State v. Kirsch

• Decision Date: 27 June 1995
• Docket Number: No. 92-684,92-684
• Parties: The STATE of New Hampshire v. David W. KIRSCH.
• Court: New Hampshire Supreme Court

Page 937

662 A.2d 937

139 N.H. 647

The STATE of New Hampshire v. David W. KIRSCH.

No. 92-684.

Supreme Court of New Hampshire.

June 27, 1995.

Jeffrey R. Howard, Atty. Gen. (Janice K. Rundles, Asst. Atty. Gen., on the brief and orally), for State.

Carol L. Hess, Concord, and Kirk Y. Griffin, Boston, MA (Ms. Hess and Mr. Griffin on the brief, and Mr. Griffin orally), for defendant.

BATCHELDER, Justice.

The defendant, David W. Kirsch, appeals his convictions, after a jury trial in Superior Court (O'Neil, J.), of aggravated felonious sexual assault, RSA 632-A:2 (1986), and felonious sexual assault, RSA 632-A:3 (1986). He argues that the trial court erred: (1) in denying his motion to suppress evidence; (2) in admitting evidence of other sexual assaults under New Hampshire Rule of Evidence 404(b); and (3) in denying his motion for a mistrial. We reverse and remand.

The defendant was tried on thirteen indictments charging sexual assaults on three young girls between 1984 and 1987. In addition to the three victims named in the indictments, three other young women testified, pursuant to Rule 404(b), about sexual abuse committed against them by the defendant from the late 1970's to the mid-1980's. With minor variations, each young woman testified to similar activity and association with the defendant. During that time period, the defendant led pre-teen church groups at the Granite State Baptist Church in Salem, occasionally driving the church bus that transported the children from their homes to the church. In addition to leading a group called Alpha-Teens that provided recreational activities, the defendant was one of several church staff members who monitored sleep-overs at the church. He also hosted church sleep-overs at his home in Salem and, later, at his home in Plaistow. Each of the victim/witnesses testified to having been approximately seven to ten years old when she met the defendant through her association with the church and to having become close to him through the church groups she attended. Each rode on the bus or in his van with the defendant and spent the night at the church or at his home. Some remembered sitting in the defendant's lap, and all remembered the defendant's inappropriate touching, from fondling of the breasts and vaginal area to digital penetration, fellatio, cunnilingus, and sexual intercourse.

Of the thirteen indictments on which the defendant was tried, seven were dismissed at the close of the State's case. The six remaining indictments all involved the same victim, Karen G., and were comprised of three counts each of aggravated felonious sexual assault and felonious sexual assault. The defendant was found guilty of all six charges.

Prior to trial, the defendant moved to suppress evidence seized from his Plaistow home pursuant to a search warrant. The warrant was issued in November 1990 and resulted from interviews with two victims, Michelle L. and Christine L., who were sisters. Christine, then age nineteen, and Michelle, twenty, spoke with Detective Mark Cavanaugh of the Salem Police Department and Sergeant Kathleen Jones of the Plaistow Police Department. Michelle told the police that the defendant began to sexually assault her when she was approximately eight years old and continued to assault her until she was fourteen. The assaults ranged from touching her breasts and vaginal area to sexual intercourse, which occurred at the defendant's homes in Salem and Plaistow. According to Michelle, she had been shown pornographic movies by the defendant or his wife during some of these assaults, and she and other young girls were photographed in the nude by the defendant. Michelle told the police that she was fourteen years old the last time the defendant had sexual intercourse with her and that the incident occurred in his Plaistow residence. Christine told the police of an incident at the defendant's Plaistow home, when she was ten or eleven years old, when the defendant undressed her and performed digital penetration and cunnilingus and had her perform fellatio.

On the basis of this information, Sergeant Jones applied for a warrant to search the defendant's Plaistow residence, seeking "[p]ornographic or erotic materials to include but not limited to books, magazines, articles, photographs, slides, movies, albums, letters, diaries, sexual aids or toys or other items relating to sexual acts or sexual acts with children. Additionally, photographs of the alleged crime scene." The warrant was issued, and during the search the police seized several pornographic videotapes, "sexual aid devices," nude photographs, school photographs of various children including Michelle and Christine, an address book, and a greeting card to the defendant from Michelle. Except for a nude photograph of the defendant's wife that was later removed from evidence by the court, the only other items seized that were introduced at trial were school photos and addresses of some of the alleged victims and the greeting card.

