» Appeals

On March 30, 2023, in State v. Tufano, a case briefed and orally argued by Ted Lothstein, the NH Supreme Court reversed a conviction for cruelty to animals arising out of a very unusual fact pattern. The accused was seen by neighbors in a manufactured home park spraying water into a large plastic bin. Inside the bin, was a Havahart trap. Inside the trap, was a very vocal cat. A neighbor saw this happening, confronted the accused about it, but did nothing. But a few days later, another neighbor told him that the accused had a history of trapping cats, and that she had confronted him about it years prior. The neighbors went to the police and eventually, our client was charged with Cruelty to Animals and brought to trial. The case in the lower court. In the jury trial, Mr. Tufano was skillfully represented by former counsel Stephen Brown of Rochester, NH. But over Attorney Brown's objection, the prosecutor was allowed to introduce evidence that according to the neighbors, the accused had a history of trapping cats, which one witness described as "a history of being hostile towards cats." But the NH Supreme Court reversed, finding that this evidence was precluded under NH Rule of Evidence 404(b), which prevents the introduction of “propensity” or character evidence. This rule says that a prosecutor, or a party in a civil case, cannot introduce evidence that the defendant or opposing party committed a similar crime in the past, and then argue: He did it before, he must have done it again. Rule 404(b) is critical to ensure a fair trial. The prohibition on the use of character evidence to prove a person's propensity to commit crimes or propensity to do bad things is a critical legal principle of equal importance in civil and criminal cases. There are exceptions of course, like a serial killer who commits his murder in a unique manner, such that evidence of his past crimes helps identify him as the perpetrator. The exceptions apply when the evidence is admissible for a purpose other than propensity, such as, in our example, to prove identity. But otherwise, all of us can appreciate the purpose of this rule: We have all made mistakes at some point in our past, but we don't think that our mistakes should define us forever. But more importantly, propensity evidence leads to wrongful convictions, because even if the evidence is thin, the jury may convict out of fear they will let a person "get away with it again." Accused Hired Ted Lothstein and Lothstein Guerriero, PLLC for his Appeal. On appeal, Mr. Tufano hired Ted Lothstein and our firm to represent him before the NH Supreme Court. This is common in our practice: A person will be represented by another lawyer or firm in the trial court, and then we handle the appeal. A new lawyer on appeal can see things from a different perspective. And of course on top of that, we are highly experienced, having handled well over a hundred appeals in State and federal courts. Ted Lothstein prepared the brief, and presented oral argument, which you can listen to here. You can read Attorney Lothstein's brief here: 2022-03-14-Tufano-FINAL BRIEF Victory on Appeal. On March 30, 2023, the New Hampshire Supreme Court issued a published opinion, reversing (overturning) Mr. Tufano's conviction. The court held that the lower court's ruling allowing the prosecution to use propensity evidence to prove guilt was "clearly untenable", even taking into account the substantial discretion allowed to lower courts in making rulings on evidence. The ruling inflicted prejudice, meaning that the unfairly-admitted evidence influenced the jury's decision. And the court rejected the prosecution argument for "harmless error" - the argument that other evidence of guilt was overwhelming. It was not. Our firm has now had at least 78 published decisions in State and Federal appellate courts, and dozens of appellate victories, far more than most law firms in NH. Click here to learn more about our firm's appellate litigation practice. Click here to learn more about Ted Lothstein, who has co-chaired the NH Bar's Appellate Litigation seminar several times in recent years. Read More