State of New Hampshire v. David J. Tufano

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2021-0429

THE STATE OF NEW HAMPSHIRE

v.

DAVID J. TUFANO

Argued: October 20, 2022
Opinion Issued: March 30, 2023

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, attorney, on the brief and orally), for the State.

Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the
brief and orally), for the defendant.

HICKS, J. The defendant, David J. Tufano, appeals his conviction,
following a jury trial in Superior Court (Ruoff, J.), for misdemeanor cruelty to
animals. See RSA 644:8, III (Supp. 2018). We reverse and remand.

The jury could have found the following facts. On May 26, 2019, Richard
Roberge was working in his yard at his home in Somersworth. He heard a low,
loud moaning noise coming from the defendant’s home across the street and
went over to investigate. He saw the defendant with a hose in his hand
spraying water into a plastic container. Inside the container was a “Havahart
Trap” with a cat in it. He told the defendant to take the trap out of the bucket
and open the trap, which the defendant did. The cat then ran off.

Roberge did not immediately report the incident to police, but did so
later, after other neighbors told him he should. Specifically, after his neighbor
Sharon Barry told him about a prior incident in which the defendant had
placed a trap on his property, Roberge decided to contact the police.

The defendant was charged with misdemeanor cruelty to animals. Prior
to trial, the defendant filed a motion in limine to prohibit, under New
Hampshire Rule of Evidence 404(b), the admission of certain statements
regarding the defendant’s prior trapping of cats. The motion alleged that the
day after the May 2019 charged incident, Barry told Roberge that she had
previously confronted the defendant “about setting traps in his yard to prevent
cats from entering into his garden.” That confrontation resulted in the police
being called and, according to the State’s objection, the associated police report
confirms the date of incident as September 4, 2018. The defendant’s Rule
404(b) motion requested that the court “prohibit the admission of any of the
alleged statements” Barry made regarding the defendant’s cat trapping “or any
others similar to it from any witness.”

The State objected, arguing that the evidence was “relevant to the
defendant’s intent and plan when he trapped the cat on this occasion as well
as his knowledge of the trap used.” The Trial Court (Houran, J.) denied the
defendant’s motion, adopting the State’s analysis and conclusions in their
entirety. The defendant moved for reconsideration, which the Trial Court
(Ruoff, J.) denied.

The defendant also filed a motion in limine to allow him, in relevant part,
to impeach Barry with a prior conviction, pursuant to New Hampshire Rule of
Evidence 609. The Trial Court (Ruoff, J.) denied the motion.

The defendant was tried by jury in June 2021. He testified at trial,
offering an alternative version of the events at issue. In relevant part, he
testified that on the day in question, he thought he hit a cat with his vehicle.
He stopped and saw the cat lying on the ground not moving. After determining
that the cat was breathing, he picked it up and walked to his shed and
“look[ed] for a container – something to put it in.” He had nothing suitable
except the trap, so he put the cat in that.

Once the cat opened its eyes and became alert, the defendant decided to
try to feed the cat something, but when he lifted the door of the trap to put in a
can of tuna fish, “the cat lunged at [him] and bit [his] hand.” The defendant
quickly pulled his arm out, cutting his forearm in the process, and the trap’s
spring-loaded door slammed shut keeping the cat trapped inside.

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 At some point, the defendant decided to put the trap into another
container because he was probably going to have to transport the cat to a
“veterinary clinic or something that was open.” He had already called the
humane society, but got neither an answer nor an answering machine. He did
not want to put the trap directly on his car seat because the trap was dirty and
had sharp edges and also because he was concerned about the cat relieving
itself.

After tending to the wound on his arm, the defendant discovered that
“the cat was moving around a lot better” and he became “a little more satisfied”
that the cat was not injured. At that point, the defendant “started thinking
more along just taking it out and letting it go and seeing what it did.”

Having already put the trap into the container, however, the defendant
then had difficulty getting it out. When he tried to lift the trap out of the
container, the container came up with the trap. Because he could not remove
the trap by lifting it by its handle, he tried to pull it out with his “fingers going
around the side of the trap,” but the cat kept swiping at his fingers. The
defendant then got a hose and began to spray the cat with water to keep it
away from his hand while he tried to “unjam” the trap from the container. He
used the hose’s “fog pattern so it wouldn’t be really hard . . . [and] wouldn’t
hurt [the cat].”

