State of New Hampshire v. William Roy

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0364, State of New Hampshire v. William
Roy, the court on September 17, 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. Following
a jury trial in Superior Court (MacLeod, J.), the defendant, William Roy, was
convicted on two counts of forgery arising out of his fraudulent issuance of
checks on his ex-wife’s account. See RSA 638:1, I, III (2007). On appeal, the
defendant argues that the trial court erred by: (1) refusing to admit into
evidence the terms of the divorce decree between the defendant and his ex-wife,
Mary Anne Holland; and (2) failing to declare a mistrial after Holland testified
that the defendant was “on the lam.” He also argues that the trial court
violated his right to travel under the New Hampshire and United States
Constitutions when it required him to reside in New Hampshire as a condition
of his suspended sentence. We affirm.

The record establishes the following facts. The defendant and Holland
divorced in 2011. In 2013, a neighbor reported to the police that she had
found a man — later identified as the defendant — in Holland’s apartment.
Holland had not given the defendant permission to be in her apartment and did
not know that he had been there. The police obtained a search warrant for the
defendant’s bank account and discovered that the defendant had deposited two
checks in his account that appeared to have been signed by Holland. Holland
denied that she had written the checks or authorized the defendant to write
them on her behalf. She later found that there were checks missing from the
checkbook she kept in her apartment.

A grand jury indicted the defendant on one count of burglary and two
counts of forgery. RSA 635:1 (2007) (amended 2014); RSA 638:1, I, III.
Following a jury trial, the defendant was acquitted of the burglary charge and
convicted of the forgery charges. The trial court sentenced him on one charge
to two-and-one-half to five years stand committed, and on the other, to three-
and-one-half to seven years, suspended for ten years from the date of his
release from incarceration on the first charge. This appeal followed.

I. Exclusion of Evidence of the Terms of the Divorce Decree

The defendant first argues that the trial court erred by excluding
evidence of his decree of divorce from Holland. Before trial, the State filed a
motion in limine to exclude “reference [to] or evidence [of the] divorce decree
. . . requiring [Holland] to pay funds to the Defendant.” The trial court granted
the State’s motion, in part, excluding the decree itself and reference to the
divorce proceeding, but allowing the defendant to present evidence that he and
Holland were divorced, and that the defendant believed that Holland owed him
money.

The trial court explained that, under New Hampshire Rule of Evidence
403, the probative value of the specific terms of the divorce decree was
substantially outweighed by the danger of confusing the issues and misleading
the jury. The trial court reasoned that, because the divorce decree
“represent[ed] a negotiated property division between the defendant and
[Holland], which [had] never been enforced or further litigated” after the decree
was issued in 2011, it would only confuse the jury as to whether Holland owed
the defendant money at the time that he forged the checks in 2013. The trial
court also observed that admitting evidence of the terms of the divorce could
have led to a trial within a trial as to the equities of the divorce.

On appeal, the defendant argues that “evidence of the [divorce] decree
and of the existence of an outstanding balance” had significant probative value
because it bolstered the credibility of his claim that Holland owed him money
and authorized him to write the checks. The State counters that the terms of
the divorce decree — issued in 2011 — had no tendency to show that Holland
owed the defendant money at the time that he forged the checks in 2013. The
State also contends that admitting evidence of the terms of the decree would
have created a trial within a trial as to the equities of the divorce, thus
misleading and confusing the jury.

We accord considerable deference to a trial court’s evidentiary rulings
and will intervene only when they demonstrate an unsustainable exercise of
discretion. State v. Pelletier, 149 N.H. 243, 249 (2003). In determining
whether a ruling is a proper exercise of discretion, we will consider whether the
record establishes an objective basis sufficient to sustain the discretionary
decision made. State v. Costella, 166 N.H. 705, 714 (2014). The defendant
bears the burden of demonstrating that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. Id.

Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” N.H. R.
Ev. 401. Rule 403 provides, however, that “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.” N.H. R. Ev.
403.

