2013-0229, State of New Hampshire v. Brian Craig

appeal, the defendant argues that the trial court erred in denying his motion to case, the defendant unsuccessfully moved to dismiss all three charges. On April 2012 that were directed to the victim. At the concl usion of the State’s based on a series of messages that he posted on his Facebook profile page in and one count of stalking, RSA 633:3 - a (Supp. 2014). The convictions were RSA 631:4 (Supp. 2014); one count of witness tampering, RSA 641:5 (2007); defendant, Brian Craig, was convicted on one count of criminal threatening, BASSETT, J. Following a jury trial in Superior Court (Delker, J.), the

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

orally), for the State. Joseph A. Foster, attorney general (Natch Greyes, fellow, on the brief and

No. 2013 - 229 Rockingham

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, Concor d, 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 p. 2 22 as 2

restraining order against the defendant under RSA chapter 173 - B, which was On April p. 2 24, t he Superior Court (McHugh, J.) issued a temporary

a petition for a tem porary restraining order. when she received it. The victim was so troubled that, later that day, she filed being served with the stalking warning letter, she was nevertheless distressed bee n told by the police that the defendant had mailed another letter prior to restaurant] for having spoken of it on the internet.” Although the victim had not to repair the damage you caused in having me banned from [the defendant wrote, “[I can] never give you another shot again, since you chose The next day, the victim received a third letter at her workplace. The

so, he could be arrested for criminal trespass. See RSA 635: p. 2 2 (Supp. 2014). that he was forbidden fro m entering the victim’s workplace, and that if he did defendant with a no - trespass notice from the victim’s employer, informing him consequences of violating it. On the same day, the Exeter police served the confirmed that the defendant understood the warning letter and the would result in prosecution for stalking under RSA chapter 633:3 - a. Chadwick warning from the Exeter Police Department that “future stalking behavior” that the victim had complained about his behavior, and that the letter was a defendant with a stalking warning letter. Chadwick explained to the defendant On April 22, Officer Chadwick of the Exeter Police Department served the

of [his] ches t” about their relationship before he could “say good bye properly.” letter at work, in which the defendant stated that he “had to get a few things off the Exeter Police Department. Shortly thereafter, the victim received a second b ecause you are trying to hurt me.” Alarmed by the letter, the victim contacted must’ve heard I was speaking highly of you on my Facebook page. I can tell, workplace. The letter addressed the victim by name, and began: “So, you In April p. 2 2012, the defendant mailed a letter to the victim at her

just to see her. her. On one occasion, he came in alone, and told the vic tim that he came in coming to the restaurant by himself, and the victim noticed that he stared at very simple” customer - server communications. In time, the defendant began at work, and, according to her, their relationship consisted only of “very casual, with his brother or with friends. The victim interacted with the defendant only bartender and waitress. The defendant initially came to the victim’s workplace defendant met the victim at a restaurant in Exeter where she worked as a The jury could have found the following facts. In late p. 2 2011, the

I. Factual Background

He does not challenge his conviction for criminal threatening. We affirm. dismiss the witness tampering and stalking charges for insufficient evidence. p. 3 3

would care . . .. Well, damnit, I care! . . .. This is not goodbye. [Y]ou made it so I could not come back. You did so to see if I unless I was made to. I am just asking you not to make me... . [Y] ou are the one person I could never walk away from,

. . ..

De ar Babe

The next day, April 28, the defendant posted:

or we’re all dead.” can wake up and say “Oh, there’s no beating him, I better help him Now you see, [victim’s name], why it has to be you. Only you

. . ..

I think by the day in court you will have come around.

. . ..

people from death. [Y]ou need to stop trying to beat me and start helping save

. . ..

are the one in cuffs. HA HA! your end of the whole Restraining order thing. So technical ly, you anything back to me all week, as it would constitute a breach in means my butt is covered. Also, you are not allowed to do choose to look at the things I say to you on Facebook, that it I just wanted to remind you that since you would have to

Dear Kitty Kat:

April 27, the defendant posted: to post statements directed to the victim on his public Facebook page. On Subsequent to service of the restraining order, the defendant continued

was scheduled for May p. 4 4, 2012. order also notified the defendant that a final hearing on the restraining order of the mail letters and no contact whatsoever, phone, email, et cetera.” The person s from domestic violence). The restraining order required the “[s]toppage served on the defendant the same day. See RSA ch. 17 p. 3 3 - B (2014) (protection of 4

. . ..

charges and become an honest woman. judge you are all set with me . . . [o] r, you can drop all [the] [H]ere’s my proposal. On Friday, you can either tell the

Friday, May p. 4 4, and threatening her if she did not comply: the victim as to what he wanted her to do and say at the hearing scheduled for Later on April 28, the defendant posted four more messages, instru cting

about you on here. your knowledge of it in your complaint, yet did not say not to talk HA HA. I mentioned Facebook in a letter, you mentioned

. . ..

wall. You lose again[.] The document I have here does not mention my Fac ebook

. . ..

