2015-0484, The State of New Hampshire v. Abraham DePaula

assaults that occurred during the burglary; (3) allowed the State to introduce preclude the State from introducing testimony regarding physical and sexual alleged involvement in an unrelated homicide; (2) denied his motion in limine to erred when it: (1) ruled that his testimony opened the door to evidence of his (2016); RSA 637:3 (2016). On appeal, the defendant argues that the trial court commit theft by unauthorized taking. See RSA 635:1 (2007); RSA 629:3 five counts of theft by unauthorized taking, and two counts of conspiracy to following a jury trial in Superior Court (Delker, J.), on one count of burglary, LYNN, J. The defendant, Abraham DePaula, appeals his convictions,

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

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

No. 2015 - 0484 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

Sanchez assaulted J.U. In support of its theory, the State presented testimony T he State further asserted that Menagerman sexually assaulted D.C., and entering the residence whil e the defendant primarily remained outside in a car. defendant committed the home in vasion, with Menagerman and Sanchez T he State ’s theory at trial was that Menagerman, Sanchez, and the

moved a number of his guns and valuables to a nother location. J.U. testified that he became suspicious as a result of the July 16 visit and landscapers and feigned confus ion about the location of a nearby residence. in an effort to learn who occupied J.U.’s home, approached the home pos ing as occurred on July 16, when the defendant, Walker, Menagerman, and Sanchez, his home while the rest of the group waited in a nearby car. The second trip invasion. The first trip occurred on July 11, when Soltish approached J.U. at T he group made several trips to J.U.’s home in preparation for the home

and Sanchez to help steal and sell J.U.’s guns. a friend and described it to Walker, who en listed the defendant, Menagerman, guns. Soltish testified that she became aware of J.U.’s gun collection through Menagerman, and the defendant conspired to break into J.U.’s home to steal presented evidence that Avery Walker, Holli Soltish, Angel Sanchez, Max with par ticipation in the home invasion. At the defendant’s trial, the State The defendant and several other individuals were eventually charged

and got help from a passerby who called the Ha mpstead Police. forty minutes, the intruders left. J.U. broke free of his bonds, went out side, third person was “moving stuff out of the back room.” After approximately door handing stuff out and a little bit of whispering,” while J.U. testified that a house at some point; D.C. testified that she “could hear somebody at the front house. Both testified, however, that the y believed a third person entered the assailant. Neit her J.U. nor D.C. could identify the assailants who entered the started to c arve his name into J.U.’s back before being stopped by the first she was sexually assaulted by one of the assailants. The other assailant the house. At some point, D.C. was bound and taken into the bathroom, where intruders demanded more guns. J.U. told them that he had no ot her guns in unlocke d the room. Dissatisfied with the guns located in the room, t he guns. J.U. led one assailant to a lock ed room where he kept some guns and blindfolded and beat the two, while demanding to know where J.U. kept his J.U and his friend D.C. were in the house at the time. The intruders p.m. on July 18, p. 2 2011, two armed men entered J.U.’s house in Hampstead. The j ury could have found the following facts. At approximately 3:30

theft convictions. We affirm in part and vacate in part. of cell towers; and (4) sentenced t he defendant on both conspiracy to commit lay testimony from custodians of cellular telephone records regarding the range p. 3 3

happening from each of their testimony to them. The testimony is in this case so that you can properly understand what was memory, emotional state at the time of the observation s they made you to evaluate [J.U.’s] and [D.C.’s] testimony, their perceptions, despite the fact that he’s not charged with those crimes, is to allow The reason that I have allowed that evidence into this case,

with either of those crimes. I’ve already told you in this case, [the defendant] is not charged [J.U.’s] back with the knife, and the sexual assault of [D.C.] So as witnesses have and will provide in this case about the injury to Relating to the testimony that this witness and other

testified regarding the physical assault: At trial, the court gave the following limiting instruction after J.U.

testimony about that assault. the same mitigating factors would cure any prejudice cre ated by J.U.’s physical assault of J.U. was probative fo r similar reasons, and concluded that which he was charged. The court determined that the evidence relating to the assault, which he asserted was “vastly different in nature” from the crimes with well as by the fact that the defendant was not accused of committing the prejudice would be mitigated by providing a limiting instruction to the jury, as acknowledged that the testimony was prejudicial, it concluded that the trauma that D.C. experienced. (Quotation omitted.) Although the court contemporaneously with the home invasion and explained the high d egree of “to complete the story” of t he burglary because the assault occurred addition, it found that t estimony regarding the sexual assault was necessary allowed the jury to better evaluate D.C.’s and Menendez’s testimony. In was probative because it placed Menagerman at the scene of the crime and of Evidence 401 and 40 p. 3 3, that certain testimony related to the sexual assault After a hearing, the court concluded, pursuant to New Hampshire Rules

therefore, were relevant a nd integral to J.U.’s and D.C.’s testimony. inextricably intertwined with the acts charged against the defendant, and unfairly prejudicial. The State objected, arguing that the assaults were because the testimony would be inflammatory in nature and was, therefore, because he had not been charged with any crime relating to the assaul ts, and against J.U. He asserted that evidence of the assaults was inadmissible evidence regarding the sexual assault against D.C. and the physical assault Before trial, the defendant moved t o exclude from trial all testimony or

him to find buyers for the stolen guns. Menendez also testified that the defendant, Sanchez, and Menagerman asked Sanchez showed him firearms that they had stolen from J.U.’s home. from Aneudys Menendez, who said that, after the crime, the defendant and p. 4 4

t he State argued that the defendant had opened the door to evidence of In response to t he defendant’s testimony about his actions on July 11,

Soltish “knew someone who had a license to purchase gun s.” He testified that Sanchez translated what Soltish said, and told him that thought the purpose of the trip was to help the defendant “buy an illegal gun.” admitted to being present on the July 11 Hampstead trip, but testified that he hospital with his wife, who was giving birth to their child. The defendant testimony and that of other witnesses that he had spent most of July 18 at the The defendant presented an alibi defense, claiming through his own

