After a jury convicted Justin L. Roy of
two counts of kidnapping, see [New
Hampshire Revised Statutes] § 633:1, I(c), II; [one count of first degree assault, see [New Hampshire Revised Statutes] § 631:1, I(d), four counts of second degree
assault, see [New Hampshire Revised Statutes] § 631:2, I(c)-(d),
one count of criminal restraint, see [New Hampshire Revised
Statutes] § 633:2 (2007), and two counts of simple assault, see [New Hampshire Revised Statutes] § 631:2–a, I(a)-(b),
he appealed. State v. Roy, 2015 WL 222344 (Supreme Court of New Hampshire 2015). According
to the news story you can find here, he was “given a sentence of up to five
decades in prison.”
The facts giving rise to the prosecution arose in December,
2011, when Heather Downs
and three of her children, child 1
(eleven months old), child 2 (two years old), and child 3 (seven years old),
lived with [Roy] in his mobile home in Albany. [Roy] and Downs were in a domestic relationship,
but [he] was neither the father nor the legal guardian of the children.
After dinner on December 18, 2011, the
three children fell asleep, and [Roy] went outside to his heated shed to work
on a lawn mower. More than one person testified that on that night [he] drank
several alcoholic beverages and failed to take his prescription medications to
treat his depression and alcoholism. After visiting [Roy] in the shed around
10:30 p.m., Downs checked on the children and fell asleep shortly thereafter.
Downs awoke around 2:00 a.m. and
discovered child 2 was no longer inside the mobile home. She went outside and
found child 2 was inside the shed with [Roy]. Child 2 was wrapped in a blanket
and sleeping in a chair. In response to Downs's request that the defendant
bring the child inside, he stated that he would do so in about 20 minutes.
Downs then went back inside the mobile home and fell asleep.
Around 4:15 a.m., Downs awoke. She
looked outside and noticed shirts were covering the windows of the shed.
Realizing child 2 was apparently still inside the shed, Downs went outside and
knocked on the shed door. Downs testified that when she did this, [Roy] held the
shed door closed and would not let her in. Thereafter, she saw [him] rushing
from the shed to the mobile home, carrying child 2, who was only wearing a
diaper in the below-freezing weather. [Roy] put child 2 back in his bed,
and Downs fell asleep.
Around 5:00 a.m., [Roy] woke everyone
in the home by yelling. [He] screamed at child 1 and squirted both child 1 and
Downs with the contents of a bottle. [Roy] then went to the couch where child 3
had been sleeping, and jumped on the child's legs, bruising them. As child 3
tried to get up, [Roy] pushed him to the floor, causing the child to injure his
head and hand.
Downs then told [Roy] that she and the
children were leaving. In response, [he] went to where child 2 was sleeping,
grabbed his hand, and flung him to the floor. Child 2 failed to get up off of
the floor. [Roy] picked child 2 up, brought him into the bathroom, and
commented that the child was `f* * *ed.’ At this time, Downs noticed a bruise
on child 2's head.
Downs was eventually able to bring the
children outside to her car. When she went back inside the home to retrieve
some of her and her children's personal belongings, she asked [Roy] about the
bruise on child 2's head. [He] replied that child 2 had fallen into the wall of
the shed. He also told Downs to `Get your f'ing kids out of here. They're breathing
up and taking my air.’
Downs put her children in the car and
drove away. After making several stops, she drove to her mother's house. While
there, Downs noticed child 2's eyes were rolling back in his head and he had
multiple bruises on his abdomen that she had not seen the day before. She also
observed that child 2's rectum was bruised. She then called Memorial Hospital in
North Conway and drove to the hospital, arriving there with her children
shortly before 8 a.m.
When child 2 was taken into the
emergency room, he was unresponsive, with a low body temperature and low blood
pressure, and near death. . . . [H]e was transported by helicopter to Maine
Medical Center. Doctors there discovered child 2 had extensive bruising all
over his body, especially in his abdominal area. His pancreas was severely
injured, and he had lost approximately half of his blood due to internal bleeding.
Part of his bowel was torn, which had caused the contents of his bowel to spill
into his abdomen. Doctors performed multiple surgeries on him. During his
recovery, he required the use of a feeding tube for 11 months.
State v. Roy, supra. You can, if you are interested, read more
about the facts in the case, and the children, in the news stories you can find
here, here and here.
