State of New Hampshire v. Jason A. Morneau

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0263, State of New Hampshire v. Jason A.
Morneau, the court on April 10, 2025, issued the following order:

The court has reviewed the written arguments and the record submitted on
appeal, has considered the oral arguments of the parties, and has determined to
resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant,
Jason A. Morneau, appeals his convictions on multiple counts of possession of
and distribution of child sexual abuse images (CSAI), see RSA 649-A:3, I(a)
(2016); RSA 649-A:3-a, I(a) (2016). Prior to trial, he filed a motion in limine based
upon New Hampshire Rule of Evidence 404(b) to preclude the State from
introducing certain text messages at trial. The Trial Court (Bornstein, J.) denied
his motion both on timeliness grounds and on the merits. On appeal, the
defendant argues that the trial court unsustainably exercised its discretion in
denying his motion. We affirm.

In this case, the State obtained thirty indictments alleging that the
defendant possessed CSAI and four indictments alleging that he knowingly sent
CSAI by text message. At issue is a series of text messages between the
defendant and another person. Included in the texts were the four CSAI images
that the defendant was charged with distributing.

Because we uphold the trial court’s ruling on the merits, we need not
address its ruling that the motion was untimely. Whether to admit or exclude
evidence is a decision within the discretion of the trial court. State v. Brown, 175
N.H. 64, 66 (2022). When determining whether a ruling is a proper exercise of
judicial discretion, we consider whether the record establishes an objective basis
sufficient to sustain the discretionary decision made. Id. When reviewing the
trial court’s pretrial rulings, we limit our review to the proffers presented to the
court at the pretrial motion hearing. Id.

In his pretrial motion based upon Rule 404(b), the defendant sought the
exclusion of any reference to, or evidence involving, the text messages, arguing
that the text messages would be unfairly prejudicial and lacked a logical
connection to the pending criminal case. At the time the motion was filed, the
defendant was unaware that he would soon be charged with four new counts of
distribution of CSAI based on the images that were included in the text
messages.

The State objected to the motion, arguing that, in light of the four new
indictments for distributing CSAI, the text message conversation and four CSAI
images were logically connected to the pending criminal matter. The State
further argued that the motion was moot because the factual predicate
underlying the motion was no longer accurate. The trial court denied the
defendant’s motion, ruling that the evidence was admissible for the reasons set
forth in the State’s objection.

On appeal, the defendant argues that the trial court erred. The State
counters that the text messages were intrinsic evidence of the charged
distribution of CSAI and relevant to the defendant’s state of mind, and that their
probative value was not substantially outweighed by a danger of unfair prejudice.
We agree with the State.

“‘Other act’ evidence is ‘intrinsic,’ and therefore not subject to Rule 404(b),
when the evidence of the other act and the evidence of the crime charged are
‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ . . . .
‘Intrinsic’ or “inextricably intertwined’ evidence will have a causal, temporal, or
spatial connection with the charged crime.” State v. Papillon, 173 N.H. 13, 24-25
(2020) (citation omitted).

At the time that the defendant sought a pretrial ruling to exclude the
messages, he presented only a summary of the text messages as set forth in the
search warrant affidavit rather than the actual messages. Therefore, based on
the record before it, the trial court could have reasonably found that the
challenged text messages were temporally or spatially connected with the four
new indictments for distributing CSAI, as those indictments were based upon
images included in the challenged text message conversation. As such, it
reasonably concluded that the text messages constituted intrinsic evidence not
subject to Rule 404(b). Furthermore, based on the limited record before it, the
trial court could have reasonably found that the text messages were relevant to
establishing that the defendant acted knowingly when he distributed the CSAI.

The defendant also argues that the probative value of the challenged text
messages was substantially outweighed by the danger of unfair prejudice. See
N.H. R. Ev. 403 (providing that evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice). We are not
persuaded. Unfair prejudice is not mere detriment to a defendant from the
tendency of the evidence to prove guilt, in which sense all evidence offered by the
prosecution is meant to be prejudicial. State v. Wells, 166 N.H. 73, 79-80 (2013).
Rather, the prejudice required to predicate reversible error is an undue tendency
to induce a decision against the defendant on some improper basis, commonly
one that is emotionally charged. Id. at 80. Among the factors we consider in
weighing the evidence are: (1) whether the evidence would have a great emotional
impact upon a jury; (2) its potential for appealing to a juror’s sense of resentment
or outrage; and (3) the extent to which the issue upon which it is offered is
established by other evidence, stipulation or inference. Id. Here, the record
before the trial court contained detailed descriptions of two photos constituting
CSAI. On the record before it, the trial court could have reasonably concluded

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that the text messages were unlikely to have any greater emotional impact upon
the jury than would the CSAI. Further, we agree with the State that the record
before the trial court did not contain other evidence of the defendant’s mental
state, and thus the text messages were not cumulative. Accordingly, we conclude
that the trial court did not unsustainably exercise its discretion when, in a
pretrial ruling, it denied the defendant’s motion to exclude any reference to, or
evidence of, the text messages.1

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

1 We note that when the State introduced the actual text messages and four CSAI images into
evidence at trial, the defendant did not raise an objection under Rules 403 or 404(b).
Consequently, to the extent that the defendant contends on appeal that the trial court erred at
trial by admitting the specific text messages that he describes in his brief, the plain error
standard of review applies. See Sup. Ct. R. 16-A. We agree with the State that, even if we were
to assume that the trial court erred, the error did not affect the defendant’s substantial rights.
Based upon the record before us, we can “confidently state that the jury would have returned
the same verdict in the absence of the error.” State v. Mueller, 166 N.H. 65, 70 (2014).

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