18 home invasion. were in the vi cinity of Hampstead on July 16 as well as at the time of the July tower information, the maps indicated that the three individuals’ cell phones defendant, Menagerman, and Sanchez on July 16 and 18. Based upon the cell created maps that indicated which cell towers were used by the phones of the provided maps of the cell tower network. With this information, the analyst reviewed the cell phone records and compared the cell site data to company from an analyst from the New England State Police Information Network, who which cell phones connect to cell tow ers. The State also presented testimony towers used by their respective companies, as well as the basic method by other two custodians discussed the average and maximum ranges of the cell custodian testified about the collection and storage of cell phone records. T he custodians who were employed at major cell phone service providers. The first The State presented testimony at trial from three cell phone records

phones in society. (Quotation omitted.) the ken of the averag e jury” based on the ubiquity of cell phones and smart finding that general “testimony of how calls attach to cellphone towers is within custodians of cell phone records. After a hearing, the court denied the motion, constituted expert testimony and could not be introduced by non - expert the conspirators’ cell phones at certain times, claiming that such evidence admissibility of evidence concerning the location of the cell towers that serviced Also p rior to tr ial, the defendant filed a motion in limine challenging the

crimes. D.C.’s testimony, and that the defendant had not been charged with those assault that such testimony was admitted only for the purpose of evaluating The trial court reminded the jury after D.C.’s testimony regarding the sexual

purpose in this case. the only reason you should use that evidence for that limited So that’s the reason I’m allowing that evidence in, and that’s

perceptions, memory, and the reliability of their testimony. to be considered by you only as it impacts these two witness es’ p. 5 5

testimony was misleading, the court erred by allowing the rebuttal evidence defendant argues that his testimony was not misleading, and that, even if his to rebuttal evidence that he was involved in the Manchester homicide. The ruling that his testimony about the July 11 visit to Hampstead opened the door We first address the defendant ’s assertion that the trial court erred in

This appeal followed. Following a nine - day trial, the defendan t was convicted of all charges.

homicide. So no one has been charged in connection with that Manchester are no pending charges in connection with the Manchester case. And one more point on that . . ., ladies and gentlemen, there

limited purpose of rebutting hi s testimony. Hampstead case. That’s -- the evidence was introduced with a very been involved in other bad conduct, he must have committed the rebutting his testimony. You can’t infer that because he may have The evidence was introduce d solely for the purpose of

he -- if he did that, he must have done the Hampstead case. conclude that he was involved in that ca se, you can’t then say well there is one, to that Manchester case to conclude that if you allowed to use the evidence about his affiliation, if you do find that Defendant’s direct testimony during. . . t his trial. You are not The evidence was introduced for the purpose of rebutting the

homicide evidence that you heard in the State’s rebuttal case. intended to give you that I didn’t [a] b out the use of the Manchester instruction s that before the parties rested in the case that I had So ladies and gentlemen, I just had a conversation here about

regarding the evidence of the murder: of all the evidence, the tri al court gave the following limiting instruction Menendez watched a television news story reporting on that crime. At the close Menagerman, had bragged to him about committing the murder while they and and testimony by Menendez that the defendant and Sanchez, later joined by Menagerman, and Sanchez were in Manchester around the time of the murder, consisted of records reflecting that the cell phones of the defendant, Menagerman, and Sanchez allegedly participated. The rebuttal evidence late r on July 11 or early the followi ng morning, in which the defendant, present rebuttal evidence of an unrelated murder t hat occurred in Manchester in the events of that day. The trial court agreed, and allowed t he State to unrelated crimin al activity that refuted his claim to be an unwitting acc omplice p. 6 6

complainant one or two weeks prior to the alleged assault. Id. at 5 p. 6 64. The tri al about an incident in which his cousin had consensual sex with the her boyfriend. Id. at 563 - 64. The defendant attempted to introduce testimony boyfriend, implying that she did not have s exual relations with men other than testified that she rejected the defendant’s advances because she had a felonious sexual assault. Cannon, 146 N.H. at 563. At trial, the complainant (2001). In Cannon, the defendant was convicted of one count o f aggravated Cannon, 146 N.H. 562, 565 - 66 (2001); State v. Carlson, 146 N.H. 52, 57 - 58 conclusions that may be drawn from a witness’s testimony. See State v. We have previously held that the door can be opened by inferential

individual who was unaware of the criminal purpose of the July 11 trip. innocent” who never agreed to commit criminal acts, but rather as merely an misleading impression because he did not characterize himself as a “wide - eyed T he defendant asserts that his testimony at trial did not create a

case. See i d. court’s decision was clearly untenable or un reasonable to the prejudice of his 1 p. 6 60 N.H. 569, 579 (2010). To prevail, the defendant must show that the trial using our unsustainable exercise of discretion standard. State v. Nightingale, trial court ’ s decision to admit evidence under the “opening the door” doctrine particular testimony.” Id. (quotation omitted). Consequently, w e review the “The trial court is in the best p osition to gauge the prejudicial im pact of

contradiction doctrine is at issue in this case. vehicle for the introduction of prejudice. Id. (q uotation omitted). T he specific doctrine is intended to prevent prejudice and is not to be subverted into a has been opened” does not permit all evidence to “pas s through” because the misleading advantage. I d. With respect to this prong, the fact that the “door previously suppressed or otherwise inadmissible evidence to counter the advantage for that party, and the opposi ng party is then permitted to introduce which a party introduces admi ssibl e evidence that creates a misleading the doctrine of “specific contradiction,” applies more broadly to situations in other evidence to counter the prejudice. I d. The second, which we have called erroneously admitted by one party, and the opposing party seeks to introduce “curative admissibility,” arises when inadmissible prejudicial evidence has been 390, 39 p. 6 6 (2014). The first, which we have described as the doctrine of door” in the context of two subsidiary doctrines. See State v. Gaudet, 166 N.H. We have usually considered t he evidentiary doctrine of “opening the

adequately limit the risk of unfair prejudice. unfairly prejudicial that even the trial court’s curative instructions could not he allegedly committed a murder and bragged about it afterwards –– is so defendant contends that the rebuttal evidence –– specifically the testimony that because it relied upon an improper propensity inference. Moreover, the because it was unrelated to the acts for which the defendant was cha rged and p. 7 7

purpose of the trip. Although the defendant did not explicitly state that he highly probative of the defe n dant’s credibility as to his knowledge of the buy an “illegal” gun, the evidence of the Manchester homicide was nonetheless But even if we accept that the defendant did testify that he planned to

