2012-214, State of New Hampshire v. Matthew Tabaldi

admitting certain evidence over his objection. We af firm all of the defendant’s electronic defense weapon and possession of crack cocaine charges; and (3) prospective juror; (2) denying his motion s to dismiss the possession of an Superior Court (Lewis, J.) erred by: (1) denying his mo tion to strike a receiving stolen property (a firearm), see RSA 637:7 (2007). He argues that the in possession of an electronic defense weapon, see RSA 159:2 1 (2002); and I (2011); posse ssion of narcotic drug s (crack cocaine and cocaine), see id.; felon following a jury trial, for the sale of a narcotic drug (cocaine), see RSA 318 - B:2, CONBOY, J. The defendant, Matthew Tabaldi, appeals his convictions,

orally, for the defendant. James B. Reis, assistant appellate defender, of Concord, on the brief and

assistant attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Susan P. McGinnis, senior

No. 2012 - 214 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 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, Concor d, 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 p. 2 22 as 2

bag gie containing cocaine. After receiving the cocaine, officers searched the CI, directly to a prearranged meeting place. There, she gave Trask a small plastic after entering the house, the CI exited alone, got into h er car, and drove Hampton ho use. Vaillancourt was at work. Approx imately forty - five minutes At approximately p. 2 2:00 p.m., the CI and Taylor arrived at the North

Vaillancourt. Surveillance units followed. residence in North Hampton that the defendant shared with Kenneth defendant. T he CI and Taylor left Taylor’s residence and drove together to a residence, however, the target of the investigation changed from Taylor to the remained for between sixty and ninety minutes. While the CI was inside the officers followed. Officers observed the CI enter the residence, where she At 11:40 a.m., the CI drove to Taylor’s residence in Rochester, and police

buy money). contraband. Trask then supplied the CI with $300 in documented bills (the They searched the CI and her belongings and vehicle, and found no money or Arcieri, and a detective from the Rochester Police Department met with the CI. At approximately 9:00 a.m., State Police Trooper Bry an Trask, Sergeant Ellen accompany her to Massachusetts, and then return with her to New Hampshire. March p. 2 25. The plan was for the CI to go to Taylor’s residence in Rochester, T he police planned for a female CI to purchase drugs from Taylor on

the investigation. contraband. Officers also conduct surveillance of the CI and the tar get during drugs to ensure that t he CI d oes not have unaccounted - for money or o fficers search the CI before and after sending him or her to purchase the of the bill s ’ serial number s (also known as “buy money”). In a controlled buy, from a target using paper currency that has been documented by the recording a controlled buy, the police use a confidential informant (CI) to purchase drugs Massachusetts in to New Hampshire. The police planned a “controlled buy.” In Taylor was transporting large quantities of heroin a nd cocaine from Hampshire Police Narc otics Investigation Unit. The police suspected that Heather Taylor was the target of a drug investigation conducted by the New The jury could have found the following fact s. On March p. 2 25, 2009,

I. Background

Hampshire and United States Constitutions . . . preclude a new trial.”). support the conviction, the Double Jeopardy Clauses of both the New State v. Gordon, 161 N.H. 410, 418 ( p. 2 2011) (“[I]f the evidence was insufficient to conclude that the evidence was insufficient to convict him of th at charge. See defense weapon. We reverse that conviction with prejudice because we convicti ons except his conviction for being a felon in possession of an electronic p. 3 3

