defendant, Robert Doane, appeals his convictions, following a
jury trial in Superior Court (Abramson, J.), on
charges of possession of the controlled drug buprenorphine,
see RSA 318-B:2 (Supp. 2015), attempted sale of
heroin, see id., conspiracy to sell heroin, see
id.; RSA 629:3 (2016), receipt of stolen property,
see RSA 637:7 (2016), being a felon in possession of
a firearm, see RSA 159:3 (2013), and being an armed
career criminal, see RSA 159:3-a (2013). He contends
that the trial court erred by denying his "motion to
sever the buprenorphine possession charge from the other
charges" because: (1) "[t]he possession charge was
not logically and factually connected to the heroin and gun
charges"; and (2) joinder of the possession charge with
the other charges prejudiced him. We affirm.
that the defendant's motion sought to address the
possession charge, the heroin-related charges, and the
gun-related charges in three separate trials. On appeal, the
defendant does not challenge the impact of joinder on his
conviction for possession because he stipulated to the
elements of that charge. Instead, he challenges only the
impact of joinder on his convictions on the other charges.
Thus, he argues that the trial court should have severed the
possession charge from the remaining charges.
Superior Court Rule 97-A, the rule in effect when the
defendant moved to sever the charges against him, upon motion
by either party, the trial court was required to join related
offenses for trial unless it determined that "joinder is
not in the best interests of justice." Super. Ct.
R. 97-A(I)(B) (repealed and replaced 2016). We review
the trial court's decision to join charges for an
unsustainable exercise of discretion. State v.
Brown, 159 N.H. 544, 555 (2009). Thus, to succeed upon
appeal, the defendant must demonstrate that the trial
court's ruling was clearly untenable or unreasonable to
the prejudice of his case. Id.
first address whether the possession charge was related to
the other charges. Offenses that occurred at different times
are related when they are "logically and factually
connected in a manner that does not solely demonstrate that
the accused has a propensity to engage in criminal
conduct." Super. Ct. R. 97-A(I)(A)(iii).
Whether offenses are thus related is largely determined by
the close relationship among the charged offenses and the
evidence to be used to prove them. Brown, 159 N.H.
at 551. When determining whether charges are related, the
trial court should consider: (1) the temporal and spatial
relationship among the charged acts; (2) the commonality of
the victim(s) and participant(s); (3) the similarity in the
defendant's mode of operation; (4) the duplication of law
regarding the crimes charged; and (5) the duplication of
witnesses, testimony, and other evidence related to the
offenses. Id. at 551-52. No single factor is
dispositive; rather, these factors serve as guidelines that
must be sensibly applied in accord with the purposes of
joinder, which are economy and efficiency. Id. at
case, the trial court declined to sever the charges because
it found that they: (1) resulted from a "single,
comprehensive . . . investigation"; (2) were temporally
and spatially proximate to each other; and (3) would require
"the duplication of witnesses, testimony and other
evidence." The defendant argues that it is irrelevant
that the buprenorphine was found during the same search
during which the defendant's gun was discovered, and
which was undertaken in response to information that he was
selling heroin, and that there was no "significant"
duplication of witnesses or testimony between the possession
charge and the other charges.
defendant contends that "[t]he only witness necessary to
prove the buprenorphine charge was the police officer who
catalogued the items found during the search of [the
defendant's] room." However, the trial court could
have reasonably concluded that, in addition, testimony
regarding the investigation that led to the search, the
defendant's living situation, the location and condition
of the defendant's room, and his relationship to the
other occupants of the house would have been required to give
the jury context in which to understand the officer's
testimony. Such evidence would also have been required in
connection with the other charges and would have been
elicited from the same witnesses.
fact, the same officer who testified to the finding of the
buprenorphine also testified to the discovery of the gun in
another bedroom. The defendant argues that "the State
had other witnesses who could and did testify about the
discovery of the gun." However, the State could have
decided that such other witnesses would be less effective.
The defendant does not cite, nor are we aware of, any
authority that the State is required to select its witnesses
so as to promote severance.
defendant argues that as between the possession charge and
the other charges, there was: (1) no similar mode of
operation; (2) no duplication of law; and (3) no duplication
of expert witnesses. However, he does not challenge the trial
court's finding that all the charges arose in spatial and
temporal proximity to each other. Cf.
Brown, 159 N.H. at 552 (stating charges arising at
different times and in different places and involving
distinct sets of witnesses and victims should not be joined).
we cannot conclude that the trial court's finding that
the charges were related was unreasonable or untenable.
See id. at 555.
address whether joinder was not in "the best interests
of justice" because it allowed the State to potentially
create an impression that the defendant had a propensity to
engage in criminal conduct. See id. at 554 (stating
trial court should consider potential prejudice under the
"best interests of justice" prong of Rule
97-A(I)(B)). The "best interests of justice"
standard precludes joinder "whenever it is deemed
appropriate to promote a fair determination of the
defendant's guilt or innocence." Id. at 555
(quotation omitted). Applying the standard requires that the
trial court evaluate "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." Id. (quotation omitted). Furthermore,
the trial court must consider whether joinder will unfairly
prejudice the defendant, including whether: (1) joinder will
allow the State to argue propensity; (2) some charges may
inflame the jury; (3) the available defenses are inconsistent
or the defendant wishes to testify regarding some, but not
all, offenses; and (4) the State may gain an unfair advantage
if a weak case is joined with a strong case. Id. at
the defendant argues that the State's witnesses regarding
the other charges "suffered credibility
difficulties" and that "proof that [he] had
buprenorphine in his room supplied credibility-independent
physical evidence tending to show that [he] was the type of
person to involve himself illegally with controlled
drugs." However, the trial court must weigh prejudice to
the defendant against the obviously important considerations
of economy and expedition in judicial administration.
State v. Ramos, 149 N.H. 118, 124 (2003).
defendant argues that to prove the heroin-related charges,
the State had to rely upon witnesses whose credibility was
impugned by their involvement in other crimes. However, the
State offered letters written by the defendant discussing his
involvement in selling drugs. The defendant argues that, to
prove that he possessed the stolen gun, the State had to rely
upon many of the same witnesses lacking credibility. However,
the State also offered evidence of recorded statements by the
defendant that supported the conclusion that the gun was his.
the defendant was charged with six offenses, the evidence
regarding each was not complex, and the defendant does not
argue that the jury was unable to distinguish the evidence
and apply the law to each offense. Nor does he contend that
the State argued propensity. Moreover, joinder allowed the
defendant to argue to the jury that his stipulation to the
elements of the possession charge bolstered his credibility
when claiming that he was not guilty of the other charges.
we cannot conclude that the trial court's determination
that "the best interests of justice" did not
preclude joinder was unreasonable or ...