State of New Hampshire v. Justin L. Roy , 167 N.H. 276 ( 2015 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2013-290
THE STATE OF NEW HAMPSHIRE
v.
JUSTIN L. ROY
Argued: May 8, 2014
Opinion Issued: January 16, 2015
Joseph A. Foster, attorney general (Stacey R. Kaelin, assistant attorney
general, on the brief and orally), for the State.
Sweeney Law Office, of Bedford (Shawn Sweeney on the brief and orally),
for the defendant.
BASSETT, J. The defendant, Justin L. Roy, appeals his conviction by a
jury on two counts of kidnapping, see RSA 633:1, I(c), II (2007); RSA 633:1, I-a,
II (2007), one count of first degree assault, see RSA 631:1, I(d) (2007), four
counts of second degree assault, see RSA 631:2, I(c)-(d) (Supp. 2013), one
count of criminal restraint, see RSA 633:2 (2007), and two counts of simple
assault, see RSA 631:2-a, I(a)-(b) (2007). On appeal, the defendant argues that
the Superior Court (Houran and Mangones, JJ.) erred by denying his: (1)
motion to suppress evidence obtained from his cellular telephone; (2) motions
in limine to both admit and exclude certain evidence; (3) motion to dismiss
during trial based upon the State’s alleged failure to timely disclose exculpatory
evidence; and (4) subsequent motions to dismiss and for a directed verdict in
which he alleged that there was insufficient evidence to convict. We affirm.
I
The jury could have found, or the record supports, the following facts. In
December 2011, Heather Downs and three of her children, child 1 (eleven
months old), child 2 (two years old), and child 3 (seven years old), lived with the
defendant in his mobile home in Albany. The defendant and Downs were in a
domestic relationship, but the defendant was neither the father nor the legal
guardian of the children.
After dinner on December 18, 2011, the three children fell asleep, and
the defendant went outside to his heated shed to work on a lawn mower. More
than one person testified that on that night the defendant drank several
alcoholic beverages and failed to take his prescription medications to treat his
depression and alcoholism. After visiting the defendant in the shed around
10:30 p.m., Downs checked on the children and fell asleep shortly thereafter.
Downs awoke around 2:00 a.m. and discovered that child 2 was no
longer inside the mobile home. She went outside and found that child 2 was
inside the shed with the defendant. Child 2 was wrapped in a blanket and
sleeping in a chair. In response to Downs’s request that the defendant bring
the child inside, he stated that he would do so in about 20 minutes. Downs
then went back inside the mobile home and fell asleep.
Around 4:15 a.m., Downs awoke. She looked outside and noticed that
shirts were covering the windows of the shed. Realizing that child 2 was
apparently still inside the shed, Downs went outside and knocked on the shed
door. Downs testified that when she did this, the defendant held the shed door
closed and would not let her in. Thereafter, she saw the defendant rushing
from the shed to the mobile home, carrying child 2, who was only wearing a
diaper in the below-freezing weather. The defendant put child 2 back in his
bed, and Downs fell asleep.
Around 5:00 a.m., the defendant woke everyone in the home by yelling.
The defendant screamed at child 1 and squirted both child 1 and Downs with
the contents of a bottle. The defendant then went to the couch where child 3
had been sleeping, and he jumped on the child’s legs, bruising them. As child
3 tried to get up, the defendant pushed him to the floor, causing the child to
injure his head and hand.
Downs then told the defendant that she and the children were leaving.
In response, the defendant went to where child 2 was sleeping, grabbed his
hand, and flung him to the floor. Child 2 failed to get up off of the floor. The
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defendant then picked child 2 up, brought him into the bathroom, and
commented that the child was “f***ed.” At this time, Downs noticed a bruise
on child 2’s head.
Downs was eventually able to bring the children outside to her car.
When she went back inside the home to retrieve some of her and her children’s
personal belongings, she asked the defendant about the bruise on child 2’s
head. The defendant replied that child 2 had fallen into the wall of the shed.
He also told Downs to “Get your f’ing kids out of here. They’re breathing up
and taking my air.”
