State of New Hampshire v. Deion Anthony Ferrone

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0572, State of New Hampshire v. Deion
Anthony Ferrone, the court on February 12, 2024, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Deion Anthony Ferrone, appeals his
conviction, following a jury trial in Superior Court (Ruoff, J.), on multiple felony
and misdemeanor charges arising out of several incidents of domestic violence
that occurred over the course of two days in January 2021. On appeal, the
defendant challenges the trial court’s decisions to admit evidence: (1) of prior
uncharged acts of domestic violence over his objections that such evidence was
inadmissible under New Hampshire Rule of Evidence 404(b); and (2) of
numerous text and Facebook messages that the defendant sent the victim in
the days immediately following the charged crimes over his objections that
such evidence was irrelevant and unfairly prejudicial in violation of New
Hampshire Rules of Evidence 401, 402, and 403. We affirm.

We first address whether the trial court erred by admitting the text and
Facebook messages. Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence,” and if “the fact is
of consequence in determining the action.” N.H. R. Ev. 401. Irrelevant
evidence is not admissible. N.H. R. Ev. 402. Even evidence that is relevant,
however, may be excluded “if its probative value is substantially outweighed by
a danger of . . . unfair prejudice.” N.H. R. Ev. 403.

“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 on something other than the established propositions in the
case.” State v. Town, 163 N.H. 790, 796 (2012) (quotation omitted). Unfair
prejudice is not “a mere detriment to a defendant from the tendency of the
evidence to prove his guilt,” but rather “is an undue tendency to induce a
decision against the defendant on some improper basis, commonly one that is
emotionally charged.” Id. (quotation omitted).

Whether evidence is relevant, or whether the probative value of otherwise
relevant evidence is substantially outweighed by a danger of unfair prejudice,
are matters within the trial court’s sound discretion. See id. at 795-96. To
establish that the trial court unsustainably exercised its discretion, the
defendant must demonstrate that its ruling was clearly untenable or
unreasonable to the prejudice of his case. See id. at 795.

In this case, the evidence establishes that over the course of multiple
days following the two days in which the defendant committed the charged acts
of domestic violence, and before learning that the victim had reported the
charged acts to law enforcement, the defendant sent the victim numerous text
messages and messages from multiple Facebook accounts to which the victim
did not respond. The messages included numerous messages in which the
defendant repeatedly said variants of, “yo,” or “hello,” repeatedly demanded
that the victim respond or answer him, expressed anger and frustration that
the victim was not responding, and threatened to come and confront the
victim. The messages also included a single message, the admissibility of
which the defendant concedes, in which he apologized for being a bad
boyfriend and hitting the victim. The messages ended with the defendant
driving by the victim’s home twice while sending her a text message saying, “I
see you.” At that point, the victim called the detective to whom she had earlier
reported the charged conduct “in a hysterical state,” and the defendant was
arrested shortly thereafter a few hundred feet from her residence.

On appeal, the defendant argues that the messages, other than the one
in which he admitted to having hit the victim, were irrelevant because, he
claims, they had “no . . . utility” other than to “show[] him to have a bad
character,” and that, because the messages “depicted [him] in such a negative
light,” they were unfairly prejudicial. The State counters that the messages
were relevant to establish the defendant’s state of mind, and that they were not
unfairly prejudicial. We agree with the State.

