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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Merrimack
No. 2017-0170


                       THE STATE OF NEW HAMPSHIRE

                                         v.

                                MICHAEL HANES

                            Argued: March 8, 2018
                         Opinion Issued: July 18, 2018

      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.

        HANTZ MARCONI, J. 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.
                                        I

       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


                                       2
      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 “started out pretty calm,
reasonable, and then it just went from like zero to 60 and accelerated within
like three seconds. It was loud, yelling, screaming, threatening, wanted
somebody fired, and then the threats came in.”

       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.

      The defendant was subsequently indicted on one class B felony count of
improper influence. See RSA 640:3, I(a). The indictment alleged that the
defendant,

      with a purpose to influence a public servant’s action, decision,
      opinion, recommendation or other exercise of discretion did
      threaten any harm to a public servant, . . . by calling the . . . Town
      Administrator leaving a message that he was going to shoot the
      [DPW’s] snow removal employees if they plowed snow on the
      sidewalk in front of his home.

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.

                                        II

       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 (2017). “When the evidence is solely circumstantial,


                                        3
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 (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
(quoting Webster’s Third New International Dictionary 2382 (unabridged ed.



                                         4
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 “the plain
language of the statute makes it clear that it encompasses threats to harm a
public servant . . . in the future, and then only if the public servant fails to
engage in the desired conduct. In other words, it encompasses conditional
threats of future harm.” See Schmitz v. U.S. Steel Corp., 831 N.W.2d 656, 667
(Minn. Ct. App. 2013) (explaining that “the primary purpose of threatening
someone is to influence that individual’s behavior”); Ex parte Perry, 483 S.W.3d
884, 905 (Tex. Crim. App. 2016) (noting that the term “threat” can be defined
as “[a] declaration of an intention or determination to inflict . . . injury . . .
conditionally upon[ ] some action or course” (quotation omitted)); Keyes v.
Com., 572 S.E.2d 512, 516 (Va. Ct. App. 2002) (stating that a threat is “an
avowed present determination or intent to injure presently or in the future”
(quotation omitted)); State v. Edwards, 924 P.2d 397, 400 (Wash. Ct. App.
1996) (noting that “[t]he ordinary meaning of ‘threaten’ clearly includes . . .
future threats”).

       We likewise reject the defendant’s argument that the use of the term
“threaten” in the statute “implies a purpose to terrorize.” In support, the
defendant cites State v. Fuller, 147 N.H. 210 (2001). Fuller, however, is
distinguishable because it interprets the criminal threatening statute, which
specifically provides that an individual is guilty when he or she “threatens to
commit any crime against the person of another with a purpose to terrorize any
person.” RSA 631:4, I(d) (2016); see Fuller, 147 N.H. at 212. By contrast,
under the improper influence statute, an individual is guilty when he or she
threatens harm to a public servant with the purpose of influencing that
person’s “action, decision, opinion, recommendation, . . . or other exercise of
discretion.” RSA 640:3, I(a). Thus, our holding in Fuller that “in order for a
jury to conclude that a defendant had a purpose to terrorize, the jury must
conclude that the defendant had a purpose to cause extreme fear,” is limited to
the particular language used in that statute. Fuller, 147 N.H. at 213. Had the
legislature intended the improper influence statute to require a purpose to
terrorize, it would have said so.

       The defendant further contends that “the State cannot convict [him] if his
words enjoy constitutional protection under the First Amendment [to the
United States Constitution] or under the free speech clause of Part I, Article 22
of the New Hampshire Constitution.” The defendant, however, failed to raise
his state constitutional argument in the trial court and thus it is not preserved
for our review. See State v. Dellorfano, 128 N.H. 628, 632-33 (1986).
Accordingly, we need only address whether the defendant’s conviction violates
the Federal Constitution. See State v. Wood, 128 N.H. 739, 741 (1986).



