State of New Hampshire v. Benjamin M. Mackenzie

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2019-0265

THE STATE OF NEW HAMPSHIRE

v.

BENJAMIN M. MACKENZIE

Argued: October 21, 2021
Opinion Issued: April 8, 2022

John M. Formella, attorney general (Zachary L. Higham, assistant
attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

BASSETT, J. The defendant, Benjamin M. Mackenzie, appeals his
conviction, following a jury trial in the Superior Court (Houran, J.), on one
count of distribution of a controlled drug — fentanyl — with death resulting.
See RSA 318-B:2, I (2017); RSA 318-B:26, IX (2017). He argues that the trial
court erred when it: (1) admitted, as habit evidence under New Hampshire Rule
of Evidence 406, testimony that the victim had previously purchased opioids
from the defendant; and (2) admitted, as “intrinsic” to the charged crime, text
messages between a cellphone alleged to belong to the defendant and other
apparent drug customers. We affirm.
 The record supports the following facts. In December 2016, the victim
resided with her parents in Rochester. On December 12, at approximately
10:00 p.m., the victim told her parents she was going out and left the home.
Thereafter, the victim exchanged text messages with the user of a cellphone
associated with the number XXX-3908 (the 3908 phone). The victim texted
that she “[n]eed[ed] a 30” and the recipient of the text replied “[g]etting it ready”
and later “I’m looking for my scale.” The victim and the user of the 3908 phone
exchanged texts about their respective locations and set up a time and place to
meet. The communication between the two individuals concluded with two
brief calls occurring shortly before 11:00 p.m. The victim returned home soon
thereafter, went to her bedroom, locked the door, and injected a fatal dose of
fentanyl. The next morning, her parents discovered her body and called 911.

In the course of investigating the victim’s death, the Rochester Police
Department extracted data from the victim’s cellphone, including records of
text messages and calls, and obtained records pertaining to the 3908 phone
pursuant to a search warrant. The police were unable to identify the owner of
the 3908 phone using those records because it was a “prepaid phone” for
which subscriber information was not available.

Nevertheless, the police discovered other evidence linking the 3908
phone to the defendant. The victim’s phone records demonstrated that the
victim had labeled the contact associated with the 3908 number as “Ben
Mackenzie.” The 3908 phone records also implicated the defendant in that
they contained text messages to the user of the 3908 phone from the
defendant’s mother and brother, including one text from his mother referring to
the phone user as “Ben.” Additionally, the police interviewed an individual
who, based upon the phone records, was frequently in contact with the 3908
phone user, and who identified the defendant as the owner of that phone. The
police also interviewed the defendant. He acknowledged that he had met the
victim “a couple of times” but told the police that he had never owned a
cellphone. Following further investigation, a grand jury indicted the defendant
on one count of distribution of a controlled drug with death resulting in
connection with the victim’s death. See RSA 318-B:2, I; RSA 318-B:26, IX.

At trial, the State’s theory was that the 3908 phone records
demonstrated that the defendant acquired fentanyl on December 12 and then
sold it to customers that evening and throughout the next day — including a
sale to the victim. In support of this theory, the State adduced evidence that
the defendant was the exclusive user of the 3908 phone, including the text
from the defendant’s mother to the phone user referring to that person as
“Ben,” and testimony that, approximately two and a half months prior to the
victim’s death, the defendant represented on employment paperwork that the
3908 number was his. To prove that the user of the 3908 phone — allegedly
the defendant — sold the victim the fatal dose of fentanyl, the State relied upon

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text messages between the 3908 phone user and the victim on the night of her
death, which the State’s expert testified demonstrated that the victim “was
about to meet up [with the 3908 phone user] to buy .30 of fentanyl [or] heroin.”
The State also elicited testimony from a close friend of the victim that the
victim said, in December 2016, that she “had gotten drugs” — specifically
opioids — “off of [the defendant].” In addition, the State offered the testimony
of an expert interpreting the 3908 phone user’s texts to other drug customers
on December 12 and 13 as evidence of opioid trafficking. The jury convicted
the defendant, and this appeal followed.

