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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll

No. 2013-290

THE STATE OF NEW HAMPSHIRE

v.

JUSTIN L. ROY

Argued: May 8, 2014

Opinion Issued: January 16, 2015

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. 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 
2

during trial based upon the State’s alleged failure to timely disclose exculpatory 

evidence; and (4) subsequent motions to dismiss and for a directed verdict in 

which he alleged that there was insufficient evidence to convict. We affirm. 

I

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 
3

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. 

II

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 
4

Downs’s cell phone and “any reference to [the defendant] taking or ceasing to 

take prescription medication” and (2) introduce evidence of alleged prior violent 

acts committed by Downs against her children to show her “as the alternative 

perpetrator.” The trial court denied these motions as well.

During trial, the defendant moved to dismiss the charges because of an 

alleged Brady violation, based upon the State’s failure to timely disclose a 

sealed motion to continue filed in the pending criminal case against Downs. 

See Brady v. State of Maryland, 373 U.S. 83, 87 (1963) (requiring the 

prosecution to disclose material exculpatory evidence to the accused). The trial 

court denied this motion. 

At the close of the State’s case, the defendant moved to dismiss all

charges, arguing that the State had introduced insufficient evidence to convict. 

The trial court dismissed two charges, but denied the motion as to the 

remaining ten charges. After the jury found the defendant guilty on the 

remaining counts, the defendant moved to set aside the verdicts, renewing his 

insufficiency claim. The trial court denied the motion, and this appeal 

followed.

III

The defendant first argues that the trial court erred in denying his 

motion to suppress text messages found on his cell phone. He contends that

the messages should have been suppressed because of the failure of the police

to comply with the statutory timing requirements for search warrant returns. 

See RSA 595-A:7 (2001). 

“When reviewing a trial court’s ruling on a motion to suppress, we accept 

the trial court’s findings unless they lack support in the record or are clearly 

erroneous. Our review of the trial court’s legal conclusions, however, is de

novo.” State v. Licks, 154 N.H. 491, 492 (2006) (quotation omitted). 

RSA 595-A:7 provides that “[e]very officer to whom a warrant to search is 

issued shall return the same to the court to which it was made returnable as 

soon as it has been served, and in any event not later than 7 days from the 

date of issuance thereof, with a return of his actions thereon.” In this case, the 

original search warrant for the defendant’s cell phone was issued on December 

22, 2011. On December 28, 2011, the State moved for a 30-day extension to 

file the warrant’s return, which the court granted. The return was not made 

until January 31, 2012.

The defendant asserts that the police violated RSA 595-A:7 by exceeding 

the seven-day statutory time limit to return the warrant. He argues that,

because the statute does not provide for an extension of the deadline – unlike a 

similar statute governing administrative warrants – the 30-day extension was 
5

invalid. Compare RSA 595-A:7 (containing no provision allowing for an 

extension beyond seven days) with RSA 595-B:4 (2001) (requiring an 

administrative warrant to be returned “in any event not later than 7 days from 

the date of its issuance, unless extended or renewed by the justice . . . who 

signed and issued the original warrant, upon satisfying himself that such 

extension or renewal is in the public interest”). The defendant further argues 

that, even if the extension was lawful, the search of his phone was illegal 

because the warrant return was not made until after the extension had 

expired. Thus, he contends that the trial court should have suppressed the 

text messages derived from the search of the phone.

We need not decide whether a court has the power to grant an extension

of a search warrant return because we agree with the defendant that the police 

violated RSA 595-A:7 by returning the warrant after the deadline. However, we 

reject the defendant’s argument that suppression is required.

We first observe that the legislature has not seen fit to require the 

exclusion of evidence based upon noncompliance with the technical 

requirements of RSA 595-A:7. Cf. State v. Saide, 114 N.H. 735, 737-38 (1974) 

(explaining that, unlike in other statutes, the legislature has not provided for 

the exclusion of evidence for violations of RSA 595-A:5). This stands in 

contrast with the explicit directives in other statutes. For example, in the 

motor vehicle context, failure to comply with the requirements of RSA chapter 

265-A renders the results of alcohol concentration tests inadmissible. See RSA 

265-A:5, IV (2014).

