State of New Hampshire v. George Moses

1. Whether the court erred by admitting under Rule 404(b) other bad act evidence allegedly committed by Moses against R.G.

Issue preserved by State’s motion in limine and Moses’s objection to it, argument on the motion, and court’s order. A 49-57; AD 30, 34, 35; M 8-27. *

A Rockingham County grand jury indicted George Moses on three counts of second-degree assault - domestic violence - against R.G., each alleging strangulation, and two counts of kidnapping for allegedly confining R.G. in her apartment with a purpose to assault and terrorize her. T 2-4. The State also charged Moses with three misdemeanor counts of criminal threatening, and two simple assault - domestic violence - counts. T 4- 6. The charges arose from an incident involving Moses and R.G. at R.G.’s apartment on August 5, 2020.

Following a three-day trial, the jury found Moses guilty on all but one of the charges. T 390-94. He was acquitted of the simple assault charge that alleged he threw R.G. on the bed. T 393. The court (Schulman, J.) dismissed one of the kidnapping charges on the State’s representation that the charges were for alternative theories of liability. T 435-36. The court sentenced Moses to serve seven to fifteen years at the state prison on the kidnapping conviction, concurrent with a twelve-month sentence on the misdemeanor convictions. T 489-92. The court also sentenced Moses to a term of three-and-a-half to seven years on the three second-degree assault charges, all of which was suspended for a period of ten years following his release from prison. T 489-92.

In March 2020, after a period of dating, Moses moved into R.G.’s apartment. T 29-32. A few months later, on July 2, they married outside the courthouse, which was closed because of COVID. T 33, 62. R.G. testified that, at the beginning of their relationship, Moses was nice to her, sending her flowers and being “lovey dovey.” T 33. According to R.G., Moses changed after they married. T 33-34. She described him as becoming controlling and hostile. T 34. Finances became a constant source of anger, frustration, and stress for them. T 34, 109. Before they married, her father paid most of her bills. T 37-38, 108-09. Her father stopped doing so after she married Moses because she was now “somebody else’s woman.” T 38, 108-09. Although R.G. and Moses agreed to share their living expenses, she testified that he was not contributing any money to do so. T 62-64, 109. They frequently argued over money. T 64-68, 109-10, 138.

Toward the end of July 2020, while they were arguing about money, R.G. said that Moses became “enraged.” T 66. She claimed that he threw her phone across the room, destroying it. T 66, 68, 132-33, 155 (she had no photos of the broken phone and never provided it to the police). In response, she took a mallet to his drone. T 70, 134-36 (first claiming she did not actually hit the drone, but then admitting the mallet “may have touched” the drone, while claiming it was already broken). She said that, after he took the mallet from her, Moses punched her hard in the nose, pushing her into a wall. T 66, 70. Although she said it felt like her nose had come off her face, she acknowledged that her nose did not bleed or bruise. T 66-67, 69, 132 (she had no photos of the injuries, never sought medical attention for it, never reported it to the police). Because she still needed money for their expenses, she did not end their relationship and things continued to be hostile. T 72, 74.

On August 5, 2020, R.G. and Moses had a backyard barbecue. T 75. They spent the first part of the day getting ready, including going to the market. T 75, 143-44. Moses started grilling around mid-afternoon. T 76. R.G.’s father came up and some neighbors stopped by while they were outside. T 75, 77. R.G.’s father left before dark, and she and Moses cleaned up and returned upstairs to their apartment. T 77. Another month had gone by, and R.G. was still concerned about the bills. T 78. While they were watching television, R.G. started asking Moses what he was going to do about the bills and if he was going to get a job. T 78, 108. R.G. said things then escalated into an argument. T 78, 125. They were both yelling, but R.G. claimed Moses was much louder than her. T 79. At some point, she told him that she was going to get a restraining order and “[Y]ou’re out of here tomorrow.” T 79. R.G. said that Moses laughed at her, crumpled up a piece of paper, threw it at her, and said “nobody is going to f—with his freedom.” T 80. She wanted the restraining order because of the punch a few weeks earlier, and because he wasn’t pulling his weight with the expenses. T 80. See T 110 (R.G. told Exeter Police Officer Ryan the argument was over money).