Downs put her children in the car and drove away. After making several
stops, she drove to her mother’s house. While there, Downs noticed that child
2’s eyes were rolling back in his head and that he had multiple bruises on his
abdomen that she had not seen the day before. She also observed that child
2’s rectum was bruised. She then called Memorial Hospital in North Conway
and drove to the hospital, arriving there with her children shortly before 8 a.m.
When child 2 was taken into the emergency room, he was unresponsive,
with a low body temperature and low blood pressure, and near death. Due to
his condition, he was transported by helicopter to Maine Medical Center.
Doctors there discovered that child 2 had extensive bruising all over his body,
especially in his abdominal area. His pancreas was severely injured, and he
had lost approximately half of his blood due to internal bleeding. Part of his
bowel was torn, which had caused the contents of his bowel to spill into his
abdomen. Doctors performed multiple surgeries on him. During his recovery,
he required the use of a feeding tube for 11 months.
Child 2’s doctors testified that his injuries were not accidental and that
they resulted from more than one blow. One doctor observed that child 2’s
injuries were more severe than those commonly suffered by professional
boxers, and more extensive than the injuries that had been sustained by a
child that he had treated who had been involved in a high-speed, head-on car
accident. Additionally, a physician-expert testified that all of child 2’s injuries
were consistent with having occurred within 24 hours of being brought to the
hospital.
II
The defendant was charged with multiple counts of assault for his
actions involving all three children. He was also charged with multiple counts
of kidnapping and criminal restraint stemming from his actions toward child 2.
Prior to trial, the defendant filed a motion to suppress evidence obtained as a
result of a search of his cell phone that had been conducted pursuant to a
search warrant. The trial court denied the motion. The defendant also filed
several motions in limine seeking to: (1) exclude text messages obtained from
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Downs’s cell phone and “any reference to [the defendant] taking or ceasing to
take prescription medication” and (2) introduce evidence of alleged prior violent
acts committed by Downs against her children to show her “as the alternative
perpetrator.” The trial court denied these motions as well.
During trial, the defendant moved to dismiss the charges because of an
alleged Brady violation, based upon the State’s failure to timely disclose a
sealed motion to continue filed in the pending criminal case against Downs.
See Brady v. State of Maryland, 373 U.S. 83, 87 (1963) (requiring the
prosecution to disclose material exculpatory evidence to the accused). The trial
court denied this motion.
At the close of the State’s case, the defendant moved to dismiss all
charges, arguing that the State had introduced insufficient evidence to convict.
The trial court dismissed two charges, but denied the motion as to the
remaining ten charges. After the jury found the defendant guilty on the
remaining counts, the defendant moved to set aside the verdicts, renewing his
insufficiency claim. The trial court denied the motion, and this appeal
followed.
III
The defendant first argues that the trial court erred in denying his
motion to suppress text messages found on his cell phone. He contends that
the messages should have been suppressed because of the failure of the police
to comply with the statutory timing requirements for search warrant returns.
See RSA 595-A:7 (2001).
“When reviewing a trial court’s ruling on a motion to suppress, we accept
the trial court’s findings unless they lack support in the record or are clearly
erroneous. Our review of the trial court’s legal conclusions, however, is de
novo.” State v. Licks, 154 N.H. 491, 492 (2006) (quotation omitted).
RSA 595-A:7 provides that “[e]very officer to whom a warrant to search is
issued shall return the same to the court to which it was made returnable as
soon as it has been served, and in any event not later than 7 days from the
date of issuance thereof, with a return of his actions thereon.” In this case, the
original search warrant for the defendant’s cell phone was issued on December
22, 2011. On December 28, 2011, the State moved for a 30-day extension to
file the warrant’s return, which the court granted. The return was not made
until January 31, 2012.
The defendant asserts that the police violated RSA 595-A:7 by exceeding
the seven-day statutory time limit to return the warrant. He argues that,
because the statute does not provide for an extension of the deadline – unlike a
similar statute governing administrative warrants – the 30-day extension was
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invalid. Compare RSA 595-A:7 (containing no provision allowing for an
extension beyond seven days) with RSA 595-B:4 (2001) (requiring an
administrative warrant to be returned “in any event not later than 7 days from
the date of its issuance, unless extended or renewed by the justice . . . who
signed and issued the original warrant, upon satisfying himself that such
extension or renewal is in the public interest”). The defendant further argues
that, even if the extension was lawful, the search of his phone was illegal
because the warrant return was not made until after the extension had
expired. Thus, he contends that the trial court should have suppressed the
text messages derived from the search of the phone.