Additionally, we have repeatedly “held that technical violations of RSA 

chapter 595-A do not require suppression of the items seized.” State v. Brown, 

125 N.H. 346, 351 (1984); see State v. Huffman, 154 N.H. 678, 682 (2007);

State v. Sands, 123 N.H. 570, 606 (1983); State v. Gilson, 116 N.H. 230, 234 

(1976); Saide, 114 N.H. at 737-38. Had we misconstrued the statute, the 

legislature presumably would have amended it in the 40 years since Saide; 

because the legislature has not, we assume that our interpretation conforms to 

legislative intent. See Ichiban Japanese Steakhouse v. Rocheleau, 166 N.H. 

___, ___ (decided November 13, 2014) (assuming that our interpretation of a 

statute conformed to legislative intent because legislature had not amended the 

statute in the 16 years following the decision).

Here, the police violated RSA 595-A:7 by failing to return the warrant in 

a timely fashion. Notably, the only challenge that the defendant makes to the 

search warrant itself or the evidence obtained pursuant to that warrant relates 

to the untimely warrant return. Because we conclude that the late return is 

merely a technical violation of RSA 595-A:7, suppression of the evidence 

obtained from the defendant’s cell phone is not required. See Saide, 114 N.H. 

at 737-38.
6

We further note that, although the defendant alleges that the untimely 

warrant return violates his “due process rights,” he has failed to develop this 

argument sufficiently for our review. See State v. Young, 159 N.H. 332, 337

(2009). Accordingly, we need not address whether, and under what 

circumstances, due process may require suppression of evidence based upon 

noncompliance with the statute. 

Finally, we invite the legislature to revisit the requirements set forth in RSA 

595-A:7. As currently written, the statute fails to authorize extensions of warrant 

returns. See RSA 595-A:7. Explicitly empowering courts to grant extensions 

beyond the current seven-day statutory return period would make RSA 595-A:7 

consistent with the statute governing returns of administrative warrants. See

RSA 595-B:4 (allowing the court to extend the return of inspection warrants 

beyond the seven-day period if the extension “is in the public interest”). 

Moreover, it would lessen the burden on law enforcement and the criminal justice 

system in general by providing greater flexibility as to warrant return dates. 

IV

The defendant next argues that the trial court erred by denying his 

pretrial motion in limine to exclude several text messages contained on the cell 

phone of Downs. He contends that the trial court erred in failing to exclude the 

text messages pursuant to New Hampshire Rules of Evidence 403 and 404(b). 

We disagree.

“The decision to admit or exclude evidence is within the discretion of the 

trial court.” State v. Furgal, 164 N.H. 430, 438 (2012) (quotation omitted). “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.” Id. (quotation omitted). “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.” Id. (quotation omitted).

At trial, the State offered into evidence three text messages that were 

sent to Downs by the defendant. 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 the defendant wrote,

“What’s going on? I didn’t do nothing or hurt no one.”
7

In denying the defendant’s motion to exclude these text messages, the 

trial court determined that the text messages were probative of the defendant’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.

On appeal, the defendant maintains that all three text messages should 

have been excluded pursuant to Rule 403. See N.H. R. Ev. 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 Furgal, 164 N.H. at 438. We agree with the State that the 

defendant has failed to satisfy his burden.

Rule 403 provides 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.” N.H. R. Ev. 403. “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, 501 

(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.” Id. “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.” Id. “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.” Id. at 502 (quotation omitted). “Thus, we 

give the trial court broad latitude when ruling on the admissibility of potentially 

unfairly prejudicial evidence.” Id.

Here, the defendant was charged with, among other crimes, kidnapping 

and first degree assault. One of the kidnapping charges required proof that the 

defendant acted with a purpose to terrorize child 2, see RSA 633:1, I(c), and the 

first degree assault charge required proof that the defendant “recklessly” 

caused serious bodily injury to child 2, see RSA 631:1, I(d). “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.” RSA 626:2, II(a) (2007). “A person acts recklessly with respect to a 

material element of an offense when he is aware of and consciously disregards 
8

a substantial and unjustifiable risk that the material element exists or will 

result from his conduct.” RSA 626:2, II(c) (2007).

The first two text messages, which were sent within a few days of the 

incident, are probative of the defendant’s hostile feelings for the children. The 

text messages, therefore, made it more probable than it would have been 

without them, see N.H. R. Ev. 401, that the defendant 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 RSA 626:2, III (2007) (stating that “[w]hen recklessness 

suffices” to establish an element of an offense, “the element is also established 

if the person acts purposely or knowingly”); see also State v. Bathalon, 146 

N.H. 485, 489 (2001) (explaining that if the defendant acted “purposely or 

knowingly, the defendant was by definition acting recklessly”). Although the

first two text messages may be prejudicial, given the nature of the crimes 

charged, we conclude that the defendant has failed to establish that their 

probative value was substantially outweighed by the danger of unfair prejudice. 

