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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 95-819
THE STATE OF NEW HAMPSHIRE
v.
THOMAS CROSBY
July 1, 1997
Jeffrey R. Howard, attorney general (Ann M. Rice, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, assistant appellate defender, of Dover, by brief and orally, for the defendant.
JOHNSON, J. The defendant, Thomas Crosby, was indicted on two counts of aggravated felonious sexual assault by means of digital vaginal penetration and one count of aggravated felonious sexual assault by means of digital anal penetration. See RSA 632-A:2 (1996). After a jury trial, the defendant was convicted on the indictments alleging vaginal penetration and acquitted on the charge of anal penetration. On appeal, the defendant argues that the Superior Court (Fitzgerald, J.) erred in ruling that the victim could testify that the defendant had assaulted her on occasions other than those charged in the three indictments. We reverse and remand.
The State adduced the following facts at trial. In 1991, the defendant resided in Nottingham, Rockingham County, with his girlfriend, Robyn, and her two children, the victim and the victim's brother, then aged six and seven years old, respectively. Because Robyn was allergic to the defendant's dogs, the defendant's former wife kept the dogs at her home in Strafford, Strafford County. On two occasions, the defendant took the children to his former wife's house to care for the dogs. The victim testified that the defendant assaulted her on both occasions: the first time, in the fall of 1991, he digitally penetrated her vagina, and the second time, in August 1994, he digitally penetrated her vagina and anus. The victim disclosed the assaults to her mother in January 1995, after the defendant and the victim's mother had married. Dr. Wendy Gladstone, a physician who examined the victim after the assaults, testified that the physical examination revealed evidence consistent with repeated sexual abuse. The defendant in his trial testimony denied having any sexual contact with the victim.
Before trial, the defendant sought to prevent the introduction of evidence that he had previously assaulted the victim at the house in Nottingham. See N.H. R. Ev. 404(b). The State argued that Dr. Gladstone's testimony would demonstrate that the victim had been sexually assaulted repeatedly and that without the victim's testimony about the assaults in Nottingham, the jury would be unable "to understand the [medical] evidence in a rational context." The trial court accepted the State's proffer that the testimony about the Nottingham assaults was necessary to explain the medical evidence, and the victim ultimately testified that the defendant had assaulted her many times in Nottingham from the time she was five or six years old until the time of the last charged act, when the victim was nine years old.
The prosecutor referred to the Nottingham assaults in both his opening and closing statements to the jury. In his closing, he stated that the defendant had molested the victim "repeatedly, repeatedly." Defense counsel objected and moved for a mistrial. The trial court sustained the objection but denied the motion; the court instructed the jury that the evidence of other allegations should be used "only for the limited purpose of putting certain evidence in context and may not be used . . . to infer guilt as to these indictments." The court had issued similar instructions following the victim's testimony and in its final charge to the jury.
The defendant now argues that the trial court erred in admitting the victim's testimony about the Nottingham assaults in violation of New Hampshire Rule of Evidence 404(b). 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.
Evidence of other bad acts is admissible only "if relevant for a purpose other than to prove the defendant's character or disposition, if there is clear proof the defendant committed the other acts, and if the prejudice to the defendant does not substantially outweigh the probative value of the evidence." State v. Carter, 140 N.H. 1, 4, 662 A.2d 289, 291 (1995) (quotation omitted). We will not disturb the trial court's determination that such evidence is admissible unless that determination constitutes an abuse of discretion. See id. at 3-4, 622 A.2d at 290.
The defendant initially challenges the admission of the victim's testimony on relevancy grounds. The proponent of bad acts evidence -- in this case, the State -- bears the burden of demonstrating its relevance. See State v. McGlew, 139 N.H. 505, 509, 658 A.2d 1191, 1195 (1995). To be relevant, the evidence must "tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity." Id. at 510, 658 A.2d at 1195.
The State contends that the victim's testimony about the Nottingham assaults was relevant to the issue of the defendant's identity. Under Rule 404(b), bad acts evidence may be used to establish "the defendant's identity as the perpetrator of the charged crime." E. Imwinkelreid, Uncharged Misconduct Evidence