State of New Hampshire v. Hagen Esty-Lennon

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0267, State of New Hampshire v. Hagen
Esty-Lennon, the court on March 12, 2015, issued the following
order:

Having considered the brief and memorandum of law, the court
concludes that a formal written opinion is unnecessary in this case.
Accordingly, we deny the motion of the defendant, Hagen Esty-Lennon, for a
published opinion. The defendant appeals his conviction, following a bench
trial in the Circuit Court (Coughlin, J.), on one count of violating a domestic
violence protective order. See RSA 173-B:9 (2014). We reverse.

The trial court could have found, or the record supports, the following
facts. The defendant’s wife filed for divorce in December 2012. After a hearing
in February 2013, the court issued a domestic violence final order of protection
against the defendant that was in effect between March 2013 and March 2014.

In April 2013, while the wife was employed at a hair salon, someone
posted a picture on the salon’s Facebook page. The picture depicted a sign
with the words “Hoe for Hire” on it and contained the wife’s cellular telephone
number. The wife testified that she received multiple anonymous text
messages and phone calls regarding the Facebook picture. She further
testified that she found both the picture and the anonymous communications
to be insulting, taunting, and harassing.

The wife contacted the police, and the investigating officer eventually
traced the Facebook post to a woman who worked with the defendant. At trial,
the woman admitted to posting the picture at the defendant’s request.

In August 2013, the State issued a complaint against the defendant. The
complaint alleged that he knowingly violated the domestic violence order in
contravention of RSA 173-B:9, “by having a third party post a picture on
[F]acebook[,] which insults, taunts, or challenges another in a manner likely to
provoke a violent or disorderly response[,] thereby harassing [the wife].” See
RSA 644:4, I(c) (2007). A trial was held in March 2014. The court found the
defendant guilty, and this appeal followed.

The defendant first argues that the State introduced insufficient evidence
to convict him. See State v. Germain, 165 N.H. 350, 354–55 (2013). He
asserts that, pursuant to the complaint, the State undertook to prove
harassment, as defined in RSA 644:4, I(c), by demonstrating that he violated
the protective order and engaged in harassment when he requested a third
party to post the picture on Facebook. See RSA 644:4, I(c) (defining
harassment as when one person “[i]nsults, taunts, or challenges another in a
manner likely to provoke a violent or disorderly response”). The defendant
maintains that “to prove the elements of harassment under RSA 644:4, I(c),”
and, consequently, to prove that he violated the domestic violence order, “the
State must prove that the defendant and the victim were in close physical
proximity at the time the insult was delivered.” Because there was no evidence
at trial that the picture posted on Facebook was “made in the context of a face-
to-face encounter with [the wife],” or in similarly close physical proximity, the
defendant asserts that there was insufficient evidence to convict him.

The State agrees with the defendant and concedes that “the defendant is
correct that there was insufficient evidence to uphold his conviction because no
evidence was presented at trial to support a finding that the defendant and [the
wife] were in physical proximity when the speech occurred.” The record also
reflects that the State previously confessed judgment on identical grounds in a
similar case.

Accordingly, we reverse the defendant’s conviction. Because the parties
agree that there was insufficient evidence to convict the defendant, we need not
reach their arguments concerning the constitutionality of RSA 644:4, I(c) and
whether, to be constitutional, that statute requires physical proximity between
the speaker and the addressee. “We follow an established policy against
reaching a constitutional issue in a case that can be decided on a non-
constitutional ground.” Chapman v. Douglas, 146 N.H. 209, 211 (2001); see
also State v. Hodgkiss, 132 N.H. 376, 379 (1989). We need not address the
defendant’s remaining arguments.

Reversed.

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

Eileen Fox,
Clerk

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