THE STATE OF NEW HAMPSHIRE SUPREME COURT

2013 TERM

No. 2013-0229

State of New Hampshire v. Brian Craig

BRIEF FOR THE ATTORNEY GENERAL

THE STATE OF NEW HAMPSHIRE Joseph A. Foster Attorney General

Natch Greyes Fellow NH Bar # 265230 Criminal Justice Bureau 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3671

-i-

TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................ i TABLE OF AUTHORITIES .........................................................................................ii ISSUE PRESENTED ..................................................................................................... 1 STATEMENT OF THE FACTS and case ..................................................................... 2 SUMMARY OF THE ARGUMENT ............................................................................ 8 ARGUMENT ................................................................................................................. 9 THE TRIAL COURT CORRECTLY DENIED THE DEFENDANTS MOTION TO DISMISS THE WITNESS TAMPERING AND STALKING CHARGES FOR INSUFFICIENT EVIDENCE. ............................................... 9 CONCLUSION ............................................................................................................ 18

-ii-

TABLE OF AUTHORITIES Cases State v. Alwardt, 164 N.H. 52 (2012) ............................................................................ 9 State v. DiNapoli, 149 N.H. 514 (2003) ........................................................................ 9 State v. Gubitosi, 152 N.H. 673 (2005).................................................................. 14, 15 State v. Laudarowicz, 142 N.H. 1 (1997) ...................................................................... 9 State v. Rempel, 114 Wn.2d 77 (Wash. 1990) ............................................................. 13 Statutes RSA 631:4 ...................................................................................................................... 7 RSA 633:3-a ............................................................................................................. 7, 14 RSA 641:5 .................................................................................................................. 7, 9

-1-

ISSUE PRESENTED Whether the court erred by denying Craigs motion to dismiss the witness tampering and stalking charges where the defendant wrote to the victim and posted comments about her on Facebook, where two letters and posted comments reflected his desire to have a relationship with her, which was not reciprocated, and where, upon learning that she not only did not share his feelings and had sought a restraining order, he continued to attempt to contact her and, ultimately to attempt to dissuade her from pursuing the charges against him.

-2-

STATEMENT OF THE FACTS AND CASE The defendant first began visiting Pimentos restaurant in Exeter during or before December 1, 2011. T 76-77.1 During these visits, he noticed Ms. Nikiah Knox, a waitress and bartender at Pimentos. App. 22-23.2 On December 1, 2011, he wrote, but did not mail, a letter to Pimentos, presumably addressed to her. App. 22-23. By December 19, 2011, he had found her Facebook page and had tried to communicate to her on Facebook via notes on his own wall. App. 18-22. He wrote two notes addressed on December 19, 2011 addressed, respectively, to Dear Nikiah and Dear Sex Toys, Especially Nikiah. App. 19, 21. During December, Ms. Knox knew nothing about the defendant, except that he was rapidly becoming a regular customer of Pimentos, and one who always visited with a friend or two. T 77, 78. She noticed when he stopped coming in, and when he returned, alone. T 78. After he returned, he liked to sit and stare at her for long periods of time. T 78. It was not until late April 2012 that Ms. Knox first became aware that the defendant had been writing about her on Facebook. T 79. In late April, she received a letter from the defendant addressed to her and delivered to Pimentos. T 79. That letter, postmarked March 26, 2012, began: Dear Nikiah, So, you mustve heard I was

1 2

References to the Trial Transcript are designated T. References to the States Appendix are designated App.

