State v. Voight

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2022-0244
Citation: State v. Voight, 2024 N.H. 46

THE STATE OF NEW HAMPSHIRE

v.

DAVID VOIGHT

Argued: January 3, 2024
Opinion Issued: August 29, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, 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.

¶1 The defendant, David Voight, appeals his convictions on three
counts of domestic violence simple assault, see RSA 631:2-b, I (2016), following
a jury trial in Superior Court (Messer, J.). The defendant argues that the trial
court erred when, after granting his motion in limine to exclude excerpts of a
video that the complainant captured on her cell phone and that depicted the
charged conduct, it admitted a detective’s testimony recounting the content of
the excluded video excerpts. Because we agree with the defendant that the
trial court’s ruling was erroneous and conclude that the error was not
harmless beyond a reasonable doubt, we reverse and remand.

¶2 The jury could have found, or the record supports, the following
facts. The defendant and the complainant were in a romantic relationship
between approximately November 2017 and July 2019. Following their
breakup, the defendant and the complainant remained in touch and their
relationship became “on-again, off-again.”

¶3 On the night of October 12, 2019, the defendant and the
complainant argued at the complainant’s apartment and a physical altercation
occurred. The complainant recorded a video of the altercation on her cell
phone. A second argument and physical altercation between the defendant
and the complainant occurred on October 15. Approximately two weeks later,
the complainant reported these incidents to the police. The State subsequently
charged the defendant with three counts of domestic violence simple assault
arising from the October 12 altercation, and one count of second degree
assault arising from the October 15 incident.

¶4 In July 2021, the defendant moved in limine to preclude the State
from admitting excerpts of the video of the October 12 incident, which the
complainant had captured on her cell phone and which depicted the conduct
giving rise to the October 12 charges. He asserted that the complainant had
shown one of the investigating officers the entire twelve-minute video but, due
to the size of the file, the complainant could not email the entire video to the
officer. The officer instructed the complainant to send the officer video excerpts
depicting only the physical interactions and to preserve the remainder of the
video. The defendant represented that, although he had received the three
video excerpts the complainant created and sent to the police, he had not
received or viewed the entire video. The defendant stated that, given his
multiple unsuccessful discovery requests seeking the entirety of the video
footage, he understood the remainder of the video to be unavailable. He argued
that, under these circumstances, admission of the video excerpts at trial would
deprive him of his state constitutional right to produce all proofs favorable and
would contravene the doctrine of completeness. In November 2021, the trial
court ruled on the defendant’s motion in limine by margin order, stating: “After
review, and the State having filed no objection (either back in July when the
motion was filed or by the new deadline set by the Court of November 5, 2021),
the motion is GRANTED.”

¶5 On the morning that the trial was scheduled to begin in December
2021, defense counsel informed the court that the State intended to elicit
testimony from a police detective about the content of the video excerpts the

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court had excluded. The initial investigating officer — who had observed the
entire twelve-minute video and who instructed the complainant to send the
police the video excerpts — was not available to testify. Instead, the State
intended to call the lead detective on the case, who had watched only the video
excerpts.

¶6 Defense counsel objected, arguing that the court’s in limine ruling
“would be useless if the [detective] then testifies about the video.” He asserted
that, “given the credibility of the police officer,” allowing the testimony “would
be like showing the jury the video” and that, without having viewed the entire
video himself, he would be unable to effectively cross-examine the detective.
The trial court ruled the testimony admissible. It also granted the defendant’s
request for a jury instruction advising the jury that it could consider the
absence of evidence of the rest of the video in determining whether the State
had met its burden of proof.

¶7 There were only two witnesses at trial: the complainant and the
detective. Both testified about the content of the excluded video excerpts. The
jury convicted the defendant on the three counts of domestic violence simple
assault arising from the October 12 incident, and acquitted him on the second
degree assault charge alleged to have occurred on October 15. This appeal
followed.

¶8 We review a trial court’s decision on the admissibility of evidence
under our unsustainable exercise of discretion standard. State v. Letarte, 169
N.H. 455, 461 (2016). 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. 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. Our task is not to determine whether we
would have found differently, but is only to determine whether a reasonable
person could have reached the same decision as the trial court on the basis of
the evidence before it. Id.

