State of New Hampshire v. Destin Stewart

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2013-0315, State of New Hampshire v. Destin
Stewart, the court on February 18, 2015, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Destin Stewart, appeals his convictions by a jury on one count of
second degree assault, RSA 631:2, I(f) (Supp. 2014), one count of criminal
restraint, RSA 633:2, I (2007), three counts of criminal threatening, RSA 631:4,
I(a), (d) (2007), three counts of simple assault, RSA 631:2-a, I(a) (2007), and
one count of stalking, RSA 633:3-a, I(a) (2007). On appeal, the defendant
argues that the Superior Court (Delker, J.) erred by: (1) prohibiting him from
cross-examining the complainant with her statement that had not been
previously disclosed to the State; and (2) granting the State’s motion in limine
to admit evidence of his uncharged acts under New Hampshire Rule of
Evidence 404(b). We remand.

The record establishes the following facts. The defendant and the
complainant were romantically involved from April to September 2011, and the
charges at issue stem from multiple incidents that occurred during that time
frame. Prior to trial, the State filed a motion in limine to admit numerous
uncharged acts that the defendant allegedly committed during his relationship
with the complainant. At a pretrial hearing, the defendant argued that, before
making its determination under Rule 404(b), the court must hear the
complainant’s live testimony to determine whether the uncharged acts
occurred. The State maintained that the trial court could proceed based on the
State’s offer of proof. The trial court agreed with the State and decided the
motion without requiring live testimony, ruling that the State had met the
requirements of Rule 404(b) for admission of the evidence, and granting the
State’s motion.

At trial, during his cross-examination of the complainant, the defendant
sought to impeach the complainant with a statement that she had made using
the social media website Twitter, under the username “Before Bad B[****],”
which stated: “Because I’m a nasty b[****]. I leave a n[*****] dead broke.” The
State objected, arguing that it had not been given a copy of the statement
during discovery. The trial court, citing unfair surprise, ruled that the
defendant could not use the statement.

Of the thirteen charges submitted to the jury, the defendant was
convicted on nine charges, and acquitted on four. This appeal followed.
 On appeal, the defendant first argues that the trial court erred when it
precluded him from impeaching the complainant using her prior statement.
The defendant maintains that he was not obligated to disclose the
complainant’s prior statement in the absence of a court order. The State
argues that the trial court properly excluded the statement, and, even if it did
err, the error was harmless. Alternatively, the State argues that allowing cross-
examination of the complainant using her statement would have been
unnecessarily cumulative under New Hampshire Rule of Evidence 403. Next,
the defendant argues that the trial court erred when it admitted evidence of
other alleged acts by the defendant under Rule 404(b), and further challenges
the sufficiency of the court’s limiting instructions regarding the use of that
evidence. The State counters that the trial court properly admitted the Rule
404(b) evidence and that the limiting instructions were sufficient.

Superior Court Rule 98/Disclosure of Statements

We will not reverse the trial court’s decision with respect to alleged
discovery violations absent an unsustainable exercise of discretion. See State
v. Gamester, 149 N.H. 475, 478 (2003). “To show that the trial court’s exercise
of discretion is unsustainable, the defendant must show that the decision was
clearly unreasonable to the prejudice of his case.” Id.

Superior Court Rule 98 governs discovery obligations in criminal cases.
Id.; Super. Ct. R. 98 (2007) (amended 2014). Specifically, Rule 98(C) governs
the parties’ responsibilities relating to the exchange of information concerning
trial witnesses. As relevant to a criminal defendant, Rule 98(C)(2) states that
prior to trial, “the defendant shall provide the state with a list of the names of
the witnesses the defendant anticipates calling at the trial . . . .” Super. Ct. R.
98(C)(2). In addition, “[c]ontemporaneously with the furnishing of such witness
list, the defendant shall also provide the state with all statements of witnesses
the defendant anticipates calling at the trial . . . .” Id. (emphasis added).

Here, the complainant testified in the State’s case-in-chief and was not
called as a defense witness. Further, the defendant sought to use the
statement solely for purposes of impeachment and was not offering it as
substantive evidence. Notably, on appeal, the State does not cite any section of
Rule 98 — or any other rule — that required disclosure of the statement under
these circumstances.

