State of New Hampshire v. David Voight

The defendant, David Voight, was charged in the Hillsborough County Superior Court – North with three counts of domestic violence, simple assault, and one count of second-degree assault. T 1 at 30-31. 1 The first simple assault charge alleged that the defendant knowingly caused unprivileged physical contact with the victim, L.L., when he grabbed her face with his hand. T1 at 30. The second alleged that the defendant committed simple assault by grabbing L.L.’s face with both of his hands. T1 at 31. The third alleged that the defendant committed simple assault by using his foot to step on L.L.’s foot. Id. The second-degree assault charge alleged that the defendant knowingly engaged in strangulation of L.L. by placing his hands on her neck and applying pressure, which caused L.L. to experience impeded breathing. T1 at 30.

The defendant was tried before a jury over the course of two days in December 2021. See T1 at 1; T 2 at 239. The jury convicted the defendant on the three simple assault charges and found him not guilty of second- degree assault. T2 at 241-243. The trial court (Messer, J.) sentenced the defendant to a stand committed term of twelve months in the House of Corrections, with four months suspended for five years, on one of the convictions. DA at 31-34. On the other two convictions, the court imposed consecutive, suspended terms of twelve months. DA at 35-42.

The victim became pregnant in May 2018. T1 at 71. She moved in with the defendant, who lived with his father in Litchfield, in August of 2018. T1 at 71-72. The victim was in love with the defendant, she was excited to be a mother, and she described her relationship with the defendant to that point as “amazing.” T1 at 72, 75. However, things did not stay that way. Id. The couple argued about “a lot of things, ” including the victim’s job and pictures she posted on social media. T1 at 72-73. The defendant took issue with the clothes that the victim wore to her job as a bartender at a night club and the attention she got from men there. T1 at 72-74. He got “very upset” if she posted “selfies” or “gym progression” pictures on social media. T1 at 73. When she posted such pictures, the defendant told her that she “needed attention; that [she] was a whore” and that she “look[ed] slutty.” Id. Nevertheless, the couple had some good times in between the rough patches. T1 at 74. The victim gave birth to a baby boy named Abel in February 2019. T1 at 75. The couple broke up in July 2019. T1 at 70. The victim was “miserable” afterward. T1 at 77. She did not know what went wrong, but she tried anything she could to resolve the problems between them in hopes of “be[ing] a family.” Id. The victim moved out of the defendant’s father’s home when the defendant “told [her] to leave” and she stayed with her sister in Bow for a week. T1 at 76. The victim then moved into an apartment in Manchester with two of her friends Id. Despite the difficulties in their relationship, the victim never prevented the defendant from seeing their son. T1 at 76. The defendant “told” the victim that they would each have custody of Abel for one-half of each week. Id. The victim was “very torn” by that because she “was a new mom, and [she] wanted to be with [her] baby.” Id. Those feelings notwithstanding, Abel went back and forth between them during the week. T1 at 77. The victim did not go to court for a custody plan at that time because she was hopeful that she and the defendant could civilly co-parent without the court’s involvement. Id.

The victim and Abel moved into an apartment in Manchester in September 2019. T1 at 78. Part of the victim’s motivation for securing an apartment was because the defendant told her she was “an unfit mother” because she “didn’t have [her] own place for Abel.” T1 at 95. The victim “worked very hard to get a two-bedroom place so [she] could show that [she] could support [her] son.” Id. At that time, the victim and defendant “were trying to work on things.” T1 at 79.

On September 16, 2019, the victim filed for custody of Abel. T1 at 81. The victim did that because the defendant had “threatened [her] at points saying that he was going to take Abel from [her].” Id. That caused her to want more structure from “a higher power” regarding custody of Abel, but she still wanted the defendant to be able to see their son. Id. The victim continued to be hopeful that her relationship with the defendant would work out. T1 at 82.

Around the beginning of October 2019, at the defendant’s suggestion, the couple tried to get back together. Id. The victim was nervous at the prospect of getting back together with the defendant, but she was also happy about it because she “thought maybe [they] could finally be a family together.” T1 at 79-80. The victim came from a “big family” and her parents were still together, which the victim “looked up to, ” and she wanted to give the same to Abel. T1 at 80.

