THE STATE OF NEW HAMPSHIRE
MERRIMACK, SS.
SUPERIOR COURT
The State of New Hampshire
v.
Owen Labrie
No. 14-CR-617
ORDER
The defendant, Owen Labrie, was tried on one count of certain uses of computer services
prohibited (Indictment No. 973494c) (the “computer uses indictment”), three counts of aggravated felonious sexual assault (“AFSA”) (Indictment Nos. 973495c, 973496c, and 973497c), three
counts of sexual assault (Information Nos. 973498c, 973499c, and 973500c), one count of endangering the welfare of a child (Information No. 973501c), and one count of simple assault (Information No. 973502c). On August 28, 2015, the jury returned verdicts of guilty on the count of
certain uses of computer services prohibited, the three counts of sexual assault, and the count of
endangering the welfare of a child. The jury returned verdicts of not guilty on the remaining
counts. Before the court is the defendant’s motion to set aside the jury’s verdict of guilty on the
computer uses indictment, or in the alternative, to relieve him of the duty to register with the sex
offender registry. The state objects. Because the defendant has failed to sustain his burden of
showing that RSA 649-B:4 (the underlying statute) does not apply to the state’s facts and that the
registration requirement violates his state and federal constitutional rights, his motion is
DENIED.
During the course of the trial, the jury heard the following evidence pertinent to the defendant’s motion. In the spring of 2014, the defendant was an 18-year-old senior at St. Paul’s
-2School in Concord, New Hampshire. The victim was a 15-year-old freshman. In the days before
the defendant’s graduation from St. Paul’s, he sent the victim a series of e-mails and Facebook
messages inviting her to come with him to a secluded area of campus. The victim eventually
agreed and the defendant took her to the top of the Lindsay Building. In a restricted area of the
building, the defendant engaged in three acts of sexual penetration with the victim: penile penetration, digital penetration, and cunnilingus. The instant convictions followed.
The defendant challenges his conviction on the computer uses indictment. In its objection, the state argues correctly that the defendant’s motion to set aside verdict is untimely. Generally, “[a] motion to set aside a verdict of guilty shall be filed within seven days after its rendition;
provided, however, that such time may be extended for cause.” Super. Ct. Crim. R. 105. Notwithstanding the rule, a motion to set aside verdict based on the sufficiency of the evidence is
untimely if the defendant does not raise the issue at the close of the state’s case. See State v.
McAdams, 134 N.H. 445, 446 (1991) (stating the “general procedural requirement that all issues
be presented to the trial court to adequately preserve them”); State v. Johnson, 130 N.H. 578, 587
(1988) (holding legal sufficiency of charge not properly preserved because the defendant did not
object at trial).
The defendant asserts that he could not have known that his argument had merit until after the jury returned verdicts of not guilty on the pending AFSA indictments. The court disagrees.
The defendant had ample notice of both the evidence presented to the jury and the elements of
the crimes charged in each indictment and information. The court instructed the jury that:
You must consider each charge separately and determine whether the state has
proven the defendant’s guilt beyond a reasonable doubt. The fact that you may
find the defendant guilty or not guilty on any one of the charges should not influence your verdict with respect to the other charges.
With respect to the the computer uses indictment, the court instructed the jury as follows:
-3Indictment 973494c accuses the defendant of prohibited uses of computer equipment. The definition of this offense has three parts or elements. The state must
prove each element beyond a reasonable doubt. Thus, the state must prove:
1. The defendant utilized a computer on-line service and/or Internet service to seduce, solicit, lure or entice another person to engage in an act
of sexual penetration with her;
2. The defendant actually believed that the person he was attempting to
seduce, solicit, lure or entice was under the age of 16; and
3. The defendant acted knowingly.
(Emphasis added).1 The defendant did not object to either of these instructions.
A defendant cannot assert a jury instruction was erroneous if he did not contemporaneously object to the instruction when first given to the jury. State v. Kelly, 160 N.H. 190, 194
(2010). This rule is based on “common sense and judicial economy.” Id. (citation omitted); see
also Johnson, 130 N.H. at 587 (the court “will not consider grounds of objections not specified
or called to the court’s attention at the trial,” which “affords the trial court an opportunity to correct an error it may have made and is particularly appropriate where an alleged error involves a
jury instruction”) (citations omitted). The defendant, therefore, was required to move to dismiss
the computer uses indictment following the close of the state’s case and object to the jury instructions. Here, however, the defendant did not move to dismiss the computer uses indictment, nor
did he object to the court’s jury instructions. Consequently, the defendant’s motion to set aside
verdict is untimely.
