2010-564, The State of New Hampshire v. Kristin Ruggiero

Michael A. Delaney

dismiss for insufficient evidence. We affirm. certain e-mail messages she purportedly sent; and (3) in denying her motion to

wiretap statute; (2) in allowing into evidence, without proper authentication,

No. 2010-564 Rockingham

to exclude certain audio/video recordings as violative of New Hamphire’s

641:4, I (2007). On appeal, she argues that the trial court erred: (1) in refusing physical evidence, RSA 641:6, II (2007), and one count of false report, RSA defendant, Kristin Ruggiero, was convicted of twelve counts of falsifying CONBOY, J. After a jury trial in Superior Court ( McHugh, J.), the

general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Nicholas Cort, assistant attorney 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

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

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

1057 phone. Officer Iannuccillo called the 1057 number, but received a

handwritten log of the text messages she claimed Jeffrey sent her from the

After Officer Iannuccillo arrived at the house, the defendant gave him a

Kingston Police Officer Iannuccillo was dispatched.

reported that Jeffrey had violated the restraining order against him. East

defendant called the police from her parents’ home in East Kingston and Wireless cell phone number. Shortly after receiving the last text message, the were sent from the 1057 phone to “617-833-9495,” the defendant’s Verizon

On May 4, p. 2 2008, within a thirty-minute period, twelve text messages

might kill her. Eventually, Jeffrey was sentenced to a term in jail. jailed immediately after his conviction, and claimed she was “terrified” that he

sentence investigation report. The defendant was upset that Jeffrey was not

was found guilty, but sentencing was delayed pending completion of a pre-

violation of the restraining order. After a district court trial in April p. 2 2008, he In December 2007, Jeffrey was charged with certain offenses relating to

from the defendant.

cell phone number several times, but he continued to receive communications activation. As a result of the defendant’s repeated contact, Jeffrey changed his address, but did provide the name “Jeffrey” and Jeffrey’s birth date during

revealed that the person who activated the telephone did not supply an

and to record the defendant’s voice. Later investigation of the 1057 number camera to capture the image of the 1057 number on Jeffrey’s cell phone screen the caller’s voice as the defendant’s. On several occasions, Jean used a video

Although Jeffrey and Jean did not recognize the 1057 number, they recognized

(LeFrancois

“843- p. 2 298-1057” (the “1057 phone”), a prepaid T-Mobile cellular telephone.

domestic violence petition against Jeffrey. The Brentwood Family Division

anonymous text messages from “811.com,” as well as telephone calls from through text messages, telephone calls and e-mails. Jeffrey also received The defendant, however, contacted Jeffrey and Jean in South Carolina

Shortly before the divorce action commenced, the defendant filed a

met Jean Backus (Jean).

was stationed in Charleston, South Carolina. While in South Carolina, Jeffrey

Jeffrey initiated no further contact with the defendant.

Jose, California. In p. 2 2007, Jeffrey, a member of the United States Coast Guard, DRx, and she and her boyfriend, Brendan Bisbee (Brendan), relocated to San commenced. In November 2007, the defendant obtained a new job with Pet

engaging in any contact with the defendant. After the restraining order issued,

, J.) issued a restraining order against Jeffrey, prohibiting him from

Jeffrey Ruggiero (Jeffrey) in August p. 2 2001. In 2007, divorce proceedings The jury could have found the following facts. The defendant married p. 3 Prior to trial, the defendant moved, in

2008 conviction was later vacated.

September 2008. The warrant against Jeffrey was rescinded, and his April

defendant’s travel records, a warrant was issued for the defendant’s arrest in phone tower locations, additional records for the 1057 phone, and the May 4 text messages. After further investigation, including searches of cell

as the same number from which the defendant allegedly received the twelve

Chief Simpson recognized the 1057 number in the video recordings from Jean

also authorized Chief Simpson to access their online cell phone accounts. video disk, some e-mails, police reports and . . . pictures.” Jeffrey and Jean In July 2008, Jean sent Chief Simpson three packages containing “a CD 3

I. The Audio/Video Recordings telecommunication and oral communication, or evidence derived therefrom,

her case against Jeffrey. allegations about the May 4 text messages and sought assistance in pursuing Carrillo, and various Coast Guard officials. The e-mails reiterated her under RSA 570-A:6 (2001) (prohibiting admission at trial of intercepted evidence. The trial court denied her motions. This appeal followed.

