The State of New Hampshire v. Owen Labrie, 2018 N.H. 74 (2018) - Oral Argument

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Please be suited in Hampshire Supreme Courts. Now This is case 2015 0 6 8 7. State of New Hampshire v Owen Re The record should reflect that, uh, justices Hicks, Bassett and Donovan are disqualified from this case. And, uh, justice Brian Tucker from the Superior Court is sitting by designation. Just for, for scheduling purposes, I should just let everyone know, uh, we're gonna, uh, hear the argument in the LaBree case first. Then we'll recess and conference that, uh, and then we'll, we'll return to, uh, hear the other cases rank. Thank you, your Honor, may I please the court? My name is Jay Rancor, and I represent Owen Libre. We professed three arguments in our brief. I will take the first one first. Uh, that is that the state failed to prove knowing utilization of a computer service to seduce, solicit, lure, or entice a child for purposes of sexual penetration in order to support the conviction for that computer felony. The use of the computer in this case was very much a convenience and simply the way that young people communicate. Sure. But that, but you, you say, if I understand, if I understand correctly, your position is that you have to use a, either you have to say something explicitly about sex or something to do with sex in a communication o over the internet, or you have to use it in some way to deceive someone. Is that Essentially that you need to use it as some kind of trick to deceive, manipulate, or exploit the youth of the, of the child in question and that that did not occur and that, and does That have to be the intent or just the result? That has to be the intent, because the intent needs to be the intent at the time the communication occurred. So that has to be the intent at the time it was sent, in this case, the, the email was sent taking the email as the, as the communication, um, the result could, does not necessarily lead to the intent at the time. For instance, you know, a senior in high school certainly could invite a freshman in high school on a date which date then gets carried away. Sexual penetration may occur during that date, may be a misdemeanor. Sexual assault under the statute 'cause of the age difference does not necessarily backtrack to the intent at the time the communication occurred. So the state had to prove beyond a reasonable doubt that that was the intent at the time the communication occurred, not ultimately the result of what occurred when they got Together. Well, but what isn't, I mean, the problem I guess I have with this is the state. The state says that this, all of these communications were sort of in furtherance of this senior salute. And in fact, the evidence tends to show, does it not, a jury could have found that the victim here understood that. I mean, she understood that there, that there was going to be a sexual component to this. I think the evidence showed that she understood it could not, that it necessarily would, or that that was the intent at the time. It was said, Well, okay, but doesn't that suggest that that, I mean, that, that there's something to this senior salute. In other words, she's sort of thinking that this, in, in fact, what the state says was the entire purpose of this, she kind of under understood that that at least was, at least was something that was in the card. That's What she understood. But the state didn't necessarily prove that that was his intent. Well, doesn, but doesn't that further the, I mean, if she understood that, doesn't that further the state's, uh, whole whole point here is that, you know, this was, this was all in code, all of the talking in French and the, you know, sort of the queen's, uh, or the king's English in the, in the, in the email communications. This was all a code that everybody on the campus, or at least the people involved in this, understood. Well, I, I think we have to break that down a little bit more. I think the state's argument essentially is that any senior salute would then necessarily fit within this statute, which is a tough argument for them to now make, given that they paraded up a slew of witnesses who had also participated in the senior salute who weren't convicted of this crime, who weren't charged with this crime. So, but Where does that have, that have to do with what, what does that have to do With anything? Well, the point is that it can't just be that it is a senior salute. That, that that alone cannot be the, therefore there was an intent to have sexual intercourse. Every witness who testified to the, for the state regarding the senior salute had testified that it could have meant anything from walking around campus together to possibly sexual intercourse depending on the people. And what happened that, that just sending a senior salute alone did not necessarily mean that sexual intercourse or sexual penetration were to occur. So we need to look at this specific communication and what was relayed in this communication. And in this communication, there was no invitation to participate in sexual activity. There was no reference to sexual activity. It was simply an invitation to, at that point, climb the steeple stairs and get a view. But Isn't it, isn't it really the intent of your client