State v. Brewster

796 A.2d 158, 147 N.H. 645, 2002 N.H. LEXIS 52
CourtSupreme Court of New Hampshire
DecidedApril 29, 2002
DocketNo. 99-634
StatusPublished
Cited by13 cases

This text of 796 A.2d 158 (State v. Brewster) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brewster, 796 A.2d 158, 147 N.H. 645, 2002 N.H. LEXIS 52 (N.H. 2002).

Opinion

BROCK, C.J.

The defendant, Michael A. Brewster, appeals his conviction of harassment, RSA 644:4, 1(e) (Supp. 2001), following a jury trial in Concord District Court (Robbins, J.). He argues that the trial court erred in admitting evidence of prior bad acts pursuant to New Hampshire Rule of Evidence 404(b) and refusing to determine whether to suspend the defendant’s deferred sentence on the basis that it had no jurisdiction. We affirm in part, reverse in part and remand.

The record supports the following facts. The defendant was the subject of a court order for payment of child support. The victim, Gail Kirouac, a child support enforcement officer of the New Hampshire Division of Child Support Services (DCSS), had been responsible for the defendant’s case since 1992.

In 1999, the defendant called DCSS to speak to a supervisor. The receptionist, Carla Burgess, informed him that all of the supervisors were unavailable. She suggested that he speak to Kirouac. The defendant started to yell and stated that he wanted to speak to a supervisor. Burgess repeated that he should speak to Kirouac. Again, the defendant began to yell and then stated, “I want to shoot her.” He immediately hung up the phone. Burgess informed one of her supervisors of the incident and he called the police department and informed Kirouac of the incident. Kirouac, who was frightened and nervous, ended a meeting she was in and left work. Consequently, the defendant was charged with one count of harassment, RSA 644:4,1(e), and two counts of criminal threatening, RSA 631:4,1(b) (1996).

Prior to trial, the defendant moved to suppress, among other things, proffered evidence of a bad act that occurred two years earlier. At issue was whether the following evidence of the defendant’s prior bad act could be introduced at trial through the testimony of Kirouac. In August 1997, after a show cause hearing for payment of support, at which the defendant was ordered to pay $500, the defendant waited for Kirouac and started to follow her in the courthouse. As he got closer to Kirouac and she began to back up, court bailiffs intervened and told the defendant he had to leave. As the bailiffs walked the defendant to the door, he turned to Kirouac, pointed his finger at her and said, “No wonder people like you get shot.” After a hearing, the trial court admitted the evidence under Rule 404(b), holding that it was “both relevant and probative on the issue of whether [the defendant] acted... purposely... in the present cases.”

A jury found the defendant guilty of the harassment charge and acquitted him on the two criminal threatening charges. He was sentenced to nine months in the house of correction, with 164 days stand committed and the remainder deferred for six months on the condition of good behavior. This appeal followed.

[648]*648While the appeal was pending in this court, six months from the date of sentencing lapsed. The defendant, therefore, requested the trial court to determine whether he had satisfied the terms of his deferred sentence and to suspend the sentence if it found he had. The trial court denied his request, stating that “the appeal stays all further proceedings in this Court in regard to matters of sentencing supervision since [the defendant’s] appeal challenges the validity of his conviction and therefore the validity of the sentence. The trial court should not be supervising a sentence which [the defendant’s] appeal essentially argues was wrongfully imposed.”

On appeal, the defendant argues that: (1) the trial court erroneously admitted the evidence of the prior threatening behavior pursuant to Rule 404(b); and (2) the trial court erred when it ruled that it lacked authority to suspend the defendant’s deferred sentence.

The defendant argues that the trial court erred in admitting evidence of prior bad acts to prove the charge of harassment because it was offered to prove his propensity to act threateningly. The trial court’s ruling, reviewable only for an unsustainable exercise of discretion, is reversible only if clearly untenable or unreasonable to the prejudice of the defendant’s case. See State v. Richardson, 138 N.H. 162, 165-66 (1993); cf. State v. Lambert, 147 N.H. 295, 295 (2001) (explaining unsustainable exercise of discretion standard).

Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Prior bad acts evidence is admissible when it is relevant for a purpose other than proving the defendant’s character or disposition; there is clear proof that the defendant committed the act; and the probative value of the evidence is not substantially outweighed by its prejudice to the defendant. See State v. McGlew, 139 N.H. 505, 507 (1995). The State bears the burden of demonstrating the relevance of the prior bad acts. See McGlew, 139 N.H. at 509. The defendant challenges the trial court’s decision with respect to the first and third prongs.

The defendant argues that because his propensity was an essential link in making the evidence relevant to show intent and motive, it was not admissible under Rule 404(b). “To be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependent on the [649]*649defendant’s character or propensity, that the defendant had the same intent on the occasions of the charged and uncharged acts.” Slate v. Bassett, 139 N.H. 493, 499 (1995).

In Richardson, the defendant was convicted of, among other things, criminal threatening. See Richardson, 138 N.H. at 163. Over the defendant’s objection, the trial court admitted evidence of his prior acts of threatening and violent behavior towards the victim. See id. at 164. We found that evidence of the defendant’s previous threatening behavior against the victim “was relevant to and probative of his intent towards [the victim] and her own state of mind at the time of the charged offenses.” Id. at 166. The prior bad act evidence “made it more probable than not that the defendant on the later occasion acted with an intent to terrorize her and that those actions placed her in fear for her physical safety.” Id. We held that “while the prior acts evidence may have demonstrated the defendant’s propensity for violent behavior, it was relevant to his intent to act towards this particular victim in an intimidating manner.” Id. We found that “[s]uch evidence made it more probable than not that the defendant on the later occasion acted with an intent to terrorize her and that those actions placed her in fear for her physical safety.” Id.

Likewise, in the instant case, the prior bad acts evidence was relevant to proving the elements of both charges against the defendant. In the instant case, the State had the burden to prove both the charges of: (1) harassment, by showing that the defendant made the threat towards Kirouac with the purpose to annoy or alarm her, RSA 644:4, 1(e); and (2) criminal threatening, by showing he made the threat with the purpose to terrorize her, RSA 631:4. The defendant’s prior threatening behavior towards Kirouac was probative of his motive and intent towards Kirouac and also to her own state of mind at the time of the charged offenses.

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Cite This Page — Counsel Stack

Bluebook (online)
796 A.2d 158, 147 N.H. 645, 2002 N.H. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brewster-nh-2002.