claiming to be in Hampstead on that date for an innocent purpose. to seeking to purchase a supposedly “illegal” gun shows that h e was not does he advance the position relied upon by the dissent — that his adm ission the gun he allegedly traveled to Hampstead to buy on July 11 was “illegal,” nor Manchester ho micide does the defendant contend that the defendant testified issue of the asserted error by the trial court in admitting evidence of the “illegal” gun. Most importantly, nowhere in his appellate brief addressing the referencing th e fact that the defendant had testified he planned to buy an defendant’s counsel made no effort to clarify or correct the court’s statem ent by essentially an innocent trip to buy a gun from a licensed gun dealer,” the contradict the defendant’s testimony “that the trip to Hampstead was explained that it was permitting evidence of the homicide to be admitted to Additionally, at the conclusion of that discussion, when the trial court the defendant testifying that the gun he intended to buy was “illegal.” regarding the Manches ter homicide no mention whatsoever was made about counsel and the court concerning the State’s request to elicit evidence review of the transcript reflects that during the entire discussion between gun, there is reason to doubt that the transcript is accurate on this po int. A the transcript of the defendant’s testimony does reflect that he said “il legal” portray himself as a wholly innocent person. Although we acknowledge that significant because it refutes the notion that the defendant was attempting to said he went to Hampstead to buy an illegal gun, asserting that this is license to purchase guns.” The dissent emphasizes the fact that the defen dant Sanchez had told him that Soltish had said that she knew “someone who had a accompanied the group to Hampste ad on July 11 to purchase a gun after The same reasoning applies here. The defendant stated that he

58. that he had previously had sexual relations with an underage girl. Id. at 5 p. 7 7 the defendant had opened the door to admission of evidence demonstrating also hav e been other reasonable interpretations of the statement, we held that legal consent.” Carlson, 146 N.H. at 57. Thus, notwithstanding that there may not within his character to engage in sexual activity with girls under the age of could logically have been interpreted by the jury as an assertion that “it was point during the evening of the assault he said, “I’m leaving. This isn’ t me,” I n Carlson, we concluded that the defendant’s testimony that at some

t he defendant to submit rebuttal evidence on that new issue. Id. at 565 - 6 6. advances directly affected the issue of consent and thereby opened the door for complainant’s testimony regarding her reason for rejecting the defendant’s court excluded the testimony. Id. We rev ersed, concluding that the p. 8 8

Santana’s claim that he was just an innocent bystander who was ‘merely participants, the government gave the jury a reason to view skeptically defendants] was involved in a completed drug venture with some of the s ame offering evidence of a second [later] incident in which Santana [one of the convictions); United States v. Rodriguez, 215 F.3d 110, 119 (1st Cir. 2000) (“By buyer’s car, trial court properly admitted evidenc e of defe ndant’s prior drug nothing to do with delivery of marijuana, which j ust “mysteriously appeared” in created impression that defendant had legitimate sources of income and had (when, through cross - examination of government witness, defense counsel (19 p. 8 80); see also United States v. Pelle tier, 666 F. 3d 1, 5 - 6 (1st Cir. 2011) purpose of the July 11 trip. See State v. Donovan, 120 N.H. 603, 607 - 08 mistranslated the conversation to keep him from knowing the true criminal highly probative in rebutting the defendant’s implied assertion that Sanchez day to participate in a murder with the defendant, would find such evidence be little doubt that a jury, upon learning that Sanchez was willing on the same conspiracy, Sanchez and Menagerman, and then bragge d about it. T here can defendant committed a homicide in Manchester with two members of the presented by the State showing that, only hours after t he July 11 trip, t he in the dark by his companions. That implication could be rebutted by evidence about the conspiracy or the true purpose of the trip because he had been kept he went to H ampstead to purchase a gun, which implies that he did not know Sa nchez mistranslated the conversation. I t is the defendant’s testimony that “participated in another unrelated crime.” Yet the issue is not merely whether translated the conversation,” rather than by testimony that the defendant testimony of another occupant of the car [indicating] that Sanchez accurately argues that his testimony “could have been specificall y contradicted by the criminal purpose of the July 11 trip –– also is unpersuasive. The defendant specifically contradict his testimony that he did not understand the true of the unrelated murder should not have been admitted because it does not For similar reasons, t he defendant’s next contention –– that the evidence

testimony. door for the State to pre sent evidence that rebutted the implications of his to buy a gun (whether legal or illegal). O nce he did so, however, he opened the he required to create an impression of himself as a person who merely wanted no obligation to describe his reasons for j oining the group on this trip, nor was someone, the defendant injected a new issue into the case. The defendant had the purpose of the trip to Hampstead on July 11 was to buy a gun from defendant was ignorant of the conspiracy. Thus, b y claiming that he thought trip. This, in turn, could have left the jury with the impression that the would not have travelled to Hampstea d had he known the true purpose of the translation of Soltish’s statements. That testimony suggests that the defendant purpose of the group’s July 11 visit because of Sanchez’s inaccurate intimated that he was “innocent” in the sense that he was unaware of the true was, as the State claimed, a “wide - eyed innocent,” the defendant’s testimony p. 9 9

not be used for the purpose of inferring that the defendant must have murder was to rebut the defendant’s test imony, and that this evidence could that the sole purpose of introducing the testimony relating to the Manchester limiting instruction s, which the jury is presumed to have followed, explaining believe the risk was s ignificantly reduced by the trial court’s clear and proper evidence of the Manchester homicide carried a risk of undue prejudice, we 75; Cassavaugh, 161 N.H. at p. 9 98. Although we acknowledge that admission of “established propositions” of law in the case. See Nightingale, 160 N.H. at 574 emotion, anger, bias, sympathy or some other grounds aside from the it has an undue tendency to provoke a decision by the jury based up on excluded, the evidence must be unfairly prejudicial, which typically means that 160 N.H. at 574; State v. Cassavaugh, 161 N.H. 90, 98 (2010). Instead, to be evidence offered by the prosecution is meant to be prejudicial. See Nightingale, detrimental to the opposing party’s position, for in this sense all relevant because it is prejudicial, in the sense t hat it tends to prove facts that are A s we have often noted, evidence is not precluded from admission merely

instant case. do not believe that the cases cited by the defendant are persuasive in the him, State would be permitte d to elicit from witness basis for bias). Thus, we its discretion in ruling that, if defendant chose to expose witness’s bias against also Blackstock, 147 N.H. at 7 p. 9 97 (holding that trial court sustainably exercised commit perjury w ithout fear of contradiction. See Taylor, 139 N.H. at 100; s ee theoretically enjoy a license to make affirmative misrepresentations and Blackstock, 147 N.H. 791, 797 (2002). Were the rule o therwise, a party could particularly strong interest in being able to refute such evidence. See S tate v. creates a misleading advantage for that party, the opposing party has a have recognized, when, as here, a party introduces admissible evidence that N.H. 583, 59 0 (2009), and State v. Taylor, 139 N.H. 96, 99 - 100 (1994). As we 146 N.H. at 546 - 48, and Pelkey, 145 N.H. at 135, with State v. Wamala, 158 State introduced the prejudicial evidence in the first instance. Comp are Ayotte, into the trial by the defendant’s own testimony. R ather, in those cases, the which the State introduce d rebuttal evidence to respond to an issue injected involved the “opening the door” doctrine; that is, none involved situations in The se cases, however, are factually distinguishable. None of them

