2009-559, State of New Hampshire v. John Moscone

Michael A. Delaney

No. 2009-559

Hillsborough-southern judicial district

law. See class B felony counts of using computer services in a manner prohibited by DALIANIS, C.J. The defendant, John Moscone, was convicted of two

Jeffco & Starbranch

violation of RSA 570-A:2 (Supp. 2007). We reverse and remand. jury; and (5) admitting the transcript of internet chat room conversations in that the State presented sufficient evidence of identity for the case to go to the evidence of his identity obtained after he was unlawfully arrested; (4) finding mental state; (2) failing to dismiss the indictments against him; (3) admitting Superior Court (Groff, J.) erred by: (1) instructing the jury on the wrong

RSA 649-B:4 (2007) (amended 2008). On appeal, he argues that the

and orally), for the defendant.

general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as the age of 16, to engage in sexual penetration.” p. 2 “[j]ordanh_94” and “amber14nh,” whom John Moscone believed to be “under

attempt to seduce, solicit, lure or entice” persons with screen names by “knowingly utiliz[ing] a computer on-line Internet service known as Yahoo to The defendant was charged with two counts of violating RSA 649-B:4, I(a)

week for sex, but no meeting ever took place. “amber14nh” talked about meeting at Merrill Park in Hudson the following “amber14nh” that he was from Rochester. “Pool_playa03867” and engage in sexual acts. During this conversation, “pool_playa03867” told “pool_playa03867” requesting that they meet for a ride on his motorcycle and “pool_playa03867.” The conversation was sexual in nature, with year-old girl, “amber14nh,” and engaged in an on-line chat with “pool_playa03867 and Niven.” On August 25, 2006, Niven posed as a fourteen- Rochester, in part, because of a prior on-line conversation between The officers had suspected that “pool_ playa03867” might be from

which identified him as John Moscone from Rochester. The officers stopped the car, arrested the driver, and obtained his license, see the driver’s face. The driver matched the picture sent to “jordanh_94.” started to leave the area. As the car made the U-turn, the officers were able to the road and stopped for a couple of minutes. The car then made a U-turn and Fulton Street. The car was about fifty feet from the officers when it pulled off Park. Just before 1:00 p.m., the officers saw a silver sedan drive slowly down Dyac were parked in an unmarked police car on Fulton Street near Merrill At approximately 12:30 p.m. on June 11, Niven and Sergeant Charles

“jordanh_94” that he would be driving a black truck. 1:00 p.m. on June 11, 2008, at Merrill Park in Hudson. The defendant told for sex. “Jordanh_94” agreed to meet the defendant for sex at approximately be sexual in nature with the defendant suggesting that “jordanh_94” meet him instant messages over the next several weeks. The conversations continued to The defendant and “jordanh_94” continued to communicate through

“jordanh_94” he was forty-nine years old and sent her a picture of himself. was sexual in nature. During the conversation, the defendant told old, the defendant engaged in an online conversation with “jordanh_94” that a private instant message. After learning that “jordanh_94” was fourteen years “pool_playa03867,” initially contacted “jordanh_94” on April 30, 2008, through

screen name “jordanh_94.” The defendant, using the screen name posed as a fourteen-year-old girl in a Yahoo! internet chat room using the June 11, 2008, Detective Michael Niven of the Hudson Police Department The record reveals the following facts. From April 30, 2008, through person believed by the person to be a child; (4) for sexual penetration. The p. 3 board; (2) in an attempt to seduce, solicit, lure, or entice; (3) a child or another have utilized a computer on-line service, internet service, or local bulletin I(a), as charged, is comprised of four material elements: (1) the defendant must unless a contrary purpose plainly appears.” RSA 626:2 (2007). RSA 649-B:4, elements thereof, such culpability shall apply to all the material elements, is sufficient for its commission, without distinguishing among the material “When the law defining an offense prescribes the kind of culpability that 3

disagree. must have the purpose that the crime be committed against a child.” We enough to act knowingly with respect to some of the material elements, [he] indictments, requires proof of two mental states. He argues that “[w]hile it is The defendant contends that RSA 649-B:4, I(a), as charged in his

terms and to promote justice. Id.; see RSA 625:3 (2007). construe provisions of the Criminal Code according to the fair import of their the context of the overall statutory scheme and not in isolation. Id. Finally, we legislature did not see fit to include. Id. Furthermore, we interpret a statute in consider what the legislature might have said or add language that the Id. We interpret legislative intent from the statute as written and will not possible, construe that language according to its plain and ordinary meaning. N.H. 462, 465 (2010). We first look to the language of the statute itself, and, if expressed in the words of a statute considered as a whole. State v. Thiel, 160 interpretation, we are the final arbiter of the intent of the legislature as novo. State v. Kousounadis, 159 N.H. 413, 423 (2009). In matters of statutory The interpretation of a statute is a question of law, which we review de