                                        5
       The improper influence statute defines “harm” to exclude “the exercise of
any conduct protected under the First Amendment to the United States
Constitution or any provision of the federal or state constitutions.” RSA 640:3,
II. The defendant acknowledges that, in certain circumstances, “the First
Amendment is not violated when acts of speech are criminalized” and that
“states may, without violating the [Federal] Constitution, criminalize ‘true
threats.’” See Virginia v. Black, 538 U.S. 343, 358-59 (2003) (plurality opinion)
(explaining that “[t]he First Amendment permits restrictions upon the content
of speech in a few limited areas, which are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality” (quotations omitted)); see also
R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992) (recognizing that “threats of
violence are outside the First Amendment”); Watts v. United States, 394 U.S.
705, 708 (1969) (per curiam) (distinguishing political hyperbole from true
threat).

       The defendant, relying on Black, defines a “true threat” as a “statement[ ]
where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
individuals.” Black, 538 U.S. at 359. The defendant argues that the State
failed to prove that he “meant to communicate a serious expression of such
intent.” The State questions whether Black requires proof of the defendant’s
subjective intent for the speech to constitute a “true threat” and, thus, to fall
outside of First Amendment protection. Cf. Elonis v. United States, 135 S. Ct.
2001, 2027 (2015) (Thomas, J., dissenting) (“The Court’s fractured opinion in
Black . . . says little about whether an intent-to-threaten requirement is
constitutionally mandated . . . .”). As the State correctly notes, federal courts
are split on this issue. See, e.g., United States v. Heineman, 767 F.3d 970,
979-82 (10th Cir. 2014) (discussing circuit split).

       In United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005), the Ninth
Circuit acknowledged the disagreement, even within its own precedent,
regarding whether “true threats” constitutionally require proof of the
defendant’s subjective intent. See Stewart, 420 F.3d at 1016-18. The Ninth
Circuit recognized that Black contributed to, rather than resolved, this
disagreement. See id. The Stewart Court ultimately assumed, without
deciding, that the First Amendment requires “proof that the speaker
subjectively intended the speech as a threat” because the statute at issue in
that case “contain[ed] a specific intent element.” Id. at 1017-18 (citing United
States v. Cassel, 408 F.3d 622, 633 (9th Cir. 2005)). The statute, 18 U.S.C.
§ 115(a)(1)(B) (2012), “punishe[d] only threats made regarding enumerated
officials with the intent to impede, intimidate, interfere with, or retaliate against
such officials on account of the officials’ performance of official duties.” Id. at
1017. Therefore, to obtain a conviction under this statute, the government had
to prove, as an element of the crime, “that the speaker intended the speech to
impede, intimidate, interfere with, or retaliate against the protected official.”


                                         6
Id. The Ninth Circuit recognized that proof of this element “subsume[s]” the
subjective intent requirement that the court assumed the First Amendment
imposed, id. at 1017, 1019, given that “one cannot have the intent required
under section 115(a)(1)(B) without also intending to make the threat,” id. at
1017. Accordingly, because “there was sufficient evidence presented to the
jury to establish the existence of such specific intent,” the evidence was also
“sufficient to show [that] Stewart subjectively intended the speech as a threat,”
thus bringing it outside the scope of First Amendment protection. Id. at 1019
(quotation omitted).

       Because this case also involves a statute that contains a specific intent
element, we find the Stewart case instructive. Like the Ninth Circuit, we
assume, without deciding, that the First Amendment requires proof that the
speaker subjectively intended his words to be understood by the recipient as a
threat. See Cassel, 408 F.3d at 628, 633; Stewart, 420 F.3d at 1017-19. Here,
the defendant was convicted under the improper influence statute, which
contains a specific intent element: it punishes only threats of “harm to a public
servant . . . [made] with the purpose of influencing his action, decision,
opinion, recommendation, . . . or other exercise of discretion.” RSA 640:3, I(a)
(emphasis added). To convict the defendant of improper influence, the jury had
to find, beyond a reasonable doubt, that the defendant left the voicemail
threatening to shoot the DPW’s snow removal employees with the purpose of
influencing town officials in their implementation of the snow removal policy.
Notably, the jury did not need to find, for statutory or First Amendment
purposes, that the defendant intended to carry out the threat. See Cassel, 408
F.3d at 627-28.