¶9 On appeal, the defendant argues that the trial court erred when,
after excluding the video excerpts, it permitted the detective to testify about the
content of those excerpts. The defendant contends, relying on State v.
Demond-Surace, 162 N.H. 17 (2011), that after the court granted his motion in
limine and the State filed no motion for reconsideration, he was entitled to rely
on the court’s ruling. Accordingly, he asserts that the court erred when it — in
effect — reversed its prior ruling by allowing the detective’s testimony. The
State counters that it was within the trial court’s discretion to reconsider or
clarify its prior ruling and that this case is distinguishable from Demond-
Surace in several respects. We agree with the defendant.

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 [¶10] Generally, the trial court’s discretionary powers are continuous,
and the court may exercise them, or correct prior discretionary rulings, “as
sound discretion may require, at any time prior to final judgment.” State v.
MacMillan, 152 N.H. 67, 70 (2005) (quotation omitted); see also State v.
Warren, 143 N.H. 633, 638 (1999) (acknowledging trial court’s discretion to
reconsider pretrial ruling on grounds not presented in the motion in limine).
However, we have held that, under limited circumstances, a trial court can
unsustainably exercise its discretion by not enforcing a prior ruling. See
Demond-Surace, 162 N.H. at 22-26.

¶11 In Demond-Surace, the trial court ruled pretrial and reiterated
during trial that the State was precluded from arguing or introducing evidence
that the defendant was impaired at the time of the motor vehicle crash giving
rise to the charges against her. See id. at 20-21. Nevertheless, in the State’s
closing, the prosecutor suggested that the defendant was impaired at the time
of the accident. See id. at 22. The defendant moved for a mistrial or a
cautionary jury instruction, both of which the trial court denied. Id. at 22-23.
On appeal, we reversed. Id. at 19, 26. We reasoned that, given the trial court’s
prior ruling, the prosecutor’s closing argument was improper. See id. at 23-24,
26. We explained that the trial court’s failure to take remedial action in
response to the State’s improper closing argument resulted in an “inconsistent
enforcement” of the court’s prior ruling, which caused unfair prejudice to the
defendant due in part to her reliance on the pretrial ruling in preparing her
trial strategy. See id. at 24-26.

¶12 The circumstances in this case are analogous. Notwithstanding
the court’s prior exclusion of the video excerpts and months of silence from the
State, the court ruled on the morning of trial that the detective’s testimony was
admissible. That ruling, in practical effect, allowed the content of the excluded
video excerpts into evidence: the trial court ruled the detective’s testimony
admissible without limitation as to the purpose for which it could be offered
and, at trial, the detective described the defendant’s conduct as depicted in the
video excerpts. The court’s ruling at trial was therefore inconsistent with its
pretrial ruling.

¶13 Importantly, the trial court did not articulate any factual, legal, or
procedural basis explaining this inconsistency. Cf. State v. Wilkinson, 136
N.H. 170, 176-77 (1992) (observing that trial court permissibly reconsidered
pretrial ruling when trial court learned new facts at trial that altered its
analysis). The legal basis for the trial court’s in limine ruling was unclear, and,
at trial, the court neither elucidated the basis for its original decision nor
indicated that it was reconsidering the decision. Rather, the trial court
reasoned that the testimony was admissible because “a person can testify to
what they saw in a video in the same way they could testify to what they saw
happening on the street,” and because defense counsel would be able to cross-
examine the detective about the fact that the detective never saw the entire

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video. However, neither of these reasons accounts for the fact that the
detective would testify to the content of video excerpts the court had already
excluded. Nor do these reasons counter the thrust of the defendant’s motion in
limine — that admission of evidence of only part of what the video depicted
could mislead the jury about what happened on October 12. Because neither
the detective nor defense counsel had seen the entire video, cross-examination
of the detective would have been ineffective. Under these circumstances, we
conclude that it was unreasonable for the trial court to, in effect, rule
inconsistently by admitting the detective’s testimony. Cf. id.; MacMillan, 152
N.H. at 70-73 (holding that, although unauthorized recording of
communications was excluded under wiretapping statute, witness could testify
to content of communications because his knowledge of them was obtained
through his direct observations as a participant in the conversation, not the
unauthorized recording).

