2005-0189 STATE OF NH v. KEITH LACASSE

the defendant went to his cousin’s house to watch a football game. While The jury could have found the following facts. On November 30, 2003,

sixteen. We affirm. to establish that he believed the person he solicited to be under the age of erred by denying his motion to dismiss because there was insufficient evidence See RSA 649-B:4, I (Supp. 2005). He argues that the Superior Court (Groff, J.) believed to be a child under the age of sixteen to engage in sexual intercourse. for knowingly using an on-line computer service to solicit a person whom he BRODERICK, C.J. The defendant, Keith Lacasse, appeals his conviction

defendant. and Richard C. Guerriero, Jr., public defender, of Keene, orally, for the Andrew Winters, assistant appellate defender, of Concord, on the brief,

attorney general, on the memorandum of law and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Simon R. Brown, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-189 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New

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well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in Hollis.

p. 2 After some conversation, they agreed to meet at a designated time and location

she located the defendant, she informed him that they would need to meet on a

Department, and Officer Tracey Dunne answered, posing as “JennyNHJenny.” Paul 29” called the number, an undercover phone line at the Hollis Police told him to call her after 2:00 p.m., once her parents had left the house. “Jay proceeded to the meeting for the purpose of identifying the defendant. Once

conversation, or have a private conversation through instant messaging. conversation, “JennyNHJenny” gave “Jay Paul 29” her telephone number and defendant had already left. Officer Dunne then dressed undercover and meeting, but the defendant’s cousin responded, informing her that the attempted to contact the defendant on-line in the chat room to cancel the

need not do so in order to remain in the chat room, engage in the public the two discussed meeting to engage in sexual intercourse. At one point in the

police coverage existed to safely monitor the arranged meeting. Officer Dunne

screen name. Entrants can choose to access another participant’s profile but “profile” which purports to provide some description of the person using the message as “Jay Paul 29.” During the approximately one-hour conversation, on the computer screen for all entrants to see. An entrant may also create a initiated a private conversation with “JennyNHJenny” by sending an instant minors to engage in sexual conduct. While in the chat room, the defendant After the call concluded, Sergeant Mello determined that insufficient “JennyNHJenny” with the following profile: Department also entered the same chat room under the screen name

messaging.” Each participant uses a “screen name” of choice which appears conducting an undercover investigation into the solicitation on the internet of Mello assumed the identity of a fourteen-year-old girl for the purpose of name “Jay Paul 29.” Meanwhile, Sergeant Richard Mello of the Hollis Police .......do u need a smile? Hobbies & Interests: Hangin’ & partying w/friends

Oh ya…im single! ;) Female 14 New Hampshire Name: Jenny

private conversation with one particular entrant through use of “instant conversation among all the entrants in the room, and also to engage in a used by a participant to observe or take part in an ongoing, “public” On the afternoon of November 30, the defendant used his cousin’s screen

devoted to the subject of New Hampshire romance. The chat room could be there, he used his cousin’s computer to enter an America Online “chat room” circumstantial evidence supports the rational inference that he believed

p. 3 child under the age of sixteen to engage in sexual intercourse.

doubt” that he knew she was under sixteen, and concludes that because the This appeal followed. age. He argues that his statements during that conversation leave “serious the transcript of the on-line conversation makes no reference to her specific

using a computer on-line service to solicit a person whom he believed was a The defendant was later arrested and charged under RSA 649-B:4, I, with Dunne and repeatedly asked her whether she had looked at his license plate.

of sixteen. The court denied the motion, and the jury returned a guilty verdict. reviewed the profile of “JennyNHJenny,” which listed her age as fourteen, and

returning the call. The defendant called “JennyNHJenny,” spoke with Officer

solely circumstantial. reasonable doubt that he believed “JennyNHJenny” was a child under the age the manner most favorable to the State,” even when the evidence presented is the age of sixteen. He contends that no evidence was presented showing he beyond a reasonable doubt that he believed “JennyNHJenny” was a child under The defendant argues that there was insufficient evidence to prove reasonable doubt that he was guilty of the crime charged. inferences drawn in the State’s favor, was insufficient to prove beyond a (1999). based on the evidence have been excluded.” State v. Cobb, 143 N.H. 638, 658 conclusion has been excluded but, rather, whether other rational conclusions emphasize, however, that “[t[he proper analysis is not whether every possible message, the defendant contacted his cousin, expressing reservations about circumstantial, it must exclude all rational conclusions except guilt. Id. We defendant and left him a message as “JennyNHJenny.” Upon hearing her context, and not in isolation. Id. at 350. When the evidence is purely looking at his license plate. The following day, Officer Dunne called the Id. at 349-50. Further, we review the evidence in other things, that the evidence was insufficient to establish beyond a to dismiss, we view the evidence and reasonable inferences arising therefrom in 152 N.H. 331, 349 (2005). “When reviewing the trial court’s denial of a motion

