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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Belknap No. 2005-185 THE STATE OF NEW HAMPSHIRE v. GRAHAM GIBSON Argued: March 8, 2006 Opinion Issued: April 27, 2006 Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, Graham Gibson, appeals his conviction by a jury in the Superior Court (Perkins, J.) of three counts of felonious sexual assault. See RSA 632-A:3 (Supp. 2005). We affirm. The record supports the following facts. The victims in this case are identical twin sisters, MG and KG, born in 1981. On December 24, 2000, MG and KG, who no longer lived with their parents, were home visiting. Their father, the defendant, began yelling that he needed scissors for wrapping Christmas presents. Upon hearing the defendant yell, KG became "really angry" and yelled back at him. MG and her mother entered the room at this point. KG then accused the defendant of sexually assaulting her and MG as

young children by forcing them to masturbate him. MG agreed, stating that the assaults happened "[a]ll the time." Approximately three days later, KG, MG and their mother left the house and went to New York, where the mother remained. During the weeks following December 24, 2000, both KG and MG allegedly recovered memories of numerous incidents of sexual abuse by the defendant throughout their childhood until they were approximately thirteen years old. Neither victim received psychological counseling in the months after December 24, 2000, during which time both recovered memories that they described as having been "repressed." A grand jury returned ninety-seven indictments against the defendant for felonious sexual assault of MG and KG. See RSA 632-A:3. Before trial, the defendant moved to dismiss the indictments, arguing that the victims' testimony in support of the charges was based upon recovered memories that were unreliable under State v. Hungerford, 142 N.H. 110, 125-26 (1997). The trial court conducted a pretrial evidentiary hearing to determine the reliability of the victims' testimony. At this hearing, the defendant conceded that both MG and KG had continuous memories of incidents involving pink bath mitts. The trial court found that MG and KG had recovered memories of other sexual assaults that had been repressed, and ruled that testimony based upon these memories was "unreliable under Hungerford." As a result, the court dismissed eighty-nine indictments, stating in its order that "the [unreliable] testimony is central to [these] indictments." The court ruled, however, that "[KG] and [MG] may testify to events that each always had a recollection of." Of the eight remaining indictments, two alleged alternative theories for a single event: one charged that the defendant had "touched his penis to [KG's] hand" and the other charged that he had "touched his penis to [KG's] soapy, mitted hand." The other six indictments alleged that the defendant had "placed his penis in [MG's] baby-oiled and mitted hand" on six separate occasions during six separate weeks. Both KG and MG testified at trial that these particular assaults took place when they were approximately five years old and involved touching the defendant while wearing pink bath mitts on their hands. At the close of the State's case, the trial court dismissed five of the six charges involving MG. The jury convicted the defendant of the remaining three charges. On appeal, the defendant first argues that the trial court should have stricken portions of MG's testimony and dismissed the charge that the defendant sexually assaulted MG. He contends that MG's testimony was based upon recovered memories that were unreliable under Hungerford. Second, the defendant argues that the trial court should have granted his motion for a mistrial following certain testimony by MG. He argues that her testimony

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prejudiced him by alleging prior criminal acts, and that the prejudice was not sufficiently cured by the court's curative instruction. We address each argument in turn. I. Motions to Strike and Dismiss

The defendant argues that MG's trial testimony "reveal[s] that her testimony drew not only on [her] continuous memories, but also on her previously-repressed memories" and thus was inadmissible under Hungerford. He argues that the assault charge involving MG was based upon inadmissible repressed memories and therefore it should have been dismissed. In Hungerford, 142 N.H. at 113-16, we addressed whether two witnesses could testify to memories of sexual abuse that they had repressed and subsequently recovered. We described "recovered memory" as memory "that previously had been completely absent from a witness's conscious recollection." Id. at 119. We held that "testimony that relies on memories which previously have been partially or fully repressed must satisfy a pretrial reliability determination." Id. We then considered "the showing that the proponent must make before evidence of the content of repressed memories will be admissible at trial." Id. at 121. We ruled that the proponent of the recovered memory must establish that the memory is reliable, by showing "a reasonable likelihood that the recovered memory is as accurate as ordinary human memory," in order for it to be admissible. Id. at 125. Our holding in Hungerford applied only to repressed memories that were subsequently recovered; continuous memories are not subject to the rigorous Hungerford analysis. See N.H. R. Ev. 601. Here, the defendant argues that MG's testimony was unreliable because it was based upon repressed memories that she recovered after the December 24, 2000 altercation with the defendant. As we noted above, following the pretrial evidentiary hearing, the court dismissed eighty-nine indictments, finding that they were based upon subsequently recovered repressed memories that were unreliable under Hungerford. The trial court refused to dismiss six assault charges involving MG, finding that they were based upon her continuous memories. On appeal, the defendant does not challenge the trial court's pretrial ruling. He instead argues that MG's trial testimony was, in fact, based upon her repressed memory. The admissibility of evidence is a matter left to the sound discretion of the trial court. State v. Rogan, 151 N.H. 629, 631 (2005). Because the trial court is in the best position to gauge the prejudicial impact of particular testimony, we will not upset the trial court's ruling unless it was an

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unsustainable exercise of discretion. Id. at 631-32. To sustain his burden, the defendant must show that the trial court's decision was unreasonable to the prejudice of his case. See id. at 632. When questioned by the prosecutor during trial about the frequency of the alleged pink mitt assaults, MG testified, "I don't know how to answer that. I'm not sure if I can answer that." When asked about whether she and KG were naked when the assaults took place, MG stated, "[W]e were naked,

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