CONBOY, J.
After a jury trial, the defendant, Thomas Willey, was convicted of one count of pattern aggravated felonious sexual assault. See RSA 632-A:2, III (2007). On appeal, he contends that the Trial Court ("Wageling, J.) erred in denying his motion for a mistrial or, in the alternative, for further curative instructions to the jury. He also argues that the trial court sentenced him based upon improper considerations. We affirm the conviction, but vacate the sentence and remand.
The jury could have found the following facts. The defendant was awarded custody of his daughter, J.H., when she was three years old. As J.H. grew older, she and the defendant developed a close bond. Their relationship deteriorated, however, after the defendant married his wife, Lori.
In 1999, the defendant, Lori, the couple’s two daughters, and J.H. moved to Lempster, where the defendant began molesting J.H., who at the time was fifteen years old. The sexual assaults occurred two to three times a week between July 1999 and July 2000.
J.H. testified that she told Lori about the assaults on numerous occasions, but Lori did not believe her. She also testified that she confided in friends at school, but she believed they were too young to help her. Believing “[n]obody was listening to [her],” J.H. attempted suicide by taking prescription pills. Following this incident, she was sent to live with her paternal grandfather.
While living with her grandfather, J.H. was interviewed by a state trooper and a social worker from the New Hampshire Division for Children, Youth and Families (DCYF) about her allegations concerning the defendant. During the interview, she recanted her accusations of sexual assault. At trial, she testified that she did so because she was “fed up” with [536]*536“everybody” accusing her of lying, and because her grandfather was present in the room. J.H. testified that, after this meeting, her grandfather began sexually assaulting her.
Sometime later, J.H.’s grandfather gave J.H. her mother’s telephone number. J.H. contacted her mother, Irene, whom she had not seen since she was six years old. When J.H. and Irene subsequently met, J.H. “told her everything.” Eventually, J.H. left her grandfather’s house and moved in with Irene.
Irene helped J.H. obtain a restraining order against the defendant and her grandfather. J.H. was then interviewed by an officer from the Warner Police Department about her accusations against her father and grandfather. Later, however, the restraining order was vacated because J.H. again recanted her allegations of assault. Soon after moving in with her mother, J.H. and Irene began arguing, and Irene accused J.H. of lying about the assaults. J.H. testified that because her mother kept insisting she was lying, she “agreed with her.” Subsequently, J.H. moved out.
Several years later, J.H. agreed to visit the defendant at her cousin’s home. Following this meeting, J.H. and her family regularly visited the defendant, Lori, and their daughters. Eventually, J.H.’s and Lori’s association evolved into “almost... a mother/daughter relationship,” such that J.H. provided Lori “moral support” as she separated from and ultimately divorced the defendant.
In 2008, J.H. met with State Trooper Eric Berube. Berube questioned J.H. about her earlier allegations against the defendant, and asked her to participate in one-party telephone interceptions of conversations with the defendant, to which she agreed. During the recorded telephone conversations, the defendant made “some statements,” but did not fully address the assaults.
Based on the results of his investigation, Berube arrested the defendant and took him to the Claremont police station, where Berube and another trooper interviewed him. Berube advised the defendant of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), which the defendant acknowledged and waived. At the defendant’s request, the interview was not recorded. During the interview, the defendant initially denied the allegations, but later, after the troopers informed him that they had the recorded telephone conversations between him and J.H. and offered to play them, the defendant admitted to sexually assaulting her. At trial, however, the defendant maintained his innocence, explaining he stopped “denying” the accusations to the police because he was “[frustrated” and “just didn’t want to be confronted... [and he] didn’t want to fight about it.” Ultimately, the defendant was convicted and sentenced to eight to twenty years in the New Hampshire State Prison.
[537]*537
1. Trooper Berube’s Testimony
The defendant argues that the trial court erred in refusing to grant a mistrial or, in the alternative, to provide further curative instructions to the jury after the State elicited allegedly “highly prejudicial and emotionally charged” testimony from Berube. Specifically, the defendant argues that “[v]iewed collectively, the disputed testimony and the court’s instruction unambiguously conveyed to the jury that [he] had engaged in [other] conduct closely related to the conduct at issue in the trial.”