-3speaking highly of you on my Facebook page. I can tell, because you are trying to hurt me. App. 1-2.3 After receiving that first letter, Ms. Knox became alarmed and contacted the Exeter Police Department. T 80, 82. She had never talked with the defendant about Facebook, nor had she had contact with him outside of work. T 79, 82. Their relationship was merely the kind of relationship that a waitress or bartender would have with any regular customer. T 77. In late April 2012, after taking the first letter to the Exeter Police Department, Ms. Knox received a second letter, postmarked April 20, 2012. T 82-83. She took this letter to the Exeter Police Department as well. T 83. On April 22, 2012, Exeter Police Officer Jeremy Chadwick of the Exeter Police Department served the defendant with a stalking warning letter based upon the information provided by Ms. Knox to the Department. T 123, 124. The letter warned the defendant against having any contact with Ms. Knox. T 124; App. 35-36. On the same day, the defendant was given notice that he was forbidden to enter Pimentos restaurant because the owner had filed a complaint. App. 37. On April 23, 2012, the defendant again wrote Ms. Knox, in which he mentioned the trespass notice banning him from Pimentos. App. 12. As in the first letter, he made reference to postings he made online about her. App. 1, 2, 12.4
At trial, Ms. Knox recalled the letter as follows: Im sure you must have heard that Ive been speaking so highly of you on my Facebook page. T 81.
3

The defendant wrote: However, I must say goodbye to you forever, and never give you another shot again, since you chose not to repair the damage you caused in having me banned from Pimentos for having spoken of it on the internet. The State maintains that, in context, the internet refers to Facebook.
4

-4On April 24, 2012, Ms. Knox obtained a restraining order against the defendant. T 87. After obtaining the restraining order against the defendant, because the defendants first letter made reference to Facebook and at her mothers prompting, Ms. Knox searched for the defendants Facebook page. T 85, 89. She found that his page was set to Public, meaning anyone, not just his Facebook friends, could see the content of his page.5 She became scared at how often her name was used by the defendant and the vulgar language he used in reference to her. T 89, 121. As a consequence, she contacted the Exeter Police Department once more. T 89, 121. Officer Chadwick viewed the defendants page and, in the days following delivery of the restraining order, saw that the page contained multiple posts aimed at Ms. Knox. T 122, 123, App. 24-34. On April 27, 2012 at 3:57 a.m., the defendant posted the following: Dear Kitty Kat I just wanted to remind you that since you have to choose to look at the things I say to you on Facebook that it means my butt is covered. Also, youre not allowed to do anything back to me all week as it would constitute a breach in your end of the whole restraining order thing. So technically you are the one in cuffs. ... Never forget that I love you Babe, no matter how badly I tease the living crap out of you. T 90, 95, App. 24.

A post which is public is one that people who are not logged into Facebook, i.e. a public audience, can see, whereas a post which is private is one that only people who are logged into Facebook and friends with the person posting can see. T 88, 89, 103, 104, 123. See also T 81 (indicating that the defendant was aware that a public audience, i.e. people other than those he friended on Facebook, could see his postings); App. 13-34 (indicating that he believes others are reading his posts).
5

-5He continued his postings directed at Ms. Knox over the course of the next several days. See App. 24-34, T 123. These included, but were not limited to the following posts: On April 28, 2012 at 2:22 a.m., the defendant posted the following: Dear Babe Look, I am not asking for forever. I am just asking for a shot. We have been doing nothing more than trying to establish the ability to trust one another without fear. . . . you are the one person I could never walk away from, unless I was made to. I am just asking you not to make me. ... . . . I know that even though we had our problems, you are still here with me. . . . T 96; App. 26. On April 28, 2012 at 6:15 a.m., the defendant posted the following: So, you wanna push with this restraining order thing eh? Ha Ha, okay! Heres what we will do. Since it wont be resolved this Friday; and you intend to use my facebook posts against me, even though they are not a crime, I can retaliate with law too. ... Face it sweetheart, youve lost. The best you can do is s ay goodbye and see if I survive without you. ... Just tell the judge you are all set, and I will never speak your name again. ... Dont forget to bring this post in with you. ... In fact you can send a cop to my house to tell me not to talk about you ever again on here, and I will move on to the next girl. . . T 96-97; App. 27-28. On April 28, 2012 at 7:00 a.m., the defendant posted the following: So heres my proposal. On Friday, you can either tell the judge you are all set with me, to which I will concede and never revisit the issue again. I will only post on here your decision, and then move on;