On October 12, 2019, around 10:30 P.M., with Abel in bed, the victim was relaxing and watching T.V. at home. T1 at 83. The victim was not expecting the defendant, but he showed up to her home and they “had an argument.” Id. The defendant “cornered” the victim in her living room and “he put his hands on [her] face three times.” T1 at 84. The victim felt “very belittled” and “[v]ery scared” because she “had no control over what was going to happen.” T1 at 86. In response, the victim “swung” and hit the defendant. T1 at 84. The defendant went into the bathroom to take pictures of his face, which had no visible injuries or blood, and told the victim that he was going to “bring the police” to the apartment. Id. The defendant left the apartment and returned five or ten minutes later. T1 at 86. Unbeknownst to the defendant, the victim had set up her cell phone to record video when she heard him come back just “in case something happened when he came back into [her] home.” T1 at 147-148. The victim then “cracked” the door to her apartment, and the defendant “made his way in” and “said, you psycho ass fucking bitch; you caused this.” T1 at 86-87. The defendant was “very angry, ” “very overpowering, ” “yelling, ” and continuously told the victim that the abysmal state of their relationship was her fault. Id.

The defendant got “about a centimeter away from” the victim’s face, causing the victim to walk backward away from him. T1 at 88. The defendant reminded the victim that he had told her to “never walk away from [him]” and continued toward her. Id. The defendant acknowledged that he had grabbed the victim by the face earlier and told her he would do it again. T1 at 89. The defendant made good on his threat and grabbed the victim by the face. Id. The victim pushed his hand away. Id. The defendant put “two fingers into [her] temple” and told her that she was “in [her] own head.” Id. The defendant then grabbed the victim’s face using both hands and “started shaking [her] head.” T1 at 90. At that point, Abel began crying and the victim went into Abel’s bedroom, alone, to calm him down and get him back to sleep. Id. When the victim went back to the kitchen, the argument with the defendant resumed, and the defendant “grabbed [her] face again.” T1 at 91. The defendant “dragged” the victim to a “hutch with mirrors” that she had in the kitchen and said, “look at yourself, look at you, ” while yelling and “pushing [her] face into the hutch.” Id.

The victim was able to step away from the defendant while he told her that she had “no brain” and that her “brain [was] fried” from going tanning. T1 at 92. The victim went toward the refrigerator to get something to drink. Id. The defendant “placed his sneaker on [her bare] right foot and was going back and forth with it, squishing [her] foot into the ground.” Id. The victim pushed him away, and the defendant eventually left. T1 at 92-93.

The victim did not call the police that night because she was scared that she was going to get in trouble for hitting the defendant. T1 at 93. The defendant told her that they would take Abel away from her for hitting him. Id. In the days that followed, the victim continued to talk to the defendant, and she still wanted their relationship to work. T1 at 93-94. The victim “wanted [her] family... more than anything.” T1 at 94. On October 15, 2019, around 2:00 P.M., the victim informed the defendant that she filed for custody of Abel back in September. T1 at 95. She explained that she wanted them to go to mediation and go into court looking “like professional parents together and not have the court determine who gets custody of [their] son.” Id. The defendant got “very mad” and left. Id. The two continued to fight throughout the day and night even after the defendant left the apartment. T1 at 96. Around 11:00 P.M., the victim texted the defendant and told him she was going to bed. Id. The victim was not expecting the defendant, but, once again, he showed up around 11:30 P.M. Id. The defendant was drunk, agitated, angry, and told the victim he had been kicked out of a bar. T1 at 97. The couple continued fighting, and the defendant eventually put one hand around the front of the victim’s neck and the other hand on the back of her neck and then lifted her above his head and shook her. T1 at 97-98. The victim was “losing [her] hearing, ” “lost consciousness, ” and was unable to breathe while the defendant choked her. T1 at 99. The next thing the victim remembered; she was on the kitchen floor lying in her own urine with the defendant standing over her. T1 at 100. After the October 12 assault, but before the October 15 assault, the defendant gave the victim a letter. T1 at 106. In that letter, the defendant apologized to the victim and stated that he is not a monster. T1 at 107. “The letter says, basically, I love you; I’m sorry that this happened; this is your fault; this is my fault.” T1 at 134. The letter was admitted as a full exhibit at trial. T1 at 204-205.

