LEBANON — In a blow to state prosecutors, a New Hampshire District Court judge has dismissed the stalking charge against a former Lebanon police investigator involving messages to a woman with whom he once had been romantically involved, determining that the messages did not rise to the level of “true threats.”

In a five-page order dated Jan. 5, Judge Michael Garner dismissed the single misdemeanor count of stalking against Richard Smolenski, who was fired from the Lebanon Police Department in 2021 after an investigation determined he had sent anonymous messages to a former Department of Corrections employee with whom he once had an affair, threatening to release embarrassing personal information about her.

Although Garner acknowledged that state prosecutors could prove that the recipient of Smolenski’s messages, Nicole Cremo, “was actually placed in fear by these communications,” he nonetheless concluded that the state “could not prove that these communications were ‘true threats’ and that no finder of fact could find beyond a reasonable doubt that these statements would cause a reasonable person to fear for their own personal safety.”

The decision is the culmination of a case that had its roots in an a three-year, off-and-on relationship between the Lebanon police lieutenant and the then-community corrections lieutenant with the Grafton County Department of Corrections. The relationship turned ugly in 2020 when Smolenski sent anonymous emails and Snapchat messages to Cremo threatening to release intimate photos of her unless she agreed to lie to Smolenski’s wife about their affair.

“My argument from the beginning is that the original complaint did not represent a prima facie case of stalking,” Anthony DiPadova, a Claremont defense attorney who represented Smolenski, said on Tuesday. “Stalking requires a ‘true threat,’ meaning a threat to the person’s safety. And in this case the only threat that was alleged was to release embarrassing information.”

Cremo immediately suspected the messages had originated from Smolenski, with whom she was on increasingly strained terms. She told investigators the messages “terrified her” because of what they portended. But Garner, in his opinion, concluded that they did not meet the legal standard of ‘true threat” in light of both U.S. Supreme Court rulings and state court rulings.

In essence, Garner found that Smolenski’s words in themselves were not enough to constitute a “true threat” but would have required additional credible evidence or information of impending violence to sustain the charge of cyberstalking.

“The (state’s) complaint in this case does not allege independent acts supplementing the claim of a credible threat to personal safety based on communications, nor does the plain and usual meaning of the communications permit interpretation as a statement of an intent to commit an act of ‘unlawful violence’ ” as in the landmark 2003 U.S. Supreme Court decision that found certain instances of cross burning did not violate free speech.

Garner also cited a Supreme Court decision last summer that makes it harder to convict someone threatening violence and a subsequent New Hampshire Supreme Court decision that specified “true threats” as “those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”

The judge’s decision largely comported with the arguments that DiPadova advanced in a motion to dismiss the charge and in oral argument before Garner in December.

Because the case never reached trial stage, the state can appeal Garner’s ruling to the New Hampshire Supreme Court.

Alex Smeaton, the Belknap County assistant county attorney, argued the state’s case since Grafton County state attorneys were conflicted due to Smolenski’s court appearances as a prosecution witness when he was a Lebanon police officer. Smeaton said his office had no comment.

During the December oral argument, Smeaton emphasized that Smolenski’s threatening messages to Cremo should be taken in their entirety even if they did not specifically threaten violence.

“Whether these things are a true threat is dependent on what was contained (in the messages),” Smeaton told the court. “And, yes, the simple act of saying, ‘I’m gonna expose personal information to your boss,’ might not be a threat of violence, but when you (include) the course of conduct in this case, any reasonable person would be afraid for their safety. … This isn’t something that is merely an annoyance. It is seriously distressing.”

But DiPadova said the back-to-back court decisions — federal and state — last June buttressed Smolenski’s motion to dismiss. (DiPadova filed his motion in July after the two rulings last summer.)

“Although those two cases didn’t really create new law, they did further define what a true threat is,” he said.

Lindsay Nadeau, an attorney with Orr & Reno in Concord who represents Cremo, said on Tuesday she had no comment “at this time.”

The current occupation of Smolenski, of Bridgewater, N.H., is not known, but New Hampshire Secretary of State records show that he registered a company, RJS Building LLC, in 2021.

Cremo left the Grafton County House of Corrections last year and now works as a security manager at a New Hampshire hospital.

Contact John Lippman at jlippman@vnews.com.