State of New Hampshire v. George Moses

A Rockingham County grand jury indicted the defendant, George Moses, on three counts of second-degree assault – domestic violence – by strangulation, and two counts of kidnapping – domestic violence. DA at 3- 6; T at 2-4. 1 The defendant was also charged with three misdemeanor counts of criminal threatening, and three counts of simple assault – domestic violence. T at 4-6; DA 7-8.

The defendant stood trial before a jury over the course of three days in May 2023. See T at 1, 203, 301. After trial, the jury convicted the defendant of all charges except one count of simple assault, which alleged that the defendant threw the victim on the bed. T at 388, 390-94. One kidnapping charge was dismissed because the two indictments presented alternative theories. See T at 435-36.

The court (Schulman, J.) sentenced the defendant to a stand committed sentence of seven to fifteen years for the kidnapping conviction, concurrent with twelve-month sentences for each of the misdemeanor convictions. T at 489-92. The defendant was sentenced to terms of three- and-a-half to seven years for each of the second-degree assault convictions, all of which was suspended for ten years upon his release from prison. T at 489-92.

After the two were married, the relationship “changed drastically.” T at 33. The defendant “became really hostile” and “controlling, ” and “when it came down to financials and such, ” he was “unbearable to deal with.” T at 33-34. Before the victim married the defendant, her father assisted her financially with her “regular bills, [her] rent, and [her] car payment.” T at 37. However, the first month after the victim and the defendant married, her “father discontinued” that assistance. T at 38. The victim was always under the impression that once she and the defendant were married and living together that they would split the household costs “equally down the middle.” T at 38-40.

The defendant was unemployed when he moved in with the victim, but she had a job working at Shaw’s Supermarket. T at 63. Accordingly, the plan to split the bills evenly “didn’t happen.” T at 63. The victim was left “to pay for everything[, ]” which she “didn’t have enough money to do.” T at 63. The defendant would sometimes do “odd jobs, ” but “he never gave [the victim] any of the money... to put toward the bills.” T at 64. The victim and defendant could not make ends meet and she “didn’t know how [they] were going to do it without the help of [her] dad.” T at 65. Within the first month of the victim’s marriage to the defendant, things had become “[v]olatile, you know, hostility and just really ugly.” T at 65. On July 24, 2020, just two months after the two had married, the relationship between the victim and defendant turned physically abusive. T at 65-66. The victim and defendant “argu[ed] about bills.” and the victim demanded the defendant get a job to help her pay the bills. T at 67. The defendant then “became really nasty and ugly” and threw the victim’s phone across the room “and punched [the victim] right in the face.” T at 66-67. The defendant also threatened to kill the victim and her father. T at 132. The defendant tried to console the victim after punching her, but she was “horrified” and told him to “get away from [her].” T at 66-67. The victim was “fearful to call the police, ” so she did not, but she “told [the defendant] that [she] was going to get a restraining stay-away order.” T at 71. At that time, the victim developed “a plan” to get “caught up on the bills” and then she “was going to ask [the defendant] to leave and have the stay away restraining order in place and move on.” T at 72. The victim “knew [she] was in trouble.” T at 72. The victim’s relationship with the defendant continued to be volatile after July 24 and, on August 5, 2024, things became physical again. T 2 at 74.

The victim “was very happy” on the morning of August 5 because her “dad was coming up” for “a cookout, ” and it turned out to be “a good day.” T at 75. The cookout ended in the early evening and, after cleaning up, the victim and defendant went into their apartment and watched TV. T at 77. While they were watching TV, the “issue of the bills” arose again. T at 78. The victim asked the defendant if he was going to get a job and told him that they “really [couldn’t] go through another month” with things as they were. T at 78.

