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THE SUPREME COURT OF NEW HAMPSHIRE 

___________________________ 

Hillsborough - northern judicial district 

No. 2012-644 

THE STATE OF NEW HAMPSHIRE 

v. 

ADAM MUELLER 

Argued: November 13, 2013 

Opinion Issued: February 11, 2014 

 Joseph A. Foster, attorney general (Lisa L. Wolford, attorney, on the brief 

and orally), for the State. 

 Law Office of Brandon D. Ross, PLLC, of Manchester (Brandon D. Ross 

on the brief and orally), for the defendant. 

 LYNN, J. Following a jury trial, the defendant, Adam Mueller, was 

convicted of three counts of felony wiretapping. See RSA 570-A:2, I(a) (Supp. 

2012). On appeal, he argues that the Superior Court (Brown, J.) committed 

plain error by instructing the jury that a violation of the felony wiretapping 

statute requires a mental state of “purposely,” when the statute specifically 
2

identifies “wilfully” as the applicable mental state.1 The State agrees that the 

trial court’s instruction as to the requisite mens rea was erroneous, but asserts 

that reversal of the defendant’s convictions is not warranted because the 

prerequisites for application of the plain error doctrine have not been met. We 

reverse and remand. 

 The limited record reflects the following facts. The defendant is the 

founder of Copblock.org (Copblock), a self-described police accountability 

website. On October 4, 2011, the defendant called three individuals seeking 

comment on an incident that occurred at West High School in Manchester 

involving a student and a police officer. The individuals contacted by the 

defendant were Captain Jonathan Hopkins of the Manchester Police 

Department; Mary Ellen McGorry, Principal of West High School; and Denise 

Michael, assistant to Principal McGorry. The defendant videotaped himself 

making the telephone calls, recorded the calls, and posted the recordings on 

Copblock. The defendant did not ask any of the individuals for their 

permission to record the conversations, nor did he advise them that he was 

doing so. A few months later, while speaking on a local radio show, the 

defendant commented that he did not tell Captain Hopkins, Principal McGorry, 

or Ms. Michael that he recorded their conversations, prompting the Manchester 

Police Department to investigate the matter further. 

 The defendant was charged with three counts of felony wiretapping, with 

each count alleging that he had “purposely” recorded a telephone conversation 

without the consent of all the participants. After a one-day trial, at which the 

defendant represented himself and did not testify, the jury found the defendant 

guilty of each charge. 

 The defendant argues that the trial court erred by instructing the jury 

that a violation of the felony wiretapping statute requires a mental state of 

“purposely,” when the statute specifically states: “A person is guilty of a class 

B felony if . . . without the consent of all parties to the communication, the 

person . . . [w]ilfully intercepts . . . any telecommunication or oral 

communication.” RSA 570-A:2, I(a) (emphasis added). Because the defendant 

did not object at trial to the court’s definition of the crimes as requiring a 

purposeful mens rea, he raises the issue on appeal as plain error. “The plain 

error rule allows us to exercise our discretion to correct errors not raised before 

the trial court.” State v. Moussa, 164 N.H. 108, 118 (2012) (quotation omitted); 

Sup. Ct. R. 16-A (“A plain error that affects substantial rights may be 

considered even though it was not brought to the attention of the trial court or 

the supreme court.”). 

 

1 In his brief, the defendant also argued that, because he was a party to the conversations which 

formed the basis of the charges against him, his conduct constituted, at most, misdemeanor level 

offenses proscribed by RSA 570-A:2, I-a (Supp. 2013). However, at oral argument, the defendant 

explicitly abandoned this argument. We therefore do not address it.
3

For us to find plain error: (1) there must be error; (2) the error 

must be plain; and (3) the error must affect substantial rights. . . . 

If all three of these conditions are met, we may then exercise our 

discretion to correct a forfeited error only if the error meets a 

fourth criterion: the error must seriously affect the fairness, 

integrity or public reputation of judicial proceedings. This rule is 

used sparingly, however, and is limited to those circumstances in 

which a miscarriage of justice would otherwise result. 

