2013-0290, State of New Hampshire v. Justin L. Roy

in limine to both admit and exclude certain evidence; (3) motion to dismiss motion to suppress evidence obtained from his cell ular telephone; (2) motions the Superior Court (Houran and Mangones, J J.) erred by denying his: (1) assault, see RSA 631:2 - a, I(a) - (b) (2007). On appeal, t he defendant argues that count of criminal restraint, see RSA 633:2 (2007), and two counts of simple counts of second degree assault, see RSA 631:2, I(c) - (d) (Supp. 2013), one II (2007), one count of first degree assault, see RSA 631:1, I(d) (2007), four jury on two counts of kidnapping, see RSA 633:1, I(c), II (2007); RSA 633:1, I - a, BASSETT, J. The defendant, Justin L. Roy, appeals his conviction by a

for the defendant. Sweeney Law Office, o f Bedford (Shawn Sweeney on the brief and orally),

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Stacey R. Kaelin, assistant attorney

No. 2 013 - 290 Carroll

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

hand, and flung him to the floor. Child p. 2 2 failed to get up off of the floor. The In response, t he defendant went to where child 2 was sleeping, grabbed his Downs the n told the defendant that she and the children were leaving.

injure his head and hand. 3 tried to get up, the defendant pushed him to the floor, caus ing the child to had been sleeping, and he jumped on the child’s legs, bruising them. As child the contents of a bottle. The defendant then went to the couch where child 3 The defendant screamed at child 1 and squirted both child 1 and Downs with Around 5:00 a.m., the defendant woke everyone in the home by yelling.

bed, and Downs fell asleep. diaper in the below - freezing w eather. The defendant put child p. 2 2 back in his from the shed to the mobile home, carrying child 2, who was only wearing a closed and would not let her in. Thereafter, she saw the defendant rushing door. Downs testified that when she did this, the defendant held the shed door apparently still in side the shed, Downs went outside and knocked on the shed shirts were covering the windows of the shed. Realizing that child 2 was Around 4:15 a.m., Downs awoke. She looked outside and noticed that

then went back inside the mobile home and fell asleep. the child inside, he stated that he would do so in about p. 2 20 minutes. Downs sleeping in a chair. In response to Downs’ s request that the defendant bring in si de the shed with the defendant. Child 2 was wrapped in a blanket and longer inside the mobile home. She went outside and found that child 2 was Downs awoke around 2:00 a.m. and discovered that child 2 was no

10:30 p.m., Downs checked on the children and fell asleep shortly thereafter. depression and alcoholism. After visiting t he defendan t in the shed around alcoholic beverages and failed to take his prescription medications to treat his than one person testified that on that night the defendant drank several the defendant went outside to his heated shed to work on a lawn mower. More After dinner o n December 18, p. 2 2011, the three children fell asleep, and

guardian of the children. domestic relationship, but the defendant was neither the father nor the legal defendant in his mobile home in Albany. The defendant a nd Downs were in a months old), child p. 2 2 (two years old), and child 3 (seven years old), lived with the December 2011, Heather Downs and three of her children, child 1 (eleven The jury could have found, or the record supports, the following facts. In

in which he alleged that there was insufficient evidence to convict. We affirm. evidence; and (4) subsequent motion s to dismiss and to set aside the verdicts during trial based upon the State’s alleged failure to timely disclose exculpatory p. 3 3

several motions in limine seeking to: (1) exclude text messages obtained from search warrant. The trial court denied the motion. The defendant also filed result of a search of his cell phone that had been conducted pursuant to a Prior to trial, the defendant filed a motion to suppress evidence obtained as a of kidnapping and criminal restraint stemming from his actions toward child 2. actions involving all three children. He was also charged with multiple counts T he de fendant was charged with multiple counts of assault for his

hospital. were consistent with having occurred within 24 hours of being brought to the accident. A dditionally, a physician - expert testified that a ll of child 2 ’s injuries child that he had treated who had been involved in a high - speed, head - on car boxers, and more extensive than th e injuries that had been sustained by a injuries were more severe than those commonly suffered by professional they resulted from more than one blow. One doctor observed that child 2 ’s Child 2 ’s doctors testified that his injuries we re not accidental and that

