State of New Hampshire v. Justin Gunnip ( 2022 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Sullivan
No. 2020-0322
THE STATE OF NEW HAMPSHIRE
v.
JUSTIN GUNNIP
Argued: November 18, 2021
Opinion Issued: January 28, 2022
Office of the Attorney General, (Zachary L. Higham, assistant attorney
general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.
DONOVAN, J. Following a jury trial in the Superior Court (Tucker, J.),
the defendant, Justin Gunnip, was convicted on one count of falsifying physical
evidence and one count of conspiracy to commit assault. See RSA 641:6, I
(2016). The State appeals the trial court’s order setting aside the defendant’s
falsifying physical evidence conviction. The State argues that the trial court
erred as a matter of law by concluding that the defendant did not violate RSA
641:6, I, when he held paper in front of a surveillance camera at the house of
corrections in order to prevent the camera from recording the assault. We
affirm.
The following facts are undisputed or are supported by the record. In
August 2019, the defendant was an inmate at the Sullivan County House of
Corrections. On August 17, 2019, another inmate at the facility was assaulted.
The room in which the assault occurred was monitored by surveillance
cameras capable of capturing video footage of the entire room. The digital
recording was saved to a server, which was inaccessible to inmates. The
footage from the day of the assault showed the victim sitting on a bench
watching television when the defendant and several other inmates entered the
room. The defendant approached one of the cameras and held paper in front of
the lens, obstructing the camera’s view of the room. When the defendant
removed the paper, the victim was injured and lying on the floor.
The defendant was charged with one count of conspiracy to commit
assault and one count of falsifying physical evidence. At trial, the State
introduced into evidence the recording from the day of the assault. With
respect to the falsifying physical evidence charge, the State’s theory was that
the defendant altered the recording by obstructing the camera’s lens with
paper, thereby preventing the camera from recording the assault. The State
presented no evidence that, after the assault, the defendant edited, deleted, or
otherwise altered the recording that was saved to the server. After the State
rested, the defendant moved to dismiss both charges. The court denied the
motions, and the jury convicted him on both charges.
The defendant then moved to set aside the jury’s verdicts. The defendant
argued, in part, that RSA 641:6, I, “does not reach [his] conduct in this case.”
Specifically, the defendant asserted that the statute’s prohibition is limited to
“the physical manipulation of physical existing things” and that “the recording
accurately recorded what it recorded and was still intact at the time of trial and
was used during the course of the trial as an accurate depiction of what was
recorded.” The State objected, arguing that “by holding up a piece of paper,
[the defendant] altered [the camera’s] view such that the recording did not
capture what it would have otherwise recorded.”
The trial court denied the motion with respect to the conspiracy
conviction, but granted it with respect to the falsifying physical evidence
conviction. In reaching its decision, the trial court interpreted the word “thing”
in RSA 641:6, I, as synonymous with “physical evidence” and determined that,
under the statute, the “thing” at issue “must exist” in order for the defendant to
falsify it. Concluding that the “thing” at issue here was “the recording
maintained on the server in the facility’s data room,” the court further
determined that “[t]here was no evidence the recording was altered and, in fact,
the State used [the recording] as an exhibit to prove [the defendant’s] role as a
conspirator precisely because it accurately portrayed his conduct in connection
with the assault.” Thus, the court ruled that the evidence was insufficient to
prove that the defendant altered, destroyed, concealed, or removed the
2
recording in violation of RSA 641:6, I. The State moved for reconsideration,
and the court denied the motion. This appeal followed.
