2010-402, State of New Hampshire v. Roderick Davidson

The defendant, Roderick Davidson, appeals his conviction,

and orally, for the defendant. Lisa L. Wolford

attorney general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as crazy slut. Who r u f***ing now?”; “Where the f*** r u”; “TELL ME WHERE YOU

p. 2 text messages to the complainant, including, “I see u put makeup on u f***ing

decided to go to the police. The defendant sent several “angry” and “spiteful” conceal with makeup. After speaking with several people, she ultimately The following day, the complainant had a bruised eye, which she tried to

or his elbow. leave the bedroom, he knocked a hole in the bedroom door with either his fist barricade himself in the bedroom. When the complainant insisted that he

on the door before opening it with his key. The defendant then attempted to

complainant opened it and let him in; she testified that the defendant pounded the home. He testified that when he pounded on the bolted door, the After realizing the mirror had been dislodged, the defendant returned to

reentered their home and locked the door.

made contact with the complainant and was dislodged. The complainant put the car into reverse and pressed the accelerator. The side view mirror calling the defendant repeatedly and knocking on his window, the defendant

blocking his departure. When she moved from the rear to the side of the car,

The complainant followed the defendant and stood behind his car,

break it. The defendant ultimately recovered the keys and went out to his car.

complainant testified that the defendant twisted her arm and told her he would

defendant above her, and that his hand made contact with her face. The complainant ended up on her back at the bottom of the stairs with the and the complainant fell together on the stairs. The accounts agree that the

halfway up the stairs and threw her into a wall; the defendant testified that he

the ensuing struggle over the keys, the defendant grabbed her as she was

the stairs. The defendant followed her. The complainant testified that during purpose of preventing the defendant from driving, and with them headed up and keys on a nearby table, the complainant grabbed the keys with the

repeatedly. Later, when the defendant was sitting on a couch with his wallet

defendant through a closed door and calling his cellular telephone number money. The complainant insisted that they talk, attempting to speak to the defendant then drove the couple home, where they began to argue about

split payment of the bill, but the defendant paid a smaller portion. The

respective amounts of which are contested), the defendant and the complainant After dinner, during which they both consumed some alcohol (the

together at a restaurant.

together, napped together for about three hours, and then went to dinner defendant broke up with the complainant. They nonetheless drove home manager. Consistent with their habit of “br[eaking] up every other day,” the

became upset because of an interaction between the complainant and a male at work at the Olive Garden restaurant in Manchester when the defendant p. 3 State v. McGlew decision was clearly untenable or unreasonable to the prejudice of his case.”

sound discretion and will be overturned only if the defendant can show that the

“The decision to admit ‘bad acts’ evidence lies within the trial court’s

under New Hampshire Rules of Evidence 401, 402, 403, and 404. messages to the complainant, sent the day after the incident, was inadmissible

motions in

assaulted her. The second motion asserted that the content of some of his text

The defendant first argues that the trial court erred in denying his two

makeup; that he was verbally cruel to her at work; and that he had previously he did not allow her to speak with other males and rarely allowed her to wear was speaking with a male manager; that he was controlling and jealous; that acquitted of reckless conduct and criminal threatening. This appeal followed. convicted of criminal mischief and the three counts of simple assault, but was

[the complainant], contrary to the form of the Statute”) with

Compare 3

that the defendant had broken up with the complainant at work because she wouldn’t stop yelling at him, [the defendant] elbowed the bedroom door, putting

defendant’s alleged threat to break the complainant’s arm. The defendant was

property of another when he punched a hole in a door inside the apartment of

defendant appears to have conceded the facts underlying that conviction.

complainant had previously sought a restraining order against the defendant; acknowledgement in his brief (“‘Stressed’ and aggravated that [the complainant] and federal due process rights. The evidence included testimony that the his elbow because “[he] was just upset. . . . [he]’d had enough”), and car’s contact with the complainant; and criminal threatening, based upon the Rules of Evidence 401, 402, 403, 404(a), 404(b), and 608, as well as his state testimony at trial (stating that he damaged the door by putting a hole in it with based upon damage to the bedroom door; reckless conduct, based upon the defendant’s stemming from the physical contact inside the apartment; criminal mischief, basis for belief of having such a right, the defendant recklessly damaged the crime of Criminal Mischief in that, having no right to do so nor any reasonable

