State v. Moses

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
Case No. 2023-0532
Citation: State v. Moses, 2025 N.H. 36

THE STATE OF NEW HAMPSHIRE

v.

GEORGE MOSES

Argued: March 4, 2025
Opinion Issued: August 14, 2025

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.

Pamela E. Phelan, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

DONOVAN, J.

¶1 The defendant, George Moses, appeals his convictions, following a
jury trial in Superior Court (Schulman, J.), on three counts of second degree
assault – domestic violence, RSA 631:2, I(f) (2016), two counts of kidnapping –
domestic violence, RSA 633:1, I (2016), three counts of criminal threatening,
RSA 631:4, I(d) (2016), and two counts of simple assault – domestic violence,
RSA 631:2-b, I(a) (2016). On appeal, the defendant argues that the trial court
erred in allowing the State to introduce evidence that: (1) the defendant
assaulted the complainant several weeks prior to the charged incident; (2) the
complainant obtained a restraining order against the defendant after the
charged incident; and (3) the defendant called the complainant months after
the charged incident in violation of the restraining order. We agree and
conclude that the trial court’s rulings were not harmless beyond a reasonable
doubt. Accordingly, we reverse and remand.

I. Facts

¶2 The jury could have found, or the record otherwise supports, the
following facts. The defendant and the complainant met through a friend and
began dating shortly thereafter. At that time, the complainant’s father
provided her with financial assistance by paying many of her bills. Eventually,
the defendant moved into the complainant’s apartment. Two months later,
they married in a “curbside wedding” due to COVID-19. After they married, the
complainant’s father stopped providing financial assistance to the complainant.
The complainant expected that she and the defendant would equally divide
their expenses, but they frequently could not meet their expenses. As a result,
they regularly argued about their finances.

¶3 In July 2020, during an argument about their finances, the
defendant broke the complainant’s cell phone by throwing it against a wall. In
response, the complainant hit the defendant’s drone with a mallet. The
defendant then punched the complainant in the face and left the apartment.
The complainant did not report this incident at that time.

¶4 In August 2020, the defendant and the complainant organized a
cookout. Following the cookout, they began to argue about their finances
again. During this argument, the complainant told the defendant that she was
going to get a restraining order against him. The defendant responded, “no,
you’re effing not.” He then mocked the complainant by crumpling up and
throwing a piece of paper at her, telling her that a restraining order would
mean nothing and that “nobody going’s to f**k with my freedom.” He also
threatened to kill her. The complainant then retreated to the bedroom and
asked the defendant to leave her alone. Minutes later, the defendant entered
the bedroom, got on top of the complainant, swore at her, and choked her. The
defendant eventually loosened his grip, before he covered her mouth and began
choking her again, and telling her that he “should break [her] f**cking neck.”
Again, the defendant loosened his grip before choking the complainant for a
third time. During this incident, the defendant punched her at least once. He
then stopped, got up, and stood in the doorway. When the complainant
attempted to get around the defendant, he picked her up, slammed her to the
floor, and began to wrestle with her until the complainant managed to escape

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and run away. The complainant ran to a train station where the police met
her, and an ambulance took her to the hospital.

¶5 The next day, August 6, the complainant obtained a restraining
order prohibiting the defendant from having any contact with her. On October
17, 2020, while he was incarcerated, and in violation of the restraining order,
the defendant placed a collect phone call to the complainant, which she did not
accept.

¶6 As a result of the August 2020 conduct, the defendant was charged
with the previously identified offenses. Prior to trial, the State filed two
motions in limine under New Hampshire Rule of Evidence 404(b) seeking to
introduce: (1) the July 2020 incident; (2) the fact that the complainant obtained
a restraining order against the defendant on August 6; and (3) the October
2020 phone call made in violation of the restraining order. The defendant
objected to both motions, and the court held a motions hearing.

¶7 At the hearing, the State argued that evidence of the July 2020
incident was logically connected to the charged incident because it tended to
lend credibility to the complainant’s belief that the defendant posed a threat to
her during the charged incident by demonstrating that the defendant
previously abused her. The defendant argued that the State was attempting to
add “a little fuel to the [fire]” by “piggyback[ing]” the charged crimes onto the
prior, uncharged assault. The trial court issued an order on April 27, 2023,
ruling that the July 2020 incident was admissible, reasoning that the “course
of conduct between the two spouses is highly relevant to the determination of
[the purpose to terrorize] element of the criminal threatening charges.” The
court also found that the “risk of unfair prejudice is heavily outweighed by the
probative value of the evidence.”