We need not decide whether a court has the power to grant an extension
of a search warrant return because we agree with the defendant that the police
violated RSA 595-A:7 by returning the warrant after the deadline. However, we
reject the defendant’s argument that suppression is required.
We first observe that the legislature has not seen fit to require the
exclusion of evidence based upon noncompliance with the technical
requirements of RSA 595-A:7. Cf. State v. Saide, 114 N.H. 735, 737-38 (1974)
(explaining that, unlike in other statutes, the legislature has not provided for
the exclusion of evidence for violations of RSA 595-A:5). This stands in
contrast with the explicit directives in other statutes. For example, in the
motor vehicle context, failure to comply with the requirements of RSA chapter
265-A renders the results of alcohol concentration tests inadmissible. See RSA
265-A:5, IV (2014).
Additionally, we have repeatedly “held that technical violations of RSA
chapter 595-A do not require suppression of the items seized.” State v. Brown,
125 N.H. 346, 351 (1984); see State v. Huffman, 154 N.H. 678, 682 (2007);
State v. Sands, 123 N.H. 570, 606 (1983); State v. Gilson, 116 N.H. 230, 234
(1976); Saide, 114 N.H. at 737-38. Had we misconstrued the statute, the
legislature presumably would have amended it in the 40 years since Saide;
because the legislature has not, we assume that our interpretation conforms to
legislative intent. See Ichiban Japanese Steakhouse v. Rocheleau, 166 N.H.
___, ___ (decided November 13, 2014) (assuming that our interpretation of a
statute conformed to legislative intent because legislature had not amended the
statute in the 16 years following the decision).
Here, the police violated RSA 595-A:7 by failing to return the warrant in
a timely fashion. Notably, the only challenge that the defendant makes to the
search warrant itself or the evidence obtained pursuant to that warrant relates
to the untimely warrant return. Because we conclude that the late return is
merely a technical violation of RSA 595-A:7, suppression of the evidence
obtained from the defendant’s cell phone is not required. See Saide, 114 N.H.
at 737-38.
5
We further note that, although the defendant alleges that the untimely
warrant return violates his “due process rights,” he has failed to develop this
argument sufficiently for our review. See State v. Young, 159 N.H. 332, 337
(2009). Accordingly, we need not address whether, and under what
circumstances, due process may require suppression of evidence based upon
noncompliance with the statute.
Finally, we invite the legislature to revisit the requirements set forth in RSA
595-A:7. As currently written, the statute fails to authorize extensions of warrant
returns. See RSA 595-A:7. Explicitly empowering courts to grant extensions
beyond the current seven-day statutory return period would make RSA 595-A:7
consistent with the statute governing returns of administrative warrants. See
RSA 595-B:4 (allowing the court to extend the return of inspection warrants
beyond the seven-day period if the extension “is in the public interest”).
Moreover, it would lessen the burden on law enforcement and the criminal justice
system in general by providing greater flexibility as to warrant return dates.
IV
The defendant next argues that the trial court erred by denying his
pretrial motion in limine to exclude several text messages contained on the cell
phone of Downs. He contends that the trial court erred in failing to exclude the
text messages pursuant to New Hampshire Rules of Evidence 403 and 404(b).
We disagree.
“The decision to admit or exclude evidence is within the discretion of the
trial court.” State v. Furgal, 164 N.H. 430, 438 (2012) (quotation omitted). “In
determining whether a ruling is a proper exercise of judicial discretion, we
consider whether the record establishes an objective basis sufficient to sustain
the discretionary decision made.” Id. (quotation omitted). “To show an
unsustainable exercise of discretion, the defendant must demonstrate that the
trial court’s ruling was clearly untenable or unreasonable to the prejudice of
his case.” Id. (quotation omitted).
At trial, the State offered into evidence three text messages that were
sent to Downs by the defendant. The first, sent on December 9, 2011, stated,
“I’m done helping you raise your retarded f***ing a**holes. The smart thing to
do would have been to drown them at birth. They are f***ed up for life.” The
second, sent on December 13, 2011, stated, “Yes, I think all your kids are ugly.