The State’s evidence included the victim’s vivid and detailed description
of multiple acts of domestic violence that the defendant perpetrated over the
course of two days shortly before he began sending the messages. During one
of the assaults, the defendant told the victim that “he didn’t want to go to jail
for it.” In the one message that the defendant does not challenge on appeal, he
apologized for being a “bad boyfriend” and hitting the victim. The remaining
messages depict increasing anger, frustration, and threats on the part of the
defendant in response to the victim’s silence, as well as a few professions of
love and concern; they culminated with the defendant driving by her residence
twice while texting her that he saw her. In context, the trial court reasonably
could have determined that the messages were probative of the defendant’s
consciousness of guilt for having engaged in the very behavior for which he
apologized. See State v. Peters, 162 N.H. 30, 37-38 (2011) (noting that
consciousness of guilt may be inferred from an attempt to influence a witness);
cf. State v. Evans, 150 N.H. 416, 420-21 (2003) (upholding instruction allowing
jury to infer consciousness of guilt from false exculpatory statements made by
the defendant in order to influence a witness).
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 Moreover, we agree with the State that the messages “were no more
emotionally charged than the victim’s direct testimony about the defendant’s
abuse.” Under the circumstances, the trial court reasonably could have
determined that the probative value of the messages was not substantially
outweighed by a danger of unfair prejudice. Accordingly, we conclude that the
trial court did not unsustainably exercise its discretion by admitting the
messages over the defendant’s relevance and unfair prejudice objections. See
Town, 163 N.H. at 795-97. To the extent that the defendant is also arguing
that the messages violated New Hampshire Rule of Evidence 404, we agree with
the State that the argument is not preserved. See State v. Leroux, 175 N.H.
204, 209 (2022) (to preserve challenge to the admissibility of evidence,
appealing party must make specific and contemporaneous objection at trial).

We next address whether the trial court erred by admitting evidence of
several prior uncharged acts of domestic violence in violation of New
Hampshire Rule of Evidence 404(b). The State argues that, even if the trial
court erred by admitting evidence of the uncharged acts, the error was
harmless beyond a reasonable doubt. We agree.

“[T]o establish harmless error, the State must prove beyond a reasonable
doubt that the error did not affect the verdicts.” State v. Boudreau, 175 N.H.
806, 816 (2023) (quotation omitted). “This standard applies to both the
erroneous admission and exclusion of evidence.” Id. “We consider the
alternative evidence presented at trial as well as the character of the
erroneously admitted evidence itself.” Id. (quotation and brackets omitted).
“To determine whether the State has proven beyond a reasonable doubt that an
error did not affect the verdict, we must evaluate the totality of the
circumstances at trial.” Id. The factors that we have considered in assessing
whether an error did not affect a verdict include, but are not limited to:

(1) the strength of the State’s case; (2) whether the admitted or
excluded evidence is cumulative or inconsequential in relation to
the strength of the State’s case; (3) the frequency of the error; (4)
the presence or absence of evidence corroborating or contradicting
the erroneously admitted or excluded evidence; (5) the nature of
the defense; (6) the circumstances in which the evidence was
introduced at trial; (7) whether the court took any curative steps;
(8) whether the evidence is of an inflammatory nature; and (9)
whether the other evidence of the defendant’s guilt is of an
overwhelming nature.

Id. at 817 (citations omitted). “No one factor is dispositive.” Id. “This court
may consider factors not listed above, and not all factors may be implicated in
a given case.” Id.

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 As noted above, the victim described the charged conduct in vivid detail.
The victim’s account was corroborated by witnesses, including a police officer,
who observed bruising on her shortly after the charged conduct, and by
photographic evidence of the bruising. Moreover, in addition to the post-
assault text message from the defendant apologizing for hitting the victim, the
State introduced a text message from the day before the charged conduct
began in which the defendant threatened to “kill” the victim and to “slit [her]
throat.” With respect to the prior assaults, the trial court expressly instructed
the jury, before the evidence was introduced, that it pertained to uncharged
incidents occurring before the acts alleged to have occurred in this case, that
the jury was prohibited from using such evidence “to conclude that because
[the defendant] may have done something in the past he likely did it this time,”
and that the jury was only permitted to consider such evidence for the “limited
purposes” of evaluating the effect the prior incidents may have had on the
victim’s state of mind, how she “may have reacted to” the charged assaults,
and on her credibility. We presume that the jury followed these instructions.
See State v. Clark, 174 N.H. 586, 594 (2021). Considering the circumstances
at trial in their totality, we conclude, beyond a reasonable doubt, that any error
in admitting evidence of the prior assaults did not affect the verdict in this
case. See Boudreau, 175 N.H. at 816-17.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.

Timothy A. Gudas,
Clerk

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