State of New Hampshire v. Robert Conway

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0036, State of New Hampshire v. Robert
Conway, the court on December 4, 2015, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Robert Conway, appeals his conviction, following a jury
trial, of felony stalking. See RSA 633:3-a (Supp. 2014). He argues that the
Superior Court (Brown, J.) erred in denying his request to redact certain
portions of a domestic violence protective order that was admitted at trial. He
asserts that certain statements regarding prior acts of abuse committed against
the victim and other provisions of the order were inadmissible as evidence of
prior bad acts under Rule 404(b).

We accord the trial court considerable deference in determining the
admissibility of evidence, and we will not disturb its decision absent an
unsustainable exercise of discretion. State v. Munroe, 161 N.H. 618, 626
(2011). “To demonstrate an unsustainable exercise of discretion, the defendant
must show that the trial court’s ruling was clearly untenable or unreasonable
to the prejudice of his case.” Id. Evidence Rule 404(b) states:

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. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.

N.H. R. Ev. 404(b). “[B]efore a trial court admits ‘other crimes, wrongs, or acts’
evidence pursuant to Rule 404(b), it generally must first determine: (1) that
the evidence is relevant for a purpose other than character or disposition; (2)
that there is clear proof that the defendant committed the prior act; and (3)
that the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice to the defendant.” State v. Roy, 167 N.H. 276, 287
(2015) (quotation omitted). Here, the defendant challenges the first and third
prongs.
 To convict the defendant of stalking in this case, the State was required
to prove beyond a reasonable doubt that he was served with, or was otherwise
provided notice of, a protective order issued pursuant to RSA chapter 173-B
that prohibited contact with the victim, and that he purposely, knowingly, or
recklessly violated the order and engaged in an act listed in RSA 633:3-a, II(a)
by entering the victim’s residence. See RSA 633:3-a, I(c).

The record shows that the defendant declined to stipulate as to the
validity or effect of the protective order. Accordingly, he does not assert that
the protective order was inadmissible in its entirety. Instead, he argues that
the court erred in admitting statements in the order relating to prior acts of
abuse and certain other provisions. Specifically, he sought to redact language:
(1) restraining him from committing “further acts of abuse or threats of abuse”;
(2) finding him to have committed an act of domestic violence; and (3)
informing him that a willful violation of the order constitutes a crime and
contempt of court, shall result in arrest, and may result in imprisonment.

The trial court agreed, however, to redact language in the order
specifically describing the defendant’s prior acts of domestic violence. The
remaining statements to which he objected consisted of boiler plate language
contained in the standard form protective order. As to these remaining
statements, the State argued that the language was relevant to show the jury
that the order “protect[ed] [the victim] from [the] Defendant for a reason.” The
trial court agreed with the State that the language was relevant to the
defendant’s “knowledge of the order and the significance of the order.”

The defendant argues that the references indicating that he engaged in
prior, unspecified acts of abuse were not relevant for any proper purpose. As
previously noted, the State was required to prove that the defendant acted
“purposely, knowingly, or recklessly” in violating the protective order. See RSA
633:3-a, I(c). A defendant’s intent often must be proven by circumstantial
evidence. State v. Zubhuza, 166 N.H. 125, 130 (2014). “The jury is entitled to
infer the requisite intent from the defendant’s conduct in light of all the
circumstances.” State v. Craig, 167 N.H. 361, 379 (2015). In this case, we
conclude that the jury was entitled to infer the requisite state of mind from the
defendant’s conduct in light of the unredacted content of the protective order.

The defendant argues that even if the language was relevant for a proper
purpose, it was unfairly prejudicial to allow evidence “[i]nforming the jury that
the order to which [he] was subject was founded on a judicial finding that he
had previously abused [the victim].” We conclude, however, that the jury could
have reasonably inferred from language in the order to which the defendant did
not object that he committed a prior act of domestic violence against the victim.
Such language includes, most notably, the title, “Domestic Violence Final Order
of Protection,” which appears in large, bold, capital letters on the top of the first
page. Under the title, the victim is identified as the plaintiff, and the defendant

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is identified as her former, cohabiting boyfriend. The order recites that it was
issued after consideration of the plaintiff’s domestic violence petition and a
hearing of which the defendant received actual notice. The order prohibits the
defendant from having any contact with the victim. In light of these other
provisions, which were admitted without objection, we conclude that the
defendant has failed to show that the admission of the statements to which he
objected created a danger of unfair prejudice that substantially outweighed
their probative value. See Roy, 167 N.H. at 287. Based upon this record, we
cannot conclude that the trial court unsustainably exercised its discretion in
admitting the unredacted statements. See Munroe, 161 N.H. at 626.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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