Date: Jun 3, 2026

State v. Cherry (2026 N.H. 22): Firearms as “Tools of the Drug Trade” Require a Case-Specific Nexus; Joinder’s “Best Interests of Justice” Must Be Charge-Specific

1. Introduction

In State v. Cherry, the Supreme Court of New Hampshire reversed multiple drug convictions after concluding that the trial court (1) improperly admitted broad testimony that Marcus Cherry “always had a gun” to show he was a drug dealer, and (2) improperly handled joinder by failing to assess whether trying a single-sale fentanyl charge alongside sprawling conspiracy/enterprise allegations was “in the best interests of justice.”

The State charged Cherry with conspiracy to sell controlled drugs, multiple counts of possession with intent to sell, a single count of sale of a controlled drug, and being a drug enterprise leader. At trial, the State presented extensive firearms testimony—some connected to drugs seized with a co-conspirator, and some describing Cherry’s general gun possession during the relevant time period. A jury convicted on all counts.

The appeal raised four principal issues: the admissibility of firearms evidence; entitlement to a pretrial suppression hearing; sufficiency of evidence on the sale charge; and joinder of the sale charge with the other drug charges.

2. Summary of the Opinion

Firearms evidence: The court drew a critical line between (a) gun evidence found alongside drugs (intrinsic, generally admissible under Rule 403), and (b) generalized testimony that the defendant owned/possessed guns (extrinsic and inadmissible here because the State failed to show relevance under Rule 404(b)). The court also held that testimony that Cherry previously possessed a distinctive-looking Magnum .357 with a scope was not intrinsic, and could not be affirmed under Rule 404(b) as a matter of law.
Harmless error: Because the State did not argue harmless error, the court reversed the convictions.
Suppression hearing: The defendant’s claims were unpreserved (including failure to invoke a specific state constitutional provision).
Sufficiency (sale of controlled drug): The evidence was sufficient; the court considered all admitted evidence, even if arguably hearsay.
Joinder: Charges were “related” as part of a common scheme or plan, but the joinder order was vacated in part because the trial court did not adequately analyze whether joinder was “in the best interests of justice” from the perspective of the single-sale count; the issue was remanded for the trial court to decide in the first instance.

3. Analysis

A. Precedents Cited

1) Intrinsic vs. extrinsic acts; Rule 404(b) framework

The court’s evidentiary analysis is built on recent and established New Hampshire authority distinguishing “intrinsic” evidence (outside Rule 404(b)) from “extrinsic” “other acts” evidence (within Rule 404(b)).

State v. Rouleau: Set the operational definitions the court applies. Rouleau explains that “intrinsic” (or “inextricably intertwined”) evidence typically has a causal, temporal, or spatial connection to the charged crime, may arise from the same events, and may “complete the story.” It also frames the standard of review (“unsustainable exercise of discretion”) and limits appellate review to the record before the trial court. Cherry relies on Rouleau both to reject the trial court’s “inextricably intertwined” ruling for generalized gun possession and to uphold admission of guns found with drugs in a co-conspirator’s vehicle.
State v. Thomas: Supplies the critical requirement for Rule 404(b) relevance: the State must identify a permissible purpose and articulate the “precise chain of reasoning” connecting the act to a disputed issue without relying on propensity inferences, and the nexus cannot be too remote. Cherry uses Thomas to reject the State’s broad “guns are tools of the drug trade” theory where no case-specific linkage was shown.
State v. Dion: Confirms that intrinsic evidence is evaluated under Rule 403 rather than Rule 404(b). Cherry uses Dion to route intrinsic gun-with-drugs evidence through Rule 403.
State v. Wells and State v. Hayward: These cases control appellate “salvage” of discretionary rulings. If the trial court did not exercise discretion under the correct rule, the Supreme Court may affirm on an alternative ground only if “there is only one way the trial court could have ruled as a matter of law.” In Cherry, that principle prevents affirmance of the “distinctive revolver” testimony under Rule 404(b), because the probative-prejudice balance is not legally one-sided.

2) Firearms and drug dealing: “tools of the trade” is not per se

State v. Folds: Recognizes that firearms may evidence drug dealing when found in close proximity to drugs and cash, but cautions that “not every firearm the police may come across is inherently incriminating.” Cherry uses Folds to underscore that contextual proximity matters.
United States v. Price (3d Cir. 1994), United States v. Wiener, United States v. Martinez, and United States v. Beverly: The State cited federal “tools of the trade” cases, but Cherry reads them narrowly: they support admissibility where guns are seized with drugs/cash/tools, carried during drug activity, or otherwise logically connected—not a blanket rule that any gun ownership implies drug dealing.

3) Harmless error posture on appeal

State v. Forbes: Establishes that erroneous admission does not always require reversal, but Cherry applies the practical corollary: where the State does not argue harmless error, reversal follows.