See N.H. R. Ev. 403; State v. Hood, 131 N.H. 606, 608-09 (1989) (affirming trial 

court’s decision pursuant to Rule 403 to admit, in a sexual assault case, 

pictures “show[ing] naked individuals obviously intending to be provocative” 

because pictures were not “significantly inflammatory” and jury was unlikely 

“to be much affected by seeing merely indecorous depictions of human 

nakedness”). Therefore, the trial court’s admission of these text messages was 

sustainable.

As to the third text message, the defendant 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. See State v. Fernandez, 152 

N.H. 233, 239-40 (2005) (noting that an undeveloped legal argument “is 

insufficient to warrant judicial review”). 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.

The defendant next argues that the text messages should have been 

excluded under Rule 404(b) as inadmissible propensity evidence. See N.H. R. 

Ev. 404(b). The State again counters that the defendant failed to satisfy his 

burden of showing that the trial court’s admission of the text messages under 

Rule 404(b) was an unsustainable exercise of discretion. See Furgal, 164 N.H. 

at 438.

Rule 404(b) 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 
9

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.

N.H. R. Ev. 404(b). “To ensure that this rule is followed, we have held that 

before a trial court admits ‘other crimes, wrongs, or acts’ evidence pursuant to 

Rule 404(b), it generally must first determine: (1) that the evidence is relevant 

for a purpose other than character or disposition; (2) that there is clear proof 

that the defendant committed the prior act; and (3) that the probative value of 

the evidence is not substantially outweighed by the danger of unfair prejudice 

to the defendant.” State v. Belonga, 163 N.H. 343, 359 (2012).

Although 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 the defendant argues that all three text messages 

are prior bad acts, we will assume without deciding that the three text 

messages constitute prior bad acts for the purpose of the Rule 404(b) analysis. 

See State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing a verbal threat 

under Rule 404(b)). As to the first prong, whether the text messages are 

relevant for a purpose other than character or disposition, see Belonga, 163 

N.H. at 359, the trial court determined that they were relevant to the 

defendant’s state of mind and intent to commit the charged offenses. The 

defendant 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. 

See Fernandez, 152 N.H. at 239-40.

“To be relevant to 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.” Pepin, 156 N.H. at 277 (quotation omitted). “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.” Id. 

(quotation omitted).

As previously noted, the defendant was charged with, among other 

crimes, kidnapping, which required proof that the defendant acted with a 

purpose to terrorize child 2, see RSA 633:1, I(c), and first degree assault, which 

required proof that the defendant “recklessly” caused serious bodily injury to 

child 2, see RSA 631:1, I(d). The first two text messages were sent within days 

of the incident, and they demonstrated the defendant’s antipathy toward the 

children. Accordingly, admission of the text messages made it more probable 

than it would have been without the text messages, see N.H. R. Ev. 401, that 

the defendant acted with a purpose to terrorize child 2 and to purposely and,

thus, recklessly cause child 2 serious bodily injury. See Pepin, 156 N.H. at 
10

278; see also Bathalon, 146 N.H. at 489 (explaining that, if he acted purposely,

“the defendant was by definition acting recklessly”). We conclude that the 

defendant’s intent in sending the two text messages and in committing the 

charged offenses are “closely connected by logically significant factors,” Pepin, 

156 N.H. at 277 (quotation omitted), and, therefore, that the trial court’s ruling 

that the text messages were relevant to demonstrate the defendant’s intent was 

neither unreasonable nor untenable. 

Because the defendant does not dispute that there was sufficient proof 

that he wrote and sent all three text messages, we need not apply the second 

prong of the test, and we turn directly to the third prong. See Belonga, 163 

N.H. at 359. The third prong requires that the probative value of the evidence 

not be substantially outweighed by the danger of unfair prejudice to the 

defendant. Id. This prong involves the same analysis as that conducted 

pursuant to Rule 403. See State v. Lamprey, 149 N.H. 364, 370 (2003) (“The 

third prong incorporates the standards of New Hampshire Rule of Evidence 403 

requiring a showing of unfair prejudice.”). We, therefore, reach the same 

conclusion as we did when analyzing the issue under Rule 403, which is that 

the defendant 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 the defendant 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.