Moussa, 164 N.H. at 118 (quotation omitted). 

 The State concedes that the first two prongs of the plain error test are 

met in this case, i.e., that the trial court erred, and that the error was plain. 

We agree. “The purpose of the trial court’s charge is to state and explain to the 

jury, in clear and intelligible language, the rules of law applicable to the case.” 

State v. O’Leary, 153 N.H. 710, 712 (2006). When reviewing jury instructions, 

“we evaluate allegations of error by interpreting the disputed instructions in 

their entirety, as a reasonable juror would have understood them, and in light 

of all the evidence in the case.” State v. Prudent, 161 N.H. 320, 324 (2010) 

(citation omitted). 

 Although under RSA 626:2, IV (2007) a requirement that an offense be 

committed “wilfully” is generally satisfied if the defendant “acts knowingly with 

respect to the material elements of the offense,” this statute merely establishes 

a default rule that is subject to exceptions where “a purpose to impose further 

requirements appears” in the statute defining the crime. See Fischer v. 

Hooper, 143 N.H. 585, 588 (1999). Our decision in Fischer clearly established 

that the default definition of wilfully — that it is the equivalent of knowingly — 

is not the mens rea that applies to violations of RSA 570-A:2, I. Id. at 588-89. 

In Fischer, we were required to determine what the legislature meant when it 

specified “wilfully” as the mental state for the felony wiretapping offense, see 

RSA 570-A:2, I, given that the legislature had imposed a “knowing” mental 

state for the misdemeanor wiretapping offense, see RSA 570-A:2, I-a. Fischer, 

143 N.H. at 588. Because it had “used two different words to describe the 

mens rea for felony and misdemeanor conduct,” we concluded that the 

legislature could not have intended the same mental state to apply to both 

offenses. Id. Accordingly, we held “that the legislature did not intend to 

impose a mens rea of ‘knowingly’ in RSA 570-A:2, I.” Id. Instead, noting that 

RSA chapter 570-A closely tracks the pre-1986 version of the federal wiretap 

statute, 18 U.S.C.§ 2511(1), we followed Citron v. Citron, 722 F.2d 14 (2d Cir. 

1983), the leading federal case, in concluding that: 

“wilfully” in RSA 570-A:2, I, means that the defendant must act 

with an intentional or reckless disregard for the lawfulness of his 
4

conduct. In other words, the defendant has not violated RSA 570-

A:2, I, if he has “a ‘good faith’ belief that [his] conduct was lawful.” 

Fischer, 143 N.H. at 589 (alteration in original) (citation omitted); see 

also Karch v. Baybank FSB, 147 N.H. 525, 532 (2002). 

 Here, the erroneous mental state of purposely merely required the State 

to show that the defendant had the “conscious object” to record the 

conversations without the consent of all the parties. See RSA 626:2, II(a) 

(2007). However, it did not require the State to prove that the defendant was 

either aware of or recklessly ignorant of the fact that recording the 

conversations without consent was against the law, the very proof that was 

required in order to establish that he acted wilfully.2 In light of the applicable 

definition of wilfully, then, the trial court erred by instructing the jury that 

“purposely,” rather than “wilfully,” was the proper mental state required to 

establish a violation of RSA 570-A:2, I(a). The error also was plain, as it was 

“clear” and “obvious” that the trial court instructed the jury on the incorrect 

mental state. See State v. Guay, 162 N.H. 375, 384 (2011) (“Plain is 

synonymous with clear or, equivalently, obvious.” (quotation omitted)). 

 We next consider whether, under the third prong of the plain error test, 

the trial court’s error affected the defendant’s substantial rights. “Generally, to 

satisfy the burden of demonstrating that an error affected substantial rights, 

the defendant must demonstrate that the error was prejudicial, i.e., that it 

affected the outcome of the proceeding.” State v. Lopez, 156 N.H. 416, 425 

(2007). The third prong of the plain error test is similar to the harmless error 

analysis we use to evaluate preserved claims of error, with one important 

distinction: whereas the State bears the burden under harmless error analysis, 

the defendant bears the burden under the plain error test. See United States v. 

