State v. Owen

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll
Case No. 2023-0498
Citation: State v. Owen, 2026 N.H. 5

THE STATE OF NEW HAMPSHIRE

v.

RANDY OWEN

Argued: November 6, 2025
Opinion Issued: February 10, 2026

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Robert L. Baldridge, assistant attorney general, on the brief and
orally), for the State.

Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief
and orally), for the defendant.

DONOVAN, J.

¶1 The defendant, Randy Owen, appeals his conviction, following a jury
trial in Superior Court (Attorri, J.), on one count of harassment, see RSA 644:4,
I(e) (2016), based upon a voicemail message that he left for a summer camp
following an alleged trespass by the camp’s counselors onto his property. He
argues that the trial court erred by: (1) denying his motion to dismiss based

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upon the insufficiency of the evidence; (2) admitting testimony about security
measures the camp took in reaction to the voicemail message; and (3)
instructing the jury that a conditional statement is a “threat” if it “has a
reasonable tendency to create apprehension” in the recipient. We conclude
that the trial court erred by admitting the testimony about the camp’s response
to the defendant’s voicemail message and, accordingly, reverse and remand.

I. Facts

¶2 The jury could have found, or the record supports, the following
facts. The defendant owns a house on Farm Island, which is located on Lake
Winnipesaukee in Tuftonboro. YMCA Camp Belknap, an overnight summer
camp, also owns property on the island. There have been numerous disputes
between the defendant and the camp in the past.

¶3 The defendant often stayed overnight on the island despite his house
not having electricity. On June 21, 2021 at approximately 11:00 p.m., he
awoke to the sound of breaking branches, voices, and laughter. He looked out
the window and saw lights shining into the trees. When he walked outside, he
observed a group of people approaching his house. He yelled, screamed, and
shined his flashlight toward them. The group turned around and returned to
the camp’s property on the other side of the island.

¶4 Following this encounter, the defendant called the Tuftonboro Police
Department, but nobody answered. The defendant then called the camp and
left the following voicemail message:

This is Randy Owen from Farm Island. These f**king kids are in
my backyard, 10 feet from my house. You better get them the f**k
out of here or I will shoot them. You got to keep control of these
little bastards. They broke all my windows and they’re ruining my
camp. You keep them off from my land. They were here, they
weren’t 15, 20 feet from my house trying to break in and the lights
were out and I’m in here, and the little bastards were caught red-
handed, so you make sure those little bastards don’t come near my
camp. I will see you tomorrow.

Based upon this voicemail message, the State charged the defendant with
harassment.

¶5 At trial, the jury heard the recording of the voicemail message, as
well as testimony from a Tuftonboro police officer, the directors of the camp,
and the defendant. One of the camp directors testified about his reaction to
the defendant’s voicemail message and the security measures the camp
implemented in response. The defendant raised multiple objections to this
testimony, arguing that any reactions and security measures taken by the

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camp were not relevant and that the evidence’s “prejudice greatly outweighs
any relevance.” The trial court overruled the defendant’s objections but
instructed the State to lead the witness to avoid detailed testimony about the
steps the camp took in response to the defendant’s voicemail message.

¶6 After the State rested, the defendant moved to dismiss, arguing that
the State failed to introduce sufficient evidence that the defendant left the
voicemail message “[w]ith the purpose to annoy or alarm another” as required
by RSA 644:4, I(e). The trial court denied the motion. The jury subsequently
convicted the defendant, and this appeal followed.

II. Analysis

A. Sufficiency of the Evidence

¶7 We first address the defendant’s argument that the evidence was
insufficient to support his conviction. A challenge to the sufficiency of the
evidence raises a question of law, which we review de novo. State v. Seibel, 174 N.H. 440, 445 (2021). When considering such challenges, “we objectively
review the record to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt,
considering all the evidence and all reasonable inferences therefrom in the light
most favorable to the State.” State v. Saintil-Brown, 172 N.H. 110, 117 (2019).
“We examine each item of evidence in the context of the entire case, and not in
isolation.” Seibel, 174 N.H. at 445. “The trier of fact may draw reasonable
inferences from facts proved as well as from facts found as the result of other
inferences, provided they can be reasonably drawn therefrom.” Id. “Because
the defendant chose to present a case, we review the entire trial record to
determine the sufficiency of the evidence.” Id.