¶8 Regarding the State’s motion to admit the restraining order and the
phone call made in violation of that order, the defendant argued that the only
relevance of the restraining order was to establish a bad act, and it thus
constituted inadmissible propensity evidence. The State argued that the phone
call itself was relevant to prove that the defendant had the intent to terrorize
the complainant. In a margin order, the trial court ruled that “[t]he fact that
the [complainant] took out a no-contact restraining order may be admitted.”
The court reasoned that the fact that the defendant called the complainant in
violation of that order was admissible because the defendant’s efforts to contact
the complainant were relevant and probative of the context of the defendant’s
relationship with the complainant.

¶9 The defendant stood trial for three days during which the
complainant, her neighbor, police officers, and medical personnel testified. The
jury acquitted the defendant on one count of simple assault and convicted him
on all remaining counts. This appeal followed.

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 II. Analysis

¶10 On appeal, the defendant challenges the trial court’s rulings that
evidence of the July 2020 incident and the October 2020 phone call were
admissible under Rule 404(b). The defendant also argues that the trial court
erred by ruling that evidence that the complainant obtained a restraining order
was relevant to the complainant’s credibility and provided context to her
relationship with the defendant. We review the trial court’s evidentiary rulings
for an unsustainable exercise of discretion and will reverse only if they were
clearly untenable or unreasonable to the prejudice of the defendant’s case. See
State v. Nightingale, 160 N.H. 569, 573 (2010). Because the trial court ruled
upon the admissibility of the challenged evidence before trial, “we consider only
what was presented at the pretrial hearing.” Id. (quotation omitted). We so
limit our review to avoid the pitfall of justifying the court’s pretrial ruling by
relying upon the defendant’s response to the evidence at trial. Id.

¶11 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. Tufano, 175 N.H. 662, 665 (2023) (quotation omitted). Rule
404(b) 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). The State bears the burden of
demonstrating the admissibility of bad acts. See Tufano, 175 N.H. at 665. We
address the trial court’s rulings regarding the July 2020 incident, the
restraining order, and the October 2020 phone call in turn.

¶12 With respect to the July 2020 incident, we construe the defendant’s
argument to challenge the ruling pursuant to the first and third prongs set
forth in Rule 404(b). However, we need not address the first prong of the
analysis because we conclude, pursuant to the third prong, that the probative
value of the evidence was substantially outweighed by the danger of unfair
prejudice to the defendant. See State v. Belonga, 163 N.H. 343, 360 (2012).
Therefore, the evidence should have been excluded.

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 [¶13] 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 upon something other than the established propositions in
the case. Id. Evidence of other similar crimes or wrongs is inherently
prejudicial because, notwithstanding its potential relevance, there is a risk that
the jury will find that the defendant had a propensity to commit the charged
crime merely because the defendant committed a similar crime or wrong in the
past. See id.; see also N.H. R. Ev. 402. Such a risk runs counter to the
principle that a defendant may be convicted only “if the jury finds that the
accused committed the specific act that is the subject of the trial, and not some
similar act at some other time.” Belonga, 163 N.H. at 360 (quotation omitted).
The risk of unfair prejudice increases as the degree of similarity between the
prior act and the charged crime increases. Id.

¶14 Here, the prior act is similar to the charged crime. Both instances
began with an argument between the complainant and the defendant. The
State sought to admit evidence that an argument between the complainant and
the defendant in July 2020 escalated into a physical altercation in which the
defendant punched the complainant in the face. The State further noted that
the charged incident also involved the defendant punching the complainant,
and then escalated to him choking her multiple times. Given the similarity
between the two incidents, the jury could have improperly concluded that the
defendant inflicted violent, physical force against the complainant during the
charged act because he inflicted violent, physical force against her several
weeks prior. See id. (“there was a high likelihood that the jury would conclude
that the defendant struck her daughter in the charged incident merely because
she had struck her daughter on a previous occasion”). The danger of unfair
prejudice, therefore, was significant.

¶15 The probative value of the evidence, however, was comparatively
minor. The trial court reasoned that the July 2020 incident was relevant to
prove that the defendant had a purpose to terrorize the complainant during the
charged incident. However, as the defendant argues, the State asserted in its
motion in limine that during the charged incident, the defendant threatened
the victim multiple times, including a threat to break her neck and to kill her.
We conclude that it was unnecessary to admit additional evidence of a prior
assault to show that the defendant had a purpose to terrorize when the
defendant threatened to kill the complainant while he was choking her.1 See

1 This separate evidence also indicates why two cases cited by the State are inapposite. The State
cites State v. Brewster, 147 N.H. 645 (2002), and State v. Richardson, 138 N.H. 162 (1993). In
both cases, we concluded that the risk of unfair prejudice did not substantially outweigh the
probative value of the prior bad act evidence because the prior bad acts were relevant to intent, an
issue put in serious dispute by the defendants’ arguments that they lacked the necessary intent.
Brewster, 147 N.H. at 650; Richardson, 138 N.H. at 166-67. Here, although intent was not
conceded, intent was not in serious dispute such that additional evidence was required because

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State v. Thomas, 168 N.H. 589, 602-03 (2016) (when balancing the prejudice
and probative value of the evidence, one factor we consider is the extent to
which the issue upon which the evidence is offered is established by other
evidence). Here, the charges that the defendant threatened the complainant, if
credited by the jury, clearly established his intent to terrorize her. Accordingly,
the probative value of the evidence of the July 2020 incident was substantially
outweighed by the danger of unfair prejudice, and thus, the trial court
unsustainably exercised its discretion by admitting this evidence under Rule
404(b).