he required the use of a feeding tube for 11 months. abdomen. Doctors performed multiple surgeries on him. During his recovery, b owel was torn, which had caused the contents of his bowel to spill into his had lost approximately half of his blood due to internal bleeding. P art of his especially in his abdominal area. His pancreas was severely injured, and he Doctors there discovered that child 2 had extensive bruising all over his body, his condition, h e was transported by helicopter to Maine Medical Center. with a low body temperature and low blood pressure, and near death. Due to When child 2 was taken into the emergency room, he was unresponsive,

and drove t o the hos pital, ar riving there with her children shortly before 8 a.m. 2’s rectum was bruised. She then called Memorial Hospital in North Conway abdomen that she had not seen the day before. She also observed that child 2’ s eyes were rolling back in his head and that he had multiple bruises on his stops, she drove to her mother’s house. While there, Downs noticed that child Downs put her children in the car and drove away. After making several

and taking my air.” He also told Downs to “Get your f’ing kids out of here. They’re brea thing up head. The defendant replied that child 2 had fallen into the wall of the shed. personal belongings, she asked the defendant about the bruise on child 2’s When she went back inside the home to retrieve some of her and her children’s Downs was eventually able to bring the children outside to her car.

on child 2’ s head. commented that the child was “f *** ed.” At this time, Downs noticed a bruise defendant then picked child 2 up, brought him into the bathroom, and p. 4 4

similar statute governing administrative warrants – the 30 - day extension was because the statute does not provide for an extension of t he deadline – unlike a the seven - day statutory time limit to return the warrant. He argues that, T he defendant asserts that the police violated RSA 595 - A:7 by exceeding

until January 31, 2012. file the warrant’s return, which the court granted. T he return was not made 22, 2011. On December 28, 2011, the State moved for a 30 - day extension t o original search warrant for the defendant’s cell phone was issued on December date of issuance thereof, with a return of his actions thereon.” In this case, the soon as it has been served, and in any event not later than 7 days from the issued shall return the same to the court to which it was made returnable as RSA 595 - A:7 provides that “[e]very officer to whom a warrant to search is

novo.” State v. Licks, 15 p. 4 4 N.H. 491, 492 (2006) (quotation omitted). erroneous. Our review of the trial court’s legal conclusions, however, is de the trial court’s findings unless they lack support in the record or are clearly “When reviewing a trial court’s ruling on a motion to suppress, we accept

See RSA 595 - A:7 (2001). to comply with the statutory timing requirements for sea rch warra nt returns. the messages should have been suppressed because of the failure of the police motion to suppress text messages found on his cell phone. He contends that The defendant first argues that the trial court erred in denying his

followed. insufficiency claim. The trial court denied the motion, and t his appeal remaining counts, t he defendant moved to set aside the verdicts, renewing his remaining ten charges. After t he jury found the defendan t guilty on the The trial court dismissed two charges, but denied the motion as to the charges, arguing that the State had introduced insufficient evidence to convict. At the close of the Sta te’s case, the defendant moved to dismiss all

court denied this motion. prosecution to disclose material exculpatory evidence to the accused). T he trial See Brady v. State of Maryland, 373 U.S. 83, 87 (1963) (requiring the sealed motion to continue filed in the pend ing criminal case against Downs. alleged Brady violation, based upon the State’s failure to timely disclose a During trial, the defendant moved to dismiss the charges because of an

perpetrator.” The trial court denied the se motions as well. acts committed by Downs against her children to show her “as the alternative take prescription medication” and (2) introduce evidence of alleged prior violent Downs ’s cell phone and “any reference to [the defendant] taking or ceasing to p. 5 5

at 737 - 38. obtained from the defendant’s cell phone is not required. See Saide, 114 N.H. merely a technical violation of RSA p. 5 595 - A:7, suppression of the evidence to the untimely warrant return. Because we conclude that the late return is search warrant itself or the evidence obtained pursuant to that warrant relates a timely fashion. Notably, the only challenge that the defendant makes to the Here, the police violated RSA 595 - A:7 by failing to return the warrant in