You don’t want to go to jail for perjury do you?

. . ..

became aware of my words on Facebook via my letter. You’ll have to lie under an oath of God to tell them you first

. . ..

name again. Don’t forget to bring this post in with you. Just tell the judge you are all set, and I will never speak your

. . ..

represent myself and beat you. . . . though they are not a crime, I can retaliate with law too. . . . I can Friday, and you intend to use my facebook posts against me, even okay! Here’s what we will do. Since it won’t be resolved this So you want to p ush with this restraining order eh? Ha Ha,

Facebook page: here,” t he defendant continued to post statements directed to the victim on his Despite acknowledging that, “I know you wan t me to slow down a bit on p. 5 5

them. posts, warned the victim of “the extent and the severity” of the l ang u a ge in posts about her on Facebook, and because her mother, who had read the Facebook page. She did so because the defendant’s first letter referenced his defendant, the victim, for the first time, decided to read the defendant’s Several days after the court’ s entry of the restraining order against the

over.. . . documentation that you have dropped the charges we can start all [M]onday[.] No, right now, go there now. [I]f and when I receive You can tell the police the truth and dro p the charges on

. . ..

for it. [G]o tell them you were lying and you want to face the music

. . ..

victim] eat s ** t and rot in Hell. Well folks, I am going to go silent for the we ek, and let [the

. . ..

shut up and do as I say. were mistaken, and you’d like it removed. . . . You’re a s ** t! [S]o have you held accountable . . .. You go tell the judge that you No, I want the order removed before Friday now. Or I will

. . ..

be all mine as of this Friday, or f**k off forever. the Apocalypse, a nd it will be all your fault. So, your options are to convicted of anything, I go to jail for a year, and everyone dies in Oh Schnookums! I forgot to mention . . . if you get me

. . ..

my wall for quite some time, I win. mentions it was received?[”] Since I know you have been viewing defendant’s] Facebook wall, prior to the letter in which h e put on the stand to answer the question “Did she view [the [G]oing to trial means the entire staff at [your workplace] gets p. 6 6

http://smallbusiness.chron.com/facebook - notes - for - 2 p. 6 6637.html (last visited Jan. 22, 2015). See Jay Leon, What are Facebook Notes For?, Houston Chronicle, read the Notes by clicking on a link that appears under a user’s profile picture on his profile p age. imposed by Facebook. The Notes are av ailable directly from a user’s profile p age. Other users can “Notes” is a Facebook application that allows users to write posts without the usual word limit 2 F. Supp. 2d 659, 662 (D.N.J. 2013). of their live News Feed. Id. at 877; see also Ehling v. Monmouth - Ocean Hosp. Service Corp., 961 may agree to b ecome friends. U sers ’ post s are automatically sent to their Facebook friends by way network. O ’ Leary v. State, 109 So. 3d 874, 874 n.1 (Fla. Dist. Ct. App. 2013). Any pair of users “Facebook friends” are other Facebook users whom the user has invited to join the user’s social 1

Facebook ’ s Afterlife, 90 N.C. L. Rev. 1 p. 6 643, 1646 (2 012) (quotation omitted); see power to share and make the world more open and connected.” Mazzone, anyone with an e - mail account, whose stated mission is “to give people the Facebook i s a widely - used social media website, available for free to

II. Explanation of Facebook Technology Relevant to this Case

that the evidence was legally insufficient to convict him of the two charges. motion to dismiss the witness tampering and stalking charges. He contends On appeal, the defendant argues that the trial court erred in denying his

jury convicted the defendant on all three charges. This appeal followed. defendant moved to dismiss each charge. The court denied the motion. The was held on Decem ber 11, 2012. At the conclusion of the State’s case, the stalking, RSA p. 6 633:3 - a, I(c); and c riminal threatening, RSA 631:4. A jury trial A grand jury indicted the defendant for witness tampering, RSA 641:5;

arrested the defendant. wrote t hem, but said that he was “expressing his feelings.” Chadwick then him with printed copies of the Facebook posts. The defendant admitted that he order. On April 28, Chadwick went to the defendant’s home and confronted which were written after the defendant had been served with the restraining Facebook page, and read the multiple posts directed to the victim, many of In response, Officer Chadwick logged onto Facebook, found the defendant’s the Exeter Police Department and reported the content of the Facebook page. her, and by reading her name in one o f his post s. Consequently, she contacted her. She was “appalled” and “scared” by the language he used in reference to T he victim spent “about three hours” reading the defendant’s posts about

