State v. Cherry

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2024-0245
Citation: State v. Cherry, 2026 N.H. 22

THE STATE OF NEW HAMPSHIRE

v.

MARCUS CHERRY

Argued: November 6, 2025
Opinion Issued: June 3, 2026

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.

Rothstein Law LLC, of Exeter (David M. Rothstein on the brief and
orally), for the defendant.

MACDONALD, C.J.

¶1 The principal question in this appeal is whether evidence that the
defendant owned and possessed firearms was relevant to prove that he was a
drug dealer. The defendant, Marcus Cherry, appeals his convictions following
a jury trial in Superior Court (Anderson, J.) on one count of conspiracy to sell a

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controlled drug, four counts of possession of a controlled drug with intent to
sell, one count of sale of a controlled drug, and one count of being a drug
enterprise leader. See RSA 318-B:2, I (2025); RSA 629:3 (2016); RSA 318-B:2,
XII (2025). We hold that the trial court erred when it allowed certain testimony
that the defendant owned and possessed firearms and when it joined the sale
of a controlled drug charge with the other charges for trial. Accordingly, we
reverse the defendant’s convictions, vacate the trial court’s joinder order in
part, and remand.

I. Background

¶2 The jury could have found the following facts, or they are otherwise
supported by the record. On November 3, 2021, a police detective authored a
sworn probable cause statement (the “affidavit”) in support of an application for
an arrest warrant for the defendant and search warrants for 508 Dubuque
Street and 51 Cumberland Street in Manchester. The trial court issued the
arrest and search warrants. The defendant was arrested, and searches were
executed at 508 Dubuque Street and 51 Cumberland Street. The police
observed the defendant’s Honda Passport while executing the searches and
they subsequently received and executed a search warrant for that vehicle.

¶3 The defendant was indicted on numerous criminal charges. The
State moved to join all the charges for trial. The defendant objected, arguing
that the charges were not related and that joining them for trial would not be in
the best interests of justice. The court granted the State’s motion in part and
joined the drug-related charges for trial.

¶4 Before trial, the defendant moved to suppress the evidence seized in
the searches of 508 Dubuque Street, 51 Cumberland Street, and his Honda
Passport. The defendant alleged that the affidavit contained intentional and
material misrepresentations by a law enforcement officer and he requested a
pretrial hearing. The trial court denied the motion without a hearing.

¶5 The State filed a pretrial motion to admit evidence of: (1) the
defendant’s ownership and possession of firearms; and (2) firearms which were
found in the possession of alleged co-conspirators. The defendant objected,
arguing that the evidence is irrelevant. The trial court ruled that the firearms
evidence is relevant and admissible because the possession of firearms is
“inextricably intertwined” with the charged conduct.

¶6 At trial, the State presented numerous pieces of firearms evidence.
Some of the evidence established only that the defendant owned and possessed
firearms in general. For example, one witness agreed that the defendant
“always had a gun” on him and “[a]lways had one in his car.” Another witness
testified that he saw the defendant with “handguns” in his car on “a number of
different occasions.” That same witness admitted he told the police that the

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defendant was “selling guns,” but that he “didn’t know where he was getting
them from.” He also affirmed that he “saw [the defendant] with guns” in 2021
and June of 2022, that he saw the defendant “with firearms in his vehicles,”
and that the defendant was “pretty open about” possessing firearms and kept
them on his “[l]ap, on the passenger seat, [and in] the compartment on the
driver’s side door.” There was other testimony to a similar effect, i.e., claiming
that the defendant always carried a handgun, always kept one in his car, and
carried a backpack filled with assorted firearms.

¶7 Some of the firearms evidence, however, was more closely connected
to the charged crimes. Specifically, the State introduced evidence establishing
that: (1) a revolver and shotgun were found in the search of an alleged co-
conspirator’s vehicle along with illegal drugs; and (2) the defendant had been
seen on prior occasions possessing a similar looking revolver to the one found
in that search. During trial, the defendant renewed his objection to the
admission of the revolver and shotgun evidence. The trial court overruled the
objection.

¶8 The State put on other evidence that the defendant sold drugs and
was a drug enterprise leader, including testimony that he sold a “white powder
substance” to Jessica Furlow and Laura Williams which was tested and found
to contain fentanyl. This sale served as the basis for the sale of a controlled
drug charge. At the close of the State’s case, the defendant moved to dismiss
the sale of a controlled drug charge for insufficient evidence. The trial court
denied the motion.