Kingston prosecutor, Attorney Heather Newell, Assistant Attorney General Lucy Hampshire law controls, and the recordings would have been inadmissible the defendant moved to dismiss the charges, contesting the sufficiency of the asserts that had the trial court done so, it would have concluded that New Carolina law governed the admissibility of the recordings. The defendant

allegedly made to Jeffrey. Relying on State v. Lynch audio/video recordings of the 1057 number evidencing the telephone calls she

number of people including her divorce attorney, Attorney Linda Theroux, Following the May 4 incident, the defendant sent several e-mails to a at the close of the State’s evidence, and again at the close of all of the evidence, messages, arguing that the State failed to properly authenticate them. Finally, choice-of-law analysis to determine whether New Hampshire law or South During her trial, the defendant also objected to the admission of certain e-mail 1998), the defendant contends that the trial court should have conducted a

The defendant first argues that the trial court erred when it admitted the

arrest warrant for Jeffrey. recordings Jean provided to Chief Simpson. The trial court denied the motion.

restraining order. After additional investigation, Chief Simpson obtained an Simpson, Jeffrey was located in South Carolina. He denied violating the unsuccessful. The next day, after further investigation by Police Chief

that Jeffrey might be in New Hampshire, the officer tried to locate him, but was computer-generated voicemail message. Because the defendant expressed fear p. 4 4

pertinent part:

RSA chapter 570-A (Wiretapping and Eavesdropping) provides in

evidence, under the plain language of the statute, there was no violation.

adopt the conflicts-of-law approach followed in Lynch

Hampshire, which we review de

which the evidence was obtained. See sister state and assess which state has the greater interest in the process by analysis typically weigh the interests of the forum state against those of the conflicts-of-law approach. See

effect on conduct of governmental agents of another jurisdiction.” Capolongo were lawfully intercepted in South Carolina. See legal. We note that the parties agree that the audio/video recorded phone calls assume the New Hampshire wiretap statute governs the admissibility of this

Under the circumstances of this case, we need not decide whether to approach and the conflicts-of-law approach); see (Minn. 1985). obtained in New Hampshire. This question is one of first impression in New deciding evidentiary issues); People v. Capolongo State v. Lucas, 372 N.W.2d 731, 736-37

6 p. 4 47 N.E.2d at 1293. Alternatively, jurisdictions that conduct a conflicts-of-law generally employed two approaches – the exclusionary rule approach and the Courts in other jurisdictions that have considered the issue have, unlawful governmental conduct, and that one State’s laws have no deterrent Federal view that the overriding purpose of the exclusionary rule is to deter because the recording took place in South Carolina, where the interception was 2004). Jurisdictions following the exclusionary rule approach “adhere to the and Seizure, A Treatise on the Fourth Amendment § 1.5(c), at 183-86 (4th ed.

1995) (discussing the split in jurisdictions between the exclusionary rule court proceeding where such evidence would not be admissible if it had been, 6 p. 4 47 N.E.2d 1286, 1293 (N.Y. 2006) (discussing the conflicts-of-law approaches used by other states in

over which our review is plenary.”). novo.”); see also Lynch, 969 P.2d at 922 (“[This question] is purely one of law maintains, however, that the defendant’s choice-of-law argument is irrelevant (2010) (“The interpretation of a statute is a question of law, which we review de Fourteenth Amendments to the United States Constitution. The State novo. See State v. Addison, 161 N.H. 300, 306 Part I, Article 15 of the New Hampshire Constitution and the Fifth and

obtained in a sister state by a citizen thereof is admissible in a New Hampshire The question presented is whether telephonic evidence that is legally

defendant argues that the admissions violated her due process rights under where disclosure of such information would violate the wiretap statute). The p. 5 5

communication in violation of this paragraph p. 5 570-A:6 is inapplicable.

