In re D.J.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

6th Circuit Court-Franklin Family Division
No. 2021-0560

IN RE D.J.

Argued: September 20, 2022
Opinion Issued: July 13, 2023

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the juvenile.

John M. Formella, attorney general, and Anthony Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the brief
and orally), for the State.

BASSETT, J. The juvenile, D.J., appeals a finding of delinquency made
by the Circuit Court (Luneau, J.) based upon a petition alleging that he
committed harassment under RSA 644:4, I(b) (Supp. 2021). He argues that
there was insufficient evidence to support the trial court’s finding, and that
RSA 644:4, I(b) is unconstitutional as applied and on its face. See N.H.
CONST. pt. I, art. 22; U.S. CONST. amend. I. We affirm.

The following facts were found by the trial court or are undisputed. On
July 11, 2021, the victim was walking on a narrow sidewalk in downtown
Tilton. Several juveniles, including D.J., were riding bicycles on the sidewalk.
The victim told the juveniles that they were not supposed to be riding bicycles
on the sidewalk. D.J. told the victim to go “f**k himself.” D.J. continued to yell
at the victim, who testified that D.J. was “swearing, saying f**k this and f**k
that and you’re nothing but an old man.” The victim yelled back at D.J. and
asserted that he could do martial arts. D.J. got off his bicycle, provoked the
victim to fight, and took off his shirt.

The owner of a store across the street from this encounter observed the
confrontation and, after it had gone on for approximately five minutes, she
began to record it using her cellphone. The store owner also called the police.
The incident lasted approximately eight minutes, until a patrol officer arrived at
the scene.

The State filed a delinquency petition in the circuit court alleging that
D.J. committed the offense of harassment under RSA 644:4, I(b). Following an
adjudicatory hearing, the trial court entered an order finding D.J. delinquent.
The trial court subsequently held a dispositional hearing, after which the court
placed him on twelve months’ conditional release. This appeal followed.

Following briefing and oral argument, we remanded the case to the trial
court so that it could expand upon its findings of fact and rulings of law. After
receipt of the trial court’s order, we invited the parties to file supplemental
briefs, and both parties did so.

We turn first to D.J.’s statutory argument. See Chapman v. Douglas, 146 N.H. 209, 211 (2001) (noting our “established policy against reaching a
constitutional issue in a case that can be decided on a non-constitutional
ground”). The State’s delinquency petition alleged that D.J. committed the
offense of harassment, as defined in RSA 644:4, I:

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:
(a) Makes a telephone call, whether or not a conversation
ensues, with no legitimate communicative purpose or without
disclosing his or her identity and with a purpose to annoy,
abuse, threaten, or alarm another; or
(b) Makes repeated communications at extremely inconvenient
hours or in offensively coarse language with a purpose to
annoy or alarm another; or
(c) Insults, taunts, or challenges another in a manner likely to
provoke a violent or disorderly response; or
(d) Knowingly communicates any matter of a character tending
to incite murder, assault, or arson; or

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 (e) With the purpose to annoy or alarm another, communicates
any matter containing any threat to kidnap any person or to
commit a violation of RSA 633:4; or a threat to the life or safety
of another.
RSA 644:4, I (Supp. 2021) (emphasis added). D.J. was charged only under
subsection (b). He does not dispute that he used “offensively coarse language
with a purpose to annoy or alarm” the victim. RSA 644:4, I(b). He argues only
that the State introduced insufficient evidence to prove that he made “repeated
communications” within the meaning of subsection (b). Id. The State counters
that D.J.’s conduct falls under the definition of “repeated communications”
that we articulated in In re Alex C., 161 N.H. 231 (2010). We agree with the
State.

To prevail on a sufficiency of the evidence argument, D.J. must show
that no rational trier of fact, viewing the evidence in the light most favorable to
the State, could have found him to be delinquent beyond a reasonable doubt.
In re Juvenile 2003-187, 151 N.H. 14, 15 (2004). Resolution of this case
requires that we consider the meaning of “repeated communications” under
RSA 644:4. This is an issue of statutory interpretation, which we review de
novo. Id. at 16. We interpret the statute as written and will not consider what
the legislature might have said or add language that the legislature did not see
fit to include. Petition of Carrier, 165 N.H. 719, 721 (2013). We construe
provisions of the Criminal Code according to the fair import of their terms and
to promote justice. Juvenile 2003-187, 151 N.H. at 16.