At this point, Roberge came up behind the defendant and started
screaming “what are you doing to that cat?” The defendant tried to explain
what he was doing, but Roberge “wouldn’t pay any attention to it” and told the
defendant to “get that cat out of the tub of water.” Roberge and the defendant
“went back and forth for a short period of time and [the defendant] was starting
to really get irritated.” The defendant turned around and kicked the container,
which “flipped over on its side,” partially dislodging the trap. The defendant
pulled the trap the rest of the way out, opened it, and the cat ran out.

The jury convicted the defendant and he now appeals, challenging the
denials of his Rule 404(b) and Rule 609 motions in limine. We first address the
denial of the defendant’s Rule 404(b) motion. We review challenges to the trial
court’s evidentiary rulings under our unsustainable exercise of discretion
standard. See State v. Colbath, 171 N.H. 626, 632 (2019). “For the defendant
to prevail under this standard, he must demonstrate that the trial court’s
decision was clearly untenable or unreasonable to the prejudice of his
case.” Id. (quotation omitted).

The purpose of Rule 404(b) “is to ensure that an accused is tried on the
merits of the crime charged and to prevent a conviction that is based upon
propensity and character inferences drawn from evidence of other crimes or
wrongs.” State v. Thomas, 168 N.H. 589, 599 (2016) (quotation omitted). It
provides:

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 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)(1). Evidence of other crimes, wrongs or acts is admissible
only if: (1) “it is relevant for a purpose other than proving the person’s
character or disposition”; (2) “there is clear proof, meaning that there is
sufficient evidence to support a finding by the fact-finder that the other crimes,
wrongs or acts occurred and that the person committed them”; and (3) “the
probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice.” N.H. R. Ev. 404(b)(2); see State v. Clark, 174 N.H. 586, 592-
93 (2021). “The State bears the burden of demonstrating the admissibility of
prior bad acts.” Clark, 174 N.H. at 593. Here, the defendant argues that the
first and third prongs of the Rule 404(b)(2) test were not met.

To meet the first prong, “the State is required to specify the purpose for
which the evidence is offered and articulate the precise chain of reasoning by
which the proffered evidence will tend to prove or disprove an issue actually in
dispute, without relying upon forbidden inferences of predisposition, character,
or propensity.” Id. (emphasis added) (quotation omitted). The defendant
argues that the evidence of prior cat trapping failed this prong “because it was
not relevant for a purpose other than to show [his] disposition to trapping cats
and had no bearing on any issue actually in dispute.”

In its brief, the State argued that the challenged evidence was relevant to
show the defendant’s intent and knowledge of the trap. At oral argument,
however, the State conceded that the defendant’s knowledge of the trap was
not a disputed issue in the case. Accordingly, the evidence was not admissible
for that purpose under Rule 404(b). See id.

We now turn to the asserted purpose of showing the defendant’s “intent.”
The State argued to the trial court that the challenged evidence was relevant to
show that the defendant “had the same intent on the earlier occasions of
trapping as he did on [the charged] occasion,” and that this “consistent intent”
was “important to show [his] mental state with regard for how he treated the
cat” during the charged incident. Cf. Thomas, 168 N.H. at 601 (concluding
that, “for purposes of Rule 404(b), ‘intent’ can entail any mental state that the
proponent of the evidence may seek to prove”).

The criminal complaint alleged that the defendant “negligently beat,
tortured, or in another manner mistreated an animal, to wit a cat, by trapping
the cat, placing the trap in a containe[r], and adding water to said container.”
Thus, if we assume, without deciding, that “trapping the cat” constituted a

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material element of the offense charged, the State was required to prove that
the defendant acted negligently in trapping the cat. See RSA 626:2, I (2016) (“A
person is guilty of . . . a misdemeanor only if he acts purposely, knowingly,
recklessly or negligently, as the law may require, with respect to each material
element of the offense.”). The State could prove negligence by proving any of
the higher mental states of purposely, knowingly, or recklessly. See RSA
626:2, III (2016).

