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State v. DePaula

Supreme Court of New Hampshire

June 22, 2017


          Argued: January 17, 2017


          Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

          Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

          LYNN, J.

         The defendant, Abraham DePaula, appeals his convictions, following a jury trial in Superior Court (Delker, J.), on one count of burglary, five counts of theft by unauthorized taking, and two counts of conspiracy to commit theft by unauthorized taking. See RSA 635:1 (2007); RSA 629:3 (2016); RSA 637:3 (2016). On appeal, the defendant argues that the trial court erred when it: (1) ruled that his testimony opened the door to evidence of his alleged involvement in an unrelated homicide; (2) denied his motion in limine to preclude the State from introducing testimony regarding physical and sexual assaults that occurred during the burglary; (3) allowed the State to introduce lay testimony from custodians of cellular telephone records regarding the range of cell towers; and (4) sentenced the defendant on both conspiracy to commit theft convictions. We affirm in part and vacate in part.


         The jury could have found the following facts. At approximately 3:30 p.m. on July 18, 2011, two armed men entered J.U.'s house in Hampstead. J.U and his friend D.C. were in the house at the time. The intruders blindfolded and beat the two, while demanding to know where J.U. kept his guns. J.U. led one assailant to a locked room where he kept some guns and unlocked the room. Dissatisfied with the guns located in the room, the intruders demanded more guns. J.U. told them that he had no other guns in the house. At some point, D.C. was bound and taken into the bathroom, where she was sexually assaulted by one of the assailants. The other assailant started to carve his name into J.U.'s back before being stopped by the first assailant. Neither J.U. nor D.C. could identify the assailants who entered the house. Both testified, however, that they believed a third person entered the house at some point; D.C. testified that she "could hear somebody at the front door handing stuff out and a little bit of whispering, " while J.U. testified that a third person was "moving stuff out of the back room." After approximately forty minutes, the intruders left. J.U. broke free of his bonds, went outside, and got help from a passerby who called the Hampstead Police.

         The defendant and several other individuals were eventually charged with participation in the home invasion. At the defendant's trial, the State presented evidence that Avery Walker, Holli Soltish, Angel Sanchez, Max Menagerman, and the defendant conspired to break into J.U.'s home to steal guns. Soltish testified that she became aware of J.U.'s gun collection through a friend and described it to Walker, who enlisted the defendant, Menagerman, and Sanchez to help steal and sell J.U.'s guns.

         The group made several trips to J.U.'s home in preparation for the home invasion. The first trip occurred on July 11, when Soltish approached J.U. at his home while the rest of the group waited in a nearby car. The second trip occurred on July 16, when the defendant, Walker, Menagerman, and Sanchez, in an effort to learn who occupied J.U.'s home, approached the home posing as landscapers and feigned confusion about the location of a nearby residence. J.U. testified that he became suspicious as a result of the July 16 visit and moved a number of his guns and valuables to another location.

         The State's theory at trial was that Menagerman, Sanchez, and the defendant committed the home invasion, with Menagerman and Sanchez entering the residence while the defendant primarily remained outside in a car. The State further asserted that Menagerman sexually assaulted D.C., and Sanchez assaulted J.U. In support of its theory, the State presented testimony from Aneudys Menendez, who said that, after the crime, the defendant and Sanchez showed him firearms that they had stolen from J.U.'s home. Menendez also testified that the defendant, Sanchez, and Menagerman asked him to find buyers for the stolen guns.

         Before trial, the defendant moved to exclude from trial all testimony or evidence regarding the sexual assault against D.C. and the physical assault against J.U. He asserted that evidence of the assaults was inadmissible because he had not been charged with any crime relating to the assaults, and because the testimony would be inflammatory in nature and was, therefore, unfairly prejudicial. The State objected, arguing that the assaults were inextricably intertwined with the acts charged against the defendant, and therefore, were relevant and integral to J.U.'s and D.C.'s testimony.

         After a hearing, the court concluded, pursuant to New Hampshire Rules of Evidence 401 and 403, that certain testimony related to the sexual assault was probative because it placed Menagerman at the scene of the crime and allowed the jury to better evaluate D.C.'s and Menendez's testimony. In addition, it found that testimony regarding the sexual assault was necessary "to complete the story" of the burglary because the assault occurred contemporaneously with the home invasion and explained the high degree of trauma that D.C. experienced. (Quotation omitted.) Although the court acknowledged that the testimony was prejudicial, it concluded that the prejudice would be mitigated by providing a limiting instruction to the jury, as well as by the fact that the defendant was not accused of committing the assault, which he asserted was "vastly different in nature" from the crimes with which he was charged. The court determined that the evidence relating to the physical assault of J.U. was probative for similar reasons, and concluded that the same mitigating factors would cure any prejudice created by J.U.'s testimony about that assault.