During the State’s direct examination of Berube, counsel inquired about his initial contact with J.H., and the following colloquy ensued:
[State]: All right. The — I want to direct your attention to the spring, specifically to March of 2008, and ask if you had occasion to become aware of and to have contact with a [J.H.]?
[Trooper]: Yeah, I was investigating an unrelated matter for her sisters and then I became aware of it.
Defense counsel objected and immediately moved for a mistrial. After a bench conference, the trial court denied the defendant’s motion and issued the following instruction:
Ladies and gentlemen of the jury, I’m striking the last answer that was just provided by Trooper Berube and I’m instructing you to not consider his answer. The only matter that is before you today, and the only matter in existence in this case involves the allegations of [J.H.] against this defendant.
Later, defense counsel renewed his motion for a mistrial, or in the alternative, for “stronger” curative instructions that would make clear to the “jury that there [were] no other investigations, that no other daughters made any allegations against [the defendant], [and] that there [were] no other charges out there against [the defendant] involving other daughters.” Defense counsel maintained that without such instructions, the jury was “left with the impression that there may be other investigations out there.” Again, the trial court denied the defendant’s motion for a mistrial, finding that “[t]here’s no inference in this case, nor has there been any suggested by Trooper Berube or anybody else, that there’s any other allegation against [the defendant] other than the matter before this jury.” The court also declined to provide further curative instructions to the jury, noting that its “curative instruction did exactly what defense counsel [had] suggested need[ed] to be done.”
Subsequently, during cross-examination of Trooper Berube, defense counsel asked:
[538]*538[Defense]: I just want to clear one thing up first.
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CONBOY, J.
After a jury trial, the defendant, Thomas Willey, was convicted of one count of pattern aggravated felonious sexual assault. See RSA 632-A:2, III (2007). On appeal, he contends that the Trial Court ("Wageling, J.) erred in denying his motion for a mistrial or, in the alternative, for further curative instructions to the jury. He also argues that the trial court sentenced him based upon improper considerations. We affirm the conviction, but vacate the sentence and remand.
The jury could have found the following facts. The defendant was awarded custody of his daughter, J.H., when she was three years old. As J.H. grew older, she and the defendant developed a close bond. Their relationship deteriorated, however, after the defendant married his wife, Lori.
In 1999, the defendant, Lori, the couple’s two daughters, and J.H. moved to Lempster, where the defendant began molesting J.H., who at the time was fifteen years old. The sexual assaults occurred two to three times a week between July 1999 and July 2000.
J.H. testified that she told Lori about the assaults on numerous occasions, but Lori did not believe her. She also testified that she confided in friends at school, but she believed they were too young to help her. Believing “[n]obody was listening to [her],” J.H. attempted suicide by taking prescription pills. Following this incident, she was sent to live with her paternal grandfather.
While living with her grandfather, J.H. was interviewed by a state trooper and a social worker from the New Hampshire Division for Children, Youth and Families (DCYF) about her allegations concerning the defendant. During the interview, she recanted her accusations of sexual assault. At trial, she testified that she did so because she was “fed up” with [536]*536“everybody” accusing her of lying, and because her grandfather was present in the room. J.H. testified that, after this meeting, her grandfather began sexually assaulting her.
Sometime later, J.H.’s grandfather gave J.H. her mother’s telephone number. J.H. contacted her mother, Irene, whom she had not seen since she was six years old. When J.H. and Irene subsequently met, J.H. “told her everything.” Eventually, J.H. left her grandfather’s house and moved in with Irene.
Irene helped J.H. obtain a restraining order against the defendant and her grandfather. J.H. was then interviewed by an officer from the Warner Police Department about her accusations against her father and grandfather. Later, however, the restraining order was vacated because J.H. again recanted her allegations of assault. Soon after moving in with her mother, J.H. and Irene began arguing, and Irene accused J.H. of lying about the assaults. J.H. testified that because her mother kept insisting she was lying, she “agreed with her.” Subsequently, J.H. moved out.