¶9 The defendant was found guilty on one count of conspiracy to sell a
controlled drug, four counts of possession of a controlled drug with intent to
sell, one count of sale of a controlled drug, and one count of being a drug
enterprise leader. This appeal followed.

II. Analysis

¶10 On appeal, the defendant argues that the trial court erred by: (1)
admitting firearms evidence; (2) failing to hold a pretrial hearing on his motion
to suppress; (3) denying his motion to dismiss the sale of a controlled drug
charge; and (4) joining the sale of a controlled drug charge with the other
charges for trial. We address these arguments in turn.

A. Firearms Evidence

¶11 The defendant argues that the trial court erred when it admitted
four categories of firearms evidence: (1) evidence that the defendant owned and
possessed firearms in general; (2) evidence that a Magnum .357 revolver with a
scope attachment and a Landor Arms shotgun were seized in the search of an
alleged co-conspirator’s vehicle; (3) evidence that the defendant had been seen

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in possession of a Magnum .357 revolver with a scope attachment; and (4)
evidence that the defendant gave a Glock handgun to an alleged co-
conspirator. The defendant asserts that this evidence is inadmissible “other
acts” evidence pursuant to Rule 404(b) of the New Hampshire Rules of
Evidence.

¶12 We review the trial court’s ruling on the admissibility of evidence for
an unsustainable exercise of discretion, and will reverse only if it was clearly
untenable or unreasonable to the prejudice of the defendant’s case. State v.
Rouleau, 176 N.H. 400, 405 (2024), 2024 N.H. 2, ¶13. 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. We limit our review to considering only the
record before the trial court when it rendered its decisions. See id. at 406,
2024 N.H. 2, ¶16.

¶13 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). The proper test to apply when deciding the admissibility
of “other acts” evidence depends upon whether the evidence in question is
“intrinsic” or “extrinsic” evidence. Rouleau, 176 N.H. at 405, 2024 N.H. 2, ¶14
(quotations omitted).

¶14 Rule 404(b) applies only to extrinsic evidence, i.e., evidence of other
crimes, wrongs, or acts. See State v. Thomas, 168 N.H. 589, 599 (2016).
Extrinsic evidence is admissible if it satisfies the three prongs of Rule 404(b),
namely that: (1) the evidence 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).

¶15 “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,” both acts are part of a “single criminal
episode,” or the other acts were “necessary preliminaries” to the crime charged.
Rouleau, 176 N.H. at 406, 2024 N.H. 2, ¶15 (quotations omitted). “Intrinsic” or
“inextricably intertwined” evidence will have a causal, temporal, or spatial

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connection with the charged crime. Id. (quotations omitted). Typically, such
evidence is a prelude to the charged offense, is directly probative of the charged
offense, arises from the same events as the charged offense, forms an integral
part of a witness’s testimony, or completes the story of the charged offense. Id.
Rule 403 of the New Hampshire Rules of Evidence governs the admissibility of
intrinsic evidence. See State v. Dion, 164 N.H. 544, 551 (2013).

i. Defendant’s Ownership and Possession of Firearms

¶16 Before trial, the State moved to admit evidence that the defendant
owned and possessed firearms. The State alleged that witnesses would testify
to having “seen the Defendant with firearms at various times in the course of
their involvement with the Defendant.” The State primarily argued that this
evidence is intrinsic to the charged offenses and not subject to Rule 404(b), but
alternatively asserted that if the evidence is extrinsic then it should be
admitted under Rule 404(b). The State argued that this evidence is relevant
because “it is well established that illegal trafficking in controlled substances
routinely involves the possession of firearms by those involved to protect
themselves, the controlled substances, and the large amounts of cash that are
associated with illegal trafficking.” According to the State, the defendant’s
ownership and possession of guns shows his “intention, preparation, and plan”
to “engage in a conspiracy to sell controlled drugs.”

¶17 The trial court agreed with the State, explaining that “[t]he Court’s
experience in handling cases in this jurisdiction is very consistent with the
assertions made by the State” and the “[p]ossession of handguns almost always
accompanies the possession of large amounts of controlled substances.” The
trial court found that “the possession of guns is integrated within the Drug
Enterprise Leader and drug conspiracy charges and thus inextricably
intertwined with the conduct that forms the basis of these charges.” Therefore,
the court ruled that “[t]his evidence of possession of guns is . . . not subject to
Rule 404(b).”