In his motion for reconsideration of the trial court’s 404(b) ruling, the
defendant admitted that, after “the cat was hit by his car or ran into it,” he
“placed it in the [Havahart] trap.” Thus, the defendant admitted that he acted
both knowingly and purposely in trapping the cat1 as part of the charged
incident. See RSA 626:2, II(a), (b) (2016) (defining purposely and knowingly).
Accordingly, as with the defendant’s knowledge of the trap, his intent in
trapping the cat was not an issue actually in dispute in the case and the
evidence was therefore not admissible under Rule 404(b) for that purpose. See
Clark, 174 N.H. at 593.

Finally, the State argues that “the evidence was relevant to give the jury
the context necessary to rebut the defendant’s defense” that he acted out of
compassion for the cat. Specifically, the State argues that there was a
reasonable, non-propensity inference to be drawn “that the defendant’s intent
in placing the cat in the trap [during the charged incident] was not to take it to
the humane society because it was injured, but . . . to remove it from his
property” as had been his intent on prior occasions.

We disagree that a “non-propensity inference” can be so drawn. The jury
could find that the defendant possessed the same intent as he had on prior
occasions only by relying upon the defendant’s propensity or disposition to trap
cats for the purpose of removing them from his property. Under Rule 404(b),
however, “no link in the chain of inferences justifying relevance can be derived

1 Portions of the defendant’s motion might be read to assert that his actions did not constitute

“trapping,” as it states, for instance: “There is no evidence this cat was ever ‘trapped’ as suggested
by the state, other than putting it into the trap for shelter. The term “trapping” however, easily
encompasses the act of causing the cat to be confined by placing it in the trap. See Webster’s
Third New International Dictionary 2431 (unabridged ed. 2002) (defining “trap,” in relevant part,
as “to place . . . in a restricted . . . position: CONFINE”). More importantly, any such semantic
argument posits a distinction without a difference, as it did not matter, for purposes of the charge
against the defendant, whether the cat entered the trap of its own accord or was placed into it by
the defendant — the gravamen of the offense is that the defendant sprayed the cat with water
while it was in a container from which it could not escape. Indeed, that was actually the basis of
the argument the defendant was making with the above-quoted sentence, as the sentence
immediately preceding it states: “The issue in the case is whether or not [the defendant] had
negligently abused the cat by basically spraying water on it while it was in the cage.” In other
words, whether the defendant “set” the trap for a cat to enter, either previously or on the occasion
of the charged incident, was irrelevant to what the State had to prove in order to convict the
defendant.

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from the prior conduct’s tendency to show character or disposition.” State v.
Melcher, 140 N.H. 823, 828 (1996). “When . . . an assumption based upon the
defendant’s propensity toward certain action is the essential connection in the
inferential chain supporting relevance, the evidence is inadmissible under Rule
404(b).” Id. at 830. Accordingly, we conclude that the prior-trapping evidence
“is simply evidence of propensity or disposition, prohibited by Rule 404(b),
sought to be introduced through the mechanical recitation of ‘intent’ as the
password for admissibility.” State v. Hastings, 137 N.H. 601, 606 (1993).

Moreover, “[t]o be relevant to intent, evidence of other bad acts must be
able to support a reliable inference, not dependent on the defendant’s character
or propensity, that the defendant had the same intent on the occasions of the
charged and uncharged acts.” Colbath, 171 N.H. at 634 (quotation omitted).
“We will find sufficient support for a reliable inference of intent only if the
defendant’s intent in committing the other bad acts and the defendant’s intent
in the charged offenses are closely connected by logically significant
factors.” Id. (quotation and brackets omitted). Here, the State neither alleged
nor proffered evidence that the prior acts of cat trapping involved mistreatment
similar to the primary allegation of mistreatment here; namely, spraying water
on a cat confined in a container. Thus, we cannot conclude that the
defendant’s intent in committing the prior acts of cat trapping and his intent in
the charged offense are “closely connected by logically significant factors.” Id.
(quotation omitted).

Because the State sought to introduce the challenged evidence for
purposes either not relevant to an issue actually in dispute or reliant upon
prohibited inferences of disposition or propensity, the trial court’s denial of the
defendant’s Rule 404(b) motion in limine was “clearly untenable” under our
unsustainable exercise of discretion standard. Id. at 632. We now consider
whether the court’s ruling prejudiced the defendant’s case. Id.