On appeal, the defendant challenges the trial court’s evidentiary rulings
with respect to the testimony of the victim’s friend and the text messages from
the user of the 3908 phone to other drug customers. He argues that the trial
court erred when, prior to trial, it ruled that the testimony of the victim’s friend
was admissible under New Hampshire Rule of Evidence 406 as evidence of the
victim’s habit of buying opioids from the defendant. See N.H. R. Ev. 406. The
defendant asserts that the court erred in two additional respects regarding this
testimony. He contends that, even if the friend’s testimony was admissible as
habit evidence, the court erred when it determined prior to trial that the
testimony would not be unfairly prejudicial under New Hampshire Rule of
Evidence 403, see N.H. R. Ev. 403, and when, at trial, it overruled his hearsay
objection and admitted the evidence under the residual hearsay exception, see
N.H. R. Ev. 807. The defendant also appeals the trial court’s pre-trial ruling
admitting text messages between the user of the 3908 phone and other
purported drug customers as “intrinsic” to the charged offense, or,
alternatively, under New Hampshire Rule of Evidence 404(b). See N.H. R. Ev.
404(b).

The trial court has broad discretion to determine the admissibility of
evidence, and we will not upset its ruling absent an unsustainable exercise of
discretion. State v. Plantamuro, 171 N.H. 253, 255 (2018). When applying our
unsustainable exercise of discretion standard of review, we determine only
whether the record establishes an objective basis sufficient to sustain the
discretionary judgment made. Id. To show that the trial court’s decision is not
sustainable, the defendant must demonstrate that the ruling was clearly
untenable or unreasonable to the prejudice of his case. Id. With respect to the
issues on which we are reviewing the trial court’s pre-trial rulings, we limit our
review to the proffers presented to the court before each ruling. State v.
Nightingale, 160 N.H. 569, 573 (2010).

We first address the defendant’s challenge to the court’s pre-trial ruling
that testimony of the victim’s friend regarding the victim’s past purchase of
opioids from the defendant was admissible as habit evidence under Rule 406 to
prove that it was the defendant who sold the victim fentanyl on the night of her
death. As a threshold matter, the State contends that this argument is not

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preserved for our review. Because we ultimately rule in the State’s favor, we
assume, without deciding, that the defendant adequately preserved this issue
for our review.

Turning to the merits, the defendant asserts that the State’s in limine
proffers were insufficient because the State failed to establish that the victim’s
behavior was “involuntary” or “semi-automatic,” and that the victim’s friend
had knowledge that the victim frequently and consistently procured opioids
from only the defendant. We agree with the defendant that the proffer was
insufficient and that the testimony was admitted in error, but conclude that
this error was harmless beyond a reasonable doubt.

Rule 406 provides that:

Evidence of a person’s habit or an organization’s routine
practice may be admitted to prove that on a particular occasion the
person or organization acted in accordance with the habit or
routine practice. The court may admit this evidence regardless of
whether it is corroborated or whether there was an eyewitness.

N.H. R. Ev. 406. Although Rule 406 does not define “habit,” we have
characterized it as a “regular response to a repeated specific situation . . .
which may become semi-automatic.” Lapierre v. Sawyer, 131 N.H. 609, 611
(1989) (quotation omitted); N.H. R. Ev. 406 Reporter’s Notes (observing that
habit evidence is similar to character evidence “only it is much more exacting”).
The admissibility of habit evidence depends on the facts of each case. Lapierre,
131 N.H. at 611. For example, in a negligence action arising from a car
accident, we affirmed the admission of evidence that the defendant, who had
rented out the car that struck and injured the plaintiff, had a habit of testing
his rental cars’ brakes before renting them to customers. Buxton v. Langan, 90 N.H. 13, 14-15 (1939) (preface to opinion); see also Barton v. Plaisted, 109
N.H. 428, 435 (1969) (affirming admission of testimony regarding decedent’s
customary driving speed along stretch of road where car accident giving rise to
negligence action occurred); State v. Cornwell, 97 N.H. 446, 447 (1952)
(affirming admission of testimony that it was sheriff’s habit to have deputy
assist him when attaching and repossessing a vehicle).

To meet the threshold for admissibility under Rule 406, the proponent’s
proffer in support of admission must “demonstrate a regular response to a
specific situation.” Lapierre, 131 N.H. at 611. In Lapierre, which involved a
negligence action arising from an injury suffered during a racquetball match,
the plaintiff contended that evidence of the defendant’s prior conduct of losing
his temper constituted a “habit” that led him to strike the ball in a manner that
caused the plaintiff’s injury. Id. at 610-11. The trial court excluded the
evidence, determining that it did not constitute a regular response to a specific
situation, and we agreed. Id. at 611. We reasoned that the plaintiff’s proffer

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that the defendant had “lost his temper in two or three previous games” was
insufficient to show a regular response to a specific situation. See id.