intercepted in South Carolina, not New Hampshire. See calls to Jeffrey originated in New Hampshire. Finally, the calls were legally made the phone calls, she was a California resident. Moreover, none of the

obtained through the interception of a telecommunication or oral recordings did not violate RSA chapter p. 5 570-A, the exclusionary rule of RSA

interception of a telecommunication or oral communication in violation of this

effect beyond its geographical or territorial limits.”). At the time the defendant

communication, knowing or having reason to know that the information was into judicial proceedings in the prohibitory state.”). Because disclosure of the speaker’s state permits such recording,” and the recording “may be introduced receives the call, it may be recorded lawfully by the other speaker if that Here, the interceptions did not violate RSA chapter p. 5 570-A. See supra § 7:48, at 269 (“[W]hether a resident of a prohibitory state places or

or having reason to know that the information was obtained through the

(quotation omitted) (“[T]he criminal law of a state or nation has no operation or Hampshire. See State v. Luv Pharmacy, Inc., 118 N.H. 398, 407 (1978) given extraterritorial effect.”). None of the interceptions occurred in New “[willfully] discloses . . . the contents of any telecommunication or oral general rule, restrictions in one state’s consent surveillance statute will not be without the consent of all parties to the communication,” the person either P. L. Bellia, 2 Law of Electronic Surveillance § 7:48, at 268 (2011) (“As a class B felony if, except as otherwise specifically provided in [the] chapter or J. Carr & Pursuant to section 2 of RSA chapter p. 5 570-A, “[a] person is guilty of a paragraph.” RSA 570-A:2, I(c)-(d) (2001) (emphasis added). statute. excluded from trial only if its disclosure would violate New Hampshire’s wiretap to use, the contents of any telecommunication or oral communication, knowing

. . . if the disclosure of that information would be in violation of evidence derived therefrom may be received in evidence in any trial

(quotation omitted). Based on the plain language of the statute, evidence is indications of legislative intent.” State v. Hill, 146 N.H. p. 5 568, 575 (2001) plain and unambiguous, we need not look beyond the statute itself for further RSA 570-A:6 (emphasis added). When, as here, “the language of a statute is

this chapter.

intercepted, no part of the contents of such communication and no Whenever any telecommunication or oral communication has been discretion.” State v. Knapp p. 6 court’s ruling on authentication absent an unsustainable exercise of its

evidentiary matters with considerable deference, and will not reverse the trial

issue for our review. “We generally review the trial court’s rulings on We will assume, without deciding, that the defendant has preserved this

that the federal rule of evidence is identical to our State rule, compare

reversal.

messages is an issue of first impression in New Hampshire. We note, however, is what its proponent claims.” The proof necessary to authenticate e-mail satisfied by evidence sufficient to support a finding that the matter in question

The defendant now argues that the admission of these four e-mails requires

of authentication or identification as a condition precedent to admissibility is

court ruled it would “adhere to [its] previous ruling and allow those exhibits.” by testimony regarding their appearance, contents, and substance. The trial The State maintained, however, that the e-mails were properly authenticated

to prove beyond any doubt that the evidence is what it purports to be.”

evidence.” State v. Reid New Hampshire Rule of Evidence 901(a) provides that “[t]he requirement

“The bar for authentication of evidence is not particularly high.” United

in the [e-mails], or that someone witnessed [her] sending [e-mails]. that [the defendant] spoke about in e-mails and the subject matter proponent need not rule out all possibilities inconsistent with authenticity, or other means of proper authentication to include, in fact, evidence

connect an evidentiary exhibit to a defendant may be made by circumstantial States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). “The proof necessary to

of her case. N. Country Envtl. Servs. v. Town of Bethlehem guidance. See State v. Ross, 141 N.H. 397, 400 (1996). Ev. 901 with Fed. R. Evid. 901, and we therefore look to federal cases for

from the server through which the [e-mails] were sent, or through

(2001).

the trial court’s ruling was clearly untenable or unreasonable to the prejudice an unsustainable exercise of discretion, the defendant must demonstrate that