R.G. went to the bedroom because she claimed Moses would not give her the keys to her car. T 83. At some point, Moses swung the door open, threw the bedding on the floor, and got on top of her on the bed. T 81, 84. But see T 218 (Officer Byron did not see any bedding on the floor). According to R.G., Moses said, “I’ll kill you, ” “put a bullet between your eyes through your head” and, “I’ll fucking kill you.” T 81-82. She was horrified because he had shown her a gun a couple of days earlier. T 82.

While straddling her on the bed, Moses put his hand around her neck, applied pressure, and pushed her into the bed. T 84-85. She said she tried to scream but his hand prevented it. T 85. She was scratching and kicking at him, and “he let up for a second.” T 85. Moses then put his hands on her again, applying pressure to her neck and mouth. T 85-86, 87-88. She thought she was going to die. T 86. Moses told her that he would “crack her f--- neck right now.” T 86. At some point, he let up the pressure but then put his hands on her mouth and her neck for a third time. T 88-89. But see T 118-22, 152 (admitted she denied head, neck, and back pain to EMTs because she did not want CAT or MRI but said her neck and throat hurt a lot).

Moses then got up and stood in the doorway. T 89. R.G. got up and, when she tried to pass him, he picked her up and threw her to the floor and wrestled with her. T 89-91. But see T 129-30 (R.G. wrote in an emergency protective order application that he tried to pick her up and she fell to the floor). R.G. said Moses punched her in the face on the left side, and then ran from the apartment. T 93-94. She also ran outside and headed for the train station figuring that would be the most visible place to go. T 94-97. See T 218 (Officer Bryon searched the entire apartment and did not see anything in disarray).

Apparently, R.G.’s downstairs neighbor, Drew Dagostino, called police after she ran out of the building. T 159. When R.G. reached the train station, the police called her. T 98. Shortly thereafter, the police found her at the station. T 98-99. EMTs then took her to the hospital. T 100. While R.G. was at the hospital, Officer Ryan assisted her in getting an emergency restraining order against Moses. T 101. The next day, R.G. went to court and got a full restraining order. T 101. Despite the restraining order, Moses attempted to call her in October 2020. T 101.

The next day, R.G. filed for divorce. T 139. In the divorce proceedings, she asked for a share of any funds Moses received on a hernia mesh litigation claim. T 140, 42. R.G. explained that she wanted a share because she “was his wife, why not.” T 140-41. She claimed, however, that when she “looked into it, it was nonexistence [sic] and it didn’t matter.” T 142-43.

During the evening of August 5, Dagostino was wearing headphones playing video games in his apartment below R.G.’s. T 156-57. Around 10:00 p.m., some loud banging caught his attention and he heard someone say, “give me back my phone.” T 159. He also heard some stomping and yelling, and a female voice screaming. T 159-60, 166-67. But see T 190-91 (Dagostino told Ryan he heard yelling from two people, and it sounded like an argument). Because what he heard sounded distressed and frantic, he called the police. T 160. He then heard someone going downstairs and the exterior door being opened. T 160. Dagostino was not sure who or how many people left. T 160. See also T 193-94 (Dagostino told Ryan he heard people going up and down the stairs).

At about 10:22 p.m. on August 5, Exeter Police Officer Ryan was dispatched to R.G.’s apartment building for a call about a “domestic disturbance.” T 170-71. When he arrived, no one was at R.G.’s apartment. T 172. Exeter police dispatch identified R.G. as the resident of the apartment above Dagostino and called her. T 173. See also T 280-84 (Exeter police dispatcher described how they identified R.G. and called her). Ryan then met her and another officer at the train station. T 173.