Several years later, J.H. agreed to visit the defendant at her cousin’s home. Following this meeting, J.H. and her family regularly visited the defendant, Lori, and their daughters. Eventually, J.H.’s and Lori’s association evolved into “almost... a mother/daughter relationship,” such that J.H. provided Lori “moral support” as she separated from and ultimately divorced the defendant.
In 2008, J.H. met with State Trooper Eric Berube. Berube questioned J.H. about her earlier allegations against the defendant, and asked her to participate in one-party telephone interceptions of conversations with the defendant, to which she agreed. During the recorded telephone conversations, the defendant made “some statements,” but did not fully address the assaults.
Based on the results of his investigation, Berube arrested the defendant and took him to the Claremont police station, where Berube and another trooper interviewed him. Berube advised the defendant of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), which the defendant acknowledged and waived. At the defendant’s request, the interview was not recorded. During the interview, the defendant initially denied the allegations, but later, after the troopers informed him that they had the recorded telephone conversations between him and J.H. and offered to play them, the defendant admitted to sexually assaulting her. At trial, however, the defendant maintained his innocence, explaining he stopped “denying” the accusations to the police because he was “[frustrated” and “just didn’t want to be confronted... [and he] didn’t want to fight about it.” Ultimately, the defendant was convicted and sentenced to eight to twenty years in the New Hampshire State Prison.
[537]*537
1. Trooper Berube’s Testimony
The defendant argues that the trial court erred in refusing to grant a mistrial or, in the alternative, to provide further curative instructions to the jury after the State elicited allegedly “highly prejudicial and emotionally charged” testimony from Berube. Specifically, the defendant argues that “[v]iewed collectively, the disputed testimony and the court’s instruction unambiguously conveyed to the jury that [he] had engaged in [other] conduct closely related to the conduct at issue in the trial.”
During the State’s direct examination of Berube, counsel inquired about his initial contact with J.H., and the following colloquy ensued:
[State]: All right. The — I want to direct your attention to the spring, specifically to March of 2008, and ask if you had occasion to become aware of and to have contact with a [J.H.]?
[Trooper]: Yeah, I was investigating an unrelated matter for her sisters and then I became aware of it.
Defense counsel objected and immediately moved for a mistrial. After a bench conference, the trial court denied the defendant’s motion and issued the following instruction:
Ladies and gentlemen of the jury, I’m striking the last answer that was just provided by Trooper Berube and I’m instructing you to not consider his answer. The only matter that is before you today, and the only matter in existence in this case involves the allegations of [J.H.] against this defendant.
Later, defense counsel renewed his motion for a mistrial, or in the alternative, for “stronger” curative instructions that would make clear to the “jury that there [were] no other investigations, that no other daughters made any allegations against [the defendant], [and] that there [were] no other charges out there against [the defendant] involving other daughters.” Defense counsel maintained that without such instructions, the jury was “left with the impression that there may be other investigations out there.” Again, the trial court denied the defendant’s motion for a mistrial, finding that “[t]here’s no inference in this case, nor has there been any suggested by Trooper Berube or anybody else, that there’s any other allegation against [the defendant] other than the matter before this jury.” The court also declined to provide further curative instructions to the jury, noting that its “curative instruction did exactly what defense counsel [had] suggested need[ed] to be done.”
Subsequently, during cross-examination of Trooper Berube, defense counsel asked:
[538]*538[Defense]: I just want to clear one thing up first. You testified yesterday, when asked about how you first became aware of [J.H.], that you had been involved in an unrelated investigation concerning her sisters?
[Trooper]: Yes, I did.
[Defense]: That investigation did not result in any allegations of misconduct against [the defendant], correct?
[Trooper]: No, there were no allegations of any criminal conduct against [the defendant] in that investigation at all.
The defendant argues that the trial court’s rulings were erroneous because: (1) “contrary to the court’s recollection, it had not given the jury the instruction the defense requested”; (2) “the evidence, together with the limited instruction . . . conveyed that [the defendant] had committed acts similar to the conduct at issue against his other daughters”; and (3) although Trooper Berube’s testimony on cross-examination lessened the prejudice, it was insufficient to cure the harm.