section of the defendant’s Facebook p rofile p age. 2 in his Facebook “Notes,” which the victim could read by open ing the “Notes” his name into the Facebook search tool. The defendant’s posts were contained was public, the victim found the defendant’s Faceb ook page simply by entering “Facebook friend” of the defendant. However, because the defendant’s page 1 Although the victim had a Facebook page at the time, she was not a p. 7 7

standard of review is de novo. State v. Kay, 162 N.H. 23 p. 7 7, 243 (2011). a challenge to the sufficiency of the evidence raises a claim of legal error, our does not exclude all reasonable conclusions except guilt. Id. at 361. Because offense is solely circumstantial, the defendant must establish that the evidence therefrom. Id. When the evidence as to one or more elements of the charged found as a result of other inference s, provided they can be reasonably drawn draw reasonable inferences from facts proved and also inferences from facts finding of guilty beyond a reasonable doubt. Id. Further, the trier of fact may isolation. Id. at 355. Circumstantial evidence may be sufficient to support a examine each evidentiary item in the context of all the evidence, not in State.” State v. Germain, 165 N.H. 350, 354 - 55 (2013) (quotation omitted). We and all reasonable inferences therefrom in the light most favorable to the elements of the crime beyond a reasonable doubt, considering all the evidence must show that no rational trier of fact “could have found the essential To prevail on a challenge to the sufficiency of the evidence, a defendant

III. Analysis

just the user.” Id. limited to the user’ s Facebook friends, to particul ar groups or individuals, or t o customizable privacy settings. Ehling, 961 F. Supp. 2d at 662. “Access can be Facebook users can restrict access to their Facebook content using Facebook’s anyone, even to people without an account on [Facebook].”). Alternatively, 2015); see also Diss, supra at 1844 n.1 p. 7 7 (“Public information is available to http://faceb ook.com/help/211513702214269?refid=69 (last visited Jan. 22, including people off of Facebook can see it.” Facebook, pages are public.” Id. When a user shares something publicly, “anyone the user.” Ehling, 961 F. Supp. 2d at 662. “By default, Facebook [profile] A profile p age “is a webpage that is intended to convey information about

(D.N.J. 2013). see Ehling v. Monmouth - Ocean Hosp. Serv ice Corp., 961 F. Supp. 2d 659, 662 become “Facebook friends” with other users. Democko, supra at 36 p. 8 8, 3 p. 7 75 - 76; ability to send personal messages to other users, and by allowing users to functions that facilitate sharing information, such as a user ’ s “profile p age,” the behave .. . and interact with one an other in their everyday lives” through site With over one billion active users, Facebook is “revolutionizing the way people and How Courts Can Effectively Control It, 54 B.C. L. Rev. 1841, 1842 (2013). or Not: The Inclusion of Social Media Evidence in Sexual Harassment Cases with others, exceeding e - mail usage in 2009. Diss, Note, Whether You “Like” It social media sites are becoming the dominant mode of communicating directly L. Rev. 367, 376 (2012) (discussing access to Facebook). Facebook and other Democko, Comment, Social Media and the Rules on Authentication, 43 U. Tol. 8

the defendant, by posting on his own public Facebook page after he had statements at issue on his Facebook page. Thus, the State had to prove that violence restraining order on April 24, or that he subsequently posted the The defendant does not dispute that he was served with the domestic

advanced by the entire statutory scheme.” Id. legislature’ s intent in enacting them, and in light of the policy sought to be entire statutory scheme.” Id. “Our goal is to apply statu tes in light of the Id. “We do not read words or phrases in isolation, but in the context of the possible, construe that language according to its plain and ordinary meaning.” interpreting a statute, we first look to the language of the s tatute itself, and, if statute considered as a whole.” State v. Dor, 165 N.H. 19 p. 8 8, 200 (2013). “When are the final arbiters of the legis lature’ s intent as expressed in the words of the which we review de novo. See Deyes o v. Cavadi, 165 N.H. 76, 79 (2013). “We The interpretation and application of statutes present questions of law,

in suc h fashion.” electronic communication, leaving items, or causing another to communicate either directly or indirectly, including, but not limited to, using any form of RSA 173 - B:1, IV defines “contact” as “any action to communicate with another transmission, including . . . electronic transmission.” RSA 644:4, II (2007). “communicates,” in relevant part, as “impart[ing] a message by any method of contact whatsoever, phone, email, et cetera.” RSA 644:4, II defines communication violated the provision of the restraining order that required “no defined in RSA 644:4, II,” see RSA 633:3 - a, II(a)(7); and (2) that this act of State charged that the defendant: (1) engaged in an “act of communication, a s II(a).” RSA 633:3 - a, I(c) (emphase s added); see RSA 633:3 - a, II(a). Here, the conduct that both violates the provisions of the order and is listed in paragraph with the victim, “purposely, knowingly, or recklessly engage [d] i n a single act of protective order issued pursuant to RSA chapter 173 - B that prohibited contact a, I(c), the State had to prove that the defendant, after being served with a scheme. In order t o convict the defendant of stalking in violation of RSA 633:3 - We begin our analysis by outlining the pertinent portions of the statutory