Ryan found R.G. “hysterically crying and yelling to herself.” T 173. See also T 207-08 (Officer Byron also described her as upset and crying). Eventually, she calmed down a bit but remained upset. T 174-75. He talked with her and identified Moses as the “other party” involved in the disturbance. T 175-76. Ryan then took photos of injuries that R.G. pointed out. T 176. He took photos of her left knee, which was red and slightly bruised, which he noticed was red. T 177-78. See also T 192-93, 194-95 (Ryan did not see any injuries on R.G.’s face, her left arm and wrist and did not see any cuts or blood and did not notice any additional injuries on her on August 6); T 216-17 (Officer Byron did not notice any bruising on R.G.) R.G. said she wanted to be seen by EMTs, so Ryan called for the EMTs, who eventually took R.G. to the hospital. T 179-80.

While at the hospital, Ryan assisted R.G. in applying for an emergency restraining order against Moses. T 180-81. He told her that, in the morning, she would need to apply for a temporary order. T 181. He also completed a LAP screen, which is protocol in domestic-violence cases, and referred her to an advocacy center. T 181-83.

Officers were not able to locate Moses, either at R.G.’s apartment or elsewhere. T 209-10. On August 13, Moses was arrested. T 184-85. After waiving his Miranda rights, Moses agreed to talk with Ryan. T 186, 194. Based on statements Moses made to Ryan, Ryan later talked with R.G., but did not do any further follow up based on information that Moses shared. T 187-88. Ryan never took photos of the scene in R.G.’s apartment or sought to collect any evidence there. T 188.

Michael Morin was an EMT who responded to the train station to examine R.G. T 223. R.G. complained of some pain to her left cheek, left forearm, and left knee. T 225, 233. He noted bruising only on her left wrist. T 226. She denied any headache, dizziness, or head, back, throat, or neck pain. T 226-27, 233-34. R.G. told him that she had been in a verbal and physical altercation with her boyfriend. T 226. She did not claim she had been punched or strangled, or that she lost consciousness. T 234. Morin did not see any cuts, abrasions, bleeding, swelling, bruising to knees or head, or any life-threatening injuries. T 226, 235. R.G. requested to be taken to the hospital. T 226, 227.

At the hospital, R.G. saw Katie Lima, an emergency room nurse. T 238, 240. She described R.G. as upset and tearful. T 241. R.G. said that her husband had been verbal and physical with her and had punched and choked her. T 242. Morin saw an abrasion on R.G.’s face and R.G. complained about left knee pain from a fall. T 246. Morin noted in her records that R.G. said she fell onto her left knee and elbow. T 247. R.G. did not tell Morin that Moses had thrown her to the floor. T 247. Morin did not see any blood or bruising on R.G. T 251.

Dr. Sean Buturla also saw R.G. in the emergency room. T 253, 257. R.G. told him that her husband attacked her when she was filling out paperwork for a restraining order. T 261. R.G. said he struck her with an open hand, choked her and forced her to the ground, causing her to land on her left side. T 261-62. She did not report losing consciousness but was unsure. T 262. R.G. complained of left knee pain. T 262. Dr. Buturla said R.G. was anxious and fearful when she first got to the hospital. T 262. He only noted some redness on her cheek, bruising on her left wrist and left knee, and some tenderness on the front of her neck and left elbow. T 264-67, 271-73.

The court erred in allowing the State to introduce evidence that Moses allegedly assaulted and threatened R.G. in July 2020, prior to the August 5 incident. Although the court admitted the July evidence to prove intent, that element was not “seriously in dispute” in light of the charged acts and R.G.’s testimony about them. Any probative value the evidence offered was substantially outweighed by the danger that the evidence would be used for a propensity purpose. The court also erred when it ruled prior to trial that evidence that R.G. obtained a restraining order after the August 5 incident and Moses allegedly violated it by attempting to call her in October 2020. The court admitted the evidence because it was relevant to R.G.’s credibility and to give “context” for her and Moses’s relationship. Until and unless R.G.’s credibility was impeached and the State clearly demonstrated that the restraining order and call evidence, if believed, would rebut, that impeachment, there was no basis to find the evidence relevant and admissible for a non- propensity purpose.

