State of New Hampshire v. Justin Gunnip

Whether the trial court erred when it granted the defendant’s motion to set aside the verdict on his conviction for falsifying physical evidence under RSA 641:6.

The issue is preserved by the State’s objection to the defendant’s motion to set aside the verdict, the court’s order on the motion to set aside the verdict, and the State’s motion for reconsideration.

RSA 641:5 A person is guilty of a class B felony if:

RSA 641:6 A person commits a class B felony if, believing that an official proceeding, as defined in RSA 641:1, II, or investigation is pending or about to be instituted, he:

N.J. Stat. Ann. § 2C:28-6 (West) A person commits a crime of the fourth degree if, believing that an official proceeding or investigation is pending or about to be instituted, he: (1) Alters, destroys, conceals or removes any article, object, record, document or other thing of physical substance with purpose to impair its verity or availability in such proceeding or investigation;

Tenn. Code Ann. § 39-16-503 (West) (a) It is unlawful for any person, knowing that an investigation or official proceeding is pending or in progress, to: (1) Alter, destroy, or conceal any record, document or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;

Model Penal Code (“MPC”) § 241.7, Tampering with or Fabricating Physical Evidence A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he: (1) alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding or investigation.

On September 25, 2019, a Sullivan County Grand Jury indicted Justin Gunnip (“the defendant”) on charges of conspiracy to commit assault by a prisoner (RSA 629:3; RSA 642:9) and falsifying physical evidence (RSA 641:6) related to his involvement in an assault on a fellow inmate at the Sullivan County House of Corrections (“SCHOC”). T 1 6-7. Following a two-day trial on February 11-12, 2020, a jury convicted the defendant on both charges.

On, February 20, 2020, the defendant filed a motion to set aside both verdicts and the State objected. SA 37-49. On April 16, 2020, the court (Tucker, J.) issued an order on the defendant’s motion to aside the verdicts. SA 59-65. The court denied the defendant’s motion on the conspiracy charge, but granted it on the falsifying physical evidence charge. SA 61, 65. On May 11, 2020, the State filed a motion for reconsideration, which the court denied. SA 66-70, 73.

This State’s appeal followed.

The State offered four witnesses to an altercation at the SCHOC on August 17, 2019 between Kyle Perkins (“the victim”), Charles Hall, Cameron Baumhower, and the defendant on August 17, 2019. The State first called Denis O’Sullivan, a deputy sheriff lieutenant for the Sullivan County Sheriff’s Office. T 32-33. Lieutenant O’Sullivan testified that his primary duties involve performing investigations for the SCHOC and the Sullivan County Nursing Home. T 33. Lieutenant O’Sullivan testified about the SCHOC’s video surveillance systems. He described how the video cameras record video footage without audio and how that footage saves to a server that Lieutenant O’Sullivan can access to view the recordings. T 34. Prisoners do not have access to the server. T 45. He testified that the footage is saved for six to eight months and recorded phone calls are saved for almost three years. T 34. To access the surveillance footage, Lieutenant O’Sullivan uses an on-site computer terminal that is password-protected. T 34. Lieutenant O’Sullivan further testified that the defendant knew about the video surveillance system from his involvement in a previous investigation. T 38. Lieutenant O’Sullivan also testified that he reviewed the camera footage captured in the Unit 1 dayroom on August 17, 2019. He explained that the two cameras in the dayroom have fixed views that provide coverage of the entire room. T 48. He further explained how he saved that footage onto two discs. T 39. The State offered these recordings into evidence without objection. T 40-41.

