State of New Hampshire v. Adam Wells, 166 N.H. 73

Defendant Adam Wells was indicted on four counts of aggravated felonious sexual assault (AFSA) and one count of felonious sexual assault (FSA) for sexual acts against his minor daughter; one AFSA count was dismissed pretrial.
At trial the child testified about a 2010 sexual intercourse incident and, while recounting events leading up to it, said the defendant digitally penetrated her shortly before the intercourse.
Defense moved for a mistrial arguing the testimony described an uncharged bad act inadmissible under N.H. R. Ev. 404(b); the court initially admitted, then struck, the testimony and instructed the jury to disregard it but denied a mistrial.
The State introduced testimony from the child’s guidance counselor and a school counselor recounting the child’s out-of-court disclosures and questions after a school lecture; defense objected as hearsay and prejudicial.
The State also played a recorded call between the child and defendant in which the child accused him and he made inculpatory statements; the child testified in detail at trial.
Supreme Court affirmed convictions, holding the digital-penetration testimony was intrinsic to the charged offense (thus admissible under Rule 403) and that any error in admitting counselors’ testimony was harmless beyond a reasonable doubt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether testimony that the defendant digitally penetrated the child immediately before charged intercourse was inadmissible "other act" evidence under Rule 404(b) and warranted a mistrial	State: testimony was res gestae/inextricably intertwined with the charged act and thus admissible to tell the single-event story	Wells: testimony described an uncharged act; risk jurors would convict based on propensity; prejudicial such that instruction could not cure	Court: testimony was intrinsic to the single criminal episode and should have been analyzed under Rule 403; probative value outweighed unfair prejudice, so admission was proper and denial of mistrial not reversible
Whether testimony recounting the child’s out-of-court disclosures to a counselor and guidance counselor was inadmissible hearsay and unduly prejudicial	State: offered not for truth but to show the child’s state of mind/context for disclosure; any error harmless given other evidence	Wells: testimony repeated the child’s allegations to third parties and effectively bolstered the prosecution; not admissible as prior consistent statement or otherwise; unfairly prejudicial	Court: declined to decide hearsay/fresh-complaint issues because any error was harmless beyond a reasonable doubt given child’s trial testimony and recorded inculpatory call

Payano v. State, 528 A.2d 721 (R.I. 1987) (defendant who secured striking of evidence cannot complain of failure to declare mistrial for attempted introduction of admissible testimony)
United States v. Epstein, 426 F.3d 431 (1st Cir. 2005) (Rule 404(b) excludes only extrinsic other-act evidence whose probative value depends on propensity inference)
United States v. Hardy, 228 F.3d 745 (6th Cir. 2000) (intrinsic other-act evidence has causal, temporal, or spatial connection; background/contextual evidence admissible)
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (same-transaction contextual evidence admissible to complete the story of charged offense)
State v. Hall, 148 N.H. 671 (N.H. 2002) (evidence that is "part and parcel" of same episode evaluated under Rules 401/403)
State v. Nightingale, 160 N.H. 569 (N.H. 2010) (inextricably intertwined evidence not subject to Rule 404(b); analyze under Rule 403)
State v. Dion, 164 N.H. 544 (N.H. 2013) (records/calls immediately preceding charged conduct intrinsic and admissible under Rule 403)
State v. McDonald, 163 N.H. 115 (N.H. 2012) (harmless-error standard: verdict unaffected beyond a reasonable doubt)
State v. Clay, 79 A.3d 832 (R.I. 2013) (uncharged assault testimony "inextricably woven" with charged crime and admissible for non-propensity purpose)
Commonwealth v. Roby, 969 N.E.2d 142 (Mass. 2012) (fresh-complaint doctrine permits testimony about circumstances of first complaint when assault or consent contested)