2004-491, STATE OF NEW HAMPSHIRE v. DEREK SEAN PIERCE

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Durham District Court
No. 2004-491
THE STATE OF NEW HAMPSHIRE
v.
DEREK SEAN PIERCE
Argued: September 15, 2005
Opinion Issued: December 2, 2005
Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant
attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.
BRODERICK, C.J. The defendant, Derek Sean Pierce, appeals his
conviction for harassment, RSA 644:4, I(f) (1996), in the Durham District Court
(Larson, J.), on the grounds that the statute is unconstitutional. We reverse.
The record supports the following facts. In October 2003, Pierce was
charged with the crime of harassment under RSA 644:4, I(f) which provides:
I. A person is guilty of a misdemeanor, and subject to
prosecution in the jurisdiction where the communication
originated or was received, if such person:

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. . . .
(f) With the purpose to annoy or alarm another, having been
previously notified that the recipient does not desire further
communication, communicates with such person, when the
communication is not for a lawful purpose or constitutionally
protected.
The complaint alleged that Pierce, after being told not to call the victim, called
her cell phone in the early morning hours and said, “You can go f--- yourself for
screwing up my AOL. IM . . . so f--- you, you f---ing whore.” Pierce moved to
dismiss, and the Trial Court (Taube, J.) denied the motion. Pierce
subsequently stood trial and was convicted. This appeal followed.
Pierce argues that RSA 644:4, III impermissibly shifts the burden of
disproving an element of harassment to the defendant — namely, that the
communication “not [be] for a lawful purpose or constitutionally protected” —
in violation of Part I, Article 15 of the New Hampshire Constitution, as well as
the Fifth and Fourteenth Amendments to the United States Constitution. He
buttresses his argument by claiming that if the last clause of subparagraph (f)
is not an element of harassment, the statute is unconstitutionally overbroad
because it criminalizes protected speech, thus chilling First Amendment
freedoms. The State responds that RSA 644:4, III creates an affirmative
defense to the crime of harassment rather than shifting the burden to the
defendant to disprove an element of the crime.
In reviewing a criminal statute, we construe all of its provisions
“according to the fair import of their terms and to promote justice.” RSA 625:3
(1996). We interpret statutes to avoid conflict with constitutional rights
wherever reasonably possible. State v. Smagula, 117 N.H. 663, 666 (1977). All
words of a statute are to be given effect, and the legislature is presumed not to
use words that are superfluous or redundant. Pennelli v. Town of Pelham, 148
N.H. 365, 367-68 (2002).
The party challenging a statute’s constitutionality bears the burden of
proof. Smith v. New Hampshire Dep’t of Revenue Admin., 141 N.H. 681, 693
(1997). Because the constitutionality of a statute is a question of law, we
review a trial court’s rulings de novo. State v. Bortner, 150 N.H. 504, 510
(2004). We first address Pierce’s claims under the State Constitution, citing
federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983).
To address Pierce’s contention that RSA 644:4, I(f) requires
unconstitutional burden shifting, we must determine whether the last clause in
subparagraph (f) — “when the communication is not for a lawful purpose or
constitutionally protected” — constitutes an element of harassment, for which

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the State has the burden of proof, RSA 625:10 (1996), or whether RSA 644:4,
III renders it an affirmative defense, which a defendant must establish by a
preponderance of the evidence, RSA 626:7 (1996); see also Patterson v. New
York, 432 U.S. 197, 205-11 (1977); State v. Soucy, 139 N.H. 349, 352-53
(1995). Paragraph III provides:
In any complaint or information brought for the enforcement of
RSA 644:4, I(f), it shall not be necessary for the state to negate any
exception, excuse, proviso, or exemption contained therein and the
burden of proof of any exception, excuse, proviso, or exemption
shall be upon the defendant.
RSA 644:4, III (1996). The State argues that when subparagraph (f) and
paragraph III are considered together, it is clear that the last clause in
subparagraph (f), the so-called savings clause, is an affirmative defense rather
than an element of the offense as defined by RSA 625:11, III.
The legislature has defined “[e]lement of an offense” to mean, in relevant
part, “such conduct, or such attendant circumstances, or such a result of
conduct as . . . [is] included in the definition of the offense” or that “[n]egatives
an excuse or justification for such conduct.” RSA 625:11, III(a), (c) (1996). The
State argues that this is merely a general provision, and points to the rule that
“where one statute deals with a subject in general terms, and another deals
with a part of the same subject in a more detailed way, the latter will be
regarded as an exception to the general enactment where the two conflict.”
State v. Bell, 125 N.H. 425, 432 (1984).
In Bell, we were required to determine the applicability of certain
exemptions to RSA chapter 318-B, the Controlled Drug Act. The defendant
there was arrested for the sale of a controlled drug and argued that the State
had failed to meet its burden of proof under RSA 625:10 and :11 when it did
not present evidence that he was not authorized to make the sale in question
under one of the statutory exemptions. Bell, 125 N.H. at 427, 431-32 (citing
exemptions found in RSA 318-B:2-a, :9 (Supp. 1981)). In rejecting the
defendant’s argument, we observed that RSA 318-B:22, the statutory provision
within the Controlled Drug Act shifting the burden of proof on the exemptions
to the defendant, was central to the resolution of who bore the burden of proof.
Id. at 432. We noted, “Unless the legislature repeals [the burden shifting
provision within the Controlled Drug Act], the clear and specific intent of that
provision [would not] be displaced by the more general rule found within the
Criminal Code.” Id.
Because RSA 644:4, III was enacted after RSA 625:11, III, the State
argues that the more specific statute must supplant the more general, making
it clear that the legislature intended that the savings clause of subparagraph (f)

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be an affirmative defense and not an element of criminal harassment. As RSA
644:4, III specifically references subparagraph (f), and because there is no
other “exception, excuse, proviso, or exemption contained therein,” the State
argues that paragraph III must necessarily refer to the savings clause. It
claims that to hold otherwise would be to say that the legislature “used
superfluous or redundant words” when it wrote paragraph III. See Pennelli,
148 N.H. at 367-68.
We need not determine, however, whether Pierce or the State is correct.
Even if we assume that, under Bell, the savings clause is an affirmative
defense, the statute is unconstitutional. Holding that the savings clause is an
affirmative defense would leave us with a crime of harassment, the elements of
which would be: (1) communicating with a person; (2) with the purpose to
annoy or alarm; and (3) having been previously notified that the person does
not desire further communication. As an affirmative defense, the savings
clause in subparagraph (f) could not be considered in determining whether the
statute is substantially overbroad. So construed, the statute would be
unconstitutionally overbroad as it would be no narrower than the criminal
statute we struck down in State v. Brobst, 151 N.H. 420, 425 (2004). There
the elements of the crime consisted of: (1) a person making a telephone call,
whether or not a conversation ensued; and (2) with the purpose to annoy or
alarm another. Id. at 421 (quoting RSA 644:4, I(a) (1996)). While the “previous
notification” requirement limits slightly the breadth of RSA 644:4, I(f), it is not
enough to render the statute constitutional.
The State advances no arguments why the statute, interpreted as it
proposed, is susceptible to a more narrow construction. Although “[a] statute
will not be construed to be unconstitutional, where it is susceptible to a
construction rendering it constitutional,” White v. Lee, 124 N.H. 69, 77-78
(1983), we elect not to make the State’s arguments for it.
Having held that Pierce’s conviction merits reversal under the State
Constitution, we do not address his claims under the Federal Constitution.
See Ball, 124 N.H. at 237. Nor need we address whether the statute is vague.
See Brobst, 151 N.H. at 425.
Reversed.
NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.