In addition, Lieutenant O’Sullivan testified to the injuries he observed on the victim after the assault. Mr. Perkins had a swollen nose, his eye was swollen shut, and his lip appeared swollen and cut. T 42. Lieutenant O’Sullivan also testified that he observed redness and bruising on the knuckles of Charles Hall’s left hand. T 42. The State next called Sean Coughlin, a correctional officer at the SCHOC. T 50. Officer Coughlin testified that he responded to a report of a medical emergency in the Unit 1 dayroom on August 17, 2019. T 51. Officer Coughlin reviewed the video surveillance footage from the dayroom on the afternoon of the assault and identified the defendant, the victim, Charles Hall, and Cameron Baumhower. T 53-55. Officer Coughlin testified that the video showed the victim sitting down with his arms on a bench and his feet on the bench in front of him. T 57. Officer Coughlin identified people in several segments of video footage from cameras in the dayroom and in several other rooms in that unit of the SCHOC. T 59-69. Officer Coughlin then identified several individuals, including the defendant, who entered the dayroom where the victim was watching television. T 66-67, 69.

In the video and accompanying still photos, the defendant assumes a position beneath one of the cameras and then holds a newspaper in front of the lens to obstruct the camera’s view. T 81, 82, 115; SA 60. When the defendant removes the newspaper, the camera once again captures the scene in the dayroom, including the victim lying on the floor. SA 60. The State’s final two witnesses, Cole Bannister and Brianna DeFillippis testified to the victim’s injuries. Cole Bannister, a corporal at the House of corrections, testified that he saw the victim prior to the assault

in the dayroom and did not observe any injuries to his face. T 102-03. Following the assault, Corporal Bannister saw the victim again and observed bruising, swelling, and other injuries to the victim’s face. T 103 Brianna DeFilippis is a registered nurse who worked at Valley Regional Hospital at the time of the assault. T 106. She testified that she treated the victim’s injuries, including a swollen and bleeding nose, a large bruise on his lower back, and a lump on his right calf. T 106. Ms. DeFilippis testified that the victim had reported to her that he received the injuries when another inmate “had jumped him or attacked him.” T 106-07.

RSA 641:6 makes it a crime to "alter, destroy, conceal or remove any thing" with a purpose to impair its verity or availability in an official proceeding or investigation that the person believes is pending or about to be instituted. The trial court erred in its interpretation of RSA 641:6 when it found that there was insufficient evidence that the defendant altered the video surveillance recording in the SCHOC. Both the plain language of the statute, and the broader statutory scheme into which RSA 641:6 fits, support the application of this statute to the defendant’s conduct.

Mayo, 167 N.H. 443, 450 (2015).

The State argued that, in obscuring the camera, the defendant altered the video feed’s view. SA 46, 57, 69. Following the defendant’s trial and conviction, the trial court found that the State had provided insufficient evidence to support this falsification charge and set aside the defendant’s conviction for falsifying physical evidence. SA 61-64. The court framed the argument as follows: [The defendant] contends the statute's requirement that a ‘thing’ be ‘altered, destroyed, concealed, or removed, ’ implies the preexistence of the ‘thing.’ He says in this case the ‘thing’ was what was on the server in the data room. He argues he could not alter, destroy, or remove the recording as alleged unless he had access to the server, and the evidence established he had none. So, he says there was evidence he acted to prevent the camera from recording the intended area, but not that he altered, destroyed, or removed what it ultimately recorded. The State contends the defendant altered the recording by obstructing the specific view the department intended the camera to record, and that "the defendant, by holding up a piece of paper, altered that view such that the recording did not

capture what it would have otherwise recorded." altered, destroyed, or removed what it ultimately recorded.

SA 61-62.

The court found that “[n]ecessarily, the thing must exist in order for it to be ‘destroyed, concealed, or removed, ’ and so it is with its alteration. There was no evidence the recording was altered and, in fact, the State used it as an exhibit to prove Gunnip’s role as a conspirator precisely because accurately portrayed his conduct in connection with the assault.” SA 62. By defining the term ‘any thing’ more narrowly than the legislature did in the statute, and by finding that a thing must exist before it can be altered, the trial court erred.

RSA 641:6 reads in relevant part:

A person commits a class B felony if, believing that an official proceeding, as defined in RSA 641:1, II, or investigation is pending or about to be instituted, he:

3) Altered, destroyed, or removes (sic) anything with a purpose to impair its verity or availability in such proceeding or investigation, to wit: 4) [The defendant] did hold up a certain newspaper such that a camera’s view at the Sullivan County House of Corrections was obstructed preventing it from capturing a certain incident that occurred there so that its recording would not be available in such proceeding or investigation[.]

