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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Strafford
No. 2017-0143


                       THE STATE OF NEW HAMPSHIRE

                                        v.

                                  BAILEY P. SERPA

                          Argued: January 18, 2018
                         Opinion Issued: May 24, 2018

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the memorandum of law and orally), for the State.

      Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief
and orally), for the defendant.

      LYNN, C.J. The defendant, Bailey P. Serpa, appeals an order of the
Superior Court (Howard, J.), requiring him to register as a sexual offender. On
appeal, the defendant argues that registration as a sexual offender for a
conviction of violating RSA 649-B:4 is contrary to the manifest objectives of
RSA 632-A:4 and violates constitutional requirements that all penalties be
proportional to the offense. We affirm.

      The pertinent facts follow. In March 2015, the defendant was indicted on
a charge of using a computer online service or internet service to seduce,
solicit, lure, or entice a child to engage in sexual assault, contrary to RSA 649-
B:4 (2016). At the time of the underlying conduct, the victim was 15 years old,
and the defendant was 18 years old.

       The defendant entered into a written felony diversion agreement
(diversion agreement) with the State. Pursuant to the diversion agreement, the
State would dismiss the charge against the defendant if he abided by several
conditions for a period of 18 months. However, if the defendant violated the
terms of the diversion agreement, he agreed to waive his right to a jury trial
and plead guilty to violating RSA 649-B:4 in return for the State recommending
that he receive a six-month house of correction sentence, suspended for two
years under specified conditions.

      Among other conditions, the diversion agreement required the defendant
to “commit no new crimes and be of good behavior for the period of the
diversion program.” (Quotation and brackets omitted.) The diversion
agreement further provided that “being of good behavior means that the
defendant shall not be charged with any misdemeanor or felony crimes during
the duration of this agreement.” (Quotation omitted.)

       In June 2016, the defendant was charged with seven crimes stemming
from at least two incidents in which he allegedly stole items from a Wal-Mart
store. The State learned of the charges and requested that the trial court
schedule a plea and sentencing hearing. Over the defendant’s objection, the
trial court scheduled a plea and sentencing hearing. At the hearing, the
defendant complied with the diversion agreement and pled guilty to the
indictment. The State recommended the sentence provided for by the diversion
agreement, and the trial court imposed that sentence. The trial court then
notified the defendant that he was required to register as a sexual offender.
This appeal followed.

       The defendant first argues that New Hampshire law does not require “an
18 year old who uses a computer as a medium to propose sex with a 15 year
old” to “register as a sex offender.”

        Resolving this issue requires us to engage in statutory interpretation.
“The interpretation of a statute is a question of law, which we review de novo.”
State v. Fiske, 170 N.H. 279, 288 (2017) (quotation omitted). “In matters of
statutory interpretation, we are the final arbiters of the intent of the legislature
as expressed in the words of a statute considered as a whole.” Id. at 288-89
(quotation and brackets omitted). “We first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
ordinary meaning.” Id. at 289 (quotation omitted). “We interpret legislative
intent from 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.”



                                         2
Id. (quotation omitted). “However, we will not interpret statutory language in a
literal manner when such a reading would lead to an absurd result.” Id.
(quotation omitted).

       The defendant acknowledges that RSA chapter 651-B (2016 & Supp.
2017) requires persons convicted of violating RSA 649-B:4, such as the
defendant, to register for life as a sexual offender. However, the defendant
argues that he should not have to register as a sexual offender for his
conviction under RSA 649-B:4 because, had he sexually assaulted the victim,
who was older than 13 and less than four years younger than him, the assault
would have met the criteria of misdemeanor sexual assault under RSA 632-A:4,
I(c) (2016), which RSA 632-A:4, II exempts from the registration requirement of
RSA chapter 651-B. We find the defendant’s argument unavailing.

        RSA 649-B:4 provides, in relevant part, that “[n]o 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” “[a]ny offense under RSA [chapter] 632-A,
relative to sexual assault and related offenses.” RSA 649-B:4, I. A person
convicted of violating RSA 649-B:4 is required to register as a sexual offender
for life. See RSA 651-B:6, I (Supp. 2017) (providing that “tier II or tier III
offenders shall be registered for life”); RSA 651-B:1, IX (Supp. 2017) (classifying
a person convicted of violating RSA 649-B:4 as a “Tier II offender” (quotation
omitted)). Thus, the plain language of the statutes requires a person convicted
of utilizing a computer online service to solicit sex from a child to register as a
sexual offender for life.