The victim went to the police station and reported the assaults on October 28, 2019. T1 at 103. On that day, the victim spoke with Officer Kooharian. T1 at 112, 175-176. Sometime thereafter, she spoke with “a detective.” T1 at 105. In addition to telling Kooharian what happened, the victim showed her the video of the assault that occurred on October 12 — the “incident of [the defendant] putting his hands on [the victim’s] face.” T1 at 104. The victim showed Kooharian the entire twelve-minute video. T1 at 169. Subsequently, the victim tried to email the video to the police, but the file was too big to send. T1 at 169, 177. Accordingly, Kooharian instructed the victim to send clips of the video depicting “the physical stuff that happened, ” T1 at 169, and to preserve the rest of the video. T1 at 171. The clips the victim sent showed the defendant stomping on the victim’s foot and grabbing her by the face. T1 at 169. The rest of the video included “[a]rguing, ” but not any physical altercation. Id. The victim never gave the entire twelve-minute video to the police. T1 at 171. The victim still had the full video at the time of trial, T1 at 171, although the prosecutor did not know whether the video had been destroyed. T1 at 114. At the time of trial, Kooharian, the only officer to have viewed the entire video, was unavailable to testify, though the record is not clear as to why. See T1 at 22, 112, 116. While Kooharian took the victim’s initial report, the case was assigned to Detective Amanda Smith the next day. T1 at 175. The first step in Detective Smith’s investigation was to review the file, including Kooharian’s report and the video clips. T1 at 176. Smith understood that the clips came from the victim, they depicted the assault that occurred on October 12, and they were part of a larger video. T1 at 176-77. Smith never saw the entire twelve-minute video. T1 at 184. Smith testified that, on the video clips, she observed what looked like a verbal altercation that turned physical when the defendant grabbed the victim “by the jawline mouth area a few different times.” T1 at 177. The video showed the defendant put a “couple of fingers to [the victim’s] temple, ” drag her “by the head” to a “hutch type structure, ” and stomp on the victim’s foot. T1 at 178. Based on what Smith had seen, the next step in her investigation was to speak with the victim. T1 at 178-180. In sum, Smith testified that the video clips were consistent with Kooharian’s initial report of the victim’s account of events and with Smith’s own conversation with the victim. T1 at 180.

At the victim’s request, Smith put her investigation on hold while the victim’s petition for a protective order was adjudicated. T1 at 180. Once that proceeding concluded, the victim wanted to move forward with the criminal case, and Smith contacted the defendant. T1 at 181. Smith prepared an arrest warrant application based on everything she had reviewed and subsequently arrested the defendant. T1 at 181-182.

video, ” he had only received and reviewed three video clips, and not the entire twelve-minute video. DA at 28-29. He asserted that, upon information and belief, the entire video was not available. DA at 29. The defendant argued that because Kooharian requested the victim to send him the clips showing the physical altercations, “it can be presumed that the remaining, missing footage would have painted a more complete picture of the events of that night and provided the Defendant with potentially exculpatory evidence.” Id. Thus, the defendant concluded that admission of the video would “run contrary to the doctrine of completeness” and “deprive the Defendant” of his right to produce all proofs favorable. Id. Accordingly, the defendant’s prayer for relief requested that the court grant his motion and “bar the State from introducing the video clips into evidence.” DA at 30. The State failed to file an objection to the motion. On November 15, 2021, the court granted the motion in a margin order stating: “After review, and the State having filed no objection (either back in July when the motion was filed or by the new deadline set by the Court of November 5, 2021), the motion is GRANTED.”

The video was briefly discussed again during a pretrial hearing on December 3, 2021, which was held to address the admissibility of certain text messages, some of which referenced the video. H at 6, 40-41. When the prosecutor first mentioned a text message that referred to the video that had “already been excluded, ” the court interrupted for clarification, and the following exchange occurred:

[STATE]: Yes.

[COURT]: Okay.

[STATE]: Which, I mean, the officer can testify to that...

H at 6. Later in the hearing, the prosecutor also noted that there was “potentially a Richards issue about wiretapping in there.” H at 41. On the morning of trial, defense counsel told the court that he had just “learned this morning” that the State intended to have Detective Smith testify about “the video that was excluded.” T1 at 18. Defense counsel argued that he had never seen the entire twelve-minute video and if Smith could testify to what she observed on the video, then the court’s ruling excluding admission of the video clips “would be useless.” Id. The State responded that the defendant had seen the video clips that Smith saw, and Smith would therefore only testify to what she had observed on those clips. T1 at 18, 20. The State also contended that Smith reviewed the clips when she was assigned to the case, and she could describe what she saw on the video clips and how it impacted her investigation. T1 at 19.

The court agreed with the State that Smith could testify to what she saw on the video and the defendant could cross-examine Smith about the clips and about the failure of the police to obtain the entire video. T1 at 19- 20. Before moving on, defense counsel put on the record his belief that the defendant was “entitled to some sort of missing evidence instruction.” T1 at 21, 28. The court agreed to look for such an instruction during a break and address it later. T1 at 29.

