Kidnapping, Assault and the Text Messages

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.