that matters? In other words, take this example. Suppose that, that, uh, uh, a defendant is really into golf and he knows that, uh, an underage victim really likes golf also. And so that, you know, talking to the person on the computer about golf and, uh, and all these, you know, various things is, is, is something that's gonna, that she's gonna be very interested in. And what he would like, what he wants to do is entice her to come to his room or his house or whatever, um, to have sex with her. But he, and so, and he knows that, you know, one of the ways to do this is to talk to her about golf. So he, so his, with the intent that he wants to have sex with her, he, he, uh, engages in compu com, uh, computer communications, talking about golf and saying, you know, come on over. I'll show you how to improve your swing. And there's nothing at all about sex, but that's his, his intent is to have sex. Wouldn't that violate the statute? I think it depends on what the nature of the communication is and whether or not there is some deception. Is the talking about golf deception to the point of, I, I'm really using an artifice to convince you to come to have sex with me. Doesn't that get to the definition of lures, seduce or solicit? It does. And Am I correct? The jury wasn't instructed on the legal meaning of those words. They were not, they there, the words of the statute in and of themselves were read to the jury, but the specific meaning of how to interpret those words was no part of jury instructions, which is a problem in this case, because those words in and of themselves have such a wide variety of meaning. Those words can mean anything from an innocuous, innocent invitation to a date up to words that are also part of this definition to lead astray, to lure, especially for evil purposes based upon the legislative history. And this court's ruling, in other cases, applying this statute, the later definition is what was intended by the legislature. The legislature intended the lure for evil purposes, the lead astray, the use of the computer, the utilization of that computer to prey on the, on a child. This is not that case. This is an invitation to a date, to someone that is known, which is a very important part of the issue as well. Two individuals who are known to each other. There's no artifice, there's no trick, there's no deception. She knew exactly who had sent her the email. She, she knew this individual. They had been together, they had been at dances together, they had had photographs taken together. There's no question that they knew each other. There's no question that she knew him. And there's no question that she recognized this as a quote unquote senior salute, and she rejected it. I, I think that's a very important part for this court to remember too. That first invitation was absolutely rejected. The urging, if there is urging actually occurred through an individual, through face-to-face communication when Owen McIntyre then went to her and asked her to reconsider and to go on a date with him. But how does that, I mean, I guess I, what I keep coming back to is, isn't isn't the the intent to utilize what is in your client's mind, whether, in other words, why, why is, why does it matter, so to speak exactly what is stated in the, in the communication. If his intent was to use it to, to, uh, to to have the person, you know, come to him or be with him to have sex, what, what difference does it make? What exactly the words were? Well, There's two separate reasons why that matters, your Honor. And the first is that it simply doesn't fall within the statute. If it's, if there's two individuals who are known to each other and the computer is not utilized in some way to deceive, to manipulate, to prey on a's interest in computers, which was a specific quote by this court in Jennings exploit, a child's general fascination with computer technology is what the statute is meant to grab. This is not that case. This was not the utilization of the computer for that purpose. So that's one answer. The second answer is that the state didn't prove the intent at the time it was sent. What the state has attempted to do and continues to attempt to do this today, is to argue that later events extrapolate back to prove intent at the time that the email was sent. And our argument is that, well, But isn't that a factual issue for the jury? In other words, what does, what does a later, normally we would say in any other area of the law, what happened later can be evidence of what was in someone's mind earlier, doesn't it? Can't we So isn't that a jury issue? I mean, that you may have a very good argument to the jury that, well, all this, all this happened later, and he didn't have the intent, uh, at, at the time he used the computer, but the jury's not required. They could draw the inference. Oh, yes, it did. He was, he was doing what he, what he did later was completely consistent with what he intended originally. That is a factor to consider. Just like maybe flight, maybe something to consider. But it's not the ultimate determinating factor. And it is not proof beyond a reasonable doubt of the intent. It doesn't meet the standard that the state had to meet because these are all facts that occurred later. Even in their brief today. They say a teenage boy had a