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. Ellsworth, 151 N.H. 152, 154 (2004). Because the trial court is in the best position to gauge the prejudicial nature of the conduct at issue, it has broad discretion to decide whether a mistrial is warranted. State v. Kerwin, 144 N.H. 357, 359 (1999). “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. The infusion of such evidence into a trial is probably only equaled by a confession in its prejudicial impact upon a jury.’ ” Id. at 360 (quoting State v. Woodbury, 124 N.H. 218, 221 (1983) (citations and quotation omitted)). Thus, “[t]he proper inquiry in this case, for determining whether the defendant was so substantially prejudiced that the remedy of mistrial was required, is whether the fact that the alleged prior acts were criminal in nature was unambiguously revealed to the jury.” State v. Carbo, 151 N.H. 550, 554 (2004).
Here, Berube’s testimony did not unambiguously reveal evidence of prior criminal acts by the defendant. Rather, Berube testified that he had been “investigating an unrelated matter” involving J.H.’s half sisters. (Emphasis added.) Berube’s reference to another investigation was not specific and did not clearly convey criminal conduct by the defendant. See [539]*539State v. Rogers, 138 N.H. 503, 505 (1994) (mistrial not required if challenged evidence is ambiguous as to inculpation). Compare Kerwin, 144 N.H. at 361 (holding that statement that “that man raped some girl” was highly prejudicial and warranted mistrial), and State v. Ayotte, 146 N.H. 544, 548 (2001) (holding that testimony about prior fire was similar to charged offense and warranted mistrial), with State v. Ellison, 135 N.H. 1, 5-6 (1991) (holding that a mistrial was not required in assault case where inadmissible testimony that the defendant previously fractured victim’s nose could be viewed as an accident and thus was ambiguous as to criminal nature of conduct). Moreover, any inference that the unrelated investigation concerned criminal conduct by the defendant was dispelled by the trooper’s testimony that “there were no allegations of any criminal conduct against [the defendant] in that investigation.”
In addition, the trial court gave a curative instruction immediately following its ruling on the motion for a mistrial, directing the jury to disregard Berube’s answer and focus on the “only matter in existence .. . the allegations of [J.H.] against this defendant.” The jury is presumed to follow the trial court’s curative instruction. State v. Gibson, 153 N.H. 454, 460 (2006). We are not persuaded by the defendant’s argument that the trial court erred because it did not give “the instruction the defense requested.” Because the trial court is in the best position to gauge prejudicial impact, it has broad discretion to fashion the appropriate remedial action. See Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264, 268 (2003); see also State v. Boetti, 142 N.H. 255, 259 (1997) (noting the trial court is granted “considerable deference” in instructing the jury).
II. The Sentencing Hearing
The defendant next contends that the trial court considered improper evidence in determining his sentence. At the sentencing hearing, the prosecution focused upon the defendant’s “gross lack of remorsefulness, a lot of denial, [and lack of]... empathy for [J.H.]” as well as “his efforts to avoid and evade responsibility and accountability for what he did to [J.H.].” The prosecution observed that “throughout the course of this case, throughout the investigation part, and throughout the trial part, on a number of occasions, [the defendant] has come close, tried to come close maybe, to doing the right thing only always in the end to slip once again down that slope of denial.” “At trial,” the prosecution noted, “the defendant was solemnly in denial mode.” Because of the “nature of the offense and [his] chronic and persistent shifting of blame, . . . denial, [and] lack of getting it that this happened, [he] did it, [he] own[s] it,” the prosecution proposed sentencing the defendant to no less than eight and no more than [540]*540twenty years in prison. The defendant objected to the factors upon which the prosecution relied, asserting that they violated his constitutional right to proceed to trial and to remain silent at sentencing:
[To] the extent that the State’s recommendation in terms of sentencing is based on [the defendant] having a trial and/or remaining silent here today at the sentencing hearing, which is his intent... to the extent that the recommendation is driven by that, that. . . result would be prohibited by State vs. Burgess and the Supreme Court opinion in that case.