         At trial, the court gave the following limiting instruction after J.U. testified regarding the physical assault:

Relating to the testimony that this witness and other witnesses have and will provide in this case about the injury to [J.U.'s] back with the knife, and the sexual assault of [D.C.] So as I've already told you in this case, [the defendant] is not charged with either of those crimes.
The reason that I have allowed that evidence into this case, despite the fact that he's not charged with those crimes, is to allow you to evaluate [J.U.'s] and [D.C.'s] testimony, their perceptions, memory, emotional state at the time of the observations they made in this case so that you can properly understand what was happening from each of their testimony to them. The testimony is to be considered by you only as it impacts these two witnesses' perceptions, memory, and the reliability of their testimony.
So that's the reason I'm allowing that evidence in, and that's the only reason you should use that evidence for that limited purpose in this case.

         The trial court reminded the jury after D.C.'s testimony regarding the sexual assault that such testimony was admitted only for the purpose of evaluating D.C.'s testimony, and that the defendant had not been charged with those crimes.

         Also prior to trial, the defendant filed a motion in limine challenging the admissibility of evidence concerning the location of the cell towers that serviced the conspirators' cell phones at certain times, claiming that such evidence constituted expert testimony and could not be introduced by non-expert custodians of cell phone records. After a hearing, the court denied the motion, finding that general "testimony of how calls attach to cellphone towers is within the ken of the average jury" based on the ubiquity of cell phones and smart phones in society. (Quotation omitted.)

         The State presented testimony at trial from three cell phone records custodians who were employed at major cell phone service providers. The first custodian testified about the collection and storage of cell phone records. The other two custodians discussed the average and maximum ranges of the cell towers used by their respective companies, as well as the basic method by which cell phones connect to cell towers. The State also presented testimony from an analyst from the New England State Police Information Network, who reviewed the cell phone records and compared the cell site data to company-provided maps of the cell tower network. With this information, the analyst created maps that indicated which cell towers were used by the phones of the defendant, Menagerman, and Sanchez on July 16 and 18. Based upon the cell tower information, the maps indicated that the three individuals' cell phones were in the vicinity of Hampstead on July 16 as well as at the time of the July 18 home invasion.

         The defendant presented an alibi defense, claiming through his own testimony and that of other witnesses that he had spent most of July 18 at the hospital with his wife, who was giving birth to their child. The defendant admitted to being present on the July 11 Hampstead trip, but testified that he thought the purpose of the trip was to help the defendant "buy an illegal gun." He testified that Sanchez translated what Soltish said, and told him that Soltish "knew someone who had a license to purchase guns."

         In response to the defendant's testimony about his actions on July 11, the State argued that the defendant had opened the door to evidence of unrelated criminal activity that refuted his claim to be an unwitting accomplice in the events of that day. The trial court agreed, and allowed the State to present rebuttal evidence of an unrelated murder that occurred in Manchester later on July 11 or early the following morning, in which the defendant, Menagerman, and Sanchez allegedly participated. The rebuttal evidence consisted of records reflecting that the cell phones of the defendant, Menagerman, and Sanchez were in Manchester around the time of the murder, and testimony by Menendez that the defendant and Sanchez, later joined by Menagerman, had bragged to him about committing the murder while they and Menendez watched a television news story reporting on that crime. At the close of all the evidence, the trial court gave the following limiting instruction regarding the evidence of the murder:

So ladies and gentlemen, I just had a conversation here about instructions that before the parties rested in the case that I had intended to give you that I didn't [a]bout the use of the Manchester homicide evidence that you heard in the State's rebuttal case.
The evidence was introduced for the purpose of rebutting the Defendant's direct testimony during . . . this trial. You are not allowed to use the evidence about his affiliation, if you do find that there is one, to that Manchester case to conclude that if you conclude that he was involved in that case, you can't then say well he -- if he did that, he must have done the Hampstead case.
The evidence was introduced solely for the purpose of rebutting his testimony. You can't infer that because he may have been involved in other bad conduct, he must have committed the Hampstead case. That's -- the evidence was introduced with a very limited purpose of rebutting his testimony.
And one more point on that . . ., ladies and gentlemen, there are no pending charges in connection with the Manchester case. So no one has been charged in connection with that Manchester homicide.

         Following a nine-day trial, the defendant was convicted of all charges. This appeal followed.


         We first address the defendant's assertion that the trial court erred in ruling that his testimony about the July 11 visit to Hampstead opened the door to rebuttal evidence that he was involved in the Manchester homicide. The defendant argues that his testimony was not misleading, and that, even if his testimony was misleading, the court erred by allowing the rebuttal evidence because it was unrelated to the acts for which the defendant was charged and because it relied upon an improper propensity inference. Moreover, the defendant contends that the rebuttal evidence -- specifically the testimony that he allegedly committed a murder ...

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