Don’t mean I didn’t love them. Yes, I think . . . [child 2] will be a faggot and
[child 3] will be a pedophile or [a] rapist. Your kids are f***ed up. Calling it
right.” The final text was sent at about noon on December 19,, 2011, when
Downs was at the hospital with her children, in which the defendant wrote,
“What’s going on? I didn’t do nothing or hurt no one.”
6
In denying the defendant’s motion to exclude these text messages, the
trial court determined that the text messages were probative of the defendant’s
state of mind, and that, given the “allegations of severely abusive conduct” in
this case, presenting them to the jury was not “unduly inflammatory” so as to
require suppression pursuant to Rule 403.
On appeal, the defendant maintains that all three text messages should
have been excluded pursuant to Rule 403. See N.H. R. Ev. 403. He asserts
that the probative value of the text messages is substantially outweighed by the
danger of unfair prejudice because the “primary purpose or effect” of the text
messages was to “arouse the jurors’ sense of horror and provoke their instinct
to punish,” which is prohibited by Rule 403. In response, the State argues that
the defendant has “failed to show the [court’s] rulings were clearly untenable or
unreasonable.” See Furgal, 164 N.H. at 438. We agree with the State that the
defendant has failed to satisfy his burden.
Rule 403 provides that “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of 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 on something other than the
established propositions in the case.” State v. Addison, 160 N.H. 493, 501
(2010). “Unfair prejudice is not, of course, 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. “The trial court is in the best position to gauge the
prejudicial impact of particular testimony, and what steps, if any, are
necessary to remedy that prejudice.” Id. at 502 (quotation omitted). “Thus, we
give the trial court broad latitude when ruling on the admissibility of potentially
unfairly prejudicial evidence.” Id.
Here, the defendant was charged with, among other crimes, kidnapping
and first degree assault. One of the kidnapping charges required proof that the
defendant acted with a purpose to terrorize child 2, see RSA 633:1, I(c), and the
first degree assault charge required proof that the defendant “recklessly”
caused serious bodily injury to child 2, see RSA 631:1, I(d). “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) (2007). “A person acts recklessly with respect to a
material element of an offense when he is aware of and consciously disregards
7
a substantial and unjustifiable risk that the material element exists or will
result from his conduct.” RSA 626:2, II(c) (2007).
The first two text messages, which were sent within a few days of the
incident, are probative of the defendant’s hostile feelings for the children. The
text messages, therefore, made it more probable than it would have been
without them, see N.H. R. Ev. 401, that the defendant acted with a “purpose to
terrorize” child 2 pursuant to the kidnapping charge, and to purposely and,
consequently, “recklessly” cause serious bodily injury to child 2 pursuant to
the assault charge. See RSA 626:2, III (2007) (stating that “[w]hen recklessness
suffices” to establish an element of an offense, “the element is also established
if the person acts purposely or knowingly”); see also State v. Bathalon, 146
N.H. 485, 489 (2001) (explaining that if the defendant acted “purposely or
knowingly, the defendant was by definition acting recklessly”). Although the
first two text messages may be prejudicial, given the nature of the crimes
charged, we conclude that the defendant has failed to establish that their
probative value was substantially outweighed by the danger of unfair prejudice.
See N.H. R. Ev. 403; State v. Hood, 131 N.H. 606, 608-09 (1989) (affirming trial
court’s decision pursuant to Rule 403 to admit, in a sexual assault case,
pictures “show[ing] naked individuals obviously intending to be provocative”
because pictures were not “significantly inflammatory” and jury was unlikely
“to be much affected by seeing merely indecorous depictions of human
nakedness”). Therefore, the trial court’s admission of these text messages was
sustainable.
As to the third text message, the defendant offers no developed argument
regarding its relevancy, and, instead, focuses on whether it is barred by Rule
403. Therefore, we deem any argument concerning the third text’s relevancy to
be waived, and we turn to the Rule 403 analysis. See State v. Fernandez, 152
N.H. 233, 239-40 (2005) (noting that an undeveloped legal argument “is
insufficient to warrant judicial review”). Unlike the first two text messages, we
conclude that the benign third text message suggests no unfair prejudice.
Therefore, the defendant has failed to show that the trial court’s ruling was
clearly untenable or unreasonable.
