2021-0429, State of New Hampshire v. David J. Tufano

went over to investigate. He sa w the defendant with a hose in his hand loud moaning noise coming from the defendant’s home across the street and Roberge was working in his yard at his home in Somersworth. He heard a low, The jury could have found the following facts. On May 26, 2019, Richard

animals. See RSA 644:8, III (Supp. 2018). We reverse and remand. following a jury trial in Superior Court (Ruoff, J.), for misdemeanor cruelty to HICKS, J. The defendant, David J. Tufano, appeals his conviction,

brief and orally), for the defendant. Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the

general (Sam M. Gonyea, attorney, on the brief and orally), for the State. John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2021 - 0429 Strafford

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

spring - loaded door slammed shut keeping the cat trapped inside. quickly pulled his arm out, cutting his forearm in the process, and the trap’s can of tuna fish, “the cat lunged at [him] and bit [his] hand.” The defendant try to feed the cat something, but when he lifted the door of the trap to put in a Once the cat opened its eyes and became alert, the defendant decided to

except the trap, so he put the cat in that. “look[ed] for a container – someth ing to put it in.” He had nothing suitable that the cat was breathing, he picked it up and walked to his shed and He stopped and saw the cat lying on the ground not moving. After determining testified that on the day in question, he thought he hit a cat with his vehicle. offering an alternative version of the events at issue. In relevant part, he The defendant was tried by jury in June p. 2 2021. He testified at trial,

Evidence 609. The Trial Court (Ruoff, J.) denied the motion. to impeach Barry with a prior conviction, pursuant to New Hampshire Rule of The defendant also filed a motion in limine to allow him, in relevant part,

(Ruoff, J.) denied. entir ety. The defendant moved for reconsideration, which the Trial Court defendant’s motion, adopting the State’s analysis and conclusions in their as his knowledge of the trap used.” The T rial C ourt (Houran, J.) denied the defendant’s intent and plan when he trapped the cat on this occasion as well The State object ed, argu ing that the evidence was “relevant to the

others similar to it from any witness.” alleged statements” Barry made regarding the defendant’s cat trapping “or any 404(b) motion requested that the court “prohibi t the admission of any of the confirms the date of incident as September 4, p. 2 2018. The defendant’s Rule being called and, according to the State’s objection, the associated police report cats from entering into his garden.” That confrontation resulted in the police previously confronted the defendant “about setting traps in his yard to prevent day after the May 2019 charged incident, Barry told Roberge that she had regarding the defendant ’s prior trapping of cats. The motion alleged that the Hampshire Rule of Evidence 404(b), the admission of certain statements to trial, the defendant filed a motion in limine to prohibit, under New The defendant was charged with misdemeanor cruelty to animals. Prior

placed a trap on his property, Roberge decided to contact the police. Sharon Barry told him about a prior incident in which the defendant had later, after other neighbors told him he should. Specifically, after his neighbor Roberge did not immediately report the incident to police, but did so

and open the trap, which the defendant did. The cat th en ran off. T rap” with a cat in it. He told the defendant to take the trap out of the bucket spraying water into a plastic container. Inside the container was a “Havahart p. 3 3

provides: wrongs.” State v. Thomas, 168 N. H. 589, 599 (2016) (quotation omitted). It propensity and character inferences drawn from evidence of other crimes or merits of the crime charged and to prevent a conviction that is based upon The purpose of Rule 404(b) “is to ensure that an accused is tried on the

case.” Id. (quotation omitted). decision was clearly untenable or unreasonable to the prejudice of his to prevail under this standard, he must d emonstrate that the trial court’ s standard. See State v. C olbath, 171 N.H. 626, 6 p. 3 32 (2019). “For the defendant court’ s evidentiary rulings under our unsustainable exercise of discretion denial of the defendant’s Rule 404(b) motion. We review challenges to the trial denial s of his Rule 404(b) and Rule 609 motion s in limine. We first address the The jury convicted the defendant and he now appeals, challenging the

pulled the trap the rest of the way out, opened it, and the cat ran out. which “flipped over on its side,” partially dislodging the trap. The defendant to really get irritated.” The defendant turned around a nd kicked the container, “went back and forth for a short period of time and [the defendant] was starting defendant to “get that cat out of the tub of water.” Roberge and the defendant what he was doing, but Roberge “wouldn’t pay any attention to it” and told the screaming “what are you doing to that cat?” The defendant tried to explain At this point, Roberge came up behind the defendant and started

