State v. Dalphond, 89-567

• Decision Date: 28 January 1991
• Docket Number: No. 89-567,89-567
• Citation: 585 A.2d 317,133 N.H. 827
• Parties: The STATE of New Hampshire v. John DALPHOND.
• Court: New Hampshire Supreme Court

Page 317

585 A.2d 317

133 N.H. 827

The STATE of New Hampshire v. John DALPHOND.

No. 89-567.

Supreme Court of New Hampshire.

Jan. 28, 1991.

John P. Arnold, Atty. Gen. (David S. Peck (orally), Sr. Asst. Atty. Gen., and Claire L. Gregory, Asst. Atty. Gen., on the brief), for State.

James E. Duggan, Chief Appellate Defender, Concord, by brief and orally, for defendant.

BROCK, Chief Justice.

The defendant, John Dalphond, was convicted after a jury trial of four counts of aggravated felonious sexual assault, RSA 632-A:2, X (Supp.1990), committed against his fifteen-year-old stepdaughter. On appeal, he argues that the Superior Court (Dunn, J.) erred, first, in admitting into evidence an adult magazine belonging to the defendant, entitled Family Touch, and second, in allowing testimony allegedly describing instances, other than those charged in the indictments, of the defendant's sexual misconduct with his stepdaughter. For the reasons that follow, we affirm the defendant's convictions.

The four indictments against the defendant were based on a series of sexual assaults that occurred over a four-day period in March of 1986. These assaults of his stepdaughter involved both digital penetration and sexual intercourse. During the investigation of the case against the defendant, his wife, who was also the mother of the victim, delivered to the Merrimack County prosecutor's office a box of sexually related books and magazines belonging to the defendant. Among these materials were three magazines, entitled Family Touch, Family Letters, and Family Affairs, which the State, by motion, sought to admit into evidence during its case-in-chief against the defendant.

At the pretrial hearing on the motion, the State alleged that the three magazines, all of which contained themes and articles involving incestuous relationships, were similar to magazines that the victim had seen the defendant reading during the period of the assaults. Consequently, the State argued that the magazines were relevant to prove the defendant's criminal intent and also to show the nature of his relationship with his stepdaughter during the assaults. The defendant disagreed and argued that, under New Hampshire Rule of Evidence 404(b), the magazines were inadmissible, because their only relevance was to illustrate the defendant's bad character. Alternatively, he argued that, to whatever degree the magazines were relevant for proper purposes, their relevance was substantially outweighed by the unfair prejudice caused by allowing the jury to review the magazines.

The trial court agreed, in part, with both the State and the defendant. It ruled that, although the three magazines were probative on the issue of intent and preparation, admitting all three into evidence would be unnecessarily cumulative and unfairly prejudicial to the defendant. The trial court concluded, however, that these dangers would be sufficiently reduced by admitting just one of the magazines. Accordingly, the State chose Family Touch as the one to be placed into evidence.

Family Touch is a monthly periodical, containing articles, sketches, letters, photographs and advertisements that explicitly describe and encourage a variety of sexual encounters. As the title suggests, however, the principal theme of the magazine focuses on incestuous relationships. The front cover of the specific issue in question reflects this theme by highlighting three feature articles: "She Strips For Daddy," "I Made It With Mom," and "A Sister Confesses: 'Water Sports With My Brother.' " The issue also contains other articles, as well as a number of lengthy letters from readers, regarding sexual relations between various family members. Although the issue contains some non-incestuous materials, no other topic is as prevalent as the topic of incest.

At trial, the victim's testimony supported the State's position at the pretrial hearing that magazines similar to Family Touch were used in connection with the assaults. She testified that the defendant kept "smut books" throughout their home, and she described these materials as "dirty stories that people write ... to ... publishers, stories about affairs and sexual relations between parents and children and aunts and uncles." She knew about their content because the defendant had made her read from them, and she identified Family Touch as a magazine that looked "like one of the books that was always lying around the house." She also testified that she saw her stepfather reading from a book similar to Family Touch just before he sexually assaulted her.

The trial court instructed the jury, once when the magazine was admitted into evidence and again during the final jury instructions, that the magazine should be considered only as evidence on the issues of the defendant's intent and preparation to commit the charged offenses. The court explained that the defendant was not charged with any crime related to the possession of the magazine and that the magazine must not be considered as evidence illustrating the defendant's character.

New Hampshire Rule of Evidence 404(b) provides that:

"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."

Before allowing "bad acts" evidence to go before the jury, the trial court must preliminarily determine whether (1) the " 'evidence is relevant for a purpose other than showing the character or disposition of the defendant,' " State v. Hickey, 129 N.H. 53, 60, 523 A.2d 60, 65 (1986) (quoting State v. Barker, 117 N.H. 543, 546, 374 A.2d 1179, 1180 (1977)); (2) there is clear proof that the act at issue was committed by the defendant, id.; and (3) the "prejudice to the defendant does not substantially outweigh the probative value of the evidence," State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988).

The defendant first argues that prior to admitting "bad acts" evidence, the trial court must make specific findings on the record that the evidence at issue complies with each of the three prongs under the Rule 404(b) analysis. According to the defendant, when the trial court admitted Family Touch into evidence, it failed to make the requisite finding with regard to the second prong of the Rule 404(b) analysis and, as a result, failed to adequately consider whether there was clear proof showing that the magazine was used during the time period covered in the indictment.

The flaw in this first argument, however, is that it elevates form over substance. The defendant asks us to reverse his conviction based on the trial court's alleged failure to enunciate on the record its findings under the second prong of the Rule 404(b) analysis. While, in every case, we would strongly encourage the trial court to assist our review by making specific findings to support its evidentiary rulings, the failure to do so, in and of itself, does not require reversal.

In reviewing the defendant's assertion that the trial court failed to adequately consider the second prong of the Rule 404(b) analysis, we ask whether the trial court abused its discretion in its determination to admit the magazine. See State v. Johnson, 130 N.H. 578, 584, 547 A.2d 213, 216 (1988). In order to be successful on appeal, the defendant must demonstrate that the trial...