State of New Hampshire v. Mark Heath

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0737, State of New Hampshire v. Mark
Heath, the court on November 16, 2021, issued the following
order:

Having considered the briefs and oral arguments of the parties, we
conclude that a formal written opinion is unnecessary in this case. The
defendant, Mark Heath, appeals his conviction, following a jury trial in the
Superior Court (Nicolosi, J.), on one count of second degree murder. See RSA
630:1-b, I(b) (2016). The defendant argues on appeal that the trial court erred
by: (1) admitting evidence of the defendant’s inconsistent statements
concerning his prior animal-cruelty conviction; and (2) precluding the
defendant from cross-examining the victim’s mother about her prior statements
regarding her use of makeup on the victim and involvement in the defendant’s
marijuana enterprise. We conclude that, even assuming that the trial court
erred with respect to either or both of the evidentiary rulings challenged on
appeal, the errors did not affect the verdict. Therefore, we affirm the
defendant’s conviction because any error was harmless beyond a reasonable
doubt.

The jury could have found the following facts. In December 2017, the
defendant lived in an apartment with his girlfriend and her two sons: the
victim, age two; and the victim’s older brother, age five. The victim’s mother
had recently separated from her husband, her two sons’ biological father, who
lived in an apartment upstairs with his uncle.

On December 11, 2017, the victim’s mother awoke at 7:30 a.m. and
drove her older son to school. She then briefly returned to the apartment,
checked in on the victim, and left for work at 8:40 a.m., arriving shortly before
9:00 a.m. Thereafter, only the defendant and the victim remained in the
apartment. At 10:17 a.m., the victim’s mother received a text from the
defendant with a picture of the victim lying on his bed amidst a bowl of cereal,
root beer, a mango, a fruit cup, and a sippy cup — all of which the victim had
taken from the kitchen and spread out on his bed.1 The caption to the text
from the defendant read: “I fell back asleep, woke up to take a piss, and this is
what [the victim’s] bed looks like.” After sending the text and image, the
1 A later search of the defendant’s phone verified that the picture was created and sent at 10:17

a.m.
defendant observed the victim “eating away” and noticed he spilled cereal on
his bed. While cleaning up the spill, the defendant also discovered that the
victim had made a “mess” in his diaper, which the defendant then proceeded to
change.

At approximately the same time, the victim’s father and his uncle, who
were upstairs in their apartment, heard a series of “loud bangs” come from the
victim’s room. The uncle stated the sound “shook the floor,” as if “somebody
had jumped off the bed and landed hard.” Shortly thereafter, the defendant
ran upstairs and knocked on the victim’s father’s door, asking for help because
the victim was not breathing. The victim’s father rushed downstairs, found the
victim unresponsive on his bed, and carried the victim up to the third floor,
where he performed CPR and instructed the defendant to call 911. The
defendant made the call at 11:19 a.m. and emergency responders arrived
approximately four minutes later.

When emergency responders arrived, the victim was unresponsive, with
no pulse, and although his airway was unobstructed, he was not breathing.
The emergency responders also observed significant bruising to his face, torso,
and extremities. The victim was transported to the hospital where he was
pronounced dead.

An autopsy revealed that the victim’s death was caused by blunt impact
injuries to his abdomen, resulting in severe internal bleeding. Based on the
severity of the internal injuries and the significant bruising to the victim, the
medical examiner concluded that the manner of death was a homicide. Police
subsequently arrested the defendant after finding him hiding in the basement
of his mother’s house. The State charged the defendant with two alternative-
theory counts of second degree murder, one count alleging the defendant
recklessly caused the victim’s death with extreme indifference to human life
and the other alleging the same conduct with a knowing state of mind. See
RSA 630:1-b, I (2016).

During the ensuing investigation, the police asked the victim’s mother
about the defendant’s use and sale of marijuana. Initially, the victim’s mother
admitted to being minimally involved with the defendant’s marijuana sales,
claiming to have spoken to a friend about the defendant’s sales on just one
occasion. However, at a later evidentiary hearing, when confronted with a
series of messages, the victim’s mother admitted to attempting to sell the
defendant’s marijuana to multiple friends. Citing, among others, New
Hampshire Rules of Evidence 403 and 404(b), the State filed a motion in limine
to exclude evidence of the victim’s mother’s prior statements about selling
marijuana. The defendant objected, arguing that the statements were
inconsistent and therefore relevant to the victim’s mother’s credibility and

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consciousness of guilt. The trial court granted the motion, finding that the
probative value of the evidence was “not terribly great” because it related to a
collateral matter and was substantially outweighed by the danger of unfair
prejudice that “the jury may develop an improper bias against the witness
because of her bad acts.”