¶16 We next address the trial court’s admission of evidence that the
complainant obtained a restraining order against the defendant on August 6,
and that the defendant placed a phone call to the complainant in violation of
that order in October 2020. The trial court ruled that this evidence was
admissible because it was relevant to the complainant’s credibility, provided
context to the nature of her relationship with the defendant and, as the trial
court framed the issue, told “the whole story.” The defendant challenges the
trial court’s rulings as to both the restraining order and the subsequent
October 2020 phone call.

¶17 The defendant argues that the trial court’s ruling was erroneous
because “[u]ntil and unless [the complainant’s] credibility was impeached and
the State clearly demonstrated that the restraining order and call evidence, if
believed, would rebut . . . that impeachment, there was no basis to find the
evidence relevant and admissible for a non-propensity purpose” as required to
admit evidence of prior bad acts under Rule 404(b). The State argues that the
trial court sustainably exercised its discretion because the evidence “tended to
make the victim’s characterization of her relationship with the defendant more
likely,” which established a non-propensity purpose. We agree with the
defendant and conclude that evidence that the complainant obtained a
restraining order and that the defendant violated that order by making the
October 2020 phone call was inadmissible.

¶18 As we previously explained, the third prong of the Rule 404(b)
analysis requires that the probative value of the evidence not be substantially
outweighed by the danger of unfair prejudice to the defendant. State v. Roy, 167 N.H. 276, 288 (2015). This is the same test we apply when determining
whether evidence is admissible under New Hampshire Rule of Evidence 403.
Id.

¶19 Here, the trial court admitted evidence that the complainant
obtained a restraining order as relevant to bolster her credibility. Despite the
relevance of this evidence to the complainant’s credibility, its probative value

the defendant did not place his intent squarely at issue. See Brewster, 147 N.H. at 650;
Richardson, 138 N.H. at 166-67.

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was substantially outweighed by the unfair prejudice that its admission caused
to the defendant’s case. The admission of this evidence allowed the jury to
improperly conclude that another court had previously credited the
complainant’s version of events and had found that a restraining order was
necessary in order to protect her from the defendant. Cf. State v. Yates, 152
N.H. 245, 251 (2005) (concluding that testimony characterizing an event as a
crime were “highly and unfairly prejudicial”). Because it appears that the order
was obtained under a different (and lower) burden of proof than the State’s
burden of proof at trial, admitting such evidence further exacerbated the
prejudice to the defendant’s case. Compare State v. Walsh, 139 N.H. 435, 437
(1995) (“The State must prove beyond a reasonable doubt all the elements of
the crime charged.” (emphasis added)), with RSA 173-B:5, I (2022) (“Upon a
showing of abuse of the plaintiff by a preponderance of the evidence, the court
shall grant such relief as is necessary to bring about a cessation of abuse.”
(emphasis added)).

¶20 In addition, evidence that the complainant obtained a restraining
order against the defendant, and that he later violated it, relied upon improper
propensity inferences. In order to introduce subsequent bad acts pursuant to
Rule 404(b), the State must meet its burden of demonstrating the relevance of
the evidence. See State v. Russell, 159 N.H. 475, 483 (2009); N.H. R. Ev.
404(b). To establish the relevance of such evidence, the State must articulate
the precise chain of reasoning by which the offered evidence will tend to prove
or disprove an issue actually in dispute, without relying upon forbidden
inferences of predisposition, character, or propensity. Russell, 159 N.H. at
483. That chain of reasoning must demonstrate a sufficient logical connection
between the acts and the permissible purpose for which the State offers the
evidence. Id. For subsequent bad act evidence to satisfy the relevance prong of
our three-pronged test, the act must be fairly close in time and in some
significant way connected to material events constituting the crimes charged.
Id.

¶21 The trial court concluded that evidence of the restraining order was
relevant because it provided context to the complainant’s relationship with the
defendant. Adopting the trial court’s reasoning assumes that the defendant’s
conduct required judicial intervention to protect the complainant. The trial
court explained in its order that the “fact that the victim took out a no-contact
restraining order may be admitted” because “[his] efforts at contacting her are
relevant, and [probative].” The relevance of this act to the charged crime,
however, is premised on the assumption that the defendant was willing to
break the law whenever it interfered with his relationship with the
complainant. The admission of this evidence relies upon propensity inferences.
Accordingly, evidence that the complainant obtained a restraining order and
that the defendant violated that order by making the October 2020 phone call
was inadmissible.