During trial, the defendant sought to “put on the record... another basis” for excluding the video, “a violation of the wiretap statute.” T1 at 61. The State pointed out that it had raised that point at the pretrial hearing and, if the video was going to come in and be played, it would be played without sound and the victim could be granted immunity to avoid this issue. T1 at 62. Accordingly, the State argued that Smith could testify to what she saw on the video without talking about anything she heard on it. T1 at 63. Defense counsel agreed that the State’s contention that the wiretap statute only applied to audio was “probably right.” T1 at 66. There was further discussion about the missing evidence instruction before and after Smith testified. T1 at 110-117, 136-139, 195-197. The court gave the following instruction at the conclusion of Smith’s testimony: Ladies and gentlemen, I am going to give you an instruction now that relates to some of the evidence here. You’ve heard evidence that a video was recorded by [the victim] and viewed by Det. Smith. You’ve also heard that the entire video was not obtained by the Manchester Police Department. You may consider the evidence presented regarding the video testimony or the. .. testimony regarding the video. You may also consider the lack of evidence that was presented regarding the balance of the video.

A reasonable doubt as to guilt or innocence of a person accused of a crime can arise from either positive evidence or from a lack of evidence.

Thus, the failure of the State to produce evidence may be considered in determining whether or not the State has proven each of the charges beyond a reaso nable doubt. So ladies and gentlemen, you may consider the evidence that was presented regarding what this witness saw on the video, and you may also consider that there was some video that was not viewed by the witness.

All right?

T1 at 199-200.

Prior to closing arguments, the court expressed that “a juror may have said to the bailiff, or the juror said something - - they weren’t exactly sure what they can consider regarding the video evidence.” T1 at 204. To address that potential issue, the court included an instruction in its final instructions that was substantially the same as the one given after Smith’s testimony. T1 at 205, 226.

The trial court did not err by permitting Detective Smith to testify to what she saw on the video clips. The court’s ruling on that issue merely clarified its order on the defendant’s motion in limine. The defendant’s motion, which the court granted after the State twice failed to file an objection, requested only that the video clips be excluded. Thus, the court’s order on the motion did not address whether all testimony about the video clips was excluded. Further, there was no apparent substantive reason, and the court offered no such reason in its order, to exclude Smith’s testimony, which was relevant and rationally based on her perception. Additionally, at a pretrial hearing two days before trial, the State articulated its position, without objection from the defendant or inquiry from the court, that Smith could testify to what she saw on the clips even though the clips themselves were excluded. In those circumstances, it was not error for the court to clarify that its initial ruling did not exclude testimony about the video clips.

Even if the court erred in admitting Smith’s testimony, the error was harmless beyond a reasonable doubt. The jury heard compelling, detailed testimony from the victim, including her description of what was on the video clips. An apology letter that the defendant gave to the victim after the October 12 assault was also admitted. Additionally, Smith’s testimony describing what the video showed was cumulative of the victim’s testimony describing the same thing. Finally, the court twice gave an instruction allowing the jury to draw an inference from the missing parts of the video in favor of the defendant.

The defendant’s appeal challenges the trial court’s admission of Detective Smith’s testimony about what she saw on the video clips the victim gave to the police. DB at 19. This Court “accord[s] the trial court considerable deference in determining the admissibility of evidence” and “will not disturb its decision absent an unsustainable exercise of discretion.” State v. Munroe, 173 N.H. 469, 479 (2020). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court’s ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

When the video issue arose before the start of trial, the court expressed that “a person can testify to what they saw in a video in the same way they could testify to what they saw happening on the street... and it’s subject to cross-examination, so you can talk about the video they didn’t save.” T1 at 19. Defense counsel agreed with that as a general matter, but argued that Detective Smith could not “testify to video that’s been excluded ... because we don’t have the entire 12-minute video.” Id. Counsel added that he could not “cross-examine” Smith because he did not have the entire video. T1 at 20. The court disagreed and ruled that Smith could testify to the video clips she had seen, which defense counsel had also seen, and counsel could “cross-examine that apparently there’s other video, but that video wasn’t preserved. [The victim] didn’t send it.” T1 at 20. Ultimately, the court ruled that Smith could “testify to what [she] saw.” T1 at 21.

Thus, prior to the start of trial, the court clarified its initial ruling excluding the video clips by maintaining its ruling that the clips themselves could not be introduced as evidence, but clarifying that Detective Smith could testify to what she saw on the video clips as part of her investigation. In so ruling, the trial court acted within the bounds of its discretion. It can hardly be disputed that it is within the trial court’s discretion to clarify or reconsider an earlier evidentiary ruling. The “trial court’s discretionary powers are continuous. They may be exercised, and prior exercise may be corrected, as sound discretion may require, at any time prior to final judgment.” State v. MacMillan, 152 N.H. 67, 70 (2005) (quoting State v. Haycock, 139 N.H. 610, 611 (1995)). Because the superior court retains jurisdiction over a matter until its final judgment, interlocutory rulings may be reconsidered at the discretion of the same or another judge of the superior court. Id. “Therefore, the trial court’s review of its preliminary evidentiary ruling will only be overturned if [this Court] find[s] that the court” unsustainably exercised its discretion. Haycock, 139 N.H. at 611.