The defendant responded, “Hating? I’m doing a long time for this.” a girl and make a sale.” Taylo r responded, “Don’t be hating. Don’t be hating.” defendant discussed the events of March 25 with her saying, “I had to wait for drugs. D uring a recorded telephone call with Taylor on October 2, 2011, the Arcieri at the State Police barracks in Epping, and told them that h e dealt positive for cocaine. On August 20, 2009, the defendant met with Trask and plastic sandwich bags and a white powdered substance that later tested the def endant’s bedroom t hey found, among other things, an open box of Officers also executed a search warrant at Vaillancourt’s residence. In

between the driver’s seat and the center console. that seat. Finally, a Newport cigarette box containing crack cocaine was found passenger ’s seat, and a nother crack cocaine pipe in the pocket of a jacket on driver’s seat, crack cocaine pipes in a black canvas bag on the front discovered a digital scale in the pocket of a canvas guitar bag behind the spo ons, plastic tubing, copp er mesh, and a hypodermic needle. Officers also case under the driver’s seat, which contained drug paraphernalia, including a d evice police referred to as a “t aser.” Additionally, o fficers discovered a black small torch commonly used for quickly heating drugs. The bag also contained agent to dilute the strength of drugs, a weight for calibra ting a scale, and a the bag included: a ledger, plastic baggies, a white powder used as a cutting passcodes” – in dicated that the bag belonged to the defendant. Other items in defendant, and a notebook entitled “Matthew Ta baldi’s usernames and computers with content linked to the defendant, mail addressed to the under the rear passenger’s seat. The bag’s contents – i ncluding laptop Upon executing a search warrant for the BMW, officers found a black bag

buy money was found on the defendant’s person. syringe, a first aid kit, and a digital scale. T he re was testimony at trial that the purse they found c rack cocaine pipes, brass knuckles, lighters, scissors, a person. Officers found nothing of significance in the backpacks, but in the backpack in the trunk. She consented to a search of those items as well as her passenger’ s side floor, a purse on the front passenger’ s seat, and a black BMW belonging to her, including a green and purple backpack on the front Before the warrants were issued, Taylor identified c ertain items in the

BMW. station. Trask applied for warrants to search the defendant, Taylor, and the took the defendant and Taylor into custody, and transported them to the police in the front passenger’s seat. Officers then conducted a motor vehicle stop, drove away i n a gray BMW. The defendant was driving and Taylor was sitting Thereafter, the defendant and Taylor emerged from the residence and

She no longer had the buy money. her vehicle, and her belon gings for other contraband, and again found none. p. 4 4

(1983). federa l law only to aid our analysis. See State v. Ball, 12 p. 4 4 N.H. 226, 231 - 33 address the defendant’s claim under the State Constitution and rely upon Articles 1 5, 17, 21, and 35 of the New Hampshire Constitution. We first under the Sixth Amendment to the United States Constitution and Part I, strike H.S. for cause, and that the error violated his rights to an impartial jury The defendant argues that the trial court erred in denying his motion to

(2001); see also RSA 606: p. 4 4, III (2001). following the parties’ use of their peremptory challenges. See RSA 606:3, III “reservations.” The trial court denied the motion. H.S. was later stricken Defense counsel moved to strike H.S. for cause on the basis of her

H.S.: Yes, sir.

Court: You can do that?

H.S.: Yes, sir. Okay.

Court: So you need to be foc used in on the evidence here.

H.S.: Okay.

a reasonable doubt. Court: Whether or not the State has proven the case here, beyond

H.S.: Yes, sir.

past. I’m not trying this case on the basis of someone’s reputation or his need to expressly and affirmatively be able to say to me that’s -- Court: And you’re going to hear about this, but you’re going to

exchange with H.S.: indicated, “I will do my best.” The trial court then engaged in the following him.” When asked if she would be able to put her concern aside, the juror just makes me a little – somewhat concerned for the ch arges brought against court, “[H]earing that a gentleman in the defendant’s chair is a convicted felon convicted felon. A p rospective juror, H.S., thereafter explained to the trial During jury selection, the venire was advised that the defendant w as a

A. Motion to Strike Juror

II. Discussion p. 5 5

she would “not try[ ] this case on the basis of someone’s reputation or his of questions, including whether H.S. w ould “affirmatively be able to say” that convicted felon. Here, however, the trial court p robed further, asking a number “do her best” to put aside her concerns regarding the defendant ’s status as a This case is similar to Town in that H.S. initially stated that she would