¶18 On appeal, the defendant argues that the trial court erred when it
ruled that evidence establishing that he owned and possessed firearms is
inextricably intertwined with the charged conduct. We agree.

¶19 The State has failed to demonstrate that this evidence is
inextricably intertwined with the charged conduct. Any connection offered by
the State between this firearms evidence and the charged offenses is too
attenuated to render this evidence intrinsic to the charged offenses. See
Rouleau, 176 N.H. at 406, 2024 N.H. 2, ¶¶15, 17. The State did not allege in
its motion that these firearms were connected to the commission of the charged
acts or that the defendant was engaging in any of the charged conduct at the
times that he was seen with these guns. Indeed, the State has failed to
articulate any specific connection between this evidence and the charged

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conduct other than reasoning that, because the defendant was seen with these
guns during the same time period that he was allegedly leading a drug
enterprise, they must be connected. This evidence therefore does not arise
from the same events as the charged offenses. See id., 2024 N.H. 2, ¶15.

¶20 Further, this evidence does not complete the story of the charged
offenses or form an integral part of any witness’s testimony. See id. Testimony
that the defendant owned and possessed guns in general was unnecessary to
describe observations of the defendant leading a drug enterprise, conspiring to
sell drugs, or selling drugs. In short, evidence that the defendant was
frequently seen carrying firearms — an otherwise lawful activity — is too
attenuated to show that the defendant’s ownership and possession of these
firearms is inextricably intertwined with the charged conduct, and this
testimony is extrinsic evidence. See id., 2024 N.H. 2, ¶¶15, 17.

¶21 Because this testimony is extrinsic evidence, it should have been
analyzed under Rule 404(b). See State v. Wells, 166 N.H. 73, 79-81 (2014). We
will, therefore, undertake the analysis required by Rule 404(b) to determine
whether there is only one way the trial court could have ruled as a matter of
law. See id. at 79; State v. Hayward, 166 N.H. 575, 583 (2014) (explaining that
when “a discretionary decision is at issue and the trial court has not exercised
that discretion, we may sustain the trial court’s ruling on a ground upon which
it did not rely only if there is only one way the trial court could have ruled as a
matter of law” (quotation omitted)).

¶22 Before evidence of other acts may be admitted pursuant to Rule
404(b), the State must demonstrate, among other things, that such evidence is
“relevant for a purpose other than proving the person’s character or
disposition.” N.H. R. Ev. 404(b)(2)(A). To meet this burden, the 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. See Thomas, 168 N.H. at
599. That chain of reasoning must demonstrate a sufficient logical connection
between the prior acts and the permissible purpose for which the State offers
the evidence. Id. To be relevant, other acts must be in some significant way
connected to material events constituting the crime charged and not so remote
in time as to eliminate the nexus. See id. at 599-600.

¶23 The State argues that evidence the defendant owned and possessed
guns is relevant to proving that the defendant is guilty of the drug enterprise
and conspiracy charges because firearms are tools of the drug trade. Citing
federal court decisions, the State asserts that the defendant’s ownership of
guns and other tools of the drug trade tends to show he was involved in drug-
dealing activity. Those federal cases, however, do not support that there is a
per se rule that gun evidence is always admissible in drug cases. See United

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States v. Price, 13 F.3d 711, 718-19 (3d Cir. 1994) (stating that, “[w]hile we do
not suggest that every previous weapons charge is probative in every drug
conspiracy case,” evidence of (1) a previously-dismissed unlawful possession of
a firearm charge and (2) the defendant’s possession of that gun was probative
because he carried it during the duration of the conspiracy while he was
allegedly dealing drugs).

¶24 Instead, the cases address admitting such evidence when the guns
were seized along with the drugs, the defendants were carrying the guns while
dealing drugs, or there was some other logical connection between the guns at
issue and the drug-dealing operations. See United States v. Wiener, 534 F.2d
15, 16, 18 (2d Cir. 1976) (holding that a loaded gun was relevant to prove drug
charges when it was found in the defendant’s apartment — the alleged “focal
point of the conspiracy” — inside of a bag that also contained drugs); United
States v. Martinez, 938 F.2d 1078, 1082-83 (10th Cir. 1991) (holding that a
submachine gun was relevant to proving drug charges when it was seized with
$69,000 in cash, half a pound of cocaine, and a triple-beam scale); United
States v. Beverly, 921 F.2d 559, 562-63 (5th Cir. 1991) (holding that guns were
relevant to prove drug charges when one defendant carried a gun while selling
drugs and when “[t]he apartment where the guns were found was being used
as both the storage site and the retail outlet for [the defendants’] cocaine
distribution”).

