State of New Hampshire v. Kathleen Bossi

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0334, State of New Hampshire v. Kathleen
Bossi, the court on January 19, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted on
appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The defendant, Kathleen Bossi, appeals her conviction for criminal
trespass. See RSA 635:2, III(b)(2) (Supp. 2023). She argues that the Trial Court
(Stephen, J.) erred: (1) “by taking jurisdiction over a civil dispute”; and (2) “by
refusing to recognize the irrevocable license of the defendant, an invitee, to enter
and remain in a public accommodation during normal business hours.” We
affirm.

The record contains the following evidence. The Timberlane Regional
School Board scheduled an in-person school board meeting at the Timberlane
Regional High School performing arts auditorium on May 20, 2021. In May
2021, the school board required that anyone entering school property, including
the auditorium, wear a mask. This requirement was posted on the doors to the
performing arts center. The agenda for the meeting also stated: “Attendees are
asked to wear appropriate face coverings and practice social distancing
protocols.” The school board and superintendent requested police officers be
posted “in case there was an issue” and to enforce the mask policy.

Plaistow Police Officer Schiavone was assigned to “keep the peace at the
meeting.” When Schiavone arrived at the arts center, he observed people in the
entryway attempting to enter the auditorium without masks. He “stopped them,
stood in front of them, and said to them, I’m sorry, you can’t come in unless you
have a mask.” People in the entryway told him that he could not enforce the
mask policy.

Sergeant Porter was also assigned to patrol the performing arts center due
to the likelihood that protesters would attend to protest “the wearing of masks
and personal protection.” When he arrived on site, Schiavone called him and
requested assistance in the entryway with eight or nine people, including the
defendant, who were trying to enter without masks. Porter testified that the
crowd was “boisterous,” repeatedly telling the officers that “it wasn’t right” that
they could not enter without masks.

When Porter explained to the defendant that she “was not allowed into the
performing arts center without wearing a mask,” she told him that she was going
to enter without a mask and that he could not stop her. As Porter saw the
defendant walking toward the auditorium, he said, “you can’t go in there” and
reached out and grabbed either her arm or a sign that she was holding. She
responded “you can’t touch me” and forced her way into the auditorium. Porter
then told her that she was under arrest. When she pulled her arms away as he
was attempting to handcuff her, he advised her that he would also arrest her for
resisting arrest if she “continued on.” After she then allowed herself to be
handcuffed, she was placed inside a cruiser where she refused to give her name.
While Porter was attempting to book the defendant, he received a call for backup
at the performing arts center. He responded and learned that the meeting was
now being held on Zoom.

As a result of her actions, the defendant was charged with two offenses:
class B misdemeanor criminal trespass and class B misdemeanor disorderly
conduct. Following a bench trial, the court ruled that the State had met its
burden of proof to establish that the defendant was guilty of criminal trespass:

The meeting was proper[ly] held in a place, here a public building,
and the Defendant was ordered twice by a police officer to not enter
without a mask pursuant to a posted requirement. Sergeant Porter
had sufficient authority to keep everyone masked to allow for the
meeting to be conducted in a safe and peaceful manner. The
Defendant defied the order and walked a few feet into the auditorium
in defiance of an order not to enter without a mask and personally
communicated to her by Sergeant Porter.

The court then found the defendant guilty on both charges but
“conditionally dismissed” the disorderly conduct charge until such time as
appellate rights are exhausted “because these facts are very similar to the facts
alleged in the criminal trespass charge and, much like an alternative theory case,
the Court deems it just to enter a conviction and sentence on only one charge.”
This appeal followed.

In her challenge to the trial court’s ruling, the defendant advances two
main arguments: (1) the trial court “erred by taking jurisdiction over a civil
dispute that was misclassified by the arresting officer as a crime”; and (2) the
court erred “by refusing to recognize the irrevocable license of the defendant, an
invitee, to enter and remain in a public accommodation during normal business
hours.” Although the State contends that the defendant has failed to sufficiently
brief her challenge, we will address her main arguments on the merits.

RSA 635:2 (Supp. 2023) provides:

I. A person is guilty of criminal trespass if, knowing that he is
not licensed or privileged to do so, he enters or remains in any place.

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 II. Criminal trespass is a misdemeanor for the first offense and a
class B felony for any subsequent offense if the person knowingly or
recklessly causes damage in excess of $1,500 to the value of the
property of another.

III. Criminal trespass is a misdemeanor if:

(a) The trespass takes place in an occupied structure as
defined in RSA 635:1, III; or

(b) The person knowingly enters or remains:

(1) In any secured premises;

(2) In any place in defiance of an order to leave or
not to enter which was personally communicated to
him by the owner or other authorized person;

....