the charging document (alleging that defendant “did commit the

conviction stemming from the damage to the apartment’s bedroom door, the

, 139 N.H. 505, 507 (1995). As to the criminal mischief

complainant, the admission of which, he argued, violated New Hampshire

The defendant was charged with: three counts of simple assault

suggest that he was “controlling” and set rigid behavioral rules for the defendant’s first motion in limine sought to exclude testimony tending to Evidence 404(b) (regarding the inadmissibility of character evidence). The be taken care of.” limine seeking to exclude evidence under New Hampshire Rule of another text message, apologizing and telling the complainant, “The door will

the home that afternoon. That evening, the defendant sent the complainant ARE”; and “U r full of sh**, tell me where u are.” The defendant moved out of p. 4 “controlling behavior” was inadmissible under Rule 404(b), and that its

its witness examinations. The defendant maintains that evidence of his alleged

State’s case, beginning with its opening statement and continuing throughout At trial, the defendant’s “controlling” behavior was a central theme of the

examined the complainant as to her delay in reporting the charged conduct.

evidence of prior assaults would be excluded, unless the defense crosswhich the jury could consider the evidence. The court further ruled that The court did not issue a limiting instruction concerning the purposes for

relevant “[t]o the extent [they] deal[t] with the question of controlling behavior.”

With regard to the text messages, the court ruled that they were likewise

behavior are admissible in my judgment.

in which this case is set. . . . [F]acts that demonstrate that

admissible, because I think the jury has to understand the context

describe the relationship and his alleged controlling behavior, are recent time period of the alleged assaults are, in my view, that reason, statements that the defendant may have made in the

understand the context in which it is presented, and for that

It’s my view that in order to understand this case, the jury has to

trial court ruled:

(including statements), which it found admissible to provide “context.” The

character evidence, and “facts” of the defendant’s controlling behavior defendant was a controlling person, which it excluded as inadmissible controlling behavior, the trial court distinguished between opinions that the

acted in conformity therewith, but rather “to show the defendant’s motive not seek to admit evidence of the defendant’s prior conduct to show that he inadmissible “propensity” character evidence. The State responded that it did

In ruling on the admissibility of the evidence of the defendant’s allegedly

controlling behavior was irrelevant, unfairly prejudicial, and constituted

Before and during trial, the defendant argued that the evidence of his

defendant’s claims of error as to his simple assault convictions. in defense of his property. unreasonable to the prejudice of his case.” Id for the charged conduct, and to counter his argument that he was acting only cannot demonstrate that the court’s rulings were “clearly untenable or charged conduct [was] relevant,” both for the purpose of establishing his motive intent person acts purposely or knowingly.”). Thus, as to this charge, the defendant at the time.” It argued that the defendant’s “state of mind during the

170, 172 (2003). We therefore affirm that conviction, and turn to the

III (2007) (“When recklessness suffices, the element is also established if the a hole in it.”). See RSA 626:2, II(c) (2007) (defining “‘Recklessly’”); RSA 626:2, prior “bad acts,” but p. 5 Assuming that the text messages constituted “statements,” rather than

motive and intent.

Rule 404(b) analysis, it was properly admitted as evidence of the defendant’s

evidence). The State argues further that, even if the evidence were subject to a their admissibility is set forth in Rule 403 (regarding exclusion of relevant the defendant.” Id actually in dispute, without relying upon forbidden inferences of predisposition, Rule 801(d)(2)(A) as statements of a party-opponent, and, therefore, the test of value of the evidence must not be substantially outweighed by its prejudice to

the trial court, and the other bad acts.” State v. Kirsch

reasoning by which the offered evidence will tend to prove or disprove an issue themselves, bad acts.” It asserts that his statements were admissible under must be clear proof that the defendant committed the act; and the probative

clear connection between the particular evidentiary purpose, as articulated to have some direct bearing on an issue actually in dispute, and there must be a conviction based on evidence of other crimes or wrongs.” McGlew “To meet the relevancy requirement, the other bad acts evidence must

purpose for which the evidence is offered and articulate the precise chain of was in the form of the defendant’s statements, which “were not, in and of purpose other than proving the defendant’s character or disposition; there defendant’s Rule 404(b) objection, “the State is required to state the specific The State responds that Rule 404(b) does not apply because the evidence (1995) (quotations, citations, and brackets omitted). To admit evidence over a

defendant is tried on the merits of the crime as charged and to prevent a “The purpose of Rule 404(b) in a criminal trial is to ensure that the decision under all three prongs of the Rule 404(b) analysis. shortly preceding charged events under Rule 404(b)).. at 507. Here, the defendant challenges the trial court’s

subject to analysis under Rule 404. See behavior” evidence nonetheless consisted of intertwined statements and actions for evidence to be admissible under Rule 404(b), it “must be relevant for a because of his character is the gravamen of Rule 404(b).” Id. Thus, in order substantially outweighed any probative value. 509 (quotations omitted). “The concern that a defendant might be convicted