An argument began but, instead of “engaging” and allowing it to turn into “something really bad, ” the victim told the defendant that she was “not going to even argue with him.” T at 79. She told the defendant that she was “going to the court and getting a restraining order” and the defendant was “out of [there] tomorrow.” T at 79. The defendant responded by laughing and saying “no, you’re effing not.” T at 80. He grabbed “a piece of paper crumpled up” and “threw it at [the victim]” before saying “that’s the value of your restraining order. It means nothing. He said nobody [was] going[] to fuck with [his] freedom.” T at 80. At that point, the victim “was scared” and “horrified.” T at 81. The victim decided to go to bed and asked the defendant to leave her alone. T at 81. “Next thing [she] knew, the door swings open” and the defendant was “on top of [her] on the bed.” T at 81. The defendant held the victim down, put his “hands around [her] neck, ” and started “applying pressure.” T at 84. The victim was “praying for [her] life” and “trying to scream and yell.” T at 85. The victim “couldn’t breathe[, ]” “couldn’t yell[, ]” and was “losing consciousness.” T at 87. She “thought, this is how I’m going to die.” T at 86. The defendant let up and then began choking the victim again on two separate occasions. T at 87-90.

At one point during the strangling, the defendant told the victim that he “should break [her] fucking neck right now.” T at 89. He also told the victim he was going to “put a bullet right... between [her] eyes through [her] head.” T at 82. He told the victim that he would “fucking kill [her].” T at 82. The victim “[a]bsolutely” believed that the defendant could follow through on that threat because the defendant had shown her a gun two days earlier. T at 82.

Eventually, “for some strange reason, ” the defendant stopped, got up, and stood in “the doorway of the bedroom.” T at 88. The victim got up and tried to get by him, but the defendant picked her up “almost to his shoulder, and body-slammed [her] to the floor.” T at 88. “It was a really loud noise” when the defendant slammed the victim to the floor. T at 94. The defendant punched the victim in the left side of her face while he had her pinned on the floor. T at 92-93. After that, the defendant ran from the apartment, taking the victim’s car keys with him. T at 94-95. The victim was afraid to call the police and “didn’t know really what to do, ” so she walked to the “train station” near her house. T at 97. “[I]t was close to midnight at [that] point.” T at 97.

Unbeknownst to the victim, her downstairs neighbor, Drew, called the police. T at 156-57, 159. Drew was in his apartment playing video games and “wearing a headset, ” which made it harder to hear everything around him. T at 157-58. Nevertheless, Drew “heard loud banging and an argument” coming from the victim’s apartment. T at 158. Drew heard someone say, “give me back my phone, ” and he heard “[m]uffled screaming” that he knew was the victim because it “was a female voice.” T at 159, 166. Drew also heard someone go down the stairs of the apartment building and open the door. T at 160. He called the police “to make sure everything was all right.” T at 160.

Police contacted Drew, who provided them the victim’s identity. T at 172-73. Once the dispatcher knew the victim’s identity, the dispatcher was able to determine the victim’s phone number using an “inhouse database.” T at 280. The dispatcher called the victim and learned she was at the train station. T at 98, 280. When the police arrived, the victim was “hysterically crying” and “couldn’t keep [her] composure.” T at 99. She “didn’t know where [the defendant] was” and worried that he “was looking for [her] to kill [her].” T at 98-99. One officer assisted the victim in obtaining an emergency restraining order that night, and the victim obtained a restraining order the next day at the Rockingham County Superior Court. T at 101. Notwithstanding that order, the defendant called the victim, which reminder her of when the defendant told her that a restraining order “means nothing” and would not “stop [him] from killing [her].” T at 102.

When Officer Daniel Ryan arrived at the train station, the victim was “hysterically crying and yelling to herself.” T at 173. She “was sobbing uncontrollably” such that “she was not able to focus enough to answer [the officer’s] questions.” T at 174. The victim eventually calmed down enough to explain what happened. T at 175. Officer Ryan also “noticed there [were] injuries on her, ” which he photographed. T at 176. Officer Ryan observed that the victim’s knee was “red” and “slightly bruised” and that “her neck was red.” T at 177-78. Once he returned to the station, Officer Ryan drafted a warrant for the defendant’s arrest and, on August 13, received a call from “Manchester PD” informing him that they had arrested the defendant. T at 183-84.

