THE STATE OF NEW HAMPSHIRE v. ADAM WELLS
No. 2012-441
THE STATE OF NEW HAMPSHIRE
February 13, 2014
Argued: September 18, 2013
37 F.3d 496, 500 (9th Cir. 1994) (finding the plain error test satisfied where the district court improperly instructed the jury on the different mental state requirements of voluntary and involuntary manslaughter, for in doing so the district court “created a substantial risk that [the defendant] was convicted of voluntary manslaughter, even though the jury may have believed the killing was neither intentional nor extremely reckless“). To allow the convictions to stand under these circumstances “would seriously affect the fairness and integrity of judicial proceedings.” Guay, 162 N.H. at 384. Accordingly, we reverse the convictions and remand for a new trial.
Reversed and remanded.
DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.
Brianna M. Sinon, assistant appellate defender, on the brief and orally, for the defendant.
BASSETT, J. The defendant, Adam Wells, was indicted on four counts of aggravated felonious sexual assault and one count of felonious sexual assault against his minor daughter. See
I. Mistrial
One of the AFSA charges on which the defendant was convicted alleges that he had sexual intercourse with his minor daughter in 2010, while another alleges that the defendant digitally penetrated the child in 2011. During the child‘s account of the events leading up to the 2010 offense, she testified that the defendant digitally penetrated her shortly before the sexual intercourse. The defendant objected to the testimony regarding the uncharged digital penetration and moved for a mistrial, arguing that the digital penetration testimony was inadmissible under
On appeal, the defendant contends that the digital penetration testimony was so prejudicial that the instructions could not cure the taint, and, therefore, that the trial court erred when it denied his motion for a mistrial. He argues that, because one of the indictments alleged digital penetration, prejudice stems from the likelihood that the jury would convict him based upon his propensity to repeatedly commit the same illegal act. The State counters that the testimony was admissible as res gestae evidence because the challenged testimony described an act of digital penetration that was an essential part of the sequence of events leading to the charged sexual intercourse. The State further argues that, although the trial court correctly ruled that a mistrial was not necessary, it should have reached that result by ruling that the evidence was admissible, rather than by determining that any prejudice could be cured with jury instructions. We agree.
“A mistrial is appropriate when the circumstances indicate that justice may not be done if the trial continues to a verdict. To justify a mistrial, the conduct must be more than merely inadmissible; it must constitute an irreparable injustice that cannot be cured by jury instructions.” State v. Kerwin, 144 N.H. 357, 358-59 (1999) (quotation omitted). “When reviewing a trial court‘s ruling on a
This is not such a case: under the circumstances, no mistrial was warranted. We reach this conclusion because the stricken testimony was admissible evidence of a single criminal episode. Therefore, there was no improperly rung bell that needed to be “unrung.” See id. at 548-49. Had the trial court not stricken the challenged testimony from the record, the jurors could properly have considered it in determining the issue of guilt or innocence of the charged AFSA. “In securing the striking of this evidence, [the] defendant[] achieved more than [he was] entitled to secure and consequently cannot complain of the trial justice‘s failure to declare a mistrial for the attempted introduction of such evidence.” State v. Payano, 528 A.2d 721, 728 (R.I. 1987).
As in Payano, the challenged testimony should not have been ruled inadmissible under
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.
The rule, “by its very terms, excludes only extrinsic evidence — evidence of other crimes, wrongs, or acts — whose probative value exclusively depends upon a forbidden inference of criminal propensity.” United States v. Epstein, 426 F.3d 431, 439 (1st Cir. 2005) (quotation omitted).
“‘Other act’ evidence is ‘intrinsic,‘” and therefore not subject to
The challenged testimony in this case did not provide evidence of “other crimes, wrongs, or acts” governed by
We note that we have not previously referred to this type of testimony as res gestae evidence; however, we have held that
Although intrinsic evidence is not barred by
In this case, because the testimony was intrinsic evidence that was inextricably intertwined with the charged act, it should have been analyzed under
Under the
“Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury‘s sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.” Id. at 574. “Unfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial.” Id. “Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.” Id. “Among the factors we consider in weighing the evidence are: (1) whether the evidence would have a great emotional impact upon a jury; (2) its potential for appealing to a juror‘s sense of resentment or outrage; and (3) the extent to which the issue upon which it is offered is established by other evidence, stipulation or inference.” Id. at 574-75.
In order to perform the balancing required by
We next consider whether the danger of unfair prejudice to the defendant from the admission of this testimony substantially outweighed its probative value. See id. at 575. The defendant argues that the risk of unfair prejudice arises from the likelihood that the jury used the testimony to convict him based on his propensity to commit digital penetration, and not on the established propositions in the case. See id. at 574. He argues that his defense was substantially prejudiced by this testimony because the child testified about the same type of conduct that was charged under a separate indictment. However, the challenged testimony was relevant to tell the child‘s account of the 2010 offense, and, therefore, served a purpose other than proving the defendant‘s character. See State v. Clay, 79 A.3d 832, 839-40 (R.I. 2013) (upholding decision to allow victim to testify about uncharged sexual assault during her recitation of events surrounding charged kidnapping because challenged testimony was “inextricably woven” with charged crime and served a purpose other than proving character). Because the child mentioned
Additionally, we conclude that there was only minimal risk that the act described in the testimony would induce the jury to decide against the defendant on an improper or emotionally charged basis. We cannot say that the testimony that the defendant digitally penetrated the child prior to engaging in sexual intercourse with her was likely to have any greater emotional impact upon the jury than the evidence of the charged intercourse. See Nightingale, 160 N.H. at 575 (noting that uncharged sale of drugs was not likely to have any greater emotional impact than charged sale of drugs). Although the challenged testimony may have been prejudicial, it was not unfairly so; we cannot conclude that the evidence was so inflammatory as to arouse the jury‘s “sense of horror” or to “provoke its instinct to punish.” See id. at 574.