¶8 “[W]hen, as here, evidence of an element is solely circumstantial, the
circumstantial evidence must exclude all reasonable conclusions other than
the defendant’s guilt.” State v. Harris, 177 N.H. 473, 484 (2025), 2025 N.H.
32, ¶30. “The proper analysis is not whether the evidence excludes every
possible conclusion consistent with innocence, but whether it has excluded all
reasonable conclusions other than guilt.” Seibel, 174 N.H. at 445. “We do not
determine whether the defendant has suggested another possible hypothesis
that could explain the events in an exculpatory fashion.” Id. “Rather, we
evaluate the evidence in the light most favorable to the State and determine
whether the alternative hypothesis is sufficiently reasonable that a rational
trier of fact could not have found proof of guilt beyond a reasonable doubt.” Id.
“Where solely circumstantial evidence is at issue, the critical question is
whether, even assuming all credibility resolutions in favor of the State, the
inferential chain of circumstances is of sufficient strength that guilt is the sole
rational conclusion.” Id. (quotation and brackets omitted).

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[¶9] RSA 644:4, I(e) provides:

A person is guilty of a misdemeanor, and subject to prosecution in
the jurisdiction where the communication originated or was
received, if such person . . . [w]ith the purpose to annoy or alarm
another, communicates any matter containing . . . a threat to the
life or safety of another.

“A person acts purposely with respect to a material element of an offense when
his conscious object is to cause the result or engage in the conduct that
comprises the element.” RSA 626:2, II(a) (2016). When intent is not conceded
by the defense, and it is an element of the crime, it is sufficiently at issue to
require evidence at trial. State v. Pepin, 156 N.H. 269, 279 (2007).

¶10 The defendant argues that the State introduced insufficient
evidence to prove that he left the voicemail message “[w]ith the purpose to
annoy or alarm another,” RSA 644:4, I(e), rather than to express “his fear and
transient anger.” The State counters that the record contains sufficient
evidence to establish this element of the harassment charge. We agree with the
State.

¶11 First, the jury heard evidence that the defendant and the camp had
an acrimonious relationship. The defendant testified that he had been involved
in six lawsuits opposing the expansion of the camp’s firing range. He also
testified that he believed the camp had blocked him from buying his property
for two years and that the camp wanted his land. Specifically, he testified to
his belief that the camp’s director “knew all about” a plan whereby the
counselors “would go in and vandalize that [house] so that [the] prior owner
would discount the price and the camp would get the land.” From this
evidence of past conflicts between the defendant and the camp, the jury could
have reasonably inferred that the defendant had a motive to annoy or alarm.
See State v. Kim, 153 N.H. 322, 328 (2006) (“Motive has been defined as
supplying the reason that nudges the will and prods the mind to indulge in
criminal intent.”).

¶12 Second, the jury could have inferred from the language and tone of
the voicemail message that the defendant acted with the purpose to annoy or
alarm the camp. In the audio recording of the message, which was played
three times at trial, the jury heard the defendant yell that the camp “better get
[the kids] the f**k out of here or I will shoot them.” The defendant also said
that the camp needed to “make sure those little bastards don’t come near [his
house].” Finally, he ended the message by saying: “I will see you tomorrow.” A
reasonable juror could conclude from the language and tone of the voicemail
message that the defendant’s purpose in leaving the message was to annoy or
alarm the camp.

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[¶13] Third, the defendant testified at trial that the camp “should’ve been
alarmed” by the voicemail message. He testified that he “would’ve said
anything” and “would’ve done anything” because he feared for his life. This
testimony also supports a reasonable inference that the defendant left the
message to alarm the camp and warn it to keep its staff and campers away
from his property, particularly when considered in light of his testimony that
he blamed the camp for vandalizing the house prior to his purchase of the
property. See State v. Dunbar, 177 N.H. 375, 377, 382-83 (2025), 2025 N.H.
26, ¶¶3, 19 (considering defendant’s statement after charged incident that “he
could see how [his posts] would put someone at fear” in assessing whether he
possessed the requisite mens rea (quotation omitted)). This evidence, viewed in
the light most favorable to the State, excludes the conclusion that the
defendant left the voicemail message with the purpose to express his “fear and
transient anger” and not with the purpose to alarm the camp.

