2020-0322, State of New Hampshire v. Justin Gunnip

affirm. corrections in order to prevent the camera from recording the assault. We 641:6, I, when he held paper in front of a surveillance camer a at the house of erred as a matter of law by concluding that the defendant did not violate RSA falsifyi ng physical evidence conviction. The State argues that the trial court (2016). The State appeals the trial court’s order setting aside the defendant’s evidence and one count of conspiracy to commit assault. See RSA 641:6, I the defendant, Justin Gunnip, was convicted on one count of falsifying physical DONOVAN, J. F ollowing a jury trial in the Superior Court (Tucker, J.),

brief and orally, for the defendant. Stephanie Hausman, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Office of the Attorney General, (Zachary L. Higham, assistant attorney

No. 2020 - 0 322 Sullivan

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

prove that the defendant altered, destroyed, concealed, or removed the with the assault.” Thus, the court ruled that the evidence was insufficient to conspirator precisel y because it accurately portrayed his conduct in connection the State used [the recording] as an exhibit to prove [the defendant’s] role as a determined that “[t]here was no evidence the recording was altered and, in fact, maintained on the server in the facility’s data room,” t he court further falsify it. Concluding that the “thing” at issue here was “the recording under the statute, the “thing” at issue “must exist” in order for the defendant to in RSA 641:6, I, as synonymous with “physical evidence” and determined that, conviction. In reaching its decision, the trial court interprete d the word “thing” c onviction, but granted it with respect to the falsifying physical evidence The trial court denied the motion with respect to the c onspiracy

ca pture what it would have otherwise recorded.” [the defendant] altered [the camera’s] view such that the recording did not recorded.” The State objected, arguing that “by holding up a piece of paper, was used during the course of the trial as an accurate depiction of what was accurately recorded what it recorded and was still intact at the time of trial and “the physical manipulation of physical existing things” and that “the recording Specifically, the defendant asserted that the statute’s prohibition is limited to argued, in part, that RSA 641:6, I, “does not re ach [his] conduct in this case.” The defendant then moved to set aside the jury’s verdicts. The defendant

motions, and the jury convicted him on both charges. rested, the defendant moved to dismiss both charges. The court denied the otherwise altered the recording that was saved to the server. After the St ate presented no evidence that, after the assault, the defendant edited, deleted, or paper, thereby preventing the camera from recording the assault. T he State the defendant altered the recording by obstructing the camera’s lens with respect to the falsifying physical evidence charge, the State’s theory was that introduced into evidence the recording from the day of the assault. With assault and one count of falsifying physica l evidence. At trial, the State The defendant was charged with one count of conspiracy to commit

removed the paper, the victim was injured and lying on the floor. the lens, obstructing the camera’s view of the room. When the defendant room. T he defendant approached one of the camera s and held paper in fron t of watching television when the defendant and several other inmates entered the footage from the day of the assault showed the victim sitting on a bench recording was saved to a server, which w as in accessible to inmates. The cameras capable of capturing video footage of the entire room. The digital The room in which the assault occurred was monitored by surveillance Correction s. On August 17, p. 2 2019, another inmate at the facility was assaulted. A ugust 2019, the defendant was an inmate at the Sullivan County House of The following facts are undisputed or are supported by the record. In p. 3 3

the “thing” at issue here was not, as the trial court concluded, the recorded subject that a defendant might try to alter.” The State further contends that the legislature intended the phrase “any thing” to “encompass[] virtually any Broadly construing the language of RSA 641:6, I, the S tate argues that

proceeding or investigation. purpose to impair its verity or availability in such I. Alters, destroys, conceals or removes any thing with a

to be instituted, he: official proceeding . . . or investigation is pending or about A person commits a class B felony if, believi ng that an

relevant part: Turning to the merits, we begin with RSA 641:6, I, which provide s, in

