State of New Hampshire v. Jonathan Nzali

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0645, State of New Hampshire v.
Jonathan Nzali, the court on October 2, 2017, 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, Jonathan Nzali, appeals his conviction, following a jury
trial in Superior Court (Delker, J.), on a charge of felony indecent exposure and
lewdness. See RSA 645:1, II(d) (2016). He contends that the trial court erred by
admitting evidence of a prior similar act. See N.H. R. Ev. 404(b).

To convict a defendant of indecent exposure and lewdness, the State must
prove beyond a reasonable doubt that the defendant knowingly exposed his
“genitals . . . under circumstances which he . . . should know will likely cause
affront or alarm.” RSA 645:1, I (2016); State v. Bergen, 141 N.H. 61, 63 (1996).
In this case, the State charged the defendant with exposing his genitals to a
student from a stall in the restroom of a university at which the defendant was
neither enrolled nor employed. The prior-act evidence established that,
approximately two months before the charged act, the defendant exposed his
genitals to a different student in the same restroom under nearly identical
circumstances.

Before admitting evidence under Rule 404(b), a trial court must first
determine that: (1) the evidence is relevant for a purpose other than character or
disposition; (2) there is clear proof that the defendant committed the prior act;
and (3) the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice to the defendant. State v. Thomas, 168 N.H. 589, 599
(2016). The State bears the burden of demonstrating the admissibility of prior
acts. Id. We review the trial court’s ruling for an unsustainable exercise of
discretion and will reverse only if it was clearly untenable or unreasonable to the
prejudice of the defendant’s case. Id.

On appeal, the defendant challenges only whether the probative value of
the prior-act evidence was substantially outweighed by the danger of unfair
prejudice. This prong involves the same analysis as that conducted pursuant to
Rule 403. State v. Roy, 167 N.H. 276, 288 (2015). We accord considerable
deference to the trial court’s determination in balancing prejudice and probative
value. Thomas, 168 N.H. at 602. Determining the probative value of evidence
entails analyzing how relevant it is. Id. We have repeatedly emphasized that
whether the evidence is relevant to prove an issue that is actually in serious
dispute is particularly important to the calculus. Id. at 603.
 The defendant argues that the evidence of his prior act had no probative
value because he did not actively contest his intent to expose himself and his
intent was inferable from the charged act. However, the trial court admitted the
prior-act evidence not for this purpose, but because it was relevant to whether, at
the time of the charged act, the defendant should have known that his actions
would likely cause affront or alarm.

The defendant acknowledges that his “conduct alone established that the
exposure was intentional.” However, when the trial court asked, during the
hearing on his motion in limine, what his defenses were, he responded that his
“acts did not offend people.” Thus, whether the defendant should have known
that his actions were likely to cause affront or alarm was in serious dispute. See
N.H. R. Ev. 404(b) (stating evidence of other acts may be admissible to prove
“knowledge”).

The defendant’s prior act occurred in the same bathroom approximately
two months before the charged act, and the defendant’s counsel acknowledged
that the prior act was “identical” to the charged act. The witness to the prior act
testified at the motion in limine hearing that he was “shocked” when the
defendant exposed his genitals, and at trial testified that he was “surprised,”
“taken aback,” and “disturbed” by the defendant’s actions, that there was
“emotional manipulation involved,” and that he left the bathroom “[t]o get away
from the situation.” He explained that, although he did not initially report the
prior event, when he heard about the charged event he came forward because he
realized that “if it’s a repeating incident, then there’s got to be more to it. There’s
got to be some meaning behind it.”

The defendant argues that this testimony “had no probative value to prove
that [he] should have known that his conduct in the [charged] incident was likely
to cause affront or alarm” because of the witness’s “lack of any meaningful
reaction” to the prior act. However, the witness testified to his reaction to the
prior act. Determining what the defendant should have known was within the
jury’s purview. The defendant argues that the prior-act evidence had little
incremental probative value over the evidence of the charged act. However, the
record reveals no other evidence bearing directly upon his knowledge of what a
person’s reaction might be to being confronted by a man exposing his genitals
from the stall of a university’s restroom.

