New Hampshire Case Victories
With over 50 combined years of experience, New Hampshire criminal defense attorneys Ted Lothstein and Richard Guerriero have fought on behalf of thousands of clients in New Hampshire’s District Courts and Superior Courts, and have handled over 100 appeals in the New Hampshire Supreme Court. See a sampling of our successful cases below. Or read specifically about our criminal defense victories, our victories in DWI / DUI / OUI cases, or our victories on appeal, including cutting edge litigation that has established important New Hampshire legal precedents.
Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.
Victory on Appeal: Cruelty to Animals Conviction Reversed on Appeal
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
5/19/21 Not Guilty of Aggravated DWI in Keene District Court
On May 19, 2021, we took L.T.'s case to trial in the 8th Circuit-District Division-Keene Court. The State charged L.T. with Aggravated DWI, a class A misdemeanor carrying a mandatory minimum 2 year license suspension and mandatory minimum 5 days in jail (up to a year in jail), where the aggravating factor was a child under 16 years old in the car. After a full trial, Judge Gleason found L.T. NOT GUILTY of Aggravated DWI. Judge Gleason found him guilty only of failure to maintain lane control, a minor traffic violation that carried a $124 fine. Thus, our representation saved L.T.'s Massachusetts driver's license from a 2 year suspension AND saved him from mandatory jail time. Instead, he left the courtroom the same way his case started: No criminal record. This was a great outcome for L.T. and his family! Read More
NH Supreme Court Recognizes Same-Sex Adultery as Grounds for Divorce
On April 1, 2021, we won a major victory in the NH Supreme Court that made the national news, receiving coverage in the ABA Journal, NH Public Radio, the Union Leader newspaper, and elsewhere. In In re Blaisdell, decided on April 1, the New Hampshire Supreme Court overturned prior precedent and held that a same-sex extramarital affair constitute adultery. 18 years ago, in 2003, a divided Court had narrowly held in the Blancheflower case that same-sex affairs do not give rise to a fault-based ground for divorce. In our case, In re Blaisdell, the Court recognized that the Legislature fundamentally transformed the marital laws when it adopted civil unions, and then gay marriage, just six years after Blancheflower. How could the Legislature have granted gay people the privileges, but not the responsibilities, of marriage? And thus, the Court unanimously overruled Blancheflower, and made its ruling retroactive. Read more here. Read More
Supreme Court Throws Out Evidence Found in Warrantless 'Inventory Search'
In State v. Newcomb, 161 N.H. 666 (2011), an appeal won by Ted Lothstein, the New Hampshire Supreme Court reversed a lower court's order upholding the warrantless search of the locked cargo area of a rented U-Haul truck. The Kensington Police had arrested the U-Haul driver for criminal trespass. Like most police departments, Kensington has a policy allowing so-called 'inventory searches' which are post-arrest searches of vehicles in order to make a list of the driver's personal property in the vehicle. This is supposed to protect the driver from theft by the tow company or other third party that takes custody of the vehicle, and protect the police from false claims of theft. Kensington's policy allowed only searches of "unlocked areas and containers," with two exceptions: a locked glove compartment, and a locked trunk. The lower court had reasoned that the cargo area of a U-Haul truck is the equivalent of the trunk of a passenger vehicle. But the Supreme Court held that the lower court literally 'stretched' the analogy too far -- a trunk is defined as the "luggage compartment of an automobile," while a U-Haul cargo truck is "much larger than the average trunk and is intended to carry significantly more cargo," and unlike any car's trunk that I have ever seen, the U-Haul's cargo area is locked with a padlock. Accordingly, Mr. Newcomb faced only the relatively minor misdemeanor offense, criminal trespass, and was saved from the much more serious charges that arose from the unlawful search of his U-Haul truck. State v. Newcomb, 161 N.H. 666 Read More
New Trial, then Dismissal, for Therapist Wrongfully Accused
10/12/2018: In our most recent and perhaps our greatest victory, we won an appeal granting a new trial to a beloved and esteemed therapist wrongfully accused of sexual assault by a client. On October 12, 2018, the New Hampshire Supreme Court upheld a critical victory we had already won in the Superior Court - a victory that freed a therapist from prison who had been wrongfully accused of sexual assault by a client, and cleared his name. The Court held that the Superior Court was right to vacate the jury verdicts and sentences, and grant a new trial, for the therapist because juror bias infected the proceedings, resulting in an unfair trial. On October 17, 2018, the Merrimack County Attorney's Office issued a press release, announcing the State would not bring the case to trial again. Instead, the State dismissed the charges. Read More about Dr. Afshar's Case Read More