statute in the 16 years following the decision). statute conformed to legislative intent because legislature had not amended the ___, ___ (decided Nov ember 13, 2014) (assuming tha t our interpretation of a legislative intent. See Ichiban Japanese Steakhouse v. Rocheleau, 166 N.H. because the legislature has not, we assume that our interpretation conforms to legislature presumably would have amended it in the 40 years since Saide; (1976); Saide, 114 N.H. at 737 - 38. Had we misconstrued the statute, the State v. Sands, 123 N.H. p. 5 570, 606 (1983); State v. Gilson, 116 N.H. 230, 234 125 N.H. 346, 351 (1984); see State v. Huffman, 154 N.H. 678, 682 (2007); chapter 595 - A do not require suppression of the items seized.” State v. Brown, Additionally, we have repeatedly “held that technical violations of RSA

26 p. 5 5 - A:5, IV (2014). 265 - A re nders the results of alcohol concentration tests inadmissible. See RSA motor vehicle context, failure to comply with the requirements of RSA chapter contrast with the explicit directives in other statutes. For example, in the the exclusion of evidence for violations of RSA 595 - A:5). This stands in (explaining that, unlike in other statutes, the legislature ha s not provided for requirements of RSA 595 - A:7. Cf. State v. Saide, 114 N.H. 735, 737 - 38 (1974) exclusion of evidence b ased upon noncompliance with the technical We first observe that the legislature has not seen fit to require the

reject the defendant’s argument that suppression is required. violated RSA p. 5 595 - A:7 by returning the warrant after the deadline. However, we of a search warrant return because we agree with the defendant that the police We need not decide whether a court has the power to grant an extension

text messages derived from the search of the phone. expired. Thus, he contends that the trial court should have suppressed the because the warrant return was not made until after the extension had that, even if the extension was lawful, the search of his phone was illegal extension or renewal is in the public interest”). T he defendant further argues signed and issued the original warrant, upon satisfying hi mself that such the date of its issuance, unless extended or renewed by the justice . . . who administrative warrant to be returned “in any event not later than 7 days from extension beyond seven day s) with RSA p. 5 595 - B:4 (2001) (requiring an invalid. Compare RSA 595 - A:7 (containing no provision allowing for an p. 6 6

“What’s going on? I didn’t do nothing or hurt no one.” Downs was at the hospital with her children, in which the defendant wrote, right.” The final text was sent a t about noon on December 19, 2011, when , [child 3] will be a pedophile or [a] rapist. Your kids are f***ed up. Calling it Don’t mean I didn’t love them. Yes, I think . . . [child 2] will be a faggot and second, sent on December 1 3, 2011, stated, “Yes, I think all your kids are ugly. do would have been to drown them at birth. They are f***ed up for life.” The “I’m done helping you raise your retarded f***ing a**holes. The smart thing to sent to Downs by the defendant. The first, sent on December 9, 2011, stated, At trial, t he State offered into evidence three text messages that were

his case.” Id. (quotation omitted). trial court’ s ruling was clearly untenable or unreasonabl e to the prejudice of unsustainable exerc ise of discretion, the defendant must d emonstrate that the the discretionary decision made.” Id. (quotation omitted). “To show an consider whether the record establishes an objective basis sufficient to sustain determining whether a ruling is a proper exercise of judicial discretion, we trial court.” State v. Furgal, 1 p. 6 64 N.H. 430, 438 (2012) (quotation omitted). “In “The decision to admit or exclude evidence is within the discretion of the

We disagree. text messag es pursuant to New Hampshire Rules of Evidence 403 and 404 (b). phone of Downs. He contends that the trial court erred in failing to exclude th e pretrial motion in limine to exclude several text messages contained on the cell The defendant next argues that the trial court erred by denying his

system in general by providing greater flexibility as to warrant return dates. Moreover, it would lessen the burden on law enforcement and the criminal justice beyond the seven - day period if the extension “is in the public interest”). RSA 595 - B:4 (allowing the court to extend the ret urn of inspection warrants consistent with the statute governing returns of administrative warrants. See beyond the current seven - day statutory return period would make RSA 595 - A:7 returns. See RSA 595 - A:7. Explicitly empowering courts to grant extensions 595 - A:7. As currently written, the statute fails to authorize extensions of warrant Finally, we invite the legislature to revisit the requirements set forth in RSA

