State v. Gubitosi

Duggan, J.

The defendant, Steven Gnbitosi, appeals his conviction for one count of stalking, see RSA 633:3-a, 1(a) (Supp. 2004), following a jury trial in the Superior Court (Manias, J.). We affirm.

The jury could have found the following facts. The defendant began dating the victim, Martha Rubin, during the summer of 2000. Rubin ended their relationship in April 2002. Soon thereafter, Rubin began receiving *675telephone calls from the defendant on her home telephone and cell phone. During the summer of 2002, the defendant called Rubin numerous times each day. The calls “started to become threatening in nature,” making Rubin fear for her safety. She changed the locks on her doors several times and often felt as though she was being followed.

On July 11, 2002, Rubin spoke to Officer William Dexter at the Concord Police Department about the telephone calls. She also described a recent incident in which the defendant had appeared at her home, asked her to step outside for a moment, then took her hand and placed it on the small of his back, where he had a firearm secured. While Rubin was talking with Officer Dexter, the defendant called her cell phone. Officer Dexter, who knew the defendant from his work as a police officer in Pembroke, took the phone and told the defendant that Rubin did not want to receive any more calls from him and that if he continued to call her, the police would file charges against him. Despite the officer’s warnings, the defendant continued to telephone Rubin.

On September 19, 2002, Rubin and her boyfriend, Brian Kane, went to Zack’s restaurant in Tilton to meet their friend, Kathleen Companion, for dinner. While Rubin and Kane were sitting in the bar area waiting for Companion to arrive, they saw the defendant’s gold Lincoln Town Car drive through the parking lot. Rubin and Kane both recognized the car and the license plate number. Rubin also saw the driver’s profile and the flash of his glasses. She testified that seeing the defendant’s car that night made her feel “[fjearful, angry, [and] frustrated.” Rubin and Kane then moved into the dining area of the restaurant where they could watch over Kane’s car, which had been damaged in the past.

Companion arrived at the restaurant shortly before 8:00 pm and sat with Rubin and Kane in the dining area. Companion went to the bar to get a drink. The bartender was on the telephone. The bartender passed the phone to a waitress, who spoke briefly on the phone and then asked Companion if her name was Martha. When Companion replied that it was not, the waitress said that the person on the telephone was asking for Martha Rubin. Companion took the telephone from the waitress, listened briefly and recognized the person on the other end as the defendant. She told him to “[k]nock it off” and to “grow up,” then the phone went dead. The defendant’s cellular telephone records show that the defendant called the number for Zack’s restaurant at 8:03 pm that night.

Companion returned to the table and told Rubin about the phone call. Companion then called the defendant and left him a message on his voicemail. When the defendant returned the call, he denied that he had called the restaurant and driven through the parking lot.

*676In October 2002, as part of its investigation into Rubin’s allegations against the defendant, the Attorney General’s office sent a subpoena duces tecum to U.S. Cellular. The subpoena required U.S. Cellular to provide “[sjubscriber toll information on outgoing phone calls” from April 12,2002, through October 18,2002, for the defendant’s cell phone number.

Prior to trial, the defendant filed a motion to suppress the phone records that U.S. Cellular had given to the State in compliance with the subpoena. The trial court denied the defendant’s motion.

On appeal, the defendant argues that: (1) -the trial court erred in admitting into evidence phone records obtained from U.S. Cellular; (2) the subpoena of the defendant’s phone records was overbroad; (3) the evidence presented at trial was insufficient to find guilt beyond a reasonable doubt; and (4) the defendant was improperly charged with an inchoate act as part of a course of conduct under the stalking law. See RSA 633:3-a, 11(a) (Supp. 2004).

The State argues that: (1) the defendant had no reasonable expectation of privacy in the telephone records obtained from U.S. Cellular; (2) the defendant does not have standing to challenge the breadth of the subpoena directed at U.S. Cellular and, even if he does, it was not overbroad; (3) the evidence at trial was sufficient to prove the defendant guilty beyond a reasonable doubt of stalking under RSA 633:3-a, 1(a); and (4) the defendant’s telephone call to the restaurant constituted an act as part of a course of conduct under RSA 633:3-a, 11(a). We agree with the State.