At trial, Child 2’s doctors testified that (i) his injuries
were not accidental, (ii) “injuries were more severe than those commonly
suffered by professional boxers,” and (iii) all of his injuries “were
consistent with having occurred within 24 hours of being brought to the
hospital.” State v. Roy, supra.
Prior to his trial, Roy filed a motion in limine “seeking to . . . exclude text messages obtained from
Downs's cell phone”. State v. Roy, supra. As Wikipedia explains, a motion in limine
asks the judge presiding over a trial to rule that certain evidence will not be
admitted at trial. As it also
notes, “probably the most frequent use of the motion in limine in
a criminal trial is to shield the jury from information concerning the
defendant that could possibly be unfairly prejudicial to her if heard at trial.”
The trial judge denied Roy’s motion in limine, which meant
the text messages were introduced into evidence. State v. Roy, supra. On
appeal, he claimed the judge “erred in failing to exclude the text messages
pursuant to New Hampshire Rules of Evidence 403 and 404(b).” State v. Roy, supra. The Supreme Court began its analysis of
his argument by explaining that the decision
`to admit or exclude evidence is within
the discretion of the trial court.’ State v. Furgal, 164 N.H.
430, 58 A.3d 648 (New Hampshire Supreme Court 2012). . . . `In 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.’ State v. Furgal, supra. `To show an
unsustainable exercise of discretion, the defendant must demonstrate that the
trial court's ruling was clearly untenable or unreasonable to the prejudice of
his case.’ State v. Furgal, supra.
State v. Roy,
supra.
The Supreme Court went on to point out that at Roy’s trial,
the prosecution offered into
evidence three text messages that were
sent to Downs by [Roy]. The first, sent on December 9, 2011, stated, `I'm done
helping you raise your retarded f* * *ing a* *holes. The smart thing to do
would have been to drown them at birth. They are f* * *ed up for life.’ The
second, sent on December 13, 2011, stated, `Yes, I think all your kids are
ugly. Don't mean I didn't love them. Yes, I think . . . [child 2] will be a
faggot and [child 3] will be a pedophile or [a] rapist. Your kids are f* * *ed
up. Calling it right.’ The final text was sent at about noon on December 19,
2011, when Downs was at the hospital with her children, in which [Roy] wrote, `What's
going on? I didn't do nothing or hurt no one.’
State v. Roy,
supra.
In denying Roy’s motion to exclude the messages, the trial
judge found that they were
“probative of [Roy’s] state of mind, and that, given the `allegations
of severely abusive conduct’ in this case, presenting them to the jury was not
`unduly inflammatory’ so as to require suppression pursuant to Rule 403.” State v. Roy, supra. In his appeal, Roy argued that
all three text messages should have
been excluded pursuant to Rule 403. . . . He asserts that the
probative value of the text messages is substantially outweighed by the danger
of unfair prejudice because the `primary purpose or effect’ of the text
messages was to `arouse the jurors' sense of horror and provoke their instinct
to punish,’ which is prohibited by Rule 403. In response, the State argues
that the defendant has `failed to show the [court's] rulings were clearly
untenable or unreasonable.’ See State v. Furgal, supra.
State v. Roy,
supra.
The Supreme Court goes on to explain that Rule 403 states
that
`[a]lthough 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.’ . . . `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.’ State
v. Addison, 160 N.H. 493, 8 A.3d 53 (New Hampshire Supreme Court 2010).
`Unfair prejudice is not, of course, 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. Addison, supra. `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.’
State v. Addison, supra. `The trial
court is in the best position to gauge the prejudicial impact of particular
testimony, and what steps, if any, are necessary to remedy that prejudice.’ State v. Addison, supra. `Thus, we give the trial court broad latitude
when ruling on the admissibility of potentially unfairly prejudicial evidence.’
State v. Addison, supra.
[Roy] was charged with, among other
crimes, kidnapping and first degree assault. One of the kidnapping charges
required proof that [he] acted with a purpose to terrorize child 2, . .
. and the first degree assault charge required proof that [he] `recklessly’
caused serious bodily injury to child 2. . . .
`A person acts purposely with respect to a material element of an
offense when his conscious object is to cause the result or engage in the conduct
that comprises the element.’ [New Hampshire Revised Statutes] § 626:2,II(a). `A person acts recklessly with respect to a material element of an
offense when he is aware of and consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from his
conduct.’ [New Hampshire Revised Statutes] § 626:2, II(a).
State v. Roy,
supra.