noncompliance wi th the statute. circumstances, due process may require suppression of evidence based upon (2009). Accordingly, w e need not address whether, and under what argument sufficiently for our review. See State v. Young, 159 N.H. 332, 33 p. 7 7 warrant return violates his “due process rights,” he has failed to develop this We further note that, although the defendant alleges that the untimely 7

material element of an offense when h e is aware of and consciously disregards element.” RSA 626:2, II(a) (200 p. 7 7). “A person acts recklessly with respect to a object is to cause the result or engage in the conduct that comprises the purposely with respect to a material element of an offense when his conscious caused serious bodily injury to child 2, see RSA 631:1, I(d). “A person acts first degree assault charge required proof that the defendant “recklessly” defendant acted with a purpose to terrorize child 2, see RSA 633:1, I(c), and the and first degree assault. One of the kidnapping charges required proof th at the Here, the defendant was charged with, among other crimes, kidnapping

unfairly prejudicial evidence.” Id. give the t rial court broad latitude when ruling on the admissibility of potentially necessary to remedy that prejudice.” Id. at 502 (quotation omitted). “Thus, we prejudicial impact of particular testimony, and what steps, if any, are emotionally charged.” Id. “The trial court is in the best position to gauge the against the defendant on some improper basis, commonly o ne that is required to predicate reversible error is an undue tendency to induce a decision by the prosecution is meant to be prejudicial.” Id. “Rather, the prejudice the tendency of the evidence to prove g uilt, in which sense all evidence offered (2010). “Unfair prejudice is not, of course, mere detriment to a defendant from established propositions in the case.” State v. Addison, 160 N.H. 493, 501 that may ca use a jury to base its decision on something other 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, evidence.” N.H. R. Ev. 403. “Evidence is unfairly prejudicial if its primary of undue delay, waste of time, or needless presentation of cumul ative prejudice, confusion of the issues, or misleading the jury, or by considerations its probative value is substantially outweighed by the danger of unfair Rule 403 provides that “[a]lthough relevant, evidence may be excluded if

defendant has failed to satisfy his burden. unreasonable.” See Furgal, 164 N.H. at 438. We agree with the State that the the defendant has “failed to show the [court’s] rulings were clearly untenable or to punish,” which is prohibited by Rule 403. In response, the State argues that messages was to “arouse the jurors’ sense of horror and provoke their instinct danger of unfair prejudice because the “primary purpose or effect” of the text that the probativ e value of the text messages is substantially o utweighed by the have been excluded pursuant to Rule 403. See N.H. R. Ev. 403. He asserts On appeal, the defendant maintains that all three text messages should

require suppress ion pursuant to Rule 403. this case, presenting them to the jury was not “unduly inflammatory” so as t o state of mind, and that, given the “allegations of severely abusive conduct” in trial court determined that the text messages were probative of the defendant’s In denying the defendant’s motion to exclude the se text messages, the p. 8 8

character of a person in order to show that the person acted in E vidence of other crimes, wrongs, or acts is not admissible to prove the

Rule 404(b) states that:

at 43 p. 8 8. Rule 404(b) was an unsustainable exercise of discretion. See Furgal, 164 N.H. burden of showing that the trial court’s admission of the text messages under Ev. 404(b). The State again counters that the defendant failed to satisfy his excluded under Rule 404 (b) as inadmissible propensity evidence. See N.H. R. The defendant next argues that the text messages should have been

clearly untenable or unreasonable. Therefore, the defendant has failed to show that the trial court’s ruling was conclude that the benign third text message suggests no unfair prejudice. insufficient to warrant judicial review”). Unlike the first two text messages, we N.H. 233, 239 - 40 (2005) (noting that an undeveloped legal argument “is b e waived, and we turn to the Rule 403 analysis. See State v. Fernandez, 152 403. Therefore, we deem any argument concerning the third text’s relevancy to regarding its relevancy, and, instead, focuses on whether it is barred by Rule As to the third text message, the defendant offers no developed argument

