Shenanne Tucker

Supreme Court At-a-Glance Conributor Shenanne Tucker, Practiced law in New Hampshire and Maine since 2002, and currently is predominantly privately employed working in insurance.

An appeal from Hillsborough-North No. 2020-0204

Nov. 16, 2021

Affirmed.

 

  • Whether there was insufficient evidence to support the defendant’s felony domestic violence conviction.
  • Whether the trial court erred in denying defendant from admitting evidence of sexually explicit text message communications.

 

On appeal, the defendant argued that there was insufficient evidence upon which a rational trier of facts could conclude that he threatened to use a deadly weapon against the victim. More particularly, the defendant argued that he could not be found to have “actually used” a gun to threaten the victim during his assaults.  He reasoned that the felony domestic violence statute was required to be read in parallel with RSA 631:4, I(d), the felony criminal threatening statute.  Otherwise a new crime would be created which was contrary to the intent of the legislature.

It was undisputed that the victim and the defendant were “intimate partners” within the meaning of RSA 631:2-b, I (e).  Viewing the evidence and reasonable inferences most favorably to the State, the non-moving party, the Court found that the defendant and victim had been in a relationship from late-2018 to the spring of 2019.  On July 13, 2019, the defendant and victim had another romantic encounter.  The next evening, the defendant physically assaulted and threatened the victim.  The defendant continued to assault and threaten the victim over a number of days.  The victim did not see a gun during this time, but she had knowledge that he possessed and usually carried a gun.  During the assaults, the defendant told the victim that he had a gun on him, he acted like he had one and that would use it against her (grabbing his waist band), and he told the victim he would kill her.

The Court found that this evidence and all reasonable inferences were sufficient upon which it could be proven beyond a reasonable doubt that the defendant threatened to use a gun, and thus a deadly weapon, against the victim.  The Court construed the crime of felony domestic violence and felony criminal threatening and found them to be materially different in their working.  Felony domestic violence is committed when a person “threatens to use a deadly weapon” while the criminal threatening felony is committed when a person “’threatens to commit any crime against the person” and “’uses a deadly weapon.”

When addressing the defendant’s arguments regarding evidence of sexually explicit text messages, the Court assumed without deciding that the messages were relevant as prior inconsistent statements and probative to impeach the victim’s testimony.  However, the Court found that the trial court’s order excluding them was not an unsustainable exercise of discretion because the trial court reasonably determined that the messages were cumulative and the danger of cumulative evidence substantially outweighed any probative value of the messages.

The Court accordingly affirmed.

 

John M. Formella, attorney general, with Elizabeth Velez, attorney (on the brief) and Weston R. Sager, assistant attorney general (orally) for the State.

 

Thomas Barnard, senior assistant appellate defender, of Concord (on the brief and orally), for the defendant.