¶25 While we agree that firearms may be used as tools of the drug
trade, “not every firearm the police may come across is inherently
incriminating.” State v. Folds, 172 N.H. 513, 519-20 (2019) (concluding that
gun found in the defendant’s residence along with drugs and cash was
evidence of drug dealing). The State has not shown that the defendant’s
ownership and possession of the guns discussed in this subsection is “in some
significant way connected to material events constituting the crime charged”
and has not demonstrated “a sufficient logical connection” between the
defendant’s ownership and possession of these guns and the purpose for which
the State seeks to admit this evidence. Thomas, 168 N.H. at 599-600. In the
absence of such a connection, the trial court’s reliance on its experience
handling other cases and on its personal observations that the “[p]ossession of
handguns almost always accompanies the possession of large amounts of
controlled substances” cannot justify admitting this evidence. Accordingly, we
hold that this firearms evidence is irrelevant and inadmissible as a matter of
law. See N.H. R. Ev. 404(b); see also N.H. R. Ev. 402 (“Irrelevant evidence is
not admissible.”).

ii. Firearms Seized in Co-Conspirator’s Vehicle

¶26 The defendant next argues that the trial court erred when it
admitted evidence of two firearms that were seized during a search of an
alleged co-conspirator’s vehicle. Two police officers testified that law

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enforcement searched a vehicle owned by an alleged co-conspirator and seized
a Magnum .357 revolver with a scope attachment, a Landor Arms shotgun, and
illegal drugs.

¶27 The trial court ruled that this evidence is inextricably intertwined
with the charged conduct and admissible as intrinsic evidence. We hold that
the trial court sustainably exercised its discretion. Evidence that those
firearms were seized in the search of an alleged co-conspirator’s vehicle is
inextricably intertwined with the charged conduct because those firearms
share a “causal, temporal, or spatial connection with the charged crime.”
Rouleau, 176 N.H. at 406, 2024 N.H. 2, ¶15. Indeed, the revolver and shotgun
evidence “arises from the same events as the charged offense” because those
guns were found in a vehicle that also contained illegal drugs, and those drugs
form the basis for some of the charges. Id. Further, those guns are “directly
probative” of the charged offenses because the presence of the revolver and
shotgun with those drugs would tend to show that those guns were being used
as tools of the drug trade, i.e., they were present in case necessity arose to
protect the product. Id.; cf. Folds, 172 N.H. at 519-20 (holding that gun was
evidence of drug dealing when found in the defendant’s residence with drugs
and cash because of the “close relationship between drugs and firearms in the
narcotics trade” and “the firearm’s close proximity to illegal drugs”). This
evidence is therefore inextricably intertwined with the charged conduct and not
subject to Rule 404(b).

¶28 Instead, the admissibility of this evidence is governed by Rule 403.
See Dion, 164 N.H. at 551. The defendant has not sufficiently developed an
argument that this evidence does not satisfy the requirements of Rule 403 and,
accordingly, has failed to demonstrate that the trial court unsustainably
exercised its discretion in admitting it.

iii. Magnum .357 Revolver with a Scope Attachment

¶29 Along with evidence that a Magnum .357 revolver with a scope
attachment was seized in the search of an alleged co-conspirator’s vehicle,
multiple witnesses testified that they saw the defendant in possession of a
revolver of that description on prior occasions. One witness testified that he
saw a revolver of that description in the defendant’s possession while he was
purchasing another firearm from the defendant. Another witness affirmed that
he saw a revolver of that description in the defendant’s possession in “the
summer into the fall of 2021” when the defendant came to his house and
showed it to him. The defendant argues that the trial court erred when it
admitted this evidence.

¶30 The trial court ruled that this evidence is admissible as intrinsic
evidence because it is inextricably intertwined with the charged conduct. We
disagree. The State’s motion did not allege, and neither witness testified, that

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the defendant was engaging in any of the charged conduct — i.e., possessing
and selling controlled drugs, furthering a conspiracy to sell a controlled drug,
or leading a drug enterprise — when they saw him with a similar revolver in
those instances. The fact that one witness testified that he saw the defendant
with a similar revolver sometime in the summer or fall of 2021, the same time
period that the defendant was allegedly leading a drug enterprise, is
insufficient to show that this evidence shares a “causal, temporal, or spatial
connection with the charged crime.” Rouleau, 176 N.H. at 406, 2024 N.H. 2,
¶15. Accordingly, this testimony is extrinsic evidence, and it must satisfy the
requirements of Rule 404(b) to be admitted. See id. at 405, 2024 N.H. 2, ¶14.