sustainable. nakedness”). Therefore, the trial court’s admission of the se text mess ages was “to be much affected by seeing merely indecorous depictions of human because pictures were not “significantly inflammatory” and jury was unlikely pictures “show[ing] naked individuals obviously intending to be provocative” court’s decision pursuant to Rule 403 to admit, in a sexual assault case, See N.H. R. Ev. 403; State v. Hood, 131 N.H. 606, 60 p. 8 8 - 09 (1989) (affirming trial probative value was su bstantially outweighed by the danger of unfair prejudice. charged, we conclude that the defendant has failed to establish that their first two text messages may be pr ejudicial, given the nature of the crimes knowingly, the defendant was by definition acting recklessly”). Although the N.H. 485, 489 (2001) (explaining that if the defendant acted “purpose ly or if the person acts purposely or knowingly”); see also State v. Bathalon, 146 suffices” to establish an element of an offense, “the element is also established the assault charge. See RSA 626:2, III (2007) (statin g that “[w]hen recklessness consequently, “recklessly” cause serious bodily injury to child 2 pursuant to terrorize” child 2 pursuant to the kidnapping charge, and to purposely and, without them, see N.H. R. Ev. 4 01, that the defendant acted with a “purpose to text messages, therefore, made it more probable than it would have been incident, are probative of the defendant’s hostile feelings for the children. The The first two text messages, which were sent within a few days of the

result from his conduct.” RSA 626:2, II(c) (2007). a substantial and unjustifiable risk that the material element exists or will p. 9 9

thus, recklessly cause child 2 serious bodily injury. See Pepin, 156 N.H. at the defendant acted with a purpose to terrorize child 2 and to purposely and, than it would have been w ithout the text messages, see N.H. R. Ev. 401, that children. Accordingly, admission of the text messages made it more probable of the incident, and they demonstrated the defendant’s antipath y toward the child 2, see RSA 631:1, I(d). The first two text messages were sent within days required proof that the defendant “recklessly” caused serious bodily injury to purpose to terrorize child 2, see RSA 633:1, I(c), and first degree assault, which crimes, kidnapping, which required proof that the defendant acted with a As previously noted, the defendant was charged with, among other

(quotation omitted). the charged offenses [are] closely connecte d by logically significant factors.” Id. defendant’s intent in committing other bad acts and the defendant’s intent in will find sufficient support for a reliable inference of intent only if the charged and uncharge d acts.” Pepin, 156 N.H. at 277 (quotation omitted). “We propensity, that the defendant had the same intent on the occasions of the support a reliable inference, not dependent on the defendant’s character or “To be relevant to intent, evidence of other bad acts must be able to

See Fernandez, 152 N.H. at 23 p. 9 9 - 40. and confine our analysis under the first prong to the first two text messages. as to the third text message; accordingly, we deem any such argument waived def endant offers no developed argument under the first prong of the 404(b) test defendant’s state of mind and intent to commit the charged offenses. The N.H. at 359, the trial court determined that t hey were relevant to the relevant for a purpose other than character or disposition, see Belonga, 163 under Rule 404(b)). A s to the first prong, whether the text messages are S ee State v. Pepin, 156 N.H. 269, 275 - 79 (2007) (analyzing a verbal threat messages constitute prior bad acts for the purpose of the Rule 404(b) analysis. are prior bad act s, w e will a ssum e without deciding that the three text be a “prior bad act,” because the defendant argues that all three text messages content of the third text message are such that it can be properly considered to Although we have considerable doubt as to whether the timing and

to the defendant.” State v. Belonga, 163 N.H. 343, 3 5 p. 9 9 (2012). the evidence is not substantially outweighed by the danger of unfair prejudice that the defendant committed the prior act; and (3) that the probative value of for a purpose other than character or disposition; (2) that there is clear proof Rule 404(b), it generally must first determine: (1) that the evidence is relevant before a trial court admits ‘other crimes, wrongs, or acts’ evidence pursuant to N.H. R. Ev. 404(b). “To ensure that this rule is followed, we have held that

knowledge, identity, or absence of mistake or accident. such as proof of motive, opportunity, intent, preparation, plan, conformity therewith. It may, however, be admiss ible for other purposes, p. 10 10