The trial court found that the prior-act evidence was “highly relevant on
intent, which goes to lack of accident.” To the extent that the defendant argues
that the trial court was referring exclusively to the defendant’s intent to expose
himself, we disagree. See Thomas, 168 N.H. at 601 (stating that, for purposes of
Rule 404(b), “intent” can entail any mental state that the proponent of the
evidence is required to prove); Bergen, 141 N.H. at 63 (stating that common law
concept of general intent corresponds loosely with the Criminal Code’s mental
state of “knowingly”). At trial, the court clarified that “knowingly goes to both the

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exposure and the affront or alarm” and that the prior act was relevant to what
the defendant should have known at the time of the charged act.

Accordingly, we need not address the defendant’s arguments that prior-act
evidence is not admissible to show intent to commit an act when the defendant
does not actively dispute his intent and intent is inferable from the charged act
itself. We conclude that the trial court’s finding that the prior-act evidence was
highly probative of the defendant’s knowledge at the time of the charged act was
neither unreasonable nor untenable. See Thomas, 168 N.H. at 599.

We next address whether the probative value was substantially outweighed
by the danger of unfair prejudice to the defendant. Id. at 602. Evidence is
unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s
sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger
other mainsprings of human action that may cause a jury to base its decision
upon something other than the established propositions in the case. Id. It is
not, however, evidence that is merely detrimental to the defendant because it
tends to prove guilt. Id.

Although the balancing of prejudice and probative value cannot be reduced
to a precise formula, we consider several factors, including: (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; (3) the extent to which the
issue upon which it is offered is established by other evidence, stipulation, or
inference; and (4) whether the evidence is relevant to prove an issue that is
actually in serious dispute. Id. at 602-03. While evidence of a prior bad act is
always prejudicial, the prejudice is frequently outweighed by the probative value
of the evidence when the defendant’s knowledge is a contested issue in the case.
Id. at 603.

In this case, the prior-act evidence would not have had a greater emotional
impact upon the jury than the evidence of the charged act because the acts were
“extraordinarily similar.” See State v. Howe, 159 N.H. 366, 378 (2009) (stating
prior act evidence not likely to have greater emotional impact on jury because
similar to charged acts). Furthermore, the prior-act evidence was relevant to an
issue in serious dispute because whether the defendant should have known that
exposing himself was likely to cause affront or alarm was the basis of his defense.

The defendant argues that, because the prior act and the charged act were
“extraordinarily similar,” the prior-act evidence was “highly prejudicial.” See
State v. Belonga, 163 N.H. 343, 360 (2012) (stating risk of unfair prejudice
increases as degree of similarity between prior act and charged crime increases).
However, the defendant did not contest that he exposed himself. Instead, the
trial court found that the prior act was “highly relevant” to what he should have
known at the time of the charged act. See State v. Smalley, 151 N.H. 193, 200
(2004) (stating that the prejudice associated with a prior act is frequently

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outweighed by the relevancy of the evidence when a defendant’s knowledge is a
contested issue).

The defendant argues that the prior-act evidence made it more likely that
the jury would conclude that he had a “sexually perverted compulsion to expose
himself to male college students” and “punish him for his bad character.”
However, the defendant declined the trial court’s offer to instruct the jury that he
was not charged with the prior act and that the evidence could be used only to
determine whether he should have known that his actions were likely to cause
affront or alarm.

The defendant argues that the State “used the prior incident to argue that
[he] has a propensity to commit this type of crime.” He points to the State’s focus
on the witness’s reaction to the prior act, rather than on the reaction of the victim
of the charged act. However, the State was required to prove that the defendant
should have known, at the time of the charged act, that his actions were likely to
cause affront or alarm. Thus, the reactions of the witness to the prior act were
arguably more relevant than those of the victim of the charged act. The
defendant also points to the State’s comparison of him to one who lures prey.
However, this reference was to the defendant’s use of an innocuous request to
the victim for a paper towel in order to place the victim in a position to be
exposed to the defendant’s genitals.

The defendant argues that the State discussed the prior incident “as if it
were a charge.” However, he did not timely object to any portion of the State’s
closing. See Broderick v. Watts, 136 N.H. 153, 167 (1992) (stating that, in a civil
case, objection to closing argument must be made during or immediately after
such closing). Furthermore, the trial court instructed the jury that the State had
to prove that the defendant had exposed his genitals to the victim, and the
defendant declined a specific instruction limiting the jury’s consideration of the
prior-act evidence.

Accordingly, we conclude that the trial court did not unsustainably
exercise its discretion in finding that the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice to the defendant. See
Thomas, 168 N.H. at 603.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.

Eileen Fox,
Clerk

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