State of New Hampshire v. David Voight

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0600, State of New Hampshire v. David
Voight, the court on June 3, 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, David Voight, appeals his convictions,
following a jury trial in Superior Court (Messer, J.), of second degree assault,
see RSA 631:2, I(b) (Supp. 2023), and felon in possession, see RSA 159:3, I
(2023). He argues that the trial court erred in admitting a voicemail message
he sent the victim before the assault and an email message he sent the victim
after the assault. He also argues that the court erred in denying his request to
cross-examine the victim regarding alleged acts of dishonesty. We affirm.

The defendant first argues that the trial court erred in admitting a
voicemail message that he sent the victim thirteen days prior to the assault.
He argues that the voicemail was inadmissible under New Hampshire Rule of
Evidence 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. See State v. Colbath, 171 N.H. 626, 632
(2019). To show an unsustainable exercise of discretion, the defendant must
demonstrate that the court’s ruling was clearly untenable or unreasonable to
the prejudice of his case. Id.

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). The
rule provides:

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. “[T]he 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. (quotation omitted).

The State argued that the voicemail evidenced the defendant’s
threatening behavior toward the victim and was relevant to show that she
delayed reporting the crimes because she feared that he would retaliate against
her. The trial court found that the evidence was admissible “to show
something other than propensity,” that it was “related to intent [and] motive,”
that it was relevant to show that their relationship “had frayed,” and that it
“was not a loving, supportive relationship.” The court also found that any
prejudice was “limited by the fact that it’s not the same conduct as the conduct
that's alleged.”

The defendant argues that the evidence was not relevant to prove motive
or intent because “neither were in serious dispute.” However, the defense
argued that the victim fabricated the claims, which placed the elements of the
offense, including the defendant’s mental state, in dispute. Moreover, as the
trial court noted, the danger of unfair prejudice was limited because leaving an
angry voicemail message differs from committing second degree assault. We
conclude that the record supports the trial court’s finding that the voicemail
was relevant to the defendant’s intent without relying upon a forbidden
propensity inference. See State v. Tufano, 175 N.H. 662, 665-66 (2023). The
record also supports the trial court’s finding that the probative value of the
voicemail was not substantially outweighed by the danger of unfair prejudice.
See Clark, 174 N.H. at 592-93. Accordingly, we conclude that the trial court
sustainably exercised its discretion in admitting the voicemail. See Colbath,
171 N.H. at 632.

The defendant next argues that the trial court erred in admitting an
email that he sent the victim nine days after the assault. He argues that the
email was inadmissible under Rule 403. Relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” 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.

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State v. Cassavaugh, 161 N.H. 90, 98 (2010) (quotation omitted). We accord
the trial court considerable deference in determining whether to admit or
exclude evidence under Rule 403, and we will not disturb its decision absent
an unsustainable exercise of discretion. State v. Miller, 155 N.H. 246, 252
(2007).

The defendant argues that the email was attenuated in time from the
assault and served only to depict him as an abuser who was manipulative and
emotionally erratic. However, the email was relevant to show the volatile
nature of the defendant’s relationship with the victim, which bolstered the
victim’s testimony, and it was not merely cumulative of previous emails that
were admitted. Nor did the trial court err by determining that the email was
not unfairly prejudicial. Accordingly, we conclude that the defendant has not
demonstrated that the trial court’s decision to admit the email constituted an
unsustainable exercise of discretion. See Miller, 155 N.H. at 252.

Finally, the defendant argues that the trial court erred by not allowing
him to cross-examine the victim regarding alleged acts of dishonesty. Rule
608(b) permits a cross-examiner to inquire into conduct that is probative of the
witness’s character for truthfulness or untruthfulness. Miller, 155 N.H. at 249.
Generally, however, the examiner must take the answer as the witness gives it.
Id. Rule 608(b) prohibits the examiner from introducing “extrinsic evidence,
such as calling other witnesses, to rebut the witness’s statements.” State v.
Hopkins, 136 N.H. 272, 276 (1992). “The objective is to avoid a trial within a
trial; that is, to avoid the litigation of issues that are collateral to the case at
hand.” Miller, 155 N.H. at 249.

When exercising its discretion under Rule 608(b), the trial court must
also consider Rule 403. State v. Brum, 155 N.H. 408, 412 (2007). “The
overriding protection of Rule 403 requires that probative value not be
outweighed by danger of unfair prejudice, confusion of issues, or misleading
the jury.” Id. at 412-13 (brackets and quotation omitted). To prevail under
this standard, the defendant must demonstrate that the trial court’s decision
was clearly untenable or unreasonable to the prejudice of his case. Id. at 413.

The trial court found, “[a]fter review and consideration,” that “the specific
instance of conduct that the defense seeks to inquire into is collateral to the
charged offenses.” The court also found that “the conduct has not been clearly
established as it was a report by [a third party] that was not reported or
confirmed by purported victims, and the police did not complete an
investigation.” We conclude that the trial court’s finding, that the probative
value of any such cross-examination would be substantially outweighed by the
danger of unfair prejudice and confusion of the issues, is supported by the

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record, and that the court’s decision not to allow such cross-examination
constituted a sustainable exercise of its discretion. See Brum, 155 N.H. at
412.

Affirmed.

Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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