RSA 644:4 defines “communicates,” in relevant part, as “impart[ing] a
message by any method of transmission.” RSA 644:4, II (2016). It does not
define “repeated.” In Alex C., we addressed whether the juvenile’s instant
messages constituted “repeated communications” within the meaning of RSA
644:4, I(b). Alex C., 161 N.H. at 235. In that case, the juvenile sent the victim
two instant messages and then, following a forty-six minute break, sent
seventeen more messages in a span of thirty-seven seconds. Id. at 233-34.
Following another pause of less than a minute, the juvenile sent an additional
twenty-two messages over a four-minute span. Id. at 234. We affirmed the
trial court’s finding of delinquency, stating that “repeated communications”
means “renewed, frequent, or constant imparting of a message by any method
of transmission,” and found that the juvenile’s conduct “fit squarely” within
that definition. Id. at 237. In the instant case, the trial court found that, over
the course of the eight-minute encounter, D.J. imparted “a series of messages,
both verbal and non-verbal.” We agree with the State that this conduct
constitutes “repeated communications” as defined in Alex C.

D.J. argues that this conclusion is contrary to the plain meaning of
“repeated.” “Repeated” means “renewed or recurring again and again :
CONSTANT, FREQUENT” or “said, done, or presented again.” Webster’s Third

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New International Dictionary 1924 (unabridged ed. 2002). Relying on these
definitions, D.J. argues that the statute prohibits only acts of “successive
communications,” and “does not concern itself with each statement made
during a single communicative interaction.” We disagree. Nothing in the
definitions cited by D.J. suggests that the same message may not be renewed
or may not recur during a single interaction — particularly where, as here, the
interaction continued for eight minutes.

D.J. asserts that Alex C. stands for the proposition that, unlike an online
exchange of instant messages, “a single in-person interaction” cannot contain
“repeated communications.” However, we explicitly rejected in Alex C. the
argument that a single conversation cannot contain repeated communications.
Alex C., 161 N.H. at 238 (“We disagree that a single conversation necessarily
equates to a single communication.”). At most, Alex C. highlights the reasons
why an online exchange may be more likely than a verbal conversation to
contain “repeated communications”: the process of drafting and sending
written communications creates breaks in communication because an
individual sending instant messages must “compose[], physically type[] on a
computer keyboard, [and] electronically sen[d]” each successive message. Id.
at 238. Nevertheless, if messages exchanged in a verbal conversation are
sufficiently discrete, they, too, may be “repeated communications.” We
conclude that when an individual makes a verbal remark, rejects an
opportunity to stop communicating with the recipient, and imparts another
message, a break has occurred sufficient to make the communications
“repeated.” Here, as the trial court observed, although D.J. had the
opportunity to leave the scene after insulting the victim, “he chose to continue
to remain, and engage [the victim] further.”

Because we find the statutory language clear and unambiguous, we need
not address D.J.’s argument regarding the rule of lenity. Viewing the evidence
in the light most favorable to the State, we conclude that the trial court did not
err when it determined that D.J. made “repeated communications” as set forth
in RSA 644:4, I(b). Juvenile 2003-187, 151 N.H. at 15.

We now turn to D.J.’s constitutional arguments. He argues that RSA
644:4, I(b) criminalizes expressive conduct protected under Part I, Article 22 of
the New Hampshire Constitution and the First Amendment to the United
States Constitution. Part I, Article 22 provides: “Free speech and liberty of the
press are essential to the security of freedom in a state: They ought, therefore,
to be inviolably preserved.” N.H. CONST. pt. I, art. 22. Similarly, the First
Amendment prevents the passage of laws “abridging the freedom of speech.”
U.S. CONST. amend. I. We first address D.J.’s claims under the State
Constitution, and rely on federal law only to aid in our analysis. See State v.
Bailey, 166 N.H. 537, 540 (2014). In reviewing a legislative act, we presume it
to be constitutional and will not declare it invalid except upon inescapable
grounds. State v. Gubitosi, 157 N.H. 720, 727 (2008). In other words, we will

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not hold a statute to be unconstitutional unless a clear and substantial conflict
exists between it and the constitution. Id. (quotation omitted).