       Here, the defendant called the town administrator after the DPW plowed
snow up to his sidewalk. The defendant yelled that he would “start shooting
these [plow drivers] if they keep this up!” We conclude that the evidence,
viewed in the light most favorable to the State, was sufficient to establish the
specific intent element of improper influence — that the defendant conveyed
threats of violence with the intent of influencing the town administrator’s
implementation of the town’s snow plowing procedures. See Stewart, 420 F.3d
at 1017, 1019. Consequently, the evidence was also sufficient to establish that
the defendant subjectively intended his words to be understood by the recipient
as a threat. See id. at 1019; Cassel, 408 F.3d at 628. Because his speech
meets the definition of a “true threat,” it falls outside the protection of the First
Amendment, and his conviction for improper influence does not violate the
Federal Constitution.

       Finally, the defendant argues that the trial court committed plain error in
failing to sua sponte strike part of Detective Foster’s testimony. Foster was
asked at trial what he did after listening to the voicemail message that the
defendant left for Jodoin. Foster answered:



                                         7
      Well, the voicemail was somewhat threatening towards the Town
      Administrator and the plow truck operators for the town, and
      based off what was said in it, we believe that it constituted
      basically an obstacle or a threat that was designed to prevent the
      plow truck drivers from completing their duties, and based off the
      nature of the threat and the immediacy of it, we went to Mr.
      Hanes[’] residence . . . .

The defendant argues that “Foster’s opinion about [the defendant’s] message
had no tendency to prove any material or disputed fact,” and “was unfairly
prejudicial . . . because it communicated Foster’s opinion that [the defendant’s]
words constituted an immediate threat, and thus proved his guilt of the
charged crime.” (Quotation and brackets omitted.)

       Because the defendant did not object to this testimony at trial, he asks
that we consider his argument under our plain error rule. See Sup. Ct. R. 16-
A. The plain error rule allows us to exercise our discretion to correct errors not
raised before the trial court. State v. Euliano, 161 N.H. 601, 605 (2011). “For
us to find plain error: (1) there must be error; (2) the error must be plain; and
(3) the error must affect substantial rights.” State v. Thomas, 168 N.H. 589,
604 (2016) (quotation omitted). “If all three of these conditions are met, we
may then exercise our discretion to correct a forfeited error only if the error
meets a fourth criterion: the error must seriously affect the fairness, integrity
or public reputation of judicial proceedings.” Id. (quotation omitted). “The
plain error rule is used sparingly, however, and is limited to those
circumstances in which a miscarriage of justice would otherwise result.” Id.
(quotation omitted).

      We conclude that “[e]ven if the failure to strike the testimony was
somehow ‘error,’ that error was not plain.” State v. Rawnsley, 167 N.H. 8, 12
(2014).

      Plain is synonymous with clear or, equivalently, obvious. At a
      minimum, a court of appeals cannot correct an error unless the
      error is clear under current law. Thus, an error is plain if it was or
      should have been obvious in the sense that governing law was
      clearly settled to the contrary. Generally, when the law is not clear
      at the time of trial, and remains unsettled at the time of appeal, a
      decision by the trial court cannot be plain error.

State v. Lopez, 156 N.H. 416, 424 (2007) (quotations, citations, and ellipses
omitted). “We have never held that a trial court must sua sponte strike or
issue a curative instruction with respect to witness testimony” and, in fact, “we
have suggested that courts should refrain from taking such action.” State v.
Noucas, 165 N.H. 146, 161 (2013); see State v. Drown, 170 N.H. ___, ___
(decided June 5, 2018) (slip op. at 10-11). Further, although we have noted


                                        8
that a trial court might have an obligation to sua sponte strike testimony
“when there could be no dispute that certain testimony impaired the
defendant’s substantial rights and adversely affected the fairness, integrity, or
public reputation of judicial proceedings,” the defendant has failed to
demonstrate that this case presents such a circumstance. Thomas, 168 N.H.
at 604 (quotation omitted). Accordingly, we conclude that the defendant has
failed to demonstrate that the trial court committed plain error.

                                                  Affirmed.

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




                                        9
