State v. Hanes
| Decision Date | 18 July 2018 |
| Docket Number | No. 2017-0170,2017-0170 |
| Parties | The STATE of New Hampshire v. Michael HANES |
| Court | New Hampshire Supreme Court |
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, on the brief and orally, for the defendant.
The defendant, Michael Hanes, appeals his conviction, following a jury trial in Superior Court (McNamara, J.), for improper influence. See RSA 640:3 (2016). He argues that there was insufficient evidence to sustain the verdict, that the speech underlying his conviction enjoys constitutional protection, and that the trial court committed plain error in failing to sua sponte strike part of a witness's testimony. We affirm.
The relevant facts follow. The defendant lived in Pembroke, in an "older part of the town," on an "extremely narrow" street. His house was "very close to the street," and to get out his front door, he had to walk on the sidewalk. When the town's Department of Public Works (DPW) plowed the road after a snowfall, the snow bank would be up to the defendant's front steps.
The DPW plows the town roads and sidewalks according to policies and procedures established by the board of selectmen, including a snow removal policy plan that identifies the sequence in which roads and sidewalks are plowed. The town administrator, David Jodoin, was one of the town's employees responsible for implementing this plan. In addition, Jodoin was responsible for discipline and other personnel matters regarding town employees, supervising the department heads of several municipal departments, including the director of the DPW, advising those departments how to implement the town's policies and procedures and ensuring that they were followed, and responding to citizen complaints. The town has over 80 miles of road and employed eight town employees to plow the roads and sidewalks.
Around February 2015, the defendant contacted Jodoin and complained about the snow removal on his street and the fact that he had been "plowed in." Jodoin explained to the defendant that the town's board of selectmen had adopted a snow removal policy and that DPW employees "would go out and take care of it and clean it up once [they] could, but [they] were behind on the snow removal and ... had other issues that [they] had to deal with, with sidewalks and things of that nature, ... but [they] would be back." The defendant did not "threaten anyone during that conversation."
Approximately one year later, on February 16, 2016, the defendant again telephoned Jodoin to complain about the snow plowing. At 9:17 a.m., the defendant left the following message on Jodoin's voicemail as transcribed by the Pembroke Police Department:
Dave Jodoin this is Mike Haynes [sic ] .... I called you last year because we were having a problem with the city plowing the snow right up onto my sidewalk. Well today, and this isn't a whole [lot] of snow that we're getting, but they, the little bit of snow, it's accumulated in front of my house over the winter, they pushed all of that and the snow from today, last night up onto my damn sidewalk. I got two feet of snow in my f**king front yard! I want Jimmy fired! I want to see somebody fired down there! I want you to f**king fire some goddamn plow drivers! You come and look in front of my goddamn house! I am f**king just mad as hell! I want a plow driver fired for this and I want Jimmy's f**king head on a goddamn stick! I'm gonna start shooting these bastards if they keep this up! I will kill every f**king plow driver in this mother f**king goddamn city if they do this one more f**king time! Thank you!
Jodoin testified that the defendant's message
After listening to the message, Jodoin contacted the police because "[a]ny time anybody ... threatens another individual, that ... becomes a police issue," and because he was concerned about the safety of town employees. He also contacted the DPW and advised the director's secretary to contact the police if any DPW employees had any communication with the defendant. In response, the police chief made a recording of the message and took it to the police station where he played it for Detective Foster and another police officer. Given "the nature of the threat" and its "immediacy," the police went to the defendant's house. The defendant acknowledged leaving "a pretty nasty voicemail for the Town Administrator" and stated that he "thought it was a mistake." The officers then arrested him at approximately 11:45 a.m.
Following a one-day jury trial, the defendant was convicted as charged. The trial court sentenced the defendant to a term of twelve months in the Merrimack County House of Corrections, with all but seven days suspended.
On appeal, the defendant first argues that the State introduced insufficient evidence to convict him of improper influence. In order to prevail on a challenge to the sufficiency of the evidence, a defendant must demonstrate that no rational trier of fact, evaluating all of the evidence and reasonable inferences therefrom in the light most favorable to the State, would conclude beyond a reasonable doubt that he had committed the charged crime. State v. Morrill, 169 N.H. 709, 718, 156 A.3d 1028 (2017). "When the evidence is solely circumstantial, it must exclude all reasonable conclusions except guilt." Id. "Under this standard, however, we still consider the evidence in the light most favorable to the State and examine each evidentiary item in context, not in isolation." Id. (quotation omitted).
RSA 640:3 provides in part that "[a] person is guilty of a class B felony if he ... [t]hreatens any harm to a public servant ... with the purpose of influencing his action, decision, opinion, recommendation, ... or other exercise of discretion." RSA 640:3, I(a). "Harm" is defined as "any disadvantage or injury, to person or property or pecuniary interest, including disadvantage or injury to any other person or entity in whose welfare the public servant ... is interested." RSA 640:3, II. The jury was instructed that the crime of improper influence has three elements that the State must prove beyond a reasonable doubt: (1) the defendant made a threat of harm to another; (2) the other person was a public servant; and (3) the threat of harm was intended to influence the recipient's action, decision, opinion, recommendation, or other exercise of discretion.
The defendant contends that the plain meaning of the term "threaten" "incorporates the idea that the speaker indicates consequences that are ‘impending,’ " and that "[e]vidence of a threat to injure a person on some indefinite future occasion, and then only after the occurrence of a pre-condition, does not prove imminence." He also argues that "[i]nsofar as the verb ‘threatens’ implies a purpose to terrorize," because of the conditional nature of the defendant's statement, "combined with the fact that, as Jodoin understood, [the defendant] was in the moment overcome with anger," the defendant's purpose was "not to cause ‘extreme fear,’ but rather to use strong words to convey his frustration."
The interpretation of a statute is a question of law, which we review de novo. State v. Lantagne, 165 N.H. 774, 777, 83 A.3d 397 (2013). In matters of statutory interpretation, we are the final arbiters of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. When examining the language of the statute, we construe that language according to its plain and ordinary meaning. Id. We interpret 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. We construe provisions of the Criminal Code "according to the fair import of their terms and to promote justice." RSA 625:3 (2016).
"The plain meaning of ‘threaten’ is ‘to utter threats against: promise punishment, reprisal, or other distress ... to promise as a threat: hold out by way of menace or warning ... to give signs of the approach of (something evil or unpleasant): indicate as impending.’ " Lantagne, 165 N.H. at 777-78, 83 A.3d 397 (quoting Webster's Third New International Dictionary 2382 (unabridged ed. 2002) ). This definition does not support the defendant's position that the threatened action must be "imminent."
Nor does the language of the statute preclude threats that are based upon the occurrence of a future event. We agree with the State that See Schmitz v. U.S. Steel Corp., 831 N.W.2d 656, 667 (Minn. Ct. App. 2013) (); Ex parte Perry, 483 S.W.3d 884, 905 (Tex. Crim. App. 2016) (...
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