RSA 173 - B:1, IV. interpret the stalking statute, RSA 633:3 - a, I(c), and the definition of contact in there is sufficient evidence to convict the defend ant of stalking requires us to definition of “contact” in RSA 173 - B:1, IV. Therefore, determining whether not take an “action to communicate” with the victim as required by the that there was insuf ficient evidence that he stalked the victim because he did questions of statutory interpretation. For example, the defendant contends challenging the sufficiency of the evidence are closely intertwined with charge of stalking. See RSA 633:3 - a, I(c). The defendant’s arguments We first address whether the State presented sufficient evidence on the

A. Stalking p. 9 9

we agree with the defendant that “contact” requires more than merely creating the defendant deliver the message directly to “the protected person.” Although requirement in his proffered interpretation of “contact,” that would require that Additionally, the defendant incorporates a narrow “conveyance”

See RSA 173 - B:1, IV (emphases added). communicate with another either directly or indirectly” constitute s contact. “contact” in RSA 173 - B: 1, IV. T he statute provides that “any action to person,” is fatally undermined by the legislature ’s definition of t he term t he creation of the message, but in the conveyance of it to the protected argument that “contact” requires that the defendant “be the actor not only in In essence, the defendant asks us to rewrite the statute. The defend ant’s

RSA 173 - B:1, IV. We disagree. victim, and, therefore, did not take an “action to communicate” as required by he merely posted publicly online without sending the posts directly to the defendant argues that his Facebook posts cannot constitute contact b e cause the message, but in the conveyance of it to the protected person.” The pursuant to RSA 173 - B:1, IV, he must “be the actor not only in the creation of The defendant contends that, in order for his cond uct to constitute “contact” We first consider the defendant’s argument regarding his own conduct.

precludes his conduct from constituting “contact” as defined above. victim’s affirmative act of searching for and reading his Facebook posts communicate” as requir ed by RSA 173 - B:1, IV. Second, he argues that the that his conduct is insufficient, standing alone, to constitute an “action to violation of the restraining order has two main components. First, he asserts The defendant’s argument that he did not “contact” the victim in

2. Contact Pursuant to RSA 173 - B:1, IV

(200 p. 9 9). this argument sufficiently for our review. State v. Young, 159 N.H. 332, 337 passing reference in his brief to the issue; therefore, he has failed to develop t hat the trial court erred in its interpretation of RSA 644:4, II, he makes only a cove r . . . these posts on Facebook.” Although t he defendant asserts on appeal definition of communication [in RSA 644:4, II] is broad enough, certain ly, to communication directed at [the victim] in a public forum,” and that “the [it was] written . . . suggest[e d] that [the defendant’s post s were] a T he trial court concluded that “the nature of what [was] written and how

1. Act of Communication Pursuant to RSA 644:4, II

173 - B:1, IV that violates the April 24 restraining order. constitutes: (1) an “act of communication”; and (2) “contact” pursuant to RSA received the restraining order, engaged in a single act of conduct that p. 10 10

“any action to communicate” comports with the legislative purpose of RSA State v. Kidder, 150 N.H. 600, 603 (2004). Therefore, a broad i nterpretation of

and effective police protection and judicial relief.” Id. at 649. members by entitling victims of domestic violence to immediate and prote ct the safety of the family unit for all family or household of the statute comports with the legislat ive purpose to “preserve for domestic violence victims.” Id. at 648. A broad interpretation enforcement of the criminal laws and the provision of judicial relief this state to prevent and deter domestic violence through equal liberally. See N.H.H.R. Jour. 649 (1999). “It is the public policy of the legis lature intended RSA chapter 173 - B to be construed