¶31 As explained above, because the trial court did not exercise its
discretion to determine whether this evidence is admissible under Rule 404(b),
we may affirm upon that ground only if there is only one way the trial court
could have ruled as a matter of law. See Hayward, 166 N.H. at 583. Here,
testimony that the defendant had previously been seen with a Magnum .357
revolver with a scope attachment is relevant because of the firearm’s distinctive
nature, and because the description of the revolver matches the revolver found
in the co-conspirator’s vehicle with illegal drugs. Because of that
distinctiveness and similarity, testimony that the defendant was previously
seen in possession of such a revolver has some probative value to proving that
he was involved in those drug-dealing activities. See N.H. R. Ev. 404(b)(2)(A)
(for evidence to be admissible under Rule 404(b), it must be relevant for a
purpose other than proving the person’s character or disposition).
Nonetheless, testimony that the defendant was seen in possession of firearms
carries a danger of unfair prejudice in the context of a trial for drug-trafficking
charges. See N.H. R. Ev. 404(b)(2)(C) (for evidence to be admissible under Rule
404(b), the probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice); cf. Folds, 172 N.H. at 519
(recognizing the close relationship between drugs and firearms in the narcotics
trade). Weighing these two considerations, we cannot hold that the only way
the trial court could have ruled as a matter of law was to have admitted the
testimony that the defendant was seen in possession of a Magnum .357
revolver with a scope attachment on prior occasions, and we therefore cannot
affirm the trial court’s ruling admitting this testimony. See Hayward, 166 N.H.
at 583.

iv. Glock Handgun Found in Co-Conspirator’s Possession

¶32 The defendant argues that the trial court erred when it admitted
evidence that he gave a Glock handgun to an alleged co-conspirator. We
construe the defendant’s argument as challenging the trial court’s pretrial
ruling admitting evidence establishing that he gave a Glock handgun to an
alleged co-conspirator. We need not decide whether the trial court erred in its
ruling, however, because at trial evidence of that Glock handgun was not
introduced by the State. Instead, on cross-examination by defense counsel,

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the alleged co-conspirator admitted that he lied to the police about the
defendant giving him that Glock handgun. Because evidence of that Glock
handgun was introduced by the defendant rather than the State, we need not
address the merits of the trial court’s pretrial ruling with respect to that
firearm.

v. Conclusion

¶33 In summary, we hold that the trial court sustainably exercised its
discretion when it admitted evidence that a Magnum .357 revolver with a scope
attachment and a Landor Arms shotgun were seized in the search of an alleged
co-conspirator’s vehicle along with illegal drugs. The trial court erred, however,
when it admitted, as intrinsic to the charged offenses, evidence that the
defendant: (1) owned and possessed firearms, without a sufficient connection
having been shown to the charged crimes; and (2) was seen in possession of a
Magnum .357 revolver with a scope attachment on prior occasions.

¶34 The erroneous admission of evidence does not always require
reversal. See State v. Forbes, 157 N.H. 570, 577 (2008). However, the State
has not argued harmless error. See id. Therefore, we must conclude that the
defendant met his burden on appeal, reverse his convictions, and remand. See
id.

¶35 Although we reverse because of the erroneous admission of
firearms evidence, we will address the defendant’s remaining arguments to the
extent that they are preserved because: (1) they are likely to arise again on
remand, see State v. Marti, 143 N.H. 608, 611 (1999) (in the interest of judicial
economy, we will address issues likely to arise on remand); and (2) if the
defendant is correct that the State presented insufficient evidence as a matter
of law on the sale of a controlled drug charge, then he could not be retried for
that charge on remand, see State v. Price, 177 N.H. __, __ (2026), 2026 N.H. 3,
¶11 (explaining that a determination that the evidence was legally insufficient
to convict the defendant precludes a second trial on that charge).