The defendant next argues that the text messages should have been
excluded under Rule 404(b) as inadmissible propensity evidence. See N.H. R.
Ev. 404(b). The State again counters that the defendant failed to satisfy his
burden of showing that the trial court’s admission of the text messages under
Rule 404(b) was an unsustainable exercise of discretion. See Furgal, 164 N.H.
at 438.
Rule 404(b) states that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted in
8
conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
N.H. R. Ev. 404(b). “To ensure that this rule is followed, we have held that
before a trial court admits ‘other crimes, wrongs, or acts’ evidence pursuant to
Rule 404(b), it generally must first determine: (1) that the evidence is relevant
for a purpose other than character or disposition; (2) that there is clear proof
that the defendant committed the prior act; and (3) that the probative value of
the evidence is not substantially outweighed by the danger of unfair prejudice
to the defendant.” State v. Belonga, 163 N.H. 343, 359 (2012).
Although we have considerable doubt as to whether the timing and
content of the third text message are such that it can be properly considered to
be a “prior bad act,” because the defendant argues that all three text messages
are prior bad acts, we will assume without deciding that the three text
messages constitute prior bad acts for the purpose of the Rule 404(b) analysis.
See State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing a verbal threat
under Rule 404(b)). As to the first prong, whether the text messages are
relevant for a purpose other than character or disposition, see Belonga, 163
N.H. at 359, the trial court determined that they were relevant to the
defendant’s state of mind and intent to commit the charged offenses. The
defendant offers no developed argument under the first prong of the 404(b) test
as to the third text message; accordingly, we deem any such argument waived
and confine our analysis under the first prong to the first two text messages.
See Fernandez, 152 N.H. at 239-40.
“To be relevant to intent, evidence of other bad acts must be able to
support a reliable inference, not dependent on the defendant’s character or
propensity, that the defendant had the same intent on the occasions of the
charged and uncharged acts.” Pepin, 156 N.H. at 277 (quotation omitted). “We
will find sufficient support for a reliable inference of intent only if the
defendant’s intent in committing other bad acts and the defendant’s intent in
the charged offenses [are] closely connected by logically significant factors.” Id.
(quotation omitted).
As previously noted, the defendant was charged with, among other
crimes, kidnapping, which required proof that the defendant acted with a
purpose to terrorize child 2, see RSA 633:1, I(c), and first degree assault, which
required proof that the defendant “recklessly” caused serious bodily injury to
child 2, see RSA 631:1, I(d). The first two text messages were sent within days
of the incident, and they demonstrated the defendant’s antipathy toward the
children. Accordingly, admission of the text messages made it more probable
than it would have been without the text messages, see N.H. R. Ev. 401, that
the defendant acted with a purpose to terrorize child 2 and to purposely and,
thus, recklessly cause child 2 serious bodily injury. See Pepin, 156 N.H. at
9
278; see also Bathalon, 146 N.H. at 489 (explaining that, if he acted purposely,
“the defendant was by definition acting recklessly”). We conclude that the
defendant’s intent in sending the two text messages and in committing the
charged offenses are “closely connected by logically significant factors,” Pepin,
156 N.H. at 277 (quotation omitted), and, therefore, that the trial court’s ruling
that the text messages were relevant to demonstrate the defendant’s intent was
neither unreasonable nor untenable.
Because the defendant does not dispute that there was sufficient proof
that he wrote and sent all three text messages, we need not apply the second
prong of the test, and we turn directly to the third prong. See Belonga, 163
N.H. at 359. The third prong requires that the probative value of the evidence
not be substantially outweighed by the danger of unfair prejudice to the
defendant. Id. This prong involves the same analysis as that conducted
pursuant to Rule 403. See State v. Lamprey, 149 N.H. 364, 370 (2003) (“The
third prong incorporates the standards of New Hampshire Rule of Evidence 403
requiring a showing of unfair prejudice.”). We, therefore, reach the same
conclusion as we did when analyzing the issue under Rule 403, which is that
the defendant has failed to establish that the probative value of the text
messages was substantially outweighed by the danger of unfair prejudice.
Accordingly, we hold that the defendant has not shown that the trial court’s
decision to admit the three text messages under Rule 404(b) was an
unsustainable exercise of discretion.