(quotation omitted). render a verdict based on the evidence presented in court.” Id. at 794 insufficient to establish that she could lay aside her impr ession or opinion and “indication that she would ‘ try ’ to be fair and impartial, without more, was was qualified to sit on the jury. Id. at 791, 79 p. 5 5. We held that the juror’s the trial court unsustainably exercised its discretion in finding that the juror (quotation omitted). We reve rsed the defendant’s conviction, concluding that evidence presented, each time she merely indicated that she would “try.” Id. aside her per sonal circumstances and judge the case based solely upon the (quotation omitted). Although the trial court twice asked her if she could put reiterated that she was “not sure” whether she could be fair and impartial. Id. and also stated, “I think I need to do this.” Id. (quotation omitted). She then Id. at 794. The juror revealed that she had been the victim of sexual ass ault 791. A potential juror expressed concerns regarding her ability to be impartial. defendant in Town was accused of aggravated felonious sexual assault. Id. at In Town, we considered an argument similar to that present ed here. The

N.H. at 794. the trial judge’s decision was against the weight of the evidence.” Town, 163 court’s ruling absent an unsustainable exercise of discretion or a finding that is entitled to special deference. Id. at 673 - 74. “We will not disturb the trial jurors selected is essentially a question of demeanor and credibility and, thus, (quotation omitted). The trial court’s determination of the impartiality of the conception. It is a state of mind.” State v. W eir, 138 N.H. 671, 673 (1994) II (2010); Town, 163 N.H. at 794. “Indifference or impartiality is not a technical any juror is not indifferent, he shall be set aside on that trial.” RSA p. 5 500 - A:12, has a duty to determine whether the juro r is indifferent.” Id. “If it appears that omitted). “When a juror’s impartiality is questioned, however, the trial court render a verdict based on the evidence presented in court.” Id. (quotation considered imparti al if the juror can lay aside her impression or opinion and “Generally, a juror is presumed to be impartial.” Id. at 794. “A juror is

impartial jury.” Id. at 79 3 - 94 (quotation omitted). system of justice that a defendant has the right to be tried by a fair and State v. Town, 1 p. 6 63 N.H. 790, 793 (2012). “[I]t is a fundamental precept of our admit.” “This provision for judicial impartiality is applicable as well to jurors.” every citizen to be tried by judges as impartial as the lot of humanity will Part I, Article 3 p. 5 5 of the State Constitution provides, “I t is the right of 6

beyond a reasonable doubt, that the device found in his possession was contends that the evidence was insufficient because the State failed to prove, The defendant stipulated at trial that he was a convicted felon. He

temporarily.” electrical charge of sufficient magnitude to immobilize or incapacitate a person activated non - lethal device which is designed for or capable of producing an 159:20, I (2002) defines an electronic defense weapon as “an e lectronically defense weapon away from the premises where he resides.” RSA 159:21. RSA the defendant was a convicted felon; and (2) he possessed “an electronic defense weapon, the State must prove, beyond a reasonable doubt, that: (1) To convict a defendant of being a felon in possession of an electronic

1. Felon in Possession

presented in his case may assist in proving the State ’ s case. Id. present a case, if he chooses to do so, he takes th e chance that evidence v. Dion, 1 p. 6 64 N.H. 544, 548 (2013). Even though a defendant is not required to present evidence after the trial court denied his motions to dismiss. See State excluded.” Id. We review the entire trial record because the defendant chose to whether all such rational conclusions based upon the evidence have been possible conclusion consistent with innocence has been excluded, but, rather, context, not in isolation.” Id. “The proper analysis is not whether every in the light most favorable to the State and examine each evidentiary item in except guilt.” Id. “Under this standard, however, we still consider the evidence evidence is solely circumstantial, it must exclude all rational conclusions reasonable doubt.” State v. Trebian, 164 N.H. 629, 632 (2013). “When the from it in the light most favorable to the State, could have found guilt beyond a rational trier of fact, viewing all of the evidence and all reasonable inferences upon a sufficiency of the evidence challenge, the defendant must prove that no electronic defense weapon and possession of crack cocaine charges. “To prevail motions to dismiss for insufficient evidence the felon in possession of an The defendant ar gues that the trial court erred when it denied his

