112 A.3d 559 (N.H. 2015), 2013-229, State v. Craig

Docket Nº:2013-229
Citation:112 A.3d 559, 167 N.H. 361
Opinion Judge:Bassett, J.
Party Name:The State of New Hampshire v. Brian Craig
Attorney:Joseph A. Foster, attorney general ( Natch Greyes, fellow, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
Judge Panel:BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
Case Date:February 12, 2015
Court:Supreme Court of New Hampshire

Page 559

112 A.3d 559 (N.H. 2015)

167 N.H. 361

The State of New Hampshire


Brian Craig

No. 2013-229

Supreme Court of New Hampshire

February 12, 2015

Argued April 3, 2014


[167 N.H. 363]Joseph A. Foster, attorney general ( Natch Greyes, fellow, on the brief and orally), for the State.

[167 N.H. 364] Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.


Page 560

Bassett, J.

Following a jury trial in Superior Court ( Delker, J.), the defendant, Brian Craig, was convicted on one count of criminal threatening, RSA 631:4 (Supp. 2014); one count of witness tampering, RSA 641:5 (2007); and one count of stalking, RSA 633:3-a (Supp. 2014). The convictions were based on a series of messages that he posted on his Facebook profile page in April 2012 that were directed to the victim. At the conclusion of the State's case, the defendant unsuccessfully moved to dismiss all three charges. On appeal, the defendant argues that the trial court erred in denying his motion to dismiss the witness tampering and stalking charges for insufficient evidence. He does not challenge his conviction for criminal threatening. We affirm.

I. Factual Background

The jury could have found the following facts. In late 2011, the defendant met the

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victim at a restaurant in Exeter where she worked as a bartender and waitress. The defendant initially came to the victim's workplace with his brother or with friends. The victim interacted with the defendant only at work, and, according to her, their relationship consisted only of " very casual, very simple" customer-server communications. In time, the defendant began coming to the restaurant by himself, and the victim noticed that he stared at her. On one occasion, he came in alone, and told the victim that he came in just to see her.

In April 2012, the defendant mailed a letter to the victim at her workplace. The letter addressed the victim by name, and began: " So, you must've heard I was speaking highly of you on my Facebook page. I can tell, because you are trying to hurt me." Alarmed by the letter, the victim contacted the Exeter Police Department. Shortly thereafter, the victim received a second letter at work, in which the defendant stated that he " had to get a few things off of [his] chest" about their relationship before he could " say good bye properly."

On April 22, Officer Chadwick of the Exeter Police Department served the defendant with a stalking warning letter. Chadwick explained to the defendant that the victim had complained about his behavior, and that the letter was a warning from the Exeter Police Department that " future stalking behavior" would result in prosecution for stalking under RSA chapter 633:3-a. Chadwick confirmed that the defendant understood the warning letter and the consequences of violating it. On the same day, the Exeter police served the defendant with a no-trespass notice from the victim's employer, informing him that he was forbidden from entering the [167 N.H. 365] victim's workplace, and that if he did so, he could be arrested for criminal trespass. See RSA 635:2 (Supp. 2014).

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

On April 24, the Superior Court ( McHugh, J.) issued a temporary restraining order against the defendant under RSA chapter 173-B, which was served on the defendant the same day. See RSA ch. 173-B (2014) (protection of persons from domestic violence). The restraining order required the " [s]toppage of the mail letters and no contact whatsoever, phone, email, et cetera." The order also notified the defendant that a final hearing on the restraining order was scheduled for May 4, 2012.

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

Dear Kitty Kat:

I just wanted to remind you that since you would have to choose to look at the things I say to you on Facebook, that it means my butt is covered. Also, you are 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. HA HA! ... . Page 562

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

... . I think by the day in court you will have come around. ... . Now you see, [victim's name], why it has to be you. Only you can wake up and say " Oh, there's no beating him, I better help him or we're all dead."

[167 N.H. 366]The next day, April 28, the defendant posted:

Dear Babe

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

Despite acknowledging that, " I know you want me to slow down a bit on here," the defendant continued to post statements directed to the victim on his Facebook page:

So you want to push with this restraining order eh? Ha Ha, okay! Here's what we will do. Since it won't 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. ... I can represent myself and beat you ... .

... . Just tell the judge you are all set, and I will never speak your name again. Don't forget to bring this post in with you. ... . You'll have to lie under an oath of God to tell them you first became aware of my words on Facebook via my letter. ... . You don't want to go to jail for perjury do you? ... . The document I have here does not mention my Facebook wall. You lose again[.] ... . HA HA. I mentioned Facebook in a letter, you mentioned your knowledge of it in your complaint, yet did not say not to talk about you on here.

[167 N.H. 367] Later on April 28, the defendant posted four more messages, instructing the victim as to what he wanted her to do and say at the hearing scheduled for Friday, May 4, and threatening her if she did not comply:

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

... . [G]oing to trial means the entire staff at [your workplace] gets put on the stand to answer the question " Did she view [the defendant's] Facebook wall, prior to the letter in which he mentions it was received?[" ] Since I know you have been viewing my wall for quite some time, I win. ... . Oh Schnookums! I forgot to mention ... 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. So, your options are to be all mine as of this Friday, or f**k off forever. ... . No, I want the order removed before Friday now. Or. I will have you held accountable ... . You go tell the judge that you were mistaken, and you'd like it removed. ... You're a s**t! [S]o shut up and do as I say. Page 563

... .

Well folks, I am going to go silent for the week, and let [the victim] eat s**t and rot in Hell. ... . [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. [I]f and when I receive documentation that you have dropped the charges we can start all over. ...

[167 N.H. 368]Several days after the court's entry of the restraining order against the defendant, the victim, for the first time, decided to read the defendant's Facebook page. She did so because the defendant's first letter referenced his posts about her on Facebook, and because her mother, who had read the posts, warned the victim of " the extent and the severity" of the language in them.

Although the victim had a Facebook page at the time, she was not a " Facebook friend" of the defendant.1 However, because the defendant's page was public, the victim found the defendant's Facebook page simply by entering his name into the Facebook search tool. The defendant's posts were contained in his Facebook " Notes," which the victim could read by opening the " Notes" section of the defendant's Facebook profile page.2

The victim spent " about three hours" reading the defendant's posts about her. She was " appalled" and " scared" by the language he used in reference to her, and by reading her name in one of his posts. Consequently, she contacted the Exeter Police Department and reported the content of the Facebook page. In response, Officer Chadwick logged onto Facebook, found the defendant's Facebook page, and read the multiple posts directed to the victim, many of which were written after the defendant had been served with the restraining order. On April 28, Chadwick went to the defendant's home and confronted him with printed copies of the Facebook posts. The defendant admitted that he wrote them, but said that he was " expressing his feelings." Chadwick then arrested the defendant.

A grand jury indicted the defendant for witness tampering, RSA 641:5; stalking, RSA...

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