State v. Tarsitano, 90-171

• Decision Date: 06 November 1991
• Docket Number: No. 90-171,90-171
• Citation: 599 A.2d 474,134 N.H. 730
• Parties: The STATE of New Hampshire v. Orlando T. TARSITANO.
• Court: New Hampshire Supreme Court

Page 474

599 A.2d 474

134 N.H. 730

The STATE of New Hampshire v. Orlando T. TARSITANO.

No. 90-171.

Supreme Court of New Hampshire.

Nov. 6, 1991.

John P. Arnold, Atty. Gen. (Ann M. Rice, Asst. Atty. Gen., on the brief and orally), for the State.

Jeffrey A. Denner, and Richard Abbott, orally, Newton, Mass., and Kenneth Gould, Londonderry, on brief, for the defendant.

THAYER, Justice.

The defendant, Orlando T. Tarsitano, appeals four jury verdicts finding him guilty of four class A felony theft offenses and five class B felony burglary offenses. The defendant challenges these convictions, contending that the Superior Court (Perkins, J.) improperly admitted evidence of prior unindicted offenses under New Hampshire Rule of Evidence 404(b). Specifically, the questions presented are whether the trial court erred in finding that there was clear proof that the defendant had committed the prior unindicted offenses and that the probative value of those offenses was not substantially outweighed by their prejudicial effect. We affirm.

The defendant was hired as a part-time police officer in the Newington Police Department in July 1984 and became a full-time officer in September 1984. In March 1986, the defendant left the Newington department to become a police officer in Charlotte, North Carolina. While the defendant was a police officer in Newington, he often worked evening and overnight shifts. William Shank also worked the late shifts, sometimes with the defendant.

During 1985 and early 1986, the town of Newington experienced an increase in the number of burglaries of commercial businesses. On March 30, 1986, after an investigation, former Newington police officer William Shank and his wife, Sharon Shank, were arrested in connection with several of the Newington burglaries. In July 1987, Sharon Shank pleaded guilty to charges stemming from the Newington burglaries and agreed to cooperate with the State. In October 1987, William Shank pleaded guilty to six counts of receiving stolen property and one count of hindering apprehension, all relating to the Newington burglaries. Although cooperation was not a requirement of his plea agreement, Mr. Shank agreed to cooperate with the State. In December 1987, Mr. and Mrs. Shank began meeting regularly with Trooper John Pickering of the New Hampshire State Police to provide additional information about the Newington burglaries. Mr. Shank revealed his involvement in approximately forty-eight separate criminal acts to Trooper Pickering and implicated his wife in eleven of those, his wife's brother, James Ryan, in nineteen, and the defendant in thirty-three. Subsequently, criminal charges were brought and indictments entered against James Ryan and the defendant. A short time before he was to go to trial, James Ryan pleaded guilty and agreed to cooperate with the State.

Shortly before the defendant's trial, the defendant filed a motion in limine seeking to exclude any reference at trial to crimes for which he had not been indicted. The defendant argued that such evidence would be inadmissible character evidence in violation of New Hampshire Rule of Evidence 404. After hearing the testimony of Mr. Shank, Trooper Pickering, and the defendant, the Superior Court (Perkins, J.) denied the defendant's motion and specifically ruled that the evidence was relevant and admissible for the purpose of establishing opportunity, plan, and preparation. The court further found clear proof that the defendant committed these acts, and that the probative value of the evidence outweighed the danger of prejudice to the defendant.

After a trial, the jury found the defendant guilty of nine felonies: four class A theft and theft-related offenses and five class B burglary and burglary-related offenses. The jury acquitted the defendant of one charge of class A theft and one charge of class B burglary.

On appeal, the only issue is whether the trial court abused its discretion in admitting at trial evidence of the defendant's participation in other criminal acts for which he was not indicted. The defendant contends that, by admitting this evidence, the trial court erred in two respects: (1) there was no clear proof that the defendant committed these acts, and (2) the probative value of the acts did not outweigh the prejudicial effect to the defendant of admitting evidence of them in court. The State contends that the trial court made no error in admitting the testimony relating to the unindicted acts.

Evidence of prior offenses or bad acts is admissible under Rule 404(b) of the New Hampshire Rules of Evidence. The rule provides:

"(b) Other Crimes, Wrongs, or Acts.--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."

N.H.R.Ev. 404(b). Prior to the adoption of Rule 404(b), this court had established a three-pronged test to determine the admissibility of prior offenses. See State v. Barker, 117 N.H. 543, 546, 374 A.2d 1179, 1180 (1977). In Barker, we held that the admission of prior offense evidence is conditioned upon a determination that "the evidence is relevant for a purpose other than showing the character or disposition of the defendant, that the proof that the acts in question were committed by the defendant is clear, and that the probative value of the evidence outweighs the danger of prejudice to the defendant. " Id. In State v. Hickey, 129 N.H. 53, 60, 523 A.2d 60, 65 (1986), we determined that the three-pronged analysis of Barker is also required under Rule 404(b). However, we subsequently modified the third prong of the Barker analysis to conform to Rule 403 of the New Hampshire Rules of Evidence. See State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988) (requiring Rule 403 analysis for Barker determination). Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." N.H.R.Ev. 403. As we have recently stated, under the appropriate three-pronged analysis, as modified in Trainor, the decision whether to admit evidence under Rule 404(b) " 'lies within the sound discretion of the trial court upon a determination that the evidence is relevant for a purpose other than character or disposition, that there is clear proof that the defendant committed the prior offenses,' ... and that the prejudice to the defendant does not substantially outweigh the probative value of the evidence...." State v. Gruber, 132 N.H. 83, 88, 562 A.2d 156, 159 (1989) (quoting Trainor, 130 N.H. at 374, 540 A.2d at 1238 (citations omitted)).

The defendant does not dispute that the first prong of the test is met. Therefore, we proceed with the understanding that the trial court correctly found that the proffered evidence of the defendant's commission of prior criminal acts was relevant for the purpose of establishing opportunity, plan, and preparation. The defendant, however, asserts that neither the second nor the third prong is met.

The defendant argues that the failure of the State to produce evidence that the defendant reaped a monetary gain or retained stolen property from the prior criminal acts should...