Before trial, the State moved to admit evidence under Rule 404(b). The evidence consisted of: (a) events that allegedly occurred in late July, (b) R.G. obtaining a restraining order after the August 5 incident, and (c) an alleged call Moses made to her in October. The State argued that the July evidence was probative of Moses’s motive and intent to terrorize R.G. and R.G.’s state of mind on August 5. The State contended that the restraining order and October evidence was probative of the domestic violence nature of the parties’ relationship and Moses’s intent to continue terrorizing R.G.

Moses objected, arguing that the proffered evidence was not relevant to any proper purpose under Rule 404(b) and that any probative value was substantially outweighed by the danger of unfair prejudice. He also challenged the State’s claim it had “clear proof” of the July incident. A 49-52; M 23- 24, 26.

The trial court ruled the July evidence admissible to prove the “purpose to terrorize” elements of the kidnapping and misdemeanor criminal threatening charges. AD 34; M 20-26. The court explained that those elements require more proof than simply an intent to scare an alleged victim or threats made in anger. AD 34. According to the court, “the fact that the defendant previously used great violence agains[t] the victim is relevant....” AD 34. The court ruled that the restraining order and October 17 call were relevant to R.G.’s credibility about her relationship with Moses and “to the whole story.” M 22. The court further explained, “[t]he alleged victim will be testifying in court and giving evidence against the defendant. He [] efforts at contacting her are relevant, and proactive [].” AD 35. In so ruling, the court erred and that error unfairly prejudiced Moses because the probative value of evidence was in showing his propensity to commit the acts.

The Court reviews evidentiary rulings for an unsustainable exercise of discretion and will reverse if the ruling was clearly untenable or unreasonable to the prejudice of the defense. State v. Tufano, 175 N.H. 662, 665 (2023). Because the court ruled the evidence admissible prior to trial, the Court considers only the evidence presented to the court at that time “to avoid the pitfall of justifying the court’s ruling upon the defendant's response at trial to the evidence.” State v. Nightingale, 160 N.H. 569, 573 (2010) (citations omitted). “The State bears the burden of demonstrating the admissibility of prior bad acts.” Tufano, 175 N.H. at 665 (quotation omitted). Rule 404(b) provides:

“The purpose of Rule 404(b) ‘is to ensure that an accused is tried on the merits of the crime charged and to prevent a conviction that is based upon propensity and character inferences drawn from evidence of other crimes or wrongs.’” Tufano, 175 N.H. at 665 (quoting State v. Thomas, 168 N.H. 589, 599 (2016)). Other act evidence is admissible only if “(1) it is relevant for a purpose other than proving the person's character or disposition; (2) there is clear proof, meaning that there is sufficient evidence to support a finding by the fact-finder that the other crimes, wrongs or acts occurred and that the person committed them; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Id. (quoting N.H. R. Ev. 404(b)).

Here, the trial court erred in ruling admissible the prior bad act evidence to establish intent because that element was not seriously in dispute, but the evidence was likely to cause substantial unfair prejudice to Moses. It also erred in determining prior to trial that subsequent bad act evidence and evidence that a court had issued a restraining order was admissible to bolster R.G.’s credibility and to tell the “whole story.”

To be relevant to “intent, ” the other bad act evidence must have some direct bearing on an issue actually in dispute, and there must be a clear connection between the particular evidentiary purpose, as articulated to the trial court, and the other bad acts.” State v. Davidson, 163 N.H. 462, 469 (2012). When other bad act evidence is proffered to prove intent, a primary consideration is whether the intent to commit the offense is “actually in dispute.” Tufano, 175 N.H. at 666. See also State v. Hickey, 129 N.H. 53, 59-60 (1986) (“the trial court must consider whether the evidence is offered to prove an issue that is actually in dispute and, if so, how serious that dispute really is”). See also State v. Addison, 165 N.H. 381, 464 (2013) (“whether the evidence is relevant to prove an issue that is actually in serious dispute is particularly important to the calculus”); State v. Cassavaugh, 161 N.H. 90, 98 (2010) (same). When “intent” is not an element seriously in dispute, the evidence has little relevance to the issues to be decided by the jury but can pose significant risk of unfair prejudice. Hickey, 129 N.H. at 60. See also State v. Blackey, 137 N.H. 91, 95-96 (1993) (prior alleged assaults not admissible for non-propensity purpose where defendant did not contend contact with children was an accident).

