State v. McGlew

HORTON, J.,

dissenting: I would find the admission of the other bad acts evidence to be proper. There is a nexus between the prior act of child sexual abuse and the charged act of attempted felonious sexual assault on a child. This nexus is not seriously diluted by the difference in sex of the victim or the time elapsing between the incidents. The circumstances of the case and the nature of the charge make intent a serious issue in the case. I have written all I intend to, in other cases, to support the legal position underlying my conclusion in this case. See State v. Bassett, 139 N.H. 493, 503, 659 A.2d 891, 898 (1995) (Horton, J., dissenting); State v. Whittaker, 138 N.H. 524, 530, 642 A.2d 936, 940 (1994) (Horton, J., dissenting). I would affirm the trial court.

I agree with the majority’s supervisory ruling, where a Rule 404(b) determination is made, that the trial court specifically identify the purpose or purposes asserted for admission which it considered, identify the nexus between the prior act and the charged act which is relevant to the considered purpose, describe the specific logical path followed to establish that nexus, relate the considerations which enter into the weighing of probative value versus prejudice, and disclose how these considerations were used to determine whether the prejudice inherent in the proposed evidence substantially outweighs its probative value. This requirement will impose discipline on the parties and the trial court, a discipline not devoid of real effort, but well warranted by the importance of these evidentiary matters. The discipline will also be of considerable assistance to this court.

While agreeing with the procedure, I take issue with the standard imposed for reporting of the inferential path. The majority requires articulation of a “precise chain of reasoning” to show the nexus between the prior act and the charged act, and requires that this chain not rely on the “forbidden inferences” of character and propensity. Nowhere do I find any such inferences forbidden. In the rule I find forbidden purposes. Thus, proving bad character or propensity to *512forbidden purposes. Thus, proving bad character or propensity to commit the crime is forbidden. The prohibited purpose is showing that the defendant is a bad person in the abstract, or that the defendant has a propensity to commit the crime, without regard to other items of required proof. Most prior bad acts will certainly tend to prove bad character or disposition to do wrong. The fact that this is so, and even that this effect has a logical bearing on the inferential path to the proof of the permitted issue, does not make admission to prove matters other than character and propensity a violation of Rule 404(b). To the extent that the inferential path may be compromised by a showing of bad character and or propensity to do bad, this will be developed in the articulation of the inferential path and will be appropriate in consideration of the balance between proof and prejudice. I would endorse the procedure without the limiting standard.