-6never to speak your name again. You will have failed on your own accord, and not mine. My hands will remain clean. Or, you can drop all charges and become an honest woman. We can give it a try and see how it goes. Its your call. T 97-99; App. 29, T 98. On April 28, 2012 at 8:12 a.m., the defendant posted the following: Oh, schnookums! I forgot to mention one last tidbit of information. See? [Redacted]. So if you get me convicted of anything, I go to jail for one year, and everyone dies in the apocalypse, and it will be all your fault. So your options are to be online as of this Friday, or fuck off forever. Have a nice day! T 99, 100; App. 30. On April 28, 2012 at 10:40 a.m., the defendant posted the following: Look, hun, you were the one I could do it for then. ... Fuck you, your shit is done or we are done. ... No, I want the order removed before Friday now. ... You go tell the judge that you were mistaken, and youd like it removed. T 101, 102; App. 31-32. On April 28, 2012 at 11:03 a.m., the defendant posted the following: ... [G]o tell them you were lying and you want to face the music for it. ... You can tell the police the truth and drop the charges on [M]onday. ... No, right now, go there now. T 102; App. 33.

-7On April 28, 2012, Officer Chadwick went to the defendants home. T 122. During his visit, Officer Chadwick showed the defendant copies of the Facebook posts attributed to him by Ms. Knox and asked if they were his posts. T 122, 127, 128. The defendant admitted to writing the posts at his residence at 19 Juniper Street. T 122. Officer Chadwick then arrested the defendant. T 123. Subsequently, the grand jury charged the defendant under RSA 641:5, witness tampering; RSA 633:3-a, stalking; and RSA 631:4, criminal threatening. T 49-51. The first indictment charged the defendant with attempting to induce Ms. Nikiah Knox to testify falsely at a restraining order hearing scheduled for May 4, 2012. T 49-50. The second indictment charged the defendant with contacting the victim after receiving the notice of a temporary restraining order prohibiting contact with her. T 50-51. The third indictment charged the defendant with threatening to commit homicide against another the victim with the purpose to terrorize her. T 51. Trial took place in Rockingham County Superior Court on December 11, 2012, and the defendant was convicted on all three counts. T 183-84. The trial court (Delker, J.) sentenced the defendant to a stand-committed term of three-and-a-half to seven years for witness tampering, and to suspended twelve month terms for stalking and criminal threatening. D A4-A9. The court further ordered consecutive terms of two years of probation for stalking and criminal threatening, to begin upon release from his sentence for witness tampering. D A8-A9.

-8-

SUMMARY OF THE ARGUMENT

The State introduced sufficient evidence of witness tampering and stalking. The defendant urged Ms. Knox to give false testimony. He told her to drop the charges and tell the judge that she was all set, a clear directive to falsify her testimony. He further did so after repeatedly posting threats on his Facebook page. He knew the victim would read both the directives to change her testimony and the threats and hope that, if she changed her story, he would not have to suffer the consequences of his criminal acts.

-9-

ARGUMENT THE TRIAL COURT CORRECTLY DENIED THE DEFENDANTS MOTION TO DISMISS THE WITNESS TAMPERING AND STALKING CHARGES FOR INSUFFICIENT EVIDENCE. To prevail on an insufficiency of the evidence claim, the defendant must establish that no rational trier of fact, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Alwardt, 164 N.H. 52, 55 (2012). In reviewing the record, this Court does not examine each evidentiary item in isolation, but rather in the context of all the evidence presented. Id. at 55. Here, the context of the evidence, in addition to many of the evidentiary items in isolation, indicate that the State introduced sufficient evidence of witness tampering and stalking. See, e.g., App. 24-34. A. The State introduced sufficient evidence of witness tampering. Proof of witness tampering is sufficient when the State proves that the testimony the defendant sought to induce was in fact false, and that the defendant acted purposely to induce [the witness] to testify to something which the defendant believed was false. State v. DiNapoli, 149 N.H. 514, 516-517 (2003) (construing RSA 641:5). Because persons rarely explain to others the inner workings of their minds or mental processes, a culpable mental state must, in most cases, as here, be proven by circumstantial evidence. Id. at 516 (quoting State v. Laudarowicz, 142 N.H. 1, 4 (1997)). Here, there was substantial evidence that the defendant wanted the victim testify falsely. The defendants knowledge is demonstrated by his attempts to