B. Sufficiency of the Evidence

Federal Constitution. See Weir, 138 N.H. at p. 6 6 p. 7 73. Federal Constitution on this issue, we reach the same conclusion under the Because the State Constitution provides at least as much protection as the arguments based upon his assumption that the juror was not impartial. determined that H.S. was impartial, we need not address the defendant’s strike H.S. for cause. Having concluded that the trial court did not err when it juror’s responses supported the trial court’s denial of the defendant’s motion to court satisfied its duty to determine whether H.S. was impartial and that the past.” H.S. responded, “Yes, sir.” On this record, we conclude that the trial 7

Q Okay. And how does it appear to be powered?

back and forth. A And you could hear the crackling of the electricity going

Q Okay.

A I could see that.

Q And you could see that?

other side. there would be electricity that would flow from one side to the between the tw o electrodes . . . . Depending on [how] you use it, A When I activated it, there were blue sparks that arched

Q What happened when you activated it?

A I did. I actually activated it.

you found it back on March 25 of 2009. th take a look at it [at] all on the day you discovered it – on the day Q Okay. But when you characterized it as a Taser, did you

A Correct.

obviously differs from the weapon you carry. Q Okay. That obvious – what’s in front of us here. . .

A Yes.

Q As part of your work?

A Yes.

I imagine? Q And that, just so we’re clear,. . . you yourself carry a Taser,

taser. He then testified: searching the defendant’s black bag, he found a device that he described as a Trask’s testimony. Over the defendant’s objection, Trask testified that, while T he only evidence at trial regardi ng the capability of the device was

magnitude to immobilize or incapacitate a person temporarily.” We agree. “designed for or capable of producing an electrical charge of sufficient p. 8 8

Id. (quotation omitted). (quotation omitted). “[C]onstructive possession of drugs need not be exclusive.” to the drugs, such as personal pos sessions found near the drugs.” Id. at 69 inferred from incriminating statements or circumstances linking the defendant must prove constructive possession. Id. “Constructive possession can be When a drug is not found in a defendant’s physical possession, the State

cocaine. defendant challenges only the State’s proof that he had custody of the crack dominion and control over it. S tate v. Smalley, 14 p. 8 8 N.H. 66, 68 (2002). The its presence in his vicinity; and (3) had custody of the drug and exercised defendant: (1) had knowledge of the nature of the drug; (2) had knowledge of contro lled substance, the State must prove beyond a reasonable doubt that a narcotic drug crack cocaine.” To gain a conviction for possession of a knowingly “had in his possession, or under his control,. . . a quantity of the The possession of crack cocaine charge alleged that the defendant

2. Possession of Crack Cocaine

charge. See Gordon, 161 N.H. at 41 p. 8 8. defense weapon, we reverse, with prejudice, the defendant’s conviction on that doubt, one of the elements of the charge of felon in possession of an electrical Becaus e the evidence was insu fficient to establish, beyond a reasonable

matters beyond the experience of average jurors.”). effects of more typically used weapons such as knives or handguns, are Cal. Rptr. 3d 455, 460 (Ct. App. 2007) (“[T] he effects of a stun gun, unlike the designed for or capable of the requisite electrical charge. Cf. People v. Racy, 56 rational juror to conclude, beyond a reasonable doubt, that the device was viewed in the light most favorable to the State, was insufficient to allow a he observed “sparks” and could hear “th e crackling of electricity,” even when electrical charge. Trask’s testimony that the device was a “taser” from which taser Trask discovered was designed for, or capable of, producing the requisite This testimony wa s insufficient, as a matter of law, to establish that the

The State presented no other evidence to prove the charge.