I. Subpoena of phone records

The defendant argues that the trial court should have suppressed the telephone records because the State obtained them without a warrant or probable cause in violation of his right to privacy under Part I, Article 19 of the New Hampshire Constitution. Our review of the trial court’s order on a motion to suppress is de novo, except as to any controlling facts determined at the trial court level in the first instance. State v. Goss, 150 N.H. 46, 47 (2003).

The defendant argues that he had a reasonable expectation of privacy in the telephone billing records obtained from U.S. Cellular. We recently adopted an expectation of privacy analysis for claims under Part I, Article 19: “[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Id. at 49 (quotation omitted); see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

*677In State v. Valenzuela, we held that the government’s use oí’ a pen register to record and disclose the numbers dialed from a telephone does not constitute a search under Part I, Article 19 of the State Constitution. State v. Valenzuela, 130 N.H. 175, 189 (1987), cert. denied, 485 U.S. 1008 (1988). We relied, in part, upon the United States Supreme Court’s holding in Smith v. Maryland, 442 U.S. 735, 745-46 (1979), that the use of a pen register is not a search within the meaning of the Fourth Amendment because the defendant has no legitimate expectation of privacy in the phone numbers dialed to make outgoing telephone calls. See Valenzuela, 130 N.H. at 184. Although we did not explicitly adopt an expectation of privacy framework under Part I, Article 19, we concluded that the defendant had no reasonable expectation of privacy in the information that was conveyed to the telephone company when he made an outgoing telephone call. Id. at 181.

With regard to pen registers, we noted that the coded signals sent from the defendant’s telephones to the phone company for the purpose of enabling it to connect a call must be distinguished from the contents of communications transmitted over the telephone company’s lines and addressed to the recipients of the completed call. Id. at 183. We observed that

[i]t is obvious, and is indeed undisputed, that no constitutionally protected privacy would have been infringed, and no search conducted, if the telephone company had informed the government of numbers orally communicated by [the defendant] to an operator____The same conclusion should follow by analogy when a pen register installed on the company’s wire informs the government of the decoded messages communicated to the company through the use of the company’s dialing and switching equipment. The only distinction between the two cases is the use of mechanical rather than human receptors of the message intended to inform the company of the caller’s desired connection, and such a distinction should make no difference for constitutional purposes.

Id. Thus, we concluded that when a defendant communicates information to the telephone company in order to make the telephone system work for him, there is no violation of a protected privacy interest when the record of that information is later disclosed. Id. at 188-89. Likewise, the defendant does not have a reasonable expectation of privacy in information concerning his cellular telephone calls that was recorded for billing *678purposes and retained by U.S. Cellular in the ordinary course of its business.

The defendant asks us to reconsider our holding in Valenzuela in light of our holding in Goss that a person has a reasonable expectation of privacy in garbage bags left in front of a residence for collection. See Goss, 150 N.H. at 49. He points to our observation in Goss that “[personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public” to support his argument that he has a reasonable expectation of privacy in the billing records held by U.S. Cellular. Id. (emphasis added).

We decline the defendant’s invitation to overrule Valenzuela for two reasons. First, “[t]he doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 504 (2003) (quotations omitted). Thus, when asked to reconsider a previous holding, the question is not whether we would decide the issue differently de novo, but “whether the ruling has ‘come to be seen so clearly as error that its enforcement was for that very reason doomed.’” Id. at 504-05 (quoting Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833, 85 (1992)).

The defendant has failed to demonstrate that our holding in Valenzuela meets this stringent standard. See id. He correctly notes that some States have declined to follow the Supreme Court’s holding in Smith and have instead held, under their respective state constitutions, that people have a legitimate expectation of privacy in the numbers they dial when making telephone calls. See, e.g., State v. Gunwall, 720 P.2d 808, 816 (Wash. 1986). We addressed these decisions and their criticisms of Smith in Valenzuela and concluded that “the Katz conception of protected privacy, if applied through article 19, would not limit the use of a pen register to obtain the numbers that a defendant dials on his telephone.” Valenzuela, 130 N.H. at 189. The defendant points to no other legal developments since Valenzuela that would justify abandoning our holding. While we agree with the dissent that there are persuasive policy arguments to overrule Valenzuela, “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” Casey, 505 U.S. at 864. Moreover, nothing in today’s decision prevents the legislature from closely regulating subpoenas for phone records. See RSA 7:6-b, 1(c) (2003) (requiring communication common carrier to furnish to the attorney general upon the written demand of the attorney general certain information that the attorney general “has reasonable grounds for belief *679that the service furnished ... has been, is being, or may be used for an unlawful purpose.”).

