State of New Hampshire v. Antonios N. Dimoulas

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0486, State of New Hampshire v. Antonios
N. Dimoulas, the court on July 30, 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). Following a jury trial in the Superior Court (Schulman, J.),
the defendant, Antonios N. Dimoulas, was convicted on multiple counts of
stalking and violations of a protective order. On appeal, he challenges the
sufficiency of the evidence. We affirm.

The record contains the following evidence. The victim and the
defendant lived together from 2007 until 2015. The victim obtained an order of
protection against the defendant on June 25, 2018. The order prohibited the
defendant from contacting the victim in any way. It expired on June 24, 2019.
In June 2019, the circuit court extended the order of protection for one year.
In September 2019, the defendant texted and called the victim multiple times,
and left her a voicemail. In February 2020, the victim again received text
messages from the defendant. On each occasion, the victim went to the
Concord Police Department to report the contact. A Concord police officer then
confirmed that a civil protective order was in effect and spoke to the defendant
by telephone.

The defendant again texted the victim on April 2, April 3, and April 5,
2020. On April 5, 2020, the victim texted the defendant: “You’re not allowed to
contact me per legal orders. Stop.” The defendant, however, responded to that
message by text on April 5, and continued to text the victim on April 8, April
12, April 13, and April 14. The victim reported the continued contact to the
Concord Police Department on April 8, 2020 and April 14, 2020. On both
dates, a Concord police officer contacted the defendant after reviewing a copy of
the protective order. On April 8, Concord Officer Louk advised the defendant
that there was “an active protective order” and that he had an open warrant.
He responded that he would continue to get more warrants “because he would
try to continuously try to reach out to his children.” The victim received
additional text messages from the defendant after April 8. She sent them to
Louk who contacted the defendant again; the defendant stated that he did not
care about the protective order and did not care about the warrants that had
been issued in response to his continued violation of the order.
 As a result of his multiple contacts with the victim, the defendant was
indicted on 14 counts of class B felony stalking, see RSA 633:3-a, I(c) (2016)
and 14 counts of the lesser-included offense of misdemeanor violation of a
protective order, see RSA 173-B:9 (2022). Following a two-day jury trial, he
was convicted on six stalking charges and ten violation of protective order
charges. The trial court imposed concurrent 105-day stand committed
sentences on the four violation of protective order convictions which were not
lesser-included offenses of the felony stalking convictions, and suspended
concurrent sentences on the six stalking convictions.

On appeal, the defendant does not dispute that he communicated with
the victim on any of the cited dates. Rather, he argues that the charged
offenses require that the State prove that the service provisions of the
underlying statutes were satisfied. Specifically, he contends that the charged
offenses required that the State prove that the 2019 order extending the initial
protective order was “issued” and that “notice of it” was “provided,” “pursuant
to” or “under” RSA chapter 173-B. Accordingly, he contends, “the State had to
prove that a ‘written cop[y]’ of the order extending the protective order was ‘sent
to [his] last address of record.’” See RSA 173-B:8, II (2022) (providing that
orders, other than temporary orders, shall be sent to the defendant’s last
address of record). He further asserts that “[t]o the extent this issue is not
preserved, it constitutes plain error.” To accept his argument would require
that we add language to the statutes that define the charged offenses that the
legislature did not include. See State v. Zhukovskyy, 174 N.H. 430, 434 (2021)
(when resolving issue of statutory construction, court will interpret legislative
intent from statute as written and will not add language that legislature did not
see fit to include).

To convict the defendant on the charged stalking offenses, the State was
required to prove that the defendant “[a]fter being served, or otherwise provided
notice of, a protective order pursuant to RSA 173-B, RSA 458:16, or paragraph
III-a of this section, . . . purposely, knowingly, or recklessly engage[d] in a
single act of conduct that both violates the provisions of the order and is listed
in [RSA 633:3-a, II(a)].” RSA 633:3-a, I(c) (2016); see RSA 633:3-a, II(a)(7)
(2016) (course of conduct includes any act of communication as defined in RSA
644:4, II). RSA 173-B:9, III addresses the State’s burden when a defendant is
charged with the violation of a protection order. It provides in relevant part: “A
person shall be guilty of a class A misdemeanor if such person knowingly
violates a protective order issued under this chapter.” Neither of the charged
offenses requires that a specific notice process be satisfied.

At the close of the evidence, the jury was instructed that the violation of
a protective order charges had four elements: (1) the defendant was subject to a
protective order issued by the circuit court under RSA 173-B:1; (2) the
defendant was served, or otherwise provided notice of the protective order; (3)
after receiving notice of the protective order, the defendant violated the order;

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(4) the defendant acted knowingly with respect to the first three elements. The
court further explained that to prove the defendant acted “knowingly,” the
State had to prove that he was “[a]ware the order was issued, aware the order
remained in effect, aware he was violating it -- aware, aware, aware.” The jury
was then instructed that the stalking charges had five elements: (1) the
defendant was subject to a protective order issued by a court under 173-B; (2)
the protective order prohibited the defendant from having contact with another
person: (3) the defendant was served or was otherwise provided notice of the
protective order; (4) the defendant violated the protective order by
communicating with the other person; and (5) the defendant acted knowingly
with respect to the first four elements. At the close of the instructions, the trial
court confirmed with counsel that they had no objection to its instructions.

As the trial court observed, the jury found the defendant not guilty of all
charges based on his acts up to and including April 3 and guilty of all stalking
and violation of protective order charges based on his actions beginning on
April 5. Having reviewed the record before us, we affirm the defendant’s
convictions.

Affirmed.

MacDonald, C.J, and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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