145 N.H. 133, 137 (2000). evidence. See, e.g., State v. Ayotte, 146 N.H. 544, 54 p. 9 9 (2001); Stat e v. Pelkey, court’s limiting instruction s were insufficient to cure the taint of prejudicial In support of his position, he cites several cases in which we held that the risk of unfair prejudice” that could not be mitigated by a limiting instruction. the evi dence of the Manchester homicide because of its “extraordinaril y high Finally, we turn to the defendant’s claim that the court erred in allowing

participant in the crimes charged i n the indictment.”). present,’ but rather to conclude that he was a knowing and intentional p. 10 10

prejudice.” Id. (quotation omitted). Thus, we give the trial court broa d latitude particular testimony, and what steps, if any, are necessary to remedy that “The trial court is in the best position to gauge the prejudicial impact of

offered is established by other evidence, sti pulation, or inference. Id. of resentment or outrage; and (3) the extent to which the issue upon which it is emotional impact upon a jury; (2) its potential for appealing to a juror’ s sense in weighing the evidence are: (1) whether the evidence would have a great commonly one that is emotionally charged. Id. Among the factors we consider tendency to induce a decision against the defendant on some improper basis, Rather, the prejudice required to predicate reversible error is an undue offered by the prosecution is meant to be prejudicial. Willis, 165 N.H. at 21 6. from the tendency of the evidence to prove guilt, in which sense all evidence (2013). As we explained, u nfair prejudice is not mere detriment to a defendant cumulative evidence.” N.H. R. Ev. 403; see State v. Willis, 165 N.H. 206, 216 or by considerations of undue delay, waste of time, or needless presentation of the danger of unfair prejudice, confusion of the issues, or misleading the jury, evidence may be excluded if its probative va lue is substantially outweighed by evidence.” N.H. R. Ev. 401. Under Rule 403, however, even “relevant. . . the action more probable or less probable than it would be without the make the exis tence of any fact that is of consequence to the determination of According to Rule 401, e vidence is relevant if it has “any tendency to

inflammatory nature of the evidence. decision, including its limiting instruction, were insufficient to cure the defendant argues t hat the three considerations offered by the court in its highlighted by statements in the State’s closing argument. Finally, the because of the heinous and extreme details of the assaults, which were probative value was substantially outweighed by the danger of unfair prejudice themselves. Moreover, the defendant asserts that the min imal d egree of attacking her, could have been discussed without reference to the assaults assault, such as D.C.’s testimony that her attacker repeatedly sneezed while probative value under Rule 401, he maintains that the probative details of the concedes that the evidence of the physical and sexual assaults possess es some physical and sexual assaults against J.U. and D.C. Although t he defendant Hampshire Rules of Evidence 401 and 403 b y admitting evidence of the The defendant next argues that the trial court erred under New

discretion. evidence about the Manchester homicide was not an unsustainable exercise of Accordingly, we conclude that the trial court’s decision to admit the

criminal conduct. See Gaudet, 166 N.H. at 397. committed the crimes at issue because he had a propensity to engage in p. 11 11

cases in which a limiting instruction cannot sufficiently red uce the risk of lessened the risk of unfair prejudice. Although we recognize that there are egregious conduct attributed to Sanchez and Menagerman, on the other, conduct attributed to the defendant, on the one hand, and the far more or knew of either of the assaults. Furthermore, the dissimilarity between the when the assaultive conduct occurred, there was no evidence that he witnessed assailants and his possible presence in the house during some of the time the assaults and, n otwithstanding the defendant’s close connection to the because of the nature of those crimes. Yet the defendant did not participate in undoubtedly carri ed the potential to in flame the jury against the offenders value. See Wells, 166 N.H. at 80. The evidence about the assaults from the admission of this testimony substantially outweighed its probative We next consider whether the danger of unfair prejudice to the defendant

testimonies of the assaults carr ied a high degree of probative value. are two useful tools in the jury’s assessment of credibility). Thus, the N.H. 714, 71 8 - 19 (1996) (noting that the witness’s tone of voice and demeanor may have jeopardized their credibility with the jury. Cf. State v. Giles, 140 their retelling of the home invasion without appearing overly emotional, which (2015). It is doubtful that the victims could have excluded the assaults from (2013), modified in part on other grounds by State v. King, 168 N.H. 34 0, 345 observations of the home invasion. See State v. Germain, 165 N.H. 350, 359 that D.C. and J.U. experienced, and how that trauma affected their of the assaults was necessary in or der for the jury to understand the trauma noted, the reliability of witness testimony is always relevant, and the evidence realisti cally evaluate the evidence” (q uotation omitted)). As the trial court and su bsequent to the commission o f the charged act so that it may a vacuum, and the jury has a right to hear what occurred immediately prior to intertwined, “other act” evidence is admissible because “events do not occur in that when evidence of “other act” and evidence of crime are inextricably and inextricably int ertwined with the home invasion. See id. at 78 (explaining Moreover, as the trial court found, the assaults were contemporaneous to

Menagerman, who is allergic to cats, to the conspiracy and burglary. assailant repeatedly snee zed in the bathroom containing a cat box connects Sanchez’s identity as one of the co - conspirators. Similarly, t he fact that D.C.’s into J.U.’s back, the testimony about the physical assault was probative of becau se o ne of the assailants carved “what could be the beginning of an ‘A’” participated in the conspiracy with the defendant. As the trial court found, r elating to the assaults was relevant to the identities of the individuals who probative value of the evidence. See Wells, 166 N.H. at 80. Here, the evidence To perform the balancing required by Rule 403, we first consider the

exercise of discretion. Id. and we will not disturb the trial court's decision absent an unsustainable when ruling on the admissibility of potentially unfairly prejudicial evidence, p. 12 12

part by 824 F.3d 421, 424 n.1 (4th Cir. 2016), appeal docketed, No. 16 - 6308 (U.S. Oct. 4, 2016); See, e.g., United States v. Graham, 796 F.3d 332, 364 - 65 (4th Cir. 2015), adopted in relevant 2 hold that the defendant’s argument is preserved for our review. concerns in a motions hear ing before the court, and then r enewed his objection at trial. Thus, we establishes that the defendant objected to this testimony in a motion in limine, reiterated those towers and the fact that cell phones attach to the clo sest avai lable tower. However, the record review, specifically his arguments relating to the testimony about the maximum range of the cell The State argues that “certain aspects” of the defendant’s argument were not preserved for our 1