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 We cannot say that the trial court’s decision to exclude evidence of the
terms of the divorce decree was clearly untenable or unreasonable to the
prejudice of the defendant’s case. We agree with the trial court that the terms
of the divorce decree cannot show whether Holland paid all sums that she was
ordered to pay, or whether she still owed the defendant money at the time that
he forged her checks. The decree provided that Holland would pay the
defendant $115,000, of which $64,000 had been paid prior to the issuance of
the decree, with the remaining $51,000 payable upon the issuance of the final
decree of divorce in June 2011. Thus, although the terms of the decree
establish the amount Holland was obligated to pay the defendant, they cannot
show whether Holland actually paid the full amount she owed.

Further, evidence of the specific terms of the divorce decree was not
necessary to prove that the defendant believed that Holland owed him money at
the time that he forged her checks. The trial court allowed the defendant to
testify that he believed that Holland owed him money and had authorized him
to write checks on her account. Given the defendant’s ability to provide the
jury with this information, we agree with the trial court that admitting evidence
of the original circumstances giving rise to the debt may have resulted in a trial
within a trial, which could have confused the jury. See State v. Weeks, 140
N.H. 463, 467 (1995). Accordingly, we conclude that the trial court sustainably
exercised its discretion when it granted the State’s motion in limine to exclude
evidence of the divorce decree.

The defendant next argues that, even if evidence of the divorce decree
was properly excluded by the trial court’s ruling before trial, Holland’s
testimony “opened the door” and made admissible evidence of Holland’s debt to
him pursuant to the divorce decree. At trial, Holland testified that she had
paid the defendant money “for the divorce” and had not agreed to pay him
anything more. The defendant objected, arguing that Holland’s testimony
created the misleading impression that she had paid the defendant everything
that she owed him under the divorce decree, and did not owe him money at the
time that he forged the checks. The defendant requested that he be allowed to
impeach Holland’s testimony by cross-examining her about the specifics of the
divorce decree. The trial court denied his request. Nonetheless, the trial court
allowed the defendant to cross-examine Holland as to whether she had “pa[id]
him everything under the divorce decree that [she was] ordered to pay.” The
defendant chose not to do so.

The defendant argues that the trial court erred by not allowing him to
introduce evidence of the divorce decree to correct the misleading impression
created by Holland’s testimony that she had paid everything she owed under
the divorce decree. The State counters that Holland’s testimony did not
mislead the jury and, therefore, it did not open the door. The State asserts
that, even if a misimpression were created, the terms of the divorce decree
would not correct it because they do not provide evidence of whether Holland

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owed the defendant money at the time that he forged her checks. We agree
with the State.

The “opening-the-door” doctrine allows a party to use previously
suppressed or otherwise inadmissible evidence to counter a misleading
advantage created by the opponent. State v. Carlson, 146 N.H. 52, 56 (2001).
“The rule thus prevents a party from successfully excluding evidence favorable
to his opponent and then selectively introducing this evidence for his own
advantage, without allowing the opponent to place the evidence in proper
context.” State v. Morrill, 154 N.H. 547, 550 (2006). However, for the doctrine
to apply, “[t]he initial evidence must have reasonably created a misimpression
or misled the fact-finder in some way.” Id. “The trial court is in the best
position to gauge the prejudicial impact of particular testimony.” Carlson, 146
N.H. at 56. Therefore, we will not upset a trial court’s ruling as to whether the
defendant opened the door to otherwise inadmissible evidence absent an
unsustainable exercise of discretion. Id.

Here, even assuming that Holland’s testimony that she “paid [the
defendant] money for the divorce” and did not “agree to pay [the defendant] any
more money” created a misleading impression, that impression would not have
been directly countered by the admission of the previously excluded terms of
the divorce decree. See Morrill, 154 N.H. at 549-50. As the trial court
observed, the terms of the divorce decree would not prove whether Holland had
paid everything under the terms of the decree or whether she owed the
defendant money at the time that he forged her checks. Rather, they would
show only what was owed in 2011 when the final decree was issued.
Accordingly, we conclude that the trial court sustainably exercised its
discretion when it ruled that Holland’s testimony did not warrant the
admission of the previously excluded divorce decree.