construe “attempt” in the generic sense of the word. State asserts that the correct mental state is “knowingly” and that we should mental state of “purposely” and the affirmative defense of renunciation. The trial court was required to give an attempt jury instruction that included the RSA 629:1, I (emphasis added). Accordingly, the defendant submits that the omission constituting a substantial step toward the commission of the crime.” which, under the circumstances as he believes them to be, is an act or with a purpose that a crime be committed, he does or omits to do anything the attempt statute, “[a] person is guilty of an attempt to commit a crime if, solicit, lure or entice, the attempt statute, RSA 629:1 (2007), applies. Under The defendant argues that because he is charged with attempting to seduce, [a]ny offense under RSA 632-A relative to sexual assault and related offenses.” child or another person believed by the person to be a child, to commit . . . computer on-line service . . . to . . . attempt to seduce, solicit, lure, or entice, a under RSA 6 p. 4 49-B:4, I(a), the State had to prove that he “knowingly utilize[d] a jury as to the mental state required for conviction. To convict the defendant The defendant first argues that the trial court erred in instructing the 4

State v. Jennings the “Computer Pornography and Child Exploitation Prevention Act of 1998.” attempt statute would only make their job more difficult because it would statute to incorporate the attempt statute. RSA 6 p. 4 49-B:4 was enacted as part of protect children from these types of online crimes and incorporating the Id. Given that the purpose of RSA 649-B:4 is to aid police in their attempt to Further, the purpose of RSA 649-B:4 would not be met by construing the in the protection of children from the types of dangers presented by the same.” internet, and the need for new and broader statutes to assist law enforcement presented by the computer, the expanse of possibilities presented by the noted in Jennings, the legislative history “acknowledges the new technology and child exploitation.” Id. (quotation, brackets and citation omitted). As we committed by means of computer . . . and to prevent computer pornography “establish penalties for child pornography, exploitation, and abuse offenses

, 159 N.H. 1, 5 (2009). The purpose of the Act was to

commission of the crime. statute, or its necessary element of taking a “substantial step” toward the a criminal statute implicates the attempt statute. In State v. Kilgus 800 (1986). However, we have never explicitly incorporated the attempt State v. DiNapoli We have never expressly held that the inclusion of the word “attempt” in, 1 p. 4 49 N.H. 514, 516-17 (2003); State v. Brewer, 127 N.H. 799, required a purposeful mental state for witness tampering convictions. See police false information.” Kilgus, 125 N.H. at 743. Since Kilgus, we have defendant had to act purposely when he attempted to get [a person] to give the trial court used the proper mens rea when it instructed the jury that “the to . . . [t]estify or inform falsely . . . .” We concluded, without analysis, that the about to be instituted, he attempts to induce or otherwise cause a person if . . . [b]elieving that an official proceeding . . . or investigation is pending or RSA 641:5, I(a) (2007), which states, “A person is guilty of a class B felony 739, 743 (1984), the defendant was convicted of witness tampering pursuant to

We begin with the language of RSA 6 p. 4 49-B:4, I(a). See offense.”), aff’d, 814 A.2d 1043 (N.J. 2002). the law of attempt, including the ‘purposeful’ culpability requirement, into that a substantive offense does not necessarily reflect a legislative intent to import Super. Ct. App. Div. 2001) (“[T]he use of the word ‘attempts’ in the definition of “criminal solicitation”); see also State v. Mendez, 785 A.2d 945, 951 (N.J. meaning of “solicitation” in criminal statute rather than statutory definition of State of N.H. (State v. Laporte), 157 N.H. 229, 231-32 (2008) (applying plain does not automatically mandate that we apply RSA 629:1, I. See Petition of definition of attempt. Further, use of the word “attempt,” in a criminal statute, 465. The statute does not incorporate the attempt statute nor reference its

purpose plainly appears. See RSA 626:2, I; RSA 6 p. 4 49-B:4, I(a). mental state of “knowingly” applies to all four elements unless a contrary believed by the [defendant] to be a child.” Compare p. 5 statute does not prohibit conduct between the defendant and “another person This statute is, however, distinguishable from RSA 649-B:4, I(a). The federal

for life. be fined under this title and imprisoned not less than 10 years or can be charged with a criminal offense, or attempts to do so, shall engage in prostitution or any sexual activity for which any person coerces any individual who has not attained the age of 18 years, to 5