1. ‘Any thing’ is an intentionally broad phrase intended to encompass a wide range of evidence.

“In matters of statutory interpretation, [this Court is] the final arbiter[] of the legislature's intent as expressed in the words of the statute considered as a whole.” In re State (State v. Johanson), 156 N.H. 148, 151 (2007). This Court will first “examine the statutory language, and, where possible, [will] ascribe the plain and ordinary meanings to the words used.” State v. Kardonsky, 169 N.H. 150, 153 (2016) (citing State v. Maxfield, 167 N.H. 677, 679 (2015)). This Court “interpret[s] legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. The term “any thing” is not defined in the statute. See RSA 625:11; RSA 641:1-8. “When a term is not defined in a statute, [this Court] look[s] to its common usage, using the dictionary for guidance.” Appeal of Silva, 172 N.H. 183, 188 (2019). Webster’s Third New International Dictionary defines “thing” variously as:

3(a): whatever exists or is conceived to exist as a separate entity or as a distinct and individual quality, fact, or idea: a separable or distinguishable object of thought; 4(a): an entity that can be apprehended or known as having existence in space or time as distinguished from what is purely an object of thought; 5: an object or entity that cannot or need not be precisely designated; The definition of thing found in Black’s Law Dictionary also demonstrates the term’s broad legal sweep: The subject matter of a right, whether it is a material object or not; any subject matter of ownership within the sphere of proprietary or valuable rights. • Things are divided into three categories: (1) things real or immovable, such as land, tenements, and hereditaments, (2) things personal or movable, such as goods and chattels, and (3) things having both real and personal characteristics, such as a title deed and a tenancy for a term. The civil law divided things into corporeal (tangi possunt) and incorporeal (tangi non possunt).

“Thing, ” Black's Law Dictionary (11th ed. 2019).

The broad scope of the term “thing” as an entity that may elude precise designation in this statute is made even broader by the modifier “any, ” literally meaning to capture every possible kind of thing. Webster's Third New International Dictionary Unabridged (2002) (defining “any, ” in the first instance, as “one indifferently out of more than two: one or some indiscriminately of whatever kind”). By its plain language and meaning, the phrase “any thing” encompasses virtually any subject that a defendant might try to alter, including, as the State contends, a surveillance camera’s intended view and, by extension, the feed from that view.

A broad construction of the term, moreover, comports with this Court’s construction of other provisions of RSA 641:6. In State v. McGurk, 157 N.H. 765, 770 (2008), this Court, relying on the broad language of RSA 641:6, held that the statute does not require falsified ‘evidence’ be admissible at trial. See, also, State v. Dodds, 159 N.H. 239, 245-46 (2009) (reaffirming the McGurk holding); State v. Daoud, 158 N.H. 334, 338 (2009) (holding that the terms “alters, destroys, conceals or removes” have independent significance despite overlap in their definitions). Had the legislature intended to restrict the definition of ‘any thing, ’ it could have narrowed it. It could have omitted “any” and it could have modified “thing” with a limiter. For example, as the Black’s Dictionary definition shows, “thing” can be divided into the corporeal and incorporeal. Similarly, a comparable New Jersey statute criminalizes one who “[a]lters, destroys, conceals or removes any article, object, record, document or other thing of physical substance.” N.J. Stat. Ann. § 2C:28-6 (West) (emphasis added). The New Hampshire legislature did not limit the language it chose for RSA 640:6 to the realm of physical things. Instead, through the use of “any”, the legislature made clear that all things fall within the statute’s reach.

In choosing that language, the legislature deliberately deviated from the Model Penal Code Provision upon which RSA 641:6 is based, further confirming its intent for ‘thing’ apply as broadly as possible. RSA 641:6 is derived, almost verbatim, from the Model Penal Code (“MPC”) § 241.7, Tampering with or Fabricating Physical Evidence. But the MPC provision refers to “any record, document, or thing.” Rather than leave ‘thing’ as a catch-all at the end of a list, The New Hampshire legislature eliminated the

words record and document, and left the broader term “any thing” to stand on its own.