statutes in the context of the overall statutory scheme and not in isolation. Id. language the legislature did not see fit to include. Id. Finally, w e interpret as written and will not consider what the legislatu re might have said or add ordinary meaning. Id. Further, we interpret legislative intent from the statute statute itself, and, if possible, construe that language according to its plain and their terms and to promote justice. Id. We first look to the language of the We construe provisions of the Criminal Code according to the fair import of legislature as expressed in the words of the statute considered as a whole. Id. matters of statutory interpretation, we are the final arbit ers of the intent of the we also review de novo. See State v. Pinault, 168 N.H. 28, p. 3 31 (2015). In of RSA 641:6, I. The interpretation of a statute raises a question of law, which Resolving the State’s appeal also requires that we interpret the language

review is de novo. Id. to the sufficiency of the evidence raises a claim of legal error, our standard of the State. State v. Vincelette, 172 N.H. p. 3 350, 354 (2019). Because a challenge and all reasonable inferences drawn therefrom, in the light most favorable to could have found guilt beyond a reasonable doubt, viewing all of the evidence the sufficiency of the evidence, we consider whether a rational trier of fact evidence. See State v. O’Neill, 134 N.H. 182, 184 - 85 (1991). When evaluating evidence, we apply our traditional standard for evaluating the sufficiency of the court’s de cision to set aside the jury’s verdict based upon the sufficiency of the defendant’s falsify ing physical evidence conviction. When reviewing a trial jury’s verdict on the grounds that the evidence did “not support” the On appeal, the State argues that the trial court erred by setting aside the

and the court denied the motion. This appeal followed. recording in violation of RSA 6 p. 4 41:6, I. The State moved for reconsideration, 4

Dodds, the defendant was convicted of violating RSA 6 p. 4 41:6, I, based upon O ur decision in State v. Dodds, 159 N.H. 239 (2009), is instructive. In

legislature’s intent in enacting the statute.” (quotation omitted)). conclusive of its interpretation, it provides significant indication of the v. Town of Exeter, 159 N.H. 136, 1 p. 4 42 (2009) (“While the title of a statute is not Evidence” — further supports this construction. RSA 641:6 (2016); see Garand of such evidence.” (emphasis added)). The statute’s title — “Falsifying Physical to deter falsification or concealment of physical evidence or the fraudulent use (1969) (“[I] nstead of protecting the verity of testimony, [RSA 641:6] is designed Commission to Recommend Codification of Criminal Laws § 586:6 cmts. at 92 See Commission to Recommend Codification of Criminal Laws, Report of physical evidence for investigatory purposes or for use in subsequent litigation. when the legislature enacted the statute, it was concerned with preserving “proceeding or investigation.” RSA 641:6, I. This language indicates that, purpose to impair [the] verity or availability” of the “thing” at issue in a 641:6, I, requires the State to prove, inter alia, that the defendant acted “with a Co. v. Town of Pelham, 167 N.H. 180, 185 (2014) (quotation omitted). RSA “any thing” is informed by the statute’s other language. K.L.N. Construction not construe statutory language “in isolation,” our interpretation of the phrase B ecause the se definitions suggest multiple meanings, and because we do

Id. have no physical existence “in space or time,” such as “object[s] of thought.” inten ded the meaning of the word “thing” to exclude mere abstractions that suggests that, despite its inclusion of the word “any,” the legislature may have from what is purely an object of thought.” Id. This narrower definition apprehended or known as having existence in space or time as distinguished definition, by contrast, defines the word “thing” as “a n entity that can be intended view” could fall within the meaning of the word “thing.” Another definition is broad, signaling that something as abstract as “the camera’s distinct and individual quali ty, fact, or idea.” Id. We acknowledge that this “thing” as “whatever exists or is conceived to exist as a separate entity or as a several varying definitions. See id. at 2376. One definition describes the word word “thing,” however, Webster’s Third New International Dictionary contains New International Dictionary 97 (unabridged ed. 2002). With respect to the defined as “one or some indiscriminately of whatever kind.” Webster’s Third words. See State v. Ruff, 155 N.H. 536, 539 (2007). The word “any” is broadly we look to the dictionary for guidance as to the ordinary meaning of those it is used in RSA 6 p. 4 41:6, I. Because the statute does not define “any” or “thing,” We disagree with the State ’s interpretation of the phrase “any thing,” as