all proofs favorable,” to “confront his accuser,” and to due process and a fair his state and f ederal const itutional rights to “compulsory process,” to “present that the trial court’s decision to exclude this “impeachment evidence” violated treated her children, and her pending neglect charges. The defendant asserts her al leged bragging about being thrown out of stores because of the way she striking her children beyond what would be considered acceptable discipline,” kicking her children on prior occasions, her alleged admission “to physically defendant sought to cross - examine Downs about her allegedly slapping and inflicted a pattern of physical abuse and neglect on the child victims.” The motion in limine to allow “evidence showing that Downs had previously The defendant next argues that the trial court erred by denying his

developed legal a rgument, is insufficient to warrant judicial review). laundry list of complaints regarding adverse rulings by the trial court, without messages. See State v. Blackmer, 149 N.H. 47, 49 (2003) (stating that a mere t his additional evidence; accordingly, we have confined our analysis to the text warrant.” However, he fails to adequately develop his legal argument regarding depression medication, alcoholism treatment . . . and arrest on an unrelated defendant also protests the admission of “evidence regarding the defendant’s In addition to his challenge to the admission of th e text messages, the

unsustainable exercise of discretion. decision to admit the three text messages under Rule 404(b) was an Accordingly, we hold that the defendant has not show n that the trial court’s messages was substantially outweighed by the danger o f unfair prejudice. the defendant has failed to establish that the probative value of the text conclusion as we did when analyzing the issue under Rule 403, which is that requiring a showing of unfair prejudice.”). We, therefore, reach the same third prong incorporates the standards of New Hampshire Rule of Evidence 403 pursuant to Rule 403. See State v. Lamprey, 149 N.H. 364, 370 (2003) (“The defendant. Id. This prong involves the same analysis as that conducted not be substantially outweighed by the danger of unfair prejudice t o the N.H. at 359. The third prong requires that the probative value of the evidence prong of the test, and we turn directly to the third prong. See Belonga, 163 that he wrote and sent all three text messages, we need not apply the second Because the defendant does not dispute that there was sufficient proof

neither unreasonable nor untenable. that the text messages were relevant to demonstrate the defendant’s intent was 156 N.H. at 277 (quotation omitted), and, therefore, that the trial court’s ruling charged offenses are “closely connected by logically significant factors,” Pepin, defendant’s intent in sendi ng the two text messages and in commit ting the “the defendant was by definition acting recklessly”). We conclude that the 278; see also Bathalon, 146 N.H. at 489 (explaining that, if he acted purposely, p. 11 11

[Downs’s] bad character as a mother, she is more likely to have evidence becomes relevant is through the inference that because of approaching the charged acts in severity. The only manner such . . .. Further, there is no indication that the alleged acts come close to acts is unclear, and also unclear is which acts were directed at [child 2] such evidence and the assault at question. The timing of most of the Downs’s treatment of her children and [child 2], there is no link between Although the evidence [the defendant] wi shes to present does touch on

R. Ev. 404(b). The court stated: that it was inadmissible propensity evidence pursuant to Rule 404(b). See N.H. Here, the trial court evaluated the proffered evidence and determined

case.” Id. the court’s ruling was clearly untenable or unreasonable to the p rejudice of his trial court’s decision is not sustainable, the defendant must demonstrate that absent an unsustainable exercise of discretion.” Id. at 589. “To show that the not reverse the trial court’s decision limiting the scope of cross - examination to limit the examination’s scope on improper matters of inquiry.” Id. “We will a defendant the right to cross - examine a witness, it possesses broad discretion grounds.” Id. (citation omitted). “While the trial court may not completely deny evidence. Therefore, a judge may exclude a witness’s testimony on evidentiary does not entitle the defendant to introduce evidence in violation of the rules of witnesses is not unfettered.” State v. Spaulding, 147 N.H. 583, 588 (2002). “It “Though fundamental, a defendant’s right to cross - examine prosecution children, the trial court violated his constitutional right to confront witnesses. cross - examin ing Downs about her alleged abusive behavi or towards her We next address the defendant’s contention that, by preventing him from

