#AnimalCruelty Conviction Reversed #404B

On March 30, 2023, the #NH #SupemeCourt reversed the #conviction of David Tufano for misdemeanor animal cruelty. As a #criminaldefense attorney, even I found this opinion a bit surprising. Nonetheless, this ruling strikes me as a reigning in on the use of 404(b), AKA #priorbadact, evidence. Read more to see why.

The State alleged that Mr. Tufano "negligently beat, tortured, or in another manner mistreated an animal, to wit a cat, by trapping the cat, placing the trap in a container, and adding water to said container." At trial, Tufano's neighbor testified that he heard a loud moaning noise coming from Tufano's home and went over to investigate. There he found Tufano spraying water into a plastic container. Inside the container was a trap with a cat inside. He told Tufano to take the trap out of the bucket and free the cat, which Tufano did.

The neighbor testified that he did not initially report the incident to the police, but later decided to do so after a neighbor told him that he had previously tried to trap a cat on his property and "had a history of being hostile towards cats."

Tufano testified in his own defense. He testified that he thought he hit the cat with his vehicle, picked the cat up, brought it to his shed and the only suitable container was a trap, so he put the cat in the trap. Once the cat opened its eyes and became alert, the defendant tried to feed the cat but it lunged and bit his hand.

Tufano eventually decided to try to take the cat out of the trap. He testified that he sprayed the cat with the lighter fog pattern (basically a mist) to dissuade the cat from biting or scratching him. It was shortly thereafter that the neighbor came over. Tufano testified that the two argued about what Tufano was doing, and Tufano eventually kicked over the bin and the cat was set free.

Prior to trial, Tufano moved to preclude the State from introducing evidence of statements regarding Tufano's prior cat trapping. The trial court denied the motion and admitted the evidence as "relevant to the defendant's intent and plan when he trapped the cat on this occasion as well as his knowledge of the trap used."

On appeal, the Court disagreed.

First, the Court observed that Tufano's knowledge of the trap was not a disputed issue in the case. Thus, the prior trapping evidence was not admissible to show Tufano's knowledge of the trap.

Second, the Court found that there was no dispute that Tufano trapped the cat. In a lengthy footnote, uncommon in #NHSC opinions, the Court noted that "trapping" has a broad definition. Thus, whether Tufano placed the cat in the trap as he testified to, or caught it in the trap was a matter of semantics. In the end, there was no dispute that Tufano trapped the cat. Thus, the prior trapping evidence was not admissible to show Tufano had the requisite intent to trap the cat.

Practice Note: The Court's holding seems to stand for the proposition that if an element is not in dispute, despite the parties disputing some of the details regarding how the element is established, 404(b) evidence to establish the element is not admissible. Where the State seeks to introduce 404(b) evidence to establish an element you are not disputing, be sure to cite this case.

Practice Note: While not addressed by the Court, it seems possible that a party can stipulate to an element to avoid the admission of damaging 404(b) evidence. But what will happen if the State does not agree to the stipulation? Will the Court accept the stipulation or, as this attorney has heard from judges, "let the State prove its case as it see fit." That question is for another day, but this is a tactic worth exploring in the right case.

Third, the State argued on appeal that the prior trapping evidence "was relevant to to give the jury the context necessary to rebut the defendant's defense that he acted out of compassion for the cat." The State argued that the evidence established a non-propensity inference to be drawn that Tufano's intent was not to take the cat to the humane society, but to remove it from his property.

The Court disagreed with this claim, observing that "the jury could find that the defendant possessed the same intent as he had on prior occasions only by relying upon the defendant's propensity or disposition to trap cats for the purpose of removing them from his property." This is the definition of propensity evidence and thus, not admissible.

The Court also observed that the State neither alleged nor proffered that the prior cat trapping involved mistreatment similar to the allegations in Tufano's case (spraying the cat with water). As such, the Court could not find that the prior acts and intent in the charged case are "closely connected by logically significant factors."

In closing, it is important to note that this case will be helpful for appellate attorneys who have to constantly confront "harmless error" arguments. Here, the State argued that it had submitted overwhelming evidence of Tufano's guilt, citing to the testimony of the neighbor and Tufano. The Court however found that if Tufano's testimony was believed, could not necessarily support a finding of mistreatment of the cat that grossly deviated from what a reasonable person would do in the same situation. The Court further found that the prior cat trapping evidence could have influenced the jury to view Tufano as "hostile to cats" and likely abuse or mistreat one. Thus, the Court could not say that the error did not affect the verdict and reversed the conviction, remanding for a new trial.