162, 164-65 (1993) (analyzing defendant’s intertwined statements and behavior

(analyzing verbal threat under Rule 404(b)), we conclude that the “controlling

that the prejudicial effect of the evidence, which cast him as a domestic abuser, evidence that the alleged controlling behavior had occurred. He further asserts behavior and the charged conduct, and failed to provide clear and convincing

clear and logical connection between the evidence of his alleged controlling admission prejudiced his case. He argues that the State failed to establish a allowed admission of evidence of the defendant’s controlling behavior, including

p. 6 also stated, “Well, it’s not propensity if it fits in the crime.” The trial court then

in a domestic – what appears to be a domestic violence case.” The trial court me why all this [evidence of the defendant’s controlling behavior] is not relevant “context” of the case, the trial court asked defense counsel, “Why don’t you tell

charged crimes. Before ruling that the evidence was relevant to establish the

evidence on the basis that it reflected only his propensity to commit the Here, the defendant objected both before and at trial to admission of the

rather than innocently); State v. Gruber

insurance company).

his specific intent to touch her for the purpose of sexual arousal or gratification

cases); State v. Simonds witness would testify in the underlying prostitution and drug conspiracy exchange of drugs and money for sex was relevant to defendant’s belief that the that the person acted in conformity therewith.” State v. Melcher for any purpose other than to prove the character of a person in order to show conduct, her delay in reporting, and her initial false statements to police); State prosecution witness, held admissible to explain her participation in criminal “stole” his property admissible to show that he intended to deceive the insurance fraud case, evidence of defendant’s relationship with the woman who context in which this case is set.”, 132 N.H. 83, 89 (1989) (in an

its tendency to show propensity.” Id prior indictments for sexually assaulting the victim admissible as probative of

testimony of defendant’s prior sexual relationship with witness involving v. Roberts, 136 N.H. 731, 747 (1993) (in witness tampering prosecution, acts evidence to prove context, but it does allow such evidence to be admitted

648-49 (2006) (evidence of the defendant’s abuse of his girlfriend, a propensity purpose under Rule 404(b). E.g., State v. Beltran, 153 N.H. 643, defendant’s controlling behavior in order for the jury “to understand the of a relationship may be relevant if the State establishes an acceptable non-

must still have some direct bearing on an issue actually in dispute, apart from

the disputed issue, without invoking propensity.” McGlew 829 (1996) (quotations omitted). “We have indicated that context may be

record the theory upon which the evidence is admitted.” Id “Rule 404(b) does not specifically provide for the admissibility of other

however, admitted the defendant’s statements and “facts that demonstrate” the intent, and to counter his asserted justification defense. The trial court, Here, the State offered the evidence as proof of the defendant’s motive and

or an alternative, the court must explain precisely how the evidence relates to (quotations omitted). “Whether the court adopts the State’s theory, a variation,

(quotations and ellipsis omitted). “The trial court then must articulate for the character, or propensity.” State v. Glodgett, 144 N.H. 687, 690 (2000) upon retrial. Individually evaluated items of evidence may be admissible for

p. 7 of the text messages or other evidence of the defendant’s controlling behavior

of the defendant’s other crimes.” State v. Hickey Thus, by our decision today, we make no ruling on the potential admissibility evidence could have been admissible under the State’s proffered purposes. intent, we cannot parse the record after the fact to determine what items of

controlled victim, and to characterize the defendant as “an abuser.” “Context, the Rule 404(b) inquiry, see relevance prong of the analysis, we do not address the two remaining prongs of the danger that the jury will draw impermissible inferences from the evidence

would have been permissible for the narrower purpose of establishing motive or

grounds to support the trial court’s ruling. See Nor can we look to the State’s proffered justifications as valid alternative

defendant and the complainant as that of a controlling perpetrator and

was not limited to a non-propensity purpose. Since we reach this result on the purpose or purposes for which the evidence may be used and thereby minimize “The purpose for giving . . . a limiting instruction is to explain the proper apparently free to consider the evidence for any purpose – including propensity. relevant to “context,” allowed admission of a broader scope of evidence than 569, 575-76 (2010). Because the trial court’s ruling, that the evidence was

because the trial court allowed the “context” evidence without limitation, the omitted). The admission of the evidence was therefore erroneous because it typically used to describe domestic violence and the cycle of violence.” Indeed, inadmissible under Rule 404(b).” Glodgett, 144 N.H. at 695 (quotation connection in the inferential chain supporting relevance, the evidence is broader purpose than the State had proposed, without limitation, the jury was based upon the defendant’s propensity toward certain action is the essential Bassett, 139 N.H. 493, 501-02 (1995). “When, in this manner, an assumption N.H. at 830 (quotation omitted); see also Glodgett, 144 N.H. at 694; State v.