The actions proscribed under RSA 640:6 are intentionally broad. The Commentaries to the MPC note, “[this provision] punishes one who ‘alters, destroys, conceals or removes.’ This expansive statement of the proscribed conduct covers virtually any kind of tampering.” MPC Part II Commentaries, vol. 3, at 179. The legislature’s exclusion of “record” and “document, ” leaving only “any thing” demonstrates an intent for even greater breadth.

In a case interpreting a neighboring provision, RSA 641:5, this Court found that where the legislature “excluded the terms ‘witness’ and ‘informant’ used in the Model Penal Code provision on witness tampering, and instead used the broader term ‘person, ’ the exclusion evidenced the legislature’s intent to apply the statute more broadly. State v. Kilgus, 125 N.H. 739, 742-43 (1984). The legislature’s intent to broaden the scope of RSA 641:6 is, likewise, evident from the drafters’ changes to the MPC provision.

This broad construction is consistent with other courts that have construed the word “thing.” For example, in TruGreen Ltd. P'ship v. Dep't of Treasury, No. 344142, 2020 WL 1845580, at *1 (Mich. Ct. App. Apr. 10, 2020), the Court of Appeals of Michigan recently defined “things of the soil.” That court noted: the definitions of “thing” in the 1933 [Oxford English Dictionary] runs to over two full pages in a font so small as to be barely readable... Some examples of the definitions... include “a being without life or consciousness; an inanimate object, ” “a piece of property, ” “an event, occurrence, incident, ”

“a material substance, ” “what is proper, ” “that with which one is concerned, ” “that which is to be done, ” “an entity of any kind, ” “a being or entity consisting of matter, or occupying space” and many, many others. Moreover, there is a section for the use of the word “thing” in “phrases, special collocation, and combinations[.]” Id. at n. 6.

The trial court relied, in part, on an unpublished opinion from a Tennessee appellate court, State v. Callahan, No. E2002- 926-CCA-R3-- CD, 2003 WL 1960267 (Tenn. Crim. App. April 28, 2003), overruled on other grounds, by State v. Smith, 436 S.W. 3d 751 (Tenn. 2014). Callahan discussed a substantially similar provision of the Tennessee Criminal Code.

2 Similar to the trial court, the Callahan court offered, without explanation, an overly narrow construction of “thing” that runs counter to the legislature’s intent in using such broad language as “any thing.”Also similar to the trial court, the Callahan court focused its analysis on the recording and on the fact that the tape was not altered after it was created. The Tennessee Supreme Court, however, has since confirmed that Callahan’s construction is too narrow, and that the statute does not require the State or the trial court to identify the “thing” that the defendant altered. With respect to Tennessee’s comparable statutory language, the Supreme

Court of Tennessee has held, subsequent to Callahan, that the precise identification of the “thing” is not an element of the crime. In State v. Majors, 318 S.W.3d 850, 858 (2010), that court considered the same statutory provision that the lower court analyzed in Callahan, which closely resembles New Hampshire’s language. The Majors court first noted that “thing” is “a term for an object or entity not precisely designated and perhaps not even capable of being designated.” The Majors Court then held that the State did not need to identify the “thing” at issue: Based on the language of the statute and our comparative analysis of other criminal code sections, we hold that, in order to obtain a conviction for tampering with a “thing” of evidence, the State is not required to identify the specific object or entity that the defendant altered, destroyed, or concealed with the intent to impair its verity, legibility, or availability as evidence in an investigation or official proceeding. Instead, the statute only requires that the State establish beyond a reasonable doubt that the defendant altered, destroyed, or concealed some evidentiary “thing, ” even if it is not capable of precise identification.