sexual activity. Given the dissimilarities between the federal statute and RSA when the defendant tries to entice an undercover police officer to engage in a under our statute, the crime is not completed under 18 U.S.C.A. § 2422(b) enticed a minor as his online chats were with undercover police officer). Unlike Cir. 2005) (defendant charged with attempt because he could not have actually police officer. See, e.g., United States v. Thomas, 410 F.3d 1235, 1245 (10th believes to be under the age of eighteen, but who is actually an undercover whenever a defendant engages in the prohibited activity with a person he or foreign commerce, . . . knowingly persuades, induces, entices, or U.S.C.A. § 2422(b). Thus, under federal law, the attempt statute is applied Whoever, using the mail or any facility or means of interstate

attempt to the coercion and enticement statute, 18 U.S.C.A. § 2422(b) (Supp. We recognize that the federal courts apply the criminal definition of

attempted or tried to solicit, it cannot be an attempted crime under RSA 629:1. prohibiting. Because the crime in this case was complete when the defendant scheme. See is the conduct of attempting or trying to seduce or solicit that the legislature is solicit a child, or a person believed to be a child, to engage in sexual activity. It Finally, we consider the statute in the context of the overall statutory the crime is complete when the defendant uses the internet in an effort to lure, or entice a person believed to be a child under the age of sixteen. Thus, Here, the crime proscribed by the legislature is an attempt to seduce, solicit, crime. See, e.g., id. at 145, 147; State v. Glanville, 145 N.H. 631, 631 (2000). such as burglary, because the defendant has failed to complete the underlying crime, the attempt statute is generally paired with another criminal statute, Munoz, 157 N.H. 143, 147 (2008) (quotation omitted). In charging an attempt the elements of the intended offense as if it had been carried out.” State v. a crime not completed, the State could not plead, factually identify, and prove

Thiel, 160 N.H. at 465. “Since an attempted crime is by definition

legislative purpose. conclude that the defendant’s reading of the statute would be contrary to the require the heightened mental state of “purposely,” see RSA 629:1, I, we p. 6 In Lopez-Mendoza

cannot testify as to who was arrested. The State submits that INS v. Lopez- 6 appeared to assert that whenever a person is illegally arrested, the police under our State Constitution, this issue has not been preserved. See license was obtained only after his illegal arrest. In doing so, defense counsel Constitution. To the extent that he attempts to bring a constitutional challenge which violated his rights under Part I, Article 15 of the New Hampshire driver’s license. Defense counsel objected to the identification because the arrest was unlawful. See id. at 1035, 1040. The Court held that the must be suppressed. At trial, Niven identified the defendant through his immigration court did not have personal jurisdiction over him because his indictments for failing to allege “a purposeful mental state relative to ‘attempt,’” defendant was illegally arrested and that any subsequent fruits of that arrest U.S. at 1034. In the first case, respondent Lopez-Mendoza argued that the The defendant also argues that the trial court erred in dismissing the evidence of his identity at trial. Before trial, the trial court determined that the deportation proceedings that followed unlawful arrests. Lopez-Mendoza, 468 Next, the defendant argues that the trial court erred by admitting, the United States Supreme Court reviewed two civil

from being suppressed as a fruit of an unlawful arrest. Mendoza, 468 U.S. 1032, 1039 (1984), precludes the identity of a defendant

mental state, this has been addressed above. interpretation issue arguing that RSA 649-B:4, I(a) requires a purposeful Panarello, 157 N.H. at 207. To the extent that he raises a statutory

were not presented in the trial court. See and overbroad. Generally, we will not consider issues raised on appeal that The defendant next argues that RSA 649-B:4 is unconstitutionally vague

decline to address these arguments. “contrary purpose plainly appear[ing]” in the statute. RSA 626:2, I. 160 N.H. at 464. Because the defendant has failed to meet his burden, we material elements of RSA 649-B:4, I(a) because the word attempt is not a demonstrate that the appellant raised those issues before the trial court. Thiel purposely. Accordingly, the mental state of knowingly applies to all of the, with a record sufficient to decide the issues raised on appeal and to not incorporate the attempt statute, RSA 629:1, I, or the mental state of the trial court. It is the burden of the appealing party to provide this court Therefore, we conclude that the word “attempt” in RSA 649-B:4, I(a) does pointed to, any evidence that these constitutional arguments were raised before (2008). The record before us does not reflect, and the defendant has not

attempt statute. 649-B:4, I(a), we are not persuaded by the federal courts’ application of the inadmissible under the exclusionary rule.” State v. De La Cruz p. 7 obtained in violation of a defendant’s rights under Part I, Article 19 is because his license was obtained after he was illegally arrested. “Evidence objects to Niven’s testimony identifying him through his driver’s license 7 have been suppressed as the fruit of his unlawful arrest. The defendant We next consider whether evidence of the defendant’s identity should

he was illegally arrested, must be excluded. It necessarily follows that any this case. Therefore, the defendant’s driver’s license, which was obtained after to suppress nor argue that any exception to the exclusionary rule applies in 566 (2009). The State does not challenge the trial court’s order on the motion