and to produce all favorable proofs. that the trial court did not violate the defendant’s rights to compulsory process produce their testimony,” State v. Graf, 143 N.H. 294, 296 (1999), we conc lude Constitution] give a defendant only the right to produce witnesses, not to produce all favorable proofs under Part I, Article 15 [of the New Hampshire Compulsory Process Clause of the Federal Constitution and the right to was prevented from producing any witnesses at trial. Because “[b] oth the examine Downs about certain subject matter, and he does not contend that he proofs. The defendant argues only that he was denied the ability to cross children violated his rights to compulsory process and to present all favorable the defenda nt to cross - examine Downs about her prior alleged treatment of the On appeal, the defendant contends that the trial court’s refusal to allow

federal law only to aid our analysis. State v. Ball, p. 12 124 N.H. 226, 231 - 33 (1983). address the defendant’s claims under the State Constitution and rely upon trial. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, VI, XIV. We first 12

N.H. 316, 320 - 21 (1988). “Actual prejudice exists if the defense has been violation somehow caused [the defendant] prejudice.” State v. Colbath, 130 As we have stated, “relief for a Brady violation requires proof that the

trial, dismissal of the charges was warranted. further argues that, because the motion was not disclosed until the middle of his trial preparation as Downs’ s “credibility was the primary issue at trial.” He Brady, the sealed motion sh ould have been turned over to him earlier to aid in Downs’s agreement with prosecutors. The defendant asserts that, pursuant to that had been filed in the pending criminal case against Downs and referenced trial, the State “intentionally concealed” from him a sealed motion to continue the accused. Id. at 87. The defendant maintains that, until the fourth day of 83. Brady requires the prosecution to disclose material exculpatory evidence to motion to dismiss in which he alleged a Brady violation. See Brady, 373 U.S. The defendant next argues that the trial court erred by denying the

as we do under the State Constitution. compulsory process), we reach the same result under the Federal Constitution confront witnesses); State v. Adams, 133 N.H. 818, 826 (1991) (addressing N.H. at 588 (addressing the rights to present all favorable proofs and to White, 163 N.H. 303, 3 p. 12 12 - 13 (2012) (addressing due process); Spaulding, 147 defendant no greater protection than does the State Constitution, s ee State v. Because, under these circumstances, the Federal Constitution offers the

appellate review. See State v. Fortier, 146 N.H. 784, 79 2 (2001). decline to address it because the argument was not sufficiently developed for additional argument concerning his right “to present a complete defense,” we To the extent that the defendant attempts to assert a distinct and

discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). this argument persuasive, and we conclude that it does not warrant further the defendant,” the trial court violated his right to a fair trial. We do not find simultaneously “allowing in a slate of negative background information about that by excluding the evidence about Downs’ s treatment of the children, while Turning to the defendant’s due process arg ument, the defendant asserts

unreasonable. has failed to demonstrate that the trial court’s ruling was clearly untenable or court’s analysis and conclusion. Accordingly, we conclude that the defendant evidence such as the evidence at issue here. We also agree with the trial We agree with the trial court that Rule 404(b) applies to alternative perpetrator

propensity evidence inadmissible under [Rule] 404(b). perpetrated the assault at question. This is precisely the type of p. 13 13

item in the context of all the evidence, not in isolation.” Id. (quotation omitted). (quotation omitted). “In reviewing the evidence, we examine each evidentiary demonstrating that the evidence was insufficient to prove guilt.” Id. at 355 (20 p. 13 13) (quotation omi tted). “It is the defendant who bears the burden of the light most favorable to the State.” State v. Germain, 165 N.H. 350, 354 - 55 doubt, considering all the evidence and all reasonable inferences therefrom in could have found the essential elements of the crime beyond a reasonable objectively review the record to determine whether any rational trier of fa ct “When considering a challenge to the sufficiency of the evidence, we

insufficiently developed argument). kidnapping charges. See Young, 159 N.H. at 337 (declining to address an Accordingly, we address the sufficiency argument with regard to only the charges, the argument has been insufficiently developed for our review. that the defendant seeks to make a sufficiency argument as to the other the sufficiency of the evidence as to the two kidnapping charges. To the extent briefs contain developed arguments challenging only the trial co urt’s ruling on “State [has] failed to sustain its burden of proof” on all charges, his appellate him of the charges. Although on appeal th e defendant broadly a sserts that the defendant argued that the State failed to produce sufficient evidence to convict motions to dismiss and t o set aside the verdicts. In both motions, the Finally, t he defendant contends that the trial court erred in denying his