Officer Byron also responded to the train station. T at 205-207. He described the victim as “visibly upset and crying.” T at 207. Michael Morin, a firefighter paramedic, was dispatched to the train station to assist the police with a patient evaluation. T at 221-23. Morin described the victim as “[c]rying, distraught.” T at 225. Morin observed bruising on the victim’s left wrist and said that she complained of “paint to her cheek, her left cheek, her left forearm, and her knee.” T at 225-26. The victim was then transported to the hospital. T at 229.

At the hospital, Nurse Katie Lima tended to the victim in the emergency room. T at 238, 240. Lima recalled that the victim was “very upset and tearful.” T at 241. The victim told Lima that “she did not feel safe” because “they did not know where [the defendant] was.” T at 245-46. Lima observed that the victim “had an abrasion to her face” and noted that “she complained of left knee pain.” T at 246.

Emergency room Doctor Sean Buturla also treated the victim. T at 253, 257. Doctor Buturla said the victim was “anxious or fearful, ” and “almost panicky” when he first saw her. T at 262. Doctor Buturla noted that the victim had “redness” over her “left check” and “left side” of her face, as well as some “tenderness over the anterior front portion of her neck.” T at 264. Additionally, Doctor Buturla observed that the victim’s left elbow was “tender, ” and that she had bruising on her wrist and her knee. T at 266. Ultimately, Doctor Buturla’s impression was that the victim had “several areas that appeared to have... bruises or had been physically struck.” T at 269. She looked “injured.” T at 269.

The State argued that the July 24 assault was “directly related” to the charges in this case and was relevant to prove the defendant’s motive and intent, as well as the victim’s state of mind. Add. at 32. Further, the State contended that the argument that led up to the charged assaults related to the victim’s desire to get a restraining order against the defendant and, thus, the jury would need to know about her desire for a restraining order to understand how the argument began. Add. at 32.

The State argued that the evidence was “highly probative” of the victim’s credibility and the defendant’s motive and intent, and the State had to “prove that the defendant acted purposely regarding some of the offenses and knowingly regarding other offenses.” Add. at 32. “Thus, the defendant’s state of mind [was] important to prove the charges beyond a reasonable doubt.” Add. at 32. For instance, the defendant was charged with two counts of criminal threatening, and the “prior assault goes directly to the defendant’s intent” to terrorize the victim. Add. at 32. The State also argued that the prejudicial effect of the evidence would be “minimal” in light of the fact that the charged offenses were

“generally more inflammatory than the prior conduct.” Add. at 32. The State asserted that there was clear proof that the defendant engaged in the prior conduct because the victim would testify as much, and the defendant could raise the issue if the victim testified contrary to the offer of proof made by the State. Add. at 33.

The defendant filed corresponding objections. App. at 49-57. The defendant argued that the phone call that the defendant placed to the victim in violation of a restraining order was not relevant for any purpose other than to show propensity, and that the State could not prove such a call even occurred. App. at 56.