The defendant first argues that the warrant was not supported by probable cause in that it was based on stale information. As alleged in the affidavit, the defendant's most recent criminal activity and contact with the victims occurred six years prior to the application for the warrant.

Our standard for reviewing whether probable cause has been demonstrated in a search warrant affidavit is whether, given all the facts and circumstances presented to the magistrate, the police have shown that there is a substantial likelihood that contraband or evidence of crime will be found in the place to be searched. See State v. Decoteau, 137 N.H. 106, 111, 623 A.2d 1338, 1341 (1993). The resolution of doubtful or marginal cases with respect to the existence of probable cause will be "largely determined by the preference to be accorded to warrants." State v. Sands, 123 N.H. 570, 604, 467 A.2d 202, 223 (1983). Where, as here, the passage of time between the suspected criminal activity and the application for the warrant is at issue, other circumstances, such as the nature of the activity and the items sought, must also be considered in determining whether probable cause exists. State v. Marcotte, 123 N.H. 245, 248, 459 A.2d 278, 280 (1983).

Here, the affidavit supported a finding that the defendant's sexual abuse of young girls occurred over a protracted period, approximately six years. In addition, the activity occasionally involved pornographic movies and taking photographs of the victims in the nude. There would be no reason to conclude that the defendant would have felt a necessity to dispose of such items. See id.

We have not, before now, been faced with a case such as this. Other courts, however, have ruled in similar circumstances that an appreciable lapse of time was no bar to a finding of probable cause to issue a search warrant, in light of the nature of the offense and of the items sought. In State v. Woodcock, 407 N.W.2d 603 (Iowa 1987), the court stated that "it would be reasonable for an issuing magistrate to conclude that a person charged with sexual exploitation of children through photographs and similar items would be likely to retain them for an indefinite period." Id. at 605 (events alleged in affidavit predated warrant application by a year and a half). As the Iowa court explained, unlike the evidence or fruits of other crimes, such as theft or drug offenses, "the types of material involved here would be more likely to be retained. Their perceived usefulness to the suspect would be of a continuing nature, through gratification obtained by him." Id.

Similarly, in People v. Russo, 439 Mich. 584, 487 N.W.2d 698 (1992), notwithstanding that the last incident alleged in the affidavit had occurred six and one-half years before, the court upheld a finding of probable cause to believe that a suspected child molester would still have pornographic articles such as videotapes and photographs at his home. Acknowledging that the passage of time is one factor to be considered in the probable cause analysis, the Michigan court articulated the test, as did this court in State v. Marcotte, 123 N.H. at 248, 459 A.2d at 280, as a balance of all the circumstances,

such as whether the crime is a single instance or an ongoing pattern of protracted violations, whether the inherent nature of the scheme suggests that it is probably continuing, and the nature of the property sought, that is, whether it is likely to be promptly disposed of or retained by the person committing the offense.

Russo, 487 N.W.2d at 707. The affidavit in that case showed ongoing sexual abuse of children over a period of four years and the use of photographs in connection with the criminal activity. The court held it reasonable for the magistrate to conclude that the evidence was likely retained by the defendant at his residence. Id. at 711.

Here, the affidavit recounted sexual abuse of children over a period of six years. During that period the defendant photographed the children and displayed pornographic movies during some of the assaults. Although the affidavit did not contain a so-called "pedophile profile," reciting the types of material collected by child molesters and their proclivity for retaining it, we do not believe such a recitation is required to establish probable cause. See id. A "common-sense inference," id. at 705, about the longevity of child pornography for the sexual abuser of children may reasonably be drawn from the nature of the items themselves, such as the photographs taken of the children. "[P]hotographs guarantee that there will always be an image of the child at the age of sexual preference.... [Their] retention ... may also serve to insure that the child keeps the secret, thereby permitting the offender to continue molesting children...." Id.

For the foregoing reasons, we think it reasonable for a magistrate to conclude that all the items sought were reasonably connected to the suspected...