In addition to his challenge to the admission of the text messages, the 

defendant also protests the admission of “evidence regarding the defendant’s 

depression medication, alcoholism treatment . . . and arrest on an unrelated 

warrant.” However, he fails to adequately develop his legal argument regarding 

this additional evidence; accordingly, we have confined our analysis to the text 

messages. See State v. Blackmer, 149 N.H. 47, 49 (2003) (stating that a mere 

laundry list of complaints regarding adverse rulings by the trial court, without 

developed legal argument, is insufficient to warrant judicial review).

V

The defendant next argues that the trial court erred by denying his 

motion in limine to allow “evidence showing that Downs had previously 

inflicted a pattern of physical abuse and neglect on the child victims.” The 

defendant sought to cross-examine Downs about her allegedly slapping and 

kicking her children on prior occasions, her alleged admission “to physically 

striking her children beyond what would be considered acceptable discipline,” 

her alleged bragging about being thrown out of stores because of the way she 

treated her children, and her pending neglect charges. The defendant asserts 

that the trial court’s decision to exclude this “impeachment evidence” violated 

his state and federal constitutional rights to “compulsory process,” to “present 

all proofs favorable,” to “confront his accuser,” and to due process and a fair 
11

trial. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, VI, XIV. We first 

address the defendant’s claims under the State Constitution and rely upon 

federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

On appeal, the defendant contends that the trial court’s refusal to allow 

the defendant to cross-examine Downs about her prior alleged treatment of the 

children violated his rights to compulsory process and to present all favorable 

proofs. The defendant argues only that he was denied the ability to crossexamine Downs about certain subject matter, and he does not contend that he 

was prevented from producing any witnesses at trial. Because “[b]oth the 

Compulsory Process Clause of the Federal Constitution and the right to 

produce all favorable proofs under Part I, Article 15 [of the New Hampshire 

Constitution] give a defendant only the right to produce witnesses, not to 

produce their testimony,” State v. Graf, 143 N.H. 294, 296 (1999), we conclude 

that the trial court did not violate the defendant’s rights to compulsory process 

and to produce all favorable proofs. 

We next address the defendant’s contention that, by preventing him from

cross-examining Downs about her alleged abusive behavior towards her 

children, the trial court violated his constitutional right to confront witnesses. 

“Though fundamental, a defendant’s right to cross-examine prosecution 

witnesses is not unfettered.” State v. Spaulding, 147 N.H. 583, 588 (2002). “It 

does not entitle the defendant to introduce evidence in violation of the rules of 

evidence. Therefore, a judge may exclude a witness’s testimony on evidentiary 

grounds.” Id. (citation omitted). “While the trial court may not completely deny 

a defendant the right to cross-examine a witness, it possesses broad discretion 

to limit the examination’s scope on improper matters of inquiry.” Id. “We will 

not reverse the trial court’s decision limiting the scope of cross-examination 

absent an unsustainable exercise of discretion.” Id. at 589. “To show that the 

trial court’s decision is not sustainable, the defendant must demonstrate that 

the court’s ruling was clearly untenable or unreasonable to the prejudice of his 

case.” Id. 

Here, the trial court evaluated the proffered evidence and determined

that it was inadmissible propensity evidence pursuant to Rule 404(b). See N.H. 

R. Ev. 404(b). The court stated:

Although the evidence [the defendant] wishes to present does touch on 

Downs’s treatment of her children and [child 2], there is no link between 

such evidence and the assault at question. The timing of most of the 

acts is unclear, and also unclear is which acts were directed at [child 2]

. . . . Further, there is no indication that the alleged acts come close to 

approaching the charged acts in severity. The only manner such 

evidence becomes relevant is through the inference that because of 

[Downs’s] bad character as a mother, she is more likely to have 
12

perpetrated the assault at question. This is precisely the type of 

propensity evidence inadmissible under [Rule] 404(b). 

We agree with the trial court that Rule 404(b) applies to alternative perpetrator 

evidence such as the evidence at issue here. We also agree with the trial 

court’s analysis and conclusion. Accordingly, we conclude that the defendant 

has failed to demonstrate that the trial court’s ruling was clearly untenable or 

unreasonable.

Turning to the defendant’s due process argument, the defendant asserts

that by excluding the evidence about Downs’s treatment of the children, while 

simultaneously “allowing in a slate of negative background information about 

the defendant,” the trial court violated his right to a fair trial. We do not find 

this argument persuasive, and we conclude that it does not warrant further 

discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

To the extent that the defendant attempts to assert a distinct and 

additional argument concerning his right “to present a complete defense,” we 

decline to address it because the argument was not sufficiently developed for 

appellate review. See State v. Fortier, 146 N.H. 784, 792 (2001).

