State v. Boulais

834 A.2d 380, 150 N.H. 216, 2003 N.H. LEXIS 165
CourtSupreme Court of New Hampshire
DecidedNovember 7, 2003
DocketNo. 2002-710
StatusPublished
Cited by9 cases

This text of 834 A.2d 380 (State v. Boulais) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Boulais, 834 A.2d 380, 150 N.H. 216, 2003 N.H. LEXIS 165 (N.H. 2003).

Opinion

DUGGAN, J.

The defendant, Christopher Boulais, appeals his conviction in Salem District Court {Jones, J.) on six counts of disorderly conduct. See RSA 644:2, 11(b) (1996). On appeal, Boulais argues that the trial court misconstrued RSA 644:2, 11(b) and that the evidence was insufficient to support his convictions. We reverse.

The record supports the following facts. In 2001, while employed at Sunsational Tanning Salon in Salem, Boulais made numerous remarks to female customers and employees which were the basis for six disorderly conduct charges.

The first two charges involved a woman who worked at the salon. Shortly after she was hired, Boulais told the employee that he wanted to “unzipper [her] pants and eat [her] for breakfast.” On the same day, while the employee was standing on a ladder, Boulais leaned toward her waist area and stated: “Perfect height for my breakfast.” Boulais made these comments when he was alone with the employee. She testified that Boulais’ remarks made her uncomfortable, shocked and fearful.

The third and fourth charges involved a customer of the salon. When the customer was alone with Boulais in the salon, he told her that he could give her “some good protein.” She found this remark disgusting. Boulais also told the customer that he wanted her to “stand over his head.” The customer testified that immediately after this encounter, she cried and was upset.

The fifth charge stemmed from an incident involving another employee of the salon. This woman testified that while she was working at the salon, Boulais told her: “Go have sex with your boyfriend, and if he can’t make you happy... then come see me.” Like the other women, she testified that Boulais’ remark was made outside of the presence of others. She further testified that it made her uncomfortable, mad, upset and scared.

The sixth charge involved a customer of the salon. She testified that when she saw Boulais at a restaurant near the salon and asked him what he was “up to,” Boulais responded that he was “[s]ix three, 220 pounds, 10 y-2. inches, fully extended.” There were several other customers and workers in the restaurant when Boulais made this remark. The customer testified that she was humiliated and embarrassed by Boulais’ comment and that she wanted to punch him in the face but she chose not to because she is “a little bit too much of a lady.”

[218]*218We first address Boulais’ argument that the trial court misconstrued RSA 644:2, 11(b). Because we hold that the trial court misinterpreted the statute and that Boulais did not violate it, we need not address his remaining arguments.

When construing a statute, we first examine its language, ascribing the plain and ordinary meaning to the words used by the legislature. Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585 (2003). We do not consider words and phrases in isolation, however, but within the context of the statute as a' whole. Id. This enables us to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. Indeed, it is especially appropriate to consider the evil or mischief the statute was designed to remedy. Id. Because the interpretation of a statute is a question of law, we review the trial court’s decision de novo. Pennelli v. Town of Pelham, 148 N.H. 365, 366 (2002).

Boulais was charged under RSA 644:2,11(b), which provides: “A person is guilty of disorderly conduct if ... [h]e [directs at another person in a public place obscene, derisive, or offensive words which are likely to provoke a violent reaction on the part of an ordinary person____” The statute thus makes it unlawful to utter “offensive words which are likely to provoke a violent reaction.” RSA 644:2, 11(b). There is no dispute that Boulais’ remarks were offensive. Thus, we must determine whether the trial court correctly construed the element of “likely to provoke a violent reaction.”

We begin with an analysis of the plain and ordinary meaning of “violent.” “Violent” is defined as “characterized by extreme force” and “marked by abnormally sudden physical activity and intensity.” Webster’s Third New International Dictionary 2554 (unabridged ed. 1961). By using the word “violent,” the legislature intended to criminalize those offensive words which are likely to provoke extreme force or abnormally sudden physical activity. The trial judge found that the violent reaction element of the statute could be satisfied if the listener experienced feelings of outrage, discomfort, and humiliation. This broad reading of “violent reaction” is inconsistent with the plain and ordinary meaning of the words used by the legislature. We disagree with the trial court’s ruling that remarks that cause only an internal emotional response in the listener could meet the violent reaction element and be the basis for a disorderly conduct charge.

Our conclusion is supported by our prior construction of this provision. We have stated that the purpose of the disorderly conduct statute is to [219]*219preserve the public peace. See State v. Chaplinsky, 91 N.H. 310, 312 (1941), aff'd sub nom. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Thus, “[d]erisive and annoying words can be taken as coming within the purview of the statute ... only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace.” Id. at 320-21.

The legislative history of RSA 644:2 is also consistent with this interpretation. The disorderly conduct statute, adopted as part of the Criminal Code of 1971, was recommended to the legislature in the Report of Commission to Recommend Codification of Criminal Laws. In commenting on the disorderly conduct statute, the Commission referred to the Model Penal Code. See COMMISSION TO RECOMMEND CODIFICATION of Criminal Laws, Report of Commission to Recommend Codification of Criminal Laws 100 (1969). As we did in State v. Murray, 135 N.H. 369 (1991), we use the Model Penal Code commentaries as guidance in construing RSA 644:2,11(b).

The comments to the Model Penal Code’s disorderly conduct provision state that it is not intended as “blanket authority for ridding the streets of undesirables. Instead, [the provision] reflects an effort to limit disorderly conduct to specifically designated acts likely to create a public nuisance.” Model Penal Code and Commentaries § 250.2 comment 2, at 328 (1980). “To punish language merely because it is ‘offensive’ plainly goes too far, as it covers speech that is objectionable only because it is unpopular.” Id. § 250.2 comment k(b) at 333. The commentaries further suggest that

even the most vigorous abuse would not be covered if it were uttered in circumstances that did not bring home to the actor the risk of public disturbance____On the other hand, any language that qualifies as “abusive” would be punished if the context involved a substantial and unjustifiable risk of violent reaction

Id. § 250.2 comment Mb) at 337.

In interpreting RSA 644:2, 11(b), the trial court ruled that Boulais could be found guilty if, in response to his remarks, the listener had a violent emotional reaction which could include trembling, outrage and humiliation.

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Bluebook (online)
834 A.2d 380, 150 N.H. 216, 2003 N.H. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boulais-nh-2003.