4) Preservation of suppression-hearing claims

State v. Van Uden: Supports the general preservation rule (arguments not raised below are not preserved).
State v. Valenzuela and State v. Spero: Cherry clarifies that the right to attack a facially valid warrant after a preliminary showing of material misrepresentations is grounded in Part I, Article 19, not merely in case law. The court uses these decisions to explain what the defendant needed to preserve.
State v. Oakes, State v. Dellorfano, and State v. Carter: Define what it takes to preserve a state constitutional claim: the defendant must raise it below and specifically invoke a state constitutional provision in the brief. Cherry holds the defendant failed the second requirement.

5) Sufficiency and the “all admitted evidence” rule

State v. Price (2026 N.H. 3): Provides the sufficiency standard and the double jeopardy consequence: legal insufficiency bars retrial. Cherry addresses sufficiency to determine whether retrial of the sale count would be permitted.
State v. Gordon and State v. Horak: Require courts to consider all evidence admitted at trial, even if erroneously admitted, when evaluating sufficiency for double jeopardy purposes. Cherry relies on these cases to include the challenged hearsay statement in its sufficiency analysis.

6) Joinder: “common scheme or plan” and “best interests of justice”

State v. Bell: Provides the “true plan in the defendant’s mind” test for “common scheme or plan,” and distinguishes planned execution from opportunistic acts. Cherry uses Bell to uphold “relatedness” of the charges.
State v. Breed: Supports the concept of multiple acts as part of an overarching plan.
State v. Brown (159 N.H. 544 (2009)) and State v. Rivera: Define “best interests of justice” as promoting a fair determination, including whether the factfinder can distinguish evidence and the risk of bolstering a weak case by joinder. Cherry applies that standard and finds the trial court’s analysis incomplete.
State v. Brown (156 N.H. 440 (2007)): Supplies a contrasting example where multiple drug sales were not “related” when arranged by police and discrete in nature; Cherry distinguishes it.
State v. Miller: Used as an analogy for remanding when an issue is not resolvable “as a matter of law” and should be decided by the trial court in the first instance.
State v. Marti: Supports reaching issues likely to recur on remand in the interest of judicial economy.

B. Legal Reasoning

1) The core evidentiary holding: generalized gun possession is not automatically probative of drug dealing

The trial court admitted testimony that Cherry “always had a gun” and had guns in his car, reasoning—based in part on the court’s experience—that guns “almost always” accompany large-scale drug possession and thus were “inextricably intertwined” with conspiracy/enterprise allegations. The Supreme Court rejected this approach for two interconnected reasons:

Misclassification as intrinsic evidence: The State did not tie the generalized gun possession to a drug transaction, stash location, drug seizure, drug-proceeds protection, threats, or any other specific causal/temporal/spatial linkage to the charged acts. “Same time period” was not enough. Without a concrete connection, the evidence is extrinsic “other acts.”
Failure of Rule 404(b) relevance: Once treated as extrinsic, the State had to articulate a non-propensity chain of reasoning showing a “sufficient logical connection” between the act (gun possession) and an issue in dispute. The court held the State did not do so, and the trial court could not substitute personal experience for that missing nexus. Lawful gun possession, without more, was too attenuated to support the inference “drug dealer.”

A key doctrinal takeaway is that “guns are tools of the drug trade” is not a standalone evidentiary shortcut. New Hampshire requires a case-specific nexus to a charged drug operation or event.

2) Context matters: guns found with drugs can be intrinsic and directly probative

In contrast, the court upheld admission of a Magnum .357 revolver with a scope attachment and a Landor Arms shotgun seized in an alleged co-conspirator’s vehicle along with illegal drugs. That co-location supplied the causal/spatial connection missing from the generalized testimony, making the evidence intrinsic and directly probative of drug trafficking (consistent with Folds).

3) The “distinctive revolver” evidence: potentially relevant, but not automatically admissible

Witnesses testified they saw Cherry with a similar distinctive revolver at other times. The Supreme Court held this was not intrinsic because those sightings were not connected to charged drug activity. The evidence might have some non-propensity relevance (distinctive match to the gun found with drugs), but it also carried an appreciable risk of unfair prejudice in a drug trial. Because the trial court never performed the Rule 404(b) balancing, the Supreme Court could not affirm as a matter of law.

4) Litigation consequences: State’s failure to argue harmless error

After finding error in admitting (i) generalized gun-possession testimony and (ii) prior-sightings of the distinctive revolver, the court reversed because the State did not argue harmless error. Practically, Cherry reinforces that harmless-error briefing is not optional when evidentiary error is plausible.

5) Preservation discipline: constitutional suppression arguments must be explicitly invoked

The defendant argued entitlement to a suppression hearing based on alleged misrepresentations in the warrant affidavit. The court held the claims unpreserved because: (1) the defendant did not argue below that Rule 15(b)(2) required a hearing; and (2) although the defendant cited State v. Valenzuela, he did not specifically invoke Part I, Article 19 in his appellate brief, as required by State v. Oakes, State v. Dellorfano, and State v. Carter.