The foregoing is not dispositive. The defendant is arguing that the evidence is not sufficient to support the jury’s verdict under his construction of the statute. Even if an objection is not
1
As discussed below, RSA 649-B:4 prohibits a person from utilizing a computer on-line service and/or Internet service to seduce, solicit, lure or entice another person to engage in any act that violates RSA 632-A (sexual assault and
related offenses). One can act contrary to RSA 632-A without engaging in sexual penetration. See RSA 632-A:1, V
(defining sexual penetration). For example, RSA 632-A includes prohibitions against engaging in “sexual contact.”
See RSA 632-A:1, IV (defining sexual contact). Nevertheless, in view of the conduct alleged, the court’s jury instruction imposed on the state the higher burden of proving that the defendant utilize a computer on-line service
and/or Internet service to seduce, solicit, lure or entice another person to engage in an act of “sexual penetration.”
-4timely interposed, it could be “plain error” to maintain a conviction that lacks evidentiary support. See State v. Houghton, ___ N.H. ___ (slip op. October 14, 2015). Thus, the court will consider the merits of the defendant’s motion.
A defendant may move to set aside a jury’s verdict as against the law or as against the
facts. See State v. Spinale, 156 N.H. 456, 463 (2007). A verdict is against the law when the evidence is legally insufficient to support the jury’s verdict. Id. Even if the evidence is legally sufficient, a verdict may be against the facts when it is “against the weight of the evidence.” Id. at
465. Here, the defendant argues the evidence is legally insufficient to support the jury’s verdict
of guilty on the computer uses indictment. “Determining whether evidence is sufficient requires
both quantitative and qualitative analysis; ‘quantitatively,’ evidence may fail only if it is absent,
that is, only where there is none at all, while ‘qualitatively,’ it fails when it cannot be said reasonably that the intended inference may logically be drawn therefrom.” Id. at 463 (citation omitted).
When determining whether the evidence is legally sufficient, “the trial court uphold[s] the jury’s
verdict unless no rational trier of fact could find guilt beyond a reasonable doubt, considering all
the evidence and all reasonable inferences therefrom in the light most favorable to the State.” Id.
(citation and quotations omitted). The court “cannot weigh the evidence or inquire into the credibility of the witnesses, and if the evidence adduced at trial is conflicting, or if several reasonable
inferences may be drawn, the motion should be denied.” Id. (citation omitted).
The computer uses indictment alleges a violation of RSA 649-B:4, which provides in pertinent part:
No person shall knowingly utilize a computer on-line service, internet service, or
local bulletin board service to seduce, solicit, lure, or entice a child or another
person believed by the person to be a child, to commit any of the following:
(a) Any offense under RSA 632-A, relative to sexual assault and related
offenses….
-5Here, the defendant acknowledges a literal interpretation of RSA 649-B:4 applies to the sexual
penetration proved in the misdemeanor sexual assault cases. He argues, however, that the legislature did not intend this result. Thus, according to the defendant, the court should not be bound by
the words of the statute.
When interpreting a statute, the court examines the language of the statute and ascribes
“the plain and ordinary meaning to the words used.” State v. Farrington, 161 N.H. 440, 446
(2011) (citation omitted). The court interprets “legislative intent from the statute as written and
will neither consider what the legislature might have said nor add language that the legislature
did not see fit to include.” Id. “While legislative history may be helpful in the interpretation of an
ambiguous statute, it will not be consulted when the statutory language is plain.” In re Walker,
138 N.H. 471, 474 (1994). The court interprets “a statute in the context of the overall statutory
scheme and not in isolation,” with the goal of applying “statutes in light of the legislature’s intent
in enacting them, and in light of the policy sought to be advanced by the entire statutory
scheme.” Farrington, 161 N.H. at 446. In the context of the criminal code, the court construes its
provisions “according to the fair import of their terms and to promote justice.” Id.; see also RSA
625:3 (“The rule that penal statutes are to be strictly construed does not apply to this code;” rather they “shall be construed according to the fair import of their terms and to promote justice.”).