Johnson, No. 16 - 0265 2017 WL 878720, at *8 (W. Va. Mar. 2, 2017). We note 2 site data analysis as proper lay testimony under certain conditions.” State v. other jurisdictions have addressed it, and several have “treated historical cell Although this issue is one of first impression for this court, courts in

public.” Gonzalez, 150 N.H. at 77 (quotation omitted). experience, or observation not within the common knowledge of the general mechanical, professional or other like nature, which requires special study, R. E v. 701. Conversely, e xpert testimony involves “matters of scientific, understanding of the testimony or the determination of a fact in issue.” N.H. rationally based on the perception of the witness, and (b) helpful to a clear lay witnesses must be “limited to those opinions or inferences which are (a) New Hampshire R ule of Evidence 701 states that opi nion testimony by

custodians who appeared at the trial were unqualified to provide. 1 testimony,” and thus constituted expert testimony, which the records selection prefere nce for the nearest tower, did not fit within the definition of lay operation, “especially . . . the maximum radius of cell phone tower s and the The defendant argues that details pertaining to a cell phone tower’s

omitted). unreasonable and that the error prejudiced the party’s case.” Id. (quotation if the appealing party can demonstrate that the ruling was untenable or State v. Gonzalez, 150 N.H. 74, 77 (2003). We will reverse the trial court “only ruling to determine whether it was an unsustainable exercise of discretion. admitting evidence about the range of cell towers. We review the trial court’s We next address the defendant’s contention that the trial court erred in

physical and sexual assaults. did not unsustainably exercise its d iscretion in admitting evidence o f the substantially outweigh its probative value. Thus, we hold that th e trial court assaults, we cannot conclude that the evidence was so inflammatory as to about the assaults. Consequently, desp ite the prejudicial nature of the sufficiently reduced the risk of unfair prejudi ce arising from the testimony limiting instructions, taken together with the above - mentioned considerations, unfair prejudice, s ee Pelkey, 145 N.H. at p. 13 137, here, the trial court’s multiple 13

years as a customer” of a cell phone provider. Manzella, 128 S.W.3d at 6 09. un qualified to provide expert testimony about cell towers based upon his “life experiences and ten Missouri Appeals Court affirmed the trial court’s determination that the defendant was See id. at 200 - 02. In t he third case, State v. Manzella, 128 S.W.3d 602 (Mo. Ct. App. 2004), the discuss, as a lay witness, elementary concepts relating to the range and operation of cell towers. particular witness qualified as an expert, not whether a cell phone records custodian could qualified as a reliable expert. Wilson, 195 S.W.3d at 2 02. T he pertinent issue was whether that custodian’s testimony because the witness possessed sufficient specialized knowledge to be Texas C ourt of Appeals held only that a trial court did not err b y admitting a cell phone records In the second case cited by the defendant, Wilson v. State, 195 S.W.3d 193 (Tex. App. 2006), the more restrictively than we have, as evidenced by our decision in Cochrane, discussed in the text. also followed prior Maryland precedent, which interprets the permissible bounds of lay testimony Ev. 702. See Wilder, 991 A.2d at 200. Compare Md. Rule 5 - 702 with N.H. R. Ev. 702. Wilder Wilder relied upon Md. Rule 5 - 702, which contains substantially different language than N.H. R. 198 (Md. Ct. Spec. App. 2010), to support his assertion. We find those cases unpersuasive. The defenda nt also relies on three state cases, most notably Wilder v. State, 99 1 A.2d 172, Guerrero holds no persuasive value for the case at bar. location in relation to the cell towers, or some other matter. See id. Absent such elucidation, (somet hing which the trial court here acknowledged wou ld require expert testimony), his general did not elucidate whether the expert testified as to the precise location of the defendant defendant] was when he placed calls.” Guerrero, 768 F.3d at 356 - 57, 365. However, the court adequately qualified to “interpret[] the historical cell site information that indicated where [the an expert. In Guerrero, the Fifth Circuit Court of Appeals held that an expert witness was claim that testimony re garding the “maximum range of cell phone towers” m ust be presented by The defendant cites United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), to support his 3 172 So. 3d 724, 743 - 44 (Miss. 2015); State v. Patton, 419 S.W.3d 125, p. 13 132 (Mo. Ct. App. 2013). 2008). But see Wilder v. State, 991 A.2d 172, 197 - 200 (Md. Ct. Spec. App. 2010); Collins v. State, 989, 1016 - 17 (Ala. Crim. App. 2011); Perez v. State, 980 So. 2d 1126, 113 1 - 32 (Fla. Dist. Ct. App. United States v. Feliciano, 300 F. App’x 795, 801 (11th Cir. 2008); Woodward v. State, 123 So. 3d.

regarding the administration and interpretation of the Horizontal Gaze intoxicated. Id. at 420. He argued that the arresting police officer’s testimony Cochrane, for instance, the defendant appealed his conviction for driving while testimony. See, e.g., State v. Cochrane, 153 N.H. 420, 423 (2006). In testimony regarding matters which, if discussed in detail, would require expert We have previously found that individuals can present limited lay

experience. Id. (quotation omitted). knowledge” regarding the operation of cell towers because of his training and Furthermore, the court found that the custodian possessed suf ficient “personal phone r eception depends largely on one’ s p roximity to a cell phone tower.” Id. intelligence would almost certainly understand that the st rength of one ’ s cell Kale, 445 F. App’x at 485. T he court concluded that “a person of average 3 records detailing the locations of cell towers used to carry out his phone calls.” “reading and interpreting [the defe ndant’s] cell phone records, including of cell phone towers” did not constitute expert testimony because it consisted of held that a cell phone records custodian’s “limited discussion of the operation guidance. I n United States v. Kale, 445 F. App’x 482 (3d Cir. 2008), the court Evid. 701 with N.H. R. Ev. 701, and, therefore, we look to federal cases for that Federal Rule of Evidence 701 is similar to our state rule, compare Fed R. p. 14 14

alcohol consumption. Cochrane, 153 N.H. at 421 - 22, 423. Nystagmus is an “involuntary, rapid, back - and - forth jerking of the eyes,” and is associated with 4

