State v. Moscone
13 A.3d 137
| N.H. | 2011Background
- Moscone was convicted of two counts of RSA 649-B:4 I(a) (computer services to entice a minor) based on online chats with someone he believed to be under 16.
- Detective Niven posed as a 14-year-old girl in Yahoo chat as “jordanh94,” and Moscone used the screen name “poolplaya03867.”
- Moscone pursued the chats over several weeks, sent a photo of himself, and discussed meeting for sex, including particular time and vehicle.
- An undercover meeting was arranged for June 11, 2008 at Merrill Park; officers observed a silver sedan matching Moscone’s description and arrested the driver after confirming identity as John Moscone.
- The State previously engaged in an undercover 2006 chat with “amber14nh” in which Moscone claimed he was from Rochester; that prior conduct informed police leads.
- During trial, issues arose about the mental state required for conviction, admissibility of identity evidence from an illegal arrest, and the use of a transcript of internet chats; the court ultimately reversed and remanded on those issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mental-state requirement for RSA 649-B:4 I(a) | State argued knowingly applies to all elements; no need for purposeful state. | Moscone urged that “attempt” imports purpose and renunciation under RSA 629:1. | Knowingly applies to all elements; not importing the attempt statute or purposeful mens rea. |
| Indictment sufficiency for a purposeful mental state | State may proceed without a purposeful state. | Indictments required a purposeful mental state for “attempt.” | Not persuasively proven; court treated analysis under the statute’s plain meaning. |
| Admissibility of identity evidence from illegal arrest | Identity obtained via license could be admitted as non-fruit of the illegal arrest. | Such identity testimony should be suppressed as fruit of an unlawful arrest. | Driver’s license and related identity testimony excluded; remand for potential in-court identification by officers. |
| RSA 570-A:2 transcript of chats | Transcript admissible if consent to recording existed. | Consent element questionable given self-censorship requests to delete archives. | Consent to recording implied by use of instant messaging; transcript properly admitted. |
Key Cases Cited
- State v. Thiel, 160 N.H. 462 (2010) (statutory interpretation; plain meaning governs; context matters)
- State v. Kousounadis, 159 N.H. 413 (2009) (when statute prescribes culpability, applies to all material elements unless contrary purpose appears)
- State v. Jennings, 159 N.H. 1 (2009) (computer-crime statute purpose and evolution; legislative history relevant)
- State v. Laporte, 157 N.H. 229 (2008) (interpretation of the term ‘solicitation’ in criminal statute; no automatic importation of attempt law)
- State v. Kilgus, 125 N.H. 739 (1984) (required purposeful mental state for witness tampering under statute; first exploration of intent in related contexts)