¶14 We next consider whether the defendant has shown that the
court’s error prejudiced his case. See Letarte, 169 N.H. at 461. The defendant
contends that the court’s ruling prejudiced him because admission of the
detective’s testimony provided “powerfully influential evidence” supporting the
October 12 charges as compared to the October 15 charge of which the
defendant was acquitted. We agree. At trial, the detective described what the
video excerpts depicted, which aligned with the complainant’s trial testimony
about the defendant’s conduct on October 12 and the complainant’s
description of the video excerpts. Additionally, the detective testified that what
she “saw in the video clips [was] consistent with the [complainant’s] initial
report.” In short, the detective’s testimony corroborated the complainant’s
account and substantially bolstered the complainant’s credibility. Thus, the
detective’s erroneously admitted testimony assisted the State in proving its
case to the defendant’s prejudice. See State v. Dahood, 143 N.H. 471, 475
(1999) (concluding that erroneously admitted expert testimony prejudiced
defendant’s case when State conceded the testimony “helped the State prove its
case”).

¶15 We further conclude that the trial court’s trial ruling, in
combination with the State’s conduct, unfairly prejudiced the defendant’s
pretrial and trial strategy. The State failed to object, file a motion to
reconsider, or otherwise respond to the defendant’s pretrial motion. Given the
State’s conduct and the trial court’s pretrial ruling, the defendant reasonably
relied in his trial preparation upon his understanding that the remainder of the
video was “not available.” However, at trial during a break in the complainant’s
direct testimony, the prosecutor represented that she did not know whether the
entire video had been destroyed, and the complainant on recross-examination
testified that the entire video was still in her possession. Had the State notified
the defendant prior to trial that the entire video had not — or may not have
been — destroyed and that the full video was, or may have been, in the
complainant’s possession, the defendant would have had the opportunity to

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obtain the video directly from the complainant by subpoena. See Petition of
State of N.H. (State v. Lewandowski), 169 N.H. 340, 344 (2016); N.H. R. Crim.
P. 17(b). Thus, the State’s silence created a factual misimpression, which,
combined with the trial court’s trial ruling, deprived the defendant of an
opportunity to secure the entire video before trial, potentially depriving him of
fodder for cross-examination of both the detective and the complainant. Under
these unique circumstances, it was unfairly prejudicial to the defendant for the
trial court to grant the State’s request that, in effect, contravened the court’s
pretrial ruling. See Demond-Surace, 162 N.H. at 25 (trial court’s inconsistent
rulings prejudiced defendant’s trial strategy).

¶16 We are not persuaded by the State’s arguments to the contrary.
The State asserts that the defendant was not prejudiced by the court’s ruling
because he “knew, or should have known, that the issue of whether [the
detective] could testify to what she observed on the video [excerpts] might
arise.” However, our conclusion that the court’s ruling prejudiced the
defendant’s case is not premised upon the timing of the defendant’s knowledge
that the State would elicit the testimony at issue. Rather, as explained above,
the prejudice here was caused by the trial court’s erroneous admission of the
detective’s testimony and by the defendant’s lack of knowledge prior to trial
that the entire video may still have existed.

¶17 The State also argues that the court’s jury instruction regarding
the video evidence cured any prejudice. We disagree. The instruction did not
remedy the defendant’s lack of complete and accurate information about the
video when preparing his trial strategy. Nor did it put the defendant back in
the position he would have been in had the court enforced its pretrial ruling
and refused to admit the detective’s testimony. Moreover, the jury instruction
was not curative in the sense that it neither instructed the jury to disregard the
detective’s testimony nor limited the purposes for which the jury could consider
that evidence. Cf. State v. Turcotte, 173 N.H. 401, 403-05 (2020) (concluding
that court appropriately addressed improper testimony by striking the
testimony and instructing the jury that it form no part of the deliberations);
State v. White, 159 N.H. 76, 79-81 (2009) (involving effective use of instruction
that jury consider testimony about complainant’s prior consistent statements
for limited purpose of evaluating her credibility). To the contrary, the
instruction specifically advised the jury that it could consider testimony
regarding the video.