Prior to trial, the defendant moved in limine to preclude evidence of his
statements to police concerning his fifteen-year-old animal-cruelty conviction.
Specifically, during an interview with police, when asked about the prior
conviction, the defendant denied responsibility for the underlying offense of
killing a cat, instead claiming that he took the “fall” for someone else. The
State objected to the defendant’s motion, arguing that the defendant’s
statements were relevant to attack his credibility and show consciousness of
guilt. The trial court initially determined the evidence was inadmissible under
Rule 403, reasoning, in part, that the defendant did not “provide
misinformation or overtly lie, conduct which would have had substantially
more probative value.” The trial court further determined that the probative
value of the evidence was substantially outweighed by the danger of unfair
prejudice from the jury hearing evidence of a prior bad act.

The State moved for reconsideration, citing new evidence that, while the
defendant’s motion was pending, he stated during a jail telephone call that he
once killed a cat, but did so only in self-defense. The trial court granted the
motion for reconsideration, reasoning that, in light of the defendant’s
subsequent inconsistent statement, the “relative clarity of the lie” increases
“the probative value of this evidence exponentially” towards both the
defendant’s consciousness of guilt and credibility. The trial court reasoned
that “in light of the centrality” of those issues in the case, the probative value of
the evidence substantially outweighed any danger of unfair prejudice.
Accordingly, although the defendant did not testify at trial and evidence of the
conviction was not admitted, the State introduced evidence of the defendant’s
inconsistent statements surrounding the prior conviction through tape
recordings and a detective’s testimony.

Later, at trial, the defendant sought to introduce evidence of an October
2017 text message from the victim’s mother to the defendant, which stated: “If I
have to, I’ll put makeup on him, and we can bring him in,” in response to the
defendant informing the mother that the victim had hurt himself falling off his
bed. When confronted with evidence of this message at an evidentiary hearing,
the victim’s mother responded that she only offered to put makeup on the
victim because it was Halloween. In light of this prior statement, as well as
others downplaying her use of makeup on the victim, the defendant argued
that the text message was relevant to the victim’s mother’s credibility and
consciousness of guilt. The court ruled the evidence inadmissible under Rule

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403, finding the statement “cumulative” and because the mother’s efforts to
explain “border[ed] on being nonsensical.” After a six-day trial, the jury
convicted the defendant of reckless, second degree murder and acquitted him
on the alternate count. This appeal followed.

On appeal, the defendant argues that the trial court erred by: (1)
admitting evidence of the defendant’s inconsistent statements concerning his
prior animal-cruelty conviction; and (2) precluding the defendant from cross-
examining the victim’s mother about her prior statements regarding marijuana
sales and use of makeup on the victim. The State counters, in part, that even
if the trial court erred in either regard, the defendant’s conviction should be
affirmed because any error was harmless beyond a reasonable doubt. Because
we agree with the State, we need not address either of the defendant’s
arguments.

To establish harmless error, the State must prove beyond a reasonable
doubt that the error did not affect the verdict. See State v. Papillon, 173 N.H.
13, 28 (2020). This standard applies to both the erroneous admission and
exclusion of evidence. Id. 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 evidence that was improperly admitted
or excluded is merely cumulative or inconsequential in relation to the strength
of the State’s evidence of guilt. See id. at 28-29. In making this determination,
we consider the alternative evidence presented at trial as well as the character
of the erroneously admitted evidence itself. Id. at 29.

The defendant was convicted of reckless, second degree murder, which
required the State to prove beyond a reasonable doubt that the defendant
caused the death of another “recklessly under circumstances manifesting an
extreme indifference to the value of human life.” RSA 630:1-b, I(b). “A person
acts recklessly with respect to a material element of an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk that
the material element exists or will result from his conduct.” RSA 626:2, II(c)
(2016). “The risk must be of such a nature and degree that, considering the
circumstances known to him, its disregard constitutes a gross deviation from
the conduct that a law-abiding person would observe in the situation.” Id.

Here, there was overwhelming, alternative evidence of the defendant’s
guilt. Foremost, two medical experts opined that it was not possible for the
victim’s injuries to have occurred prior to the 10:17 a.m. photograph and text
sent to the victim’s mother by the defendant. Dr. Duval, the Chief Medical
Examiner who performed the autopsy, explained that the victim suffered
injuries consistent with a “focus[ed] blow right to . . . the abdomen that
crushe[d] the intestine against the spine,” causing the victim’s intestine to tear

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and, in the process, severing the major artery delivering blood to his digestive
system. The severity of the injury was characterized as one typically seen in a
“horrific” car accident and likely caused the victim to suffer immediate,
excruciating pain. As a result, Duval opined that, given the victim’s demeanor
in the photograph and his prior actions seeking out food, “it’s extremely
unlikely that . . . those injuries had been inflicted prior to [the 10:17 a.m.]
photograph”; Duval added that although “anything is possible,” in this instance
“[it] just would not make sense” for the injuries to have occurred prior to 10:17
a.m.