A challenge to the sufficiency of the evidence raises a claim of legal
error; therefore, our standard of review is de novo. State v. Bell, 175 N.H. 382,
385 (2022). To prevail on this challenge, the defendant must establish that no
rational trier of fact, viewing all of the evidence and all reasonable inferences from
it in the light most favorable to the State, could have found guilt beyond a
reasonable doubt. Id.

Citing State v. Jones, 172 N.H. 774 (2020), the defendant first argues
that her conviction cannot stand because the State did not establish that she
“had any reason to know or believe that she was not licensed or privileged to
patronize Timberlane Regional School Board since [she] had consent to be on
the premises during its normal business hours, as an invitee, as were other
patrons at the time.” Our decision in Jones does not provide support for her
argument. In Jones, we were asked to determine whether the defendant was
seized during an encounter with the arresting officers. Jones, 172 N.H. at 775.
Because the officer who interacted with the defendant at the time of the stop
did not testify at the suppression hearing, we concluded that the trial court
had insufficient evidence to determine whether the officer “explicitly
communicated that he was restraining the defendant’s freedom through a show
of authority.” Id. at 777-78.

In contrast, in this case, the evidence, viewed in the light most favorable
to the State, establishes that the defendant knew that she was not licensed or
privileged to enter the performing arts auditorium without a mask. In its
agenda, the school board asked attendees to wear masks. There was a sign
stating this requirement posted on the door to the performing arts center.
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Porter testified that he communicated “directly” to the defendant that she “was
not allowed into the performing arts center without wearing a mask.” In
addition, Schiavone testified that he heard Porter say, “no, you cannot go in.”
He then heard someone say, “I’m going.” He observed “a female walking
towards the doorway to enter into the auditorium itself” and Porter “right
behind her saying, no, you cannot go in there; come back; stop.” Schiavone
identified the defendant at trial as the female that he had observed. As we
have often observed, the trial court is tasked with determining the credibility of
witnesses; we will affirm its assessment if supported by the evidence. See State
v. Gourlay, 148 N.H. 75, 78 (2002) (credibility of witnesses is for trial court to
determine); State v. Monegro-Diaz, 175 N.H. 238, 244 (2022) (concluding that
trial court’s credibility finding was reasonable and supported by the evidence).
In this case, the evidence supports the trial court’s ruling.

The defendant argues that Porter did not have authority to order her to
leave the premises. See State v. Ruff, 155 N.H. 536, 539 (2007) (observing that
because criminal trespass statute does not define “authorized person,”
consultation with dictionary for ordinary meaning is merited). The term
“authorized” commonly means, inter alia, “endowed with authority.” Id. (citing
Webster’s Third New International Dictionary 147 (unabridged ed. 2002)). And
“authority” means the “power to require and receive submission.” Id. (citing
Webster’s Third New International Dictionary 146 (unabridged ed. 2002)). The
defendant’s challenge to Porter’s authority is contradicted by the evidence
presented at trial. The school board chair testified that the school
superintendent had asked the Plaistow Police Department to be present before
and during the school board meeting. Both officers testified that they were
asked to be present to enforce the requirement that individuals on school
property wear masks.

The defendant also argues that the case should have been dismissed
because “[r]efusing to wear a surgical mask as a condition for attending a
public meeting at Timberlane Regional School Board is not a crime.” The
school board did condition the license or privilege to enter the auditorium on
wearing a mask, and it authorized the Plaistow Police Department to enforce
the policy. Because the defendant entered the auditorium without license or
privilege, she was arrested for criminal trespass. See RSA 635:2. To the extent
that the defendant argues that the school board lacked authority to impose
such a condition, it is her burden on appeal to demonstrate that the trial court
erred by failing to rule that the school board lacked such authority. Having
carefully reviewed the defendant’s arguments in her brief, we conclude that she
has failed to demonstrate such error.

To the extent that the defendant’s brief may be construed to raise other
issues, her arguments are undeveloped; accordingly, we decline to address
them. See State v. Blackmer, 149 N.H. 47, 49 (2003) (without developed legal

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argument, “a mere laundry list of complaints regarding adverse rulings by the
trial court” is insufficient to warrant appellate review).

The State presented sufficient evidence to establish all of the elements of
criminal trespass. See RSA 635:2, III(b). Accordingly, we conclude that the
defendant has failed to satisfy her burden of proving that no rational trier of
fact could have found her guilty beyond a reasonable doubt. See, e.g., Ruff,
155 N.H. at 540.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred; HICKS, J., did not participate in the final vote, see N.H.
CONST. pt. II, art. 78.

Timothy A. Gudas,
Clerk

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