On appeal, the State argues that the trial court erred by setting aside the
jury’s verdict on the grounds that the evidence did “not support” the
defendant’s falsifying physical evidence conviction. When reviewing a trial
court’s decision to set aside the jury’s verdict based upon the sufficiency of the
evidence, we apply our traditional standard for evaluating the sufficiency of the
evidence. See State v. O’Neill, 134 N.H. 182, 184-85 (1991). When evaluating
the sufficiency of the evidence, we consider whether a rational trier of fact
could have found guilt beyond a reasonable doubt, viewing all of the evidence
and all reasonable inferences drawn therefrom, in the light most favorable to
the State. State v. Vincelette, 172 N.H. 350, 354 (2019). Because a challenge
to the sufficiency of the evidence raises a claim of legal error, our standard of
review is de novo. Id.Resolving the State’s appeal also requires that we interpret the language
of RSA 641:6, I. The interpretation of a statute raises a question of law, which
we also review de novo. See State v. Pinault, 168 N.H. 28, 31 (2015). 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.We construe provisions of the Criminal Code according to the fair import of
their terms and to promote justice. Id. We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. Further, we interpret legislative intent from the statute
as written and will not consider what the legislature might have said or add
language the legislature did not see fit to include. Id. Finally, we interpret
statutes in the context of the overall statutory scheme and not in isolation. Id.Turning to the merits, we begin with RSA 641:6, I, which provides, in
relevant part:
A person commits a class B felony if, believing that an
official proceeding . . . or investigation is pending or about
to be instituted, he:
I. Alters, destroys, conceals or removes any thing with a
purpose to impair its verity or availability in such
proceeding or investigation.
RSA 641:6, I.
Broadly construing the language of RSA 641:6, I, the State argues that
the legislature intended the phrase “any thing” to “encompass[] virtually any
subject that a defendant might try to alter.” The State further contends that
the “thing” at issue here was not, as the trial court concluded, the recorded
3
footage, but, rather, the “camera’s intended view and, by extension, the feed
from that view.” According to the State, the defendant “altered the camera’s
view” in violation of RSA 641:6, I, when he held paper in front of the camera’s
lens and, consequently, prevented the camera from recording the assault.
We disagree with the State’s interpretation of the phrase “any thing,” as
it is used in RSA 641:6, I. Because the statute does not define “any” or “thing,”
we look to the dictionary for guidance as to the ordinary meaning of those
words. See State v. Ruff, 155 N.H. 536, 539 (2007). The word “any” is broadly
defined as “one or some indiscriminately of whatever kind.” Webster’s Third
New International Dictionary 97 (unabridged ed. 2002). With respect to the
word “thing,” however, Webster’s Third New International Dictionary contains
several varying definitions. See id. at 2376. One definition describes the word
“thing” as “whatever exists or is conceived to exist as a separate entity or as a
distinct and individual quality, fact, or idea.” Id. We acknowledge that this
definition is broad, signaling that something as abstract as “the camera’s
intended view” could fall within the meaning of the word “thing.” Another
definition, by contrast, defines the word “thing” as “an entity that can be
apprehended or known as having existence in space or time as distinguished
from what is purely an object of thought.” Id. This narrower definition
suggests that, despite its inclusion of the word “any,” the legislature may have
intended the meaning of the word “thing” to exclude mere abstractions that
have no physical existence “in space or time,” such as “object[s] of thought.”
Id.
Because these definitions suggest multiple meanings, and because we do
not construe statutory language “in isolation,” our interpretation of the phrase
“any thing” is informed by the statute’s other language. K.L.N. Construction
Co. v. Town of Pelham, 167 N.H. 180, 185 (2014) (quotation omitted). RSA
641:6, I, requires the State to prove, inter alia, that the defendant acted “with a
purpose to impair [the] verity or availability” of the “thing” at issue in a
“proceeding or investigation.” RSA 641:6, I. This language indicates that,
when the legislature enacted the statute, it was concerned with preserving
physical evidence for investigatory purposes or for use in subsequent litigation.