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 [¶22] Relatedly, the trial court ruled that the phone call placed in October
2020 in violation of the restraining order was admissible, in part, to tell “the
whole story.” In effect, telling the whole story of the parties’ relationship is
synonymous with context. See State v. Melcher, 140 N.H. 823, 829-30 (1996)
(identifying relationship between the parties as context). Although Rule 404(b)
does not specify that “other acts evidence” is admissible to prove context, it
allows such evidence to be admitted “for any purpose other than to prove the
character of a person in order to show that the person acted in conformity
therewith.” Id. at 829 (quotation omitted). Context may be among those
purposes. Id. “To be relevant, this evidence must still have some direct
bearing on an issue actually in dispute, apart from its tendency to show
propensity.” Id.

¶23 Context, in this instance, however, is “merely a synonym for
propensity.” Id. at 830 (quotation omitted). Finding that telling the whole story
— that the complainant obtained a restraining order and, months after the
charged conduct, the defendant violated that order by making an unanswered
phone call — is relevant requires assuming that the defendant had the
tendency to do “bad things” when it came to his relationship with the
complainant. Because Rule 404(b) does not permit any link in the chain of
inferences supporting the relevance of this evidence to be derived from the
conduct’s tendency to show character or disposition, we conclude that the
evidence of the phone call placed in violation of the restraining order was
inadmissible. See Tufano, 175 N.H. at 667 (quotation omitted). Therefore, the
trial court unsustainably exercised its discretion by admitting this evidence.

¶24 The State nevertheless argues that, if the trial court’s evidentiary
rulings were erroneous, any error was harmless. To establish harmless error,
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. Unlike our
review of a trial court’s pretrial, evidentiary rulings, our harmless error analysis
requires that we consider the other evidence presented at trial as well as the
character of the erroneously admitted evidence itself. See id. 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.

¶25 The factors that we have considered in assessing whether an error
is harmless beyond a reasonable doubt 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 to 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

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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.

¶26 We conclude that the trial court’s errors in this case were not
harmless. We have recognized that “unfair prejudice is inherent in evidence of
other similar crimes or prior convictions.” State v. Bassett, 139 N.H. 493, 502
(1995). The trial court committed three distinct errors here by admitting
evidence of the July 2020 incident, the restraining order, and the October 2020
phone call made in violation of a restraining order. Admitting evidence of the
restraining order and the defendant’s violation of it compounded the court’s
initial error in admitting the July 2020 incident. As we previously observed,
the evidence of the July 2020 incident was substantially similar to the charged
offense. It depicted the defendant as someone who responded to arguments
with violence. Such a depiction was inflammatory in nature. Moreover, the
phone call made in violation of a restraining order, although not sensational,
demonstrated that the defendant had a tendency to violate the law when it
interfered with his relationship with the complainant. The admission of the
restraining order also signaled to the jury that another court had imposed legal
restrictions regarding the defendant’s contact with the complainant in order to
protect her.

¶27 In fact, the complainant’s testimony on the topic of the October
2020 phone call exemplified why the admission of this evidence was not
harmless beyond a reasonable doubt. The complainant testified that the phone
call made her feel as though the restraining order was “not going to stop [the
defendant] from killing [her].” Combined with the evidence of the prior assault,
this erroneously admitted evidence portrayed the defendant as a dangerous, if
not deadly, abuser. Moreover, the court took no curative steps and gave the
jury no limiting instruction as to the permissible purposes for which it could
consider the Rule 404(b) evidence. The jury, therefore, was free to consider
this evidence for any purpose and conclude that a court had previously decided
that a restraining order needed to be issued against the defendant in order to
protect the complainant. That portrayal may have persuaded the jury to
discredit the defendant’s theory at trial that the complainant was lying. In its
closing, the State acknowledged that “the crux of this case” was the
complainant’s testimony. Because this case hinged upon the credibility of the
complainant’s testimony, the combined effect of the admission of this evidence
could have led the jury to credit her testimony and dismiss any evidence
contradicting the State’s evidence. Therefore, we cannot conclude, beyond a
reasonable doubt, that the jury’s guilty verdicts were unaffected by the
erroneously admitted evidence.2

2 We have considered the State’s remaining arguments and conclude that they do not warrant

further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

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 III. Conclusion

¶28 For the foregoing reasons, we conclude that the trial court erred in
determining that evidence regarding the July 2020 assault, the restraining
order, and the October 2020 phone call made in violation of the order was
admissible. We further conclude that those errors were not harmless beyond a
reasonable doubt. Accordingly, we reverse and remand.

Reversed and remanded.

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

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