Additionally, as we have previously recognized:

anti - stalking statu te to address growing problem of cyberstalking). Hampshire, like many states, added “electronic communications” to its general Challenges, 14 Chap. L. Rev. 457, 47 4 n.129 (2011) (observing that New Anti - Stalking Statutes Considering Modern Mediums and Constitutional 136 (2012); cf. Beagle, Comment, Modern Stalking Laws: A Survey of State Self - Incrimination: Facebook and the Fifth Amendment, 65 Ark. L. Rev. 133, facilitates the crime.” Morrison, Passwords, Profiles, and the Privilege Against that “[s]ometimes, particularly in stalking and harassment cases, social media such as Facebook — provide a fertile environment for criminal behavior and advances in communication — including e - mail and social media websites communicate.” This reflects the legislature’s awareness that technological electronic communication” in it s nonexhaustive list of “action[s] to Moreover, it is significan t that RSA 173 - B:1, IV lists “any form of

omitted). v. N.H. Democratic Party, 166 N.H. 138, 143 (2014) (quotation and brackets Id. “The legislature’ s choice of language is deemed to be meaningful.” O’Brien statute). Such a change to the statute’ s language is not for this court to make. (concluding that phrase “any property” requires broad interpretation of legislature did not include. See Landry v. Land ry, 154 N.H. 785, 788 (2007) conveying the message to the victim — would add limiting language that the addressing the victim and p osting it in a public forum, but not personally statute as not encompassing the defendant’s conduct — w riting a message created a message and took steps to convey it to the victim. T o construe the page, and directing the victim’s attention to his page, the defendant both message. By posting messages addressing the victim on his public Facebook added). Further, in this case, the defendant did more than me rely create a indirectly” to “communicate with another.” See RSA 173 - B:1, IV (emphases the legislature, which requires only that a person act “either directly or a message, his limit ations do not f ind support in the actual language chosen by p. 11 11

victim on Facebook other than “to communicate them.” Id. Had the defendant there is “no logical reason” for the defendant to post statements directed to the Facebook page — the O’Leary court’s rationale applies with equal force here: circumstances in this case — that th e defendant directed the victim to his way of his Facebook News Feed. However, we find that, given the in O’Leary was a Facebook friend of the defendant, and he received the post by Id. We recognize that, unlike the victim in this case, the recipient of the threat

accessible by other people. them in a private journal, diary, or any other medium that is not for his own personal contemplation, he could simply have recorded users. Had [the defendant] desired to put his thoughts into writing comments other than to communicate them to o ther Facebook the mission of Facebook, there is no logical reason to post written composition onto his personal Facebook page. . . . Given [The defendant] reduced his thoughts to writing and placed this

message].. . . it, that person has completed the firs t step in [sendin g a displays the composition in such a way that someone else can see When a person composes a statement of thought, and then

his Facebook friends.. . .” Id. The court explained: own personal page, [the defendant] ‘sent’ the threatening statements to all of affirmative act of posting the threats o n Facebook, even though it was on his has done more than he contends.” Id. at 877. T he court ruled that “by the stating that “a common sense review of th e facts suggests that [the defendant] addressed the posting to anyone,” the C ourt of Appeal rejected that argument, neither asked anyone to view the posting on his personal Facebook page, nor Alt hough the def endant in O’Leary claimed that “he ‘ sent ’ nothing because he the defendant read the post and informed the victims about it. Id. at 874 - 75. member of the public who wanted to view [it].” Id. at 875. A Facebook friend of identified his victims by name, and his Facebook page was “accessible by any State, 109 So. 3d 874, 877 (Fla. Dist. Ct. App. 2013). T he defendant in O’Leary and her romantic partner by posting it on his own Facebook page. O ’ Leary v. finding that a defendant “sent” a threatening statement to one of his relatives District Court of Appeal for the First District of Florida upheld a trial court’s liability for internet communications). For example, i n O ’ Leary v. State, the Widener L.J. 933, 959 - 60 (2010) (discussing cases where courts have found Internet and Social Networking Sites by Domestic Violence Perpetrators, 19 internet. See Baughman, Friend Request or Foe? Confirming the Misuse of which defendants have been held accountable for posting messages on the Ou r interpretation finds support in case s from other jurisdictions in

statute with “immediate and effective police protection and judicial relief.” Id. chapter 173 - B: to provide those who seek protective orders pursuant to the p. 12 12

win. Since I know you have been view ing my wall for quite some time, I

. . ..

about you on here. [my Facebook page] in your complaint, yet did not say not to talk Y ou lose again . . . HA HA. . . . [Y]ou mentioned your knowledge of The document I have here does not mention my Facebook wall.

. . ..

on Facebook, that. . . means my butt is covered. [S]ince you would have to choose to look at the things I say to you

Faceb ook page: restraining order, he stated that he was aware that the vi ctim was reading his Further, in several posts that the defendant wrote after he received the

