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In re Alex C., No. 2009-399 (N.H.; Nov. 30, 2010)

In re Alex C., No. 2009-399 (N.H.; Nov. 30, 2010)

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Court upholds delinquency petition based on juvenile's repeated offensive instant messages directed to a friend's mom (through the friend's IM account).
Court upholds delinquency petition based on juvenile's repeated offensive instant messages directed to a friend's mom (through the friend's IM account).

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Published by: Venkat Balasubramani on Dec 11, 2010
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NOTICE: This opinion is subject to motions for rehearing under Rule 22 aswell as formal revision before publication in the New Hampshire Reports.Readers are requested to notify the Reporter, Supreme Court of NewHampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goesto press. Errors may be reported by E-mail at the following address:reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00a.m. on the morning of their release. The direct address of the court's homepage is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________  Jaffrey-Peterborough District CourtNo. 2009-399IN RE ALEX C.Argued: April 22, 2010Opinion Issued: November 30, 2010Michael A. Delaney, attorney general (Thomas E. Bocian, assistantattorney general, on the brief and orally), for the State.Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the juvenile.BRODERICK, C.J. The juvenile, Alex C., appeals the ruling of the TrialCourt (Runyon, J.) finding the delinquency petition true, see RSA 169-B:6, :16(Supp. 2009). We affirm. The following facts are undisputed. On the evening of February 27,2009, Rachel K.’s daughter ran away from home. The next day, in an effort tolocate her daughter, Rachel K. called friends and contacted the police. Usingher daughter’s password on her home computer,
Rachel K. also logged in toher daughter’s AOL Instant Message (AIM) account. Using her daughter’sscreen name of “hey Nicci hey,” Rachel K. indicated that her daughter wasavailable to communicate with her friends. She believed that one of herdaughter’s friends might respond with information that would help locate herdaughter.
2At approximately 10:30 a.m., the juvenile, using the screen name“skaterboy,” sent an instant message to “hey Nicci hey.” Rachel K. respondedwith a single instant message of “Hey”; the instant message exchange thenended without incident.At approximately 11:00 a.m., the juvenile, now using the screen name“the kaboomroom95” again contacted “hey Nicci hey.” He initially believed thathe was communicating with Rachel K.’s daughter. After “hey Nicci hey”inquired who he was, the juvenile realized that Rachel K. was using herdaughter’s screen name and the following instant messages were sent:thekaboomroom95 (11:19:26 AM): ha this aint even [Rachel K.’sdaughter]the kaboomroom95 (11:20:28 AM): f***ing idiots idk if this is hermom or not but get the f*** off her aim you stupid f***ing b****hey Nicci hey (11:27:01 AM): nice language young man - have thelogs so we and the police are all set - thanks Alex andthekaboomroom95 (11:28:10 AM): well for one fat ass learn tospell for 2 i dident say where she is u f***ing dumbasss i said if urthere i was gonna tell her to get the f*** out because the cops willbe there you just get dumber and dumber go roll down a hill orsomething and squish a[ ]couple of kids u fat whale.After this last instant message, a forty-six minute break occurred, duringwhich neither Rachel K. nor the juvenile typed an instant message or logged off from their AIM accounts.Beginning at 12:14:59 p.m. and ending at 12:15:36 p.m. — a period of thirty-seven seconds — the juvenile typed the phrase “fats***” and sent it to“hey Nicci hey” seventeen separate times. As the juvenile hit the “return” key in between typing each phrase on his computer keyboard, the phrase appearedas seventeen separate entries in the instant messaging window on Rachel K.’shome computer. Less than a minute later, at 12:16:00 p.m., the juvenile typedthe phrase “stuppppid c***” and sent it to “hey Nicci hey.” For approximately four minutes more, until 12:20:23 p.m., the juvenile sent an additional twenty-one instant messages; Rachel K. responded with seven instant messages of herown. At 12:20:23 p.m., the juvenile sent a final instant message of “peacefaggot” to “hey Nicci hey” before logging off from his AIM account at 12:23:00p.m.Alleging that the juvenile had committed the offense of harassment, seeRSA 644:4, I(b) (2007), the delinquency petition stated:
3W[i]th the purpose to annoy Rachel [K.] [the juvenile] maderepeated communications to her house in offensively coarselanguage, to wit, he made communications to her residence twenty times between 11:20 AM and 12:16 PM using coarse language.At the close of the adjudicatory hearing, the juvenile moved to dismiss thepetition, arguing that the instant messaging “conversation between him and[Rachel K.]” constituted “one communication,” and, therefore, his conduct didnot fall within the harassment statute’s proscription against “repeatedcommunications.” After hearing arguments and reviewing the parties’ memoranda of law, the trial court issued a written order ruling that all of theelements of the harassment charge had been proved beyond a reasonabledoubt, and finding the petition true. This appeal followed.On appeal, the juvenile contends that the trial court erred in finding thathis conduct constituted “repeated communications” within the meaning of RSA644:4, I(b). Specifically, he argues that a “plain reading” of RSA 644:4, I(b)“indicates that the statute prohibits a pattern of separate instant messageconversations, not multiple comments made within a single AIM conversation. The State’s reading of the statute to the contrary leads to an absurd and unjustresult that is not supported by the legislative intent and the cases narrowly construing the statute.” (Emphasis added.)Here, the trial court construed RSA 644:4, I(b), a question of law;consequently, we review its ruling de novo. See State v. Brown, 155 N.H. 590,591 (2007).In matters of statutory interpretation, we are the final arbiter of theintent of the legislature as expressed in the words of a statuteconsidered as a whole. We first examine the language of thestatute, and, where possible, we apply the plain and ordinary meanings to the words used. We interpret legislative intent fromthe statute as written and will not consider what the legislaturemight have said or add language that the legislature did not see fitto include. We construe all parts of a statute together to effectuateits overall purpose and avoid an absurd or unjust result.Moreover, we do not consider the words and phrases in isolation,but rather within the context of the statute as a whole.State v. Gubitosi, 157 N.H. 720, 723-24 (2008) (citations omitted). If a statuteis ambiguous, we will consider legislative history to aid our analysis. State v.Dansereau, 157 N.H. 596, 598 (2008). We construe provisions of the CriminalCode “according to the fair import of their terms and to promote justice.” RSA625:3 (2007).

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