Argued: September 18, 2013.
[Copyrighted Material Omitted]
Michael A. Delaney, attorney general ( Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.
Brianna M. Sinon, assistant appellate defender, on the brief and orally, for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.
[166 N.H. 75] Bassett, J.
The defendant, Adam Wells, was indicted on four counts of aggravated felonious sexual assault and one count of felonious sexual assault against his minor daughter. See RSA 632-A:2, I(j)(2), :3, III (2007). The trial court granted the defendant's motion to dismiss one of the indictments alleging aggravated felonious sexual assault (AFSA). The defendant appeals his conviction on the remaining three AFSA charges and the charge alleging felonious sexual assault (FSA). On appeal, he argues that the Superior Court ( McNamara, J.) erred by: (1) failing to grant a [166 N.H. 76] mistrial after the child testified to uncharged acts; and (2) admitting testimony regarding out-of-court disclosures made by the child. We affirm.
One of the AFSA charges on which the defendant was convicted alleges that he had sexual intercourse with his minor daughter in 2010, while another alleges that the defendant digitally penetrated the child in 2011. During the child's account of the events leading up to the 2010 offense, she testified that the defendant digitally penetrated her shortly before the sexual intercourse. The defendant objected to the testimony regarding the uncharged digital penetration and moved for a mistrial, arguing that the digital penetration testimony was inadmissible under New Hampshire Rule of Evidence 404(b). The State countered that the child was merely describing the details of a single sexual assault. The trial court initially ruled that the testimony was admissible as part of the course of conduct to show a common scheme; however, the trial court subsequently reconsidered and ruled that the testimony was inadmissible bad act evidence under Rule 404(b). The defendant again moved for a mistrial; the trial court denied the motion, but later instructed the jury that the testimony was stricken and that it should be disregarded.
On appeal, the defendant contends that the digital penetration testimony was so prejudicial that the instructions could not cure the taint, and, therefore, that the trial court erred when it denied his motion for a mistrial. He argues that, because one of the indictments alleged digital penetration, prejudice stems from the likelihood that the jury would convict him based upon his propensity to repeatedly commit the same illegal act. The State counters that the testimony was admissible as res gestae evidence because the challenged testimony described an act of digital penetration that was an essential part of the sequence of events leading to the charged sexual intercourse. The State further argues that, although the trial court correctly ruled that a mistrial was not necessary, it should have reached that result by ruling that the evidence was admissible, rather than by determining that any prejudice could be cured with jury instructions. We agree.
" A mistrial is appropriate when the circumstances indicate that justice may not be done if the trial continues to a verdict. To justify a mistrial, the conduct must be more than merely inadmissible; it must constitute an irreparable injustice that cannot be cured by jury instructions." State v. Kerwin, 144 N.H. 357, 358-59, 742 A.2d 527 ...