose to benefit emotional, or psychological benefit. Accordingly, b ased up on the foregoing a specific advantage or gain that is more than a momentary or fleeting personal, Rather, someone acting “with a purpose to benefit himself,” RSA 643:1, must seek conversation which could be the basis for seeking a momentary personal benefit. conclusion that RSA 643:1 criminalizes virtually any empathetic, in terpersonal the defendant sought to achieve.” To conclude otherwise would invite the include the momentary personal, emotional or psychological benefit, if any, that disagree with t he trial court that the term “to benefit himself” “is broad enough to “to benefit,” as contemplated in RSA 643:1, includes. For this reason, w e “substantially benefit,” there is nevertheless an outer limit to the breadth of what [¶13] Although we re cogniz e that “to benefit” is broader than to

2002)). 201 (quoting Webster’s Third New International Dictionary 2280 (unabridged ed. “‘ good substance or actual value ’” — i.e., benefits that are “substantial.” Id. at include benefits other than those that have “‘ substance or actual existence ’” or actual advantage that is real and definite.” Id. In other words, “to benefit” must term “to benefit” must include other benefits short of those that have “some p. 6 643:1 requires someone “to benefit” rather than to “substantially benefit,” the advantage that is real and definite.” Hynes, 1 p. 5 59 N.H. at 201. Given that RSA 6

acted “with a purpose to benefit himself” pursuant to RSA p. 6 643:1. reasons explained in this opinion, however, such a request is insufficient to prove that the defendant such a case would not have been the wine and/or gifts, but, rather, the complainant’s company. For context, violated the sexual harassment policies, the benefit the defendant would have sought in request was an attempt to get the complainant to physically come to his house, which, when taken in act which purported to be an act of his office” as charged in the complaint. Moreover, even if the does not violate the sexual harassment policies and therefore does not constitute “an unauthorized he asked the complainant to deliver gifts from the community member and/or wine, such conduct policies of Litchfield and the LPD. Even assuming that the defendant acted “to benefit himself” when unauthorized act which purported to be an act of his office” when he violated the sexual harassment complaint alleged that the defendant violated RSA 643:1 when he “[k]nowingly committed an conduct, while potentially inappropriate, proves that the defendant violated RSA 643:1. The deliver wine and/or gifts from a community member while the complainant was on duty, such We also disagree that, to the extent the defendant asked the complainant to come to his house to 1

(concluding that a police officer ’s repeated requests of a woman to have sexual for a specific benefit. Cf. State v. Gove, 875 P.2d 534, 535 - 37 (Or. Ct. App. 1994) defendant’s romantic desires, we are unpersuaded that they constituted a desire or advantage. Although the communications may have been suggestive of the 1 the complain an t that would have benefit ted him, nor did he seek a specific gain complainant, he never issued an orde r or made a specific request or overture of romantic partner. However, when the defendant made these statements to the that he was in love with her and insinuated that he viewed her as a potential [¶18] The trial court also found that th e defendant told the complainant

the type of benefit that RSA p. 6 643:1 contemplates. court’s broad definition of “benefit.” We cannot conclude that such a benefit is address the rumors surrounding his off - duty conduct could fall within the trial For example, the defendant’s communications with other LPD officers seeking to momentary personal benefit could constitute a benefit pursuant to RSA 643:1. conversation that the defendant had with other LPD officer s that provided him a warrant prosecution”). If we were to co nclude otherwise, then potentially any although if no physical contact were involved the benefit might be too small to explaining that a “benefit” can “encompass even momentary sexual titillation, driver who pinched a ten - year - old girl’s buttocks acted to benefit himself, and Guam v. Camacho, 103 F. 3d 863, 865 - 66 (9th Cir. 1996) (holding that a bus provid ing his unit with work to keep it in existence); People of the Territory of benefit by “the joy or gratification of participating in the response” and by that a volunteer firefighter, in making numerous false fire alarm calls, obtained a v. Quezada, 953 A.2d 1206, 1208 - 10 (N.J. Super. Ct. App. Div. 2008) (holding above, does not constitute a “benefit” within the meaning of RSA 643:1. Cf. State “momentary personal, emotional or psychological benefit,” which, as we explained [¶17] Indeed, t he trial court itself recognized that this benefit was a

