State v. Bassett, 93-009

• Citation: 139 N.H. 493,659 A.2d 891
• Decision Date: 23 May 1995
• Docket Number: No. 93-009,93-009
• Parties: The STATE of New Hampshire v. Daniel BASSETT.
• Court: New Hampshire Supreme Court

Page 891

659 A.2d 891

139 N.H. 493

The STATE of New Hampshire v. Daniel BASSETT.

No. 93-009.

Supreme Court of New Hampshire.

May 23, 1995.

Jeffrey R. Howard, Atty. Gen. (Donald Feith, Senior Asst. Atty. Gen., on the brief and orally), for the State.

Judith M. Kasper, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

BROCK, Chief Justice.

The defendant, Daniel Bassett, was convicted of four counts of aggravated felonious sexual assault on his wife after a jury trial in Superior Court (Smukler, J). On appeal, he argues that the trial court erred in admitting evidence under New Hampshire Rule of Evidence 404(b) of his first conviction and sentence for sexually assaulting his wife. We reverse and remand.

At trial, the defendant's wife, Andrea Bassett, testified to the following. She and the defendant had been married for six years when they separated in August 1990 because of his abusive behavior. After a short time, they resumed their relationship, including sexual relations, although they lived separately. On September 4, 1990, the defendant sexually assaulted her. He was arrested and indicted, and in June 1991, he was convicted and received a suspended jail sentence. Despite the assault and court orders that the defendant stay away from Andrea, the couple maintained contact, and four incidents of sexual assault occurred during the next year and a half, which Andrea did not report to the police until March 1992. On December 24 and 25, 1990, the defendant sexually assaulted Andrea while visiting at her home for Christmas. In March 1991, they reconciled and began living together again in her house. In November or December 1991, however, the defendant sexually assaulted her during an argument about whether they should again separate. He moved out of the house, at her request, on February 1, 1992, but returned the next day to discuss their separation. Their discussion ended in violence. On February 10, he came back to the house to retrieve a pair of boots, and they argued about whether he would leave. The argument escalated, and he sexually assaulted her while threatening her with a knife. She first reported all four incidents to the police on March 4, 1992.

The defendant was indicted on four charges of aggravated felonious sexual assault, RSA 632-A:2 (1986 & Supp.1991) (amended 1992). Before trial, the State moved to enter into evidence, in its case in chief, the defendant's conviction for aggravated felonious sexual assault on Andrea, stemming from the September 4, 1990, incident, and evidence of his repeated abusive behavior toward her. The State argued that the evidence was admissible to prove the defendant's motive, intent, and plan. N.H.R.Ev. 404(b). The defendant objected to the admissibility of the evidence of his first conviction, testimony about the incident that resulted in the conviction, and the sentence. Before trial, the court ruled that the defendant's first conviction of aggravated felonious sexual assault, without any explanatory details of the incident, his resulting sentence, as well as evidence of his other abusive behavior toward his wife were admissible to prove intent and motive. The record of the defendant's first conviction and his sentence were introduced as part of the State's case in chief. The only issue on appeal is the admissibility of the defendant's first conviction and sentence.

The purpose of Rule 404(b) in a criminal trial is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based on evidence of other crimes or wrongs. See State v. Blackey, 137 N.H. 91, 94, 623 A.2d 1331, 1333 (1993). Rule 404(b) provides:

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.

Evidence of other crimes is not admissible unless: (1) it is relevant for a purpose other than to show the defendant's bad character or disposition; (2) there is clear proof that the defendant committed the other crimes or acts; and (3) prejudice to the defendant does not substantially outweigh the probative value of the evidence. State v. Hastings, 137 N.H. 601, 603-04, 631 A.2d 526, 528 (1993); State v. Dalphond, 133 N.H. 827, 830, 585 A.2d 317, 320 (1991). In ruling on the admissibility of evidence under Rule 404(b), the trial court exercises its sound discretion, and we will find error "only if the defendant can show that the ruling was clearly untenable or unreasonable to the prejudice of his case." State v. Whittaker, 138 N.H. 524, 526-27, 642 A.2d 936, 938 (1994) (quotation omitted). In this case, the defendant challenges the admissibility of his prior conviction and sentence on the first and third prongs of the Rule 404(b) analysis.