Gamory, 635 F.3d 480, 494 (11th Cir. 2011). We will find prejudice under the 

third prong when we cannot confidently state that the jury would have 

returned the same verdict in the absence of the error. See id. (finding that the 

defendant did not show prejudice under the third prong when the court was 

“able to conclude with fair assurance . . . that the judgment was not 

substantially swayed by the error” (quotation omitted)). 

 The defendant argues that the error was prejudicial because the 

improper jury instruction lessened the State’s burden of proof regarding the 

applicable mental state, thus allowing the jury to convict him based simply 

upon its finding that he specifically intended to record the conversations 

 

2 Significantly, our construction of wilfully as requiring an intentional or reckless disregard for the 

lawfulness of one’s conduct represents a departure from the usual rule that ignorance of the law 

is not an excuse for criminal conduct. See State v. Stratton, 132 N.H. 451, 457 (1989) (“It is 

elementary, as well as indispensable to the orderly administration of justice, that every man is 

presumed to know the laws of the country in which he dwells.” (quotation omitted)). 
5

without consent, without properly considering whether he knew or was 

recklessly ignorant of the fact that his actions were unlawful. The State 

responds that the evidence would have permitted the jury to infer that the 

defendant did know that the recordings were unlawful and, therefore, that the 

erroneous instruction as to the required mens rea did not affect the outcome of 

the trial. We find the State’s argument unconvincing. 

 To support its position, the State primarily relies upon statements made 

by the defendant during his opening and closing remarks to the jury and on 

the testimony of Captain Hopkins. In his opening statement, the defendant 

encouraged the jury to determine its verdict based not upon the trial court’s 

instructions, but rather upon what it thought was “right.” In his closing 

argument, the defendant told the jury, “I haven’t denied the fact that I did not 

tell these people that I was filming them. I’ll say that again: I did not tell them 

that I was filming them.” The defendant went on to state: 

I know [the prosecutor] would like you to believe that I’m asking 

you to allow me to break the law, but that’s just not true. I’m 

asking you to decide if this law applies to public officials or to use 

jury nullification . . . . We should not have to tell public officials 

we’re recording them, because everything a public official does is 

public information, plain and simple. And that’s why I feel I’m not 

guilty of these charges. 

 Even if we put aside the fact that opening and closing remarks are not 

evidence — a point which the trial court made clear to the jury in its final 

instructions — we do not believe that these statements were tantamount to a 

confession by the defendant that he knew that his conduct was illegal. The 

State generally claims that the defendant’s reference to jury nullification in 

both statements showed that he knew that his conduct violated the law and, 

thus, that he acted wilfully. However, the State takes the jury nullification 

argument out of context. During its opening statement, the State specifically 

told the jury that the mental state for the felony wiretapping statute was 

“purposely.” When the defendant then urged the jury not to follow the law and 

instead to consider jury nullification — because public officials should not have 

to be told they are being recorded — he was not necessarily saying that he 

knew it was against the law to record conversations with such officials without 

their consent. Rather, he might well have been saying that even though it was 

his conscious object to record the conversations without consent, the jury 

should find that this conduct was not unlawful because the law should not 

apply to conversations with public officials. Simply put, when considered in 

context, the defendant’s jury nullification argument is not singularly 

susceptible to the inference that he admitted to knowing that his conduct was 

unlawful, and therefore that he acted wilfully. 
6

 The State’s reliance upon Hopkins’s testimony also is unavailing. During 

cross-examination by the defendant, Hopkins testified that he had been 

recorded by Copblock members in the past, and had been told that he was 

being recorded. The State argues that the jury could have inferred from this 

testimony that the defendant knew it was unlawful to record conversations 

without consent, as other members of Copblock had sometimes notified 

Hopkins that they were recording him. However, the State did not further 

develop Hopkins’s statement on redirect examination, nor did it present any 

other evidence to link Hopkins’s past experience with Copblock members to the 

defendant. For example, there was no evidence about how many times 

Hopkins had been recorded by Copblock members, whether he was always told 

by other Copblock members when he was being recorded, or what the 

defendant’s relationship was with other Copblock members. We think it 

doubtful that the jury reasonably could have inferred the defendant’s willful 

mental state based upon Hopkins’s limited testimony regarding his past 

experience with other Copblock members. 

