2004-279, STATE OF NH v. FRANK SIMONE

defendant’s home to conduct a census survey. Olson gave the defendant her obtained sufficient survey information. In January 2001, Olson went to the the same respondents by telephone and by personal visit until she had traveled door - to - door to conduct census surveys. She would t hen re - contact employed by the U.S. Census Bureau as a field service representative. Olson The jury could have found the following facts. In 2001, Coral Olson was

I(a). We affirm. convicted the defendant, Frank Simone, of stalking in v iolation of RSA 633:3 - a, DALIANIS, J. Following a trial in the Superior Court (Hicks, J.), a jury

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 2004 - 279 Hillsborough - sou thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

months. I will die in prison because my health is very poor, and life in jail because I know unequivocally that I will die within a few in jail. I do not have to worry about spending seven years of my remorseful and I don’t care if I rot in hell. And I know I will die in, means so much to me to tell, tell you that I’m terribly sorry and court. And I don’t care if I get seven years or 70 years. This I don’t care if the police come and arrest me. I don’t care if I go to

said: personal information about her and about her marriage. The defendant then previously misrepresented himself to Olson’s husband in order to obtain In a 7:18 p.m. message on June 11, the defendant admitted that he had

He also acknowledged that he said and wrote “a lo t of things.” in court was not towards Olson, but that he “had a lot of anger towards [her].” June 11, the defendant said, among other things, that the anger he had shown lengthy messages on Olson ’s answering machine. In a 7:15 p.m. message on defendant not to contact her. Nevertheless, he called back and left several On June 11, p. 2 2003, the defendant called Olson. She again told the

open. As a result, Olson frequently contacted the Temple police. could estimate. The defendant also sent Olson packages, which she did not and June p. 2 2003, the defendant placed more unwanted calls to her than she defendant continued to call her. Olson testified that between the fall of 2001 defendant from contacting her. Notwithstanding the protective order, the In October 2001, Olson obtained a protective order prohibiting the

with Olson. about the situation. Nonetheless, the defendant continued to pursue contact ceas e contact. On August 18, p. 2 2001, Officer Duval spoke with the defendant met with Officer Steven Duval and expressed her desire that the defendant In August 2001, Olson contacted the Temple Police Department. She

marriage and sabotage her employment. each time u ntil she finally answered. The defendant threatened to ruin Olson’s answer the telephone, the defendant would call repeatedly and leave messages want to talk to the defendant. She told him not to contact her. If she did not these personal telephone calls. She felt extremely uncomfortable and did not problems” and felt suicidal and out of control. Olson did not initiat e any of defendant persisted in calling her. He told Olson that he had “serious personal responded that she was married and not interested in him. Nevertheless, the Olson. The defendant told Olson that he w as interested in her; Olson After the defendant completed his census survey, however, he continued to call telephone calls and one follow - up personal visit to complete the census survey. business card with h er home phone number, and conducted several follow - up p. 3 3

anguish.” At 12:56 p.m., 12:58 p.m., 1:02 p.m., 1:05 p.m., 1:19 p.m., 1:25 that he lost everything that he loved and that he caused her “so much pain and p.m., the defendant said tha t he was sorry that he did not have her anymore, whether Olson was home and begged her to answer the telephone. At 12:5 p. 3 3 p.m., 12:36 p.m., 12:39 p.m., 12:45 p.m. and 12:47 p.m., the defendant asked imp lored Olson “not to return the things that are coming in the mail.” At 12:32 defendant said he was “sorry it had to come to this.” At 12:28 p.m., he message that he “was not going to jail for seven years.” At 12:23 p.m., the the defendant on her answering machine. At 12:15 p.m., the defendant left a Olson arrived home on June 17, 2003, to find twenty new messages from

what Olson reported to Officer Duval, he observed that Olson appeared upset. p.m. to respond to a 911 call made by Olson. While the record is silent as to residence at approximately 8:11 p.m. However, Officer Duval returned at 8:49 stated that he would pray for Olson every night. Officer Duval left the defendant also said that he would be “prosecuted and face a felony charge” and conversation with that moron, Duval. They’re coming to arrest me.” The p.m. on June 11. In that message, the defendant said, “I just had a leng thy with Officer Duval, the defendant called again and left a fourth message at 7:55 and spoke with the defendant for about twenty minutes. Even after speaking the defendant just as Officer Duval arrived. Officer Duval took the telephone Officer Duval came to her home. Olson received another telephone call from After listening to these messages, Olson called the police department and