consecutive seven and one - half to fifteen year sentences for each conspiracy that there was in fact a single conspiracy, the trial court’s imposition of reconnaissance trip. The defendant argues that because the evidence showed 11 reconnaissance trip, while the second focused on the July 16 two separate conspiracies. The first conspiracy indictment focused on the July to Hampstead were a part, the State indicted the defendant for partic ipating in to commit the home invasion, of which the two reconnaissance or “casing” trips that the defendant and his co - conspirators participated in a single overall plan on both of the conspiracy indictments. Although the S tate’s theory at trial was Finally, the defendant asserts that the trial court erred in sentencing him

the range of cell towers. exercise its discretion in admitting the records custodians ’ testimony regarding juror. Accordingly, we conclude that th e trial court did not unsustainably system referred to in Cochrane, which are wholly beyo nd the ken of the average scientific and neurological mechanisms of the effects of alcohol on the nervous towers. Such understanding is qualitatively different from u nderstanding the elementary concepts underlying the interactions betw een cell phones and cell phones and cell towers in society allows the average juror to understand the Moreover, we agree with the trial cour t’s conclusion that the ubiquity of cell tower and the general ranges of cell towers. See Kale, 445 F. App’x at 485 - 86. to discuss generally the means by which cell phones connect to the closest cell testify as lay witnes ses because they possessed sufficient personal knowledge experience interpreting cell phone records, we hold that the custodians could G iven the cell phone records custodians’ specialized training and

training and experience. See id. at 423. observations during the HGN test were enabled by the officer’s specialized observations; however, his argument disregards the fact that the officer’s our conclusion in Cochrane arose partially from the officer’s personal lay testimony. Id. (emphasis added). The defendant correctly points out that HGN test as established by the NHTSA standards and guidelines” constituted administration of the HGN test in a particular case; and (3) the results of the Traffic Safety Administration (NHTSA) standards and guidelines; (2) the administering and scoring the HGN test bas ed upon the N ational Highway officer’s testimony regarding “(1) his or her training and experience in would qualify as expert testimony.” Id. at 423. W e held, however, that an highly techni cal and .. . [t]herefore, testimony regarding these mechanisms on the nervous system and the phenomenon of nystagmus are specialized and that the “scientific and neurological mechanisms behind the effects of alcohol Nystagmus (HGN) test w as expert testimony. Id. at 421. W e acknowledged 4 p. 15 15

the State Specifically, the court ruled that the defendant had opened the door to allow reason” opened the door to testimony about “his involvement in other cases.” “testimony about being at the scene in Hampstead for a wholly innocent The trial court agreed with the State, ruling that the defendant’s

other information that he would have been aware of, because he was involved.” trip, and, therefore, the defendant had “open[ed] the door to the other acts,” “to testimony portrayed him as a “wide - eyed innocent” with respect to the July 11 (Emphasis added.) Subsequently, the State argued that the defendant’s

that she was going to talk to that person. she brought me to this place in New Hampshire. And she told me that she knew someone who had a lice nse to purchase guns. And said. I want[ed] to buy an illegal gun. And she proposed to Angel Angel Sanchez had translated something that [Holli Soltish] had

thought the purpose of the July 11 visit was to buy an illegal gun. He said: had ever been to the “house in Hampstead,” the defendant testified that he During trial, in response to defense counsel’s question as to whether he

not harmless, I respectfully dissent. con clude that the admission of this testimony was error and that this error was the door to evidence that he was involved in a Manchester homicide. Because I visit to the Hampstead home, prior to the July 18 invasion of the home, opened court did not err in ruling that the defendant’s testimony about the July 11 disagree, however, with the majority’s conclusion in Section II that the trial conclusions set forth in Sections III, IV, and V of the majority’s opinion. I CONBOY, J., concurring in part and dissenting in part. I concur in the

concurred in part and dissented in part. DALIANIS, C.J., and HICKS, J., concurred; CONBOY and BASSETT, JJ.,

one of the conspiracy indictments. conspiracy convictions. Accordingly, we vacate the defendant’s conviction on it was plain er ror for the trial court to sentence the defendant on both The State concedes that, under the facts and circumstances of this case,

error. See Sup. Ct. R. p. 16 16 - A. present this issue to the trial court, he raises it before us as a matter of plain States and New Hampshire Constitutions. Because the defendant did not conviction violates the double jeopardy protections provided by the United 16

misleading impression that “he di d not know about the [theft by unauthorized as well as to other evidence regarding the Manchester homicide, by creating a doctrine, the defendant’s testimony opened the door to Menendez’s testimony, The majority concludes that, pursuant to the specific contradiction

this happened, that happened type of thing.” stood and, you know, what the house looked like or the porch and, you know, t imes because they kept going back, showing me specific places where they opened fire on him.” He stated that “[t]hey showed [the video] to me like three or a hit,” but that “[t]he man reacted a way that they didn’t like and they testified that he learned that “[i]t was suppose[d] to be a . . . robbery, or a drug murdered a man the previous night or something like in those terms.” He “news clipping” about the homicide and “were just bragging about they Menendez testified that the defendant and Sanchez showed him a video

State, on rebuttal, to call Menendez. purpose of why they were going there.” Accordingly, the trial court allowed the Hampstead was innocent,” or (2) that the defendant “misunderstood the testimony conveyed two possible misimpressions: (1) “that [the] trip to illegal gun, the tria l court nonetheless concluded that the defendant’s Thus, although the defendant testified that his goal on July 11 was to buy an

dealer. was essentially an innocent trip to buy a gun from a licensed gun contradict [the defendant’s] testimony that that trip to Hampstead occurred. So I think that that evidence does go directly to the affiliation of the phones with that location where the homicide bragged about it afterwards and the affiliate, the timing of it, and from [Aneudys] Menendez’[s] testimony that [the defendant] specific information that the Defendant was invol ved in that both is very close in time. It is within hours of that trip. There is homicide is tightly tied to the purpose of the trip on July 11th. It the evidence the State proffered . . . with respect to the Manchester

evidence of the Manchester homicide. It stated that allow rebuttal evidence regarding other home invasions, but that it would allow of his involvem ent in either crime. Later, the court ruled that it would not “for [a separate] home invasion,” but it did not question him about the details questioned about a murder in Manchester, and whether he was investigated The State subsequently asked the defendant whether he had been