¶14 In State v. Hanes, we rejected a similar argument. State v. Hanes, 171 N.H. 173, 177-79 (2018). There, the defendant, who had previously
complained to the town about the town’s snow plowing, left a voicemail
message for the town administrator in which he said, among other things, that
he would “start shooting these [plow drivers] if they keep this up!” Id. at 175-
76. The defendant appealed his conviction for improper influence, arguing that
his “purpose was not to cause extreme fear, but rather to use strong words to
convey his frustration.” Id. at 176-78 (quotations omitted). We disagreed,
concluding that the defendant’s statement “conveyed threats of violence with
the intent of influencing the town administrator’s implementation of the town’s
snow plowing procedures” and that “the evidence was . . . sufficient to establish
that the defendant subjectively intended his words to be understood by the
recipient as a threat.” Id. at 181.

¶15 Here, the defendant made similarly threatening statements, yelling
that the camp “better get [the kids] the f**k out of here or [he] will shoot them.”
Although he contends that he left the voicemail message only to express “fear
and transient anger,” we are not persuaded that a reasonable trier of fact was
required to believe that contention. The defendant testified that the group
likely approached his house, which was dark, without realizing he was inside.
He further testified that the group stopped when he yelled at them and that
they were leaving his property by the time he called the police and the camp.
This testimony supports the inference that the defendant knew any immediate
danger had passed by the time he left the voicemail message for the camp.
Therefore, viewing the record in the light most favorable to the State, we
conclude that the evidence excludes all reasonable conclusions other than that
the defendant left the voicemail message with a “purpose to annoy or alarm.”
RSA 644:4, I(e).

¶16 The defendant argues that the State introduced insufficient
evidence that his words “amounted to a true threat to commit a crime” to

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establish that he acted with the purpose to annoy or alarm. In recent cases,
we have relied upon federal jurisprudence to define true threats. See, e.g.,
Dunbar, 177 N.H. at 381-82, 2025 N.H. 26, ¶¶15-16 (discussing true threats
under Federal Constitution where argument under State Constitution not
developed); Hanes, 171 N.H. at 179 (defendant failed to preserve argument
under State Constitution). Here, the defendant does not argue that we should
adopt a different definition under the State Constitution. Accordingly, we will
rely upon the United States Supreme Court’s definition of true threats under
the Federal Constitution.

¶17 “Under the Federal Constitution, true threats are a category of
speech not entitled to constitutional protection.” Dunbar, 177 N.H. at 382,
2025 N.H. 26, ¶17. “True threats are ‘serious expression[s]’ conveying that a
speaker means to ‘commit an act of unlawful violence.’” Counterman v.
Colorado, 600 U.S. 66, 74 (2023) (quoting Virginia v. Black, 538 U.S. 343, 359
(2003)). “The speaker need not actually intend to carry out the threat.” Black,
538 U.S. at 359-60. “The existence of a threat depends not on ‘the mental
state of the author,’ but on ‘what the statement conveys’ to the person on the
other end.” Counterman, 600 U.S. at 74 (quoting Elonis v. United States, 575
U.S. 723, 733 (2015)).