Similarly, it is beyond dispute that witnesses are permitted to offer relevant testimony that is based upon personal knowledge obtained through the witness’s perception. See State v. Boulton, 174 N.H. 470, 478 (2021); N.H. R. Ev. 701. Accordingly, the question before this Court is whether the trial court’s clarification of its initial order, which continued to exclude the video clips but permitted Detective Smith to testify to what she had observed on the clips, was “was clearly untenable or unreasonable to the prejudice of [the defendant’s] case.” Munroe, 173 N.H. at 479.

As an initial matter, given the trial court’s terse order granting the defendant’s motion in limine, it is difficult to discern the court’s reasons for granting the motion. It is clear that the court was motivated, at least in part, by the State’s failure to file an objection even after the court set a new deadline when the State missed the first one. See DA at 28. It is less clear that the court relied on any substantive ground to exclude the video clips. The video could have been authenticated at trial by the victim and any issue implicating the wiretapping statute could have been resolved by granting the victim immunity and playing the video clips without audio, as the prosecutor explained during trial. T1 at 62-63. It is unlikely that the trial court granted the defendant’s motion on the theory that the State’s failure to turn over the entire video violated the defendant’s right to produce all proofs favorable because the State was never in possession of the full video, which the defendant’s motion acknowledged. See DA at 28- 29. Further, “the trial court cannot compel the State to obtain evidence for the defendant” and the defendant was permitted by “New Hampshire Rule[] of Criminal Procedure [17(b)]” to “serve on the complainant or other third parties a subpoena duces tecum.” Petition of State of New Hampshire, 169 N.H. 340, 342, 344 (2016).

The same reasoning makes it unlikely that the court excluded the video clips under the doctrine of completeness. Additionally, since Rule 106 of New Hampshire’s Rules of Evidence, “[b]y its express terms... applies only to writings or recorded statements, ” it is not a foregone conclusion that the rule applies to video evidence in which no sound from the video is admissible. State v. Warren, 143 N.H. 633, 637 (1999). Some courts have extended the doctrine of completeness to conduct shown on a video recording. See e.g., State v. Stienle, 372 P.3d 939, 942 (Ariz. 2016) (stating that “A ‘recorded statement’” for purposes of Rule 106 “may include electronic recordings of conduct, such as the cell-phone video here.” (citations omitted)). However, undersigned counsel is unaware of any such holding by this Court.

Moreover, “Rule 106... is a rule of inclusion rather than exclusion.” Id. “The rule provides that if one party introduces part of a recorded statement, an adverse party may require the concurrent introduction of other parts when fairness demands.” Id. However, “by its terms, ” Rule 106 does not “direct the exclusion of evidence in any circumstance.” Id.

Accordingly, the court appears to have excluded the video clips because the State procedurally defaulted on the issue, not because the evidence was inadmissible for some substantive reason. In any event, the “mere fact that the [evidence] had been ruled inadmissible [did] not alter the trial court’s discretion to reconsider that ruling on grounds not presented in the motion in limine.” Warren, 143 N.H. at 638. The prayer for relief in the defendant’s motion in limine did not ask the court to exclude testimony related to the video and the court’s order did not explicitly address that issue. See MacMillan, 152 N.H. at 69; compare State v. Towle, 167 N.H. 315, 322 (2015) (trial court granting motion “to the extent that the photographs and any ‘explicitly inflammatory testimony’ describing the photographs would not be admissible at trial.”). Additionally, the State articulated its position, without objection from defense counsel or inquiry from the court, during the pretrial hearing two days before trial that the officer who watched the video clips could testify to what she had observed despite the clips themselves being suppressed. Under those circumstances, it was reasonable to conclude that the State was not precluded by the court’s initial order excluding the video clips from seeking to elicit testimony from Detective Smith about the clips. Cf. MacMillan, 152 N.H. at 69-70. Indeed, the court appeared to begin articulating that understanding of its initial ruling during the discussion of the video on the morning of trial before being interrupted. See T1 at 19 (court stating that “they can testify to what they saw on the video. I sort of assumed that that was - -...”).