Supp. 2d at 662 (discussing Facebook privacy options). accessible by other people.” O’Leary, 109 So. 3d at 877; see Ehling, 961 F. page private, or recorded his thoughts in “any other medium that is not defendant was only “expressing his feelings,” he could have chosen to make his 1844 n.17. If, as he asserted to Officer Chadwick at the time of his arrest, the anyone, even to people without an account on [Facebook].” Diss, supra at defendant chose to m ake his page “public,” meaning his page was “available to We find these cases to be instructive. In this case, as in O’Leary, t he

purposefully directing it to [the victim] . . . .” Id. at 601. (emphase s added). disseminated world - wide, but the content of the video establishes that he was explained, the defe ndant “posted the video on an Internet medium that can be life and safety.” Id. at 599 - 600 (emphasis added). Further, the court [because] he specifically targeted his message at [the victim] by threatening her more than the mere posting of a message o n an open Internet forum . . . Ct. 2008). The court observed that “[the defendant’s] YouTube v ideo [was] can’ t breathe no more.’” Rios v. Fergusan, 978 A.2d 592, 595 (Conn. Super. to hurt the applicant, to shoot her and to ‘put her face o n the dirt until she defendant] brandished a firearm in a rap s ong in which he state s that he wants order against a defendant after he “posted a video on YouTube in which [the Similarly, in Rios v. Fergusan, a Connecticut court upheld a restraining

other people.” Id. could have written his thoughts in “any other medium that is not accessible by contemplation,” and not wished them to be communicated to the victim, he desired merely “to put his thoughts into writing for his own personal p. 13 13

person — this case do es not present such a circumstance. example, if the protected person, without enticement, sought out the restrained which a protected person’s conduct could impact the “contact” analy sis — for to include.” Dor, 165 N.H. at 200. Although we can envision circumstances in legislature might have said or add language that the legislature did not see fit they have a bearing on the issue of “contact.” “W e will not consider what the addresses the actions of a victim or the recipient of a message, nor states that First, nothing in the language of RSA 173 - B:1, IV or RSA 633:3 - a, I(c)

of the restraining order. We disagree. when she search ed for his Facebook page, he did not “contact” her in violation “voluntarily retrieved” rather than “merely received” the defendant’s messages We next address the defendant’s argument that, because the victim

constitute an “action to communicate” pursuant to RSA 173 - B:1, IV. these reasons, we conclude that the defendant’s conduc t was sufficient to expectation that the v ic tim would pass by, and then shouting to her. For all of defendant positioning himself on a street corner with the knowledge and with both the purpose and effect of communicating a message to her, and the meaningful difference between the defendant posting messages on Facebook aware that the victim had been reading his posts on Facebook. W e discern no victim is calculated, not fortuitous. The defendant’s post s reveal that he was situation in this case. In both circumstances, the defendant’s contact with the we find the defendant’s posited scenario to be materially equivalent to the concedes would constitute an “act ion to communicate” and, thus, contact — victim] is going to be present and shouting out” to the victim — an act that he posts from “standing out on the street co rner where [he] might know [the during oral argument t he defendant attempted to d istinguish his Facebook contact] and was in a place where he knew [the victim] might be.” Although that “it would v iolate the [stalking] statute if. . . he had the intent [to make Finally, the defendant himself acknowledged in his motion to dismiss

message on MySpace to specific victim). of MySpace posts revealed that defendant intentionally communicated a public Baughman, supra at 960 - 61 (discussing case in which court held that content and “purposefully direct[ed]” his posts to her. Rios, 978 A.2d at 600; see also like the defendant in Rios, “specifically targeted his message at [the victim],” the victim’s complaint. The content of these posts show s that the defendant, referring to the final restraining order hearing, and referenced specific details of instructed the victim to take certain actions and say specific things “on Friday,” meaningless to any reader other than the victim. For example, the defendant In addition, we note that most of the defendant’s posts would have been

victim. O’Leary, 109 So. 3d at 877. “no logical reason to post comments other than to communicate them” to the These posts demonstrate that the defendant, like the defen dant in O’Leary, had p. 14 14

culpability for violating the terms of the restraining order. As the victim deliberate steps to communicate with the victim while attempting to avoid communication” with the victim indirectly. As in Butler, the defendant took Like the defendant in Butler, the defendant here “achieved a

flowers. Id. invited inquiry” by the victim into the identity of the person who sent the 667. The court n oted that “[the defendant’s] profession of anonymity merely “achieved a communication with [the victim] amounting to ‘ contact. ’” Id. at court concluded that the defendant violated the “no contact” order, because he or telephone number, and wanted no name on the card. Id. Nonetheless, the had sent them. Id. The defendant had not given the florist his name, ad dress, was the sender, the victim called the florist and confirmed that the defendant the sender ’ s name as “requested withheld.” Id. Suspecting that the defendant Id. at 666. The victim then received flowers at her hom e, with a card that gave telephone, in writing, or otherwise, either directly or through someone else.” provided that the defendant was “not to contact [the victim] either in person, by sending flowers to the victim. Id. at 666 - 67. In that case, the restraining order held that the defendant had violated a restraining order by anonymously affirmative act. Although the case did not involve online conduct, the court communication can constitute contact by the defendant, despite a victim’s N.E.2d 666, 667 (Mass. App. Ct. 1996), the court concluded that an indirect “contact” pursuant to RSA 173 - B:1, IV. In Commonwealth v. Butler, 661 reading his Facebook post s operates to bar his conduct from constituting law supporting his assertion that the victim’s affirmative act of findi ng and Notably, the defendant does not cite, and we are unable to find, any case