lens and, consequently, prevented the cam era from recording the assault. view” in violation of RSA 6 p. 4 41:6, I, when he held paper in front of the camera’s from that view.” According to the State, the defendant “altered the camera’s footage, but, rather, the “camera’s intended view and, by extension, the feed p. 5 5

abstraction, r eflecting only the intent of those who installed and maintained “int ended view” of a camera is not physical evidence, but, r ather, a mere conten ds, “the camera’s intended view” or “the feed from that view.” The We further conclude that the “thing” at issue here was not, as the State

“incapable of an analysis that would yield evide nce”). to RSA 641:6, I, because, until the blood was collected for testing, it was defendant’s body was not “physical evidence” under a Kentucky statute similar Page, 149 S.W.3d at 421 - 22 (holding that the blood flowing through the “evidence” as “something that furnis hes or tends to furnish proof”); see also Webster’s Third New International Dictionary, supra at 788 - 89 (defining trying to reconstruct what had occurred.” Dodds, 1 p. 5 59 N.H. at 245; see trial,” it must have enough evidentiary value such that it is “relevant to officials imaginary”). Moreover, a lthough the “thing” at issue need not “be admissible at natural or material things as opposed to things mental, mor al, spiritual, or International Dictionary, supra at 1706 (defining “physical” as “of or relating to issues or forms a part of a transaction.”); see also Webster’s Third New things are exhibited in open court, or an object which relates to or explains the jury without the intervention of the testimony of witnesses, as where various (“[P] hysical evidence i s evidence addressed directly to the senses of the court or Criminal Procedure and Rights of the Accused § 1148, at 595 (2016) record, or other thing of physical substance” (quotation omitted)); 23 C.J.S. (Ky. 2004) (defining “physical evidence” as “any article, object, document, charts” (quotation and brackets omitted)); Page v. Com., 149 S.W.3d 416, 421 impression to factfinders,” such as “weapons, wr itings, photographs, and (defining “physical evidence,” in part, as “anything that con veys a firsthand are in sufficient. See People v. Rieger, 436 P.3d 610, 613 (Colo. App. 2019) some tangible quality; mere abstractions, su ch as thoughts, concepts, or ideas, proceeding. T o qualify as physical evidence, the “thing” at issue must have either assisting officials in an investigation or being used as evidence at a later it is used in RSA 641:6, I, is limited to physical evidence that is capable of Accordingly, we conclude that the meaning of the phrase “an y thing,” as

See i d. at 24 p. 5 5 - 4 7. was admissible at trial, he violate d RSA p. 6 641:6, I, by altering their appearance. concluded that, regardless of whether the appearance of the defendant’s feet relevant to officials trying to reconstruct what had occurred.” Id. W e therefore “any injury [to the defendant’s feet] or absence thereof would have been trial.” Id. Nonetheless, we reasoned that, given the circumstances of the case, that RSA 641:6, I, “does not require that the evidence falsified be admissible at into something relevant.” Id. at 245. Addressing this argument, we observed to an investigation,” and, therefore, “altering his feet did not transform them of RSA 641:6, I, because his “uninjured feet would likely not have been relevant On appeal, the defendant argued that his conduct did not fall within the scope appear consistent with his statements to law enforcement. Id. at 243, 247 - 48. evidence that he altered the appearance of his feet in order to make them 6

that the evidence was insufficient to establish that the defendant violated a p. 6 641:6, I; see al so Sexton v. Com., 317 S.W.3d 62, 64 - 65 (Ky. 2010) (concluding alt er, destroy, conceal, or remove “a thing that does not yet exist.” See RSA plain and ordinary me aning”). Indeed, a s the defendant points out, one cannot of the statute itself, and, if possible, construe that language according to its 31 (explaining that, when interpreting statutes, “[w]e first look to the language destroy[ed], conceal[ed] or remove[d].” RSA 641:6, I; see Pinault, 168 N.H. at presuppose s that the “thing” at issue must exist before it can be “[a]lter[ed], The plain and ordinary meaning of the language in RSA 641:6, I,