B. Motion to Suppress

¶36 The defendant argues that the trial court erred when it denied his
motion to suppress the evidence seized from 508 Dubuque Street, 51
Cumberland Street, and his Honda Passport without a hearing. He asserts
that he was entitled to a pretrial hearing on his motion pursuant to Rule
15(b)(2) of the New Hampshire Rules of Criminal Procedure and our case law.
We hold that the defendant has failed to preserve these arguments.

¶37 The defendant did not argue before the trial court that Rule 15(b)(2)
requires such a hearing. Accordingly, this argument is not preserved for

11
appellate review, and we decline to address it. See State v. Van Uden, 176 N.H.
772, 777 (2024), 2024 N.H. 47, ¶14.

¶38 The defendant further argues that, pursuant to our case law, he
was entitled to a pretrial hearing on his motion to suppress because the
affidavit in support of the application for the search warrant contained
intentional and material misrepresentations by a law enforcement officer. The
defendant cites only State v. Valenzuela, 130 N.H. 175 (1987), in support of his
argument. Valenzuela does not provide the right to such a hearing.

¶39 That right is provided by the State Constitution. See Valenzuela,
130 N.H. at 191 (explaining that “the rule under [Part I, Article 19 of the New
Hampshire Constitution] is that a defendant is entitled to be heard in attacking
a facially valid warrant” after making a preliminary showing that the police
made knowing or reckless misstatements that were material for the finding of
probable cause (emphasis added)); State v. Spero, 117 N.H. 199, 205 (1977)
(holding that “to ensure that search warrants are issued only upon probable
cause, as required by part I, article 19 of the New Hampshire Constitution,” a
defendant is entitled to a hearing to attack a facially sufficient affidavit once a
showing has been made that the affidavit contains material misrepresentations
by a police officer (emphasis added)).

¶40 To preserve a state constitutional claim, the defendant must: (1)
raise it in the trial court; and (2) specifically invoke a provision of the State
Constitution in his brief. State v. Oakes, 161 N.H. 270, 285 (2010); State v.
Dellorfano, 128 N.H. 628, 632 (1986). Although the defendant cites state case
law in support of his argument, he does not specifically invoke a state
constitutional provision in this section of his brief. Accordingly, this argument
is not preserved for appellate review, and we decline to address it. See State v.
Carter, 146 N.H. 359, 361 (2001) (declining to review a defendant’s state
constitutional argument because, despite relying upon New Hampshire case
law, he did not invoke a specific provision of the New Hampshire Constitution
in his brief).

C. Sufficiency of the Evidence

¶41 The defendant argues that the trial court erred by failing to dismiss
the sale of a controlled drug charge for insufficient evidence. A challenge to the
sufficiency of the evidence raises a claim of legal error, which we review de
novo. Price, 177 N.H. at __, 2026 N.H. 3, ¶7. When considering a challenge to
the sufficiency of the evidence, we objectively review the record to determine
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt, considering all the evidence and all
reasonable inferences therefrom in the light most favorable to the State. Id.

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[¶42] The defendant was charged with the sale of a controlled drug;
specifically, he was accused of selling “a fentanyl class drug in a quantity of
less than one gram” to Williams and/or Furlow. At trial, the State presented a
video of Williams and Furlow walking out of a hotel on the date of the charged
offense. Williams testified that they approached a vehicle that was being driven
by the defendant. Her testimony established that she “called [the defendant] to
get [her] cigarettes . . . and then the whole thing escalated that night . . . from
getting cigarettes to getting drugs.” She witnessed Furlow enter the vehicle
with the defendant and exit with something that Furlow did not have before,
but Williams could not see what it was. They then went back to the hotel room
and ingested a white powdery substance. Williams testified that Furlow told
her that the defendant sold Furlow the drugs that they were using. A bag
containing a white powdery substance was recovered from the hotel room, and
that substance was tested and found to contain fentanyl.

¶43 The defendant asserts that the trial court erred by admitting
Furlow’s hearsay statement that the defendant sold her the drugs and argues
that there was otherwise no direct evidence that he committed the charged
sale. We need not decide that question because it has no bearing on the issue
before us, i.e., whether the State presented sufficient evidence in support of the
sale of a controlled drug charge. This is so because, when “determining
whether the evidence was sufficient,” we “consider all the evidence, including
evidence that was erroneously admitted.” State v. Gordon, 161 N.H. 410, 418
(2011); see also State v. Horak, 159 N.H. 576, 582-83 (2010) (explaining that
we review for sufficiency of the evidence because where the evidence offered by
the State and admitted by the trial court — whether erroneously or not —
would have been sufficient to sustain a guilty verdict, the Double Jeopardy
Clauses of the New Hampshire and United States Constitutions do not
preclude retrial). Thus, we must consider the statement in our sufficiency
analysis even if it was admitted in error.

