State of New Hampshire v. Stefan R. Gauthier

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0405, State of New Hampshire v. Stefan
R. Gauthier, the court on March 16, 2015, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Stefan Gauthier, appeals his conviction for witness
tampering. See RSA 641:5, I(b) (2007). He argues that the Superior Court
(McNamara, J.) erred in denying his motion to dismiss because the court failed
to articulate a limiting construction of the statute that prohibited his conduct
and was not constitutionally overbroad.

“The purpose of the overbreadth doctrine is to protect those persons who,
although their speech or conduct is constitutionally protected, may well refrain
from exercising their rights for fear of criminal sanctions by a statute
susceptible of application to protected expression.” State v. Brobst, 151 N.H.
420, 422 (2004) (quotation omitted). “[T]he overbreadth of a statute must be
real and substantial, judged in relation to the statute’s plainly legitimate
sweep.” Id. “The criterion of ‘substantial overbreadth’ precludes a court from
invalidating a statute on its face simply because of the possibility, however
slight, that it might be applied in some unconstitutional manner.” Id.
(quotation omitted). “If a statute is found to be substantially overbroad, the
statute must be invalidated unless the court can supply a limiting construction
or partial invalidation that narrows the scope of the statute to constitutionally
acceptable applications.” Id. (quotation omitted).

The defendant was convicted of violating RSA 641:5, I(b), which provides
that a person is guilty of a felony if, believing that an official proceeding or
investigation is pending, he attempts to induce or otherwise cause a person to
withhold any testimony or information. See RSA 651:5, I(b). The record shows
that at the close of the evidence, the defendant moved to dismiss, arguing that
he “does not surrender or forfeit any of his constitutional rights because he’s a
state prison inmate . . . under investigation,” that the State had proven only
that he gave “friendly advice to . . . someone who’s also involved in a conspiracy
to introduce contraband into the prison,” and that he “did not threaten or
attempt to coerce or ask [her] to lie.”
 The trial court construed the defendant’s motion as an overbreadth
argument. For purposes of ruling on the motion, the court found the statute to
be substantially overbroad because it could arguably be applied to an attorney
legitimately advising his client not to talk to the police. The court noted,
however, that when a statute is substantially overbroad, the issue is whether
the court can provide a narrowing construction that is constitutionally
acceptable. The court found the statute to be constitutionally acceptable “if it
is applied to subjects of a criminal investigation or those potentially involved
with subjects of a criminal investigation, speaking to witnesses with the
purpose of attempting to induce them not to testify.” The defendant did not
object to the court’s narrowing construction of the statute or to the court’s final
jury instructions, which set forth the elements of the offense without a
narrowing construction.

On appeal, the defendant concedes that “a construction restricting the
statute to speech having the purpose of obstructing the course of justice would
make the statute constitutional.” He argues, however, that the court’s limiting
construction was flawed because by including not only the subjects of a
criminal investigation, but also “those potentially involved with” the subjects of
a criminal investigation, the court failed to exclude “[t]he lawyer, the advocate,
the friend, and the activist,” who “might all be described as being ‘potentially
involved’ with subjects of a criminal investigation.”

We will not consider issues that the defendant did not properly raise in
the trial court. See State v. Eaton, 162 N.H. 190, 195 (2011). The purpose of
this preservation rule is to give the trial court the opportunity to correct any
error before it is presented to this court on appeal. See id. In this case, the
defendant did not object at trial to the court’s limiting construction of the
statute or to the court’s final jury instructions. Accordingly, we conclude that
the issue is not preserved for our review. See id.; see also N.H. Dep’t of
Corrections v. Butland, 147 N.H. 676, 679 (2002); Super. Ct. R. Crim. 59-A(1).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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