¶18 Admittedly, the instruction informed the jury that it could
consider the State’s failure to produce evidence of the remainder of the video
when determining whether the State had met its burden of proving the charges
beyond a reasonable doubt. However, this permission to consider the absence
of evidence about the rest of the video did not remedy the substance of the
detective’s testimony — which was, in effect, impeachment-proof since neither
the detective nor defense counsel had seen the entire video, the video excerpts

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had been excluded from evidence, and the detective had no firsthand
knowledge of the events. In sum, we conclude that the defendant has
established that his case was prejudiced by the erroneous admission of the
detective’s testimony about the content of the video excerpts and that the trial
court therefore unsustainably exercised its discretion.

¶19 The State argues that, if there was error, it was harmless beyond a
reasonable doubt. To establish that the error was harmless, the State must
prove beyond a reasonable doubt that the error did not affect the verdicts.
State v. Boudreau, 176 N.H. 1, 11 (2023). This standard applies to both the
erroneous admission and exclusion of evidence. Id. To determine whether the
State has met its burden, we must evaluate the totality of the circumstances at
trial. See id. at 11-12. In doing so, we consider the other evidence presented
at trial as well as the character of the erroneously admitted evidence itself. Id.
at 11.

¶20 The factors that we have considered in assessing whether an error
did not affect the 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 12. 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.

¶21 Based upon our review of the trial record and the relevant factors
listed above, we are not persuaded that the State has met its burden here. The
other evidence of the defendant’s guilt was not overwhelming. The State
presented only two witnesses: the complainant and the detective. Although the
complainant offered direct and detailed testimony about the assaults on
October 12 and explained that they were captured on video, there was little
evidence, apart from the erroneously admitted testimony, corroborating her
account. Her testimony was arguably corroborated by the admission of a letter
written by the defendant following the October 12 incident in which he
“apologize[d].” However, although the letter was admitted as a full exhibit, it is
not part of the appellate record. On the record before us, the complainant’s
cursory and vague description of the letter at trial was weak corroborative
evidence. Accordingly, the trial centered upon the complainant’s credibility.
Cf. State v. Racette, 175 N.H. 132, 138 (2022) (“[A]s in many sexual assault
cases, the trial centered upon the credibility of the complainant.”).

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 [¶22] Given the jury’s acquittal of the defendant on the October 15
charge, defense counsel was clearly successful in challenging the
complainant’s credibility at trial to some degree. Defense counsel also
challenged the credibility of the complainant as to the October 12 charges.
During cross-examination, the complainant admitted that she gave an
incomplete statement to the police by omitting the fact that, just prior to the
charged conduct on October 12, the couple had a separate altercation during
which she hit the defendant. There was also evidence that, in the month prior
to the incidents, the complainant filed for increased parenting responsibility for
the couple’s child, and that she did not tell the police about her conduct
because of its potential impact on the parenting dispute.

¶23 In relation to the above evidence, the detective’s testimony was not,
as the State avers, merely cumulative of the complainant’s description of the
video excerpts, nor do we find it inconsequential. See Boudreau, 176 N.H. at
12. As explained above, the detective’s testimony corroborated the
complainant’s testimony about the assaults and bolstered her credibility.
Indeed, that is exactly how the State portrayed the detective’s testimony in its
closing argument: it summarized what the detective saw in the video and
stated that the detective testified the video excerpts were “consistent with what
[the complainant] told her, because [the complainant] was telling the truth
about that incident.”

¶24 Finally, we are not persuaded by the State’s argument that the
court’s jury instruction regarding the video evidence rendered the court’s error
harmless. We reject this argument for the same reasons we articulated in
response to the State’s argument that the jury instruction prevented or cured
any prejudice to the defendant’s case.

¶25 In sum, we conclude that the State has failed to meet its burden to
prove the court’s error was harmless beyond a reasonable doubt. This case
was ultimately a credibility contest between the complainant and the
defendant. Given that the complainant’s credibility had been successfully
challenged with respect to the October 15 charge, and the detective’s
erroneously admitted testimony about the video excerpts strengthened the
State’s case as to the October 12 charges as compared to the October 15
charge, we conclude that the State has not met its burden of proving beyond a
reasonable doubt that the erroneously admitted testimony did not affect the
verdicts. See State v. Reynolds, 136 N.H. 325, 329 (1992).

Reversed and remanded.

DONOVAN and COUNTWAY, JJ., concurred; HANTZ MARCONI, J., sat
for oral argument but did not participate in the final vote.

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