[e-mails] directly off [the defendant’s] computer, by obtaining them exhibits] should have been authenticated by either obtaining the that under Rule 901, [all of the e-mail messages admitted as full

defense counsel argued: e-mail messages attributed to the defendant. At the close of all of the evidence, Next, the defendant contends that the trial court erred by admitting four

II. Authentication of E-mails p. 7 7

the various recipients of the e-mail, noting that these were “the type of people

going to, quote, ‘screw [the defendant] over.’” Attorney Carrillo also identified

the substance” of the e-mail message, “that . . . a friend of Jeffrey . . . was “kvpoperations@gmail.com” e-mail address. Attorney Carrillo “remember[ed] (e-mail regarding “BM1 Eppright”) from the defendant’s

Similarly, Attorney Carrillo testified that she received State’s Exhibit 21

Kingston police. was basically “follow up to what [the defendant] reported on May 4” to the East

seemed to have come from an 811.com.” She testified that State’s Exhibit 22

because they “had dealt with that issue in the past, that text messages had Jeffrey’s personal cell phone number rather than an 811.com number was She explained that the reference in the e-mail to the text messages being from

In addition, Attorney Newell testified about the contents of the e-mail.

addresses. testified that “kvpoperations@gmail.com” was one of her many e-mail defendant had previously used to communicate with her. The defendant

message came from “kvpoperations@gmail.com,” an e-mail address the

that [Attorney Carrillo and the defendant] had talked about”; and (3) the message “was from [the defendant], and . . . [it] talked about some of the issues General Carrillo testified that: (1) she was “CC’d” on the e-mail message; (2) the

message.” Lorraine revealing details known only to the sender and the person receiving the

Exhibit 22 (e-mail describing the May 4, 2008 incident), Assistant Attorney

authentication.” Lorraine v. Markel American Ins. Co.

Moreover, “[t]he contents of the e-mail may help show authentication by

Here, the State sufficiently authenticated the e-mails. Regarding State’s

characteristics, taken in conjunction with circumstances may be sufficient for including its contents, substance, internal patterns, or other distinctive the transmission or receipt to ensure its trustworthiness.” Id circumstantial evidence. An e-mail message’s distinctive characteristics,

or other distinctive characteristics, taken in conjunction with circumstances”).

omitted); see Gagliardi, 506 F.3d at 151.

authentication requires testimony from a person with personal knowledge of Like other evidence, “[e]-mail messages may be authenticated by direct or “[b]ecause of the potential for unauthorized transmission of e-mail messages,

authentication include, “[a]ppearance, contents, substance, internal patterns, Md. 200 p. 7 7) (quotations omitted); see also N.H. R. Ev. 901(b)(4) (examples of

admitted, “the rest is up to the jury.” Id. (quotation omitted). fact, belong to the defendant. Reid, 135 N.H. at 383. Once the evidence is demonstrate a rational basis from which to conclude that the exhibit did, in Gagliardi, 506 F.3d at 151 (quotation omitted). The State need only p. 8 III. Sufficiency of the Evidence

defendant admitted to sending the e-mail. Newell testified that she recalled responding to this e-mail. Moreover, the that someone other than the defendant sent the e-mail. Further, Attorney defendant “purposely, believing that an investigation was about to be instituted

defendant. Attorney Theroux testified that she did not have reason to believe The twelve counts of falsifying physical evidence each alleged that the

address by “K. MacDonald Ruggiero,” whom she understood was the files, the content was the same. The e-mail was sent to her business e-mail the printed exhibit was different from the format that was in her electronic Iannuccillo, and told him that they came from Jeff, she knew this to be false.” only had to prove that, when [the defendant] presented the messages to Officer

mail resembling State’s Exhibit 20. She testified that although the format of counts of falsifying physical evidence and the single count of false report, “[i]t

Finally, Attorney Theroux testified that she found in her client files an eburden it had at trial. The State contends that with respect to the twelve In response, the State argues that the defendant “mischaracterizes” the

number for the [May 4] report that she made.” recalled answering the defendant’s inquiry in the e-mail about “getting a case reported came from Mr. Ruggiero.”