defendant, would make the victim “the one in cuffs.” restraining order, rather than restraining the threatening behavior of the himself observed in his Facebook posts directed to the victim — that the the incongruous and potentially dangerous result would be — a s the defendant frustrate the purpose of the stalking statu te. Were we to conclude otherwise, Facebook posts and alerted the police to the threatening messages would 633:3 - a to deny protection to a victim who has viewed publicly available Id. (quotatio ns omitted). We conclude, therefore, that interpreting RSA chapter police to interfere before a domestic violence situation escalates into violence.” response to the “wide spread need in New Hampshire for legislation to allow the a part of [domestic violence],” the legislature enacted RSA chapter 633:3 - a in (Dalianis, J., concurring) (quotation omitted). Acknowledging that “[s] talking is is a serious problem.” Fisher v. Minichiello, p. 15 155 N.H. 188, 195 (2007) of the fact that “[h]arassing and threatening behaviors toward innoc ent people such as threatening strangers and obsessive former lovers,” and in recognition protecting individuals from “domestic violence and problems of like gravity, legislature. T he legislature passed RSA chapter 633:3 - a with a focus upon statute would fr ustrate the statute’s purpose and thwart the intent of the Moreo v er, to deny the victim in this case protection under the stalking 15

the United States Constitution, s ee Elonis v. United States, No. 13 - 983 (U.S. circumstances, may constitute protected speech under the First Amendment of IV. Moreover, al though we are mindful that Facebook posts, under some standing alone, is sufficient to constitute “co ntact” pursuant to RSA 173 - B:1, In so ruling, w e need not decide w hether a public Facebook post,

motion to dismiss the stalking charge. Accordingly, we conclude t hat the trial court properly denied the defendant’s Facebook page constitute “contact” in violation of the protective order. found beyond a reasonable doubt that the defendant’s posts on his public has not met his burden to demonstrate that no rational trier of fact could have to the State,” id. at 354 - 55 (quotation omitted), we conclude that the defenda nt the evidence and all reasonable inferences therefrom in the light most favorable isolation,” Germain, 165 N.H. at 355 (quotation omitted), and “considering all examining the defendant’s conduct “in the context of all the evidence, not in the severity and the vulga r use of words” about her daughter. In sum, order. T he victim’s mothe r urge d her to read the posts due to “the extent and her on his public p rofile p age after he had been served with the restraining that the victim was reading his posts, continued to post messages directed to the victim to his Facebook post s in his earlier correspondence, and b elieving See RSA 173 - B:1, IV (emphases added). Here, the defendant, having alerted include “any action to communicate with another either directly or indirectly.” Th e legislature expansively defined “contact” in RSA 173 - B:1, IV to

constituting “contact” as used in RSA 173 - B:1, IV. defendant’s Facebook page does not preclude the defendant’s conduct from internet. W e conclude that the victim’s affirmative act of viewing the said. The reasoning of Butler is equall y applicable in the context of the Facebook posts in his letter, “invited inquiry” by the victim into what his posts flowers, Butler, 661 N.E. 2d at 667, the defendant here, by referring to defendant in Butler “invited inquiry” into who had anonymously sent the and reading the defendant’s public Facebook page. Thus, just as the in her position — would refrain from ensuring her own safety by searching for to read the posts; it strains credulity to expect that the victim — or any person defendant’s letter referencing his Facebook posts, and was urged by her mother acts pose a credible present threat to safety). The victim was “alarmed” by the grant of restraining order are relevant to court’s inquiry as to whether recent N.H. 482, 487 (2011) (observing that acts committed by defendant prior to the defendant’s Facebook po st s. See In the Matter of McArdle & McArdle, p. 16 162 order, it is critical in that it invited the victim’s later inquiry as to the nature of order, and, therefore, its mailing did not, standing alone, violate the restraining them. Although the letter was sent prior to the issuance of the restraining or if her mother had no t read the defendant’s posts and urged her to read which he told her that he was “speaking highly of [her] on [his] Facebook page,” d efendant’s] Facebook page” if she had not received the defendant’s letter in testified, she would have had no “reason or desire to go look up [the 16

all the circumstances in the case because “conduct illuminates intent.” Id. at is entitled to infer the requ isit e intent from the defendant’ s conduct in light of here, be proven by circumstantial evidence.” Id. (quotation omitted). The jury minds or mental processes, a culpable mental state must, in most cases, as “Be cause persons rarely explain to others the inner workings of their