Drug Felony Reduced to Misdemeanor, No Jail Time
Our client was charged with Attempted Sale of Narcotic Drugs, a class B felony, based on an undercover investigation by the NH State Police. An affidavit filed with the Court alleged that client had agreed to sell narcotic drugs to an undercover informant supervised by the Drug Task Force, took the money for the drugs, but then fled and never supplied the drugs. Client retained Ted Lothstein of Lothstein Guerriero, PLLC. After negotiation, we were able to secure a plea to a misdemeanor theft, with a jail sentence that was fully suspended, conditioned on payment of $500 restitution to the NH Drug Task Force. In March, 2016, Judge Tucker of the Merrimack County Superior Court accepted the plea agreement. For client, this meant no felony conviction, no jail time, no probation. A very good outcome! Read More
Selling Drugs at Plymouth State, No Jail Time
Grafton County Superior Court, N. Haverhill, NH. Client, a student at Plymouth State University, was prosecuted after selling drugs to an undercover officer just off campus. The Grafton County Attorney's Office argued that client should serve 6 months in jail. In May, 2016, Attorney Ted Lothstein successfully argued that that because client had no prior record, had graduated from college, and had secured a good job, the Court should put him on probation rather than sending him to jail. Read More
Freed from Prison - Juror Misconduct
On March 28, 2017, the Merrimack County Superior Court granted a 54-page Motion for New Trial that we filed on behalf of a client who had been convicted of Aggravated Felonious Sexual Assault and sent to prison. This victory resulted in the immediate release of our client from prison. The victory also received widespread press coverage in the Concord Monitor, WMUR and other media outlets. For more details, and to access the press coverage, click here. Read More
Felony Arrest, No Felony Conviction, No Jail Time
In the 3d Circuit-District Division-Ossipee Court, the Moultonborough Police Department investigated Client and several others, accusing them of Burglary and Theft, for breaking into a commercial building and stealing items including bottles of alcoholic beverages. Client was also investigated for Criminal Mischief, for throwing eggs at cars in an unrelated incident on a different date. If convicted of Burglary, this young client would have become a convicted felon, and possibly gone to jail, with a ruinous impact on his future. Instead, Attorney Lothstein secured a plea to the class B misdemeanor of Criminal Trespass. This is the lowest-level misdemeanor in NH law - the only possible punishment is a fine. A second class B misdemeanor for Criminal Mischief was placed on file without a finding (no conviction). Client paid a fine, and paid restitution for damage to the commercial building and the vehicle that was struck by eggs. Because there was no felony conviction, no probation, and no suspended sentence, Client will be eligible for complete annulment of the record of arrest and conviction in just three years. The waiting period easily could have been as long as 10 years or more if he had been convicted of a felony, depending on the terms of the sentence. Read More
Suppression Motion Saves Client from Mandatory Jail Time and More!
Charlestown Police Department stop Client after observing what they believe to be suspicious behavior in a neighborhood that had multiple burglaries in recent weeks, and charge Client with Aggravated DWI based on breath test over .16. After Attorney Lothstein files motion to suppress the stop, prosecutor gives Client opportunity to plead guilty to reckless operation, and dismisses the Aggravated DWI charge, saving Client from mandatory jail time, mandatory minimum one year license revocation, mandatory ignition interlock for one year! Read More
These victories do not predict the outcome of your case. Like most lawyers who are not afraid to try a case, Ted Lothstein and Richard Guerriero have both seen plenty of juries vote to convict. From both victories and defeats, Ted Lothstein and Richard Guerriero have gained the experience and wisdom to guide a client through the process of exposing the weaknesses and strengths both of the prosecution’s case and of the available defenses, with the ultimate goal of achieving the best possible outcome - which may be a trial, or a negotiated settlement, a choice only the client can make.