Accordingly, because the challenged testimony had probative value in describing the full sequence of events immediately preceding the charged crime and was not unfairly prejudicial, we hold that, as a matter of law, it should have been admitted into evidence for consideration by the jury. Consequently, the defendant “achieved more than [he was] entitled to secure.” Payano, 528 A.2d at 728. He cannot now complain of the trial court‘s failure to declare a mistrial for the attempted introduction of the admissible testimony. Thus, we hold that the trial court committed no reversible error by denying the motion for a mistrial.
II. Out-of-Court Statements
During trial, the defendant asserted that his daughter had fabricated the allegations against him as a result of an argument that had occurred a few days before her initial disclosure. To provide context for the child‘s disclosure, the State introduced the testimony of Jeffrey Martel, her guidance counselor, and Heather Kingston, a mental health and drug and alcohol counselor. Kingston had given a presentation on sexual harassment at the child‘s school several days after the argument between the child and the defendant. Kingston testified that, shortly after her lecture, the child had approached her and asked: “What if I have a friend who has something going on,” and “What if a friend is — something has happened to them?” Martel testified that, several days after the child had posed these questions to Kingston, the child told him that her father had been touching her and that she wanted it to stop.
The defense objected to the testimony of both Kingston and Martel on hearsay grounds. In response, the State argued that the child‘s statements were not offered for their truth. The State also asserted that the testimony was admissible because it was relevant to the state of mind of the child, which the defendant had put at issue by asserting that the child had concocted the allegations as a result of a recent argument. The trial court allowed both individuals to testify, and gave limiting instructions to the jurors directing them to consider the testimony not for the truth of the child‘s statements, but only as evidence of her state of mind at the time of her initial disclosure.
The State contends that the trial court sustainably exercised its discretion in admitting the statements. The State also argues, for the first time on appeal, that the statements made to Martel were admissible under the fresh complaint doctrine,* and, further, asserts that Kingston‘s testimony was not hearsay because she merely recounted a question posed to her by the child, rather than conveying an out-of-court statement made by the child. In the alternative, the State argues that any error that the trial court made in allowing Martel and Kingston to recount what the child said to them was harmless.
Because we agree with the State that any error was harmless, we need not decide whether the testimony was hearsay, or whether the fresh complaint doctrine might apply.
“An error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error.” State v. McDonald, 163 N.H. 115, 123 (2011). “An error may be harmless if the alternative evidence of the defendant‘s guilt is of an overwhelming nature, quantity or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State‘s evidence of guilt.” Id. “In determining whether an error was harmless, we consider the alternative evidence presented at trial as well as the character of the inadmissible evidence.” Id. The State bears the burden of proving that an error is harmless. Id.
The defendant argues that the testimony was prejudicial because it repeated the allegations of the child through two other witnesses, which
created a risk that the jury would confuse repetition with truthfulness. Although we recognize that this is a potential risk, here the trial court specifically instructed the jury not to consider the statements as evidence of what happened, or for the truth of the child‘s statements. Because we assume that the jury follows the instructions given by the trial court, we conclude that the jury did not consider the challenged testimony as evidence that the alleged assaults occurred. See State v. Giordano, 138 N.H. 90, 94 (1993).
Moreover, the nature and quantity of the alternative evidence of the defendant‘s guilt also supports our finding that any error in admitting the testimony was harmless. The child testified at trial, providing
The State, however, did not rely solely upon the child‘s testimony to prove its case. The State also introduced into evidence a recorded telephone call between the child and the defendant, which the child initiated prior to the defendant‘s arrest at the request of the team investigating her allegations. The recording of the conversation was played for the jury, and they were also given a transcript to read while they listened. During the call, the child said, “You‘ve been doing these sexual things to me” and the defendant responded that “[i]t will never happen again.” When the child asked, “Why would you do this to me?” the defendant initially responded that he was at a loss and then told her that “[t]his was done to me when I was little.” He also told her that he was not proud of himself, and that he would go to jail if she made the allegations in public. The jury was able to assess the defendant‘s tone of voice and behavior during the call and to consider the substance of his statements as admissions of guilt.
In relation to the strength of the State‘s evidence of guilt, as well as the trial court‘s instructions to the jury regarding the testimony of Kingston and Martel, their testimony was inconsequential. Neither Kingston nor Martel testified with specificity about the child‘s allegations. Rather, their testimony focused on the fact and context of their conversations with the child.
Because the alternative evidence of the defendant‘s guilt was overwhelming, and the testimony of Martel and Kingston was inconsequen- tial, we conclude, beyond a reasonable doubt, that the admission of the challenged testimony was harmless and did not affect the verdict.
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.