 The State also argues more generally that, based upon the defendant’s 

status as a founder of Copblock and his work with that organization, the jury 

could have inferred that he was familiar with wiretap law and thus knew that it 

was unlawful to record conversations without consent. However, because the 

State did not consider the defendant’s knowledge regarding the lawfulness of 

his conduct to be at issue during the trial, the record contains minimal 

evidence detailing the defendant’s activities or experience with Copblock. 

 Finally, the State points to the fact that the defendant did not defend 

against the charges based upon the claim that he acted with the good faith 

belief that his conduct was lawful. The State argues, in essence, that the 

absence of such a defense would have permitted the jury to infer that the 

defendant was aware that his conduct was unlawful. We are aware of no 

authority supporting the proposition that a jury may properly infer guilt based 

upon a defendant’s failure to present a defense that would have been 

immaterial to the question of guilt or innocence under the theory on which the 

State proceeded — here, that it need only show the defendant acted purposely. 

 To summarize, although the evidence was overwhelming that it was the 

defendant’s conscious object to record the conversations without the consent of 

all parties, there was minimal evidence concerning whether the defendant 

knew or was recklessly ignorant of the fact that his conduct was unlawful. In 

this regard, this case is distinguishable from State v. Ortiz, 162 N.H. 585 

(2011). In that case, the defendant argued that the trial court committed plain 

error by instructing the jury that the mens rea for the FSA charge was 

“knowingly” instead of “purposely.” Id. at 591. We held that the plain error 

test was not satisfied, despite the instruction on the incorrect mental state, as 

“the evidence that the defendant acted purposely was overwhelming and 
7

essentially uncontroverted.” Id. at 592. Here, unlike in Ortiz, the evidence of 

the correct wilful mental state was not overwhelming and essentially 

uncontroverted. Thus, we cannot state with confidence that the jury would 

have found the defendant guilty if it had been properly instructed to decide 

whether the defendant “wilfully” recorded the conversations without consent. 

Accordingly, we find the third prong of the plain error test satisfied, as the 

erroneous instruction likely affected the outcome of the proceedings. 

 We next consider whether the fourth prong has been satisfied. Under the 

fourth prong, we must decide whether the trial court’s error “seriously affect[s] 

the fairness, integrity, or public reputation of judicial proceedings.” Moussa, 

164 N.H. at 118. We limit our exercise of discretion under the fourth prong to 

“those circumstances in which a miscarriage of justice would otherwise result.” 

Id. In State v. Russell, we declined to exercise our discretion under the fourth 

prong of the plain error rule because there was “overwhelming and essentially 

uncontroverted evidence” of the defendant’s guilt. State v. Russell, 159 N.H. 

475, 492 (2009). As demonstrated above, the evidence of the defendant’s wilful 

mental state at the time he recorded the conversations was far from 

overwhelming. Thus, there is the very real prospect that the jury would have 

returned different verdicts had it been properly instructed. Cf. United States v. 

Paul, 37 F.3d 496, 500 (9th Cir. 1994) (finding the plain error test satisfied 

where the district court improperly instructed the jury on the different mental 

state requirements of voluntary and involuntary manslaughter, for in doing so 

the district court “created a substantial risk that [the defendant] was convicted 

of voluntary manslaughter, even though the jury may have believed the killing 

was neither intentional nor extremely reckless”). To allow the convictions to 

stand under these circumstances “would seriously affect the fairness and 

integrity of judicial proceedings.” Guay, 162 N.H. at 384. Accordingly, we 

reverse the convictions and remand for a new trial. 

 Reversed and remanded. 

 DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.