Id. This construction, a clear departure from the lower court’s holding in Callahan, applies with equal force to the nearly identical language of RSA 640:6. By identifying the specific “thing” that it felt was at issue, the trial court substantially deviated from the statutory language of RSA 641:6. In finding for the defendant, the court determined that the ‘thing’ at issue must be the recording on the server. SA 62-64. In light of the broad language used throughout RSA 641:6, the trial court’s narrow definition of “any thing, ” is not persuasive. The State has consistently maintained that the “thing” the defendant altered was not the recording on the server, but

the camera’s intended view. SA 46, 57, 69. By first choosing to re-identify the “any thing” at issue and then requiring the State to prove that the defendant altered that specific thing, the trial court erred. This Court should find that the defendant’s actions did alter “any thing” within the meaning of the statute when he altered the camera’s view, and the trial court erred when it ruled to the contrary.

2. The trial court’s finding that a thing must first exist before it can be altered redefines the elements of the statute in a manner that the legislature did not intend.

In ruling for the defendant, the trial court further concluded that a thing must exist before it can be altered. Specifically, the court held that the defendant could not have altered the recording because the recording did not exist until after the defendant obstructed the camera’s view with the newspaper. Not only did the court err in reducing the scope of “any thing, ” but it also erred in removing the feed from the realm of “any thing” in the brief period before it reached the server.

“It is the province of the legislature to enact laws defining crimes and to fix the degree, extent and method for punishment.” State v. Rix, 150 N.H. 131, 134 (2003). “By adding an extra element which is not included within the statutory definition of the crime[], [a court] improperly intrude[s] upon the legislature's prerogative to define criminal conduct.” State v. Quintero, 162 N.H. 526, 551 (2011).

A thing can be created and falsified contemporaneously. The statutory language of RSA 641:6, I does not specify where or when a defendant’s intervention in the process of evidence generation constitutes

falsification. Indeed, nothing in the statute limits the crime to conduct committed after the creation of the “thing” at issue. By ruling to the contrary, the trial court improperly injected a temporal limitation that the legislature did not see fit to include in the statute and impermissibly redefined the criminal conduct prohibited under RSA 641:6. By holding up a newspaper to the lens and blocking the camera from recording its intended view in the natural course of events, the defendant altered that video feed’s view—a thing—in real time, as the SCHOC was creating it, and before it ever reached the server. By concluding that the State must show the recording pre-existed the defendant’s alteration, the trial court improperly added an additional element for the state to prove beyond what the statute requires. For this reason, this Court should find that RSA 641:6 does address the defendant’s brazen act of evidence tampering.

3. The statutory scheme of RSA 641 criminalizes a broad range of actions intended to impair the availability of evidence and obstruct the administration of justice.

In its decision, the trial court pointed to the statute’s heading, “641:6 Falsifying Physical Evidence, ” and reasoned that the recording became ‘physical evidence’ when it was recorded to the server. SA 62-64. But “the title of a statute is not conclusive of its interpretation, and where the statutory language is clear and unambiguous this court will not consider the title in determining the meaning of the statute.” In re Vernon E., 121 N.H. 836, 841 (1981). As the previous sections have outlined, the plain language

of the statute clearly and unambiguously supports the defendant’s conviction for tampering with physical evidence, defined as “any thing.” However, “[w]hile the title of a statute is not conclusive of its interpretation, it provides significant indication of the legislature's intent in enacting the statute.” State v. Gubitosi, 157 N.H. 720, 725 (2008). Therefore, if this Court does consider the section title, the State maintains that the trial court’s reasoning on this point is not persuasive because the definitions of ‘physical evidence’ are nearly as broad and varied as the definitions of ‘thing.’

This Court has previously endorsed a broad reading of the term ‘evidence’ in the title of this statute. The McGurk Court relied on the broad language of RSA 641:6, to hold that the statute does not require the falsified ‘evidence’ be evidence admissible at trial. Any piece of evidence useful to an investigation, whether admissible or not, is included in this statute’s purview. If the definition of the ‘evidence’ in ‘physical evidence’ is broad, then the canon of noscitur a sociis suggests a similar breadth for the term ‘physical.’ See, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 231 (2008) (explaining that “[t]he general rule is that the meaning of a word, and, consequently, the intention of the legislature, should be “ascertained by reference to the context, and by considering whether the word in question and the surrounding words are, in fact, ejusdem generis, and referable to the same subject-matter.”)

