Argued: January 18, 2018
J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the memorandum of law and orally), for
Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil
on the brief and orally), for the defendant.
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.
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.
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.
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."
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.
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."
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." 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
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
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.
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 ...