Ultimately, the trial court adopted the State’s recommended sentence, and before rendering sentence, made the following remarks, which the defendant challenges on appeal:
And one of the things that I thought about as I read through all those notes is the fact that this defendant, like all defendants, absolutely is entitled to a trial and all the protections of the constitution. But there’s a difference between making the State prove their case, prove whether or not the person is guilty or not guilty, and the type of defense that’s lodged against those sorts of attacks by the State. And what this defendant did, in his choice, in terms of the defense he raised in this case and what he apparently continues to do in his interactions with his family is that he, by his behavior, by his choice, has chosen to destroy in any way he can this victim, not only by accusing her repeatedly of lying and coming up with a variety of reasons why she lied, accusing her in front of this jury of being promiscuous, and that is .. . that’s the reason that there was a discussion of pregnancy in the one party, setting his family up to choose between him and [J.H.] by his actions. ... By his choices, he has set this victim up for destruction.
The fact that the defendant in the face of the evidence against him has chosen to call [J.H.], in all intent, a whore, a liar, somebody who made such a terrible lie up simply because she was trying to help his ex-wife in a divorce, and those are the reasons that he provided to us for her lies, the fact that he would go to those extremes, the fact that he would set her family up against her in his effort to deny and his effort to not take responsibility, his total lack of remorse and empathy [for] the victim can be taken into consideration by this court because there is an impact on this [541]*541victim for Ms behavior. There is absoMtely no retribution coming back towards this victim. . . . She was the victim, and he is not taking responsibility. He is turning her family against her by his choices.
The defendant argues that these comments demonstrate that the trial court penalized him for exercising his right to a trial and his privileges to testify on his own behalf and to remain silent at the sentencing hearing and, in so doing, violated his state and federal constitutional rights. See N.H. CONST, pt. I, arts. 15,18; U.S. CONST, amends. V, VI, XIV. Pointing to the trial court’s references to the “type of defense” he pursued at trial, he asserts that the court erred when it “took issue with [his] theory of defense, which had attacked the reliability and credibility of J.H.’s allegations.” The State and the dissent counter that these comments reflect that the trial court considered the defendant’s false trial testimony and lack of remorse.
We first address the parties’ arguments under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231, 233 (1983). The State Constitution requires the trial court to consider several objective factors before imposing any sentence, including whether the sentence imposed will meet the traditional goals of sentencing — punishment, deterrence and rehabilitation. State v. Burgess, 156 N.H. 746, 751 (2008); see N.H. Const, pt. I, art. 18. “Although a sentencing judge has broad discretion to choose the sources and types of evidence upon which to rely in imposing sentence, that discretion is not unlimited.” State v. Lambert, 147 N.H. 295, 295-96 (2001). “If improper evidence is admitted at sentencing, the sentence imposed must be reconsidered unless the trial court clearly gave that evidence no weight.” Burgess, 156 N.H. at 751-52 (quotation omitted). While we normally review a trial court’s sentencing decision under our unsustainable exercise of discretion standard, where, as here, the defendant asserts that his constitutional rights have been violated as a result of the trial court’s sentencing decision, we review that decision de novo. Id. at 752. In this case, because we cannot conclude on the record before us that the trial court “clearly gave ... no weight” to improper factors, we vacate the defendant’s sentence and remand for resentencing. Id. at 751-52 (quotation omitted).
A. “Type of Defense”
We first consider the defendant’s assertion that the court erred by considering the “type of defense” he raised at trial. A defendant has a constitutional right to “be fully heard in his defense, by himself, and counsel.” N.H. CONST, pt. I, art. 15. This encompasses “the right to present a defense, the right to present the defendant’s version of the facts as well [542]*542as the prosecution’s to the jury so it may decide where the truth lies,” as well as “the right to confront the prosecution’s witnesses for the purpose of challenging their testimony,” and the “right to present [one’s] own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19 (1967); see State v. Guaraldi, 127 N.H. 303, 306-07 (1985). Here, we conclude that the trial court’s comments imply that the court may have penalized the defendant for his attorney’s trial strategy.