“the re cording pre - existed the defendant’ s alteration.” We disagree. what the statute requires” when it construed RSA p. 6 641:6, I, to require proof that State argues, the court “improper ly added an additional element . . . beyond crime to conduct committed after the creation of the ‘thing’ at issue.” Thus, the generation constitutes falsification,” and “nothing in [RSA 641:6, I] l imits the not specify where or when a defendant’s intervention in the process of evidence footage before it reached the server. According to the State, RSA 641:6, I, “does The State argues, on the other hand, that the defendant altered the

Vincelette, 172 N.H. at 354. defendant altered, destroyed, concealed, or removed the recorded footage. See favorable to the State, no reasonable trier of fact could have found that the evi dence, and all reasonable inferences drawn therefrom, in the light most showed what the surveillance camera recorded.” Thus, even viewing the was intact, and it was used [by the State] as evidence precisely because it server. As the trial court observed, “[t]he evidence established the recording defendant deleted, edited, altered, or removed the recording stored on the footage. See RSA p. 6 641:6, I. At trial, the St ate presented no evidence that the establish that the defendant altered, destroyed, concealed, or removed the footage on the server, we conclude that the evidence was insufficient to Having established that th e “thing” at issue here was the recorded

physical evidence of the defendant’s participation in the conspiracy. statute similar to RSA p. 6 641:6, I). Indeed, the State introduced the recording as “electronically stored, digital images” constit ute “physical evidence” under a as physical evidence of a crime. See Rieger, 436 P.3d at 614 (holding that the server in the facility’s data room” — a tangible medium capable of serving court properly rule d that the “thing” at issue was “the recording maintained on officials investigat ing the assault. Cf. Dodds, 159 N.H. at 245. Thus, the trial camera’s intended view” nor “the feed from that view” could have assisted physical evidence. Critically, w ithout the digital recording, nei ther “the into the camera’s lens — lacked the tangible quality necessary to qualify as the “feed” from the camera’s “intended view” — comprised of light reflecting crime. See, e.g., Rieger, 436 P.3d at 613; Page, 149 S.W.3d at 421. Similarly, As explained above, a n abstraction cannot serve as physical evidence of a the camera to record digital images from a certain angle or of a certain event. p. 7 7

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

sees fit. construction, it is free, within constitutional limit s, to amend the statute as it scope of RSA 641:6, I. However, if the legislature disagree s with our the trial court properly ruled that the defendant’s conduct fell outside the footage at the same time the camera recorded it. Accordingly, we conclude that For this reason, w e reject the State’s contention that the defendant altered the evidence that does not yet exist in physical form. See Pinault, 168 N.H. at 31. impermissibly add language to the statute, expanding its scope to potential prevents the creation of new physical evidence. To hold otherwise would the language of RSA 641:6, I, suggests that the statute prohi bits conduct that certain physical evidence — namely, footage capturing the assault. Nothing in it. See RSA 641:6, I. I nstead, the defendant merely prevented the creation of defendant acted, the defendant ’s act did not alter, destroy, conc eal, or remove defendant’s act. Therefore, because the “thing” at issue did not exist until the of obstructing the camera’ s view; rather, it was created simultaneously with the that was saved to the server. That footage did not preexist the defendant’s act Here, as explained above, the “thing” at issue was the recorded footage

“must exist in order to be altered.” exist[ed]”). Thus, the trial court correctly concluded that the “thing” at issue Commonwealth failed to produce any evidence that [the] videotape . . . even Kentucky statute similar to RSA 641:6, I, by destroying a vide otape when “the