dissenting: I would affirm this case. I find no error in the trial court’s admission of the evidence of other bad acts. It was properly admitted on the issue of intent. The majority examines and rejects the admission of this evidence on the basis of the first prong of the Rule 404(b) test, relevancy to a permitted issue. As stated in State v. Hastings, 137 N.H. 601, 603, 631 A.2d 526, 528 (1993), this prong requires that the State demonstrate that the evidence to be offered is relevant for a purpose other than proving character or disposition. The rule provides examples of such valid purposes, and one such example is intent. N.H. R. Ev. 404(b). ‘“Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.H. R. Ev. 401. The majority acknowledges that “if the conviction and sentence tend to prove that the defendant acted knowingly on the four subsequent occasions as the indictments charged, then the evidence was relevant to prove his intent.” The majority holds that the conviction for aggravated felonious sexual assault on the victim on September 4, 1990, lacks a scienter nexus with the charged aggravated felonious sexual assaults on the same victim in December 1990, November or December 1991, and February 1992. I would find such a nexus consistent with our holding in State v. Dushame, 136 N.H. 309, 316-17, 616 A.2d 469, 473 (1992). The “knowing” scienter is a “fact of consequence” that must be proved by the State beyond a reasonable doubt. The prior conviction of the same crime against the same victim tends to prove this scienter. State v. Parker, 127 N.H. 525, 532, 503 A.2d 809, 813 (1985); see State v. Simonds, 135 N.H. 203, 207, 600 A.2d 928, 930 (1991); State v. Hood, 131 N.H. 606, 608, 557 A.2d 995, 996 (1989); State v. Hickey, 129 N.H. 53, 61, 523 A.2d 60, 65 (1986).
The majority rejects the inference of scienter arising from the conviction, even though the evidence of conviction otherwise may be relevant, by saying that the inference can only be based on character and disposition, and thus invades the forbidden territory in Rule *504404(b). I respectfully disagree with this conclusion. Proof of intent is the object permitted by the rule. The fact the inferential path to this object was in some way based on, or influenced by, evidence tending to show bad character or disposition to commit the crime is of no consequence under the rule. This fact is meaningful only when the target of the evidence is the proof of bad character or disposition. The jury was charged to make this distinction. The majority’s position seems to be based on the principle that where the evidence tends to prove bad character and disposition, it must be rejected. All prior bad act evidence tends to prove bad character and disposition, but the relevancy test in the rule is clear. Evidence of other bad acts is admissible if relevant to prove issues other than character and disposition. The fact that it also proves issues of character and disposition is not a proper consideration in application of the relevancy prong. It is the third prong of the test, not the relevancy prong, that requires balancing the probative value of the evidence to prove intent or scienter with the prejudice engendered by the evidence treading upon the forbidden ground of character and disposition. This third prong is uniquely within the sound discretion of the trial court. Dushame, 136 N.H. at 317, 616 A.2d at 473. I would not hold that discretion abused.
The trial court erred in instructing the jury that the bad acts evidence could be used for the laundry list of permissible purposes stated in Rule 404(b). Hickey, 129 N.H. at 61, 523 A.2d at 65. Although finding error and holding it not harmless beyond a reasonable doubt, Hickey, in my view, does not create a per se rule that such error is prejudicial. It requires a determination, under the circumstances of each case, whether the use of the forbidden laundry list, in fact, resulted in a reasonable doubt based on the existence of harm. Id. at 61-62, 523 A.2d at 65-66. Upon consideration of the record in this case, I would hold that the error was harmless beyond a reasonable doubt. See State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976).