The plain and ordinary meaning of the RSA 649-B:4 words unambiguously establishes
that a person has violated the statute when he has used computer services “to seduce, solicit, lure,
or entice a child” in order to commit an offense under RSA 632-A. The misdemeanor sexual assault convictions are for RSA 632-A crimes. Thus, even if the court accepts the defendant’s implausible argument that a separate RSA 632-A conviction is necessary,2 the evidence supports a
2
This implausible argument is implied by the defendant’s claim that he could not have known about his RSA 632-A
arguments until after the jury returned verdicts of not guilty on the AFSA indictments.
-6finding that the defendant’s conduct falls within the plain meaning of the statute. Consequently,
the court need not consult the legislative history of RSA 649-B:4 nor consider what the legislature might have said when it enacted the statute.
Here, the jury heard evidence that the defendant used e-mails and Facebook messages to
“seduce, solicit, lure, or entice” the 15-year-old victim to come with him to a secluded area of the
St. Paul’s School campus in order to engage in acts of sexual penetration. Engaging in acts of
sexual penetration with a 15-year-old child is a violation of RSA 632-A. Thus, the evidence is
legally sufficient to support the jury’s verdict of guilty on the computer uses indictment.
The defendant asserts that the application of RSA 649-B:4 to the misdemeanor conduct
proved here would lead to an absurd result in view of the legislative intent. He argues that the
statute is directed at protecting children from two particular risks of computer solicitation—
anonymity and age disparity. He points out that neither risk is present in the instant case. He goes
on to point out that he would not have been convicted if he had solicited the sexual penetration
by telephone or direct conversation. According to the defendant, the imposition of the felony
conviction and the concomitant registration requirement to such solicitation via the e-mail and
Facebook messaging commonly used by teens is grossly disproportionate. The court is not convinced.
If the legislature wished to limit the reach of the computer uses crime to situations where
the victim does not know the defendant or where there is a certain age disparity, it certainly could
have included those provisions in the statute. See e.g. RSA 632-A:4, I (specifying the age disparity between actor and victim in defining the crime of sexual assault). It did not do so. This
court cannot “consider what the legislature might have said nor add language that the legislature
did not see fit to include.” Farrington, 161 N.H. at 446 (quotation and citation omitted). The de-
-7fendant’s assertion that the statute implies conditions of anonymity and age disparity is also inconsistent with how the statute has been construed in the past. See e.g. State v. Jennings, 159
N.H. 1 (2009) (upholding a computer uses conviction where there was no anonymity—indeed,
the defendant was the victim’s father). If the legislature disagreed with the court’s interpretation,
it had ample opportunity to amend the statute. Appeal of Phillips, 165 N.H. 226, 232 (2013) (citation omitted) (citing the well-established principle that a practical and plausible interpretation
given a statute without interference by the legislature is evidence that the interpretation conforms
to the legislative intent).
The defendant is correct in his claim that his conduct would not run afoul of the statute if
he did not use a computer or communicate via the Internet. He could have used the telephone or
engaged in direct face-to-face conversation. He also could have used a quill pen and parchment.
The legislature has rationally recognized, however, the danger posed by the use of a computer or
the Internet, which combines the immediacy of conversation with the distance of a written communication conveyed by post. See Jennings, 159 N.H. at 5-7 (examining the legislative understanding of the particular danger of the use of a computer to solicit children to engage in sexual
activity as supporting a broad reading of the statute). Thus, the court is compelled to decline the
defendant’s invitation to depart from the statutory language.
The court is mindful of the defendant’s argument that the felony conviction is disproportionate to the underlying conduct. The court will consider this argument in the context of sentencing. Beyond that, the defendant lacks a judicial remedy. The severity of the statute is properly a legislative issue. Given the existing statutory language, the defendant’s avenue to address his
conviction is to seek clemency from the executive branch.
-8In his motion, the defendant alternatively asks the court to relieve him of the obligation of
registering with the sex offender registry. A person convicted under RSA 649-B:4 is a Tier II offender and is required to register as a sexual offender for life. RSA 651-B:1; RSA 651-B:6.