The peculiar circumstances of this case make it difficult to locate instructive case law. However, the North Carolina Court of Appeals has affirmed a similar ruling on similar facts. See State v. Stitt, 553 S.E.2d 703 (N.C. Ct. App. 2001). In Stitt, the defendant’s “ball cap” fell off of his head when he ran away from the police, who were arresting him on an outstanding warrant. Id. at 705. The police found cocaine in the hat. Id. at 706. The defendant filed a motion in limine seeking exclude the hat as evidence and, after a hearing, the court excluded the hat because “the State had failed to produce the hat during discovery without justification.” Id. On appeal, the defendant argued that “the trial court erred by allowing [the officer] to refer to the hat at trial because such testimony violated the trial court’s order granting defendant’s motion in limine.” Id. The North Carolina Court of Appeals rejected that argument. The Court explained that, “[i]n the first place, the trial court’s order provided only that the hat itself would not be admissible in evidence, and did not prohibit the State from offering testimony regarding the hat. Nor was it error for the trial court to refuse to sanction the State by prohibiting any testimony regarding the hat.” Id. Further, since the defendant knew that he had lost his hat and that the cocaine he was charged with was discovered in the hat, he “had ample reason to know from the outset that the hat was an integral part of the incident and that [the officer] would likely testify about the hat at trial.” Id. Accordingly, the Court held that the trial court permissibly exercised its discretion in admitting the officer’s testimony. Id. Similarly, here, the court’s order excluded the video clips but did not purport to prohibit the State from eliciting testimony about the video clips, and the court was not required to go beyond the defendant’s prayer for relief and exclude testimony about the video clips. Further, Facebook messages that were sent prior to trial demonstrated that the defendant was aware that the victim had caught the assault on video. See T1 at 63-64. Moreover, defense counsel had seen the video clips and the State had clearly articulated its belief that Smith could testify to what she saw on the clips even though the clips themselves were excluded. Thus, the defendant “had ample reason to know from the outset that the [video] was an integral part of” the case and that the officer who viewed the video clips “would likely testify about” them at trial. Stitt, 553 S.E.2d at 706. Additionally, the State notes that the victim testified, without objection from the defendant, 2 that she had given a video to police when she made her initial report. The victim testified on direct examination that she gave the police “a video” showing the defendant “putting his hands on [her] face.” T1 at 104. On redirect, the victim was asked to “clarify” whether the video she had mentioned was the video showing “the things that happened in the kitchen on the 12th, when [the defendant] came back to her apartment.” T1 at 169. The victim agreed that she was talking about that video. Id. The victim also agreed that she was speaking to the video depicting “the foot” incident, the incident in which the defendant put “both hands on [her] face, ” and the incident in which the defendant put “the one hand on [her] face.” T1 at 169. Following that, it would have left the jury confused to hear nothing from the police about the video that the victim showed them and how that video informed their investigation of the case. In summary, the court admitted Smith’s testimony about what she saw on the video clips, which were not inadmissible for any substantive reason and which defense counsel had seen, while holding to its order that the video clips themselves would not be admitted. In the circumstances presented in this case, 3 such a ruling was not “unreasonable or untenable, ” nor did it prejudice the defendant’s case. Munroe, 173 N.H. at 479. To the extent that the defendant suffered any prejudice as a result of the court’s clarification of its initial ruling, that prejudice was borne out of defense counsel’s faulty assumption that the grant of his motion was a final order that excluded any testimony about the video clips, a remedy he did not request in the motion. Nevertheless, the court remedied any potential prejudice by giving a “missing evidence” instruction, at defense counsel’s request, both after Smith’s testimony and in the court’s final instructions to the jury, even though the entire twelve-minute video was not “missing” because it was never in the State’s possession. See State v. Laurent, 144 N.H. 517, 523 (1999) (“It would be unfair... to require a missing evidence instruction because the evidence at issue was never in the possession of the State and therefore was not missing.”).

The defendant argues that the court’s ruling was error because it undid the court’s ruling on the defendant’s motion “in substance and for all practical purposes.” DB at 20. The State disagrees. The substance of the court’s initial ruling was that the video clips could not be admitted as evidence and that ruling remained unchanged throughout the case. The defendant’s motion did not request, and the court’s ruling did not grant, exclusion of all testimony related to the video.

To the extent that the defendant asserts that the court’s initial ruling was rendered practically useless by its subsequent clarification, such an assertion is vastly overstated. It does not take an attorney to appreciate the benefit bestowed upon a defendant whose crime is caught on video when a court limits the admissible evidence to testimony about the video, but excludes the video itself. Common experience is all one needs to know that watching a movie is significantly more impactful and emotive than hearing someone describe what they saw in a movie.