D.J. makes two constitutional arguments: he contends that the statute is
unconstitutionally overbroad on its face, and that it is unconstitutional as
applied to the charged conduct. We have explained our overbreadth law as
follows:

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. While the Constitution gives significant
protection from overbroad laws that chill speech within the First
Amendment’s vast and privileged sphere, the application of the
overbreadth doctrine is strong medicine to be employed only as a
last resort. Thus, it remains a matter of no little difficulty to
determine when a law may properly be held void on its face and
when such summary action is inappropriate.

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. If, on the other
hand, a statute is not substantially overbroad, then whatever
overbreadth may exist should be cured through case-by-case
analysis of the fact situations to which its sanctions, assertedly,
may not be applied.
Gubitosi, 157 N.H. at 726-27 (citations and ellipses omitted).

We first consider D.J.’s argument that the statute is substantially
overbroad and, therefore, invalid on its face. A statute is substantially
overbroad if the impermissible applications of the law are substantial when
judged in relation to the statute’s plainly legitimate sweep. State v. MacElman, 154 N.H. 304, 310 (2006). We have held that two subsections of RSA 644:4, I,
are unconstitutionally overbroad. See State v. Brobst, 151 N.H. 420 (2004)
(subsection (a)); State v. Pierce, 152 N.H. 790 (2005) (subsection (f) (repealed
2016, see Laws 2016, ch. 136)). However, in State v. Gubitosi, we rejected a
facial challenge to the constitutionality of the subsection at issue in this case,
subsection (b). In Gubitosi, the defendant was prosecuted under subsection (b)
when he made a series of threatening phone calls to the victim. Gubitosi, 157
N.H. at 722-23. We reasoned:

RSA 644:4, I(b) is distinguishable from the subsections
found unconstitutional in Brobst and Pierce. RSA 644:4, I(b)

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 requires repeated communications that either occur at extremely
inconvenient hours or contain offensively coarse language. Thus,
unlike RSA 644:4, I(a) and (f), RSA 644:4, I(b) does not apply to
“any call made to anyone, anywhere, at any time, whether or not
conversation ensues.” [Brobst, 151 N.H. at 424.] Under
subsection (b), it is not just one call that constitutes the offense,
but a repeated course of calls. Further, subsection (b) specifically
requires communications that consist of “offensively coarse
language” or “extremely inconvenient hours.” Thus, unlike in
Brobst, the offense is not complete when the call is made “to
anyone, anywhere, at any time.” Id. In addition, RSA 644:4, I(b)
requires that these repeated communications be made with the
purpose to annoy or alarm another. With these restrictions, the
scope of RSA 644:4, I(b) is narrowly tailored to the illegal
communications sought to be prevented.
Gubitosi, 157 N.H. at 728. The State argues that Gubitosi controls the instant
matter and, therefore, we must hold that RSA 644:4, I(b) is not
unconstitutionally overbroad. D.J. contends that Gubitosi does not control
because the speech at issue in Gubitosi was made in private and, therefore, the
court did not consider “the application of the statute to speech in public
places.” (Emphasis added.) To that end, D.J. argues that the statute’s
criminalization of speech made in public places renders it unconstitutionally
overbroad. We agree with the State.

We reject D.J.’s assertion that, in Gubitosi, we “had no occasion to
consider” the application of RSA 644:4, I(b) to public speech. In that case, we
analyzed the limitations present within subsection (b) in order to determine
that, “[w]ith these restrictions,” the statute’s scope was “narrowly tailored to
the illegal communications sought to be prevented.” Id. at 728. D.J. identifies
no change of circumstances that renders Gubitosi inapplicable; indeed, D.J.’s
argument relies primarily on out-of-state case law that predates Gubitosi. See
People v. Smith, 862 P.2d 939 (Colo. 1993). Finding Gubitosi controlling, and
in the absence of any argument from D.J. that we should overrule it, we
conclude that the statute is not substantially overbroad on its face.