The State contends that the limiting instructions given by the trial court
“properly addressed the potential prejudice” and that “this Court presumes
that the jury follows the instructions given by the trial court.” We conclude,
however, that the court’s instructions neither eliminated nor mitigated the
prejudicial effect of the evidence. The trial court instructed the jury that it
could consider evidence of the 2018 cat trapping incident for three limited
purposes, one of which was “to kind of explain how the case got reported by
Mr. Roberge.” Direct examination of Roberge on that issue, however, elicited
testimony highly prejudicial to the defendant. Roberge testified that he did not
immediately report the defendant’s actions because he believed that everybody
deserves a second chance. He continued: “But I found out afterwards that he
had a history of being hostile towards cats. One of my neighbors had a
problem with him trying to trap a cat. So I said, well, I think he’s already had
his warning. And that’s when I went to the police.” (Emphasis added.) We
conclude that admission of this evidence prejudiced the defendant’s case.

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Accordingly, we conclude that the trial court’s denial of the defendant’s Rule
404(b) motion in limine constituted an unsustainable exercise of discretion.
See id.

The State nevertheless argues that the error was harmless. “To establish
harmless error, the State must prove beyond a reasonable doubt that the error
did not affect the verdict.” State v. Racette, 175 N.H. 132, 137 (2022).
An error may be harmless beyond a reasonable doubt if: “(1) the other evidence
of the defendant’s guilt is of an overwhelming nature, quantity, or weight; or (2)
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.” Id.
(citation omitted). “We review these factors to determine whether an error
affected a verdict. Either factor can be a basis supporting a finding of harmless
error beyond a reasonable doubt.” Id. at 137-38.

The State contends that the other evidence of the defendant’s guilt was
overwhelming. The State argues:

Based upon the testimony . . . [at trial], the jury reasonably could
have found that the defendant attempted to drown the cat in the
Sterilite container while it was in the trap. Based upon the
testimony of Roberge . . . and the defendant himself, the jury
would have to find, at a minimum that the defendant sprayed the
cat with a hose while it was stuck in a trap that the defendant
placed inside a plastic container. Both findings clearly constitute
mistreatment of the cat and conduct that grossly deviates from
what a reasonable person would do in the same situation.”

We disagree. While it was undisputed that the defendant sprayed the
trapped cat inside a container, we cannot say that those facts alone “clearly
constitute mistreatment of the cat that grossly deviates from what a reasonable
person would do in the same situation.” Beyond those facts, the evidence
sharply differed. According to the defendant’s testimony, he sprayed the cat
lightly to keep the cat from swiping at his fingers while he tried to release it.
The defendant also testified that he began spraying the water no more than five
or ten seconds before Roberge came over, and, therefore, there was “just a little
bit of residual water in the bottom” of the 50-gallon bin containing the trap.
Roberge, on the other hand, testified that “the container was full of water” and
the defendant was “holding the trap under water, so the cat was pretty close
. . . to drowning.” While we assume that Roberge’s testimony, if believed, could
support a finding of “mistreatment of the cat that grossly deviates from what a
reasonable person would do in the same situation,” we cannot say the same
about the defendant’s version of events, if believed. Because the erroneously-
admitted evidence of prior cat trapping could have influenced the jury to view
the defendant as a person who was “hostile toward cats” and likely to abuse or

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mistreat one, it could have led the jury to credit Roberge’s testimony over the
defendant’s and to convict him of the charged offense. Accordingly, we cannot
say the error did not affect the verdict.

The defendant next challenges the denial of his Rule 609 motion in
limine to impeach Barry with a prior conviction. Given our ruling on the Rule
404(b) issue, we conclude that we need not address the trial court’s Rule 609
ruling. Under our Rule 404(b) ruling, Barry would be precluded from testifying
about the 2018 incident and, as the State conceded at oral argument, she
testified to none of the facts necessary to prove the State’s case. Accordingly,
the Rule 609 issue is unlikely to arise on remand. For similar reasons, we
need not address the State’s harmless error argument that Barry’s “testimony
was cumulative in relation to the State’s evidence of guilt introduced through
the testimony of” other witnesses.

Reversed and remanded.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

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