       The registration exception that the defendant points to is RSA 632-A:4,
II, which provides that a person found guilty under RSA 632-A:4, I(c) “shall not
be required to register as a sexual offender” under RSA chapter 651-B. See
also RSA 632-A:4, I(c) (providing that sexual assault is a class A misdemeanor
if the assault does not meet the criteria of aggravated felonious sexual assault
and the age difference between the defendant and the victim is “4 years or less”
and the victim is “13 years of age or older and under 16 years of age”). Based
upon the plain language of RSA 632-A:4, II, the registration exception only
applies to persons convicted of violating RSA 632-A:4, I(c); it does not apply to
persons convicted of violating RSA 649-B:4. In sum, based upon the
unambiguous language of the statutes, RSA chapter 651-B requires the
defendant to register as a sexual offender, and the exception from registration
contained in RSA 632-A:4, II does not apply to him because he was convicted of
violating RSA 649-B:4, not RSA 632-A:4, I(c).

      The defendant raises additional arguments regarding the legislative
history of RSA 632-A:4 and RSA chapter 651-B. However, because the
statutory language is plain and unambiguous, we will not examine the



                                         3
legislative history of the statutes. See State v. Perry, 166 N.H. 716, 722 (2014)
(“We do not consider legislative history to construe a statute that is clear on its
face.” (quotation omitted)).

       The defendant next argues that the penalty for violating RSA 649-B:4, as
applied to him, violates the Eighth Amendment to the Federal Constitution and
Part I, Articles 18 and 33 of the State Constitution. According to the
defendant, the registration requirement is “a grossly disproportional result
under our constitutions, because it imposes a much greater sentence and
penalty for an attempted offense than it does for the completed offense.” We
disagree.

       “Where, as here, the defendant asserts that his constitutional rights have
been violated as a result of the trial court’s sentencing decision, we review that
decision de novo.” State v. Carpentino, 166 N.H. 9, 21 (2014). “The party
challenging the constitutionality of a statute bears the burden of demonstrating
that it is unconstitutional.” Doe v. State of N.H., 167 N.H. 382, 388 (2015).
“We must presume that the sentencing scheme is constitutional and we cannot
declare it unconstitutional except upon inescapable grounds.” State v. Bird,
161 N.H. 31, 40 (2010).

       Part I, Article 18 of the State Constitution “provides at least as much
protection against disproportionate punishment as does the Eighth
Amendment to the Federal Constitution.” State v. Enderson, 148 N.H. 252,
258 (2002). Accordingly, we first address the defendant’s claim under the State
Constitution and rely upon federal law only to aid our analysis. See id.; State
v. Ball, 124 N.H. 226, 231-33 (1983).

       Part I, Article 33 of the State Constitution prohibits “cruel or unusual
punishments.” N.H. CONST. pt. I, art. 33. Part I, Article 18 of the State
Constitution provides that “[a]ll penalties ought to be proportioned to the
nature of the offense.” N.H. CONST. pt. I, art. 18. “For a sentence to violate
Part I, Article 18 of the State Constitution, it must be grossly disproportionate
to the crime.” Bird, 161 N.H. at 40 (quotation omitted); see also Harmelin v.
Michigan, 501 U.S. 957, 1001 (1991) (“The Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it forbids only
extreme sentences that are ‘grossly disproportionate’ to the crime.”).

       The crux of the defendant’s constitutional challenge is that RSA 649-B:4
criminalizes attempted sexual assault, and a violation of RSA 649-B:4 requires
registration as a sexual offender, whereas a violation of RSA 632-A:4, I(c),
involving an actual assault, does not. Thus, the defendant argues that the
statutory scheme “imposes a much greater sentence and penalty for an
attempted offense than it does for the completed offense.” We disagree.