6) Sufficiency: hearsay disputes do not control double-jeopardy sufficiency review

For the sale charge, the court held evidence sufficient because it must consider all admitted evidence (including the statement that Furlow said Cherry sold the drugs), together with lab confirmation that the powder contained fentanyl. Under State v. Gordon and State v. Horak, even erroneously admitted evidence counts in the sufficiency calculus.

7) Joinder: “relatedness” upheld, but “best interests of justice” analysis must account for spillover prejudice to the smaller case

The Supreme Court agreed the single-sale count was “related” to the conspiracy/enterprise charges as part of a common scheme or plan, emphasizing that a drug enterprise leader charge (RSA 318-B:2, XII) inherently alleges an overarching plan to profit from unlawful sales, and an alleged sale can be an overt act within that plan (consistent with State v. Bell and State v. Breed).

But the court vacated joinder in part because the trial court’s “best interests of justice” analysis was one-directional. The trial court reasoned that because the enterprise case would include evidence of many drug acts anyway, joining the sale count caused no unfair prejudice. The Supreme Court held this did not resolve the inverse question: whether the single-sale count was unfairly bolstered by the far broader conspiracy/enterprise evidence—exactly the spillover concern highlighted in State v. Brown (159 N.H. 544 (2009)) and applied to Rule 20 in State v. Rivera. Because the record did not permit resolving that question “as a matter of law,” remand was required (analogizing to State v. Miller).

C. Impact

Stricter nexus requirement for gun evidence in drug cases: Prosecutors should expect to show concrete linkage—guns found with drugs/cash, guns used during transactions, guns tied to stash houses, or other specific connections. General testimony that a defendant owned or carried guns during the same period as alleged drug activity is vulnerable as irrelevant or impermissibly propensity-based.
Trial courts may not rely on “experience” to supply missing relevance: Cherry makes clear that judicial generalizations about how drug cases “usually” work cannot substitute for the State’s obligation to articulate a non-propensity chain of reasoning grounded in the facts of the case.
Joinder practice under Rule 20 is refined: Even when charges are “related,” the “best interests of justice” inquiry must be charge-specific and must grapple with the risk that broad conspiracy/enterprise proof will unfairly bolster a narrow substantive count (or vice versa).
Appellate practice reminder: The State’s failure to argue harmless error can be case-dispositive following evidentiary error findings.
Preservation continues to be outcome-determinative: Suppression-hearing claims tied to state constitutional rights require explicit invocation of the relevant constitutional provision on appeal.

4. Complex Concepts Simplified

“Intrinsic” evidence / “inextricably intertwined”: Evidence is “intrinsic” when it is essentially part of the charged story—e.g., it happens during the same event or is found together with the contraband at issue. Intrinsic evidence is assessed mainly under Rule 403 (unfair prejudice vs. probative value).
“Extrinsic” evidence / Rule 404(b) “other acts”: Evidence of other conduct not part of the charged events (even if not criminal) is “extrinsic.” Rule 404(b) generally bars using it to show the defendant’s bad character or propensity, but allows it for specific purposes (intent, knowledge, identity, etc.) if the State can explain a non-propensity reasoning chain and if the probative value is not substantially outweighed by unfair prejudice.
Rule 403 “unfair prejudice”: “Unfair prejudice” is not just that evidence is damaging; it is the risk the jury will misuse it (for example, deciding “gun owner equals drug dealer”).
Joinder and “best interests of justice” (Rule 20): Even if charges are “related,” the court must ask whether trying them together risks an unfair verdict—such as when a strong case and a weak case are tried together and the jury might convict based on the “accumulated effect” of allegations rather than proof of each charge.
Sufficiency review and “erroneously admitted evidence”: When deciding if evidence was legally sufficient (important for double jeopardy), appellate courts count all evidence the jury heard, even if it should not have been admitted, to decide whether retrial is allowed.

5. Conclusion

State v. Cherry establishes two practically significant rules for New Hampshire criminal litigation: (1) generalized testimony that a defendant owned or carried firearms is not automatically relevant to prove drug trafficking; without a fact-specific nexus to charged conduct, such evidence is extrinsic and inadmissible where it depends on propensity reasoning; and (2) even when offenses are “related” for joinder, the “best interests of justice” analysis must meaningfully address spillover prejudice from the perspective of each charge—particularly where a narrow substantive count is tried alongside expansive conspiracy/enterprise allegations.

By reversing due to improperly admitted gun evidence (and the State’s failure to argue harmless error) and by vacating joinder in part for a more complete fairness analysis, the court reinforces disciplined evidentiary reasoning, careful joinder practice, and rigorous preservation requirements in New Hampshire criminal procedure.