¶18 Although we agree with the defendant that RSA 644:4, I(e) requires
the communication of a true threat, see Dunbar, 177 N.H. at 382, 2025 N.H.
26, ¶17, we nonetheless conclude that the State introduced sufficient evidence.
In particular, there was sufficient evidence that the camp understood the
defendant’s voicemail message as conveying that the defendant “mean[t] to
commit an act of unlawful violence.” Counterman, 600 U.S. at 74 (quotation
omitted). After the State played the audio recording of the defendant’s
voicemail message, the camp’s director testified that he and other staff
members were “alarmed, shaken, and scared, and shocked by . . . the tone and
accusations that were . . . in [the defendant’s] voicemail.” The director further
testified that he “had to figure out how to mitigate the potential threat that was
communicated on that voicemail and manage that safety for the summer of
2021.” From this evidence, the jury could have reasonably concluded that the
defendant communicated a true threat. See id. In addition, the defendant’s
testimony that the camp “should’ve been alarmed” supports a finding that the
defendant was at least reckless in issuing the true threat. See id. at 79-80
(speaker must act recklessly in making true threat); Dunbar, 177 N.H. at 382,
2025 N.H. 26, ¶17. Therefore, we conclude that there was sufficient evidence
that the defendant communicated “a threat to the life or safety of another” with
the prescribed mental state — “to annoy or alarm.” RSA 644:4, I(e).

B. Evidentiary Issue

¶19 Next, we address the defendant’s argument that the trial court
erred by admitting evidence regarding the camp’s response to the voicemail

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message. More specifically, the defendant asserts that the camp director’s
testimony about increased security measures the camp took following the
defendant’s voicemail message was irrelevant to the issue of the defendant’s
intent and that the probative value of such evidence was outweighed by a
substantial risk of unfair prejudice.

¶20 We review the trial court’s evidentiary rulings for an unsustainable
exercise of discretion. State v. Gordon, 161 N.H. 410, 414 (2011). To
demonstrate that the trial court exercised unsustainable discretion, the
defendant must show that the ruling was clearly untenable or unreasonable to
the prejudice of his case. State v. Yates, 152 N.H. 245, 249 (2005). When
determining whether an evidentiary ruling constitutes a proper exercise of
judicial discretion, we consider whether the record establishes an objective
basis to sustain the discretionary judgment made. Harris, 177 N.H. at 480,
2025 N.H. 32, ¶18.

¶21 Evidence is relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” N.H. R. Ev. 401. “Irrelevant evidence
is not admissible.” N.H. R. Ev. 402. The fact of consequence at issue in this
case is whether the defendant acted with the mental state required by RSA
644:4, I(e). “A defendant’s intent often must be proved by circumstantial
evidence and may be inferred from the defendant’s conduct under all the
circumstances.” State v. Vincelette, 172 N.H. 350, 354 (2019). We have
recognized that “the victim’s reaction to the threat may be circumstantial
evidence relevant to the element of intent.” State v. Fuller, 147 N.H. 210, 215
(2001).

¶22 At trial, the camp’s director testified that the staff was “alarmed,
shaken, and scared, and shocked by the . . . tone and accusations that were
. . . in that voicemail.” The defendant objected, arguing that the camp
director’s reaction was irrelevant. The trial court properly overruled the
objection based upon the court’s determination that the camp director’s
reaction to the defendant’s voicemail message is circumstantial evidence that is
relevant to whether the defendant acted with “the purpose to annoy or alarm
another.” RSA 644:4, I(e). Moreover, as we have noted, evidence of the camp’s
reaction is relevant to whether the defendant’s statements constituted a threat.
See Dunbar, 177 N.H. at 382, 2025 N.H. 26, ¶17; Counterman, 600 U.S. at 74.

¶23 The camp’s director subsequently testified that, in response to the
defendant’s message, the summer camp stopped using its property on Farm
Island in 2021. He described the closure of the camp’s portion of the island as
“a huge loss” because the camp had previously used part of the island, as well
as the nearby portion of the lake, as a “safe area” for kayaking, sailing,
canoeing, and swimming. The director also testified that he “had to manage
those risks and newly educate the staff on what those were and how to make

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sure we never escalated any of those threats that came out of that voicemail.”
Following the defendant’s further objection, the trial court instructed the State
to lead the director to testify that the camp ceased its use of Farm Island but
not “how much money they spent or anything.” The director then explained
that the camp “had to increase [its] security management systems in a variety
of ways,” including communicating “externally with . . . parents of campers.”