defendant attempted to induce was false and that he knew it was false.” Id. presented sufficient evidence to support a finding that the testimony the assumption here, we must, as we did in DiNapoli, “consider whether the State to convict the defendant of witness tampering. Id. at 5 p. 16 16. Making the same to prove that the testimony the defendant sought to induce was, in fact, false” In State v. DiNapoli, we “assume[d] without deciding that the State had

she no longer wanted the protecti ve order would require her to testify falsely. feared him, and, therefore, that he knew that asking her to tell the judge that was false. The State counters that the defendant was aware that the victim could not e stablish that he acted purposely with knowledge that the testimony make to the judge or the police were actually true, and, therefore, the State — might subjectively believe that the statements that he asked the victim to that an individual like himself — with an erroneous or delusional view of reality wanted the restraining order — would actually be false. The defendant asserts that she was “all set with [the defendant],” “[was] mistaken,” and no longer that the testimony he attempted to induce from the victim — telling the judge defendant acted purposely because it did not sho w that the defendant believed The defendant first argues that the State failed to prove that the

(2003). the defendant believed was false.” State v. DiNapoli, 149 N.H. 514, 5 p. 16 16 - 17 defendant acted purposel y to induce [the victim] to testify to something which testimony the defendant sought to induce was in fact false, and that the is sufficient evidence of witness tampering if the State proves that “the inform falsely.” See RSA 641:1, II (2007) (defining “official proceeding”). There instituted, he attempts to induce or otherwise cause a person to . . . [t]estify or that an official proceeding .. . or investigation is pending or about to be Pursuant to RSA 641:5, a person is guilty of witness tampering if, “[b]elieving insufficient evidence on the charge of witness tampering. See RSA 641:5. We turn next to the defendant’s argument that the State presented

B. Witness Tampering

victim. Cf. RSA 633:3 - a, II(a). po sts served some legitimate purpose aside from communicating with the advanced by the defendant in this case, nor does he contend that his Facebook rights under the First Amendment), no First Amendment argument was for posting threats on his personal Facebook page violates his free speech argued Dec. 1, 2014) (addressing question of whether defendant’s conviction p. 17 17

therefore, he did not violate the witness tampering statute. Id. at 557. happened” if the case went forward and sh e was subpoenaed to testify, and, constitute a “request, or even a suggestion, that [the witness] lie about what 555 - 57. The court concluded that the defendant’s statements did not the burgl ary prosecution could not go forward” without her consent. Id. at asked the witness not to pursue the case against him because he “believed that witness that she did not have to testify if she had not been subpoenaed, and to the grand jury hearing on his burglary charge, the defendant told the into the home where he had previously lived with the witness. I d. at 555. Prior misplaced. In Rantala, the defendant was charged with burglary after breaking defendant. Rantala, 216 P.3d at 556. T he defendant’s reliance on Rantala is testified or not) that she did not wish to pursue” her complaint against the in that case, merely asked the victim to “tell the authorities (whether she 216 P.3d 550, 556 (Alaska Ct. App. 2009), claiming that he, like the defendant In support of his argument, the defendant relies up on Rantala v. State,

upcoming hearing. We agree with the State. fact, the defendant sought to intimidate the victim into testifying falsely at the counters that the defendant misch aracterizes his Facebook post s and that, in which he asserts is very different from askin g her to testify falsely. The State The defendant contends that he merely asked the victim to “drop the charge,” defendant understood that he was asking the victim to give false testimony. The def endant next argues that the State did not prove that the

falsity in witness tampering charge). 641 (1990) (considering “the totality of the evidence presented” when evaluating to find sufficient evidence of witness tampering); State v. Baird, 133 N.H. 637, were false. See id. (considering testimony and entirety of defendant’s conduct the victim to make were in fact false and that the defendant believed that they rational jury could have concluded that the statements that the defendant told me, or you wouldn’t b e with someone else.” Given these facts, we find that a victim was not interested in him, writing, “It’s not as if you are actually into him. Further, the defendant himself acknowledged in his first letter that the tre spass notice from the victim’s employer, and the restraining order against concerns about his behavior when he received the stalking warning letter, a no letters. The defendant was made aware of the victim’s complaints and beyond her interactions with him at work, and that she was alarmed by his The victim testified that she had no re lationship with the defendant

Facebook posts to the victim were, in fact, false. meaning that he believed the statements he sought to induce with his determine whether a reasonable jury could have found that he acted purposely, circumstances surrounding the victim’s interactions with the defendant to 516 - p. 17 17 (quotation and brackets omitted). Thus, here, we look to the p. 18 18

DALIANIS, C.J.