                                         4
       RSA chapter 632-A and RSA 649-B:4 criminalize separate and distinct
conduct. RSA chapter 632-A criminalizes sexual assault, whereas RSA 649-
B:4 criminalizes the use of computer online services or internet services to
seduce or solicit children to engage in certain sexual activities. In other words,
RSA 649-B:4 does not criminalize attempted sexual assault; it criminalizes a
certain use of computer online services or internet services. Cf. State v.
Moscone, 161 N.H. 355, 360 (2011) (noting that the crime prohibited by RSA
649-B:4 is “complete when the defendant uses the internet in an effort to solicit
a child . . . to engage in sexual activity” and contrasting RSA 649-B:4 with an
“attempt statute,” which is “paired with another criminal statute” and charged
when the “defendant has failed to complete the underlying crime”).

       The legislature has the authority to determine what penalty is
appropriate for a given crime, and we must presume that the penalty is
constitutional. See Bird, 161 N.H. at 40. The defendant fails to persuade us
that a registration requirement is grossly disproportionate to the crime of
violating RSA 649-B:4. The legislature viewed individuals who use computer
online services or internet services to seduce or solicit children to engage in
certain sexual activities as particularly dangerous. See State v. Farrington,
161 N.H. 440, 449 (2011) (noting the legislative goal of RSA chapter 649-B was
“protecting children from exploitation over the internet”). Such individuals can
use the technology to mask their identities, gain direct access to children in
their own homes, and lure children away from their guardians. Registration as
a sexual offender helps monitor these persons. See RSA 651-B:4-a (Supp.
2017) (requiring individuals registered as sexual offenders to provide police
with every “online identifier,” such as screen names and e-mail addresses); see
also Doe, 167 N.H. at 399, 401 (concluding that the legislature intended RSA
chapter 651-B to be regulatory and noting that the legislature’s purpose in
enacting the law was to “protect children by having more eyes and ears in the
community looking out for them” (quotation omitted)).1

       Moreover, it is not unreasonable for the legislature to require registration
for a violation of RSA 649-B:4 but not for a violation of RSA 632-A:4, I(c). The
legislature could have concluded that violations of RSA 632-A:4, I(c) that result
from sexual activity between young people often involve a spontaneous act
arising from the passion of the moment, which is less deserving of a
registration requirement. Conversely, the legislature could have viewed
violations of RSA 649-B:4, which prohibits the use of certain technology to
“seduce, solicit, lure, or entice” children, as more likely to involve a calculated

1
 The defendant relies to some extent on Miller v. Alabama, 567 U.S. 460, 471 (2012), in which the
United States Supreme Court ruled that a sentencing scheme that mandated life in prison without
the possibility of parole for juvenile offenders violated the Eighth Amendment. However, the
defendant here was an adult — not a juvenile. Accordingly, Miller provides no support for the
defendant’s argument that requiring him to register for life as a sexual offender is grossly
disproportionate to the crime of using a computer or internet service to solicit sex from a child.



                                                5
act, thereby warranting a registration requirement. See State v. Dean, 115
N.H. 520, 522 (1975) (“[T]he legislature has the power to enact laws defining
crimes and to fix the degree, extent and method for punishment.” (quotation
omitted)). It may be that, given the changes in how young people communicate
today, the reasons for the distinction drawn by the two statutes may be
diminishing. But if changes are to be made for these reasons, the task is that
of the legislature, not this court.

       Accordingly, we conclude that RSA chapter 651-B requires the defendant
to register as a sexual offender for his conviction under RSA 649-B:4, and the
registration requirement does not violate Part I, Article 18 of the State
Constitution because it is not grossly disproportionate to the crime for which
the defendant was convicted.2 Because the Federal Constitution offers no
greater protection than does the State Constitution under these circumstances,
we reach the same result under the Federal Constitution as we do under the
State Constitution. See Enderson, 148 N.H. at 258; Ball, 124 N.H. at 231-33.

                                                                      Affirmed.

       HICKS, BASSETT and HANTZ MARCONI, JJ., concurred.




2The defendant also argues that his sentence violated Part I, Article 33 of the State Constitution.
However, he only argues that his sentence violated Part I, Article 33 because it was grossly
disproportionate to the crime of violating RSA 649-B:4. Because his sentence was not grossly
disproportionate to that crime, for the reasons discussed above, we also find no violation of Part I,
Article 33.



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