condi in his wallet. There is intent, there was a blanket brought. That was first. That was something that occurred after the fact. Sure. But all of those, I mean, it seems like you're asking us really to look at, at this with blinder. All of those things are, are certainly relevant to, uh, to the question, aren't they? They are relevant, but they do not meet the sufficiency standard for proof beyond a reasonable doubt. I just wanted to address a couple other things before my time is up. I was going to say, could you address the, Uh, closing argument? Absolutely. Um, the significance of this closing argument piece, I think is actually highlighted in the state's brief to this court because at page 29 of the state's brief, they again misstate the DNA evidence. And this is why it's so critical in the state's brief, they say that Criminalists had testified their, their quote is, quote testified, the sperm prostate specific antigen and DNA belonging to the defendant were discovered in the victim's underwear, which was consistent with the victim's version of events. That's not true. Mr. Libre's, DNA was found the sperm, the PSA, the prostate specific antigen or the sperm was tested in another sample, which the criminalist criminalists said contained the DNA of three or more contributors, which may have been another male contributor and could not be identified as belonging to Mr. LaBree. So when the state then stands up in their closing argument and says a couple things, one, that the sperm, the PSA, this the, um, the prostate specific antigen belonged to Mr. LaBree and that it was in the interior crotch panel of the underwear, which nobody had testified to. They are drawing the atten the, the jury's attention to a false statement. And was there, and was there, there was no objection. Is that, is that correct? There was no objection. But I would argue that that is so critical in this case that it rises to the level of requiring the court to sue Fante object. And I would, I would not agree with this state. And Did the court give, I mean, did the court give the usual instruction? What the lawyers have said in the closing argument is not evidence. It's what the, what you heard from the witnesses. Yes, they did. So if there was a misstatement that the court gave an, gave at least a general instruction on that issue, A general instruction. But I would argue that this error is so egregious that that would not cure that error. And the state had also argued in section two regarding the cross-examination of Andrew Thompson, um, in their argument that this was harmless error. They point to facts. Again, I just wanna point out to the core of why this is so critical that, um, you know, the victim's testimony, the victim's testimony was not 100% believed by a jury. If it was, Mr. Libre would've been convicted of an aggravated felonious sexual assault, which he was not. So her, her testimony was already in question by the jury. Then they go on to state again in stating it's not harmless. They were the sperm, the PSA that was found in the underwear and saying it belonged to Mr. Libre. It did not, it simply did not, that's not what the criminalist found. Can I just ask you what, what, on the second issue that you raised, uh, what, what was the evidence that, um, Mr. Thompson had a sexual relationship with this other person? And this is why I, As opposed to simply a relationship with the Person. Right. And this is specifically why I include that Facebook, uh, uh, conversation in my appendix to the court because I think it's very important to counter the state saying this was specious. This argument came out of nowhere. There was no grounds for it. There was, there was a Facebook exchange between Mr. Thompson and this 15-year-old girl that they were planning to meet up, they were planning to meet up with sometime over the summer. Part of that conversation was easy legal, obviously it's not illegal for an 18-year-old and a 15-year-old to simply meet up. It only rises to the level of it being illegal if there is gonna be sexual Penetration. So that was so that the, they have this conversation and, and one of the email exchanges is, is it, is it illegal? And, and you are saying that that was enough to infer that he, he was having a sexual relationship with her, It implies that they were having sexual relationship or they intended to have sexual relationship. Which questions his, may I continue? I see my time. Yes. No, please Go Ahead. Alright. Um, which then calls into question two things about his testimony. One the statement that he said, oh, you shouldn't meet up with her 'cause she's too young, when he himself was planning to meet up with a 15-year-old. And the veracity of that statement, given his own actions and also a bias because at the time he speaks with Concord police officers, he knows that that Facebook exchange had been discovered by Ms. Well's parents and had been reported to the police. Thank you, counsel. Thank you. Luck. Good morning in May it please the court.