A No, it’s dead at this point.

it out? discovered. As far as you’re aware, is the battery still working or is Q Okay. And this was obviously some time ago that this was

A By a nine - volt battery. p. 9 9

1. Buy Money

C. Evidentiary Issues

defendant of the possession of crack cocaine charge. cocaine. Accordingly, we hold that the e vidence was sufficient to convict the reasonable doubt, that the defendant constructively possessed the crack conclude that a rational juror could have reasonably found, beyond a Here, viewing the evidence in the light most favorable to the State, we

constructive possession of the crack cocaine. See Smalley, 148 N.H. at 6 p. 9 9. belief). The State did not have to establish that the defendant had exclusive choose which inference regarding constructive possession was most worthy of Howard, 687 F.3d 13, 20 – 21 (1st Cir. 2012) (it was within jury’s prerogative to defendant.” State v. Duran, 162 N.H. 369, 373 (2011); see United States v. upon the evidence presented and concluded that [it] belonged to the belonged to Taylor, “the jury could have drawn reasonable inferences based Although the defendant argues that the crack cocaine could have

148 N.H. at 6 p. 9 9 (quotation omitted). defendan t and the substance to allow the jury to infer possession.” Smalley, controlled substance may provide a sufficiently close nexus between the “[P]ersonal possessions of the defendant [found] in close proximity to the crack cocaine, including his black bag containing drug paraphernalia. center console. Additionally, several of his poss ession s were located near the the vehicle; the cigarette box was found between the driver’s seat and the which the defendant could exercise dominion and control. He was the driver of possessed the crack cocai ne. The crack cocaine was found in a location over have found, beyond a reasonable doubt, that the defendant constructively reasonable inferences from it in the light most favorable to the State, could We conclude that a rational juror, viewing the evidence and all

argument in the trial court. Accordingly, we do not c onsider it. not develop this argument. Nor does the record establish that he raised this supported a conclusion that the cigarette box belonged to Vaillancourt, he does Although the defendant also intimates that the evidence could also have

except guilt. See Trebian, 164 N.H. at 632. evidence was insufficient because it failed to exclude all rational conclusions box, and thus the crack cocaine, belonged to Taylor.” Thus, he contends, the evidence could have just as likely supported the conclusion that the cigarette he constructively possessed the crack cocaine. Specifically, he argues that “the The defendant argues that the evidence was insufficient to establish that p. 10 10

. . . .

A Yes.

to the CI and had recorded the serial numbers? Q So of that . . . 582, 300 of it was the money that you had given

. . . .

[on] him. It was part of that five hundred – A Yes, it was. The 300 that I had serialized were -- was located

been given to the CI? Q Was any portion of that currency the same money that had

A It was $582 at the time on his person.

Q Okay. And how much currency was that?

A Yes, I did.

following that stop? you understood to have been taken off the Defendant’s person Q And in particular, did you come in to contact with money that

The defendant challenges the following testim ony by Trask:

case.” Id. court’s ruling was clearly untenable or unreasonable to the prejudice of his unsustainable exercise of discretion, the defendant must show that the trial of discretion.” State v. Munroe, 161 N.H. 618, 626 (2011). “To demonstrate an evidence, and we will not disturb its decision absent an unsustainable exercise accord the trial court considerable deference in determining the admissibility of strong policy not to a ddress constitutional arguments unless required.). “We Rules of Evidence. See State v. Hodgkiss, 132 N.H. 376, 379 (1989) (We follow We first address the defendant’s arguments under the New Hampshire