See Commission to Recommend Codification of Criminal Laws, Report of
Commission to Recommend Codification of Criminal Laws § 586:6 cmts. at 92
(1969) (“[I]nstead of protecting the verity of testimony, [RSA 641:6] is designed
to deter falsification or concealment of physical evidence or the fraudulent use
of such evidence.” (emphasis added)). The statute’s title — “Falsifying Physical
Evidence” — further supports this construction. RSA 641:6 (2016); see Garand
v. Town of Exeter, 159 N.H. 136, 142 (2009) (“While the title of a statute is not
conclusive of its interpretation, it provides significant indication of the
legislature’s intent in enacting the statute.” (quotation omitted)).
Our decision in State v. Dodds, 159 N.H. 239 (2009), is instructive. In
Dodds, the defendant was convicted of violating RSA 641:6, I, based upon
4
evidence that he altered the appearance of his feet in order to make them
appear consistent with his statements to law enforcement. Id. at 243, 247-48.
On appeal, the defendant argued that his conduct did not fall within the scope
of RSA 641:6, I, because his “uninjured feet would likely not have been relevant
to an investigation,” and, therefore, “altering his feet did not transform them
into something relevant.” Id. at 245. Addressing this argument, we observed
that RSA 641:6, I, “does not require that the evidence falsified be admissible at
trial.” Id. Nonetheless, we reasoned that, given the circumstances of the case,
“any injury [to the defendant’s feet] or absence thereof would have been
relevant to officials trying to reconstruct what had occurred.” Id. We therefore
concluded that, regardless of whether the appearance of the defendant’s feet
was admissible at trial, he violated RSA 641:6, I, by altering their appearance.
See id. at 245-47.
Accordingly, we conclude that the meaning of the phrase “any thing,” as
it is used in RSA 641:6, I, is limited to physical evidence that is capable of
either assisting officials in an investigation or being used as evidence at a later
proceeding. To qualify as physical evidence, the “thing” at issue must have
some tangible quality; mere abstractions, such as thoughts, concepts, or ideas,
are insufficient. See People v. Rieger, 436 P.3d 610, 613 (Colo. App. 2019)
(defining “physical evidence,” in part, as “anything that conveys a firsthand
impression to factfinders,” such as “weapons, writings, photographs, and
charts” (quotation and brackets omitted)); Page v. Com., 149 S.W.3d 416, 421
(Ky. 2004) (defining “physical evidence” as “any article, object, document,
record, or other thing of physical substance” (quotation omitted)); 23 C.J.S.
Criminal Procedure and Rights of the Accused § 1148, at 595 (2016)
(“[P]hysical evidence is evidence addressed directly to the senses of the court or
jury without the intervention of the testimony of witnesses, as where various
things are exhibited in open court, or an object which relates to or explains the
issues or forms a part of a transaction.”); see also Webster’s Third New
International Dictionary, supra at 1706 (defining “physical” as “of or relating to
natural or material things as opposed to things mental, moral, spiritual, or
imaginary”). Moreover, although the “thing” at issue need not “be admissible at
trial,” it must have enough evidentiary value such that it is “relevant to officials
trying to reconstruct what had occurred.” Dodds, 159 N.H. at 245; see
Webster’s Third New International Dictionary, supra at 788-89 (defining
“evidence” as “something that furnishes or tends to furnish proof”); see also
Page, 149 S.W.3d at 421-22 (holding that the blood flowing through the
defendant’s body was not “physical evidence” under a Kentucky statute similar
to RSA 641:6, I, because, until the blood was collected for testing, it was
“incapable of an analysis that would yield evidence”).
We further conclude that the “thing” at issue here was not, as the State
contends, “the camera’s intended view” or “the feed from that view.” The
“intended view” of a camera is not physical evidence, but, rather, a mere
abstraction, reflecting only the intent of those who installed and maintained
5
the camera to record digital images from a certain angle or of a certain event.