hurt [the cat].” used the hose’s “fog pat tern so it wouldn’t be really hard . . . [and] wouldn’t away from his hand while he tried to “unjam” the trap from the container. He defendant then got a hose and began to spray the cat with water to keep it around the side of the trap,” but the cat kept swiping at his fingers. The the trap by lifting it by its handle, he tried to pull it out with his “fingers goi ng container, the container came up with the trap. Because he could not remove then had difficulty getting it out. When he tried to lift the trap out of the Having already put the trap into the container, howeve r, the defendant

more along just taking it out and letting it go and seeing what it did.” that the cat was not injured. At that point, the defendant “started thinking “the cat was moving around a lot better” and he became “a little more satisfied” After tending to the wound on his arm, the defendant discovered that

itself. had sharp edges and also because he was concerned about the cat relieving not want t o put the trap directly on his car seat because the trap was dirty and humane society, but got neither an answer nor an answering machine. He did “veterinary clinic or something that was open.” He had already called the container because he was probably going to have to transport the cat to a At some point, the defendant decided to put t he trap into another p. 4 4

Thus, if we assume, without deciding, that “trapping the cat” constituted a the cat, placing the trap in a containe[r], and adding water to said container.” tortured, or in another manner mistreated an animal, to wit a cat, by trapping The criminal complaint alleged that the defendant “negligently beat,

proponent of the evidence may seek to prove”). that, “for purposes of Rule p. 4 404(b), ‘ intent ’ can entail any mental state that the cat” during the charged incident. Cf. Thomas, 168 N.H. at 601 (concluding was “importan t to show [his] mental state with regard for how he treated the trapping as he did on [the charged] occasion,” and that this “consistent intent” show that the defendant “had the same intent on the earlier occasions of The State argued to the trial court that the challenged evidence was relevant to We now turn to the asserted purpose of showing the defendant’s “in tent.”

for that purpose under Rule p. 4 404(b). See id. not a disputed issue in the case. Accordingly, the evidence was not admissible however, t he State conceded that the defendant’s knowledge of the trap was show the defendant’s intent and knowledge of the trap. At oral argument, In its brief, the State argued t hat the challenged evidence was relevant to

and had no bearing on any issue actually in dispute.” not relevant for a purpose other than to show [h is] disposition to trapping cats argues that the evidence of prior cat trapping failed th is prong “because it was or propensity.” Id. (emphasis added) (quotation omitted). The defendant dispute, without relying upo n forbidden inferences of predisposition, character, which the proffered evidence will tend to prove or disprove an issue actually in which the evidence is offered and articulate the precise chain of reasoning by To meet the first prong, “the State is required to specify the purpose for

first and third prongs of the Rule p. 4 404(b)(2) test were not met. prior bad acts.” Clark, 174 N.H. at 593. Here, the defendant argues that the 93 (2021). “The State bears the burden of demonstrating the admissibility of unfair prejudice.” N.H. R. Ev. 404(b)(2); see State v. Clark, 174 N.H. 586, 592 probative value of the evidence is not substantially outweighed by the danger of wrongs or acts occurred and that the person committed them”; and (3) “the sufficient evidence to support a finding by the fact - finder that the other crimes, character or disposition”; (2) “there is clear proof, meaning that there is only if: (1) “it is relevant for a purpos e ot her than proving the person’ s N.H. R. Ev. 404(b)(1). E vidence of other crimes, wrongs or acts is admissible

accident. preparation, plan, knowledge, identity, or absence of mistake or p urposes, such as proof of motive, opportunity, intent, conformity therewith. It may, however, be admissible for other the character of a person in order to show that the person acted in Evidence of other crimes, wrongs, or acts is not admissible to prove p. 5 5