We must next determine whether the statute is overbroad as applied to
the facts of this case — in other words, whether application of the statute to
D.J.’s conduct infringes upon protected speech. See State v. Theriault, 157
N.H. 215, 219 (2008). D.J. argues that RSA 644:4, I(b) infringes on his
protected speech because his conduct occurred “in public and not at extremely
inconvenient hours,” and that the statute criminalizes his speech “on the basis
only of the use of offensively coarse language and a purpose to annoy [or]
alarm.” The State counters that, notwithstanding that D.J.’s conduct took
place in public during the day, it is not constitutionally protected.

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 The right of free speech under Part I, Article 22 is not absolute and may
be subject to reasonable time, place, and manner regulations that are content-
neutral, narrowly serve a significant governmental interest, and allow other
opportunities for expression. State v. Comley, 130 N.H. 688, 691 (1988). Here,
we conclude that RSA 644:4, I(b), as applied to D.J.’s conduct, meets these
requirements.

First, RSA 644:4, I(b) is content-neutral. “Government regulation of
speech is content based if a law applies to particular speech because of the
topic discussed or the idea or message expressed.” State v. Lilley, 171 N.H.
766, 781 (2019). RSA 644:4, I(b) does not regulate D.J.’s expression based
upon the message, ideas, subject matter, or content of that expression. See
Opinion of the Justices, 128 N.H. 46, 50 (1986) (describing permissible
content-neutral regulations of expression). Rather, the statute regulates the
manner in which he communicated: repeatedly using offensively coarse
language with the purpose to annoy or alarm the victim. See Lilley, 171 N.H.
at 782 (holding ordinance content-neutral, in part because it “merely regulates
the manner in which activities may be carried out”).

Second, the application of RSA 644:4, I(b) to D.J.’s conduct narrowly
serves a significant government interest. In Brobst, we considered RSA 644:4,
I’s constitutionality as applied to phone calls, and observed that “the State has
a legitimate interest in protecting citizens from the effects of certain types of
annoying or alarming” communication, such as the terror caused by receipt of
a frightening phone call. Brobst, 151 N.H. at 424. We believe the State also
has an interest in protecting citizens from equally annoying, alarming,
frightening, and intrusive in-person communications. Here, the trial court
found that, for eight minutes, D.J. repeatedly “us[ed] expletives and yell[ed]” at
the victim, “provok[ing] [the victim] to fight.” D.J. engaged in this behavior
“with a purpose to annoy or alarm [the victim], and it did.” We conclude that
the statute narrowly serves the government’s interest in protecting its citizens
from such bullying.

Finally, the statute allows other opportunities for expression. The
statute only criminalizes communication that meets three restrictive criteria: it
must be repeated, offensively coarse or at inconvenient hours, and with the
purpose to annoy or alarm. See RSA 644:4, I(b); cf. Gubitosi, 157 N.H. at 728
(concluding that RSA 644:4, I(b)’s requirements that communications be
repeated and with the purpose to annoy or alarm another sufficiently limit the
statute’s application). Here, D.J. could have expressed his displeasure with the
victim in a manner that would not have run afoul of the statute; for instance,
he could have rebuked the victim without the use of “offensively coarse
language” or without communicating repeatedly. We conclude that D.J. had
available sufficient alternative means to communicate his message. Bailey,
166 N.H. at 546-47 (holding a park curfew ordinance constitutional as applied
to individuals seeking to protest in the park overnight because the protesters

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could “communicate their message in the manner that they wished” at other
times of day, even if such protest “may have been less effective”).

For these reasons, we conclude that RSA 644:4, I(b) is not
unconstitutional under Part I, Article 22 as applied to D.J.’s conduct. Because
the Federal Constitution offers D.J. no greater protection than the State
Constitution in these circumstances, we reach the same conclusion under a
federal analysis. State v. Bondolillo, 164 N.H. 370, 376 (2012). We therefore
hold that RSA 644:4, I(b) is not unconstitutionally overbroad, either on its face
or as applied to D.J.’s conduct, under the New Hampshire Constitution or the
United States Constitution.

Affirmed.

MACDONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.

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