Second, we conclude that Goss is distinguishable. See Goss, 150 N.H. at 49. In Goss, we emphasized that the mere possibility that someone might open and rummage through garbage containers left out for regular collection does not negate the homeowner’s expectation of privacy in their contents. Id. We also noted that it is “reasonable to expect that those who are authorized to remove trash will do so in the manner provided by ordinance or private contract.” Id. at 50 (quotation omitted). The same considerations do not apply here. Rather, we hold that the defendant does not have a reasonable expectation of privacy in billing records that were never in his possession and that only contain information that he voluntarily conveyed to U.S. Cellular in order to make use of its telephone service. See Valenzuela, 130 N.H. at 189. The concurring opinion continues to disagree with Goss, which, of course, is settled law. The concurring opinion goes on to reiterate the major points in this opinion, providing additional citations that support our analysis and conclusion.

Finally, the defendant argues that he had a heightened expectation of privacy in the telephone billing records because he had an unlisted telephone number. In Smith, the petitioner similarly argued that he demonstrated a subjective expectation of privacy because he used the telephone in his house to the exclusion of all others. Smith, 442 U.S. at 743. The Supreme Court observed that

the site of the call is immaterial for purposes of analysis in this case____Regardless of his location, petitioner had to convey [the] number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.

Id. Likewise, the fact that the defendant used his cellular telephone, which had an unlisted number, to make the telephone calls has no bearing on whether he had a reasonable expectation of privacy in the billing records obtained from his telephone service provider.

II. Overbreadth of subpoena

The defendant also argues that, under Part I, Article 19 of the State Constitution and the Fourth Amendment to the United States Constitution, the telephone records should have been suppressed because the subpoena issued to U.S. Cellular was overbroad. The subpoena covered *680the period of time from April 12, 2002, through October 18, 2002. The defendant was later charged with stalking based upon incidents that occurred on September 19,2002. He argues that the subpoena should have been restricted to records for that date and that the trial court allowed the State to engage in a “fishing expedition.”

The State argues that the defendant lacks standing to pursue this claim because he does not have a legitimate expectation of privacy in the records obtained from U.S. Cellular. We agree.

The threshold question as to the determination of a party’s standing to challenge the introduction of evidence by means of a motion to suppress is whether any rights of the moving party were violated. State v. Flynn, 123 N.H. 457, 466 (1983). We first address the defendant’s claims under our State Constitution, and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983). A defendant may have standing based upon (1) being charged with a crime in which possession of an item or thing is an element, which confers automatic standing, or (2) having a legitimate expectation of privacy in the place searched or the item seized. See State v. Alosa, 137 N.H. 33, 36-37 (1993).

As discussed above, the defendant did not have a reasonable expectation of privacy in the records obtained from U.S. Cellular. Thus, we conclude that he does not have standing to claim that the subpoena was overbroad. See id. Because the Federal Constitution affords no greater protection in this context, we reach the same conclusion under the Federal Constitution as we do under the State Constitution. See Ball, 124 N.H. at 232; Smith, 442 U.S. at 745-46.

III. Sufficiency of evidence

The defendant argues that there was insufficient evidence to prove the acts alleged in the indictment that constitute a course of conduct for the stalking charge. In an appeal challenging the sufficiency of the evidence, the defendant carries the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Flynn, 151 N.H. 378, 382 (2004). We examine each evidentiary item in the context of all the evidence, not in isolation. Id. It is well settled that the jury has substantial latitude in determining the credibility of witnesses. Id. The jury may accept some parts and reject other parts of testimony, and adopt one or the other of inconsistent statements by witnesses. Id.

The defendant was convicted of one count of stalking. See RSA 633:3-a, 1(a). RSA 633:3-a, 1(a) provides:

*681A person commits the offense of stalking if such person ... [p]urposely, knowingly, or recklessly engages in a course of conduct targeted at a specific person which would cause a reasonable person to fear for his or her personal safety or the safety of a member of that person’s immediate family, and the person is actually placed in such fear.