The court then applied these principles to the facts in this
case, noting that the
first two text messages, which were
sent within a few days of the incident, are probative of [Roy’s] hostile
feelings for the children. The text messages, therefore, made it more probable
than it would have been without them, see Rule 401, that [Roy] acted
with a `purpose to terrorize’ child 2 pursuant to the kidnapping charge, and to
purposely and, consequently, `recklessly’ cause serious bodily injury to child
2 pursuant to the assault charge. See
[New Hampshire Revised Statutes] § 626:2, III (`[w]hen recklessness
suffices’ to establish an element of an offense, `the element is also
established if the person acts purposely or knowingly’). . . . Although the first two text messages may be
prejudicial, given the nature of the crimes charged, we conclude that [Roy] has
failed to establish that their probative value was substantially outweighed by
the danger of unfair prejudice. . . . Therefore, the trial court's
admission of these text messages was sustainable.
As to the third text message, [Roy] offers
no developed argument regarding its relevancy, and, instead, focuses on whether
it is barred by Rule 403. Therefore, we deem any argument concerning the
third text's relevancy to be waived, and we turn to the Rule 403 analysis. .
. . Unlike the first two text messages, we conclude that the benign third
text message suggests no unfair prejudice. Therefore, the defendant has failed
to show that the trial court's ruling was clearly untenable or unreasonable.
State v. Roy,
supra.
Finally, Roy argued that the text messages should have been
excluded under New Hampshire Rule of Evidence 404(b), which states that
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.’
The evidence of prior crimes, etc. is usually referred to as
“prior bad act” evidence. In this case,
the Supreme Court began its analysis of the Rule 404(b) issue by noting that
[a]lthough we have considerable doubt
as to whether the timing and content of the third text message are such that it
can be properly considered to be a `prior bad act,’ because [Roy] argues that
all three text messages are prior bad acts, we will assume without deciding
that [they] constitute prior bad acts for . . . the Rule
404(b) analysis. . . As to the
first prong, whether the text messages are relevant for a purpose other than
character or disposition, . . . the trial court determined they
were relevant to [Roy’s] state of mind and intent to commit the charged
offenses. [He] offers no developed argument under the first prong of the 404(b)
test as to the third text message; accordingly, we deem any such argument
waived and confine our analysis under the first prong to the first two text
messages. . . .
State v. Roy,
supra.
The Supreme Court goes on to explain that to be relevant to
the issue of intent,
`evidence of other bad acts must be
able to support a reliable inference, not dependent on the defendant's
character or propensity, that the defendant had the same intent on the
occasions of the charged and uncharged acts.’ State v. Pepin, 156 N.H. 269 (New Hampshire Supreme Court 2008). .
. `We will find sufficient support for a reliable inference of intent only if
the defendant's intent in committing other bad acts and the defendant's intent in
the charged offenses [are] closely connected by logically significant factors.’
State v. Pepin, supra.
State v. Roy,
supra.
The court then applied these principles to the facts
in this case, noting that Roy was
charged with, among other
crimes, kidnapping, which required proof that [he] acted with a purpose to
terrorize child 2 . . . and first degree
assault, which required proof that [he] `recklessly’ caused serious bodily
injury to child 2. . . The first two
text messages were sent within days of the incident, and they demonstrated [his]
antipathy toward the children. Accordingly, admission of the text messages made
it more probable than it would have been without the text messages . . . that [Roy]
acted with a purpose to terrorize child 2 and to purposely and, thus,
recklessly cause child 2 serious bodily injury. . . . We conclude
that [Roy’s] intent in sending the two text messages and in committing the
charged offenses are closely connected by logically significant factors,’ State v. Pepin, supra, and, therefore,
that the trial court's ruling that the text messages were relevant to
demonstrate [Roy’s] intent was neither unreasonable nor untenable.
State v. Roy,
supra.
Lastly, the Supreme Court took up the final requirement
under Rule 404(b), i.e., that
the probative value of the evidence not
be substantially outweighed by the danger of unfair prejudice to the
defendant. . . . This prong involves the same analysis as that conducted
pursuant to Rule 403. . . . We, therefore, reach the same
conclusion as we did when analyzing the issue under Rule 403, which is
that [Roy has failed to establish that the probative value of the text messages
was substantially outweighed by the danger of unfair prejudice. Accordingly, we
hold that [he] has not shown that the trial court's decision to admit the three
text messages under Rule 404(b) was an unsustainable exercise of
discretion.
State v. Roy,
supra.
For these and other reasons, the Supreme Court affirmed
Roy’s convictions. State v. Roy, supra.
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