State v. Eldredge, 91-025

Decision Date14 May 1992
Docket NumberNo. 91-025,91-025
Citation607 A.2d 617,135 N.H. 562
PartiesThe STATE of New Hampshire v. John ELDREDGE.
CourtNew Hampshire Supreme Court

John P. Arnold, Atty. Gen. (Cynthia L. White, Asst. Atty. Gen., on the brief and orally), for State.

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

BROCK, Chief Justice.

The defendant, John Eldredge, was convicted after a jury trial in the Superior Court (M. Flynn, J.) on two counts of aggravated felonious sexual assault, RSA 632-A:2 (1986 and Supp.1991) and one count of attempted aggravated felonious sexual assault, RSA 632-A:2; RSA 629:1, and sentenced to serve eleven to twenty-two years in the New Hampshire State Prison. The indictments arose from allegations that on two separate occasions the defendant engaged in acts of sexual misconduct with his minor niece. We affirm.

At trial, the State was permitted, under New Hampshire Rule of Evidence 404(b), to offer testimonial evidence of sexual acts involving the defendant and the victim that allegedly occurred prior to the indicted acts. The victim testified that when she was eleven or twelve years old the defendant played "roughhouse" with her and her cousins, and that while playing the defendant would touch her breasts over her clothing. She also told of an incident when the defendant woke her as she slept on a couch and kissed her and rubbed her breasts and vagina. The defendant on appeal challenges the adequacy of the trial court's limiting instruction concerning this evidence of prior bad acts.

The procedural history of this issue began with the State's pretrial motion to introduce the prior bad acts evidence under Rule 404(b) for eight purposes other than to show the defendant's propensity to commit acts of sexual misconduct. The defendant objected to admission of the evidence for any purpose. The court made a preliminary finding, conditioned on a voir dire of the victim, that the evidence would be admissible for the purposes requested by the State, and indicated that a clear limiting instruction would be forthcoming upon admission of the evidence at trial and again when the jury was finally charged. After the voir dire, the court ruled that the prior bad acts evidence was admissible "to show the context in which the crime was committed, to show the relationship between the parties, to establish that the defendant believed that the victim was vulnerable and also [was] admissible on the issues of motive, intent and opportunity."

Again, the court noted the defendant's objection to the admissibility of the evidence for any purpose. Nevertheless, the court solicited from both sides requested limiting instructions concerning the Rule 404(b) evidence. The record does not reveal whether either side submitted a request.

At trial, when the State offered the victim's testimony as evidence of the prior bad acts, the defendant requested that the court give the limiting instruction "that [had been] discussed earlier." The court complied by instructing as follows:

"I just want to instruct you, ladies and gentlemen of the jury, that [the victim's] testimony of the defendant's alleged prior sexual assaults on her are not evidence of the defendant's character or of a trait of his character and they cannot be considered by you as proving that the defendant acted in conformity therewith. In other words, sexual acts on [the victim] prior to the time of the assaults for which he has been indicted, that cannot be used by you as evidence that he had a propensity to commit such acts.

You can consider this evidence which you've just heard as to prior ... alleged prior sexual assaults by the defendant on [the victim] only for the purposes that I'm going to state to you.... You can consider the context in which the charged crimes were committed, the relationship of the parties, the belief by the defendant that [the victim] was vulnerable, and for the purpose of showing the defendant's intent, motive or opportunity."

The defendant did not object to the limiting instruction at that time nor later when the court again gave it in the final charge to the jury.

Though he did not brief the issue, the defendant maintained at oral argument that a contemporaneous objection to the trial court's...

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10 cases
  • State v. Hynes
    • United States
    • New Hampshire Supreme Court
    • 5 d3 Agosto d3 2009
    ...an error it may have made and is particularly appropriate where an alleged error involves a jury instruction. State v. Eldredge, 135 N.H. 562, 564, 607 A.2d 617 (1992) (quotation omitted). Here, the defendant made no objection to the court's jury instruction in this regard. In fact, the jur......
  • State v. Nightingale
    • United States
    • New Hampshire Supreme Court
    • 23 d5 Julho d5 2010
    ...150 N.H. 80, 84–85, 834 A.2d 297 (2003), or object generally to the admissibility of the evidence itself, see State v. Eldredge, 135 N.H. 562, 564–65, 607 A.2d 617 (1992). To preserve a jury instruction issue for our review, counsel must actually make a specific objection to the court's jur......
  • State v. Davis, 93-085
    • United States
    • New Hampshire Supreme Court
    • 14 d3 Dezembro d3 1994
    ...754 (1990). This requirement is "particularly appropriate where an alleged error involves a jury instruction." State v. Eldredge, 135 N.H. 562, 564, 607 A.2d 617, 618 (1992) (quotation Affirmed. All concurred. ...
  • State v. Bouchard, 93-349
    • United States
    • New Hampshire Supreme Court
    • 15 d3 Junho d3 1994
    ...trial court was adequately informed of the defendant's argument when it first arose in the pretrial motion. See State v. Eldredge, 135 N.H. 562, 564, 607 A.2d 617, 618 (1992). Therefore, we will resolve this question on the The defendant has not met his burden of showing unfair prejudice. H......
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