In addition to his challenge to the admission of the text messages, the
defendant also protests the admission of “evidence regarding the defendant’s
depression medication, alcoholism treatment . . . and arrest on an unrelated
warrant.” However, he fails to adequately develop his legal argument regarding
this additional evidence; accordingly, we have confined our analysis to the text
messages. See State v. Blackmer, 149 N.H. 47, 49 (2003) (stating that a mere
laundry list of complaints regarding adverse rulings by the trial court, without
developed legal argument, is insufficient to warrant judicial review).
V
The defendant next argues that the trial court erred by denying his
motion in limine to allow “evidence showing that Downs had previously
inflicted a pattern of physical abuse and neglect on the child victims.” The
defendant sought to cross-examine Downs about her allegedly slapping and
kicking her children on prior occasions, her alleged admission “to physically
striking her children beyond what would be considered acceptable discipline,”
her alleged bragging about being thrown out of stores because of the way she
treated her children, and her pending neglect charges. The defendant asserts
that the trial court’s decision to exclude this “impeachment evidence” violated
his state and federal constitutional rights to “compulsory process,” to “present
all proofs favorable,” to “confront his accuser,” and to due process and a fair
10
trial. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, VI, XIV. We first
address the defendant’s claims under the State Constitution and rely upon
federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
On appeal, the defendant contends that the trial court’s refusal to allow
the defendant to cross-examine Downs about her prior alleged treatment of the
children violated his rights to compulsory process and to present all favorable
proofs. The defendant argues only that he was denied the ability to cross-
examine Downs about certain subject matter, and he does not contend that he
was prevented from producing any witnesses at trial. Because “[b]oth the
Compulsory Process Clause of the Federal Constitution and the right to
produce all favorable proofs under Part I, Article 15 [of the New Hampshire
Constitution] give a defendant only the right to produce witnesses, not to
produce their testimony,” State v. Graf, 143 N.H. 294, 296 (1999), we conclude
that the trial court did not violate the defendant’s rights to compulsory process
and to produce all favorable proofs.
We next address the defendant’s contention that, by preventing him from
cross-examining Downs about her alleged abusive behavior towards her
children, the trial court violated his constitutional right to confront witnesses.
“Though fundamental, a defendant’s right to cross-examine prosecution
witnesses is not unfettered.” State v. Spaulding, 147 N.H. 583, 588 (2002). “It
does not entitle the defendant to introduce evidence in violation of the rules of
evidence. Therefore, a judge may exclude a witness’s testimony on evidentiary
grounds.” Id. (citation omitted). “While the trial court may not completely deny
a defendant the right to cross-examine a witness, it possesses broad discretion
to limit the examination’s scope on improper matters of inquiry.” Id. “We will
not reverse the trial court’s decision limiting the scope of cross-examination
absent an unsustainable exercise of discretion.” Id. at 589. “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.” Id.
Here, the trial court evaluated the proffered evidence and determined
that it was inadmissible propensity evidence pursuant to Rule 404(b). See N.H.
R. Ev. 404(b). The court stated:
Although the evidence [the defendant] wishes to present does touch on
Downs’s treatment of her children and [child 2], there is no link between
such evidence and the assault at question. The timing of most of the
acts is unclear, and also unclear is which acts were directed at [child 2]
. . . . Further, there is no indication that the alleged acts come close to
approaching the charged acts in severity. The only manner such
evidence becomes relevant is through the inference that because of
[Downs’s] bad character as a mother, she is more likely to have
11
perpetrated the assault at question. This is precisely the type of
propensity evidence inadmissible under [Rule] 404(b).
We agree with the trial court that Rule 404(b) applies to alternative perpetrator
evidence such as the evidence at issue here. We also agree with the trial
court’s analysis and conclusion. Accordingly, we conclude that the defendant
has failed to demonstrate that the trial court’s ruling was clearly untenable or
unreasonable.
Turning to the defendant’s due process argument, the defendant asserts
that by excluding the evidence about Downs’s treatment of the children, while
simultaneously “allowing in a slate of negative background information about
the defendant,” the trial court violated his right to a fair trial. We do not find
this argument persuasive, and we conclude that it does not warrant further
discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).