As to the July 24 assault, the defendant argued that, “[d]espite” the State’s argument that the evidence was relevant to prove motive, intent, and the victim’s state of mind, the State’s true “goal” was “to have the jury” engage in propensity reasoning. App. at 50. The defendant also argued that the State did not have clear proof that the July 24 assault occurred. App. at 50. Additionally, the defendant argued that the probative value of the evidence was minimal “because of limited nexus and the failure of the allegations to undergo any scrutiny, ” but the risk of unfair prejudice from the jury engaging in propensity reasoning was high. App. at 50-51. The court held a hearing on the motion before trial. MH at 1-28. When asked by the court, the State asserted that the phone call the defendant placed to the victim in violation of the restraining order was relevant to “the nature of the relationship” and the defendant’s “intent to terrorize [the victim].” MH at 19. The court agreed and allowed the call and the fact of the restraining order to be admitted, but excluded the fact that the call was placed from the jail and that there was a bail order prohibiting contact with the victim. MH at 21. The court stated that was the “least prejudicial” way to allow evidence of the call. MH at 21. On the July 24 assault, the State asserted: (1) that the incident was the first of physical abuse between the victim and the defendant; (2) that it was relevant to the defendant’s intent and the victim’s state of mind; and (3) that it explained why the victim wanted a restraining order, which led to the argument that resulted in the charged acts of assault. MH at 24-25. The court took the motion under advisement. MH at 27. In a written order, the trial court admitted the phone call and the fact that the victim had a restraining order, but denied admission of the facts that the defendant placed the call from the jail and that there was a bail order prohibiting contact with the victim. Add. at 35. The court also issued a written order admitting the July 24 assault. The court’s order reads, in pertinent part, as follows: One of the Kidnapping charges requires the State to prove a “purpose to terrorize.” This requires more than proof that the defendant was trying to scare the alleged victim. The State must prove that he was trying to terrorize the victim. The fact that the defendant previously used great violence agains[t] the victim is relevant to the purpose to terrorize because, if the victim’s testimony is accepted by[] the jury, she understood he was capable of carrying through on his express and implied threats. Fu rther the defendant knew that she understood this. The defendant is also charged with misdemeanor criminal threatening. If the jury believes that the alleged threats were made, the jury must determine whether they were made with a purpose to terrorize. Even when said in anger, a threat to ‘murder’ somebody is not always criminal threatening. Expletives used in transitory anger are not criminal threatening.

But when said with the purpose to instill terror or extreme fear that actual violence will follow the same words are actiona ble. The course of conduct between the two spouses is highly relevant to the determination of this essential element of the criminal threatening charges.

Thus, there is clear reason to introduce the prior incident that has nothing to do with the forbidden propensity inference. The victim’s testimony provides the necessary clear proof, although the jury will be free to accept it or reject as the jury sees fit. The risk of unfair prejudice is heavily outweighed by the probative value of the evidence.

Add. at 34.

The trial court sustainably exercised its discretion in admitting the evidence of the July 24 assault and the phone call that violated the restraining order. This evidence was relevant to, and highly probative of, proving the defendant’s intent to terrorize when he threatened and kidnapped the victim on August 5. The evidence allowed the jury to understand the nature and evolution of their relationship, which informed the defendant’s intent in acting the way he did on August 5 and how the victim perceived his words and actions. Accordingly, the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice.

The defendant’s argument that the mens rea elements were not in dispute at trial should be rejected. The defendant never unequivocally expressed to the court that he was not contesting the intent elements of the crimes charged. See State v. Brewster, 147 N.H. 645, 650 (2002); United States v. Garcia, 983 F.2d 1160, 1174 (1st Cir. 1993); United States v. Ferrer-Cruz, 899 F.2d 135, 139 (1st Cir. 1990); United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980). Accordingly, at the time the court ruled on the admissibility of the evidence, intent was an issue in dispute. Even if the trial court erred in admitting the evidence, the error was harmless. The State’s case was strong even without supplying context for the jury to understand the nature of the relationship. The victim gave detailed testimony that was corroborated by a disinterested third party and various emergency personnel. Additionally, the evidence was not presented as a focal point of the State’s case or in an inflammatory manner such that it would have especially stood out to the jury. Accordingly, the State proved its case beyond a reasonable doubt even absent the evidence in dispute on appeal.

