State v. Walters, 85-550

• Decision Date: 08 December 1986
• Docket Number: No. 85-550,85-550
• Citation: 519 A.2d 305,128 N.H. 783
• Parties: The STATE of New Hampshire v. David WALTERS.
• Court: New Hampshire Supreme Court

Page 305

519 A.2d 305

128 N.H. 783

The STATE of New Hampshire v. David WALTERS.

No. 85-550.

Supreme Court of New Hampshire.

Dec. 8, 1986.

Stephen E. Merrill, Atty. Gen. (Steven L. Winer, Asst. Atty. Gen., on the brief), for the State.

Joanne Green, Asst. Appellate Defender, Concord, for defendant.

THAYER, Justice.

The defendant was found guilty of felonious sexual assault upon a fourteen-year-old boy, in violation of RSA 632-A:3. He was sentenced to three-to-six years in the New Hampshire State Prison. On appeal, the defendant claims that the Trial Court (Dalianis, J.) abused its discretion by admitting into evidence testimony concerning a December 22, 1982, newspaper article about pedophilia which was found in the defendant's wallet at the time of his arrest on June 2, 1984. We agree with the trial court that the challenged evidence was relevant to prove the defendant's possible motive and intent to commit the offense charged, and we therefore affirm.

On May 20, 1984, the minor victim went to the home of a friend in Nashua. On that day, the defendant, who had been living at the house for a short time, was the only one at home. The victim entered the house and began to watch a football game on television. The defendant entered the living room, pulled down the window shades and locked the door. He approached the victim and kissed him and told him he loved him. The defendant then ordered the victim to approach him, and he then engaged in sexual penetration through oral contact with the victim. The victim resisted by pushing the defendant away and shortly thereafter left the house.

After the incident was reported to Detective Isbill of the Nashua Police Department, an arrest warrant was issued for the defendant and he was brought to the police station. During the booking, Detective Isbill conducted a routine inventory of the defendant's property. He discovered a newspaper clipping in the defendant's wallet entitled, "Gallery of Tragedy, Sex Ring Literature: A Litany of Sickness." It concerned pedophilia and the North American Man/Boy Love Association. When questioned about the article, the defendant informed the police that it had been given to him by one of his counselors at the State Hospital. He further stated that his counselor told him to attend meetings at the hospital to discuss the article because this "would help him with the problem he has had in the past."

Prior to trial, the defendant filed a motion in limine to exclude all testimony and evidence pertaining to the newspaper article, as well as any statements made by the defendant at the time of his arrest regarding the article. The defendant argued that the article and statements were irrelevant and prejudicial since they tended to show, at most, his character and a predisposition to commit the offense. The defendant further argued that the remoteness of the article in time as compared to the date of the offense eliminated the probative value of the article. The trial court denied the motion as to the article itself and as to the defendant's statement that he had had a "problem" in the past, but granted the motion as to the defendant's statement that he acquired the article from his counselor at the New Hampshire Hospital. The defendant raises these same issues on appeal, arguing in addition that the trial court abused its discretion by allowing this evidence to be introduced at trial.

It is well settled that evidence is relevant when it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H.R.Ev. 401; see also State v. Leuthner, 124 N.H. 638, 641, 474 A.2d 1029, 1030 (1984). However, this court has also consistently held that whether or not to admit relevant evidence is within the sound discretion of the trial court. See State v. Brooks, 126 N.H. 618, 625, 495 A.2d 1258, 1263 (1985). Under the facts of this case the trial court, in making its determination, must also consider N.H.R.Ev. 403, which states in pertinent part, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."

In this case the court, in a thorough and succinctly written opinion, found that the defendant's act of carrying the article would be relevant to prove he had an opinion about the views contained therein, which would be material and probative of his possible motive and intent to commit the offense. The record also indicates that the court carefully considered the probative value of the challenged...