My name is Sean Locke and I represent the state of New Hampshire, which asks that this court affirm the defendant's convictions. I'd like to begin actually with the last point where we've just left off discussing ATS testimony. The key issue in this case, and this also dovetails with the state's motion to strike the Facebook conversations that the defendant attached to his brief. Um, the key issue in this case is when this issue is presented to the trial court, what the trial court had before it, in determining whether or not allow attorney Kearney to continue to cross-examine at the trial court was never presented with these Facebook communications. These Facebook communications that the defendant attached are part of, they came from the motion for new trial due to ineffective assistance of of counsel. They were never before the trial court. And it was never part of anything the trial court had to consider when determining the scope of Testimony. Lemme just ask you, so in other words, are you saying that the, that counsel for the defendant, even orally didn't say we have, you know, we have in, we have this information about, um, an alleged sexual relationship. He made, he made a handful of kind of just offer, uh, a short offer of proof, but the state's attorneys at the time gave a detailed offer explaining the, the how at became came to be part of the investigation. The statements made by EEW to invest to Concord Police at the time that led them to question at. And that there was no criminal investigation. There was never, Concord police were never looking at, at, in a criminal sense in this case at that time. But the trial Judge knew those facts. He, he was aware of the, he, he knew the state's offer proof at that time though, after the state made its offer proof, and this is after the trial court had decided it was, it had, was going to reconsider its ruling precluding attorney Carney from questioning at about this issue. The state made its offer of proof. Attorney Carney said, let ATS attorney is here in the court today. Let me speak with him and figure out these facts and what had happened here and what the resolution of this was. If I feel the need to rera this issue or re to re-raise this issue, I will move to have at recalled so I can question about this. He never did that. Nothing about that occurred after this point. In fact, the question of confrontation was never even raised before the trial court, which gets into the whole host of preservation issues that are replete throughout this entire, the entirety of the defendant's arguments. But there was no issue of confrontation. Wa wa raised no invocation of constitutional rights. And in fact, the defendant had taken it upon himself through his attorney to rera the issue and never did. And that is obviously something that was subject of the ineffective assistance of counsel claims, which is a whole separate issue here. But to the extent these Facebook communications matter at all, their way of bootstrapping and saying, well this is what should have happened had I been the attorney. And that is something that this court cannot consider in this issue. Moving to, I'll just move, kind of go in reverse order from the defendant. I'll move to the third issue in this case. And I think Judge Lynn on the issue here, and I think defense counsel did as well. We have, since the briefs were filed in this case, we have the decision from this court and state v Kevin drown, which very clearly explains what the standard is in a plain error analysis. It is not enough for the defendant to have alleged that the prosecutor aired. What has to have happened is the error has to have been so egregious that the, the, the judge on the case had to intervene, Sue Ponte to correct the error in the case of Kevin drown. The issue there was questioning a witness about whether or not another witness had been lying on the stand, something that this court has repeatedly addressed in multiple cases and said a prosecutor cannot ask that question. And yet even in drown this court concluded that it was not plain error because there were, because it was not, that the trial court was not obligated to intervene Sue Ponte and stop the line of questioning or question the defense attorney about whether or not they wanted to object to that question. You Would agree that the prosecutors misrepresentation, if you will, of the evidence was error. I do not agree actually with that yet. And only because we don't know what, it's not described in the record necessarily what the witnesses were showing when they were handling this evidence in front of the jury. And so that's, that's an error in the record. But we don't know that jury may have, the witness may have held up the victim's underwear or the portion of the victim's underwear and it would've shown that it was on the interior. We don't know because the record doesn't reflect that and The expert never identified it one way or the other. Correct. But that's, that's the only hesitancy I have in saying that it was error. Just I'm understanding you're saying that if the, if the witness on the witness stand was picking up the, the, the exhibit and saying, you know, and, and we here, and you could see, the jury could see from what the witness was explaining, that it was the inside of the, of the, uh, the, the fab, I mean the, the, the correct the underwear as opposed to the outside. Hard to do with the, hard to do though with a fragment of the fabric. Right. And, and, and that's, and so certain things aren't clear necessarily from the record what exactly the witness. And that's the only reason why