to “couch[] these prior bad acts . . . in the language and the buzz words limine, that to permit such unlimited use of the evidence would allow the State The defendant argued to the trial court, in support of his motions in purpose of providing “context.” Because the court admitted the evidence for a purpose of establishing the defendant’s motive and intent, but for the broader evidence is being admitted.”). that he said he had control over her life – not, as the State had argued, for the limit the jury’s consideration to the narrow purpose or purposes for which the limiting instructions, must take care that the instructions do indeed strive to also State v. Smith, 125 N.H. 522, 526 (1984) (“The trial court, when giving

that she could not wear makeup, that [the defendant] called her names,” and the text messages and testimony that the complainant “could not talk to males, in defense of property, there has to be sufficient evidence from

p. 8 I’m satisfied that in raising the defense of justification in this case

complainant’s having taken his car keys. The trial court ruled: Cf requested a jury instruction on the defense of property based upon the

unsustainable exercise of discretion.” Id

on the use of force in defense of property may arise on remand, we consider it. justification of use of force in property offenses. At trial, the defendant

State v. Lambert

court, and we review the trial court’s decisions on these matters for an

because the defendant’s contention that he was entitled to a jury instruction would potentially rely upon RSA 627:8 (2007), the statute defining the of all the evidence in the case.” Id Prior to trial, the defendant filed a notice of defense indicating that he

, 147 N.H. 295, 296 (2001) (quotation omitted). of his case.” McGlew ruling was clearly untenable or unreasonable to the prejudice of his case.”

the trial court’s error was “clearly untenable or unreasonable to the prejudice decision is not sustainable, the defendant must demonstrate that the court’s omitted)). Accordingly, we conclude that the defendant has established that. “To show that the trial court’s

and wording of jury instructions, are within the sound discretion of the trial case.” Id. “Whether a particular jury instruction is necessary, and the scope reverse only if the instructions did not fairly cover the issues of law in the instructions adequately and accurately explain each element of the offense and trial court concerning the jury instructions on those charges is moot. However, In light of our reversal of the simple assault convictions, any error by the. “We determine whether the jury their entirety, as a reasonable juror would have understood them, and in light we evaluate allegations of error by interpreting the disputed instructions in v. Hernandez, 159 N.H. 394, 400 (2009). “When reviewing jury instructions, in clear and intelligible language, the rules of law applicable to the case.” State “The purpose of the trial court’s charge is to state and explain to the jury, reasonable doubt that the evidence did not affect the verdict.” (quotations ., e.g., State v. White, 155 N.H. 119, 128 (2007).

See

N.H. R. Ev. are therefore reversed.

harmless error, and this burden is met only if we can conclude beyond a State v. Marti, 140 N.H. 692, 695 (1996) (“The burden is on the State to prove State has neither asserted nor established that such error was harmless. See , e.g., Glodgett, 144 N.H. at 695; Hickey, 129 N.H. at 61-62. Further, the The admission of improper character evidence is inherently prejudicial.

404(b).

preparation, plan, knowledge, identity, or absence of mistake or accident.” non-propensity purposes “such as proof of motive, opportunity, intent, interpretation of a statute is a question of law, which we decide de

p. 9 criminal mischief, or to retake his property immediately following

force in defense of property is justified only in cases of theft. “The We consider only the basis of the trial court’s decision – that the use of or reasonably appears to be an unlawful taking of his property, or his case. extent that he reasonably believes it necessary to prevent what is A person is justified in using force upon another when and to the

advanced by the entire statutory scheme.” Id

State v. Brown

instruction on defense of property, and that the trial court’s ruling prejudiced

RSA 627:8 provides: of a statute considered as a whole. State v. Gallagher

v. Lamy whatever charges that they may have relevance, 158 N.H. 511, 515 (2009). “Our goal is to apply statutes in light of the – certainly of the ambiguous, however, we consider legislative history to aid our analysis.” State it would be error for me to include a defensive justification to that there’s any evidence to support such a finding; and therefore,, 155 N.H. 590, 591 (2007) (quotation omitted). “If a statute is of the legislation nor add words which the lawmakers did not see fit to include.” Formella, 158 N.H. 114, 116 (2008). “We can neither ignore the plain language look to the plain language of the statute to determine legislative intent. State v. (Emphasis added.) On appeal, the defendant argues that he was entitled to an terms and to promote justice.” RSA 625:3 (2007). In doing so, we must first taking, essentially a theft, as defined by statute (2008). We construe the Criminal Code “according to the fair import of [its]