¶44 Williams’s testimony that Furlow told her that the defendant sold
Furlow the drugs, together with the lab test showing that the white powdery
substance recovered from the hotel room contained fentanyl, is sufficient
evidence that the defendant sold fentanyl to Furlow. Accordingly, we hold that
the State presented sufficient evidence for a rational trier of fact to find the
defendant guilty of the sale of a controlled drug charge and that the trial court
therefore did not err when it declined to dismiss the charge for insufficient
evidence. See Oakes, 161 N.H. at 276 (“The evaluation of witness credibility
and the weight given to witnesses’ testimony were issues for the jury to
resolve.” (quotation omitted)).

D. Joinder

¶45 Finally, the defendant argues that the trial court erred by joining
the sale of a controlled drug charge for trial with the other charges. We will

13
uphold the trial court’s decision to join the charges unless we conclude that
the decision constitutes an unsustainable exercise of discretion. State v. Bell, 175 N.H. 382, 390 (2022). To show that the trial court’s decision is
unsustainable, the defendant must demonstrate that the ruling was clearly
untenable or unreasonable to the prejudice of his case. Id.

¶46 Rule 20 of the New Hampshire Rules of Criminal Procedure
provides that “[i]f a defendant is charged with two or more related offenses,
either party may move for joinder of such charges. The trial judge shall join
the charges for trial unless the trial judge determines that joinder is not in the
best interests of justice.” N.H. R. Crim. P. 20(a)(2). The Rule further provides
that two or more offenses are related if they:

(A) Are alleged to have occurred during a single criminal episode;
or
(B) Constitute parts of a common scheme or plan; or
(C) Are alleged to have occurred during separate criminal episodes,
but nonetheless, are logically and factually connected in a manner
that does not solely demonstrate that the accused has a propensity
to engage in criminal conduct.

N.H. R. Crim. P. 20(a)(1).

¶47 Here, the trial court ruled that the charge of selling a controlled
drug was related to the charges of conspiracy to sell controlled drugs and the
defendant’s status as a drug enterprise leader because the charges constitute
parts of a common scheme or plan. The court explained that the “separately
charged incidents . . . serve as overt acts in the conspiracy charges and form
the basis of the drug enterprise leader charge” and that the charges all alleged
conduct committed during the same time period and involved the sale of
controlled drugs.

¶48 The distinguishing characteristic of a common plan is the existence
of a true plan in the defendant’s mind, which includes the charged crimes as
stages in the plan’s execution. Bell, 175 N.H. at 391. This analysis ensures
that the defendant was not merely taking advantage of opportunities as they
arose, but instead was exhibiting forethought and premeditation in his
scheming. Id. at 394.

¶49 “A person is a drug enterprise leader if he conspires with one or
more persons as an organizer, supervisor, financier, or manager to engage for
profit in a scheme or course of conduct to unlawfully . . . sell . . . any controlled
drug . . . .” RSA 318-B:2, XII. Put another way, a person must be the leader of
a plan with others to sell controlled drugs to be a drug enterprise leader. See
id. A trial court could reasonably conclude that individual drug sales carried
out while executing that plan are part of the overarching plan of leading a drug

14
enterprise. Cf. Bell, 175 N.H. at 394-95 (affirming trial court’s conclusion that
theft charges were related because each theft was part of the defendant’s
overarching plan to “‘keep[] his shop open’ by paying his expenses” while not
performing the promised services); State v. Breed, 159 N.H. 61, 70 (2009)
(affirming trial court’s conclusion that theft and fraud charges were related
because “each fraudulent transaction or theft in which the defendant engaged
was part of an overarching plan of furthering his increasingly profitable”
relationship with another business).

