Argued May 8, 2014
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
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Joseph A. Foster, attorney general ( Stacey R. Kaelin, assistant attorney general, on the brief and orally), for the State.
Sweeney Law Office, of Bedford ( Shawn Sweeney on the brief and orally), for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
The defendant, Justin L. Roy, appeals his conviction by a jury on two counts of kidnapping, see RSA 633:1, I(c), II (2007); RSA 633:1, I-a, II (2007), one count of first degree assault, see RSA 631:1, I(d) (2007), four counts of second degree assault, see RSA 631:2, I(c)-(d) (Supp. 2013), one count of criminal restraint, see RSA 633:2 (2007), and two counts of simple assault, see RSA 631:2-a, I(a)-(b) (2007). On appeal, the defendant argues that the Superior Court ( Houran and Mangones, JJ.) erred by denying his: (1) motion to suppress evidence obtained from his cellular telephone; (2) motions in limine to both admit and exclude certain evidence; (3) motion to dismiss during trial based upon the State's alleged failure to timely disclose exculpatory evidence; and (4) subsequent motions to dismiss and to set aside the verdicts in which he alleged that there was insufficient evidence to convict. We affirm.
The jury could have found, or the record supports, the following facts. In December 2011, 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 the defendant in his mobile home in Albany. The defendant and Downs were in a domestic relationship, but the defendant was neither the father nor the legal guardian of the children.
After dinner on December 18, 2011, the three children fell asleep, and the defendant went outside to his heated shed to work on a lawn mower. More than one person testified that on that night the defendant drank several alcoholic beverages and failed to take his prescription medications to treat his depression and alcoholism. After visiting the defendant 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 that child 2 was no longer inside the mobile home. She went outside and found that child 2 was inside the shed with the defendant. 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 that shirts were covering the windows of the shed. Realizing that child 2 was apparently still inside the shed, Downs went outside and knocked on the shed door. Downs testified that when she did this, the defendant held the shed door closed and would not let her in. Thereafter, she saw the defendant rushing from the shed to the mobile home, carrying child 2, who was only wearing a diaper in the below-freezing weather. The defendant put child 2 back in his bed, and Downs fell asleep.
Around 5:00 a.m., the defendant woke everyone in the home by yelling. The defendant screamed at child 1 and squirted both child 1 and Downs with the contents of a bottle. The defendant then went to the couch where child 3 had been sleeping, and he jumped on the child's legs, bruising them. As child 3 tried to get up, the defendant pushed him to the floor, causing the child to injure his head and hand.
Downs then told the defendant that she and the children were leaving. In response, the defendant 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. The defendant then 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 the defendant about the bruise on child 2's head. The defendant 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 that child 2's eyes were rolling back in his head and that 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. Due to his condition, he was transported by helicopter to Maine Medical Center. Doctors there discovered that 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.
Child 2's doctors testified that his injuries were not accidental and that they resulted from more than one blow. One doctor observed that child 2's injuries were more severe than those commonly suffered by professional boxers, and more extensive than the injuries that had been sustained by a child that he had treated who had been involved in a high-speed, head-on car accident. Additionally, a physician-expert testified that all of child 2's injuries were consistent with having occurred within 24 hours of being brought to the hospital.
The defendant was charged with multiple counts of assault for his actions involving all three children. He was also charged with multiple counts of kidnapping and criminal restraint stemming from his actions toward child 2. Prior to trial, the defendant filed a motion to suppress evidence obtained as a result of a search of his cell phone that had been conducted pursuant to a search warrant. The trial court denied the motion. The defendant also filed several motions in limine seeking to: (1) exclude text messages obtained from Downs's cell phone and " any reference to [the defendant] taking or ceasing to take prescription medication" and (2) introduce evidence of ...