The defendant also argues that the exclusion of evidence of the terms of
the divorce decree implicates his right to present all proofs favorable under the
New Hampshire and United States Constitutions. See N.H. CONST. pt. I, art.
15; U.S. CONST. amend. VI. However, that argument is not sufficiently
developed for our review; accordingly, we decline to address it. See, State v.
Ayer, 157 N.H. 500, 513 (2007).

II. The Defendant’s Request for a Mistrial

The defendant next argues that the trial court erred when it denied his
request for a mistrial. During trial, Holland testified that the defendant was
“on the lam.” The defendant objected, arguing that Holland’s testimony was
highly prejudicial because it implied that the defendant was running from the
law and revealed his criminal history. He requested a mistrial or, in the
alternative, a curative instruction. The trial court denied the request for a
mistrial without prejudice, and instructed the jury as follows: “[B]oth the

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question and the answer are stricken from the record. They are not evidence in
this case and you are not to consider the answer or the question in any way in
your deliberations. It is not evidence. You are to disregard it completely.”

On appeal, the defendant argues that Holland’s statement was highly
prejudicial because it conveyed that he had a criminal history. The State
counters that the statement did not unambiguously convey the defendant’s
prior criminal conduct to the jury, and, thus, was not so prejudicial as to
warrant a mistrial. The State also argues that any prejudice that might have
been created by the testimony was eliminated by the trial court’s instruction.
We agree with the State.

We will not overturn the trial court’s decision as to whether a mistrial is
necessary absent an unsustainable exercise of discretion. State v. Russo, 164
N.H. 585, 589 (2013). It is well-settled that an incurable prejudice may result
when the testimony of a witness conveys to a jury the fact of a defendant’s
prior criminal offense. Id. Accordingly, we have held that a mistrial is
warranted when a defendant’s prior criminal conduct has been unambiguously
conveyed to the jury. Id. at 589-90.

Here, Holland’s testimony did not refer to a specific crime, and no other
references to the defendant’s criminal history were made. See id. at 590
(finding single reference to defendant’s parole status did not unambiguously
convey defendant’s prior criminal conduct because it did not identify a specific
crime). Holland’s testimony that the defendant was “on the lam” did not,
therefore, unambiguously convey to the jury the defendant’s prior criminal
conduct.

Moreover, to the extent that Holland’s testimony did convey to the jury
that the defendant has a criminal history, any prejudice caused was cured by
the trial court’s instruction to the jury that the testimony was to be completely
disregarded. See id. at 591. Juries are presumed to follow instructions. Id.
Accordingly, we conclude that the trial court’s denial of the defendant’s request
for a mistrial was a sustainable exercise of discretion.

III. The Condition on the Defendant’s Suspended Sentence

Finally, the defendant argues that the trial court violated his
constitutional right to travel when it imposed a condition on his suspended
sentence requiring him to reside in New Hampshire. At the sentencing hearing,
the State requested that the trial court suspend the sentence on the
defendant’s second forgery conviction upon compliance with a number of
conditions, including that the defendant reside in New Hampshire for the entire
period of time during which the suspended sentence could be imposed. The
defendant objected, arguing that such a condition would violate his
“constitutional right to travel.” The trial court disagreed, and suspended the

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sentence on the defendant’s second conviction subject to the condition that he
reside in New Hampshire.

On appeal, the defendant argues that the condition on his suspended
sentence requiring him to reside in New Hampshire is unreasonable and
overbroad, and, therefore, violates his right to travel under the New Hampshire
Constitution and the United States Constitution. See N.H. CONST. pt. I, art. 1,
2; U.S. CONST. amend. XIV, § 1. The State counters that the defendant did
not properly preserve his state constitutional argument. The State also argues
that the condition is valid under the Federal Constitution because it is
reasonably related to the goals of sentencing.

