State v. McGlew

658 A.2d 1191, 139 N.H. 505, 1995 N.H. LEXIS 42
CourtSupreme Court of New Hampshire
DecidedMay 23, 1995
DocketNo. 93-072
StatusPublished
Cited by38 cases

This text of 658 A.2d 1191 (State v. McGlew) 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. McGlew, 658 A.2d 1191, 139 N.H. 505, 1995 N.H. LEXIS 42 (N.H. 1995).

Opinions

Brock, C.J.

The defendant, David McGlew, was convicted after a jury trial in Superior Court (Conboy, J.) of attempted felonious sexual assault pursuant to RSA 629:1 (1986) and RSA 632-A:3 (1986). On appeal, the defendant argues that the trial court erroneously admitted evidence of an uncharged, prior sexual assault under New Hampshire Rule of Evidence 404(b). We reverse and remand.

The defendant was accused of attempting to assault sexually a nine-year-old girl in March 1991. At that time, the defendant was visiting with the complainant’s family in Peterborough. One evening during the period of his visit, the defendant babysat the complainant while her mother was out of the home.

At trial, the complainant testified to the following. She was watching a movie on television when the defendant came into the living room with the zipper to his pants undone. He asked the complainant to lie on top of him on the couch and he rubbed her chest through her clothing. The defendant was moving his hand slowly toward her genital area when the complainant took his hand off of her and left the couch.

Over defense counsel’s objection, the court, pursuant to New Hampshire Rule of Evidence 404(b), allowed the State to introduce [507]*507testimony of a young boy who claimed to have been sexually assaulted by the defendant when the boy was four and one-half years old. This alleged assault occurred in 1985, approximately six years before the incident for which the defendant was convicted. The Commonwealth of Massachusetts had brought charges against the defendant stemming from the allegations made by the boy but later entered a nolle prosequi because the prosecution had “no credible evidence” against the defendant. The trial court allowed the testimony, finding it relevant to the issues of opportunity, plan, and the defendant’s intent. On appeal, the State has abandoned all bases of admissibility save intent.

The decision to admit “bad acts” evidence lies within the trial court’s sound discretion and will be overturned only if the defendant can show that the decision was clearly untenable or unreasonable to the prejudice of his case. State v. Whittaker, 138 N.H. 524, 526-27, 642 A.2d 936, 938 (1994). This court has articulated a three-part test to assess the admissibility of such evidence under Rule 404(b). The evidence must be relevant for a purpose other than proving the defendant’s character or disposition; there must be clear proof that the defendant committed the act; and the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant. Id. at 526, 642 A.2d at 938; see N.H. R. Ev. 403.

Furthermore, to be relevant, prior bad acts must be in some significant way connected to material events constituting the crime charged and not so remote in time as to eliminate the nexus. See State v. Allen, 128 N.H. 390, 397, 514 A.2d 1263, 1268 (1986); cf. State v. Richardson, 138 N.H. 162, 167, 635 A.2d 1361, 1365 (1993) (subsequent bad act evidence “must be fairly close in time and in some significant way connected to material events constituting the crime charged”).

Notwithstanding the defendant’s contention to the contrary, when intent is not conceded by the defense, and it is an element of the crime to be proven by the State, it is sufficiently at issue to require evidence at trial. State v. Bassett, 139 N.H. 493, 500, 659 A.2d 891, 896 (1995). Therefore, other bad acts evidence is not categorically excluded, as it would be were the issue of intent not contested. See id. at 497, 569 A.2d at 894; N.H. R. Ev. 401, 402.

In this case, the court admitted testimony concerning an event that allegedly occurred six years prior to the charged act and involved different sexual acts with a victim of a different sex from the instant complainant. We hold that this evidence does not meet the requirement that prior bad acts evidence be in some significant way connected to material events constituting the crime charged and not so remote in time as to eliminate the nexus. See Allen, 128 N.H. at 397, 514 A.2d at [508]*5081268; see also Whittaker, 138 N.H. at 528, 642 A.2d at 939 (five-year-old sexual assault committed in somewhat similar manner not evidence of plan under Rule 404(b)). Accordingly, we conclude that the admission of the young boy’s testimony in the instant case constituted an abuse of the trial court’s discretion because the testimony was not legally relevant to the defendant’s intent. See Whittaker, 138 N.H. at 528, 642 A.2d at 939.

We recognize that the rules of evidence and the sound discretion of the trial courts are usually sufficient to settle questions of admissibility. See Fenlon v. Thayer, 127 N.H. 702, 708, 506 A.2d 319, 323 (1986) (civil context). Recent developments, however, demonstrate a need to give guidance to the trial courts on the admissibility of evidence under Rule 404(b). See, e.g., Whittaker, 138 N.H. 524, 642 A.2d 936; Richardson, 138 N.H. 162, 635 A.2d 1361; Hastings, 137 N.H. 601, 631 A.2d 526; State v. Blackey, 137 N.H. 91, 623 A.2d 1331 (1993); State v. Roberts, 136 N.H. 731, 622 A.2d 1225 (1993).

Rule 404(b) allows for the admission of evidence of “other crimes, wrongs, or acts” for purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” N.H. R. Ev. 404(b). This court has warned against the mechanical recitation of intent, or other permissible Rule 404(b) grounds, “as the password for admissibility.” Hastings, 137 N.H. at 606, 631 A.2d at 530. The rule requires more. As the Supreme Court of Michigan has noted in interpreting Michigan’s predecessor statute to Rule 404(b):

Experience in the trial courtroom and review of trial records on appeal suggest rather incontrovertibly that, when asked by the trial judge to specify the grounds for admission of similar-acts evidence, prosecutors often loose a “shotgun” fusillade of reasons which typically include most, if not all, of the purposes named in the statute. Such a response hints, of course, if it does not demonstrate, that the prosecutor ... is unclear as to precisely why the evidence is or is not admissible.

People v. Golochowicz, 319 N.W.2d 518, 523-24 (Mich. 1982) (footnote omitted). Our experience has been similar. See State v. Hickey, 129 N.H. 53, 56, 523 A.2d 60, 62-63 (1986).

We have “strongly encourage[d] the tried court[s] to assist our review by making specific findings to support [their] evidentiary rulings . . . .” State v. Simonds, 135 N.H.

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Bluebook (online)
658 A.2d 1191, 139 N.H. 505, 1995 N.H. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcglew-nh-1995.