Under Rule 404(b), evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show that the person acted in conformity therewith, but it may be admitted for other purposes, such as to prove motive, intent, or knowledge. See id. Evidence of “bad acts” is admissible when: (1) “it is relevant for a purpose other than proving the defendant’s character or disposition; ” (2) “there is clear proof that the defendant committed the act; ” and (3) “the probative value of the evidence is not substantially outweighed by its prejudice to the defendant.” Id. As the proponent of the evidence, the State bears the burden of demonstrating the admissibility of the evidence. See id.

Richardson, 138 N.H. 162, 163-67 (1993). “To be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependent on the defendant’s character or propensity, that the defendant had the same intent on the occasions of the charged and uncharged acts.” Brewster, 147 N.H. at 648-49.

On appeal, the defendant argues that the trial court erred in its ruling because the “intent element... was not seriously in dispute.” DB at 21. The defendant acknowledges that he “did not stipulate to the mens rea element of the offense, ” but contends that his “defense was not that he did not intend to terrorize [the victim].” Id. Rather, his defense was that the victim “was lying” when she alleged that the defendant “threatened and kidnapped her.” Id. Therefore, the defendant argues, his intent was not an issue seriously in dispute. See id. The defendant’s argument should be rejected.

“When intent is not conceded by the defense, and it is an element of the crime to be proven by the State, it is sufficiently at issue to require evidence at trial.” Brewster, 147 N.H. at 650. A “defendant can remove ‘knowledge/intent’ issues from a case... by telling the court that he will not dispute those issues, provided that he expresses himself to the court with sufficient clarity to justify the court in (a) disallowing any ‘subsequent cross-examination or jury argument that seeks to raise’ those issues, and (b) ‘charging the jury that if they find all other elements beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed.” United States v. Ferrer-Cruz, 899 F.2d 135, 139 (1st Cir. 1990) (quoting United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980)). A “formal stipulation [is] not required” for a defendant to remove the element of intent from dispute. United States v. Garcia, 983 F.2d 1160, 1174 (1st Cir. 1993) However, the defendant’s “offer” to remove the issue from the case “must be unequivocal.” Id. “To prevent the admission of bad acts evidence, a defendant’s offer to concede knowledge and/or intent must do two things.” Id. “First, the offer must express a clear and unequivocal intention to remove the issue such that, in effect if not in form, it constitutes an offer to stipulate.” Id. “Second, notwithstanding the sincerity of the defendant’s offer, the concession must cover the necessary substantive ground to remove the issues from the case.” Id. Thus, to remove the mens rea elements from dispute, the defendant had to unequivocally express an intent to concede those issues such that the trial court would have been justified in disallowing any argument or questioning on those issues and instructing the jury to resolve the mens rea elements against the defendant if they found all other elements beyond a reasonable doubt. However, the defendant never expressed anything close to an unequivocal intent to concede the mens rea elements of the crimes charged in this case. Indeed, the defendant allowed the jury to be instructed on intent as if it were in dispute. T at 367, 375-76. The defendant’s argument on appeal that the mens rea elements were not seriously in dispute because his defense was that the victim was lying is “quite different from saying that the judge [could have] instruct[ed] the jury that... the defense would not dispute the ‘knowledge’ or ‘intent’ needed to support the conviction.” Garcia, 983 F.2d at 1175.

Further, because the trial court ruled on the admissibility of the evidence before trial, this Court must limit its review to the information the trial court had at that time. Nightingale, 160 N.H. at 573. Nothing in the defendant’s pleading and nothing said during the hearing gave the court any reason to believe that the mens rea elements of the crimes charged would not be in dispute. See App. at 49-57; MH at 1-28. At the time the State moved to admit this evidence, neither the State nor the court knew “precisely what type of defense [the defendant] would make; indeed, [the State and court] did not know whether [the defendant] would choose to present any case at all.” Ferrer-Cruz, 899 F.2d at 138-39. After the court made its ruling, the defendant did not move for reconsideration or otherwise inform the court that the mens rea elements were not in dispute because he would stipulate to them.