I have that reluctance based on what is testified to. I would agree that he, that no one says it was on the interior, but that's the only misstatement that I see there. And and even the defendant's recitation of the state's brief, the defendant, the state's brief never says that the prostate specific antigen or the sperm came from the defendant. They say this was found on the victim's underwear. And no, I mean, while the defendant now seems to make the insinuation that there may have been other, the, the victim may have been involved with other males who could have left this prostate specific antigen on her underwear. There's been no allegation of that made at any other point in this process. And that's, well, There was testimony by the expert that there were three sources. There Were three sources. But that easily, I mean, of DNA and that easily could have been obviously, I would assume the victim's DNA, it could have been the defendant's DNA, it could have been someone who, you know, her roommates, someone who may handle her clothes. We don't know. I mean there was no, there was no further evidence presented on whose DNA that was. But that doesn't, that doesn't lead to the inference necessarily that the, the, So unless we've said that misstating evidence in closing argument is error, um, That rises to the level that the trial court must intervene aponte, there can be no plain error in the third issue. Um, and now I'll turn to the first issue in this case, uh, looking at the RSA is 6 49 B four and the com, what I call the computer use statute, I think is a little easier saying than the actual title. Um, again, looking at, just briefly hitting on the, the procedural issues in this matter, this was an argument that was never made to the trial court regarding It, wasn't it fairly encompassed in the argument that was Made? The argument that was made though was focusing on the sentencing requirements and whether or not it was appropriate for the defendant to have to be sentenced under the statute and register as a Right based on these facts, Based on these facts. But that's not the same issue as saying that the evidence doesn't support the conviction in this case. He never asked the court to throw out the conviction. He said he shouldn't suffer an egregious penalty or what he construes as an egregious penalty because of this conviction and because of the underlying conduct. It, I mean, it was very similar to the argument that was raised in this court in state serpa. Um, and that this court said, you know, a affirmed those that, uh, that application of RSA 6 49 before, um, but looking at the preservation issue. So there was never an argument made regarding a motion to dismiss or a judgment not withstanding the verdict. And so this court never considered this interpretation that the defendant now presents on appeal. And that involves what appears to involve, I mean, the defendant's appendix includes dozens if not hundreds of pages of legislative history of both the, this state's legislature and the United States Congress's le legislative history regarding a similar statute in state V Penn and State v Lucas, this court construed, and Lucas is an un a recently decided unpublished opinion, but it, it underscores the, the significance of this point in that there cannot be plain error where this court is being asked to get into or any court is being asked to get into legislative history and this kind of complex analysis of the statute. It's one thing if a statute says it is illegal for Sean Locke to stand before the court and argue a case, and I try to say that that was plain error for it to be construed, you know, there, there's some sort of plain error, um, applied because the statute is very clear on its face. But if there's ambiguity in, there has to be a detailed statutory analysis. The defendant cannot claim and invoke the plain error rule to, to, or cannot successfully avail himself of the plain error rule. 'cause even if there was error, which state construes there was not, um, that error would not have been plain because this court would be speaking for the first time on the issue. Uh, Wasn't there a motion to set aside the verdict though at the end of, uh, a so order from Judge Smuckler? So there was the motion to, there was the motion set. Uh, I don't know if it was for a new trial due to ineffective assistance of counsel, but I don't recall, I don't recall seeing a motion to set aside other than one that addressed the sentencing aspect under RSA 6 49 before. Um, that's the only, that's the only motion i, the post-trial motion I see addressing, um, the statute or that I recall from addressing the statute, turning to the merits though of whether or not, um, the state provided sufficient evidence regarding, Well, on that point, yes. Wasn't the motion to set aside the jury verdict of guilty on the computer uses indictment or in the alternative to relieve him of the duty to register. So there were two arguments made right in that motion. There were, it was captioned that way, but the only argument focuses on the penalty he faces for conviction. And again, I believe it's similar to the argument we saw in Serpa, it's about whether or not the underlying offense of the, the misdemeanor variant of sexual assault that was at issue in the case, whether or not