-10terrorize the victim in the hope that she would recant her statement to the police so that his threats would cease. Urging her to withdraw the request for the protective order could have been used at trial by the defense to undermine her claims that she was afraid and to suggest that his attention was not unwelcome. 1. The defendant knew or believed that the testimony he urged Ms. Knox to give would be false.

The defendant first contends that the evidence was insufficient to prove that he knew or believed that the testimony he urged Ms. Knox to give disclaiming the desire for a restraining order would be false. D 10.6 The defendant first claims he was unaware that Ms. Knox feared him and, therefore, he believed that the testimony he urged Ms. Knox to give would better reflect the truth. D 10-11. Contrary to the defendants assertion, there was ample evidence that the defendant was aware that Ms. Knox feared him. On April 23, 2012, the defendant wrote [Ms. Knox] is pretending she feels unsafe. App. 14. The defendant was served a stalking warning letter by the Exeter Police Department, the purpose of which was to let him know that he was to have no further contact with Ms. Knox. T 124, App. 35-36. The defendant was banned from Ms. Knoxs place of employment, was aware of this ban, and blamed the ban on her. See, e.g., App. 12, 15, 37. Further, the defendant was aware the victim was in the process of obtaining a restraining order against him. See, e.g., App. 15. Last, despite the defendants claims that his handwritten letters proved that he would stop communicating with the victim, D 10, the evidence at trial showed that he continued to communicate with her by mailing
6

References to the Defendants Brief are designated D.

-11two more handwritten letters and posting to his Facebook wall. App. 24-24. This evidence showed that the defendant was aware that the victim feared him. App. 15, 24. Moreover he admitted he had been banned from other establishments because of his actions towards women. App. 15, 24. In short, his claims that he did not understand the criminal nature of his acts are unsupported by the evidence. The defendant relies heavily on Rantala v. State, 216 P.3d 550 (Alaska Ct. App. 2009). D 11-12. While Rantala is instructive, the defendants reliance is misplaced. In Rantala, the defendant burglarized the victims home. Rantala, 216 P.3d 551. After the burglary, the victim, who was also the defendants domestic partner, accepted the defendants phone call from jail on three separate occasions and willingly engaged in three separate phone conversations with the defendant. Id. at 555. During those conversations, the defendant asked the victim if the grand jury had subpoenaed the victims testimony. Id. at 555. The victim replied, No. Id. at 555. The defendant then stated that, unless she was subpoenaed, the victim would not have to testify. Id. at 555. The court found that given the context of the conversation and the relationship between the two participants, there was no attempt at witness tampering on behalf of the defendant. Id. at 557. In Rantala, it was not the words themselves, but the context of a conversation and the relationship between the two participants that added layers of meaning that would not ordinarily be present in the words themselves. Id. at 557. That context and relationship indicated an absence of a hidden subtext. Id. at 557. The defendant did not ask or suggest that the victim lie or unlawfully withhold testimony. Id. at 557.