defendant’s motion to dismiss. See Stickney, 148 N.H. at 236. therefore, we conclude that the trial court did not err in denying the the initial nondisclosure “impeded to a significant degree” the defendant’s case; and expose possible biases of the witness). The record does not establish that provides the defendant with an opportunity to impeach a witness’s c redibility State v. Stowe, 162 N.H. 464, 467 (2011) (explaining that cross - examination her agreement with the prosecution, thereby challenging her credibility. See the request. Moreover, the defense was able to cross - examine Downs about minutes” to review the motion in advance of oral argument. The court granted was given a copy, the defendant asked the court for “approximately five to unseal. A dditionally, after the court unsealed the motion and the defendant several hours before the court heard oral argument on the defendant’s motion agreement with Downs several hours before Downs began to testify, and The defendant was apprised of the motion and the nature of the prosecution’s dismiss because the defendant has failed to demonstrate pr ejudice. See id. conclude that the trial court did not err in denying the defendant’s motion to exculpatory material that should have been disclosed to the defense earlier, we Assuming, without deciding, that the sealed motion to continue was

N.H. 232, 236 (2002). impeded to a signi ficant degree by the nondisclosure.” State v. Stickney, p. 14 148 14

door shut when she tried to enter. Downs also testified that child 2 had not defendant had covered up the shed’s windows with shirts and held the shed several hours during the night of the incident. Downs further te stified that the also showed that the defendant remained alone in the shed with child 2 for at birth,” demonstrated the defendant’s hostility towards child 2. The evidence “retarded f *** ing a ** hole[]” and a “faggot” who should have been “drown[ed] . . . messages from Downs’ s phone, in which the defendant referred to child 2 as a However, the evidence belies the defendant’ s assertions. First, t he text

herself from blame when the p olice arrived.” inflicted the injuries on [child 2] . . . and pointed to [the defendant] to shield evidence presented at trial, it “is an entirely rational conclusion that Downs 633:1, I(c), II; RSA 633:1, I - a, II. He also asserts that, given the circumstantial he inten ded to conceal the child from Downs, as required by statute. See RSA defendant “confined [child 2] with the specific purpose to terrorize him” or that do ubt. Specifically, he contends that there was no evidence showing that the charges was insufficient to support a finding of guilty beyond a reasonable The defendant argues that the evidence presented on the two kidnapping

dismiss, we address the defendant’s arguments concurrently.” Id. standard is the same as that applied in r eviewing the denial of the motion [] to Fandozzi, 159 N.H. 773, 782 (2010) (quotation omitted). “Given that this beyond a reasonable doubt that he was guilty of the crime charged.” State v. reasonable inf erences drawn in favor of the State, was insufficient to prove burden of establishing that the evidence, viewed in its entirety and with all “To succeed on his motion to set aside the verdict, the defendant has the

Id. at 361 - 62 (quotation omitted). rational juror could not hav e found proof of guilt beyond a reasonable doubt.” determines whether the alternative hypothesis is sufficiently reasonable that a evaluates the evidence in the light most favorable to the prosecution and fashi on.” Id. (quotation and brackets omitted). “Rather, the reviewing court suggested by defendant which could explain the events in an exculpatory “The court does not determine whether another possible hypothesis has been all reasonable conclusions based upon the evidence have been excluded.” Id. conclusion consistent with innocence has been exclu ded, but, rather, whether guilt.” Id. at 361. “The proper analysis is not whether every possible establish that the evidence does not exclude all reasonable conclusions except elements of the charged offense is solely circumstantial, the defendant must a sufficiency of the evidence challenge when the evidence as to one or more beyond a reasonable doubt.” Id. (quotation omitted). However, “[t]o prevail on “Circumstantial evidence may be sufficient to support a finding of guilty

be reasonably drawn therefrom.” Id. (quotation omitted). inferences from facts found as a result of other inferences, provided they can “Further, the trier may draw reasonable inferences from facts proved and also p. 15 15

DALIANIS, C.J.