“to benefit himself” within the meaning of RSA p. 6 643:1. support” is not an advantage or gain that establishes that the defendant sought would expect f r om a close personal friend,” we conclude that seeking “intangible emotional support, reassurance, validation and other intangible support one sought “a sympathetic listener” who could provide the defendant with “company, December 31 and January 1. Although the trial court found that the defendant p. 7 7

of the statute to determine legislative intent. State v. McKeown, 159 N.H. 434, justice.” RSA 625:3 (2016). In doing so, we must first look to the plain language “shall be construed according to the fair import of their terms and to promote phrase “to benefit” as used in RSA 643:1. “All provisions” of the Criminal Code [¶21] I disagree with the majority’s interpretation of the meaning of the

finding the defendant guilty of official oppression, I respectfully dissent. a subordinate probationary police officer. Because the trial court was correct in when he “made directly and indirectly suggestive comments to the [complainant],” unauthorized act, violated the police department’s sexual harassment policy found that the defendant, Benjamin S argent, a police chief at the time of the office.” RSA 643:1 (2016) (bolding omitted). Here, the Circuit Court (Derby, J.) performing a duty imposed on him by law or clearly inherent in the nature of his act which purports to be an act of his office; or knowingly refr ains from himself or another or to harm another, he knowingly commits an unauthorized defined in RSA 640:2, II, is guilty of a misdemeanor if, with a purpose to benefit [¶20] Titled “Official Oppression,” RSA 643:1 provides: “A public servant, as

arguments. Accordingly, we reverse. 25 (2022). Given this conclusion, we need not address the defendant’s remaining amend the statute. B&C Mgmt. v. N.H. Div. of Emergency Services, 1 p. 7 75 N.H 20, disagrees with our interpretation, it is free, within constitutional bounds, to complainant on December 31 and January 1. RSA 643:1. If the legislature the defendant sought “to benefit himself” in his communications with the definition, the evidence was insufficient to prove, beyond a reasonable doubt, that the phrase “to benefit himself’ too broadly and that, in applying our narrower [¶19] For the foregoing reasons, we conclude th at the trial court interpreted

purposely sought “to benefit himself,” as contemplated by RSA 643:1. termination, they do not prove, beyond a reasonable doubt, that the defendant subordinate ar e inappropriate and may warrant employment discipline or the complainant. Al though such comments m ade by a supervisor to his suggestive, at the most, that the defendant sought a romantic relationship with expression of disappointment that the complainant’s marriage was “good” were comments to the complainant that he thought he was getting a divorce and his discussi ng her sexual proclivities was for her own benefit). T he defendant’s teacher’s gratification from showing her students sexually explicit materials and gratification); State v. Parker, 592 A.2d 22 p. 8 8, 235 (N.J. 1991) (concluding that a relations with him constituted a n intent to obtain the benefit of sexual 8

considering all the evidence a nd all reasonable inferences therefrom in the light have found the essential elements of the crime beyond a reasonable doubt, objectively review the record to determine whether any rational trier of fact could [¶26] When considering a challenge to the sufficiency of the evidence, we

Defendant said t o the complainant involved sex or was of a sexual nature.” intent to benefit himself.” He asserts that “[t]he record is clear that nothing the defendant “made a knowing violation of the [police department’s] policy with the defendant that there was insufficient evidence for the trial court to find that the [¶25] Further, based on my review of the record, I disagree with the

meaning of “to benefit,” the trial court is correct. “[t]his is enough of a ‘benefit’ under RSA 643:1.” Based on the plain and ordinary believed to be the impending end of his marriage.” The court concluded that viewed her as a potential replacement romantic partner following what he defendant “said that he was in love with the [complainant] and suggested that he suggestive comments to the complainant. The court further found that the [¶24] Here, the trial court found that the defendant made a series of

include). (2015) (we will not add language to a statute that the legislature did not see fit to rewrites RSA 643:1. That is not our role. See State v. Gilley, 16 p. 8 8 N.H. 188, 190 previously applied under an analogous criminal statute — the majority effectively departing from the straightforward def inition of “benefit” — one that we have of his office.” RSA 643:1. The statute contains no further constraints. By from performing a duty imposed on him by law or clearly inherent in the nature unauthorized act which purports to be an act of h is office” or “knowingly refrains benefit himself” is criminalized: if the defendant “knowingly commits an legislature has defined the “outer limit” of when conduct done “with a purpose to [¶23] I disagree with the majority’s exercise in statutory construction. The