To the extent that the defendant attempts to assert a distinct and
additional argument concerning his right “to present a complete defense,” we
decline to address it because the argument was not sufficiently developed for
appellate review. See State v. Fortier, 146 N.H. 784, 792 (2001).
Because, under these circumstances, the Federal Constitution offers the
defendant no greater protection than does the State Constitution, see State v.
White, 163 N.H. 303, 312-13 (2012) (addressing due process); Spaulding, 147
N.H. at 588 (addressing the rights to present all favorable proofs and to
confront witnesses); State v. Adams, 133 N.H. 818, 826 (1991) (addressing
compulsory process), we reach the same result under the Federal Constitution
as we do under the State Constitution.
VI
The defendant next argues that the trial court erred by denying the
motion to dismiss in which he alleged a Brady violation. See Brady, 373 U.S.
83. Brady requires the prosecution to disclose material exculpatory evidence to
the accused. Id. at 87. The defendant maintains that, until the fourth day of
trial, the State “intentionally concealed” from him a sealed motion to continue
that had been filed in the pending criminal case against Downs and referenced
Downs’s agreement with prosecutors. The defendant asserts that, pursuant to
Brady, the sealed motion should have been turned over to him earlier to aid in
his trial preparation as Downs’s “credibility was the primary issue at trial.” He
further argues that, because the motion was not disclosed until the middle of
trial, dismissal of the charges was warranted.
As we have stated, “relief for a Brady violation requires proof that the
violation somehow caused [the defendant] prejudice.” State v. Colbath, 130
N.H. 316, 320-21 (1988). “Actual prejudice exists if the defense has been
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impeded to a significant degree by the nondisclosure.” State v. Stickney, 148
N.H. 232, 236 (2002).
Assuming, without deciding, that the sealed motion to continue was
exculpatory material that should have been disclosed to the defense earlier, we
conclude that the trial court did not err in denying the defendant’s motion to
dismiss because the defendant has failed to demonstrate prejudice. See id.
Although the defendant first became aware of the sealed motion during trial,
the court allowed him several hours to review the motion prior to oral
argument on the matter. Additionally, the defense obtained the motion before
the testimony of Downs and was able to cross-examine her about her
agreement with the prosecution, thereby challenging her credibility. See State
v. Stowe, 162 N.H. 464, 467 (2011) (explaining that cross-examination provides
the defendant with an opportunity to impeach a witness’s credibility and
expose possible biases of the witness). The record does not establish that the
initial nondisclosure “impeded to a significant degree” the defendant’s case;
therefore, we conclude that the trial court did not err in denying the
defendant’s motion to dismiss. See Stickney, 148 N.H. at 236.
VII
Finally, the defendant contends that the trial court erred in denying his
motions to dismiss and for a directed verdict. In both motions, the defendant
argued that the State failed to produce sufficient evidence to convict him of the
charges. Although on appeal the defendant broadly asserts that the “State
[has] failed to sustain its burden of proof” on all charges, his appellate briefs
contain developed arguments challenging only the trial court’s ruling on the
sufficiency of the evidence as to the two kidnapping charges. To the extent that
the defendant seeks to make a sufficiency argument as to the other charges,
the argument has been insufficiently developed for our review. Accordingly, we
address the sufficiency argument with regard to only the kidnapping charges.
See Young, 159 N.H. at 337 (declining to address an insufficiently developed
argument).
“When considering a challenge to the sufficiency of the evidence, 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. Germain, 165 N.H. 350, 354-55
(2013) (quotation omitted). “It is the defendant who bears the burden of
demonstrating that the evidence was insufficient to prove guilt.” Id. at 355
(quotation omitted). “In reviewing the evidence, we examine each evidentiary
item in the context of all the evidence, not in isolation.” Id. (quotation omitted).
“Further, the trier may draw reasonable inferences from facts proved and also
inferences from facts found as a result of other inferences, provided they can
be reasonably drawn therefrom.” Id. (quotation omitted).
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“Circumstantial evidence may be sufficient to support a finding of guilty
beyond a reasonable doubt.” Id. (quotation omitted). However, “[t]o prevail on
a sufficiency of the evidence challenge when the evidence as to one or more
elements of the charged offense is solely circumstantial, the defendant must
establish that the evidence does not exclude all reasonable conclusions except
guilt.” Id. at 361. “The proper analysis is not whether every possible
conclusion consistent with innocence has been excluded, but, rather, whether
all reasonable conclusions based upon the evidence have been excluded.” Id.