To be relevant under the first prong of the Rule 404(b) analysis, evidence of the defendant's first conviction and sentence must have had "some direct bearing on an issue actually in dispute." Blackey, 137 N.H. at 95, 623 A.2d at 1333. In addition, there must have been a clear connection between the particular evidentiary purpose, as articulated to the trial court, and the first conviction and sentence. See United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986); 1 J. Strong, McCormick on Evidence § 190, at 809 (4th ed. 1992).

The trial court determined, before trial, that the defendant's first conviction and sentence were relevant to prove motive and intent and ruled that the evidence was admissible. The defendant appeals the court's pretrial ruling to admit the evidence but does not raise issues concerning the use or content of the evidence as it was presented at trial. Cf. State v. Poirier, 136 N.H. 477, 617 A.2d 653 (1992) (affirming court's decision, based on changed circumstances at trial, to reverse pretrial decision to exclude evidence of defendant's prior assault); State v. Fecteau, 133 N.H. 860, 873-74, 587 A.2d 591, 599 (1991) (affirming trial court's ruling allowing the State to introduce previously excluded evidence of the defendant's arrest to explain references in defense's opening statement).

We have not previously articulated a standard for the scope of review of a pretrial ruling to admit evidence under Rule 404(b). We note that a court's pretrial ruling is likely to affect the trial strategy of both the defense and the State. In this case, the defense, in light of the pretrial ruling, chose to counter the effect of the evidence by explaining in opening statement that the defendant had received counseling and changed his behavior following his arrest for the crime underlying his first conviction. The State argues that this defense provides further justification for the court's pretrial ruling that the evidence was relevant. To avoid the pitfall of justifying the court's pretrial ruling based upon the defendant's response at trial to the evidence, we consider only what was presented to the court at the pretrial hearing to review the relevance of the challenged evidence. The question of relevance should thus be answerable in this case as of the time of the State's proffer and the court's ruling thereon; namely, pretrial.

We first examine the relevance of the defendant's conviction and sentence to prove his motive to sexually assault his wife. "Motive has been defined as supplying the reason that nudges the will and prods the mind to indulge the criminal intent." 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404, at 404-86 (1993) (quotation omitted). The State's motion in limine sought to admit evidence of the defendant's other violent and abusive behavior against his wife, his threats to commit suicide, and his first conviction and sentence for the previous assault. The defendant challenged the admissibility of his first conviction and sentence and testimony about the details of that assault, but did not object to evidence of his other abusive and violent behavior toward his wife. The State did not seek to include the details of the crime underlying his first conviction and sentence.

At the pretrial hearing, the prosecutor explained why the evidence should be admitted to prove the defendant's motive: "The defendant's motives really go to his motives as it relates to their relationship, as opposed to his motive of the specific incident." The ensuing discussion between the prosecutor and the court reveals that the State's primary interest was to present evidence of the continuing abusive relationship between the defendant and Andrea, to explain her conduct, and to support her credibility at trial. The court stated that proof of her credibility raised an evidentiary issue aside from Rule 404(b) that could not be resolved before trial. The prosecutor responded: "Well, your Honor, except that it would be the state's position that it--that it is not merely on the issue of credibility, but, rather, it forms the--it forms, in essence, the explanation for the conduct of the individuals involved, apart from credibility." The defendant did not dispute the nature of the relationship between himself and his wife and did not object to evidence of their relationship, except the fact of his conviction and details of the underlying assault. The court noted that there were three levels of evidence addressed by the State's motion in limine, and first granted the State's motion as to the "evidence with respect to the relationship of the parties," finding no objection by the defendant. The court then ruled that as to the second and third evidentiary issues, the conviction and sentence were admissible under Rule 404(b) to show motive and intent, which we understand to mean the motive and intent of the defendant rather than the nature of the...