¶24 The defendant maintains that the trial court erred by allowing the
camp’s director to testify about security measures — including the closure of
the Farm Island property and increased “security management systems” — the
camp took in response to the defendant’s voicemail message. He asserts that
“whatever probative value [the evidence] may have had, it was substantially
outweighed by the emotional and prejudicial impact on the jury.”

¶25 New Hampshire Rule of Evidence 403 provides: “The court may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” N.H. R. Ev. 403. “Evidence is unfairly prejudicial if its
primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense
of horror, provoke its instinct to punish, or trigger other mainsprings of human
action that may cause a jury to base its decision upon something other than
the established propositions in the case.” Gordon, 161 N.H. at 414.

¶26 Unfair prejudice is not a mere detriment to a defendant from the
tendency of the evidence to prove guilt, in which sense all evidence offered by
the prosecution is meant to be prejudicial. Id. Rather, the prejudice required
to predicate reversible error is an undue tendency to induce a decision against
the defendant on some improper basis, commonly one that is emotionally
charged. Id. at 414-15. Among the factors we consider in weighing the
evidence are: (1) whether the evidence would have a great emotional impact
upon a jury; (2) its potential for appealing to a juror’s sense of resentment or
outrage; and (3) the extent to which the issue upon which it is offered is
established by other evidence, stipulation or inference. Id. at 415.

¶27 The probative value of evidence establishing the measures the camp
took in response to the defendant’s voicemail message was limited in this case.
See id. at 415 (“Relevant evidence may have limited probative value.”). In light
of the audio recording of the voicemail message, testimony regarding the
defendant’s animosity toward the camp, and the evidence of the camp
director’s reaction to the defendant’s message, evidence of the security
measures the camp implemented added little incremental probative value to
the State’s case. See State v. Mitchell, 166 N.H. 288, 294 (2014) (assigning
evidence “little incremental probative value” when the record contained other,
more probative evidence relevant to establishing the same proposition).

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[¶28] The danger of unfair prejudice, however, was significant. We agree
with the defendant that this testimony, describing the security measures the
camp took in response to the defendant’s message, may have “appeal[ed] to
[the jury’s] sense of resentment or outrage” — specifically, its disapproval of the
defendant’s disruption of the camp’s activities — rather than allowing the jury
to reach its verdict based solely upon the alleged criminal conduct. Gordon,
161 N.H. at 415; see Zola v. Kelley, 149 N.H. 648, 655-56 (2003) (determining
under Rule 403 that the trial court erred in admitting evidence because “it
could have caused the jury to base its verdict on disapproval of the plaintiff”).
As the defendant points out, “it is difficult to imagine how evidence of curtailing
children’s summer camp activities would not . . . generate resentment among
jurors.” We conclude that the limited probative value of the testimony
regarding the security measures taken in response to the defendant’s voicemail
message was substantially outweighed by the danger of unfair prejudice. See
N.H. R. Ev. 403.

¶29 Nevertheless, the State argues that any error was harmless beyond
a reasonable doubt. To establish harmless error, the State must prove beyond
a reasonable doubt that the error did not affect the verdicts. State v.
Boudreau, 176 N.H. 1, 11 (2023). This standard applies to both the erroneous
admission and exclusion of evidence. Id. We consider the alternative evidence
presented at trial as well as the character of the erroneously admitted evidence
itself. Id. To determine whether the State has proven beyond a reasonable
doubt that an error did not affect the verdict, we must evaluate the totality of
the circumstances at trial. Id. at 11-12.

¶30 The factors that we have considered when assessing whether an
error did not affect the verdict include, but are not limited to: (1) the strength of
the State’s case; (2) whether the admitted or excluded evidence is cumulative or
inconsequential in relation to the strength of the State’s case; (3) the frequency
of the error; (4) the presence or absence of evidence corroborating or
contradicting the erroneously admitted or excluded evidence; (5) the nature of
the defense; (6) the circumstances in which the evidence was introduced at
trial; (7) whether the court took any curative steps; (8) whether the evidence is
of an inflammatory nature; and (9) whether the other evidence of the
defendant’s guilt is of an overwhelming nature. Id. at 12. No one factor is
dispositive. Id. This court may consider factors not listed above, and not all
factors may be implicated in a given case. Id.