While RSA 651-B:1, V(d) gives the court discretion to require registration under appropriate circumstances of a person convicted of a crime not specifically enumerated in the statute, it does
not provide the court with the corresponding discretion to relieve a person convicted of an enumerated offense from the registration requirement. Thus under the plain language of the statute,
the defendant is required to register as a Tier II sex offender for life.
The defendant argues that mandatory lifetime sexual offender registration violates his
rights against cruel and unusual punishment under the Eighth Amendment of the United States
Constitution and Part I, Article 18 of the New Hampshire Constitution. The defendant bases his
constitutional claims on his assertion that the registration requirement is disproportionate in view
of his age and the conduct that underlies his felony conviction. “The concept of proportionality is
central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Graham v. Florida, 560 U.S. 48, 59 (2010) (citation and quotations
omitted); see also N.H. CONST. PT. I, ART. 18 (“All penalties ought to be proportioned to the nature of the offense.”). Because the state constitution provides greater protection than its federal
counterpart, the court analyzes the defendant’s constitutional arguments under the state constitution and cites federal cases for guidance only. See State v. Ball, 124 N.H. 226, 232 (1983). “[The
court] must presume that the sentencing scheme is constitutional and [it] cannot declare it unconstitutional except upon inescapable grounds. For a sentence to violate Part I, Article 18 of the
-9State Constitution it must be grossly disproportionate to the crime.” State v. Bird, 161 N.H. 31,
40 (2010) (internal citations and quotations omitted).
The defendant’s first claim of disproportionality is based on his age. For the purposes of
its analysis, the court will assume that the registration requirement is punitive. See Doe v. State of
N.H., 167 N.H. 382 (2015) (concluding that the Tier III lifetime registration requirement is punitive for the purposes of determining whether it can be applied retroactively under the Constitutional prohibition against ex post facto laws). The court will also assume that lack of court discretion is akin to a mandatory minimum sentence. In this context, the United States Supreme Court
has held that mandatory life without parole cannot be imposed on juvenile offenders—the court
must exercise discretion. Miller v. Alabama, 132 S. Ct. 2455 (2012). While this analysis would
be persuasive if the defendant committed the crime when he was 17 and, thus, a juvenile, it cannot apply here because the defendant was not a juvenile. He was 18 years of age. The state constitution “does not prohibit the legislature from constricting the independent exercise of judicial
discretion by the requirement of mandatory sentences.” Bird, 161 N.H. at 40 (citation omitted).
The court is likewise not persuaded that the legislature cannot constitutionally impose a
Tier II registration requirement to the crime of certain uses of computer services prohibited because it is disproportionate. The defendant was convicted of the felony offense of using a computer and the Internet to solicit a child to engage in sexual penetration. While the court agrees
with the defendant that the circumstances of each such crime may include many aggravating and
mitigating factors, the legislature is the body with the responsibility of determining where to
draw the line. It is certainly rational and within the legislature’s discretion to define the crime as
an offense against a child. RSA 651-B:1, VII. It is also rational and within the legislature’s discretion to impose a Tier II registration requirement on a person convicted of committing a sexual
- 10 offense against a child. For these reasons, the court cannot conclude the defendant’s constitutional rights have been violated.
As indicated above, the court lacks the discretion to relieve the defendant of the registration requirement. Because the statute does not violate either the United States Constitution or the
New Hampshire Constitution, the court must adhere to it. There is no judicial remedy. To the extent that the defendant believes that the mandatory registration requirement is unduly harsh as it
applies to his circumstances, his remedy lies in persuading the legislature to amend the statute to
allow him (and others) an opportunity to seek relief from the registration requirement. The defendant also has the remedy of seeking executive clemency.
Based on the foregoing, the court concludes that the defendant has failed to sustain his
burden of showing that his conduct could not have violated the prohibition against computer uses
under RSA 649-B:4 and that the registration requirement violates his state and federal constitutional rights. Accordingly, the defendant’s motion to set aside verdict is DENIED.
So ORDERED.
Date: October 20, 2015
LARRY M. SMUKLER
PRESIDING JUSTICE