home late at night. hurting [Olson].” He also admitted that he was stopped while traveling to her but that he was not a violent person and “never entertained the thoughts of again in a heartbeat.” The defendant said that “he had a lot of demons inside” things that he did, then [sic] it was worth rotting in jail for, and [he] would do it The defendant then said he “was terribly, terribly sorry over the bad

finalize that act. in the coffin for me. I, I’m already dead and jail is just a place to better an d I realize that was like, you know, that was like the nail me, that my life had changed drastically. It’s not gotten any I consider on August the 1 p. 3 3 of 2001, when you broke up with th even stupid of me to call you, but I basically don’t care because I, and I’ve m ade the decision now, I know this is very severe and You know, as I was saying before, I don’t, I honestly don’t care

At 7:21 p.m. on June 11, the defendant called again and continued:

I have not - been eating a thing since Tuesday after I got out of court with you. I’m not saying that for sympathy. I’ve lost a l ot of weight. I haven’t p. 4 4

safety” means a fear of physical violence, the evidence was sufficient to prove argument, however, because even if the term “fear for his or her personal physical violence. See RSA 633:3 - a, I(a). We need not reach the defendant’s her personal safety,” as used in the stalking statute, to require a fear of The defendant argues that we must interpret the phrase, “fear for his or

p. 4 464 (2004) (reviewing sufficiency of evidence underlying the jury verdict). court’s denial of defendant’s motion to dismiss); State v. Small, 150 N.H. 457, 152 N.H. 331, 350 (2005) (reviewing sufficiency of evidence underlying the trial State, could have found guilt beyond a reasonable doubt. State v. Littlefield, no rational trier of fact, viewing the evidence in the light most favorable to the fear for her personal safety. The defendant carries the burden of proving that person to fear for his or her personal safety; and (2) actually placed Olson in evidence to support a finding that his conduct: (1) would cause a reasonable We first examine the defendant’s argument that there was insufficient

his m otions to dismiss and/or to set aside the verdict. evidence to support the jury’s verdict; and (2) the trial court erred in denying On appeal, the defendant argues: (1) the State failed to present sufficient

essentially the same grounds. The trial court denied the motion. defendant guilty, the defendant moved to set aside the verdict, asserting the same grounds at the conclusion of the evidence. After the jury found the court denied the motion. The court denied the defendant’s renewed motion on contending that the State fail ed to prove the elements of the crime. The trial After the State rested, the defendant moved to dismiss the charge,

placed Olson in fear for her personal safety. See id. reasonable person to fear for his or her personal safety; and ( p. 4 4) which actually engaged in a course of conduct; (2) targeted at Olson; (3) which would cause a 2005). The State had to prove at trial that: (1) the defendant knowingly . . . and the person is actually placed in such fear.” RSA 633:3 - a, I(a) (Supp. which would cause a reasonable perso n to fear for his or her personal safety “knowingly . . . engag[ing] in a course of conduct targeted at a specific person defendant on one count of stalking under RSA 633:3 - a, I(a), which criminalizes In October 2003, a Hillsborough County Grand Jury indicted the

said “I love you” to her. The defendant continued to call Olson and, on one occasion, the defendant that she had received yet another package and a letter from the defendant. packages from the defendant. On June 2 p. 4 4, Olson reported to Officer Duval The next day, Olson called Officer Duval to report that she had received two immediately called the police department and Officer Duval came to her home. again asked whether Olson was home and begged her to answer his calls. She p.m., 1:32 p.m., 1:39 p.m., 1: p. 5 51 p.m., 1:59 p.m. and 2:15 p.m., the defendant 5

continued to call her. In fact, Olson testified that she could not estimate the Olson obtained a restraining order in October 2001, but the defendant Officer Duval spoke to the defendant but he continued to call Olson anyway. defendant to stop, and finally resorted to calling the police. In A ugust 2001, telephone, he left message after message until she answered. Olson told the 2001, the defendant started repeatedly calling her. If she did not answer the her. The defendant and Olson never had a persona l relationship. In the fall of defendant was obsessed with Olson and posed a threat of physical violence to the defendant’s articulated history of emotional instability, as evidence that the defendant’s unrelenting telephone ca lls and gifts to Olson, especially in light of verbal threat of physical violence, a reasonable person could view the The same reasoning applies here. Even in the absence of an explicit