F.3d 751, 754 (8th Cir. 2001). Olivares-Rangel, 458 F.3d at 1112; United States v. Guevara-Martinez, 262 74 (2009); United States v. Oscar-Torres, 507 F.3d 224, 230 (4th Cir. 2007); Farias-Gonzalez, 556 F.3d 1181, 1185-86 (11th Cir.); cert. denied, 130 S. Ct. jurisdictions that interpret Lopez-Mendoza more narrowly. See United States v. State’s interpretation of Lopez-Mendoza and are persuaded by the majority of allegedly illegal detention.” (citation omitted)). Thus, we disagree with the was legal or not is immaterial unless evidence is obtained as the result of the limited solely to jurisdiction. See subsequent prosecution nor a defense to a valid conviction. Whether the arrest identity of a defendant is never suppressible as the fruit of an illegal arrest is 120 N.H. 663, 664 (1980) (“An illegal arrest, without more, is neither a bar to proceedings together leads us to conclude that the Court’s statement that the arrest and challenged in a criminal proceeding.” Id Reading the Supreme Court’s resolution of these two deportation.; see also State v. Greene, pertaining to the admissibility of evidence obtained as a result of an illegal jurisdiction over a defendant and does not apply to evidentiary issues Circuit aptly noted, “the ‘identity’ language in Lopez-Mendoza refers only to the Court to dispose of Sandoval-Sanchez’s case separately. As the Tenth Sandoval-Sanchez’s evidentiary challenge, there would have been no need for connection with Lopez-Mendoza’s jurisdictional challenge, also applied to 1104, 1112 (10th Cir. 2006). If the statement, which was mentioned in

1040-41, and concluded that it did not apply. Id. at 1050. exclusionary rule extended to non-criminal, civil deportation proceedings, id. at should be suppressed. Id. at 1037, 1040. The Court considered whether the argued that his incriminating statements were the fruit of an illegal arrest and occurred.” Id. at 1039-40. In the second case, respondent Sandoval-Sanchez even if it is conceded that an unlawful arrest, search, or interrogation criminal or civil proceeding is never suppressible as a fruit of an illegal arrest, Court noted that “the ‘body’ or identity of a defendant or a respondent in a proceeding.” Id. at 1040 (quotation and brackets omitted). In this context the fact of an illegal arrest has no bearing on a subsequent deportation immigration court retained jurisdiction over the defendant because “the mere p. 8 DUGGAN, HICKS and CONBOY, JJ., concurred.

Reversed and remanded 8

published the transcripts to the jury. Accordingly, the trial court did not violate RSA 570-A:2 when it admitted and implicit in his use of instant messaging technology. See id. at 440-41. their online conversation does not vitiate his consent because his consent is The fact that the defendant told “jordanh_94” to “delete [her] archives” after instant messaging and knew that the messages were capable of being recorded. evidence at trial. Id. at 442. Similarly, here, the defendant engaged in online defendant consented to the recording, the State could admit the recording into year-old girl. Lott, 152 N.H. at 439-40. We concluded that because the instant message communications with a police officer posing as a fourteeninstant messaging technology, the defendant consented to the recording of his We addressed the consent exception in Lott and held that, due to the nature of communication.” RSA 570-A:2, I; see State v. Lott, 152 N.H. 436, 438 (2005). not be unlawful if it was intercepted with “the consent of all parties to the or oral communications; however, the interception of a communication shall eavesdropping. RSA 570-A:2 prohibits the interception of telecommunications chat to the jury violated RSA 570-A:2, which prohibits wiretapping and The defendant next argues that publishing the transcript of the internet

is based upon an erroneous premise, we reject it. including evidence erroneously admitted). Because the defendant’s argument November 30, 2010) (in reviewing sufficiency claim, we consider all evidence, assumption is mistaken. See State v. Langill, 161 N.H. __, __ (decided evidence, we will disregard evidence of his identification at the scene. This defendant’s argument assumes that in reviewing the sufficiency of the and without it “there is no evidence of the [d]efendant’s identity.” The He argues that “[t]he identification at the scene is the only evidence of identity” motion for a directed verdict based upon insufficient evidence of his identity. The defendant next asserts that the trial court erred in denying his

before the illegal arrest. the defendant in court, if they are able to do so, based upon their observations harmless error, we reverse and remand. We note that the officers may identify illegally seized driver’s license, and the State does not argue that this was a court erred in admitting testimony of the defendant’s identity based upon the testimony about the driver’s license must also be excluded. Because the trial