Constitutions. confront witnesses against him guaranteed by the Federal and State hearsay, see N.H. R. Ev. 801, and that its admission violated his rights t o U.S. CONST. amends. VI, XIV. He argues that the evidence was inadmissible mon ey was found on the defendant ’s person. See N.H. CONST. pt. I, art. 15; Confrontation Clause grounds the admissio n of Trask’s testimony that the buy The defendant challenges on both evidentiary and State and Federal p. 11 11

statement indirectly, it, nonetheless, constitutes inadmissible hearsay. response). Accordingly, although Trask’s testimony introduced the out - of - court testify about what he “learn ed” after questioning a witness elicited a hearsay v. State, 852 N.E.2d 640, 644 (Ind. Ct. App. 2006) (asking police officer to that defendant was a drug smuggler constituted inadmissible hearsay); Ik e m i re (testimony that Federal Drug Enforcement Administration was made aware hearsay); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985) about what he learned upon arriving at shooting scene was inadmissible States v. Baker, 432 F.3d p. 11 1189, 1209 (11 th Cir. 2005) (investigator’s statement other persons are properly classified as hear say.” Id. at 196 - 97; see United ‘information received’ by the witness and the results of investigations made by 2013). “Thus, when offered as proof of the facts asserted, testimony regarding form.” 2 McCormick on Evi dence § 249, at 196 (Kenneth S. Broun ed., 7th ed. cannot be eliminated by eliciting the content of the statement in an indirect out - of - court statement to prove the truth of facts stated, the hearsay objection was found on the defendant’s person. “If the purpose of testimony is to use an was introduced for the truth of what it asserted – that, in fact, the buy money buy money was found on the defendant’s person. This out - of - court statement introduced, indirectly, an out - of - court statement by another declarant that the taken from the defendant constitute s inadmissible hearsay. His testimony Trask’s testimony that he “understood” that the buy money had been

to statutory authority.” N.H. R. Ev. 802. rules of evidence] or by other rules prescribed by th e Supreme Court pursuant N.H. 243, 253 (2003). “Hearsay is not admissible except as provided by [the of the matter asserted is not hearsay. See id.; see also State v. Pelletier, 149 asserted.” N.H. R. Ev. 801. A state ment that is not offered to prove the truth at the trial or hearing, offered in evidence to prove the truth of the matter Hearsay is “a statement, other than one made by the declarant while testifying The defendant contends that this testimony constitutes hearsay. We agree.

A Correct.

Q Okay. So that means somebody told you that they did that?

A Yes.

taken from [the defendant]? Q You testified yesterday that you were given money that was

A I did not.

Q So you didn’t take any property from [the defendant] you r self? p. 12 12

out - of - court statement by another declarant. Trask’s testimony on both direct and cross - examination referred to the same on both direct a nd cross - examination constitute s inadmissible hearsay. cross - examination is unavailing. As discussed previously, T rask’s testimony distinguish Trask’s testimony on direct examination from hi s testimony on claim that he was prejudiced by that testimony.” The State’s effort to the testimony that the money had in fact been taken from him, he cannot now was the case. The State asserts that “because it was the defendant who elicited until cross - examination that Trask testified that someone told him that this “understood” that the buy money had been found on the defendant. It was not contends that on direct examination, Trask merely testified that he State v. Bain, 145 N.H. 367, 370 (2000) (quotation omitted). The Stat e party may not avail himself of error into which he has led the trial court.” The State next invokes the invited error doct rine. Under that doctrine, “a

the prejudice. See State v. LaBranche, 1 18 N.H. 176, 179 - 80 (1978). in which a curative instruction, even if it had been given, would not have cured that the buy money was found on the defendant, this is one of those rare cases which the court allowed Trask to testify included the fact that Trask was told prejudiced by the court’s failure to do so.” Because the “procedure” about the trial court’s offer to give a limiting instruction, “he cannot claim that he was Alternatively, the State contends that because the defendant “refused”

hearsay statement, admitted for the truth of what it asserted. “procedure” about which the trial court allowed Trask to testif y included the “represe nted to him” that the buy money came from the defendant. Thus, the from.” The trial court expressly allowed Trask to testify that someone had procedure that [Trask] worked on,” which included “where the money came Moreover, t he trial court stated that it allowed the testimony to show “the

determined t his to be the case. defendant included the buy money. He never testified about how he numbers on the bills. He testified only that the money taken from the not supported by the record. Trask never testified that he compared the serial of explaining why Trask had compared the serial number s on the bills.” This is State first asserts that Trask’s testimony was admitted for “the limited purpose The State’s arguments for a contrary conclusion are unpersuasive. The

