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State v. Proctor

Supreme Court of New Hampshire, Rockingham

February 8, 2019

THE STATE OF NEW HAMPSHIRE
v.
EDWARD G. PROCTOR

          Argued: January 17, 2019

          Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

          Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          HICKS, J.

         The defendant, Edward G. Proctor, appeals his conviction, following a jury trial in Superior Court (Delker, J.), on one count of violating RSA 632-A:10, I, which prohibits persons convicted of certain offenses from "knowingly undertak[ing] employment or volunteer service involving the care, instruction or guidance of minor children." RSA 632-A:10, I (2016) (amended 2017). We reverse and remand.

         The parties do not substantially dispute the following facts for the purposes of this appeal. The defendant was previously convicted of sexual assault, and at the time of the events leading to his conviction, was on parole. As a result of his conviction, he was required to report quarterly to the local police department so as to initial or sign a sex offender registration form. By initialing or signing the form, the defendant acknowledged that he could not "undertake employment or volunteer service involving the care, instruction or guidance of minor children," including, but not limited to, providing service as a teacher, coach, daycare worker, scout master, summer camp counselor, guidance counselor, or school administrator. RSA 632-A:10, I.

         The defendant, who, at the time, lived in Deerfield, operated his own landscaping business that provided services such as snow-blowing and yard work. In February 2016, the defendant provided snow-blowing services for the neighbor of a juvenile in Hooksett. Initially, the defendant hired the juvenile to clear the neighbor's driveway for him.

         In May 2016, the defendant hired the juvenile to work for him on other jobs. The defendant would pick up the juvenile at the juvenile's home in Hooksett and drive him to job sites in Deerfield and Northwood. The work involved filling in pot holes, pulling weeds, and laying down bark mulch. The defendant told the juvenile what to do and showed him how to do it. At the end of May, the juvenile's mother learned that the defendant was a registered sex offender and directed her son to cease working for him. A Rockingham County grand jury subsequently indicted the defendant for violating RSA 632-A:10, I.

         Before trial, the defendant moved to dismiss the indictment, arguing that the statute is unconstitutional. In its narrative order denying the motion, the trial court determined that the statute "is intended to penalize those subjected to its terms from consciously entering into labor or service, which involves the defendant having some supervisory or management authority over a minor child." The court explained, "Put another way, the statute penalizes those persons who have a [qualifying] felony conviction . . . from knowingly either applying for and accepting a position that involves supervision or management of a minor, or directly entering into an employment relationship with a minor child."

         The trial court reiterated its statutory interpretation when it overruled the defendant's objections to its proposed jury instructions:

[DEFENSE COUNSEL]: Your Honor, with respect to . . . the Court's jury instructions . . . where [they define] the . . . prohibition from childcare services of persons convicted of certain offenses. [They say], . . . "This means the State must prove that the Defendant, either; one, applied for and accepted a position that involved a supervision or management of a minor," which tracks the language of the statute. And then the Court adds a second element, "Two, or directly entered into an employment relationship with a minor child." And it is that second element, in essence, that we would be objecting to, Your Honor.
[T]here is nothing in the statute that adds that layer, or that particular element to 632-A:10 .... The Court is interpreting the law, and adding an element, with respect to the second prong of that jury instruction. That is the Court's interpretation of the statute.
THE COURT: Well, let me ask you a question. What would your position be if that second prong . . . [said] directly entered into an employment relationship with a minor child in which the Defendant was responsible for the supervision or management of a minor?
[DEFENSE COUNSEL]: I would argue that the first part of the Court's instruction mirrors the statute, and it is proper; however, the evidence presented to this jury would be in direct contradiction to what the ...

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