-12In contrast, the defendant in this case imagined a relationship, became increasingly irate, and, when the victim did not share his feelings, pressured her to prevent the application for a restraining order from going forward. See, e.g., App. 28, 30-33. The defendant instructed Ms. Knox to (1) Just tell the judge you are all set, and I will never speak to your name again; (2) if you get me convicted of anything, I go to jail for a year, and everyone dies in the Apocalypse, and it will be all your fault; (3) No, I want the order removed before Friday now . . . Or I will have you held accountable for your false statements . . . Watch me. . . You go tell the judge that you were mistaken, and youd like it removed. . . Youre a slut! lol so shut up and do as I say; and (4) go tell them you were lying and you want to face the music for it . . . You can tell the police the truth and drop the charges on Monday . . . No, right now, go there now. T 98-102; App 27, 30-33. The relationship between the defendant and victim in Ranatala is easily distinguished from this defendants persistence and unwanted attempts to contact the victim and to attempt to persuade her to change her account. Compare T 98-102; App. 27, 30-33, with Rantala 216 P.3d at 555. The defendant also relies on Nzewi v. State, 359 S.W.3d 829 (Tex. App. Houston 14th Dist. 2012). D 13. Nzewi, however, is distinguishable from the facts presented here. In Nzewi, the defendant and the witness had a prior intimate relationship. Nzewi, 359 S.W.3d at 831.The defendant approached the witness and asked her if she was willing to take the charge of theft for another individual. Id. at 831. The court found that the obvious purpose of the scheme was to deceive the prosecutor into dismissing the theft charges. Id. at 837. The court then found, despite a lack of direct evidence indicating that the defendant and his accomplice discussed

-13their strategy relative to [the witness], including the possibility that [the witness] would be required to testify at trial if the prosecutor did not dismiss the charges, that the evidence was sufficient to prove that the defendant participated in the scheme which included arranging payments to [his former girlfriend] in exchange for her agreement to testify falsely. Id. at 837, 38. In this case, the defendant, who had no prior relationship with the victim, attempted to convince the victim via threats posted on his Facebook wall, to testify falsely. App 27, 31 (tell the judge you are all set and tell the judge that you were mistaken, and youd like [the restraining order] removed.). There was no agreement, relationship, conversation, or scheme involving both the defendant and victim, only the defendants threats directed at the victim 2. The defendant understood that what he urged Ms. Knox to do amounted to testimony.

The defendant next claims that he did not understand that the statements he urged Ms. Knox to make amounted to testimony. D 12. In support of this contention, he directs this court to State v. Rempel, 114 Wn.2d 77 (Wash. 1990). In Rempel, the defendant asked the complaining witness to drop the charges, reflect[ing] a lay persons perception that the complaining witness can cause a prosecution to be discontinued. D 13-14; id. at 83. However, the defendant mischaracterizes his own statements. See, e.g., App. 28, 30-33. As with Rantala, context illuminates intent. See Rantala, 216 P.3d at 555, 557. The defendants numerous Facebook posts betray an intent to scare the victim into providing false testimony. See, e.g., App. 28, 30-33. As explained above, the defendant knew that she was scared of him and he attempted to take advantage of that fear by repeatedly promising that he would leave her alone if

-14she would go tell the judge that you were mistaken, and youd like [the restraining order] removed. See, e.g., T 96-99 App. 33. The defendant did not merely asked the victim to drop the charges, but actively encouraged her to testify that she was lying, that she did not need to pursue a restraining order, and that she wanted to drop the charges. In chronological order, he first offered to never speak her name again, if she just told the judge that she was all set. T 98; App. 28. He next told her that, if she got him convicted, he would go to jail and everyone would die in the apocalypse. T 100; App. 30. After that, he told her that he wanted the restraining order removed, or he would hold her accountable. T 101; App. 31. Finally, he instructed the victim to tell them you were lying. T 102; App. 33. These words constitute a coercive attempt to order the victim to testify falsely. B. The State introduced sufficient evidence of stalking. The defendant next argues that because Ms. Knox had to seek out his Facebook postings, he did not actually contact her in violation of the stalking statute. D 16. He contends that he merely posted his messages publicly online, and did not contact her directly, so he cannot be guilty of contacting her in violation of the stalking statute. D 16-17. This is an incorrect interpretation of the law. State v. Gubitosi, 152 N.H. 673 (2005), holds that the statute does not require that the act of communication take place between the defendant and the intended victim. Id. at 682. Instead, the defendant need only attempt to communicate with the victim with the intent to impart a message . . . [as] part of a course of conduct that reasonably [makes the victim] fear for her safety in order to violate RSA 633:3-a. Id. at 681-82.