The defendant next contends that defense counsel “can hardly have foreseen the trial court’s late change of course.” DB at 20. Again, the State disagrees. Defense counsel, having drafted the motion in limine, knew that the requested relief did not include a request to exclude any testimony related to the video clips. Counsel also can be presumed to have known that the trial court’s initial ruling was an interlocutory one that the court had the discretion to revisit. See MacMillan, 152 N.H. at 70. Further, during the pretrial hearing that was held two days prior to trial, the State clearly articulated its belief that, although the video clips themselves had been excluded, the officers that viewed the clips could testify to what they observed on them. H at 6. Accordingly, defense counsel knew, or should have known, that the issue of whether Smith could testify to what she observed on the video might arise. The defendant’s reliance on State v. Demond-Surace, 162 N.H. 17, 25 (2011) for the proposition that “the defense was entitled to rely on the court’s ruling” on his motion in limine when the State did not file a motion to reconsider is misplaced. DB at 20. Unlike this case, the court’s order in Demond-Surace excluding evidence of impairment was unmistakably clear. “Specifically, the court told the State that ‘as far as the jury is going to know, she was sober. She wasn’t impaired.’” Demond-Surace, 162 N.H. at 21. Thus, it was abundantly clear that no evidence of impairment could be admitted. By contrast, in this case, all that can be concluded from the court’s order is that the video clips could not be admitted as evidence, not that all evidence related to the video clips was inadmissible.

Further, the State’s representation in Demond-Surace, unlike this case, made it reasonable for the defendant to rely on the trial court’s order. In Demond-Surace, the State “represented that it did not have any witness that would testify that the defendant was impaired or showed any signs of impairment.” Id. By contrast, in this case, the State specifically articulated at the pretrial hearing its position that the officer that viewed the video clips could testify to what she had observed on the clips. Accordingly, Demond- Surace is readily distinguishable from this case. The defendant goes on to argue that the trial court’s assertion that defense counsel was free to cross-examine Smith about the missing video was flawed. DB at 21. The defendant argues that, if the rest of the twelve- minute video were “gone” and all that remained were the clips, then defense counsel could have adequately “elicited the fact that the clips formed a part of a now-lost, larger original video.” Id. However, he contends, the problem in this case “was greater than that” because the fact that Kooharian told the victim to send her the clips showing physical altercations was an “act of selection” that “supported an inference, asserted by the defense as likely, that the missing video would contain exculpatory content.” Id.

The heart of the defendant’s argument on this point is that neither counsel nor Smith had ever seen the entire video and, therefore, counsel could not possibly ask the right questions, nor could Smith provide the right answers, to establish that the missing portions of the video were either exculpatory or provided “missing context” that “shed an exculpatory light” on the video clips. DB at 21-23. Any legitimate concern encompassed by the defendant’s argument was addressed by the court giving a missing evidence instruction after Smith’s testimony and in its final instructions, which permitted the jury to draw an inference in favor of the defendant regarding the missing video.

The defendant also contends that “[c]ross-examination could accomplish nothing, under these circumstances, to reveal the original’s lost, exculpatory content.” DB at 22. That assertion should be dismissed because it assumes its own conclusion — that the missing portion of the video included exculpatory content.

Nevertheless, the defendant avers that the trial court’s “idea that the opportunity for cross-examination can make admissible evidence that would otherwise be inadmissible” “misunderstands the relationship between admissibility and cross-examination.” DB at 23. But the trial court never suggested that defense counsel’s ability to cross-examine Smith somehow rendered inadmissible evidence admissible. The video clips themselves, which were the subject of the motion in limine, were never deemed admissible. Conversely, Smith’s testimony about reviewing the clips during her investigation was never deemed inadmissible, and there were no substantive grounds for not admitting her testimony. The court’s point about cross-examination was that defense counsel, through cross-examination, could highlight what might be perceived as a flaw in the police investigation of this case and that the other portions of the video, for all Smith knew, exculpated the defendant. Instead of harping on that point and hammering it home for the jury, defense counsel opted to ask cursory questions establishing only that Smith had never seen the balance of the video. See T1 at 184, 187. Nonetheless, the court did not rule that it was admitting evidence that it believed was otherwise inadmissible on the ground that defense counsel could cross-examine Smith about the evidence. Finally, the defendant argues that the court’s error prejudiced the defendant because his defense was primarily a challenge to the victim’s credibility, and the “principal difference” between the October 12 charges of which he was convicted and the October 15 charges of which he was acquitted “was Smith’s testimony about the events shown on the clips.” DB at 24. This argument should be rejected for at least two reasons. First, as previously explained, the court’s missing evidence instruction allowed the jury to draw an inference favorable to the defendant regarding the missing portion of the video. Second, the differences in the evidence relating to the October 12 charges and the October 15 charges were not limited to Smith’s testimony about the video. Another difference, which was arguably as weighty as Smith’s testimony, was the letter that the defendant gave to the victim after the October 12 incident, but before the October 15 incident, in which he apologized. Even if the apology was not a flat-out admission of the conduct depicted in the video, it was strong evidence for the jury that the defendant had wronged the victim, which was consistent with the victim’s testimony.