Here, the State has not identified the “specific situation” the victim was
responding to when she purchased the opioids that led to her death. See id.
(identifying the specific situation at issue as when the defendant “f[ell] behind
or los[t] important racquetball points”). However, assuming that the “specific
situation” at issue here was the victim’s need or desire to purchase opioids, the
State had to make a proffer sufficient to show that the victim’s “regular
response” to that situation was to buy from the defendant. See id. at 610-11.
The State proffered the following evidence during two pre-trial hearings on the
issue: the friend and the victim had known each other for nine months and
were “best friend[s];” approximately a week and a half before the victim’s death,
the friend was with the victim immediately before and after she purchased
heroin from the defendant, and there are text messages between the victim’s
phone and the 3908 phone user that provide further evidence of that sale; and
the friend told investigators that the defendant was the victim’s “first choice”
for buying opioids, that it was the victim’s habit to buy opioids from him, and
that the victim “liked” the defendant and would often talk about him.

We find this proffer insufficient to establish that the victim’s purchase of
opioids from the defendant was a “regular response” to her need to procure
opioids. At best, this evidence demonstrates that the victim preferred to buy
opioids from the defendant and that she did in fact buy from him on at least
one, or possibly two, occasions near the time of her death. As in Lapierre, a
general preference and two specific instances of the conduct at issue do not
amount to a “regular response.” See Lapierre, 131 N.H. at 610-11. In addition,
we agree with those courts that have reasoned that certain patterns of criminal
conduct do not meet the definition of “habit” because the conduct is not semi-
automatic, as is conduct such as “going down a particular stairway two stairs
at a time, or . . . giving a hand-signal for a left turn.” United States v.
Troutman, 814 F.2d 1428, 1454-55 (10th Cir. 1987) (quotation omitted)
(affirming exclusion of proposed habit evidence because “[e]xtortion or
refraining from extortion is not a semi-automatic act and does not constitute
habit”).

Nor are we persuaded by the State’s argument that Underhill v. Baker, 115 N.H. 469 (1975), supports a contrary result. Underhill involved the
admissibility of testimony about the plaintiff’s regular purchase of beer in the
context of a personal injury action arising out of a vehicle collision. Underhill,
115 N.H. at 470-71. In Underhill, we did not analyze whether the plaintiff’s
beer purchasing practices constituted a “regular response to a specific
situation”; rather, we affirmed admission of evidence about those practices for
the limited purpose of assessing the credibility of the plaintiff’s testimony
regarding how much he drank on the night of the collision. Id. at 471. Thus,

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Underhill offers no support to the State in making a threshold showing that the
victim’s purchase of opioids from the defendant was a “regular response to a
specific situation.”

The State’s pre-trial proffers fell short of establishing that the victim’s
regular response to the specific situation of needing opioids was to purchase
them from the defendant. Accordingly, we conclude that the defendant has
established that the court unsustainably exercised its discretion. Because we
agree with the defendant that the court erroneously ruled before trial that the
friend’s testimony was admissible as habit evidence, we need not reach his
additional arguments as to how the court erred regarding this same testimony.

The State argues that, even if the trial court erred in admitting the habit
evidence, that error was harmless. It asserts that the proof of the defendant’s
guilt was overwhelming and that the friend’s testimony was inconsequential in
light of the “alternative evidence . . . identifying the defendant as the person
who supplied the lethal dose of fentanyl.” We agree with the State.

To establish that an error was harmless, the State must prove beyond a
reasonable doubt that the erroneously admitted evidence did not affect the
verdict. State v. Papillon, 173 N.H. 13, 28 (2020). An error may be harmless
beyond a reasonable doubt if the other evidence of the defendant’s guilt is of an
overwhelming nature, quantity, or weight and if the improperly admitted
evidence is merely cumulative or inconsequential in relation to the strength of
the State’s evidence of guilt. Id. at 28-29. In conducting this analysis, we
consider the other evidence presented at trial as well as the character of the
erroneously admitted evidence itself. Id. at 29.

To convict the defendant of distribution of a controlled drug with death
resulting, the State was required to prove that the defendant knowingly
dispensed a controlled drug to the victim, the victim ingested or injected that
controlled drug, and her ingestion or injection of the controlled drug caused
her death. See RSA 318-B:2, I; RSA 318-B:26, IX. The parties agree that the
primary issue at trial was whether the defendant — and not someone else —
knowingly sold the victim the fatal dose of fentanyl.