“Although the proper balancing of prejudice and probative value cannot be reduced to formulae, ” Addison, 165 N.H. at 464, several factors must be considered, including: “whether the evidence would have a great emotional impact upon a jury” or great “potential for appealing to a juror's sense of resentment or outrage”; “the extent to which the issue upon which it is offered is established by other evidence, stipulation, or inference”; and “whether the evidence is relevant to prove an issue that is actually in serious dispute.” Id. (citations omitted). Even when intent is “not formally withdrawn from consideration, and in assessing the probative value of evidence the court should always consider the exact details of the State's burden.” Hickey, 129 N.H. at 60 (noting that “in extraordinary circumstances when there is a need to prove that a defendant acted purposely, the court may find, in the proper exercise of discretion, a stronger justification” for admitting prior act evidence). “Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, or provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision upon something other than the established propositions in the case.” State v. Belonga, 163 N.H. 343, 360 (2012) (quotation omitted). As the Court has emphasized, the risk of unfair prejudice is high where the prior acts are similar to the charged conduct. Id. at 360. The more similar the prior act and charged conduct are, the greater the potential for unfair prejudice. Id. (citations omitted).

The court ruled the July evidence admissible to prove the intent element of the kidnapping and criminal-threatening charges. The intent element, however, was not seriously in dispute. Although Moses did not stipulate to the mens rea element of the offenses, Moses’s defense was not that he did not intend to terrorize R.G. Rather, his defense claimed that R.G. was lying when she alleged that Moses assaulted, threatened and kidnapped her on August 5.

Contrary to the court’s finding, if the jury found R.G. credible in her description of what she claimed occurred on August 5, the assaultive and threatening acts she described were more than sufficient to support the State’s theory that Moses acted with the requisite mens rea. This is not a case where the only evidence consisted of a threat to “murder, ” or “other expletives used in transitory anger”, AD 34, that would not by itself reflect a defendant’s intent. Both the kidnapping and criminal threatening charges rested on the allegations that, on August 5, Moses threatened to snap R.G.’s neck, kill her, and/or put a bullet in her head. A 6-8. In addition, the allegations supporting the other charges arising from the August 5 incident involved a prolonged physical assault, including three incidents of strangulation. A 3-5. Allegations that Moses also threatened and assaulted her in July simply were not relevant to prove his intent on August 5. Instead, the July evidence only made it more probable that Moses assaulted and threatened R.G. on August 5 if the jury believed he had a propensity to engage in that conduct.

Not only did the July evidence offer little, if any, probative value on the issue actually in dispute, it carried a high risk of unfair prejudice to Moses. The evidence involved conduct very similar to the charged conduct. The prior conduct was likely to appeal to a jury’s sense of horror and outrage and lead to a decision resting on something other than whether, on August 5, Moses committed the charged offenses. See Bassett, 139 N.H. 493, 500 (1995) (finding that it was difficult to separate a State’s proffer to use prior bad act evidence to show the requisite intent to commit the same crime “from an impermissible use to show a defendant’s propensity to commit the crime and thereby imply his intent.”) (citations omitted).

Any probative value the evidence offered was substantially outweighed by the danger of unfair prejudice to Moses by diverting “the jury’s attention from the question of [his] responsibility for the crime charged to the improper issue of his bad character.” State v. Melcher, 140 N.H. 823, 831 (1996).

Bolstering the credibility of a witness is not one of the permissible purposes enumerated in Rule 404(b) for which other act evidence may be admissible. In any event, credibility evidence should not be ruled admissible before a witness has been impeached.