we are the final arbiter of the intent of the legislature as expressed in the words v. McKeown, 159 N.H. 434, 435 (2009). In matters of statutory interpretation,

economic value of the property in substance. And I don’t believe

that there was an unlawful taking of his property. An unlawful instruction. serious doubts about that. In any event, I decline to give that

of the statute, for such duration and time that reduces the to deprive of the property permanently, or I think in the language

a situation in which he observed or reasonably could have believed The question here is whether or not the defendant was facing

evidence from which a jury could consider the issue. which the jury could make such a determination, certainly, some p. 10 10

knew to be “‘duly appointed and authorized to serve the writ,’” Report

such a claim precludes criminal theft liability.” Id

also dealt with here by justifying the use of force against any in possession faced with a demand for the property based on a claim of right is (quoting Richardson, 38 N.H. at 208), did not engage in acts that would in defense of property, the Commission explained, “The problem of the person at 26 sheriff seeking to attach the property because the sheriff, whom the possessor (1859), which held that the owner of property could not use force against a suggesting a requirement of theft, such is laid to rest by the Report of the Commission’s draft was consistent with State v. Richardson, 38 N.H. 208 unlawful takings regardless of the intent of the taker. See To the extent that there is any ambiguity in the term “unlawful taking”. By contrast, the another seeks the property under a claim of right if the possessor knows that which would seem to require the person in possession to stand aside when from Michigan’s draft statute, which was written “in terms of preventing ‘theft’ appears to be unlawful.” Id. at 26. The Commission distinguished its draft taking” to the crime of theft, if it were so inclined. See taking that

permits the use of force in response to what “reasonably appears to be § 572:8 cmts. at 26-27 (1969). In drafting the statute justifying the use of force Commission to Recommend Codification of Criminal Laws (Report). See Report

theft, but thus supports the conclusion that the use of force is justified to defend against person entitled to immediate possession.”). The plain language of the statute part of the statute and omitted in another.” (quotation and brackets omitted)). unius dominion or control over goods which is inconsistent with the rights of the est exclusio alterius is strengthened where a thing is provided in one Sec’y of State, 161 N.H. 127, 133 (20 p. 10 10) (“The force of the maxim expressio

demonstrates that the legislature could have specifically limited “unlawful crime of criminal mischief, see RSA 634:2 (2007) (amended 2009, 20 p. 10 10), did say.” (quotation omitted)). The legislature’s reference in RSA 627:8 to the particular intent in order for the actor’s use of force to be justified. The statute in what the legislature might have said, but rather in the meaning of what it Spectacular, 138 N.H. 298, 300 (1994) (“The legislative intent is to be found not

(1979) (“An action for conversion is based on the defendant’s exercise of without constituting a theft. See, e.g., Rinden v. Hicks, 119 N.H. 811, 813 unlawful taking.” RSA 627:8 (emphasis added). A taking may be unlawful

deprive him thereof.”), RSA 627:8 does not require that the taker act with any exercises unauthorized control over the property of another with a purpose to

see RSA 637:3, I (2007) (“A person commits theft if he obtains or

property to instances of “theft.” Assuming that the complainant’s undisputed The plain language of the statute does not limit the use of force in defense of

only in defense of a person as prescribed in RSA 627:4. its taking; but he may use deadly force under such circumstances p. 11 11

Affirmed in part; reversed in

upon retrial. consideration affecting the defendant’s entitlement to such a jury instruction

appear to be an unlawful taking,” regardless of the taker’s intent. Report

distance to forcefully retrieve his property. Elliot

the complainant had committed a theft. We make no ruling on any other

instances of theft, but applies to any instance of what would “reasonably DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

under a claim of right, where the possessor had to pursue the taker a short

aligning itself with State v. Elliot taking is also justifiable to accomplish an immediate recapture of the property,” defendant’s requested jury instruction on the basis of insufficient evidence that 26-27. We therefore conclude that the trial court erred in refusing to give the

627:8: the justified use of force in defense of property is not limited to Commission’s report thus explicitly illustrates the legislative intent behind RSA

case, we upheld the use of reasonable force to “recapture” property taken

also explained that “the use of force that is justifiable to prevent an unlawful “reasonably appear to be an unlawful taking.” Id. The Commission’s report