defendant). the truth of the matter asserted (th at the buy money was found on the someone other than Trask (the testifying declarant) and was offered to prove on the defendant is also inadmissible hearsay. The statement was made by Trask’s testimony that someone told him that the buy money was found p. 13 13

agent, and a weight for calibrating a scale. contained a ledger, plastic sandwich bags, a small bag containing a cutting the BMW with items indicating that the bag belonged to the defendant also defendant’s desk, which tested positive for cocaine. Moreover, a ba g found in drugs for distribution.” They also found a white powdered substance on the found an open box of plastic sandwich bags that “were indicative of packaging dealing. Further, when the police searched th e defendant’s bedroom, the police sold drugs. The defendant admitted to the police that he was involved in drug Additionally, there was substantial evidence that the defendant regularly

the defendant would b e “doing a long time” for selling cocaine to the CI. this.” The two statements in context allowed the jury reasonably to infer that cocaine to the CI. He also told Taylor that he w ould be “doing a long time for r eferred was the CI and that the “sale” he made on March 25 was the sale of statement, the jury reasonably could have inferred that the “girl” to whom he controlled buy occurred, he “had to wait for a girl and make a sale.” From this defendant admitted to Taylor that, on March 25, 2009, the day on which the occurred at Vaillancourt’s residence, where the defendant l ived. Moreover, the multi - faceted. Substantial evidence linked him to the controlled buy, which The alternative evidence of the defendant’s guilt on this charge was

cocaine to the CI. to prove, beyond a reasonable doubt, that t he defendant knowingly sold Accordingly, for the jury to convict the defendant of this charge, the State had cooperating individual working with the New Hampshire State Police.” defendant knowi ngly “sold a quantity of the narcotic drug Cocaine . . . to a defendant’s person. The sale of narcotic drug (cocaine) charge alleged that the admission of Trask’s testimony that the buy money was found on the that the defendant’s conviction for selling cocaine was not affected by We conclude that the State has established, beyond a reasonable doubt,

in relation to the strength of the State’s evidence of guilt.” Id. weight, and if the contested evidence is merely cumulative or inconsequential evidence of the defendant’s guilt is of an overwhelming nature, quantity or “An error may be harmless beyond a reasonable doubt if the alternative evidence presented at trial and the character of the contested evidence.” Id. whether the State has met its burden involves consideration of the alternative bears the burden of proving that an error is harmless.” Id. “The evaluation of not affect the verdict.” State v. Beede, 156 N.H. 102, 109 (2007). “The State “An error is harmless if we can say beyond a reasonable doubt that it did

evidence that the defendant sold the cocaine to the CI. We agree. hearsay, the error was harmless because there was overwhelming alternative The State argues that even if Trask’s testimony constituted inadmissible p. 14 14

dominion and control over the room in which the police found the cocaine and challenged photographs were relevant to demonstrate that the defendant had Here, we conclude that the trial court reasonably determined that the

Ev. 401. Irrelevant evidence is inadmissible. N.H. R. Ev. 402. more probable or less probable than it would be without the evid ence.” N.H. R. existence of any fact that is of consequence to the determination of the action Under Rule 401, e vidence is relevant if it has “any tendency to make the

was clearly untenable or unreasonable to the prejudice of his case. Id. The defendant bears the burden of demonstrating that the trial court ’ s ruling decision made. State v. Noucas, 16 5 N.H. ___, ___ (decided July 16, 2013). the record establis hes an objective basis sufficient to sustain the discretionary whether a ruling is a proper exercise of judicial discretion, we consider whether v. Brooks, 164 N.H. 272, 283 (2012) (quotation omitted). In determining are clearly untenable or unreasonable to the prejudice of a party ’ s case.” State unsustainable exercise of discretion standard and reverse only if the rulings “We review challenges to a trial court’s evidentiary rulings under our

by the danger of unfair prejudice. and 404(b) because their limited probative value was substantially outweighed relevant, they were inadmissible under New Hampshire Rule s of Evidence 403 R. Ev. 401, 402. He also argues that even if the photographs were marginally The defendant contends th at both photographs were irrelevant. See N.H.