We have never before addressed the extent to which a court may penalize a defendant for his attorney’s trial strategy and have found scant authority from other jurisdictions on this question. We find State v. Gribble, 636 N.W.2d 488 (Wis. Ct. App. 2001), informative. The defendant in Gribble was convicted of first-degree homicide arising from the death of a twenty-month-old child resulting from severe head injuries caused by either “shaken-baby syndrome” or “shaken-impact syndrome.” Gribble, 636 N.W.2d at 495. The defendant’s defense at trial was that he did not inflict the fatal injuries on the child, but that the child’s mother did so. Id. Toward this end, defense counsel attacked the mother’s credibility and raised questions about her ability to care for her children. Id. The defense also elicited testimony to demonstrate that the mother had difficulty controlling her temper and had previously thrown and shaken her children. Id. The defendant testified at trial and, although he did not directly accuse the mother, his “testimony was the foundation of the defense strategy, because without it there was no evidence [the mother] had access to the child in the relevant time period.” Id. at 510.
When sentencing the defendant, the trial court explained that a “significant aggravating factor” upon which it relied was that the defendant “had pursued a defense of putting [the mother’s] past life and troubles on trial and asserting that she killed her child. This, in the court’s view, victimized [the mother] further.” Id. at 509. Specifically, the trial court stated that it was “satisfied . . . that the line of defense offered by [the defendant] was false,” although not “perjurous per se.” Id. (quotation and brackets omitted). The court explained that it considered the defendant’s defense as an aggravating factor because it “subjected [the mother] and her family to essentially being further victimized and further aggravated] the nature of the offense which they suffered.” Id. (quotation omitted).
On appeal, the defendant argued that the trial court had improperly held him responsible for his counsel’s trial strategy. Id. The appellate court disagreed, stating that it was satisfied based upon its review of the record that the trial court had properly considered the defendant’s own testimony and “considered the defense strategy only insofar as it was based on that testimony, which was within [the defendant’s] control.” Id. at 510.
[543]*543In the instant ease, some of the trial court’s comments likewise suggest that the court merely considered the defendant’s own testimony and actions. For instance, the trial court chided the defendant for choosing “to destroy in any way he can this victim” through “his interactions with his family” and “by accusing her repeatedly of lying and coming up with a variety of reasons why she lied, accusing her in front of this jury of being promiscuous.” The trial court focused, as well, upon the defendant’s choice “to sexually abuse [J.H.] in the very, very tender years of her adolescence” and for allowing her “to crash and burn as a teenager.” The court also stated that the defendant chose “to call [J.H.], in all intent, a whore, a liar, somebody who made such a terrible lie up simply because she was trying to help his ex-wife in a divorce, and those are the reasons that he provided to us for her lies.”
However, other comments by the trial court suggest that the court was focusing upon the defendant’s attorney’s trial tactics. For instance, the trial court stated: “But there’s a difference between making the State prove [its] case, prove whether or not the person is guilty or not guilty, and the type of defense that’s lodged against those sorts of attacks by the State.” The trial court further referred to “what this defendant did, in his choice, in terms of the defense he raised in this case.”
Based upon our review of the record, we are not satisfied that the trial court considered the defense strategy only insofar as it was based upon the defendant’s own testimony. See id,.; see also State v. Davenport, 941 So. 2d 629, 633 (La. Ct. App. 2006) (trial court erred in concluding that defense counsel’s strategy of attempting to introduce evidence of victim’s condition immediately before accident “equated to a lack of remorse on the part of the defendant”). Accordingly, to the extent that the trial court considered defense counsel’s trial tactics in its sentencing determination, the trial court erred.
B. False Testimony
We next address the assertion by the State and the dissent that the trial court’s comments merely reflect the court’s determination that the defendant testified falsely. We disagree that this is a supportable construction of the trial court’s comments at the sentencing hearing. In its comments, the trial court never stated that it believed the defendant testified falsely. Although the trial court stated that it found “the testimony of [J.H.] to be quite credible,” and implied that it found the defendant’s testimony not to be credible, it did not state that it found the defendant’s testimony to be false. In other words, it did not affirmatively find that the defendant lied on the stand. In this way, the trial court’s comments in the instant case differ from the trial court’s comments in Gribble. In Gribble, [544]*544the trial court specifically stated that it believed that the defendant’s “line of defense . . . was false.” Gribble, 636 N.W.2d at 509 (quotation omitted). Thus, we cannot conclude that the trial court based its sentencing decision upon a finding that the defendant testified falsely. See United States v. Dunnigan, 507 U.S. 87 (1993), abrogated on other grounds by United States v. Wells, 519 U.S. 482 (1997).