The body of Rule 404(b) itself suggests several permissible purposes for admitting evidence of uncharged bad acts allegedly committed by a defendant. Specifically, such evidence may be used “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

State v. Montgomery 144 N.H. 205, 208 (quoting N.H. Ev. R. 404(b) (1999). Although the Court has noted that, “the rule does not purport to provide an exhaustive list of permissible purposes, ” admitting bad act evidence to buttress a witness’s credibility in anticipation of it being attacked is improper. Id. at 208-09.

“[T]he admission of bad acts evidence in the State’s case in chief cannot be justified by a belief in advance of trial that excluding this evidence will mislead the jury.” Id. at 209. “It is rudimentary that a party cannot use collateral evidence to bolster the credibility of its own witnesses absent a direct attack.” Id. (citations omitted). Only if and when the defense directly challenges a witness’ credibility, may the State use the uncharged acts to rehabilitate its witness. “The State cannot, however, use Rule 404(b) as an avenue for circumventing basic evidentiary thresholds.” Id. Relatedly, although not specifically enumerated in Rule 404(b), the Court has recognized that the rule only allows evidence to provide “context” for the charged offenses if it is relevant for “a purpose other than to prove the character of a person in order to show that the person acted in conformity therewith.” State v. Melcher, 140 N.H. 823, 829 (1996). See also State v. Davidson, 163 N.H. 462, 471 (2012) (evidence to prove defendant was controlling perpetrator to show context of his relationship with complainant was inadmissible propensity evidence); State v. Blackey, 137 N.H. at 95–96 (it was error to admit prior bad act evidence to establish a pattern of abuse). However, “[t]o be relevant, this evidence must still have some direct bearing on an issue actually in dispute, apart from its tendency to show propensity.” Melcher, 140 N.H. at 829 (citations omitted).

Evidence of uncharged conduct to provide a “context” for a complainant’s story poses a significant risk that it will be used just as propensity evidence. State v. Glodgett, 144 N.H. 687, 694 (2000). Absent a specific motive to lie that the uncharged conduct, “if believed, would rebut, the evidence is probative of the complainant’s credibility only if one concludes that the defendant committed the uncharged acts and infers that he committed the charged acts.” Id. “When, in this manner, an assumption based upon the defendant’s propensity toward certain action is the essential connection in the inferential chain supporting relevance, the evidence is inadmissible under Rule 404(b).” Id. (quotation omitted). See also, Melcher, 140 N.H. at 830 (trial court erred in admitting defendant’s prior sexual contact with complainant to explain the relationship between the parties and to show how the charged acts between a minor child and an adult may occur). As with evidence bolstering a witness’s credibility, “context evidence” might be admissible if a defendant challenges the witness’s credibility. Until that occurs, however, “the fundamental demands of justice and fairness compel its exclusion.” Id. (citations omitted).

Here, the court ruled admissible the restraining order and October phone call evidence, explaining that it was relevant to R.G.’s credibility and to telling “the whole story.” M 21-22; AD 35. At best, the ruling was premature. Until and unless R.G.’s credibility was impeached and the State clearly demonstrated that the restraining order and call evidence, if believed, would rebut, that impeachment, there was no basis to find the evidence relevant and admissible for a non-propensity purpose.

The admission of the July restraining order and October phone call evidence prejudiced Moses. The evidence invited the jury to rely on an improper propensity inference made especially tempting because the charged crimes lacked any outside observers. The propensity inference offered the jury a strong reason to find Moses guilty not based on what happened on August 5, but instead based on his conduct on other occasions.

The July 2020, restraining order, and October 2020 call evidence should not have been admitted. The evidence unfairly prejudiced Moses, allowing the State to urge guilt based not just on what may have occurred on August 5, but on the other acts Moses had done. See T 338, 340. Because the evidence thus unfairly prejudiced the defense, the Court must reverse Moses’s convictions.

WHEREFORE, Moses respectfully requests that this Court reverse his convictions.

Undersigned counsel requests fifteen minutes of oral argument.

The appealed decisions are in writing and therefore are appended to the brief.

This brief complies with the applicable word limitation and contains 4992 words.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.