State of New Hampshire v. Michael Messina

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0539, State of New Hampshire v. Michael
Messina, the court on August 22, 2016, 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, Michael Messina, appeals his conviction, following a jury
trial in Superior Court (Brown, J.), on charges of: (1) allowing his property to be
used for prostitution, involving a minor (victim), see RSA 645:2 (Supp. 2015); (2)
common nuisance for allowing his property to be used by drug-dependent
persons for the purpose of using drugs, see RSA 318-B:16 (2011); (3)
endangering the welfare of a child, see RSA 639:3 (2007); and (4) interfering with
custody, see RSA 633:4 (Supp. 2015). He contends that the trial court erred by
admitting: (1) photographs of, and testimony describing, the basement of his
apartment in which the victim was discovered and the prostitution took place;
and (2) extrinsic evidence of a prior inconsistent statement by the victim’s mother
when the mother was not given an opportunity to explain or deny the statement,
see N.H. R. Ev. 613(b).

The decision to admit evidence is within the trial court’s discretion. State
v. Palermo, 168 N.H. 387, 391 (2015). In determining whether a ruling is a
proper exercise of judicial discretion, we consider whether the record establishes
an objective basis sufficient to sustain the discretionary decision made. Id. To
show an unsustainable exercise of discretion, the defendant must demonstrate
that the trial court’s ruling was clearly untenable or unreasonable to the
prejudice of his case. Id.

We first address whether the trial court erred by admitting the
photographs of and testimony describing the basement. Two of the photographs
showed the location in which the police found the victim hiding. The third
showed a portion of the basement floor. In the course of testifying as to how he
discovered the victim, an investigating police officer described the condition of the
basement briefly. The victim and another witness testified that most of their acts
of prostitution took place in the basement.

The defendant argues that the photographs and testimony were not
relevant because “none of the charges required the State to prove that the
basement’s conditions were disgusting or unsanitary.” See N.H. R. Ev. 401
(stating evidence is relevant if it tends to make existence of any fact of
consequence to determination of action more probable). However, the presence
of drug paraphernalia littering the basement floor was relevant to the charge that
the property was used for drug-taking. The presence of used condoms was
relevant to the charge that the property was used for prostitution. The fact that
the used condoms did not carry the victim’s DNA did not preclude the inference
that prostitution took place in the basement, which supported the victim’s
testimony that she engaged in prostitution there. The drug paraphernalia, used
condoms, dog feces, and general condition of the property were relevant to the
charge of child endangerment. The photographs and description of where the
victim was found hiding were relevant to the charge of interference with custody.

The defendant argues that the probative value of the evidence was
outweighed by the risk of unfair prejudice because the condition of his basement
“tended to dehumanize him in the eyes of the jury,” tended “to inflame the jury’s
passions and provoke its instinct to punish,” and “overwhelmed the jury’s
capacity to focus on the merits of [his] mens rea defense.” See N.H. R. Ev. 403.
Unfair prejudice is not mere detriment to a defendant from the tendency of the
evidence to prove guilt. State v. Nightingale, 160 N.H. 569, 574 (2010). Rather,
the prejudice required to predicate reversible error is an undue tendency to
induce a decision against the defendant on some improper basis, commonly one
that is emotionally charged. Id. Among the factors we consider in weighing the
evidence are: (1) whether the evidence would have a great emotional impact
upon a jury; (2) its potential for appealing to a juror’s sense of resentment or
outrage; and (3) the extent to which the issue upon which it is offered is
established by other evidence, stipulation, or inference. Id. at 574-75.

The trial court is in the best position to gauge the prejudicial impact of
particular testimony, and what steps, if any, are necessary to remedy that
prejudice. Id. at 575. Thus, we give the trial court broad latitude when ruling on
the admissibility of potentially unfairly prejudicial evidence. Id.