Accordingly, the defendant’s intent was seriously in dispute. The trial court thoughtfully explained why the July 24 assault was relevant to the defendant’s intent. Add. at 34. As the court explained, the fact that the defendant had previously used violence against the victim was relevant to proving a purpose to terrorize because that fact made it more likely that the defendant knew his threats would terrify the victim, and that his threats in fact did terrify the victim, because the victim knew he was capable of following through on them. See Add. at 34. The defendant has failed to demonstrate how that ruling was “clearly unreasonable or untenable.” Brewster, 147 N.H. at 648.

Therefore, the defendant’s argument that the trial court erred in finding that the evidence of the July 24 assault was relevant to prove the defendant’s intent should be rejected.

The defendant also argues that the court erred in admitting evidence of the July 24 assault because the probative value of the evidence was substantially outweighed by the risk of unfair prejudice. DB at 22-23. However, the defendant’s contention that the evidence “offer[ed] little, if any, probative value” rests on the faulty premise that the evidence did not go to an “issue actually in dispute.” DB at 22.

As previously discussed, the mens rea elements were in dispute and the July 24 assault was relevant to them. As this Court is aware, intent is difficult to prove and “often must be proved by circumstantial evidence.” State v. Vincelette, 172 N.H. 350, 354 (2019). The July 24 assault went directly to proving the defendant’s intent to terrorize the victim when he kidnapped and threatened her. Accordingly, the trial court correctly recognized that the “risk of unfair prejudice is heavily outweighed by the probative value of the evidence.” Add. at 34. This Court “accord[s] considerable deference to the trial court’s determination in balancing prejudice and probative worth of evidence under Rule 404(b).” Brewster, 147 N.H. at 650.

The defendant argues that the risk of unfair prejudice was great because the July 24 assault was similar to the charged conduct and was “likely to appeal to a jury’s sense of horror and outrage.” DB at 22. However, the charged acts are significantly more violent and horrifying than the July 24 assault. Additionally, the fact that the July 24 assault and the charged conduct are similar does not compel the conclusion that the risk of unfair prejudice substantially outweighs the probative value. Indeed, this Court has admitted prior bad acts similar to the charged conduct in other cases. See Brewster, 147 N.H. at 647, 649-51; Richardson, 138 N.H. at 163-67.

In summary, the July 24 assault was relevant to prove the defendant’s intent on August 5, which was an element that was in dispute at the time the trial court ruled on the admissibility of the evidence. Further, the evidence was highly probative of the defendant’s intent and was one of the few pieces of evidence available to prove that element. Thus, it was reasonable for the trial court to conclude that, on balance, the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. Accordingly, the trial court sustainably exercised its discretion in admitting evidence of the July 24 assault.

was her relationship with him. She turned in with things completely, wanted nothing to do.

He still tried to contact her. Now he’s here. And I think that that’s relevant to the whole story... MH at 21.

The defendant argues that the court improperly admitted the evidence to support the victim’s credibility before it was impeached at trial. See DB at 23-26. However, it is the State’s position that, read in context and with the understanding that the court is giving unprepared remarks in real time, the court concluded that the evidence was relevant to a non- propensity purpose because it tended to make the victim’s characterization of her relationship with the defendant more likely. See N.H. R. Ev. 401, 404(b). Further, the court weighed the probative value of the evidence against the risk of unfair prejudice and determined that the evidence could be properly admitted so long as it was not revealed that the defendant placed the call from the jail and that he was under a bail order not to contact the victim. MH at 21-22.

In short, the court carefully considered both sides of the balance and reached a measured conclusion that allowed in relevant evidence while keeping out the most prejudicial details of the evidence. Accordingly, the court’s ruling was reasonable and, consequently, a sustainable exercise of discretion, and should be affirmed.

Even if the trial court erred in admitting the July 24 assault or the phone call and restraining order, the court’s order should still be affirmed because any such error was harmless beyond a reasonable doubt.