-15In Gubitosi, the defendant drove through the parking lot of the restaurant where the victim was eating, and called the restaurant, intending to send a message to the victim. Id. at 681-82. In making that phone call, the defendant did not reach the victim herself. Id. at 675. Instead, the bartender answered the phone and passed the phone to a waitress, who then gave the phone to a companion of the victim. Id. at 675. The victim never actually spoke to the defendant. Id. at 675. It was enough, in this Courts view, that the defendant telephoned the restaurant with the intent to impart a message to [the victim] and that the telephone call was part of a course of conduct that reasonably made [the victim] fear for her safety. Id. at 681-82. Here, as in Gubitosi, the defendant intended to impart a message to the victim as part of a course of conduct that reasonably made the victim fear for her safety, as evidenced by three facts. T 79-84, 95-102; App. 24-34. First, in two of the three handwritten letters to the victim, he mentioned his postings about her. T 79-84; App. 1, 2, 12. Second, he addressed multiple postings on Facebook to her after mailing her those handwritten letters, using familiar names like Dear Kitty Kat, Snuggles, Nikiah, Dear Babe, Sweetheart, and Schnookums, to suggest that they were intimate friends. See, e.g., T 95-102; App. 24, 26, 27, 30, 31. The use of these names demonstrates two things. First, he would not have directed the Facebook postings to her attention if he did not expect that she would read them, which she did, in fact, do. See T 81; App. 1-2. Second, once he had been served with the restraining order, he knew that she was reading his postings. See T 95-96; App. 12. Indeed, by making reference to the postings in his first letter, he clearly thought that her friends had drawn his posts about her to her attention. See T 81; App. 1-2. Third, in his postings

-16he instructed her what to do, including, memorably, to not forget to bring this post in[to court] with you. App. 28. As a consequence, the State believes that the rule in Gubitosi controls and the defendants obvious intent to impart a message to the victim part of a course of conduct that reasonably made the victim fear for her safety and his urgings that she bring his posts into court are more than sufficient to substantiate his conviction for stalking. See, e.g., App. 28. The defendant also argues that the victim put herself in contact with the defendant by going on his Facebook page. D 16. But the victim was scared of the defendant. T 89, 121. She reported his first letter to the Exeter Police Department. T 80, 82. She reported his second and third letters as well. T 89, 121. His reference to his postings about her on Facebook was a challenge to her. It invited her to view them, and evidenced his belief that she already had. See T 81; App. 1-2. There is ample evidence that he knew that sending those handwritten letters would be enough to force her to visit his Facebook page, and evidence that he used her audience to try to intimidate her into testifying that she no longer wanted the restraining order. See, e.g., T 95-102; App. 12 (indicating that he knew that she was reading his posts once he received notice of the restraining order), 24 (addressing a message to her), 26 (addressing a message to her), 27, 30 (addressing a message to her), 31. The fact that the victim then reported her findings of the defendants postings to the Exeter Police Department shows that his intimidation of her was working, that she was scared, and that she was concerned about her safety as a consequence of his contact with her. T 89, 121. The court made no error in denying the motion to dismiss the witness

-17tampering and stalking charges for insufficient evidence.

-18-

CONCLUSION For the foregoing reasons, the Attorney General urges this Court to find that sufficient evidence was produced to sustain the defendants convictions for witness tampering and stalking.

Respectfully submitted, THE STATE OF NEW HAMPSHIRE By its attorneys, Joseph A. Foster Attorney General

____________________________ Natch Greyes Fellow Criminal Justice Bureau 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3671

February 26, 2014 I hereby certify that two copies each of the foregoing were mailed this day, postage prepaid, to Christopher M. Johnson, counsel for the Defendant.

Natch Greyes