Because, under these circumstances, the Federal Constitution offers the 

defendant no greater protection than does the State Constitution, see State v. 

White, 163 N.H. 303, 312-13 (2012) (addressing due process); Spaulding, 147 

N.H. at 588 (addressing the rights to present all favorable proofs and to 

confront witnesses); State v. Adams, 133 N.H. 818, 826 (1991) (addressing 

compulsory process), we reach the same result under the Federal Constitution 

as we do under the State Constitution. 

VI

The defendant next argues that the trial court erred by denying the

motion to dismiss in which he alleged a Brady violation. See Brady, 373 U.S. 

83. Brady requires the prosecution to disclose material exculpatory evidence to 

the accused. Id. at 87. The defendant maintains that, until the fourth day of 

trial, the State “intentionally concealed” from him a sealed motion to continue

that had been filed in the pending criminal case against Downs and referenced 

Downs’s agreement with prosecutors. The defendant asserts that, pursuant to 

Brady, the sealed motion should have been turned over to him earlier to aid in 

his trial preparation as Downs’s “credibility was the primary issue at trial.” He 

further argues that, because the motion was not disclosed until the middle of 

trial, dismissal of the charges was warranted.

As we have stated, “relief for a Brady violation requires proof that the 

violation somehow caused [the defendant] prejudice.” State v. Colbath, 130 

N.H. 316, 320-21 (1988). “Actual prejudice exists if the defense has been 
13

impeded to a significant degree by the nondisclosure.” State v. Stickney, 148 

N.H. 232, 236 (2002). 

Assuming, without deciding, that the sealed motion to continue was 

exculpatory material that should have been disclosed to the defense earlier, we 

conclude that the trial court did not err in denying the defendant’s motion to 

dismiss because the defendant has failed to demonstrate prejudice. See id. 

Although the defendant first became aware of the sealed motion during trial, 

the court allowed him several hours to review the motion prior to oral 

argument on the matter. Additionally, the defense obtained the motion before 

the testimony of Downs and was able to cross-examine her about her 

agreement with the prosecution, thereby challenging her credibility. See State 

v. Stowe, 162 N.H. 464, 467 (2011) (explaining that cross-examination provides 

the defendant with an opportunity to impeach a witness’s credibility and 

expose possible biases of the witness). The record does not establish that the

initial nondisclosure “impeded to a significant degree” the defendant’s case; 

therefore, we conclude that the trial court did not err in denying the 

defendant’s motion to dismiss. See Stickney, 148 N.H. at 236. 

VII

Finally, the defendant contends that the trial court erred in denying his 

motions to dismiss and for a directed verdict. In both motions, the defendant 

argued that the State failed to produce sufficient evidence to convict him of the 

charges. Although on appeal the defendant broadly asserts that the “State 

[has] failed to sustain its burden of proof” on all charges, his appellate briefs 

contain developed arguments challenging only the trial court’s ruling on the 

sufficiency of the evidence as to the two kidnapping charges. To the extent that 

the defendant seeks to make a sufficiency argument as to the other charges, 

the argument has been insufficiently developed for our review. Accordingly, we 

address the sufficiency argument with regard to only the kidnapping charges. 

See Young, 159 N.H. at 337 (declining to address an insufficiently developed 

argument). 

“When considering a challenge to the sufficiency of the evidence, we 

objectively review the record to determine whether any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable 

doubt, considering all the evidence and all reasonable inferences therefrom in 

the light most favorable to the State.” State v. Germain, 165 N.H. 350, 354-55 

(2013) (quotation omitted). “It is the defendant who bears the burden of 

demonstrating that the evidence was insufficient to prove guilt.” Id. at 355

(quotation omitted). “In reviewing the evidence, we examine each evidentiary 

item in the context of all the evidence, not in isolation.” Id. (quotation omitted). 

“Further, the trier may draw reasonable inferences from facts proved and also 

inferences from facts found as a result of other inferences, provided they can 

be reasonably drawn therefrom.” Id. (quotation omitted).
14

“Circumstantial evidence may be sufficient to support a finding of guilty 

beyond a reasonable doubt.” Id. (quotation omitted). However, “[t]o prevail on 

a sufficiency of the evidence challenge when the evidence as to one or more 

elements of the charged offense is solely circumstantial, the defendant must 

establish that the evidence does not exclude all reasonable conclusions except 

guilt.” Id. at 361. “The proper analysis is not whether every possible 

conclusion consistent with innocence has been excluded, but, rather, whether 

all reasonable conclusions based upon the evidence have been excluded.” Id. 

