State v. Kirsch

THAYER, J.,

concurring in part and dissenting in part: Although I concur in the majority’s treatment of the search warrant and mistrial issues, I respectfully dissent from the majority’s holding that the evidence of the defendant’s other bad acts was not relevant.

Other bad act evidence may not be used for the purpose of proving a defendant’s character or propensity to commit the crime charged. N.H. R. Ev. 404(b). Rule 404(b) does, however, permit the admission of such evidence for other purposes as the rule itself provides. If the evidence is relevant for a permissible purpose, the defendant is entitled to a limiting instruction to insure that the jury uses the evidence only for that limited purpose. The defendant is further entitled to have the trial court examine the evidence to determine whether its probative value is substantially outweighed by the danger of unfair prejudice. See State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988) (Rule 403 analysis is appropriate under Rule 404(b)).

In this case, the prior bad acts alleged by the State and recounted by the majority were offered to show the defendant’s plan, and they do so. The majority’s narrow reading of the common plan exception essentially *657requires the State to show the defendant’s state of mind before he started on his spree of criminal conduct, limiting the exception to a mutually dependent series of events. As stated in the dissent in State v. Whittaker, 138 N.H. 524, 531, 642 A.2d 936, 941 (1994) (Horton, J., dissenting), the rule should not be so limited. Furthermore, even under the standard set forth by the majority, the State can show, by circumstantial evidence, that the defendant’s plan was to obtain a position of authority and then select his victims utilizing, as the trial court found, a common set of criteria. Unlike Whittaker, in which the defendant allegedly committed two otherwise unrelated sexual assaults in a somewhat similar manner over a five-year period, here there was evidence of the defendant’s common scheme to use his position to sexually assault young girls. See State v. Bennett, 672 P.2d 772, 775 (Wash. Ct. App. 1983) (evidence that defendant offered food and shelter to other vulnerable teenagers in exchange for sex relevant under Rule 404(b) to demonstrate defendant’s plan, making it more probable that sexual intercourse occurred with victims); cf. State v. Tarsitano, 134 N.H. 730, 736, 599 A.2d 474, 477 (1991). In my view, the evidence was clearly relevant for that purpose.

Horton, J., joins the opinion of Thayer, J.