C. Lack of Remorse
Finally, we address the assertion by the State and the dissent that the trial court’s comments at sentencing also reflect its determination that the defendant lacked remorse. Although we agree that the trial court’s comments demonstrate that it considered the defendant’s lack of remorse, we are concerned that the trial court may have done so unlawfully.
We most completely addressed the circumstances under which a sentencing court may consider a defendant’s lack of remorse in Burgess, 156 N.H. 746. The question before us in Burgess was whether a trial court could presume from a defendant’s silence at sentencing that he lacked remorse. Burgess, 156 N.H. at 754. We began by acknowledging that it is unconstitutional for a trial court to consider a defendant’s failure to admit guilt as a factor in sentencing. Id. at 754-55. We then aligned ourselves with those courts that reject a distinction between failing to express remorse and refusing to admit guilt. Id. at 755-57 (citing cases); see Com. v. Jones, 884 N.E.2d 532, 536-37 (Mass. App. Ct. 2008) (discussing split in jurisdictions). We explained that for a defendant to express remorse truthfully, he must to some degree acknowledge wrongdoing and guilt. Burgess, 156 N.H. at 757. “In either case, the defendant must admit wrongdoing and jeopardize his post-trial remedies, testify falsely and risk a perjury conviction, or remain silent and risk obtaining a greater sentence.” Id. We held that just as it is unconstitutional to increase a defendant’s punishment because he refuses to admit guilt, so too is it unconstitutional for a court to draw an adverse inference of lack of remorse from a defendant’s silence at sentencing. Id. at 754-55, 757-58. “[B]ecause the only affirmative way for a defendant who maintains his innocence throughout the criminal process to express remorse at sentencing is to forego his right to remain silent,” using a defendant’s silence at sentencing to infer that he lacks remorse generally violates a defendant’s constitutional privilege against self-incrimination. Id. at 757-58, 760.
In Burgess, we concluded that whether a sentencing court’s inference of a lack of remorse from a defendant’s silence at sentencing violates the privilege against self-incrimination depends upon the factual circumstances of the case. Id. at 760. When a defendant admits to [545]*545committing the acts underlying the charged crime, but disputes that he had the requisite mental state or asserts a legal justification for committing those acts, his silence at sentencing “might, in certain instances, legitimately be considered as a lack of remorse.” Id.
For instance, in Burgess, the defendant was convicted of attempted escape and possessing an implement for escape. Id. at 747. At trial, he admitted that he used a paper clip that he found on the floor of the holding cell to cut his shoelace, which he then used to keep the brace on his leg open. Id. at 748. The sheriffs department had placed a leg brace on the defendant while he was in the holding cell in the basement of the courthouse to prevent him from running. Id. at 747-48. The defendant testified that he disabled the lock on the brace only because the brace pinched him; he denied that he intended to escape. Id. at 748-49.
In light of his trial testimony, we held that the trial court permissibly considered the defendant’s silence at sentencing. Id. at 761. Given that he confessed to committing the acts underlying the crimes of which he was convicted, “his right to remain silent was not implicated because he would not have risked incriminating himself or jeopardizing his post-trial rights by expressing remorse for his acts” at sentencing. Id. The defendant’s “asserted lack of intent to escape would not have conflicted with any feelings of remorse.” Id. Accordingly, we held that because the defendant could have expressed remorse at sentencing without waiving his right to remain silent, the trial court did not err when it denied him leniency based upon his silence at sentencing. Id.