“The court does not determine whether another possible hypothesis has been 

suggested by defendant which could explain the events in an exculpatory 

fashion.” Id. (quotation and brackets omitted). “Rather, the reviewing court 

evaluates the evidence in the light most favorable to the prosecution and 

determines whether the alternative hypothesis is sufficiently reasonable that a 

rational juror could not have found proof of guilt beyond a reasonable doubt.” 

Id. at 361-62 (quotation omitted).

“To succeed on his motion to set aside the verdict, the defendant has the 

burden of establishing that the evidence, viewed in its entirety and with all 

reasonable inferences drawn in favor of the State, was insufficient to prove 

beyond a reasonable doubt that he was guilty of the crime charged.” State v. 

Fandozzi, 159 N.H. 773, 782 (2010) (quotation omitted). “Given that this 

standard is the same as that applied in reviewing the denial of the motion[] to 

dismiss, we address the defendant’s arguments concurrently.” Id.

The defendant argues that the evidence presented on the two kidnapping 

charges was insufficient to support a finding of guilty beyond a reasonable 

doubt. Specifically, he contends that there was no evidence showing that the 

defendant “confined [child 2] with the specific purpose to terrorize him” or that 

he intended to conceal the child from Downs, as required by statute. See RSA 

633:1, I(c), II; RSA 633:1, I-a, II. He also asserts that, given the circumstantial

evidence presented at trial, it “is an entirely rational conclusion that Downs 

inflicted the injuries on [child 2] . . . and pointed to [the defendant] to shield 

herself from blame when the police arrived.” 

However, the evidence belies the defendant’s assertions. First, the text 

messages from Downs’s phone, in which the defendant referred to child 2 as a 

“retarded f***ing a**hole[]” and a “faggot” who should have been “drown[ed] . . . 

at birth,” demonstrated the defendant’s hostility towards child 2. The evidence 

also showed that the defendant remained alone in the shed with child 2 for 

several hours during the night of the incident. Downs further testified that the 

defendant had covered up the shed’s windows with shirts and held the shed 

door shut when she tried to enter. Downs also testified that child 2 had not 

been injured before being taken to the shed and that she first noticed bruising 

on his head after the defendant brought him back inside the mobile home. 

Additionally, doctors testified that child 2 suffered extensive injuries as a result 

of multiple, non-accidental blows. Finally, although there was evidence that 
15

Downs drove with the children to several locations after leaving the defendant 

and before going to the hospital, there was no evidence indicating that she 

harmed the children during that interval.

Given all the evidence, viewed in a light most favorable to the State, the 

jury could reasonably have concluded that the defendant, and not Downs, was 

responsible for kidnapping child 2 and severely beating him inside the shed. In 

particular, the text messages, combined with both the fact that the defendant 

was alone for hours with child 2 in the shed and that child 2’s grave injuries 

resulted from repeated blows, support the conclusion that the defendant 

caused child 2’s injuries and confined child 2 in the shed with a purpose to 

terrorize him. See State v. Fuller, 147 N.H. 210, 213 (2001) (noting that “in 

order for a jury to conclude that a defendant had a purpose to terrorize, the 

jury must conclude that the defendant had a purpose to cause extreme fear”); 

see also RSA 633:1, I(c), II. The testimony regarding shirts covering the shed’s 

windows, and regarding the defendant physically preventing Downs from 

entering the shed by holding the door closed, demonstrate that the defendant 

acted with the requisite intent to conceal child 2 from his mother. See RSA 

633:1, I-a, II. Finally, given the timing of events, Downs’s discovery of bruising 

on child 2’s head, and the lack of evidence indicating that Downs harmed the 

children that night, the only rational conclusion is that the defendant, and not 

Downs, was responsible for the charged crimes. See Germain, 165 N.H. at 

361. 

Considering the totality of the evidence, we conclude that the defendant 

has not met his burden to demonstrate that no rational trier of fact, viewing 

the evidence in the light most favorable to the State, could have found guilt on 

the two kidnapping charges beyond a reasonable doubt. Having reviewed the 

trial transcript, we conclude that the jury could have excluded all reasonable 

conclusions other than the defendant’s guilt on the two kidnapping offenses.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.