defendant. of the charged incident, was irrelevant to what the State had to prove in order to convict the words, whether the defendant “set” the trap for a cat to enter, either previously or on the occasion negligently abused the cat by basically spraying water on it while it was in the cage.” In other immediately preceding it states: “The issue in th e case is whether or not [the defendant] h ad the argument the defendant was making with the above - quoted sentence, as the sentence while it was in a container from which it could not escape. Indeed, that was actually the basis of the defendant — the gravamen of the offense is that the defendant sprayed the cat with water against the defendant, whether the cat entered the trap of its own accord or was placed into it by argument posits a distinction without a difference, as it did not matter, for purposes of the charge as “to place . . . in a restricted . . . position: CONFINE”). More importantly, any such semantic Third New International Dictionary 2431 (unabridged ed. 2002) (defining “trap,” in relevant part, encompasses the act of causing the cat to be confined by placing it in the trap. See Webster’s by the state, other than putting it into the trap for shelter. The term “trapping” however, easily “trapping,” as it states, for instance: “There is no evidence this cat was ever ‘trapped’ as suggested Portions of the defendant’s motion might be read to assert that his actions did not constitute 1

however, “no link in the chain of inferences justifying relevance can be derived cats for the purpose of rem oving them from his property. Under Rule 404(b), occasions only by relying upon the defendant’s propensity or disposition to trap could find that the defendant possessed the same intent as he had on prior We disagree that a “non - propensity inference” can be so drawn. The jury

property” as had been his intent on prior occasions. the humane society because it was injured, but . . . to remove it from his in placing t he cat in the trap [during the charged incident] was not to take it to reasonable, non - propensity inference to be drawn “that the defendant’s intent compassion for the cat. Specifically, the State argues that there was a the context necessary to rebut the defendant’s defense” that he acted out of Finally, the State argues that “the evidence was relevant t o give the jury

Clark, 174 N.H. at p. 5 593. evidence was therefore not admissible under Rule 404(b) for that purpose. See trapping the cat was not an issue actually in dispute in the case and the Accordingly, as with the defendant’s knowledge of the tra p, his intent in incident. See RSA 626:2, II(a), (b) (2016) (defining purposely and knowingly). both knowingly and purposely in trapping the cat as part of the charged 1 “placed it in the [Havahart] trap.” Thus, the defendant admitted that he acted defendant admitted that, after “the cat was hit by his car or ran into it,” he In his motion for reconsideration of the trial court’s 404(b) ruling, the

p. 6 626:2, III (2016). the higher mental states of purposely, knowingly, or recklessly. See RSA element of the offense.”). The State could prove negligence by proving any of recklessly or negligently, as the law may require, with respect to each material person is guilty of . . . a misd emeanor only if he acts purposely, knowingly, the defendant acted negligently in trapping the cat. See RSA 626:2, I (2016) (“A material element of the offense charged, the State was required to prove that 6

conclude that admission of th is evidence prejudiced the defendant’s case. h is warning. And that’s when I went to the police.” (Emphasis added.) We problem with him trying to trap a cat. So I said, well, I think he’s already had had a history of being hostile towards cats. One of my neighbors had a deserves a second chance. He continued: “But I found out afterwards that he immediately report the defendant’s actions because he believed that everybody testimony highly prejudicial to the defendant. Roberge testified that he did not Mr. Rober ge.” Direct examination of Roberge on that issue, however, elicited purposes, one of which was “to kind of explain how the case got reported by could consider evidence of the 2018 cat trapping incident for three limited prejudicial effect of the evidence. T he t rial court instructed the jury that it however, that the court’s instructions neither eliminated nor m itigated the that the jury follows the instructions given by the trial court.” We conclude, “properly addressed the potential prejudice” and that “this Court presumes T he State conten ds that the limiting instruction s given by the trial court

whether the court’s ruling prejudiced the defendant’s case. Id. unsustainable exercise of discretion standard. Id. at p. 6 632. We now consider defendant’s Rule 404(b) motion in limine was “clearly untenable” under our prohibited i nferences of disposition or propensity, the trial court ’s denial of the purposes either not relevant to an issue actually in dispute or reliant upon Because the State sought to introduce the challenged evidence for