“The court does not determine whether another possible hypothesis has been
suggested by defendant which could explain the events in an exculpatory
fashion.” Id. (quotation and brackets omitted). “Rather, the reviewing court
evaluates the evidence in the light most favorable to the prosecution and
determines whether the alternative hypothesis is sufficiently reasonable that a
rational juror could not have found proof of guilt beyond a reasonable doubt.”
Id. at 361-62 (quotation omitted).
“To succeed on his motion to set aside the verdict, the defendant has the
burden of establishing that the evidence, viewed in its entirety and with all
reasonable inferences drawn in favor of the State, was insufficient to prove
beyond a reasonable doubt that he was guilty of the crime charged.” State v.
Fandozzi, 159 N.H. 773, 782 (2010) (quotation omitted). “Given that this
standard is the same as that applied in reviewing the denial of the motion[] to
dismiss, we address the defendant’s arguments concurrently.” Id.
The defendant argues that the evidence presented on the two kidnapping
charges was insufficient to support a finding of guilty beyond a reasonable
doubt. Specifically, he contends that there was no evidence showing that the
defendant “confined [child 2] with the specific purpose to terrorize him” or that
he intended to conceal the child from Downs, as required by statute. See RSA
633:1, I(c), II; RSA 633:1, I-a, II. He also asserts that, given the circumstantial
evidence presented at trial, it “is an entirely rational conclusion that Downs
inflicted the injuries on [child 2] . . . and pointed to [the defendant] to shield
herself from blame when the police arrived.”
However, the evidence belies the defendant’s assertions. First, the text
messages from Downs’s phone, in which the defendant referred to child 2 as a
“retarded f***ing a**hole[]” and a “faggot” who should have been “drown[ed] . . .
at birth,” demonstrated the defendant’s hostility towards child 2. The evidence
also showed that the defendant remained alone in the shed with child 2 for
several hours during the night of the incident. Downs further testified that the
defendant had covered up the shed’s windows with shirts and held the shed
door shut when she tried to enter. Downs also testified that child 2 had not
been injured before being taken to the shed and that she first noticed bruising
on his head after the defendant brought him back inside the mobile home.
Additionally, doctors testified that child 2 suffered extensive injuries as a result
of multiple, non-accidental blows. Finally, although there was evidence that
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Downs drove with the children to several locations after leaving the defendant
and before going to the hospital, there was no evidence indicating that she
harmed the children during that interval.
Given all the evidence, viewed in a light most favorable to the State, the
jury could reasonably have concluded that the defendant, and not Downs, was
responsible for kidnapping child 2 and severely beating him inside the shed. In
particular, the text messages, combined with both the fact that the defendant
was alone for hours with child 2 in the shed and that child 2’s grave injuries
resulted from repeated blows, support the conclusion that the defendant
caused child 2’s injuries and confined child 2 in the shed with a purpose to
terrorize him. See State v. Fuller, 147 N.H. 210, 213 (2001) (noting that “in
order for a jury to conclude that a defendant had a purpose to terrorize, the
jury must conclude that the defendant had a purpose to cause extreme fear”);
see also RSA 633:1, I(c), II. The testimony regarding shirts covering the shed’s
windows, and regarding the defendant physically preventing Downs from
entering the shed by holding the door closed, demonstrate that the defendant
acted with the requisite intent to conceal child 2 from his mother. See RSA
633:1, I-a, II. Finally, given the timing of events, Downs’s discovery of bruising
on child 2’s head, and the lack of evidence indicating that Downs harmed the
children that night, the only rational conclusion is that the defendant, and not
Downs, was responsible for the charged crimes. See Germain, 165 N.H. at
361.
Considering the totality of the evidence, we conclude that the defendant
has not met his burden to demonstrate that no rational trier of fact, viewing
the evidence in the light most favorable to the State, could have found guilt on
the two kidnapping charges beyond a reasonable doubt. Having reviewed the
trial transcript, we conclude that the jury could have excluded all reasonable
conclusions other than the defendant’s guilt on the two kidnapping offenses.
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
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