conversation which could be the basis for seeking a momentary personal benefit.” conclusion that RSA 643:1 criminalizes virtually any empathetic, interpersona l benefit.” According to the majority, “[t]o conclude otherwise would invite the that is more than a momentary or fleeting personal, emotional, or psychological purpose to benefit himself,’ RSA 643:1, must seek a specific advantage or gain RSA 643:1, includes.” The majority concludes that “someone acting ‘with a nevertheless an outer limit to the breadth of what ‘to benefit,’ as contemplated in Despite this plain definition of “benefit,” the majority determines that “there is Webster’s Third New International Dictionary 204 (unabridged ed. 2002)). . : become protected, aided, or advanced.’” Hynes, 159 N.H. at 201 (quoting 637:5, II(i) (2016). In Hynes, we defined “benefit” as “‘to be useful or profitable . . benefit” in the context of theft by extortion. See Hynes, 159 N.H. at 191; RSA v. Hynes, 159 N.H. 1 p. 8 87 (2009), in which we defined the term “substantially [¶22] In defining the phrase “to benefit,” the majority in part relies on State

statute to discern legislative intent. Id. 435 (200 p. 9 9). Absent an ambiguity we will not look beyond the language of the 9

necessarily need to address the defendant’s additional argument that R SA 643:1, respectfully dissent. I note that were this the majority position the court would evidence that the defendant committed official oppression. For these reasons, I term “to benefit” as used in RSA 643:1 and in its finding that there was sufficient [¶30] Accordingly, the trial court was correct both in its construction of the

regular communications with a subordinate employee. of what purported to be the defendant’s discharge of his official duties, that is, his violation of the department’s sexual harassment policy — occurred in the context complainant had to answer his questions. Thus, the unauthorized act — complainant, including saying that he was “pulling rank” and that the office.” It is during these calls that the defendant sexually harassed the extended phone calls with officers while the officers wer e on duty are acts of his police. The trial court found, based on the testimony, that “having frequent, purports to be an act of his office.” The defendant held the office of chief of circumstances. Under RSA 643:1, the “unauthorized act” must be one “which held.” However, the defendant misconstrues the statute under these under any possible circumstance, be a purported act of the office the Defendant [¶2 p. 9 9] The defendant contends that “an act of sexual harassment cannot,

intimidating or offensive work environment for the [complainant].” the defendant’s verbal conduct was of a sexual nature and it created an that “even accounting for the ‘relaxed’ atmosphere of a small police department, about scheduling issues. Thus, there was sufficient evidence for the court to find testimony over that of the defendant, who testifi ed that the calls were mainly because she “felt very uncomfortable.” The court credited the complainant’s follow her chief’s orders; and she left her employment with the police department duty; she felt like she had to stay on the phone with him because she had to made numerous suggestive comments to her over the phone while she was on defendant violated this policy. The complainant testified that: the defendant [¶28] The record demonstrates that there was sufficient evidence that the

Section III, A(c) (eff. May 18, 2021). working environment.” Litchfield Police Department Sexual Harassment Policy, employee’s work performance or creating an intimidating, hostile or offensive such conduct “has the purpose or eff ect of unreasonably interfering with an sexual favors, and other verbal or physical conduct of a sexual nature” when harassment,” in pertinent part, as “[u]nwelcome sexual advances, requests for [¶27] The police department’s sexual harassment policy defines “sexual

was insufficient to prove guilt. Id. at ___, 2024 N.H. 12, ¶1 p. 9 9. de novo. Id. The defendant has the burden of demonstrating that the evidence sufficiency of the evidence raises a claim of legal error, our standard of review is context of all the evidence, and not in isolation. Id. Because a challenge to the reasonably drawn therefrom. Id. We examine each evidentiary item in the well as from facts found as the result of other inferences, provided they can be 12, ¶18. The trier of fact may draw reasonable inferences from facts proved as most favorable to the State. State v. Pierce, 176 N.H. ___, ___ (2024), 2024 N.H. p. 10 10

purposes of this dissent, however, there is no need to do so. as applied to him, is unconstitutionally void for vagueness and overbreadth. For