¶31 The State argues, among other things, that the other evidence of
the defendant’s guilt was overwhelming. We disagree. As we have discussed,
the evidence that the defendant left the voicemail message “[w]ith the purpose
to annoy or alarm another,” RSA 644:4, I(e), consisted of the audio recording of
the voicemail message, testimony regarding past disputes between the camp
and the defendant, and testimony by the investigating officer that the
defendant wanted the camp’s director to be “held accountable.” In addition, as

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the State observes, the defendant testified that the camp “should’ve been
alarmed” by the message.

¶32 The defendant denies, however, that he had the requisite mental
state when leaving the voicemail message. When describing the circumstances
that led him to call the camp, he testified that a group of people were charging
toward his house carrying sticks. He testified that he “screamed and yelled” to
defend himself and was “shocked, petrified” when he saw people outside. He
further testified that these events unfolded quickly, he feared for his life, and
he hoped to contact “anyone who could help [him] in that desperate situation.”
When the police did not answer his call, he called the camp and left the
voicemail message to “communicate to stay off [his] property.” The defendant’s
case hinged upon the jury’s credibility determination and resolution of any
inconsistencies in the defendant’s testimony regarding his purpose in leaving
the voicemail message. See State v. Woodbury, 172 N.H. 358, 364 (2019).

¶33 We disagree with the State that the evidence of the defendant’s guilt
was overwhelming, particularly in light of the conflicting evidence offered
regarding the defendant’s intent. Having considered the totality of the
circumstances, we cannot conclude beyond a reasonable doubt that the trial
court’s error in admitting the challenged testimony was harmless. See State v.
Reynolds, 136 N.H. 325, 328-29 (1992) (not harmless error when prejudicial
testimony may have influenced credibility determination upon which case
turned). Accordingly, we reverse the trial court’s ruling on the admissibility of
the evidence of the security measures the camp took in response to the
defendant’s voicemail message and remand for a new trial.

C. Jury Question

¶34 Given that we are reversing the defendant’s conviction, we need not
address the defendant’s remaining arguments. In the interest of judicial
economy and because the issue is likely to arise on remand, however, we will
address the defendant’s argument that the trial court erred in its response to a
jury question about the definition of the term “threat” and whether a
conditional statement constitutes a threat. See State v. Brooks, 177 N.H. 264,
272 (2025), 2025 N.H. 12, ¶19.

¶35 The response to a jury question is left to the sound discretion of the
trial court. Goudreault v. Kleeman, 158 N.H. 236, 250 (2009). We review the
court’s response under the unsustainable exercise of discretion standard. Id.
“To show that the trial court’s decision is not sustainable, the defendant must
demonstrate that the court’s ruling was clearly untenable or unreasonable to
the prejudice of his case.” State v. Deschenes, 156 N.H. 71, 82 (2007). The
party challenging an instruction must show that it was a substantial error that
could have misled the jury regarding the applicable law. Goudreault, 158 N.H.
at 250. The instruction must be judged as a reasonable juror would probably

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have understood it. Id. We review the trial court’s answer to a jury inquiry in
the context of the court’s entire charge to determine whether the answer
accurately conveys the law on the question and whether the charge as a whole
fairly covered the law of the case. Id.

¶36 As previously stated, RSA 644:4, I(e) penalizes a person who, “[w]ith
the purpose to annoy or alarm another, communicates any matter containing .
. . a threat to the life or safety of another.” The trial court instructed the jury
that:

[I]n order to convict the Defendant of harassment, the State must
prove the following elements beyond a reasonable doubt: One, that
the Defendant communicated a threat to the life or safety of
another person. And two, that the Defendant acted with the
purpose to annoy or alarm another person.

The trial court defined the phrase “acted purposefully” and the term
“communicate.”

