THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2024-0407, State of New Hampshire v. Christopher C. Crosby, the court on February 25, 2026, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, Christopher C. Crosby, appeals his conviction following a jury trial in Superior Court (Edwards, J.) of criminal trespass. See RSA 635:2, III (Supp. 2025). He argues that the trial court erred by (1) allowing a police officer to testify about business records containing location data and (2) failing to grant his motion for a mistrial. We affirm.
I. Background The record reflects the following facts. On October 29, 2021, one of the victims returned to his apartment in Durham with a friend and they found a stranger inside. The individual eluded them, and they reported the intrusion to the police.
The defendant was tried for criminal trespass. At trial, a Durham police officer testified that he obtained a search warrant authorizing him to obtain business records from Google regarding any "Google subscriber information"
associated with devices within the area of the victims' apartment at the time of the trespass. After the officer requested that information from Google, Google's custodian of records provided business records, and the officer observed that those records showed that two Google accounts associated with the defendant were in use on a device inside the victims' apartment at the time of the intrusion.
The officer testified that those business records also contain "phone numbers that are associated with the account[s]." He called one of the phone numbers and spoke with the defendant. The officer testified that the defendant asked him if the call was related to his "past arrests in Durham." In response, the defendant moved for a mistrial. The trial court denied the motion, struck the testimony from the record, and instructed the jury to disregard it. The defendant was found guilty of criminal trespass. This appeal followed.
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II. Analysis On appeal, the defendant argues that the police officer was unqualified to testify about the defendant's location history from Google's business records. We review the trial court's ruling on the admissibility of evidence to determine whether it was a sustainable exercise of discretion. See State v. DePaula, 170 N.H. 139, 152 (2017); State v. Boulton, 174 N.H. 470, 474 (2021) (explaining that trial courts have broad discretion to determine the admissibility of evidence). We will reverse the trial court only if the appealing party can demonstrate that the ruling was untenable or unreasonable and that the error prejudiced the party's case. DePaula, 170 N.H. at 152.
Lay testimony must be confined to personal observations which any lay person would be capable of making. State v. Cochrane, 153 N.H. 420, 422 (2006). Individuals can present limited lay testimony regarding matters which, if discussed in detail, would require expert testimony. DePaula, 170 N.H. at
154. For example, a police officer may testify as a lay witness regarding his or her administration of a field sobriety test measuring rapid eye movement, even though testimony explaining the underlying medical reasons for the eye movement would constitute expert testimony. See Cochrane, 153 N.H. at 421-
24. Similarly, an officer may testify as a lay witness regarding his or her use of a radar gun to measure a vehicle's speed, even though testimony explaining the underlying technical mechanisms of how a radar gun works would constitute expert testimony because those mechanisms are "not common knowledge." Id. at 424.
Here, the police officer testified that he created a "longitudinal, latitudinal . . . box" directly over the area containing the victims' apartment
"using Google" and that he received a search warrant authorizing him to ask Google to provide him with any "Google subscriber information" associated with devices within that area at the time of the trespass. In response, the officer obtained business records from Google's custodian of records and his review of those records showed that two Google accounts were in use on a device located in the area of the victims' apartment at the time of the trespass, but Google had "obfuscated" the identities of the individuals associated with those accounts. He then received additional business records from Google's custodian of records stating that both accounts were associated with the defendant.
On its face, the officer's testimony encompasses "elementary concepts"
that "the average juror [could] understand." DePaula, 170 N.H. at 155. Indeed, the officer merely described the process by which he requested business records from Google and his personal observations from his review of those business records. We conclude that any lay person would be capable of making those observations, i.e., that Google's business records say that only two Google accounts were in use on a device located in the victims' apartment
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at the time of the trespass and that both of those accounts were associated with the defendant. See Cochrane, 153 N.H. at 422 (explaining that lay testimony must be confined to personal observations which any lay person would be capable of making).