establishing that the evidence, viewed in its entirety and with all reasonable To succeed on a motion to dismiss, the defendant bears the burden of

the meeting, he acted “nervous,” worrying that “JennyNHJenny” had been At trial, the defendant moved to dismiss the charge. He argued, among

they could arrange another meeting.

According to the defendant’s cousin, once the defendant returned from

home early. The defendant then gave Officer Dunne his phone number so that different occasion because her “parents” or “father” had unexpectedly returned under sixteen years old. p. 4 except guilt; namely, that the defendant believed that “JennyNHJenny” was beyond a reasonable doubt that the evidence excluded all rational conclusions

compared his own age. Therefore, a rational jury could have determined

of her purported age by which the defendant could have measured and “JennyNHJenny,” which listed her age as fourteen, comprised the sole source age. Indeed, at this initial juncture of their on-line conversation, the profile of

defendant’s apprehension, provide an intimation that she was any particular

statements or questions offered by “JennyNHJenny,” leading up to the “JennyNHJenny” itself provides no intrinsic reference to her age. Nor did the her pubic area. The following conversation immediately ensued: “JennyNHJenny” in order to compare it with his own. The screen name

few minutes, he inquired about the size of her breasts and characteristics of age discrepancy, he obviously had some information about the age of

p.m., asking whether she was looking “to meet a sweet guy.” Within the first “JennyNHJenny” being the younger of the two. For the defendant to discern an defendant initiated the private conversation with “JennyNHJenny” at 1:06 would perceive a significant age discrepancy between them, with “JennyNHJenny” to be fourteen as purported by the screen name profile. The this initial exchange was that the defendant believed that “JennyNHJenny” jury could have discerned that the only rational conclusion to be drawn from

evidence excluded all rational conclusions except that the defendant believed my age.” (Emphasis added.) Viewing all inferences in the State’s favor, the old for [her]” and stated that “most people your age would not talk to someone asking, “do you like older guys?” He continued by asking whether “30 was too he immediately brought up the purported age discrepancy between them by Significantly, when “JennyNHJenny” inquired about the defendant’s age,

Jay Paul 29 [1:14 PM]: most people your age would not JennyNHJenny [1:13 PM]: no, Y? Jay Paul 29 [1:13 PM]: no? JennyNHJenny [1:12 PM]: no lol a rational jury could have concluded beyond a reasonable doubt that the Jay Paul 29 [1:12 PM]: is 30 too old for [you]? JennyNHJenny [1:11 PM]: yes Jay Paul 29 [1:11 PM]: do you like older guys? JennyNHJenny [1:11 PM]: age?

Viewing the initial portion of the on-line conversation in the State’s favor,

reversed. We disagree. “JennyNHJenny” to have been at least sixteen years old, his conviction must be p. 5 “JennyNHJenny” to be youthful but at least sixteen.

of sixteen. That evidence could support a rational conclusion that he believed demonstrates that the defendant believed “JennyNHJenny” to be under the age evidence, standing apart from the initial portion of the on-line conversation,

afternoon in order to talk to the defendant on the telephone. None of this later

with her parents and needed to wait for her parents to leave the house that suggested a youthful teenaged girl, such as that she ran track, lived at home the proffered persona of “JennyNHJenny” throughout their conversations that he might incur legal ramifications for talking and meeting with her. Also,

DALIANIS and DUGGAN, JJ., concurred.

listed her age as fourteen, we affirm the defendant’s conviction. exclude all rational conclusions other than he had reviewed her profile, which initial interaction with “JennyNHJenny” would have permitted the jury to example, the defendant was concerned that “JennyNHJenny” was a “cop,” and evidence in totality, Littlefield, 152 N.H. at 350, and because the defendant’s defendant believed the person he conversed with on-line to be underage. For (endangerment of child under eighteen years old). We, however, view the and the defendant’s nervous behavior after their meeting confirm that the See RSA 639:3 (1996)

dialogue between the defendant and Officer Dunne posing as “JennyNHJenny,” We observe that later portions of the on-line conversation, the phone