¶37 During its deliberations, the jury submitted the following written
question to the trial court: “Can you please provide the legal definition of a
threat? If a conditional statement is made, does that constitute a threat?” The
trial court responded: “Yes. The term ‘threat’ can include a conditional threat,
if it has a reasonable tendency to create apprehension that the speaker will act
in accordance with its terms.” The defendant argues that the trial court
inaccurately characterized the law because the question of whether a
conditional statement constitutes a threat depends not on the recipient’s
understanding of the statement but, rather, whether the speaker specifically
intended that the statement be understood as a threat.

¶38 “True threats are serious expressions conveying that a speaker
means to commit an act of unlawful violence.” Counterman, 600 U.S. at 74
(quotations and brackets omitted). “[A] statement can count as such a threat
based solely on its objective content.” Id. at 72. Contrary to the defendant’s
assertion, however, the “existence of a threat depends not on the mental state
of the author, but on what the statement conveys to the person on the other
end.” Id. at 74 (quotations omitted); see also Elonis, 575 U.S. at 733.
“Whether the speaker is aware of, and intends to convey, the threatening
aspect of the message is not part of what makes a statement a threat.”
Counterman, 600 U.S. at 74. “When the statement is understood as a true
threat, all the harms that have long made threats unprotected naturally
follow.” Id.

¶39 In Counterman, the Court determined that for a true threat to fall
outside the protections of the First Amendment, the speaker must have been at
least reckless in issuing the true threat. See id. at 79-80. Therefore, we

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disagree with the defendant that, in response to the jury’s question, the trial
court should have instructed that, for a statement to constitute a true threat,
the speaker must have “specifically intended or desired for the statement to be
understood as a real and imminent threat.” The State must prove that the
“speaker is aware that others could regard his statements as threatening
violence and delivers them anyway.” Id. at 79 (quotations omitted).

¶40 Although the defendant argues that “mere ‘apprehension’ is
insufficient to support the level of fear necessary for the jury to find that the
defendant will act in accordance with his words,” he acknowledges that
“apprehension” could “support a conviction for reckless conduct.”
Apprehension means “[f]ear as to what may happen; dread.” Oxford English
Dictionary,
https://www.oed.com/dictionary/apprehension_n?tab=meaning_and_use#298
016 (last visited Feb. 9, 2026). “True threats subject individuals to ‘fear of
violence’ and to the many kinds of ‘disruption that fear engenders.’”
Counterman, 600 U.S. at 74 (quoting Black, 538 U.S. at 360). Thus, if the
recipient reasonably apprehends or fears that the speaker will act in conformity
with the speaker’s statement — here, threatening to shoot the camp’s staff or
campers — the recipient also understands that the speaker “means to commit
an act of unlawful violence.” Id. (quotation omitted); see Elonis, 575 U.S. at
733. In other words, the recipient’s fear or apprehension results from his or
her understanding that the speaker’s statement conveys an intent to commit
the act threatened. Accordingly, we conclude that the trial court’s use of the
word “apprehension” was appropriate within the context of its response to the
jury’s question.

¶41 In addition, we conclude that the trial court’s response to the jury’s
second question, which asked whether a conditional statement constitutes a
threat, accurately stated the law. Despite its conditional nature, the camp
could have understood the defendant’s statement — “You better get them the
f**k out of here or I will shoot them” — as a serious expression that the
defendant meant to “commit an act of unlawful violence.” Counterman, 600
U.S. at 74 (quotation omitted); see Hanes, 171 N.H. at 178 (concluding that
language of statute criminalizing improper influence did not “preclude threats
that are based upon the occurrence of a future event”). As Judge Posner
explained, “[m]ost threats are conditional; they are designed to accomplish
something; the threatener hopes that they will accomplish it, so that he won’t
have to carry out the threats.” United States v. Schneider, 910 F.2d 1569,
1570 (7th Cir. 1990).

III. Conclusion

¶42 In sum, we conclude that the trial court erred by admitting
testimony regarding the security measures implemented by the camp in
response to the defendant’s voicemail message and that the error was not

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harmless beyond a reasonable doubt. We therefore reverse and remand for
further proceedings consistent with this opinion.

Reversed and remanded.

MACDONALD, C.J., and GOULD, J., concurred.