Rather, the State argues that the trial court’s ruling is consistent with
the modern trend regarding liberal discovery, which disfavors trial by surprise.
To be sure, liberal discovery rules recognize that “the ends of justice are best
served by a system which gives both parties the maximum amount of
information available, thus reducing the possibility of surprise at trial.” State
v. Nadeau, 126 N.H. 120, 124 (1985) (quotation omitted). To accomplish that
goal, in addition to the mandatory disclosure requirements, Rule 98 specifically

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provides that “this rule does not preclude any party from filing motions to
obtain additional discovery.” Super. Ct. R. 98(E); see, e.g., State v. Chagnon, 139 N.H. 671, 672 (1995) (analyzing a trial court’s order, under a prior rule,
requiring parties to disclose any statements of witnesses to be called at trial).
However, the State does not contend that it filed a motion for such discovery.
Thus, we discern no basis for concluding that the defendant was obligated to
disclose the statement to the State prior to trial. Accordingly, absent a
discovery violation, the trial court erred by preventing the defendant, as a
discovery sanction, from cross-examining the complainant using her
statement.

We agree with the defendant that, on the record before us, we cannot
determine whether the defendant was prejudiced by the trial court’s error. At
trial, the defendant did not have the opportunity to fully explain the particular
purpose and extent of the proposed cross-examination. Therefore, we
conclude, as the defendant suggests, that the remedy under these
circumstances is to remand the issue to the trial court for a hearing so that the
defendant may fully explain his proposed cross-examination and impeachment
of the complainant. The trial court then can determine, in the first instance,
whether the absence of that cross-examination prejudiced the defendant’s case.

To the extent the State argues that, if we conclude that the trial court
erred, the error was harmless, the argument is not adequately developed in the
State’s brief, and we decline to address it. See State v. Munroe, 161 N.H. 618,
629 (2011).

Finally, the State contends, for the first time on appeal, that because the
admission of the impeachment evidence would have been needlessly
cumulative, we should sustain the trial court’s exclusion of the statement. See
N.H. R. Ev. 403 (“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the . . . needless presentation of
cumulative evidence.”). “We will not reverse a trial court decision . . . when it
reaches the correct result and valid alternative grounds exist to reach that
result.” State v. Berry, 148 N.H. 88, 91 (2002). However, because the Rule
403 argument was not made to the trial court, and given the fact that we are
remanding for a hearing on the prejudice issue, we remand this issue for the
trial court to make a determination in the first instance.

New Hampshire Rule of Evidence 404(b)

The defendant next asserts that the trial court violated New Hampshire
Rule of Evidence Rule 404(b) when it admitted evidence of other uncharged
acts that the defendant allegedly committed against the complainant. “The
decision to admit ‘bad acts’ evidence lies within the trial court’s sound
discretion and will be overturned only if the defendant can show that the
decision was clearly untenable or unreasonable to the prejudice of his case.”

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State v. Davidson, 163 N.H. 462, 467 (2012) (quotation omitted). For evidence
to be admissible under Rule 404(b), it “must be relevant for a purpose other
than proving the defendant’s character or disposition; there must be clear proof
that the defendant committed the act; and the probative value of the evidence
must not be substantially outweighed by its prejudice to the defendant.” Id. at
469 (quotation omitted). The defendant appeals the trial court’s determination
regarding all three prongs of Rule 404(b) and also argues that the trial court
failed to adequately instruct the jury as to which acts were charged and which
were not.

The defendant first challenges the trial court’s ruling that the uncharged
acts were relevant for purposes other than proving the defendant’s character.
The trial court instructed the jury that the uncharged acts could be considered
for their relevance to the state of mind of both the complainant and the
defendant. The first prong of Rule 404(b) requires that, for the uncharged acts
to be admissible, they “must be relevant for a purpose other than proving the
defendant’s character or disposition.” Id. (quotation omitted). “To meet the
relevancy requirement, 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.” Id. (quotation omitted).

We have held that evidence of other threatening behavior may be relevant
to the state of mind of both the defendant and victim at the time of the charged
offenses. See, e.g., State v. Richardson, 138 N.H. 162, 166 (1993); State v.
Brewster, 147 N.H. 645, 649-50 (2002). Other threatening behavior is
“relevant to and probative of [the defendant’s] intent towards [the complainant]
and [the complainant’s] own state of mind at the time of the charged offenses.”
Richardson, 138 N.H. at 166. “Such evidence [makes] it more probable than
not that the defendant on the later occasion acted with an intent to terrorize
[the complainant] and that those actions placed her in fear for her physical
safety.” Id.