In this case, we cannot say that the evidence of the condition of the
basement was likely to have a greater emotional impact upon the jury than the
evidence showing that the defendant allowed his property to be used for
prostitution involving the fourteen-year-old victim. See id. (stating evidence
defendant sold detective Oxycontin when he originally sought to purchase
cocaine was not likely to have greater emotional impact on jury than charged sale
of Oxycontin). To the extent that the defendant argues that the State could have
established the same points through witness testimony and introduction of the
drug paraphernalia and condoms, this does not establish that the trial court
erred by admitting the photographs. See State v. Cantara, 123 N.H. 737, 739
(1983) (stating no requirement prior conviction be excluded simply because other
evidence may be available on same issue).

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 Accordingly, we cannot conclude that the trial court’s decision to admit the
photographs and testimony describing the basement was unreasonable or
untenable. See Palermo, 168 N.H. at 391.

We next address whether the trial court erred by admitting extrinsic
evidence of an inconsistent statement. The State concedes error, but argues that
it was harmless. An error is harmless if the State can establish, beyond a
reasonable doubt, that it did not affect the verdict. State v. Pennock, 168 N.H.
294, 305 (2015). To determine whether the State has met its burden, we
consider the alternative evidence presented at trial and the character of the
contested evidence. Id. An error may be harmless beyond a reasonable doubt if
the alternative evidence of the defendant’s guilt is of an overwhelming nature,
quantity, or weight and if the contested evidence is merely cumulative or
inconsequential in relation to the strength of the State’s evidence of guilt. Id. at
305-06.

In this case, the improperly admitted testimony was inconsequential.
Although the defendant argues that the testimony “tended to prove [his]
consciousness of guilt, by showing that he feared the report of illegal activities in
the home,” the trial was replete with testimony that the defendant did not want
the police in his apartment. See id. at 306. The defendant concedes that the
testimony was admitted solely to impeach the victim’s mother, but contends that
“the distinction between the substantive and impeachment uses of . . . the
statement . . . [was] so subtle as to be microscopic” and that “the jury would not
be able to follow the instruction” to consider it for impeachment purposes only.
However, we presume that juries follow instructions. State v. Cooper, 168 N.H.
161, 171 (2015).

Furthermore, the alternative evidence of the defendant’s guilt was
overwhelming. An investigating police officer testified that the defendant
admitted that: (1) people staying in his apartment “were involved in prostitution
and drug use”; (2) he knew that the victim was posting advertisements on-line for
“dates” and performing “massages or body rubs”; (3) he heard the victim and
another person living in the apartment discussing “how they got so much money
off this guy”; and (4) he knew the victim used her money to purchase drugs and
sometimes gave him money to obtain them. The victim testified that: (1) she
went to the defendant’s apartment when she ran away from her foster placement;
(2) she would hide when the police came; (3) she did not attend school while
living with the defendant; (4) she used drugs with the defendant and others living
in his apartment; (5) she performed sexual acts in the apartment’s basement in
return for money; (6) she gave the defendant money that she earned by means of
prostitution; and (7) she told the defendant that she was engaged in prostitution.
Another person living in the defendant’s apartment testified that: (1) she, the
victim, and others engaged in prostitution and drug use in the apartment; (2) the
victim and others used drugs with the defendant; (3) shortly after she moved in,

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she asked the defendant not to disturb her because she had a client; and (4) the
defendant told the victim to hide when the police came.

The defendant argues that the improper impeachment testimony “could
lead [the jury] more generally to doubt the credibility of any testimony [the
mother] gave that exculpated, or failed to incriminate,” him. However, the
mother testified that: (1) the victim moved in with the defendant as soon as she
ran away from the foster placement; (2) the trial court had ordered the defendant
to contact the police if he knew where the victim was, but he failed to do so; (3)
many people, including she and the victim, used drugs at the defendant’s
apartment; and (4) she confronted the defendant about the victim’s prostitution,
but he did not call the police. Thus, any damage to the mother’s credibility could
have assisted the defendant.

Accordingly, we conclude that the State has established, beyond a
reasonable doubt, that the erroneous admission of the impeachment testimony
was harmless. See Pennock, 168 N.H. at 305.

Affirmed.

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

Eileen Fox,
Clerk

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