The other evidence specifically identifying the defendant as the victim’s
source for fentanyl on the night of her death was overwhelming. The jury
heard extensive evidence connecting the defendant to the 3908 phone. Most
notably, the defendant identified himself as the owner of that phone by listing
the 3908 number on employment paperwork approximately two and a half
months prior to the victim’s death. The jury also had before it testimony from
the defendant’s friend that the 3908 phone belonged to the defendant near the
time of the victim’s death, phone records showing that the victim’s phone
labeled the 3908 number as “Ben Mackenzie,” and text messages between the
3908 phone user and the defendant’s mother and brother. The texts between

6
the phone user and the defendant’s brother discuss going “to Mom’s.” The
texts from the defendant’s mother include one referring to the 3908 phone user
as “Ben” and a series of texts sent on December 13 reminding the recipient
about a probation appointment. Trial testimony established that, in December
of 2016, the defendant was on probation and that he had to report to the
probation office on December 14 — the day after his mother’s reminder text.

The jury also heard compelling evidence connecting the defendant,
through the phone, to the December 12 sale to the victim. It heard testimony
first establishing that the user of the 3908 phone had access to opioids on the
day of the victim’s death. A detective, qualified as an expert by the court “in
the field of narcotics and drug investigations,” testified that texts to and from
the phone user established that that person had picked up two “fingers” of
heroin or fentanyl from a supplier in Massachusetts on the evening of
December 12.

Substantial evidence further established that the 3908 phone user sold
opioids to the victim on December 12. A detective involved in the investigation
recounted the communications between the user of the 3908 phone and the
victim on December 12 from the time the victim left home at approximately
10:00 p.m. to when she returned home at 11:00 p.m. Shortly after 10:00 p.m.,
the victim contacted the phone user requesting “a 30” and the recipient replied
“[g]etting it ready.” Over the next thirty minutes, the two individuals
exchanged texts about where to meet and the phone user provided the victim
directions to a skate park. At 10:33 p.m., the victim called the phone user and
then texted, “Where are you?” The recipient replied, “Almost there. You need to
have patience,” and the victim responded, “I know.” The last communications
between the two individuals were phone calls at 10:47 p.m. and 10:56 p.m.
The State’s expert emphasized the significance of these communications by
“interpret[ing]” them as demonstrating that the victim “was about to meet up
[with the 3908 phone user] to buy .30 of fentanyl [or] heroin.”1 The jury heard
testimony that the victim returned home between 11:00 p.m. and 11:15 p.m.,
that she had injected fentanyl, and that her time of death was before 1:00 a.m.

In addition, the jury heard evidence refuting the defendant’s theory that
the victim obtained opioids from another source that night. The defendant
elicited testimony that, in addition to the defendant, the victim had a history of
getting opioids from two other individuals. In response, the State offered
testimony that there was no evidence that the victim ever had contact with one
of the potential sources, and that, although the victim was texting with the
second source about buying opioids at the same time she was texting with the

1The defendant did not object to the trial court’s qualification of the witness as an expert or to the
witness’s testimony “interpret[ing]” the text messages.

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3908 phone user, her texts demonstrate that she did not meet that potential
source on December 12. Thus, the jury heard overwhelming other evidence of
the defendant’s guilt.

We also find the erroneously admitted testimony inconsequential when
compared to the nature and strength of this other evidence. See Papillon, 173
N.H. at 30. The testimony at issue was not lengthy:

Q Okay. And I want to be very clear about this December
timeframe. Was [Ben Mackenzie] a name that [the victim] had told
you about?

A Yes.

Q Okay. And what had she told [you] she was doing in relation to
Ben Mackenzie?

A She had told me that she had gotten drugs off of him.

Q And specifically, did she talk about what type of drug?

A Opiates.

From this testimony, the jury could have inferred that, because the
victim previously bought from the defendant, she did so on the occasion that
led to her death. See N.H. R. Ev. 406. The impact of this testimony was,
however, blunted on cross-examination when the friend testified that the victim
had also told her the names of two other individuals from whom the victim had
purchased opioids.

Although the jury could have drawn the above inference, it also could
have concluded that the friend’s testimony supported an inference that the
defendant was one among several of the victim’s sources for opioids. Further,
we are not persuaded by the defendant’s argument that, because this
testimony implicated him in prior sales of a deadly drug to the victim, it was
especially consequential in that it made him appear “morally,” if not legally,
culpable. Any negative “moral” inference the jury drew from the defendant’s
past sales to the victim was overshadowed by the weight of the other evidence
demonstrating the defendant’s culpability for the specific sale at issue, which
resulted in the victim’s death. In short, in comparison to the other evidence
that the defendant sold the fatal dose to the victim — including the detailed
text exchange leading up to the subject sale — the friend’s testimony was
inconsequential. Accordingly, we conclude that the State has met its burden
of proving that the erroneously admitted testimony did not alter the verdict,
and the court’s error was, therefore, harmless beyond a reasonable doubt. See
Papillon, 173 N.H. at 30.

