State v. Kirsch
139 N.H. 647 (1995)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Evidence of other similar but uncharged crimes is inadmissible propensity evidence under Rule 404(b) when offered to show a defendant's common plan or scheme, unless the crimes are constituent parts of a single, overarching criminal enterprise rather than merely a series of similar, independent acts.
Facts:
- David W. Kirsch was a leader for pre-teen church groups at the Granite State Baptist Church during the late 1970s and mid-1980s.
- Kirsch served as a trusted figure to the children, driving the church bus, monitoring church sleep-overs, and hosting sleep-overs at his personal residences.
- Multiple young girls, generally between seven and ten years old and from dysfunctional or impoverished homes, became close to Kirsch through church activities.
- Kirsch allegedly sexually assaulted these girls over a period of years, with the acts ranging from fondling to sexual intercourse.
- During some of the alleged assaults, Kirsch showed the victims pornographic movies and photographed them in the nude.
- The last reported criminal act occurred six years before police sought and obtained a warrant to search Kirsch's home in 1990.
Procedural Posture:
- David W. Kirsch was tried in Superior Court on thirteen indictments for sexual assault against three victims.
- Prior to trial, Kirsch filed a motion to suppress evidence seized from his home pursuant to a search warrant, which the trial court denied.
- The State filed a motion to introduce evidence of uncharged sexual assaults committed by Kirsch against three other women under N.H. Rule of Evidence 404(b), which the trial court granted.
- At the close of the State's case, the court dismissed seven indictments.
- A jury found Kirsch guilty on the six remaining indictments, which all pertained to a single victim.
- Kirsch's motion for a mistrial was denied by the trial court.
- Kirsch appealed his convictions to the New Hampshire Supreme Court, the highest court in the jurisdiction.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the admission of testimony about uncharged sexual assaults to show a defendant's common plan of selecting and seducing young girls from similar backgrounds violate New Hampshire Rule of Evidence 404(b) by constituting impermissible character evidence?
Opinions:
Majority - Batchelder, J.
Yes. The admission of this evidence violates Rule 404(b) because it serves only to prove the defendant's propensity to commit the charged crime, which is impermissible. The State's proffered purposes for the evidence—motive, intent, and common plan—were not legally sufficient. To show motive, the evidence must explain the reason for the charged crime, not a general desire for sexual activity with a certain type of victim, which is merely propensity. Similarly, arguing the past acts prove intent is a circular argument based on character. To satisfy the 'common plan' exception, the acts must be constituent parts of a single, larger scheme, not just a pattern of similar, independent crimes. Here, the evidence only showed Kirsch's penchant for molesting young girls, which is the precise type of character evidence Rule 404(b) is designed to exclude.
Concurring in part and dissenting in part - Thayer, J.
No. The evidence of other bad acts was relevant and should have been admitted to show the defendant's common plan. The majority interprets the 'common plan' exception too narrowly by requiring the acts to be part of a mutually dependent series of events. The evidence demonstrated a clear scheme by the defendant to use his position of authority within the church to identify, groom, and assault vulnerable young girls. This is a permissible, non-propensity purpose under Rule 404(b), as it shows a specific design and method, making it more probable that he committed the charged acts in the same manner.
Concurring in part and dissenting in part - Horton, J.
No. Joining Justice Thayer's dissent, the evidence was admissible. This opinion refers to prior dissents in similar cases (State v. Whittaker, State v. Bassett, State v. McGlew) to reiterate a broader interpretation of the 'common plan' exception under Rule 404(b) than the one adopted by the majority.
Analysis:
This decision significantly narrows the 'common plan or scheme' exception under New Hampshire Rule of Evidence 404(b). The court draws a sharp line between a series of similar but separate crimes, which it deems inadmissible propensity evidence, and crimes that are intrinsically linked as parts of a single, overarching criminal plot. This precedent makes it more difficult for prosecutors to introduce evidence of a defendant's past similar acts, requiring a much stronger connection than a common modus operandi. The ruling prioritizes protecting defendants from being convicted based on their character over the probative value of a demonstrated pattern of criminal behavior.
Unlock the full brief for State v. Kirsch