“To preserve a state constitutional claim, the defendant must: (1) raise it
in the trial court; and (2) specifically invoke a provision of the State
Constitution in his brief.” State v. Lamarche, 157 N.H. 337, 340 (2008).
Although, during the sentencing hearing, the defendant asserted that the
condition would “interfere with certain Constitutional rights” and would violate
his “constitutional right to travel,” he never specifically asserted a state
constitutional claim or argued that the State Constitution is more protective as
to this issue than is the Federal Constitution. Thus, we limit our analysis to
the defendant’s federal constitutional claim. See id. A constitutional claim
presents an issue of law, which we review de novo. See State v. Arsenault, 153
N.H. 413, 415 (2006).

“The right of every citizen to live where he chooses and to travel freely not
only within the state but across its borders is a fundamental right which is
guaranteed both by our own and the Federal Constitutions.” Donnelly v.
Manchester, 111 N.H. 50, 51 (1971). However, “not every restriction of a right
classified as fundamental incurs ‘strict’ scrutiny.” Bleiler v. Chief, Dover Police
Dep’t, 155 N.H. 693, 697 (2007) (brackets and quotation omitted). Rather, in
cases involving the fundamental right to travel, “[t]he United States Supreme
Court . . . has engaged in an ad hoc balancing of the individual’s liberty
interest against the demands of an organized society.” Id. at 698 (quotations
omitted).

Here, the defendant’s right to travel was restricted by the condition of his
suspended sentence. We review a federal constitutional challenge to a
condition of a sentence that limits a fundamental right — including the right to
travel — to determine whether it is “reasonably related to the goals of
deterrence, protection of the public, or rehabilitation of the offender, taking into
account the offender’s history and personal characteristics, and involve[s] no
greater deprivation of liberty than is reasonably necessary for the purposes of
supervised release.” United States v. Watson, 582 F.3d 974, 982 (9th Cir.
2009) (quotation omitted); see, e.g., State v. Perfetto, 160 N.H. 675, 678 (2010)
(“[A] court will not strike down conditions of release, even if they implicate
fundamental rights, if such conditions are reasonably related to the ends of

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rehabilitation and protection of the public from recidivism.” (quotation
omitted)).

Here, the trial court found that the defendant had engaged in a “serious
and disturbing” course of criminal conduct for many years, had “a long history
of disregard for the law,” and was “in need of significant supervision.” The trial
court explained that it imposed the condition because “[p]revious rehabilitation
and deterrent efforts have had dubious results, at best,” and “a course of
incentive[s to] conduct himself as a law abiding citizen upon his release is
essential to encourage his commitment to rehabilitation going forward and to
protecting the community.”

We conclude that the condition is reasonably related to the goals of
deterrence and protecting the public because keeping the defendant in New
Hampshire — where New Hampshire authorities can more easily supervise
him — aids in “alleviat[ing] the danger to society posed by the possibility that
[the defendant] might repeat similar offenses.” United States v. Beech-Nut
Nutrition Corp., 925 F.2d 604, 608 (2d Cir. 1991). Further, the condition is
reasonably related to the goal of rehabilitation because it “reinforc[es the
defendant’s] perception that misdeeds do result in constraints on freedom,”
and thereby incentivizes the defendant to conduct himself as a law abiding
citizen. Id.

Moreover, the condition involves no greater deprivation of liberty than is
necessary and is not absolute. See Watson, 582 F.3d at 984-85 (upholding
probation condition barring convict from entering San Francisco because he
could still travel elsewhere or seek permission to enter the city). The defendant
is required only to reside in New Hampshire. He is able to travel outside of New
Hampshire, and he is free to live wherever he wishes within New Hampshire.
Thus, his right to travel has not been unduly restricted; he may still exercise
his right in ways that do not violate the condition of his suspended sentence.

Accordingly, because the condition of the suspended sentence, requiring
the defendant to reside in New Hampshire, is reasonably related to goals of
deterrence, protection of the public, and rehabilitation, and is no broader than
necessary to achieve those goals, the condition does not violate the defendant’s
right to travel under the Federal Constitution. See id.

Affirmed.

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

Eileen Fox,
Clerk

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