Just as this Court determined that the word evidence is broadly construed in this statute, so, too, is the word physical. The statutory scheme of RSA 641 divides evidence in to two broad categories: testimony and

physical evidence. ‘Physical’ evidence, therefore, is a broad category that constitutes any evidence that is not testimony.

At least one other court has addressed this distinction in a similar statutory context. In Pinheiro v. State, 244 Md. App. 703, 712 cert. denied, 468 Md. 555, 228 A.3d 169 (2020), a case analyzing Maryland’s “Impairment of verity or availability of physical evidence” statute, Md. Code Ann., Crim. Law § 9-307 (West), the Maryland Court of Special Appeals considered what constitutes ‘physical evidence.’ The court addressed this question in its analysis of whether police body camera footage constituted physical evidence. After extensively analyzing various definitions of the terms ‘physical’ and ‘physical evidence, ’ that court held that both the plain language of the statute and the overall statutory scheme supported the conclusion that “physical evidence encompasses evidence not testimonial in nature.” Id. at 715.

As the Pinheiro court correctly determined, physical evidence constitutes any evidence, however constituted, that is not testimony. It does not matter that the evidence is not yet recorded to a physically identifiable medium. The camera footage that the defendant altered was as much ‘physical evidence’ when the camera generated it as it was ‘physical evidence’ when it reached the server.

The trial court also considered the titles of neighboring statutory provisions. This Court “interpret[s] statutes in the context of the overall statutory scheme and not in isolation. In so doing, [it is] better able to discern the legislature's intent, and therefore better able to understand the statutory language in light of the policy sought to be advanced by the entire statutory scheme.” Ford v. New Hampshire Dep’t of Transp., 163 N.H. 284,

291 (2012). But contrary to the trial court’s findings, the overall statutory scheme of RSA chapter 641 supports the defendant’s conviction. Chapter 641, entitled “Falsification in Official Matters, ” covers a broad range of falsification offenses including: perjury (RSA 641:1), false swearing (RSA 641:2), unsworn falsification (RSA 641:3), false reports to law enforcement (RSA 641:4), witness tampering (RSA 641:5), tampering with public records or information (RSA 641:7), and false filing with the director of charitable trusts (RSA 641:8).

These provisions closely track Section 241 of the Model Penal Code. “Article 241 defines perjury and a series of related offenses dealing with falsification in official matters. A considerable range of conduct is included.” Model Penal Code § 241 Commentary, Explanatory Note for Sections 241.0-241.9. As the commentaries further explain, Article 241 includes three tampering offenses and includes “a wide range of impermissible conduct.” Id.

Both RSA 641 and its MPC source material identify broad areas of illegality related to falsification. These provisions distinguish ‘physical’ evidence from testimonial evidence, but do not further limit it, as the trial court has done. The overall statutory scheme of RSA 641 seeks to prevent the kind of obstruction of justice in which the defendant engaged. By overly limiting the definition of “any thing” and finding that the footage only became “any thing” or “physical evidence” once it reached the server, the trial court has not interpreted the statute in a manner that advances the overall policy goals of RSA 641. For these reasons, this Court should find that the court misinterpreted RSA 641:6 and reinstate the jury’s verdict against the defendant.

For the foregoing reasons, the State respectfully requests that this Honorable Court vacate the judgment below and remand the case for further proceedings consistent with that order.

The State certifies that the appealed decision is in writing and is appended to this brief.

The State requests a fifteen-minute oral argument.

I, Zachary L. Higham, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 4, 611 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

April 9, 2021 /s/ Zachary L. Higham Zachary Higham

I, Zachary L. Higham, hereby certify that a copy of the State’s brief shall be served on the Office of the Appellate Defender, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

April 9, 2021 /s/ Zachary L. Higham Zachary Higham