The second expert, a practicing pediatrician, was more emphatic. She
testified that there is “no possibility that if [the victim] had already sustained
this fatal beating where his intestines were torn apart and he was bleeding to
death, he would have been able to go to the kitchen, get all this food, bring it
back to his bed, and would have been eating.” Furthermore, both experts
testified that it was unlikely the victim would have been capable of producing a
bowel movement after the injury. Moreover, the first responders, a trauma
nurse, and the autopsy report all described significant bruising to the victim’s
face that is not apparent in the 10:17 a.m. photograph, and both the victim’s
father and his uncle heard a series of loud noises from the victim’s room at
approximately the same time. The evidence is also uncontroverted that the
defendant was alone in the apartment with the victim from 8:40 a.m., when the
victim’s mother left for work, to until shortly after 11:00 a.m., when the
defendant sought aid for the victim’s injury. Therefore, we conclude that the
State presented overwhelming, alternative evidence for the jury to find beyond
a reasonable doubt that the defendant alone had the opportunity to inflict the
fatal injuries to the victim, and by extension to find the defendant guilty.

Against this overwhelming evidence of the defendant’s guilt, the
defendant’s inconsistent statements concerning his prior conviction were
cumulative in light of the other evidence concerning the defendant’s prior
conduct and character. See Papillon, 173 N.H. at 28-29. The jury heard
evidence that the defendant previously used physical discipline on the victim,
in one instance smacking his behind and leaving a mark with his fingers.
Furthermore, the record includes evidence that the defendant regularly used
marijuana to manage his emotions. During an interview with police, the
defendant offered that he did not “like being around people” and frequently
used marijuana to “self-medicate” his frustrations. Significantly, the defendant
also admitted that he had run out of marijuana on the day of the offense. The
jury also heard evidence that changing diapers was a triggering event for the
defendant. By way of example, when asked by the police about changing the
victim’s diaper, the defendant launched an expletive-filled rant, describing his
disgust with the mess in the victim’s diaper. In fact, when the defendant was

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left alone with the victim on a prior occasion, the defendant refused to change
the victim’s diaper and, instead, texted the victim’s mother asking her to return
home to do it.

The defendant’s inconsistent statements concerning his prior conviction
were also cumulative of other evidence demonstrating his consciousness of
guilt. For instance, the jury heard evidence that the defendant hid in his
mother’s basement when he learned that the police were looking for him and,
once in custody, threatened to commit suicide multiple times. See State v.
Colbath, 171 N.H. 626, 638 (2019) (holding that flight and threats to commit
suicide are evidence of consciousness of guilt). The jury also heard evidence
that, as the investigation progressed, the defendant provided inconsistent
explanations as to the cause of the victim’s injuries. For example, on the day
of the incident, the jury could have found that the defendant told first
responders that the victim ate yogurt and stopped breathing. Later, during an
interview with police, the defendant insinuated that the victim’s bruising, and
by extension his fatal internal injuries, were inflicted by the victim’s older
brother when he allegedly jumped down onto the victim from the top bunk.
See State v. Bean, 153 N.H. 380, 387 (2006) (concluding that the defendant’s
“varying explanations for his presence” at the scene evidenced his
consciousness of guilt).

Additionally, to the extent that the trial court erred by prohibiting the
defendant from questioning the victim’s mother about her prior inconsistent
statements in order to attack her credibility and demonstrate her
consciousness of guilt, we agree with the State that any error was harmless
beyond a reasonable doubt. This evidence was cumulative of other evidence
offered for the same purpose. For example, the defendant questioned the
victim’s mother about the criminal complaint issued against her for
endangering the victim’s welfare by neglecting to seek medical attention for a
prior injury, and about certain benefits she received with respect to that charge
in exchange for cooperating with the State’s investigation of the defendant. The
jury also heard evidence of the victim’s mother’s inconsistent statements
concerning: (1) her use of discipline on the children; (2) her timeline of events
on the morning of the incident; (3) her divergent explanations of the source of
the victim’s fatal injuries; and (4) the cause for the presence of the Division for
Children, Youth and Families in her life.

Finally, in presenting overwhelming evidence of the defendant’s guilt, the
State relied primarily upon the testimony of medical experts as well as the
defendant’s admissions during his interview with law enforcement. Therefore,
the victim’s mother’s prior inconsistent statements, which the trial court
deemed inadmissible, did not rebut, and thus were inconsequential to, the
other overwhelming evidence presented to the jury demonstrating that the

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defendant alone had the opportunity to inflict the fatal injuries on the victim.
Accordingly, after reviewing the record in its entirety, we conclude that the
State has met its burden of proving that any alleged error did not affect the
verdict, and was, therefore, harmless beyond a reasonable doubt.

Affirmed.

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

Timothy A. Gudas,
Clerk

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