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 We turn next to the defendant’s argument that the trial court erred when
it admitted texts exchanged between the 3908 phone user and other drug
customers because they were neither intrinsic to the charged crime, nor
admissible under Rule 404(b). The challenged texts, which were sent on
December 12 and 13, related to the sale of opioids by the phone user to
individuals other than the victim. The State counters that the defendant did
not preserve this issue for appellate review, and that, in any event, the trial
court’s ruling was a sustainable exercise of discretion. It also argues that, even
if the court erred, any error was harmless. For the purposes of this appeal, we
assume, without deciding, that the defendant has preserved this issue for our
review. We need not, however, decide whether admission of the challenged
texts was erroneous because we agree with the State that any error was
harmless. See Papillon, 173 N.H. at 28.

As described above, the jury heard overwhelming other evidence of the
defendant’s guilt. Although the challenged texts provided proof that the
defendant, as the user of the 3908 phone, was engaged in opioid trafficking at
the time of the victim’s death, because there was abundant other evidence of
that fact, the challenged texts were cumulative.2 The jury heard evidence that,
on December 12, the 3908 phone user picked up two “fingers,” or
approximately 20 grams, of heroin or fentanyl from a supplier in
Massachusetts. It also heard evidence that, because the supplier had given the
drugs to the phone user without requiring payment up front, that person
needed to sell the drugs in order to repay the supplier. Indeed, the texts show
that, on December 12, the supplier told the 3908 phone user that that person
owed the supplier $650 and, on December 13, the supplier inquired how much
had been sold so far, to which the phone user replied, “I got, like, 450 so
far. . . . Day’s not over yet, though.”

This evidence, viewed in conjunction with the texts between the victim
and the 3908 phone user, established that the defendant was involved in an
opioid trafficking operation. The challenged text messages pertaining to
uncharged drug sales were merely cumulative evidence on that point. See
State v. Enderson, 148 N.H. 252, 256 (2002) (concluding that any error in
admitting uncharged gambling activity was harmless because such evidence
was cumulative of other evidence that the defendant ran a gambling operation).

Nor are we persuaded by the defendant’s arguments that the State failed
to meet its burden of proving that the challenged evidence was inconsequential
in relation to the other evidence of guilt. He contends that the text messages
from drug customers other than the victim were especially consequential
because some of the texts contained references to the phone user as “Ben” or

2 To the extent that certain text messages were offered into evidence to prove the defendant’s
identity, the defendant conceded at oral argument that the texts addressing the defendant by
name were admissible for that purpose.

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“Benny.” He argues that this makes the evidence of the drug sales to other
customers more consequential than the evidence of the sale to the victim
because, in her texts, the victim never addressed the phone user by name.
However, the victim did identify the defendant as the recipient of her texts
when she labeled the 3908 number saved on her phone as “Ben Mackenzie.”

Finally, the defendant argues that the challenged texts were particularly
consequential because they allowed the State to emphasize, in its closing
argument, “the degradation that was experienced by the addicted buyers” of
opioids. He contends that the challenged texts allowed the State to illustrate
the highly addictive quality of opioids and the severity of opioid withdrawal
symptoms. Although without the challenged texts in evidence the State may
not have been able to demonstrate the impact of opioid addiction in the same
way at trial, we are satisfied, based upon our review of the record, that
admission of the challenged evidence did not deny the defendant a fair verdict.
See Papillon, 173 N.H. at 30. The import of the challenged evidence paled in
comparison to other irrefutable and compelling evidence of the severe
consequences of opioid addiction: the victim’s death by overdose at the age of
nineteen.

In sum, we conclude that the challenged text messages were not only
cumulative, but were also inconsequential in relation to the other evidence of
the sale of fentanyl to the victim — in particular, the texts between the victim
and the user of the 3908 phone leading up to the victim’s death. Accordingly,
we further conclude that the State has met its burden of proving that any error
in admitting the texts between the user of the 3908 phone and other drug
customers did not affect the verdict, and was, therefore, harmless beyond a
reasonable doubt. See id.

Additionally, we must consider the impact of the court’s presumed error
in admitting the challenged texts together with its error in admitting the
friend’s testimony. See State v. Hickey, 129 N.H. 53, 62 (1986). Even
considered together, however, this evidence was inconsequential in relation to
the character and strength of the other evidence of the defendant’s guilt. Our
review of the record supports the conclusion that the State has met its burden
of proving beyond a reasonable doubt that the errors, even when considered
together, did not affect the verdict. See id.

Affirmed.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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