of New Hampshire’s law against stalking.” Id. at *6. have perceived the plaintiff’s conduct as threatening and, therefore, in violation members.” Id. The court further concluded that “a reasonable person could was stalking him and posed a potential danger to him and his family obsessed with Record and, in light of the other evidence known to the officer, view those [communications] as evidence that [the] plaintiff had become officer, particularly under the circumstances of this case, could reasonably for the District of New Hampshire disagreed, concluding that “a detached police expressions of her devotion to Record.” Id. The United States District Court stalking because her communications should have been viewed as “loving The plaintiff argued that there was no probable cause to arrest her for

that the plaintiff was emotionally unstab le and possibly suicidal. Id. and trailed his wife to a store. Id. Furthermore, Record informed the police gifts to his workplace, entered onto his property and shouted at his back door, Nonetheless, the plainti ff repeatedly telephoned him, sent letters to him, sent plaintiff and had instructed her never to contact him again. Id. at * p. 5 5. 2. Record had informed the police that he had ended his relationship with the ch arging that she had stalked him in violation of RSA 633:3 - a (1995). Id. at *1 extramarital relationship lasting several years, filed a false police report alleged, among other things, that Delton Record, with whom she had an 813973 (D.N.H. May 28, 1999), is instructive on its facts. In Vlack, the plaintiff stalking statute, Vlack v. Town of Rye & Record, No. CIV. 98 - 271 - M, 1999 WL reasonable person to fear for his or her personal safety in violation of the there is limited case law concerning the type of conduct that would cause a continuing love” in his repe ated telephone calls to her. We disagree. While threatened her with violence, and he “mostly apologized and expressed his person to fear physical violence because he never assaulted Olson or explicitly The defendant contends that his conduct would not cause a reasonable

caused Olson, to fear physical violence by the defendant. that the defendant’s conduct would cause a reasonable person, and actually p. 6 6

evidence to prove beyond a reasonable doubt that the defendant’s conduct the light most favorable to the State, we conclude that there was sufficient Viewing all of the evidence and reasonable inferences drawn therefrom in

fe ared the defendant. the defendant’s conduct, gave rise to a reasonable inference that Olson actually demeanor on the witness stand, particularly when testifying as to the effect of motion to dismiss, the trial court twice noted that Olson’s testimony and June 2003 as a result of the defendant’s conduct. In d enying the defense testified that Olson frequently contacted the police between August 2001 and next, or what [the defendant is] going to do.” Both Olson and Officer Duval “I live in fear every day. I don’ t know - - I don’t know what’s going to happen Olson about the impact of the defendant’s conduct upon her. Olson answered, caused Olson actually to fear for her personal safety. At trial, the State asked Next, t he defendant argues the State failed to prove that his conduct

her personal safety. that the defendant’s conduct would cause a reasonable person to fear for his or conclude that there was sufficient evidence to prove beyond a reasonable doubt reasonable inferences therefrom in the light most favorable to the State, we that he was emotionally unstable and suicidal. Viewing all of the evidence and courts repeatedly and explicitly told him not to do so. He also communicated sent packages to Olson for several years even though Olson, the police, and the The evidence demonstrates that the defendant obsessively cal led and

continued to call her. defendant also sent Olson multiple packages and at least one letter, and telephone. Olson immediately called the police. In the ensuing days, the asked Olson if she was present in her home and be gged her to answer the 12:15 p.m. and 2:15 p.m. In sixteen of those calls, the defendant repeatedly defendant left twenty messages for Olson on her answering machine between The defendant’s conduct continued to escalate. On June 17, 2003, the

again upset Olson, prompting her to call 911. more than thirty minutes after Officer Duval left Olson’s home, the defendant the defendant on the telephone, the defendant continued to call Olson. No department. Even after Officer Duval arrived at Olson’s home and spoke with on her answering machine, prompting Olson again to call the police On June 11, 2003, the defendant left several lengthy telephone messages

while traveling to her home late at night. about Olson by misrepresenting himself to her husband. He was also stopped control. During this time, the defendant obtained highly personal information fall of 2001 and June 2003. He told Olson that he felt suicidal and out of number of unwant ed telephone calls that the defendant initiated between the p. 7 7

concurred. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,

defendant’s motions to dismiss and to s et aside the verdict. violation of RSA 633:3 - a, I(a) and the trial court properly denied the 465. Accordingly, the jury properly convicted the defendant of stalking in actually caused Olson to fear for her personal safety. See Small, 150 N.H. at