¶50 Applying these principles here, we hold that the trial court
sustainably exercised its discretion when it ruled that the charges were related.
The indictments alleged that the defendant was the leader of a conspiracy with
several individuals to unlawfully sell controlled drugs for profit. The conduct
giving rise to the sale of a controlled drug charge occurred in the same period
as the other charges and was listed as an overt act in furtherance of the
conspiracy charge. The stages of the plan included the defendant working in
concert with his co-conspirators to acquire illegal drugs, store those drugs in
stash houses, sell the drugs, and collect the profits. In this way, the trial court
could have reasonably found that the sale of a controlled drug, as charged, was
part of the defendant’s overarching plan of leading a drug enterprise because it
contributed to the success of that plan’s ultimate goal, i.e., leading a profitable
drug enterprise. Compare Bell, 175 N.H. at 394-95 (explaining that charges
can be related because charged acts constitute “part of an ‘overarching plan’
and, presumably, contribute[] not to the success of each other, but to the
success of that plan’s ultimate goal”), with State v. Brown, 156 N.H. 440, 441,
443-44 (2007) (holding that four individual drug sales were not related when a
police detective arranged the sales and “each of the sales . . . was a discrete
event” with “no common plan”).

¶51 The defendant argues that, nonetheless, the trial court
unsustainably exercised its discretion because joinder was not in the best
interests of justice. He asserts that the sale of a controlled drug charge was
“unfairly bolstered by evidence of extensive, unrelated drug activity.”

¶52 Rule 20 provides that the trial court shall join related charges for
trial “unless the trial judge determines that joinder is not in the best interests
of justice.” N.H. R. Crim. P. 20(a)(2). The “best interests of justice” standard in
Rule 20 means that

charges should be tried separately whenever it is deemed
appropriate to promote a fair determination of the defendant’s guilt
or innocence, which includes evaluating whether, in view of the
number of offenses charged and the complexity of the evidence to
be offered, the trier of fact will be able to distinguish the evidence
and apply the law intelligently to each offense.

15
State v. Brown, 159 N.H. 544, 555 (2009) (quotations omitted)
(interpreting former joinder rule in Superior Court Rule 97-A); cf. State v.
Rivera, 175 N.H. 496, 498, 502 (2022) (applying “best interests of justice”
standard in Brown to Rule 20 of the New Hampshire Rules of Criminal
Procedure, which superseded Superior Court Rule 97-A (quotation
omitted)). Joinder can give rise to other concerns of undue prejudice as
well, which may cause the best interests of justice to override conducting
a single trial. Brown, 159 N.H. at 555. For example, the State may gain
an unfair advantage if a weak case is joined with a strong case because
the joint trial of offenses creates a significant risk that the jury will
convict a defendant upon the weight of the accusations or upon the
accumulated effect of the evidence. See id.

¶53 Here, the trial court considered whether joinder was not in the best
interests of justice. It ruled that the defendant would not be “unfairly
prejudiced by this joinder as trial of the drug enterprise leader and conspiracy
charges will necessarily require the State to admit evidence of the alleged
conduct on specific dates.” In other words, the court reasoned, “the jury on the
drug enterprise charge will still hear all of the evidence from the other cases.”

¶54 The trial court’s reasoning is not incorrect, but its inverse is not
necessarily true. While the conspiracy and drug enterprise leader charges were
not unfairly bolstered by the joinder of the sale of a controlled drug charge, it
does not follow that the sale of a controlled drug charge was also not unfairly
bolstered by the joinder of the conspiracy and drug enterprise leader charges.
Joining the charges for trial allowed the State to present evidence that the
defendant conspired with multiple individuals to sell controlled drugs and was
the leader of a drug enterprise alongside a case where it only needed to prove
that the defendant sold fentanyl to either Williams or Furlow a single time. The
trial court did not discuss the best interests of justice factor from the
perspective of the sale of a controlled drug charge.

¶55 On the facts of this case, we are unable to determine as a matter of
law whether joinder of the sale of a controlled drug charge to the other charges
is not in the best interests of justice. Cf. State v. Miller, 155 N.H. 246, 252
(2007) (holding that we were “unable to decide whether the proposed cross-
examination was permissible under Rule 403 as a matter of law” and
remanding “to the trial court for resolution in the first instance”). Accordingly,
we vacate the trial court’s order to the extent that it joined the sale of a
controlled drug charge with the other charges and remand for the trial court to
resolve this question in the first instance.

¶56 In summary, we hold that the trial court erred when it admitted
certain testimony that the defendant owned and possessed firearms, and we
therefore reverse the defendant’s convictions and remand. We also vacate the
trial court’s ruling joining the sale of a controlled drug charge with the other

16
charges and remand for the trial court to consider, in the event of a retrial,
whether joinder of that charge is in the best interests of justice.

Reversed; vacated in part; and
remanded.

DONOVAN, COUNTWAY, and GOULD, JJ., concurred.