Here, of the fourteen charges brought by the State, five involved criminal
threatening, alleging that the defendant threatened the complainant in June,
August, and September 2011. Each of these charges alleged that the
defendant acted with the purpose either to terrorize the complainant or to place
the complainant in fear of imminent bodily injury. The uncharged acts are
probative of whether the defendant purposefully acted with an intent “to
terrorize” or “to place [the complainant] in fear of imminent bodily injury or
physical contact.” RSA 631:4, I(a), (d). Additionally, the uncharged acts are
probative of whether the charged conduct terrorized the complainant or placed
the complainant in fear for her physical safety. Id. Therefore, we are not
persuaded that the trial court erred in concluding that the uncharged acts were
relevant to the state of mind of both the defendant and the complainant.

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 Next, the defendant argues that the trial court erred in admitting the
evidence because the probative value of the uncharged acts was minimal
compared to the risk of unfair prejudice. Rule 404(b) requires that “the
probative value of the evidence must not be substantially outweighed by its
prejudice to the defendant.” Davidson, 163 N.H. at 469. “We accord
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
(quotation omitted). We have stated that “[t]he risk of unfair prejudice . . .
increases as the degree of similarity between the prior act and the charged
crime increases.” State v. Belonga, 163 N.H. 343, 360 (2012). In Belonga, we
held that a violent act similar to the charged conduct, which occurred several
months before the charged conduct, had “negligible, if any, probative value to
[the defendant’s] state of mind” on the day of the charged conduct. Id. at 360-
61.

Here, the trial court found that the uncharged acts were “highly
probative” in explaining the complainant’s conduct. Although the uncharged
acts were similar in nature to the charged conduct, all of the acts occurred
during the course of the complainant’s five-month relationship with the
defendant; in fact, many of the uncharged acts allegedly occurred during the
same time frame as the charged conduct. The instant case is not akin to
Belonga, which involved a separate isolated incident of abuse. See id.
Accordingly, we are not persuaded that the trial court erred in finding that the
probative value of the uncharged acts was not substantially outweighed by the
danger of unfair prejudice.

The defendant also argues that the trial court erred in finding clear proof
that the other acts occurred. Specifically, the defendant argues that the trial
court erred when it did not make a finding that the defendant committed the
uncharged acts, and when it made a determination of clear proof based solely
upon the State’s offer of proof. The State counters that the trial court implicitly
found that the defendant had committed the uncharged acts and, citing State
v. Haley, 141 N.H. 541 (1997), that it was not error for the trial court to
proceed based upon the State’s offer of proof.

We need not decide whether the trial court erred in making the clear
proof determination because, even if we were to assume such error, the
defendant has failed to show that any such error was “to the prejudice of his
case.” Davidson, 163 N.H. at 467 (quotation omitted). At trial, the
complainant testified that the defendant committed the uncharged acts during
the course of their relationship. Moreover, during the trial, the defendant had
the opportunity to cross-examine the complainant regarding the uncharged
acts. Further, after the complainant testified, the defendant did not move for a
mistrial or ask the trial court to reconsider its clear proof determination made
prior to trial. See Haley, 141 N.H. at 545 (“We note that at trial, the defendant
had the opportunity to cross-examine the victim. If the evidence had cast

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doubt on the validity of the court’s pretrial ruling, the defendant could have
moved for reconsideration or for a mistrial.”). Importantly, the defendant has
not argued on appeal that the complainant’s testimony at trial was insufficient
to demonstrate clear proof. Accordingly, we conclude that, even if the trial
court erred in its clear proof determination, the defendant has not
demonstrated that he was prejudiced by any such error.

Finally, the defendant argues that the trial court failed to adequately
instruct the jury as to which specific acts were charged conduct and which
were not. “Whether a particular jury instruction is necessary and the scope
and wording of jury instructions are both within the sound discretion of the
trial court, and we review the trial court’s decisions on these matters for an
unsustainable exercise of discretion.” State v. Tyler, 158 N.H. 776, 778 (2009).
We will reverse the trial court “only if the instructions did not fairly cover the
issues of law in the case.” State v. Dupont, 165 N.H. 698, 703 (2013)
(quotation omitted). In this case, the trial court read each charge to the jury at
the beginning of the trial, and it gave a limiting instruction regarding the use of
Rule 404(b) evidence prior to the State’s introduction of evidence of the
uncharged acts. Additionally, during its final instructions, the trial court gave
the jury another limiting instruction regarding the use of the uncharged acts.
Further, the trial court told the jurors that they would have copies of all the
charging documents during deliberation so that they could “keep track” of each
charge. Therefore, we are not persuaded that the jury instructions failed to
adequately inform the jury as to which conduct was charged and which was
uncharged.

Remanded.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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