State v. Castine

681 A.2d 653, 141 N.H. 300, 1996 N.H. LEXIS 95
CourtSupreme Court of New Hampshire
DecidedAugust 15, 1996
DocketNo. 95-402
StatusPublished
Cited by13 cases

This text of 681 A.2d 653 (State v. Castine) 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. Castine, 681 A.2d 653, 141 N.H. 300, 1996 N.H. LEXIS 95 (N.H. 1996).

Opinion

Johnson, J.

The defendant, Richard Castine, was convicted of one count each of felonious sexual assault, RSA 632-A:3 (1986), and aggravated felonious sexual assault on a child under thirteen years of age, RSA 682-A:2 (Supp. 1995). On appeal, he argues that the Superior Court (Mohl, J.) erred in admitting: (1) testimony of prior uncharged assaults on the victim, see N.H. R. Ev. 404(b); and (2) three pornographic magazines and portions of a sexually explicit videotape, see N.H. R. Ev. 403. The defendant also argues that the trial court erred in denying his motion to dismiss the felonious sexual assault charge based on sufficiency of the evidence. We affirm.

The victim moved into the home of Joseph and Winifred Brown in Burlington, Massachusetts, when she was four or five years old. The defendant, who was married to the Browns’ daughter, occupied an apartment located in the basement of the residence. The incidents leading to the defendant’s convictions occurred during the summer of either 1985 or 1986, when the victim was nine or ten years old and was vacationing with the family at Ayers Lake Campground in Barrington, New Hampshire. The victim testified that while she and the defendant were alone at the campground, the defendant had her fondle his penis and perform an act of fellatio. The victim did not report the assaults until 1992, after she had moved out of the Browns’ home and was living in Rochester, Vermont. The defendant was subsequently convicted for the assaults in New Hampshire, and this appeal followed.

I. Prior Bad Act Evidence

The defendant first argues that the trial court improperly admitted testimony of prior sexual assaults on the victim by the defendant in violation of New Hampshire Rule of Evidence 404(b). At trial, the victim was allowed to testify that during the year preceding the incidents at Ayers Lake, she was sexually assaulted by the defendant.

Rule 404(b) provides that:

[302]*302Evidence 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.

The purposes and goals of this rule are well established, see, e.g., State v. McGlew, 139 N.H. 505, 509, 658 A.2d 1191, 1195 (1995), and will not be repeated here. We review the trial court’s exercise of discretion to determine whether its “ruling was clearly untenable or unreasonable to the prejudice of the [defendant’s] case.” State v. Whittaker, 138 N.H. 524, 527, 642 A.2d 936, 938 (1994) (quotation omitted).

The standard of admissibility is familiar:

Evidence is admissible under Rule 404(b) if it is relevant for a purpose other than showing the defendant’s character or disposition, there is clear proof that the defendant committed the act, and the prejudice to the defendant does not substantially outweigh the probative value of the evidence.

State v. Koehler, 140 N.H. 469, 471, 669 A.2d 788, 790 (1995).

The defendant challenges the trial court’s ruling under both the relevance and prejudice prongs of the test set forth above. We begin with our relevance analysis, noting that “to be relevant, prior bad acts must be in some significant way connected to material events constituting the crime charged.” McGlew, 139 N.H. at 507, 658 A.2d at 1193. We consider only what was presented at the pretrial hearing on the admissibility of this testimony in reviewing its relevance. See State v. Bassett, 139 N.H. 493, 497, 659 A.2d 891, 895 (1995).

The trial court ruled that the challenged testimony was admissible under both the “plan” and “preparation” exceptions to Rule 404(b). The court found that “[t]he victim’s testimony demonstrated that the defendant began to prepare her as a sexual victim . . . [in] a concerted and detailed effort to groom [her] . . . for what turned out to be years of sexual predation.”

The victim testified that when she was eight or nine years old, the defendant began showing her pornographic magazines depicting various sexual acts. Often, he would point out to her specific photographs, in particular those depicting oral sex. While at first the defendant merely displayed certain photographs, over time he began to take her hand and have her fondle his penis while showing her the magazines. Eventually, the defendant also began showing the victim pornographic videotapes. The fondling then progressed [303]*303into demands for fellatio. The victim testified that the defendant used the pornographic materials as a “how-to-guide” and that the frequency of these assaults gradually escalated to approximately once per week. The court found that this testimony was relevant to show that the defendant was “the person who[] committed the charged acts because these acts were but a part of a much larger and very calculated plan by the defendant to subject this particular victim to years of sexual exploitation,” see generally E. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 3:21 (1995) (plan is relevant to show defendant was perpetrator), but was inadmissible “to show he is the kind of person who would commit the charged crimes.” (Emphasis omitted.) See McGlew, 139 N.H. at 510, 658 A.2d at 1195 (trial court must articulate for the record the theory upon which evidence is admitted “without invoking propensity”).

We have recently stated that

[t]he distinguishing characteristic of a plan is the existence of a true plan in the defendant’s mind which includes the charged and uncharged crimes as stages in the plan’s execution. Viewed objectively, the other bad acts must clearly tend to show that the defendant had a definite prior design or system which included the doing of the act charged as part of its consummation. . . . [T]he prior conduct and the charged act [must be] mutually dependent.

State v. Melcher, 140 N.H. 823, 828, 678 A.2d 146, 149 (1996) (quotations and citations omitted).

While a series of sexual acts with the same victim may “resemble[] a design in retrospect[,] . . . [t]here are many instances in which isolated, discrete sexual assaults may have occurred on the same victim without the defendant’s having a plan in mind.” Id. at 828, 678 A.2d at 149. Thus in Melcher, we found that the prior uncharged conduct of the defendant was comprised of a series of unrelated and disparate acts that were not “mutually dependant” and therefore did not constitute a plan.

We do not reach the same conclusion here, however, because unlike Melcher, the challenged testimony in this case described a series of interdependent acts which, along with the charged act, were part of a calculated design by the defendant to “groom” the victim. Cf. id. at 829, 678 A.2d at 150 (uncharged acts failed to show a plan because the charged act clearly “did not hinge” on the occurrence of the uncharged acts).

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Bluebook (online)
681 A.2d 653, 141 N.H. 300, 1996 N.H. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-castine-nh-1996.