A “course of conduct” is defined as “2 or more acts over a period of time, however short, which evidences a continuity of purpose.” RSA 633:3-a, 11(a). The indictment alleged two acts to prove a course of conduct: (1) the defendant drove to a restaurant where Rubin was; and (2) the defendant attempted to telephone her there after being told by police not to contact her. Whether the defendant engaged in a course of conduct targeted at Rubin that would cause a reasonable person to fear for his or her personal safety is a question of fact for the jury to decide. See State v. Scognamiglio, 150 N.H. 534, 536 (2004).

The following evidence was presented at trial to support the allegation that the defendant drove to the restaurant where Rubin was eating on September 19, 2002. Rubin and Kane testified that they saw the defendant’s gold Lincoln Town Car drive through the parking lot of Zack’s restaurant. Rubin testified that the car was approximately three car lengths away from her and that it was leaving the restaurant parking lot and turning onto the main road when she saw it. She also testified that she saw the driver’s profile and the flash of his glasses as the car passed in front of the restaurant window. Kane testified that he had seen the defendant’s car on several prior occasions, he was familiar with the license plate number and he had a good view of the defendant’s car and the license plate through the restaurant window.

With regard to the telephone call, Companion testified that the voice on the restaurant’s telephone sounded like the defendant’s voice. She testified that she listened to the speaker for a short amount of time, that Rubin’s name was mentioned, that she then identified herself as Kathy and told the person on the other end to “[k]noek it off’ and “grow up.” The telephone records, which were admitted into evidence, showed that the defendant had called the number for Zack’s restaurant that night. Officer Dexter also testified that he had spoken to the defendant previously and told the defendant that Rubin did not want to receive any more telephone calls from him and that she wanted to be left alone.

The evidence, viewed in the light most favorable to the State, supports the verdict of guilty. See id. at 537. A rational trier of fact could have found beyond a reasonable doubt that the defendant knowingly engaged in a course of conduct targeted at Rubin by driving through the *682parking lot of the restaurant where she was and then calling the restaurant and asking to speak to her. See RSA 633:3-a, 1(a). The defendant argues that the jury may have relied upon evidence that was equivocal, including Companion’s identification of his voice over the telephone, as well as evidence of uncharged conduct such as voicemail messages that the defendant left on Rubin’s phone. Although there may have been some inconsistencies in the evidence presented, “[i]t is the jury which observes the witnesses, judges their credibility and hears their testimony, accepting or rejecting it in whole or in part.” State v. Mason, 150 N.H. 53, 56 (2003) (quotation omitted). Likewise, once the evidence of uncharged conduct was ádmitted, the jury was entitled to use the evidence, consistent with the trial court’s instructions, as it saw fit. See State v. Monroe, 146 N.H. 15, 17 (2001). “Generally, in this State, the path a jury follows to a verdict and the evidence it considers while deliberating are not subject to the court’s control.” Id. Thus, we reject the defendant’s argument that the State failed to meet its burden of proving guilt beyond a reasonable doubt.

TV. Inchoate act

Finally, the defendant argues that he was improperly charged with an inchoate act under RSA 633:3-a, 11(a) (defining “[cjourse of conduct” for purposes of the stalking law). He contends that the allegation that he attempted to telephone Rubin at the restaurant is an attempted act and thus cannot be part of the course of conduct upon which the indictment was based.

In matters of statutory interpretation, we are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole. State v. Clark, 151 N.H. 56, 57 (2004). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Id. We construe Criminal Code provisions “according to the fair import of their terms and to promote justice.” RSA 625:3 (1996); see State v. Hudson, 151 N.H. 688, 690 (2005). “Our goal is to apply statutes in light of the- legislature’s intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme.” State v. Whittey, 149 N.H. 463, 467 (2003) (quotation omitted).

RSA 633:3-a, 11(a)(7) provides that a course of conduct may include any act of communication as defined in RSA 644:4, II (Supp. 2004). Under RSA 644:4, II, “communicates” means “to impart a message by any method of transmission, including but not limited to telephoning.” The statute does not require that the act of communication take place between the defendant and the intended victim. Thus, it was sufficient for the State *683to prove that the defendant telephoned the restaurant with the intent to impart a message to Rubin and that the telephone call was part of a course of conduct that reasonably made Rubin fear for her safety. See RSA 633:3-a, 1(a).

Affirmed.

Dalianis, J., concurred; BRODERICK, C.J., concurred specially; Nadeau and Galway, JJ., dissented.