(quotation omitted). the charged offense are “closely connected by logically significant factors.” Id. defendant’s intent in committing the prior acts of cat trapping and his intent in on a cat confined in a container. Thus, we cannot conclude that the similar to the primary allegation of mistreatment here; namely, spraying w ater nor proffered evidence that the prior acts of cat trapping involved mistreatment factors.” Id. (quotation and brackets omitted). Here, the State neither alleged in the charged offenses are closely connected by log ically significant defendant’s intent in committing the o ther bad acts and the defendant’ s intent “We will find sufficient support for a reliable inference of intent only if the charged and uncharged acts.” Co lbath, 171 N.H. at p. 6 634 (quotation omitted). or propensity, that the defendant had the same intent on the occasions of the able to support a reliable inference, not dependent on the defendant’s character Moreover, “[t]o be relevant to intent, evidence of other bad acts must be

password for admissibility.” State v. Hastings, 13 p. 7 7 N.H. p. 6 601, 606 (1993). sought to be introduced through the mechanical recitation of ‘intent’ as the “is simply evidence of propensity or disposition, prohibited by Rule 404(b), 404(b).” Id. at 830. Accordingly, we conclude that the prior - tr apping evidence inferential chain supporting relevance, the evidence is inadmissible under Rule defendant’s propensity toward certain action is the essential connection in the Melcher, 140 N.H. 823, 828 (1996). “When . .. an assumption based upon the from the prior conduct’ s tendency to show character or disposition.” State v. 7

the defendant as a person who was “hostile toward cats” and likely to abuse or admitted evidence of prior cat trapping could have influenced the jury to vi ew about the defendant’s version of events, if believed. Because the erroneously reasonable person would do in the same situation,” we cannot say the same support a finding of “mistreatment of the cat that gr ossly deviates from what a . . . to drowning.” While we assume that Roberge’s testimony, if believed, could the defendant was “holding the trap under water, so the cat was pretty close Roberge, on the other hand, testified that “the container was full of water” and bit of residual water in the bottom” of the 50 - gallon bin containing the trap. or ten seconds before Roberge came over, and, therefore, there was “just a little The defendant also testi fied that he began spraying the water no more than five lightly to keep the cat from swiping at his fingers while he tried to release it. sharply differed. According to the defendant’s testimony, he sprayed the cat per son would do in the same situation.” Beyond those facts, the evidence constitute mistreatment of the cat that grossly deviates from what a reasonable trapped cat inside a container, we cannot say that those facts alone “clearly We disagree. W hile i t was undisputed that the defendant sprayed the

what a reasonable person would do i n the same situation.” mistreatment of the cat and conduct that grossly deviates from placed inside a plastic container. Both findings clearly constitute cat with a hose while it was stuck in a trap that the defendant would have to find, at a minimum that t he defendant sprayed the testimony of Roberge. . . and the defendant himself, the jury Sterilite container while it was in the trap. Based upon the have found that the defendant attempted to drown the cat in the Based upon the testimony . . . [at trial], the jury reasonably could

overwhelming. The State argues: The State contends that the other evidence of the defendant’s guilt was

error beyond a reasonable doubt.” Id. at 13 p. 7 7 - 38. affected a verdict. Either factor can be a basis supporting a finding of harmles s (cit ation omitted). “We review these factors to determine whether an error inconsequential in relati on to the strength of the State’ s evidence of guilt.” Id. the evidence that was improperly admitted or excluded is merely cumulative or of the defendant ’ s guilt is of an overwhelming nature, quantity, or weight; or (2) An error may be harmless beyond a reasonable doubt if: “(1) the other evidence did not affect the verdict.” State v. Race tte, 175 N.H. 132, 137 (2022). harmless error, the State must prove beyond a reasonable doubt that the error The State nevertheless argues that the error was harmless. “To establish

See id. 404(b) motion in limine con stituted an unsustainabl e exercise of discretion. Accordingly, we conclude that the trial court’s denial of the defendant’s Rule p. 8 8

JJ., concurred. M AC DONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,

the testimony of” other witnesses. was cumulative in relation to the State’s evidence of guilt introduced through need not address the State’s harmless error argument that Barry ’s “testimony the Rule 609 issue is unlike ly to arise on remand. For similar reasons, w e testified to none of the facts necessary to prove the State’s case. Accordingly, about the 201 p. 8 8 incident and, as the State conceded at oral argument, she ruling. Under our Rule 404(b) ruling, Barry would be precluded from testifying 404(b) issue, we conclude that we need not address the t rial court’s Rule 609 limine to impeach Barry with a prior conviction. Given our ruling on the Rule The defendant next challenges the denial of his Rule 609 motion in

say the error did not affect the verdict. defendant’s and to convict him of the charged offense. Accordingly, we cannot mistreat one, it could have led the jury to credit Roberge’s testimony over the