The defendant argues that pursuant to State v. DePaula, the officer lacked "sufficient personal knowledge" to provide lay testimony about Google's location history or to interpret Google's business records. DePaula, 170 N.H. at 154-55. Unlike the witnesses in DePaula, however, the officer's testimony about Google's location history was not based upon his personal knowledge on the subject gained through "specialized training and experience." Id. at 152-55 (explaining that lay witnesses needed "sufficient personal knowledge" to testify to collection and storage of cell phone records, ranges of cell towers, and how cell phones connect to cell towers, and that they gained that knowledge through "specialized training and experience interpreting cell phone records"). Instead, the officer merely reviewed Google's business records and testified that they represented that two Google accounts associated with the defendant were in use on a device located within the victims' apartment at the time of the trespass. He did not need to have personal knowledge of Google's location tracking technology, or have "specialized training and experience," to read Google's business records and make those observations. Id. at 154. Moreover, given the ubiquity of location tracking technology, the average juror would be able to understand the elementary concepts underlying the officer's testimony without him needing to have specialized training and experience in those technologies to explain them. See id. at 155.
The defendant asserts that the officer's lack of knowledge of Google's location tracking technology impeded his ability to cross-examine the officer or to probe the accuracy of Google's business records. These arguments, however, go to the weight of the evidence rather than its admissibility. See Cochrane, 153 N.H. at 420, 424 (explaining that concerns about false positive readings from a Horizontal Gaze Nystagmus test, and a police officer's training and experience in administering that test, go to the weight of the evidence rather than its admissibility); State v. Wall, 154 N.H. 237, 244 (2006) (explaining that a party need not prove that business records are accurate before they are admitted and that objections that a business record may contain inaccuracies, ambiguities, or omissions go to the weight of the evidence). Accordingly, we conclude that the trial court sustainably exercised its discretion.
The defendant further argues that the trial court erred when it denied his motion for a mistrial after the officer referenced his past arrests in Durham. The police officer testified that he called a phone number associated with one of the Google accounts and spoke with the defendant. The officer further testified that the defendant asked him if the call was related to his "past arrests in Durham." The defendant moved for a mistrial. The trial court denied the
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motion, struck the testimony from the record, and instructed the jury to disregard it.
Mistrial is the proper remedy only if the evidence or comment complained of is not merely improper, but is so prejudicial that it constitutes an irreparable injustice that cannot be cured by jury instructions. State v. Willey, 163 N.H. 532, 538 (2012). Because the trial court is in the best position to gauge the prejudicial nature of the improperly referenced conduct, it has broad discretion to decide whether a mistrial is warranted. Id. It is well-settled that an incurable prejudice may result when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense. Id. When deciding whether a defendant suffered irreparable injustice, we examine whether the inadmissible testimony unambiguously conveyed to the jury that the defendant had committed an act which was criminal in nature. State v. Turcotte, 173 N.H. 401, 405 (2020). The justification for a mistrial increases when the prior act identified is similar to the charged crime. Id.
Here, the police officer's testimony did not "unambiguously convey the defendant's prior criminal conduct to the jury." State v. Russo, 164 N.H. 585, 590 (2013). Indeed, the nature of the prior arrests was not revealed to the jury, and "the testimony did not identify any specific prior charge or conviction." Id. Because the challenged testimony was brief and isolated and did not identify any specific criminal conduct, charge, or conviction, we conclude that the trial court sustainably exercised its discretion when it denied the defendant's motion for a mistrial and, instead, struck the testimony from the record and instructed the jury to disregard it. See id. at 590-91 (holding that a witness's testimony regarding the defendant's parole status did not warrant a mistrial because the testimony was brief and isolated and identified no specific charge or conviction).
We have considered the defendant's remaining arguments, and we conclude that they do not require further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993); Sup. Ct. R. 25(8). Accordingly, we affirm. Affirmed.
MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ.,
concurred.
Timothy A. Gudas, Clerk