was taken to document the location of the first photog raph. of the defendant’s son. The defendant concedes that the second photograph first photograph t ucked into the frame of a mirror, surrounded by photographs currency in his hand. The se cond is a photograph that the police took of the was of the defendant, leaning back in a car seat and holding fanned - out paper two photographs that he asserts unfairly prejudiced the jury. One photograph The defendant next asserts that the trial court erred when it admitted

2. Photographs

violation of State and Federal Confrontation Clauses). 401 - 02 (2009) (applying harmless error review to admission of evidence in doubt is dispositive of those clai ms. See State v. Hernandez, p. 15 159 N.H. 394, Clauses, our conclusion that any error was harmless beyond a reasonable testimony violated his rights under the State and Federal Confrontation a reasonable doubt. Although the defendant contends that admitting Trask’s hold that any error in admitting the challenged testimony was harmless beyon d that the inadmissible testimony was inconsequential to it. Accordingly, we of the defendant’s guilt on this charge, such evidence was overwhelming and We conclude that, given the extent and nature of the alternative evidence 15

evidence.” Id. latitude when ruling on the admissibility of potentially unfairly prejudicial prejudice.” Id. at 575 (quotation omitted). “Thus, we give the trial court broad particular testimony, and what steps, if any, are necessary to re medy that “The trial court is in the best position to gauge the prejudicial impact of

at 574 - 75. which it is offered is established by other evidence, stipulation or inference. Id. sense of resentment or outrage; and (3) the extent to which the issue upon great emotional impact upon a jury; (2) its potential for appealing to a juror’s consider in weighing the evidence are: (1) whether the evidence would have a basis, commonly one that is emotionally charged.” Id. Among the factors we undue tendency to induce a decision against the defendant on some improper 574 (2010). “Rather, the prejudice required to predicate reversible error is an prosecution is mea nt to be prejudicial.” State v. Nightingale, 160 N.H. 569, the evidence to prove guilt, in which sense all evidence offered by the prejudice is not, of course, mere detriment to a defendant from the tendency of established propositions in the case.” Id. (quotation omitted). “Unfair that may cause a jury to base its decision on something oth er than the provoke its instinct to punish, or trigger other mainsprings of human action purpose or effect is to appeal to a jury’s sympathies, arouse its sense of horror, (1996). “Under both rules, e vidence is unfairly prejudicial if its primary danger of unfair prejudice to the defendant. State v. Marti, 140 N.H. 692, 694 whether the probative value of the evidence is substantially outweighed by the Under the balancing test common to Rules 403 and 404(b), we examine

N.H. at 632. burden of proving these facts beyond a reasonable doubt. See Trebian, 164 custody of and exercised dominion and control over it, the State retained the he did not stipulate that he knew the cocaine was in his room and that he had fact that he occupied the bedroom “was not . . . genuinely disputed,” because kept personal possessions there). Although the defendant contends that the that defendant had acces s to room where marijuana plants were found and constructive possession of drugs when evidence showed, among other things, Comeau, 114 N.H. 431, 435 (1974) (evidence sufficient to establish Vaillancourt’s home. See State v. Cartier, 133 N.H. 217, 221 (1990); State v. State had to prove more than that he and Vaillancourt shared oc cupancy of To establish that the defendant constructively possessed the cocaine, the

bedroom. quantity of the narcotic drug cocaine.” The cocaine at issue was found in the defendant knowingly “had in his possession, or under his control . . . a cocaine charge. See Trebian, p. 16 164 N.H. at 632. Th e charge alleged that the incriminating items. Proof of this fact was necessary to prove the possession of 16

DALIANIS, C.J.