[conspi rators] are engaged in. part of the pattern of conduct that he and the other two because he had done it before, and he did it again. And this is invasions, that he knew full well why they were going there, to show that he was fully part of this plan to engage in these home p. 17 17

defendant’s statement that his goal was to buy an illegal gun, the defendant transcript e rror, I decline to so speculate. Further, I note that following the testimony, and in the absence of evidence or even argument that there was a wanted to buy an illegal gun. Nonetheless, I cannot ignore the record at trial, and does not on appeal, rely upon the defendant’s testimony that he I recognize that the majority correctly observes that t he defense did not

for a wholly innocent reason.” suggest, as the trial court concluded, that he was “at the s cene in Hampstead someone who generally does not engage in criminal activity. Nor did he fairly be characterized as an effort by the defendant to portray himself as “want[ed] to buy an illegal gun.” (Emphasis added.) This testimony cannot the record contradicts this contention. The defendant testified that he purpose because he did not gen erally engage in criminal activity.” However, Hampstead can create the impression that he did not understand the criminal defendant did not understand the criminal purpose of the group’s trip to contradiction doctrine. The State contends that “a statement that the the Manchester homicide evidence is supportable under the spe cific Given all of the circumstances, I cannot conclude that the admission of

99 (1995) (quotation omitted). subverted into a rule for injection of prejudice.” State v. Trempe, 140 N.H. 95, evidence to pass through. The doctrine is to prevent prejudice and is n ot to be The fact that the door has been opened, however, “does not, by itself, permit all Bird, 161 N.H. 31, 35 (2010); see also State v. Carlson, 146 N.H. 52, 56 (2001). without allowing the opponent to place the evidence in proper context. State v. opponent, and then selectively introducing this evidence for his own advantage, rule thus prevents a party from successfully excluding evidence favorable to his however, have reasonably misled the fact find er in some way. Id. at 590. The State v. Wamala, 158 N.H. 583, 589 - 90 (2009). The initial evidence must, opponent’s introduction of evidence that may not otherwise be admissible. evidence that provides a justification, beyond mere relevance, for the For the specific contradiction doctrine to apply, a party must introduce

rebutted the implications of his testimony. however, he opened the door for the State to present evidence that wan ted to buy a gun (whether legal or illegal). Once he did so, required to create an impression of himself as a person who merely describe his reasons for joining the group on this trip, nor was he a new issue into the case. The defendant had no obligation to on July 11 was to buy a gun from someone, the defendant injected by claiming that he thought the purpose of the trip to Hampstead

been kept in the dark by his companions.” It explains that taking] conspiracy or the true purpose of the [July 11] trip because he had p. 18 18

engaged in sexual relations with underage females, id. at 57 - 58. in ruling that he had opened the door to testimony that he had previously engage in those activities,” id. at 57, and, therefore, the trial court did not err intentions that night were an anomaly and that he was not of a character to jury could have viewed his “statement as an assertion that his conduct and intercourse with an underage female. Id. at 54, 56. We concluded that the opened the door to testimony that he had previously engaged in sexua l defendant argued that the trial court erred in ruling that this testimony had leaving. This isn’t me.” Id. at 56 (quotation omitted). On appeal, the testified that, at some point during the ev ening of the assault, he said, “I’m under the age of sixteen. Carlson, 146 N.H. at 52. At trial, the defendant assault for unlawfully engaging in sexual penetration with a person who was In Carlson, the defendant appealed his conviction of felonious sexual

to present evidence to refute her assertion.” Id. at 565. offered an explanation at the request of the State, “the defendant was entitled “had no obligation to explai n her reasoning for not consenting,” once she was being tried. Id. We agreed, concluding that, altho ugh the complainant boyfriend one or two weeks prior to the alleged assault for which the defendant comp lainant had had consensual sexual relations with someone other than her defendant argued that the trial court erred by excluding testimony that the because she had a boyfriend. Cannon, 146 N.H. at 563 - 64. On appeal, the she told the defendant “no” and did not consent to sexual relations with him In Cannon, a sexual assault case, the complainant testified at trial that

of the purpose of the July 11 trip to Hampstead. specifically contradict the defendant’s testimony regarding his understanding the defendant’s alleged involvement in the Manchester homicide did not 146 N.H. 562 (2001); Carlson, 146 N.H. at 52, Menendez’s testimony re garding evidence specifically contradicted certain trial testimony, see State v. Cannon, day). Unlike the cases upon which the majority relies, in which the proffered defendant cried at a different interview with New Je rsey police on a different not have been placed in its proper context by introducing evidence that Hampshire police officer did not see tears on defendant during interview would State v. Lopez, 156 N.H. 416, 423 (2007) (concluding that evidence that New in its “proper context” or otherwise dispelled that misleading impression. See regarding a subsequent, unrelated homicide placed the defendant’s testimony the July 11 trip to Hampstead, I do not believe that Menendez’s testimony created a misleading impression regarding his understanding of the purpose of “illegal” in referring to the gun he planned to purchase, and that his testimony Even assuming, however, that the defendant did not use the word

had not applied for a license, to carry a gun in Massachusetts. admitted upon questioning by his counsel, that he did not have a license, and p. 19 19

of not taking part in the delivery of marijuana which ‘mysteriously appeared’ in raised the specter of [the defendan t] having legitimate sources of income, and convictions.” Id. at 5. The court found that “defense counsel’s questioning opened the door to introduction of [the defendant’s] prior [drug - related] concludi ng that defense counsel’s “cross - examination of government witnesses 403 and 404(b). Id. at 5. The First Circuit Court of Appeals disagreed, regarding his prior drug - related convictions violated Federal Rules of Evidence 666 F.3d at 3. On appeal, the defendant argued that admission of evidence role in the importation, possession and distribution of marij uana.” Pelletier, In Pelletier, the defendant “was convicted of various counts related to his

factually distinguishable from this case. defendant’s testimony about the July 11 trip. These cases, however, are conclusion that the Manchester homicide evidence properly rebutted t he and United States v. Rodriguez, 215 F.3d 110 (1 st Cir. 2000), to support its The majority cites United States v. Pelletier, 666 F.3d 1 (1 st Cir. 2011),