To establish harmless error, the State must prove beyond a reasonable doubt that the error did not affect the verdict. State v. Boudreau, 176 N.H. 1, 11 (2023). In conducting a harmless error analysis, this Court evaluates the totality of the circumstances at trial. Id. The factors that this Court considers include, but are not limited to: (1) the strength of the State’s case; (2) whether the admitted or excluded evidence is cumulative or inconsequential in relation to the strength of the State’s case; (3) the frequency of the error; (4) the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence; (5) the nature of the defense; (6) the circumstances in which the evidence was introduced at trial; (7) whether the court took any curative steps; (8) whether the evidence is of an inflammatory nature; and (9) whether the other evidence of the defendant’s guilt is of an overwhelming nature. Id. at 12. No one factor is dispositive, not all factors may be implicated in a given case, and this Court may consider factors that are not listed above. Id.

The evidence in this case was strong. The victim testified in detail to the assault. The victim’s downstairs neighbor testified that he heard a loud bang and people arguing upstairs, and it concerned him enough to call the police. Indeed, in closing, defense counsel “agree[d] that there was an argument” and that “[i]t was about finances.” T at 331. The police officers and EMT who tended to the victim at the train station all described her as hysterically crying and upset. Various emergency personnel who tended to the victim observed redness and/or bruising on her neck, face, wrist, and knee. Taken together, the evidence at trial strongly supported the victim’s account of the events. Accordingly, and especially if the defendant is correct in arguing that the mens rea elements were not in dispute, the evidence of the defendant’s guilt was strong.

Additionally, the evidence was not presented in an inflammatory way, and the testimony about the July 24 assault was decidedly less inflammatory than the testimony about the charged conduct. As the State’s closing demonstrates, the July 24 conduct was presented as part of the story of an increasingly tumultuous relationship that reached a breaking point on August 5. See T at 338-340. It was not, as the defendant’s argument suggests, presented in a way that would appeal to a juror’s sense of outrage or an instinct to punish.

Similarly, the fact that the defendant called the victim in violation of a restraining order is not inflammatory, especially in comparison to the charged conduct. Further, the court took steps to drastically reduce the prejudicial impact of that evidence by excluding the facts that the call was placed from the jail and violated a bail order in addition to the victim’s restraining order. The victim’s testimony about the phone call and the restraining order was short and matter of fact, and it is unlikely that it had any meaningful impact on the jury’s verdict. See T at 101-02. Finally, the jury found the defendant not guilty of one count of simple assault, which alleged that the defendant threw the victim on the bed. T at 393. This demonstrates that the jury, as instructed, carefully considered the evidence with respect to each charge and reached a conclusion based on the evidence, not inflamed passions. The idea that the jury’s guilty verdicts were motivated by a desire to punish the defendant for the improperly admitted evidence is irrational in light of the not guilty verdict.

In summary, the evidence against the defendant in this case was remarkably strong, especially if the defendant is correct that the mens rea elements were not in dispute at trial. The erroneously admitted evidence was not particularly inflammatory and was decidedly less so than the charged conduct. Nor was the evidence presented in a way that was designed to evoke an emotional response. And the evidence of the phone call in violation of the restraining order, which occurred after the charged conduct, was inconsequential in relation to the strength of the State’s case. In short, it was the victim’s testimony and the corroborating testimony of disinterested party and emergency personnel that proved the State’s case beyond a reasonable doubt, not the evidence of the July 24 assault or the phone call in violation of a restraining order. Accordingly, even if the trial court erred in admitting the July 24 assault and the phone call, the absence of that evidence would not have impacted the jury’s verdict. Therefore, the court’s order should be affirmed.

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

The State does not request oral argument. If oral argument is scheduled in this matter, 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 6, 300 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.

October 1, 2024 /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 Pamela Phelan, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

October 1, 2024 /s/ Sam M. Gonyea Sam M. Gonyea