mail messages she received. Further, Attorney Newell testified that she ‘9495’ [Verizon Wireless cell] phone text messages that she then falsely “the heart of [its] case” -- that she “used the T-Mobile ‘1057’ phone to send her herself. Specifically, the defendant maintains that the State failed to establish

the report the defendant recently made to the East Kingston police regarding edescribed the content of the message, and testified that the e-mail discussed mail addresses of Attorneys Newell and Theroux. In addition, Attorney Carrillo prove, beyond a reasonable doubt, that she sent the subject text messages to

“kvpoperations@gmail.com” to her business e-mail address, as well as to the emotion to dismiss at the close of all the evidence because the State failed to

half of the e-mail. She testified that the e-mail was sent from Newell that Attorney Carrillo was not copied on, she did recognize the bottom Finally, the defendant contends the trial court erred in denying her restraining order violations by Jeffrey), which contained an e-mail to Attorney

the top portion of State’s Exhibit 19 (e-mail regarding alleged additional

Next, Attorney Carrillo testified that although she was not familiar with

and testified as to its contents.

Additionally, Attorney Newell confirmed that she received State’s Exhibit 21 that would get CC’d on a lot of these [e-mails] from [the defendant].” p. 9 State v. Marshall

isolation.

State and examine each evidentiary item in context, not in we still consider the evidence in the light most favorable to the all rational conclusions except guilt. Under this standard, however, messages she claimed Jeffrey had sent. His incident report, which included

doubt. When the evidence is solely circumstantial, it must exclude defendant provided him a two-page handwritten document listing all of the text

favorable to the State, could have found guilt beyond a reasonable a possible violation of a restraining order. He further testified that the the evidence and all reasonable inferences from it in the light most to the defendant’s parents’ East Kingston home on May 4, 2008, to respond to defendant must prove that no rational trier of fact, viewing all of regarding her allegations. Officer Iannuccillo testified that he was dispatched

To prevail upon his challenge to the sufficiency of the evidence, the Iannuccillo or any other member of the East Kingston police department

to reporting the text messages to the police, but denied meeting with Officer standard: to Officer Iannuccillo. During her testimony, however, the defendant admitted based upon insufficiency of the evidence is guided by our well-established presented evidence that the defendant initially denied making any allegations Our review of a trial court’s denial of a defendant’s motion to dismiss

violated a protective order by sending her the text messages. At trial, the State

to be false, and that she knowingly and falsely reported that Jeffrey had information with a purpose to deceive him. messages to Officer Iannuccillo which she claimed were from Jeffrey, but knew in violation of the restraining order, she knew that she was giving him false from which a rational juror could have found that the defendant presented text text messages to Officer Iannuccillo and told him that Jeffrey sent them to her

The record in this case establishes that there was abundant evidence establish, beyond a reasonable doubt, that when the defendant presented the

required to prove that she sent the text messages. Rather, the State had to true . . . .” Thus, contrary to the defendant’s assertions, the State was not Ruggiero had committed an offense . . . when in fact she knew that was not

omitted).

, 162 N.H. ___, ___ (decided November 3, 2011) (quotation Iannuccillo . . . with the purpose of inducing the officer to believe that Jeffrey

2008 . . . [the defendant] knowingly gave false information to Officer Mark The charge of false report to law enforcement alleged that “on or about May 4, purpose to deceive a public servant who was engaged in said investigation.”

she alleged was sent by Jeffrey Ruggiero, which she knew to be false, with the regarding violations of a protective order, presented a text message . . . which p. 10 Affirmed

the charges beyond a reasonable doubt.

evidence upon which a rational jury could find the defendant guilty of each of

Based on the record before us, we conclude that there was sufficient

indicated that the defendant left the airport garage at 7:21 p.m. Oakland airport at 5:20 p.m., and a parking receipt from the Oakland airport

not yet returned from her business trip to Tennessee. Flight records from call from Oakland, California at 5:38 p.m. on the 1057 phone because she had defendant’s claim that she could not have placed the March 20, 2008 telephone

DALIANIS, C.J.