knowledge. See id. factor to be considered, it cannot, alone, support a reliable infer ence of shared Although temporal proximity between charged and uncharged bad acts is one “closely connected by logically significant factors.” Bassett, 139 N.H. at 499. been charged) and his knowledge of the purpo se of the trip to Hampstead were Manchester homicide (for which, at the time of trial, the defendant had not support for a conclusion that the defendant’s purported participation in the State sought to have th e jury draw would be reliable only if there was sufficient the charged crimes); see also N.H. R. Ev. 404(b). In this case, the inference the evidence of defendant’s prior conviction and sentence to prove intent to commit Bassett, 139 N.H. at 499 (considering whether trial court erred in admitting and participated in, the charged acts as well as the uncharged acts. See upon the de fendant’s character or propensity, that the defendant was aware of, evidence of other bad acts must support a reliable inference, not dependent the opening the door doctrine); see also N.H. R. Ev. 404(b). To be relevant, 140 N.H. at 99 (addressing the admission of prior bad act evidence pursuant to wrongs is inadmissible to prove disposition to commit such acts. See Trempe, As we have long held, and continue to maintain, evidence of other

brackets omitted)). may not have formed that intent on the charged occasion.” (qu otation and entertained a certain intent during a similar un charged incident, the accused Bassett, 139 N.H. 493, 500 ( p. 19 1995) (“The problem is that even if the accused homicide, he was aware of the purpose of the Hampstead trip. Cf. State v. follow that, because t here was evidence that the defendant participated in the purpose of the earlier Hampstead trip. Without more, it does not logically impression created by his testimony regarding his knowledge of the true with the theft conspirators did not specifically refute any misleading Here, evidence that the defendant participated in a subse quent homicide p. 20 20

which also risked the jury deciding a homicide “trial within a trial,” I conclude crimes were part of a common plan or scheme. Under these circumstances, N.H. at 99; see also N.H. R. Ev. 404(b). There was no evidence that the two common plan or scheme. See Rodriguez, 215 F.3d at 119 - p. 20 20; Trempe, 140 evidence that the homicide and the theft by unauthori zed taking were part of a defendant did not know the true purpose of the July 11 trip unless there was homicide conspiracy, such evidence would not rebut the impression that the commit homicide. Non etheless, even if there was evidence of a separate defendant and the other members of the theft conspiracy also conspired to See Bassett, 139 N.H. at 499. The record discloses no evidence that the impression — misleading or otherwise — created by the defendant’s testimony. of the July 11 trip as to support a permissible inference that contra dicts any significant factors” to the defendant’s supposed understanding of the purpose evidence of the Manchester homicide is “closely connected by logically of the specific criminal purpose of the Jul y 11 trip. I do not believe that the was admitted solely to counter the implication that the defendant was unaware Manchester homicide evidence — factually distinct from the theft conspiracy — Pelletier, 666 F.3d at 5; Rodriguez, 215 F.3d at 120, whereas, here, the plan, knowledge or absence of mistake with respect to the crime charged, see similar prior convictions to show opportunity, intent, preparation or common In Rodriguez and Pelletier, the court upheld the admission of factually

other innocent reason’ for the defendants’ activities.” Id. at 1 p. 20 20. preparation or common plan, knowledge or absence of mistake, accident or Federal Rule of Evidence 404(b) “as possible proof of ‘opportunity, intent, held that the district court did not err by admitting such evidence pursuant to with some of the same participants.” Id. The First Circuit Court of Appeals incident in which [that defendant] was involved in a completed drug venture purpose.” Id. at 119. The government introduced “evidence of a second caught up with others who, if they intended a crime, had not told him their just a fisherman who liked the waters off St. Thomas and who was innocently participated.” Id. at 118. At trial, one of the defendants claimed that “he was “testimony about other drug importation efforts in whi ch one or more of them 114. On appeal, they argued that the district court improperly admitted import marijuana and attempting to import marijuana. Rodriguez, 215 F.3d at Similarly, in Rodri g uez, the defendants were convicted of conspiring to

court did not err by admitting the defendant’s prior convictions. Id. — even if only implicitly — placed before the jury,” and, therefore, the district found that, given the defendant’s “apparent defense, these issues were squarely contraband and intent to distribute.” Id. at 6 (citations omitted). The cour t they may be relevant to the defendant’s knowledge of the presence of intent where they indicate a prior relationship between conspirators, and where conspiracy cases, [it has] found prior conviction s probative of knowledge and a buyer’s car.” Id. at 5 - 6. The court explained that, “[i]n the context of drug p. 21 21

participation in the homicide “may have tempted the jury to condemn the verdict. I believe that Menendez’s testimony regarding the defendant’s that the State has failed to establish that its admission did not affect the Here, given the nature of the erroneously admitted evidence, I conclude

omitted). State v. Vandeb ogart, 139 N.H. 145, 157 - 58 (1994) (quotations and citations

guilt. inconsequential in relation to the strength of the State’s evidence of weight, and if the inadmissible evidence is merely cumulative or of the defendant’s guilt is of an overwhelming nature, quantity, or be harmless beyond a reasonable doubt if the alternative evidence of the character of the inadmissible evidence itself. An error may involves consideration of the [other] evidence presented at trial and The evaluation of whether this standard has been achieved

verdict. State v. Botelho, 165 N.H. 751, 756 (2013). reasonable doubt that the erroneously admitted evidence did not affect the harmless. In order to prove harmless error, the State must establish beyond a The State contends that, even if the trial court erred, the error was

the defendant’s alleged involvement in the subsequent unrelated homicide. Hampstead trip, I would hold that t he trial court erred by admitting evidence of created by the defendant as to his knowledge of the true purpose of the prior place in its proper context or specifically contradict any misleading impression introduce prejud ice. Becau se the Manchester homicide evidence did not fairly impression created by the defendant’s testimony, the evidence served only to directly counter to this purpose. In my view, i nstead of rebutting the 140 N.H. at 99. Here, admission of the Manchester homicide evidence ran doctrine should not be subverted into a rule for injection of pr ejudice. Trempe, As we have stated, t he purpose of the doctrine is to prevent prejudice; the Gordon v. United States, 783 A.2d 575, 587 (D.C. 2001) (quotation omitted). comes through it is anot her. Everything cannot come through the door.” dispelled impression in other ways). “Opening the door is one thing. But what that he had not been contacted by any police officers, prosecutor could have n iece because, although defendant’s testimony created misleading impression interview in which the defendant was asked about a s imple assault against his (holding that trial court erred by allowing evidence of separate, unrelated trip to contradict the defendant’s testimony. See Trempe, 140 N.H. at 99 been addressed by the State calling another witne ss who participated in the to his awareness of the true purpose of the July 11 trip presumably could have Further, any concern by the State that the defendant misled the jury as

character inference. See N.H. R. Ev. 404(b). that the relevance of the homicide evidence is based upon an improper p. 22 22

BASSETT, J.