As explained above, an abstraction cannot serve as physical evidence of a
crime. See, e.g., Rieger, 436 P.3d at 613; Page, 149 S.W.3d at 421. Similarly,
the “feed” from the camera’s “intended view” — comprised of light reflecting
into the camera’s lens — lacked the tangible quality necessary to qualify as
physical evidence. Critically, without the digital recording, neither “the
camera’s intended view” nor “the feed from that view” could have assisted
officials investigating the assault. Cf. Dodds, 159 N.H. at 245. Thus, the trial
court properly ruled that the “thing” at issue was “the recording maintained on
the server in the facility’s data room” — a tangible medium capable of serving
as physical evidence of a crime. See Rieger, 436 P.3d at 614 (holding that
“electronically stored, digital images” constitute “physical evidence” under a
statute similar to RSA 641:6, I). Indeed, the State introduced the recording as
physical evidence of the defendant’s participation in the conspiracy.
Having established that the “thing” at issue here was the recorded
footage on the server, we conclude that the evidence was insufficient to
establish that the defendant altered, destroyed, concealed, or removed the
footage. See RSA 641:6, I. At trial, the State presented no evidence that the
defendant deleted, edited, altered, or removed the recording stored on the
server. As the trial court observed, “[t]he evidence established the recording
was intact, and it was used [by the State] as evidence precisely because it
showed what the surveillance camera recorded.” Thus, even viewing the
evidence, and all reasonable inferences drawn therefrom, in the light most
favorable to the State, no reasonable trier of fact could have found that the
defendant altered, destroyed, concealed, or removed the recorded footage. See
Vincelette, 172 N.H. at 354.
The State argues, on the other hand, that the defendant altered the
footage before it reached the server. According to the State, RSA 641:6, I, “does
not specify where or when a defendant’s intervention in the process of evidence
generation constitutes falsification,” and “nothing in [RSA 641:6, I] limits the
crime to conduct committed after the creation of the ‘thing’ at issue.” Thus, the
State argues, the court “improperly added an additional element . . . beyond
what the statute requires” when it construed RSA 641:6, I, to require proof that
“the recording pre-existed the defendant’s alteration.” We disagree.
The plain and ordinary meaning of the language in RSA 641:6, I,
presupposes that the “thing” at issue must exist before it can be “[a]lter[ed],
destroy[ed], conceal[ed] or remove[d].” RSA 641:6, I; see Pinault, 168 N.H. at
31 (explaining that, when interpreting statutes, “[w]e first look to the language
of the statute itself, and, if possible, construe that language according to its
plain and ordinary meaning”). Indeed, as the defendant points out, one cannot
alter, destroy, conceal, or remove “a thing that does not yet exist.” See RSA
641:6, I; see also Sexton v. Com., 317 S.W.3d 62, 64-65 (Ky. 2010) (concluding
that the evidence was insufficient to establish that the defendant violated a
6
Kentucky statute similar to RSA 641:6, I, by destroying a videotape when “the
Commonwealth failed to produce any evidence that [the] videotape . . . even
exist[ed]”). Thus, the trial court correctly concluded that the “thing” at issue
“must exist in order to be altered.”
Here, as explained above, the “thing” at issue was the recorded footage
that was saved to the server. That footage did not preexist the defendant’s act
of obstructing the camera’s view; rather, it was created simultaneously with the
defendant’s act. Therefore, because the “thing” at issue did not exist until the
defendant acted, the defendant’s act did not alter, destroy, conceal, or remove
it. See RSA 641:6, I. Instead, the defendant merely prevented the creation of
certain physical evidence — namely, footage capturing the assault. Nothing in
the language of RSA 641:6, I, suggests that the statute prohibits conduct that
prevents the creation of new physical evidence. To hold otherwise would
impermissibly add language to the statute, expanding its scope to potential
evidence that does not yet exist in physical form. See Pinault, 168 N.H. at 31.
For this reason, we reject the State’s contention that the defendant altered the
footage at the same time the camera recorded it. Accordingly, we conclude that
the trial court properly ruled that the defendant’s conduct fell outside the
scope of RSA 641:6, I. However, if the legislature disagrees with our
construction, it is free, within constitutional limits, to amend the statute as it
sees fit.
Affirmed.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
7