By contrast, when a defendant maintains his innocence throughout the criminal process and denies committing the predicate acts comprising the charged crime, his silence at sentencing may not be considered as a lack of remorse. See id. at 760. In such a case, a defendant “risks incriminating himself if he expresses remorse at sentencing,” and, thus, a sentencing court “may not draw a negative inference of lack of remorse” from his silence at sentencing. Id. We applied Burgess in State v. Lamy, 158 N.H. 511 (2009), where we held that the trial court did not violate the defendant’s constitutional rights by concluding that he lacked remorse because he admitted committing the acts underlying the charged crimes, but maintained that the incident was an accident. Lamy, 158 N.H. at 524-25.
Having recognized in Burgess, 156 N.H. at 757, that there is no distinction between the failure to admit guilt and the failure to express remorse, we now hold that a defendant’s failure to express remorse at trial may not be considered in sentencing. When, as in this case, a defendant has maintained his innocence throughout the criminal process, a trial court’s consideration of a defendant’s failure to affirmatively express remorse at [546]*546trial offends his constitutional privilege against self-incrimination. See id. at 756-57; see also People v. Young, 987 P.2d 889, 894-95 (Colo. Ct. App. 1999) (when defendant invokes right to silence at trial and sentencing, he has “no opportunity to express remorse”); Brake v. State, 939 P.2d 1029, 1033 (Nev. 1997) (sentencing court violated defendant’s Fifth Amendment rights when defendant had “maintained his innocence of the crime for which he was ultimately convicted and was unable to express remorse and admit guilt... without foregoing his right to not incriminate himself’); Brown v. State, 934 P.2d 235, 245-46 (Nev. 1997) (considering defendant’s refusal to express remorse violated his Fifth Amendment right not to be compelled to be witness against himself; fact that he took stand at trial does not change analysis because he maintained his innocence). As we explained in Burgess, “since contrition or remorse necessarily implies] guilt, it would be irrational or disingenuous to expect or require one who maintains his innocence to express contrition or remorse.” Burgess, 156 N.H. at 756 (quotation omitted). In such a case, the defendant cannot express remorse without risking incriminating himself. “[T]he only affirmative way for a defendant ... to express remorse” would be to waive his privilege against self-incrimination. Id. at 757. We note that our holding — that a sentencing court may not consider a defendant’s failure to express remorse at trial — does not preclude a court from considering other evidence that indicates a defendant’s lack of remorse. See id. at 760.
Here, the trial court’s comments suggest that the court may have considered, at least in part, the defendant’s failure to affirmatively express remorse, either at trial or at sentencing. Although the trial court stated that it “accepted] as true ... that we shouldn’t be staring down the face of [the defendant] looking for acceptance of responsibility and empathy [toward] ... the victim, as it relates to his rehabilitation and the likelihood of his recidivism,” the court did not “accept as true” that his failure to accept responsibility or exhibit empathy toward the victim “mean[t] nothing.” The court stated that it specifically considered the defendant’s “effort to not take responsibility, his total lack of remorse and empathy [toward] the victim . . . because there is an impact on this victim for his behavior.” The court concluded: “And that is an impact I will not tolerate. She did nothing wrong. She was the victim, and he is not taking responsibility.” These comments suggest that the trial court may have impermissibly based its finding that the defendant lacked remorse either upon his failure to express remorse in his trial testimony or upon his silence at sentencing.
Because we cannot conclude either that the trial court “clearly gave ... no weight” to the improper factors we have identified, id. at 752 (quotation omitted), or that it would have imposed the same sentence but [547]*547for any improper factors that it may have considered, see United States v. Onwuemene, 933 F.2d 650, 652 (8th Cir. 1991), we vacate the defendant’s sentence and remand for resentencing. We must err on the side of protecting the defendant’s constitutional rights. See State v. Parker, 155 N.H. 89, 92 (2007); see also State v. Nichols, 247 N.W.2d 249, 256 (Iowa 1976) (any doubt as to whether trial court gave weight to fact that defendant exercised his constitutional rights when it sentenced him “must be resolved in favor of [the] defendant”).
As the defendant prevails under the State Constitution, we need not reach his federal claims. See Ball, 124 N.H. at 237.
Conviction affirmed; sentence vacated; and remanded.
HlCKS, J., concurred; DALIANIS, C.J., concurred specially; Lynn, J., concurred in part and dissented in part.