Additionally, the victim alleged that during the October 15 incident, the defendant picked her up over his head by his neck and shook her. However, as defense counsel pointed out during his cross-examination of the victim and his closing argument, the victim never told police that she had any injuries or markings from that incident and there was no evidence of any such markings or injures. See T1 at 156-159, 209-211.

Accordingly, there are various reasons why the jury may have convicted on the October 12 charges and not the October 15 charges, and Smith’s testimony about the video clips does not compel the conclusion that the jury would have acquitted the defendant of the October 12 charges but for Smith’s testimony.

In conclusion, the trial court acted within its discretion in allowing Smith to testify to what she observed on the video clips during her investigation. Even so, in an abundance of caution, the trial court issued a missing evidence instruction that was read to the jury twice by the court and once by defense counsel during his closing argument. See T1 at 199- 200, 209, 226. Accordingly, the trial court should be affirmed.

Even if the trial court erred in admitting Smith’s testimony about the video clips, any such error was harmless beyond a reasonable doubt. See State v. Racette, 175 N.H. 132, 137 (2022). To establish harmless error, the State must prove beyond a reasonable doubt that the error did not affect the verdict. Id. This standard applies to both erroneous admission and exclusion of evidence. Id. An error may be harmless beyond a reasonable doubt if: (1) the other evidence of the defendant’s guilt is of an overwhelming nature, quantity, or weight; or (2) the evidence that was improperly admitted or excluded is merely cumulative or inconsequential in relation to the strength of the State’s evidence of guilt. Id. This Court reviews these factors to determine whether an error affected a verdict. Id. Either factor can be a basis for supporting a finding of harmless error beyond a reasonable doubt. Id.

Here, the victim gave credible, detailed testimony about the assaults. The victim also testified to a letter she received after the October 12 incident, but before the October 15 incident, in which the defendant apologized and said he is not a monster. That letter was admitted as a full exhibit. Further, the victim testified, with no objection from the defendant, that she showed the police a video when she reported the incident. She agreed that the video she showed police showed the defendant putting his hands on her face, grabbing her by the face, and stomping on her foot. See T1 at 104, 169. Thus, the victim offered compelling testimony that was backed up by corroborative evidence. Accordingly, the evidence of the defendant’s guilt in this case was of an overwhelming nature and weight even without Smith’s testimony about the video clips. Additionally, Smith’s testimony about the video clips was cumulative of the victim’s testimony on the same subject. The victim testified on direct and redirect examination, without any objection, that she gave the police a video showing the defendant putting his hands on her face multiple times and stomping on her foot. Smith testified that the video clips showed a “verbal altercation that turned physical” when the defendant grabbed the victim by the face “a few different times, ” put a “couple of his fingers to her temple, ” and “walked her into a hutch type structure.” T1 at 177-178. Smith also testified that she saw the defendant step on the victim’s foot in the video. T1 at 178. Accordingly, the victim’s testimony and Smith’s testimony as to what was shown on the video clips was not substantively different and, therefore, Smith’s testimony was cumulative testimony of what was on the video clips.

In some cases, this Court has also considered “curative steps taken by the court, ” such as curative instructions, in deciding whether a trial error was harmless beyond a reasonable doubt. See State v. Munson, 126 N.H. 191, 192-193 (1985) (“curative steps, ” including limiting instruction, cured prejudice); State v. Scarlett, 118 N.H. 904, 906 (1978) (curative instruction was not sufficient to remedy prejudice). In this case, despite the fact that the State was never in possession of the entire video, the court gave a missing evidence instruction at the end of Smith’s testimony and in its final instructions. That instruction allowed the jury to draw an inference from the missing portions of the video that was favorable to the defendant, which cured any prejudice he may have suffered from Smith’s testimony. For those reasons, even if Smith were not permitted to testify to what she observed on the video clips — which would not necessarily preclude her from testifying that she had reviewed video provided by the victim that was consistent with the victim’s initial report, without describing what exactly the video showed — any error the court committed in admitting Smith’s testimony was harmless beyond a reasonable doubt.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State does not request oral argument. In the event that oral argument is scheduled in this case, Sam Gonyea will present on behalf of the State.

I, Sam M. Gonyea, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 8, 241 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

June 5, 2023 /s/ Sam M. Gonyea Sam M. Gonyea

I, Sam M. Gonyea, hereby certify that a copy of the State’s brief shall be served on Christopher M. Johnson, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

June 5, 2023 /s/ Sam M. Gonyea Sam M. Gonyea