that could be the predicate of, could be a predicate offense for an RSA 6 49 before conviction. It was not, the issue of the state didn't show he intended to have sex with the victim based on these communications. So assuming we could infer that it was preserved, then where are you? I I will assume, I will disagree that that would infer allow you to make that inference. But I will assume where are, where am I the state presented sufficient evidence. I mean, I share Judge Lynn's confusion at the defendant's argument in this case. It, it seems to draw a lot of fine lines around what is and is not criminal conduct. And it also ignores the standard of review for sufficiency challenges. You have to view the evidence in the light most favorable to the state, which means that credibility determinations are withdrawn in the state's favor. It means if there's a question of two, one F1 witness says x and another witness says Y if Y supports conviction and you have to believe why is what the jury found, it doesn't allow for this. It's not this de novo review where this court just has plenary review and can reigh the evidence and redecide what happened here. Is There any problem with the jury deciding on its own without instruction what seduce, solicit, lure or entice means? No, because this court, when this court construed that statute and construed that language, it went to the dictionary. It didn't go, it wasn't, you know, some term of arc that the court was construing that needed detailed explanation. It went to the dictionary to the common definition that everyone would use when they use these words. There doesn't need to be a detailed jury instruction on this issue. And I would note the defendant doesn't argue that there needed to be a detailed jury instruction on this issue. Um, they argue again that the state just didn't present sufficient evidence. This is a new argument the defendant would be raising for the first time in argument if they were trying to say that there was a jury, there was a jury instruction issue in this case. But I, I think the, the issue of the sufficiency here and this interpretation goes to the point of it, it seems to excuse a lot of conduct that is clearly cr that seems to be clearly criminalized under the statute. If an adult were to point blank proposition a minor over the internet and that minor accepted and assented to sexual contact, it seems like that's excluded under the defendant's interpretation it because there's no deception involved. Um, and the, the, the parties seem to have consented to the, the arrangement here or they, they agree to meet an adult agrees to meet with a minor for a date that then leads to sexual contact. It, it would exclude that which just seems a bit far afield from what this statute is designed to protect. Well, you, I i I mean you don't dispute Ms. Rancors point that there, that the intent does have to exist Yes, at the time of the computer use. Yes, and I think, but we can look to the statements and the events around both the time of the computer use and later conduct to infer what the intent was at the time the solicitation was made. And it's also important to note that the communications here wasn't just one invitation and then everything occurred face to face. There was a series of, I mean, there was lengthy Facebook and email communications between the victim and the defendant in this case arranging this meeting. So to say that intent had to be there at the time the senior salute was sent is not necessarily the same as saying, you know, in the hours before when they're planning that they're gonna, where they're gonna meet. And the defendant is, you know, putting his condom in his wallet and his back and his blanket in the backpack that his, you know, that at that time his intent was when he was communicating with her online to set up this meeting was to have sex with her. But you look at the other statements he made to his friends at that time and deciding he wanted to pork slay, um, bone the victim at the time, you know, when he's making the solicitation. And before he made the solicitation with the senior salute, that infers intent, the fact that he brought a condom and a blanket with him to their meeting while they were planning this online, that infers intent. Um, and that those think of other examples here. The fact that after the victim denied his initial request to meet with him, he convinced another friend of a, a mutual friend of theirs to convince her to accept later, then accept the senior salute. Does that cut off the computer solicitation? It doesn't because then they continue to communicate over the computer to arrange this. Um, you know, she messages him, I believe, you know, the friend goes back and tells Owen or the defendant the good news. But also they, you know, they begin to communicate and plan this meeting over the internet again using Facebook, using their St. Paul's emails. They are using the, the, the internet is replete through this and the issue is the statute, you know, this is utilization of a computer with the intent to the knowing intent to solicit a minor for sexual contact in plain violation of the statute. If the court has no further questions, we'll ask that the case be submitted. Thank you Mr. Lock case submitted. The court will take a brief recess all.